Cracker Barrel Restaurants Argue that U.S.C. 1981 Doesn’t Recognize A Right-To-Sue on Retaliation

This is how far employers will go to protect their right to target and terminate complaining employees…

The case in question is CBOCS West Inc. v. Humphries. CBOCS West Inc. runs the Cracker Barrel chain of restaurants. The case raises an issue that remains unresolved in the Civil Right Act’s (1866) nearly century and a half of history: does the Act’s first section, now codified as 42 U.S.C. 1981, guaranteeing equality in the right to make a contract, forbid reprisals against an individual who complains of discrimination against others.

Cracker Barrel Restaurants has filed an appeal to the Supreme Court, in which they are essentially arguing that Federal anti-discrimination statutes do not protect employees from being fired for retaliatory purposes under U.S.C. 1981. To state this plainly, Cracker Barrel is arguing that it is not okay for an employer to fire an employee for discriminatory reasons (based on existing statutes), but that it is okay to fire an employee for complaining about the discrimination. According to the Cracker Barrel appeal, retaliation is not specifically mentioned in U.S.C. 1981.

The worker involved in the CBOCS case, Hedrick G. Humphries, is a black man who was fired from his job, allegedly as a retaliatory gesture. He filed his case under Title VII and Section 1981. His Title VII claims were dismissed for procedural reasons. So, his case became solely a Section 1981 claim.

A District Court ruled that Section 1981 does not cover retaliation claims. But, the Seventh Circuit Court disagreed, sending the case back for a trial on whether Humphries was fired because – as he claims – he had complained about the firing of a black employee who was a food server. He also had complained earlier about a supervisor’s remarks to white workers that he was there to take care of their interests.

CBOCS West Inc. appealed this case to the Supreme Court, on April 25 of last year, raising this question:

“Is a race retaliation claim cognizable under 42 USC Sec. 1981?”

The company, noting that Section 1981 does not include the word “retaliation,” argued that there is a basic difference in the concept of a firing based on retaliation and one based on discrimination. A retaliatory discharge, it said, is motivated by the worker’s complaint, not by his or her race.

If the worker had not complained, it added, there would have been no firing – whether the worker is white or black. By contrast, a discriminatory firing is based explicitly on that worker’s race; if it were not for the worker’s race, there would have been no discharge.

Cracker Barrel is arguing that Congress did not put retaliation rights in Section 198, while they had done so with other civil rights laws. In other words, Cracker Barrel says there is no right to a retaliation claim under Section 1981.

A number of Supreme Court Justices — at least a strong nucleus of a potential majority — on Wednesday showed fairly strong attachment to an idea that definitely would reduce the chances that an old civil rights law could be used to protect workers against a modern form of punishment at work. In the oral argument on CBOCS West v. Humphries (06-1431), those Justices implied that the Court could prevent claims of retaliation for complaining of workplace racial bias, under a law that dates to 1866, by simply concluding that the law gives no one the right to sue to raise such an issue. The Justices who seemed fascinated with denying a “cause of action” for retaliation under so-called “Section 1981″ said they could find nothing in that statute to permit such a lawsuit.

The Supreme Court will render a decision in this appeal by late Spring.

Stay tuned! For more details, see the links listed below.

Sources: http://www.usdoj.gov/osg/briefs/2007/3mer/1ami/2006-1431.mer.ami.html and http://www.scotuswiki.com/index.php?title=CBOCS_West_v._Humphries