Hedrick G. Humphries v. Cbocs West, Inc.

EASTERBROOK, Chief Judge,

dissenting in part.

The Supreme Court held in Jackson v. Birmingham, Board of Education, 544 U.S. 167 , 125 S.Ct. 1497 , 161 L.Ed.2d 361 (2005), that Title IX of the Education Amendments of 1972 — which forbids educational programs that receive federal funds from discriminating on account of sex, 29 U.S.C. § 1681 (a) — allows the judiciary to define the word “discriminate.” The Court used that authority to curtail steps that make reports of discrimination costly to students and employees. Today this court attributes to Jackson the conclusion that all federal statutes dealing with the employment relation prohibit retaliation.

The Justices gave three principal reasons for their decision in Jackson . (1) The word “discrimination” has sufficient ambiguity to permit a reading that includes an anti-retaliation norm. 544 U.S. at 173-74 , 125 S.Ct. 1497 .(2) Title IX was enacted in 1972, after anti-retaliation norms became common, making it sensible to resolve the ambiguity in favor of this reading. 544 U.S. at 176 , 125 S.Ct. 1497 .(3) Lack of an anti-retaliation norm would make it too easy for educational programs to undermine the principal substantive rules in Title IX by getting rid of anyone who tried to enforce them. 544 U.S. at 180-81 , 125 S.Ct. 1497 .

None of these reasons applies to 42 U.S.C. § 1981 , the subject of today’s decision. (1) The word “discriminate” does not appear in § 1981. What that statute provides is that all citizens have the same right to make and enforce contracts. How can a decision that resolves ambiguity in the word “discriminate” apply to other statutes with different language? (2) Section 1981 was enacted in 1866, long before anti-retaliation norms were created. The first mention of “retaliatory discharge” in any federal appellate opinion came in NLRB v. Arthur Winer, Inc., 194 F.2d 370 (7th Cir.1952), and the first use by the Supreme Court was NLRB v. Scrivener, 405 U.S. 117 , 92 S.Ct. 798 , 31 L.Ed.2d 79 (1972).(3) Lack of an anti-retaliation norm in § 1981 would not hinder enforcement of civil rights laws, because there is a real anti-retaliation rule in Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-3(a). That’s one reason why Jackson distinguished Title IX of the 1972 Act from Title VII of the 1964 Act. 544 U.S. at 175 , 125 S.Ct. 1497 . Cf. Garcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951 , *409 164 L.Ed.2d 689 (2006) (holding that there is no general anti-retaliation doctrine under 42 U.S.C. § 1983 ).

The question at issue today is not whether an employer may fire a worker who protested discrimination, but whether an employee may present a claim of retaliation even though he failed to file a timely charge under Title VII and engage in conciliation before turning to court. By adding an anti-retaliation rule to § 1981, the majority does not craft an ancillary doctrine necessary to make the principal norm work (as the Court did in Jackson)', instead it demolishes components of Title VII that Congress thought necessary to expedite the resolution of disputes and resolve many of them out of court.

This is not the first time that a disgruntled employee has turned to § 1981 after missing the deadline for litigation under Title VII. The Court held in Patterson v. McLean Credit Union, 491 U.S. 164 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989), that § 1981 should be construed when possible to avoid conflict with Title VII. Today, however, the majority does exactly what Patterson forbids. It reads § 1981 to have the same substantive content as Title VII, but without features such as short periods of limitations that employees find inconvenient. That’s not a sound way to treat this statute, already extended far beyond its original meaning. See Runyon v. McCrary, 427 U.S. 160 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976); Charles Fairman, VI History of the Supreme Court of the United States: Reconstruction and Reunion 1861-88 (Part One) 1207-60 (1971); Ger-hard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup.Ct. Rev. 89.. Patterson holds that the process of judicial extension must stop.

Congress can add to a law’s reach, and in 1991 it did so — but the 1991 revision does not mention “retaliation” or change the text of § 1981(a), on which Hum-phries’s claim rests. When § 1981 and Title VII have different but overlapping provisions (as they do, for example, with respect to damages), then the judiciary must enforce both. See, e.g., Branch v. Smith, 538 U.S. 254, 273 , 123 S.Ct. 1429 , 155 L.Ed.2d 407 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 141-14 , 122 S.Ct. 593 , 151 L.Ed.2d 508 (2001); Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004). But the fact that overlapping systems may coexist does not justify creating incompatibility, as the .majority does today. Section 1981 does not contain an anti-retaliation rule. When deciding whether to add such a rule to § 1981, we must consider the effect that this step would have on Title VII. That’s the holding of Patterson .

To the extent that my colleagues treat the 1991 legislation as discarding all of Patterson , they follow an approach that was rejected in Rivers v. Roadway Express, Inc., 511 U.S. 298 , 114 S.Ct. 1510 , 128 L.Ed.2d 274 (1994), and Landgraf v. USI Film Products, 511 U.S. 244 , 114 S.Ct. 1522 , 128 L.Ed.2d 229 (1994). Legislation does not “overrule” decisions of the Supreme Court; new statutes adopt new rules but leave in place existing norms that the legislation does not touch. Nothing in the Civil Rights Act of 1991 justifies reading § 1981 more broadly than its (amended) text or undermining parts of Title VII that remain in force. The Court demonstrated this in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 , 126 S.Ct. 1246 , 163 L.Ed.2d 1069 (2006), which unanimously reversed a decision that had invoked the judges’ views of wise public policy to extend § 1981. Domino’s Pizza shows that Patterson cannot be treated as defunct. The Supreme Court has cited Patterson favorably in 24 decisions since Landgraf and Rivers . Of these, Domino’s Pizza is *410 the most salient because it uses Patterson’s interpretive methodology to construe § 1981 as amended by the Civil Rights Act of 1991.

