Amicus Curiae Brief — CBOCS West, Inc. v. Humphries

aS vTaeJwvwtw

a. pty oe tom

No. 06-1431

° . - .

"- = . ‘a

“* ad . e e -

je .

In the Supreme Court of the Gnited States |

CBOCS WEST, INC., PETITIONER

Vv.

HENDRICK G. HUMPHRIES

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

GRACE CHUNG BECKER

Acting Assistant Attorney

General

GREGORY G. GARRE

Deputy Solicitor General

CURTIS FE. GANNON

Assistant to the Solicitor

General

DENNIS J. DIMSEY

LISA WILSON EDWARDS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a claim asserting retaliation against an indi-

vidual who has complained of intentional racial discrimi-

nation is cognizable under 42 U.S.C. 1981.

(1)

TABLE OF CONTENTS

Page

PI GE Gee TINE GRMBGS ow wc ccccccccccccccucecesss 1

ee ota a acca skinned paehenadaensnke 2

EEF POT ET ET POT T E POPOL TOT OT 9

Argument:

Claims asserting retaliation because of complaints of

intentional racial discrimination are cognizable under

EEE Sho hae chs te baneedwhse Gdenibtccne se 13

A. Retaliation because of complaints about

racial discrimination impairs contract rights

in violation of Section 1981’s general anti-

discrimination prohibition .................... 13

B. The absence of a reference to retaliation is

not dispositive in the context of a general

prohibition on discrimination that lacks an

EE She uhb se oercdccccccccece 19

C. Thestatutory history confirms that Section

1981 encompasses retaliation claims ........... 21

D. Policy reasons recognized in Jackson support

the conclusion that Section 1981 prohibits

retaliation against those who complain about

intentional racial discrimination against

themselves or others ................-e0eeeees 25

E. — Section 1981’s partial overlap with Title VII

does not preclude retaliation claims here ....... 27

F. This Court’s decision in Domino’s Pizza

does not preclude retaliation claims under

ED “anccctdnddesdetevspantusientcose 31

PD cdencdotuabiouadeééiblues dvevcintiveede tines 33

(III)

IV

TABLE OF AUTHORITIES

Cases: Page

Aleman v. Chugach Support Servs., Inc., 485 F.3d

EEN Soa cieudevetcceebhangheoeeseu ie 25

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ..27

Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405

NE ee eeu ceedbe ue kebecess 25

Brown v. GSA, 425 U.S. 820 (1976) .............202005: 4

Burlington N. & Santa Fe Ry. v. White, 126 S. Ct.

a a re ee st ai 32

Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir.

Pt scien tenth hite betes vadseensshodbessens wes 21

Choudhury v. Polytechnic Inst., 735 F.2d 38 (2d Cir.

a ek a a es pee gid 21

Civil Rights Cases, 109 U.S. 3 (1883) ..............46. 31

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470

De pbitidecdanedeacketabesenwseee 5, 12, 16, 22, 31

Foley v. University of Houston Sys., 355 F.3d 333

di, a kana es 25

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274

a a a ee i eaneee 19, 20

General Bldg. Contractors Ass'n v. Pennsylvania,

GED 60. 6b06 Hoke tevncndaewcs 3, 18, 29, 30

Goff v. Continental Oil Co., 678 F.2d 593 (5th Cir.

1982), overruled by Carter v. South Cent. Bell,

OID FPBd GRE Gt Clr. IGGG) .. nrc cccccccccccccess 21

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ...... 2

Jackson v. Birmingham Bad. of Educ , 544 U.S. 167

DEY Kb dsdneben ddavensddnus enadeadadaben passim

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)... 3,4

Cases—Continued: Page

Johnson v. Railway Express Agency, Inc.,

Se WD TED oc cnvdnudecdwiuatnosanons passim

Johnson v.University of Cincinnati, 215 F.3d 561

(6th Cir.), cert. denied, 531 U.S. 1052 (2000) ........ 25

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .... 3, 18

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369

SNE. ékchecundedbatencdsacestaccencdbobiids 2, 4, 23

Ledbetter v. Goodyear Tire & Rubber Co.,

, § % SR er eer” 29

London v. Coopers & Lybrand, 644 F.2d 811

SG EEE taut on esunbndiscnnedearshebenseuss 21

Manatt v. Bank of Am., NA, 339 F.3d 792

ED 5s bu thodudusdusdcidgiessseesensace 25

McDonald v. Santa Fe Trail Transp. Co.,

ED 6 bhib dba Cekcidecudecndsascds 2, 26

Moore v. Consolidated Edison Co., 409 F.3d 506

SEE 36 Gupviscdeccnedduavesndcecensshuet 25

Patterson v. McLean Credit Union, 491 U.S. 164

ED ets bndds esse sovasenepesbeosieenseees passim

Randall v. Sorrell, 126 S. Ct. 2479 (2006) ............. 19

Runyon v. McCrary, 427 U.S. 160 (1976) ........... 18, 28

Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604

ctdikesccedsasntwadendedsenseumeasaseccsl 18

Shaare Tefila Cong. v. Cobb, 481 U.S. 615 (1987) ..... .18

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

SD. ba citvdvewcesshecsseedebonaes 1, 4, 9, 13, 14, 31

Tillman v. Wheaton-Haven Recreaiion Ass'n,

SP ED cibcduddcstcevausussandenmee 18, 31

VI

Cases—Continued: Page

Welch v. Texas Dep't. of Highways & Pub. Transp.,

Ee ee 16

Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir.

hd cin 666 56660600460600006c0000000% 21

Constitution and statutes:

U.S. Const.:

i iced pebckbn cess sack veetessoccees 30

Ped ewk Gebeeeddeheeodwesscctececocess 7

eRe eck ee ee SiS cbdsetocesssese’ 3

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq.:

i O16 eeebseiewesccconcecencans 21

i Mi ccetdedbeddeécnevesceeesees 20

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et segq.:

eee ek ven ceenenccesescesséee 21

tt ikk ch nchegsee seesusneedeceses 21

GB US.CTBIGB 2... eee e cece cece eee eeeceeeees 21

eek ie dee eeeescccessscos 21

Civil Rights Act of 1866, ch. 31, 14 Stat. 27 .... 7, 11, 18, 26

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et

EEE NE EPPS OPT TTT TT TT TTT TTT TT Te passim

etd et cece eases seceds 28

42 U.S.C. 2000e-3(a) (§ 704(a)) .. 2... eee. 19, 32

CE ee ee 21

Civil Rights Act of 1991, Pub. L. No. 102-166, § 101,

Csen ge neeeeend cdenvuecescuccecne 4,12

Vil

Statutes—Continued: Page

Education Amendments of 1972, Tit. 1X, 20 U.S.C.

PEE wh ewebddedddcedsncssuccenesactes passim

20 U.S.C. 1681(a) ... 2.26... eee eee ee eee ee eee 1,15

Equal Pay Act of 1963, 29 U.S.C. 206(d) .............. 29

Fair Labor Standards Act of 1938, 29 U.S.C. 216(b) .... 21

Family and Medical