My colleagues end up declaring that the text of § 1981, its context, its history (the absence of anything like an anti-retaliation norm in 1866), its function, and the effect of an inventive reading on the operation of Title VII all are irrelevant. The rule they impute to Jackson has no moorings in any statute’s text or provenance. Yet that’s not at all what Jackson says; it dealt with the actual language and operation of Title IX and does not justify a language-and-history-free interpretation of all federal statutes. I do not think it likely that the Supreme Court, which insists that statutory language be followed even if inconvenient or jarring — see, e.g., Arlington Central School District v. Murphy, —— U.S. -, 126 S.Ct. 2455, 2463 , 165 L.Ed.2d 526 (2006); Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 , 125 S.Ct. 2611, 2625-27 , 162 L.Ed.2d 502 (2005); Dodd v. United States, 545 U.S. 353 , 125 S.Ct. 2478 , 162 L.Ed.2d 343 (2005); Tyler v. Cain, 533 U.S. 656 , 663 n. 5, 121 S.Ct. 2478 , 150 L.Ed.2d 632 (2001) — would accept such an atextual approach. I appreciate the temptation to make every law “the best it can be,” but that is not the Supreme Court’s current mode of statutory interpretation, as Domino’s Pizza shows for § 1981 in particular.

Perhaps it was the approach that prevailed in 1969, when the Court decided Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 , 90 S.Ct. 400 , 24 L.Ed.2d 386 (1969). The majority in Sullivan held that a plaintiff in litigation under 42 U.S.C. § 1982 has standing to complain about retaliation, and Jackson concluded that it must have had a substantive component too. So read, Sullivan is of a piece with other decisions holding that judges may supplement statutes to make them “more effective.” See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426 , 84 S.Ct. 1555 , 12 L.Ed.2d 423 (1964). But Cort v. Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975), abandoned that approach, and since the 1970s the Court has lashed interpretation more closely to statutory text. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26 , 107 S.Ct. 1391 , 94 L.Ed.2d 533 (1987) (emphasis in original).

It is anachronistic to say that, because Sullivan engaged in a freewheeling “interpretation” of § 1982, we may today take liberties with § 1981. One might as well cite Borak for the proposition that “every right implies a remedy” so that courts should today create a private right of action for every statute other than those that the Supreme Court addressed in Cort and its successors.

Yet that is the majority’s tack. The argument goes that, because Sullivan ignored the language of § 1982 and drafted an “improved” version of the statute, we are free to do the same today for § 1981, its neighbor. The Supreme Court requires us to proceed otherwise. Borak dealt with § 14(a) of the Securities Exchange Act of 1934,15 U.S.C. § 78n(a). It was as freewheeling in “interpreting” that law as Sullivan was with § 1982. Yet the Court has held that the change of interpretive method announced in Cort applies to all other sections of the Securities Exchange Act. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1 , 97 S.Ct. 926 , 51 L.Ed.2d 124 (1977) (§ 14(e)); Touche Ross *411 & Co. v. Redington, 442 U.S. 560 , 99 S.Ct. 2479 , 61 L.Ed.2d 82 (1979) (§ 17(a)). Borak and similar decisions from the 1960s have not been overruled, but we have been told in no uncertain terms that they must not be extended. Indeed, in Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 , 111 S.Ct. 2749 , 115 L.Ed.2d 929 (1991), the Court declined to apply Borak to a portion of § 14(a) that had not been involved in Borak . So that case has been limited to a single sentence of one subsection. Why, then, may the method of Sullivan be applied to other sections of the Civil Rights Act of 1866 despite intervening precedent?

There has been a sea change in interpretive method between Sullivan and today— and Patterson not only exemplifies • the change but also applies it to § 1981. In 1989 the Justices were invited to rely on Sullivan as a model for the interpretation of § 1981. They declined. Less than a year ago, in Domino’s Pizza, the Court reiterated Patterson’s interpretive stance. Sullivan , by contrast, did not receive a mention. Yet my colleagues do not mention Domino’s Pizza. Why bypass the Supreme Court’s 2005 understanding of § 1981 in favor of a 1969 understanding of § 1982? We must respect our superiors’ decision to call a halt to judicial extrapolation; Domino’s Pizza rather than Sullivan exemplifies the appropriate judicial role. By relying on Sullivan , my colleagues indulge an assumption — that if some remedies are good, then more must be better— that has no support on today’s Supreme Court.

Now if § 1981 had been enacted while the freewheeling approach of Sullivan was in force, it might well be appropriate to adopt a goal-driven reading. To use the interpretive tools of the last 30 years to unravel a statute passed in earlier days would be to cross up the legislature. That was a point the Court made in Jackson-. Title IX was enacted in 1972, and Congress may well have anticipated that Sullivan-like construction would follow. 544 U.S. at 176 , 125 S.Ct. 1497 . The legislators who voted for § 1981 in 1866 would not have anticipated any such judicial liberties, however; and when § 1981 was amended in 1991, decisions such as Cort and Rodriguez and Patterson had announced a textual approach. So when a question arises in 2006 about the meaning of this 1866/1991 legislation, our job is to apply the interpretive norms that prevailed in 1866, 1991, and today, not to take an ambiguous decision from 1969 and see how far we can run with it.

Section 1981 does offer one opening for a claim in the nature of retaliatory discharge. Suppose Cracker Barrel regularly fired' black employees who protest discrimination in the workplace, but not protesting white employees. Then it might be appropriate to conclude that black persons do not enjoy the same right as white persons to contract with Cracker Barrel. But Humphries does not make such an argument. For all this record shows, Cracker Barrel fires every eomplainer, without regard to the subject of the complaint. An employer that treats everyone the same in this respect complies with § 1981, so the judgment should be affirmed.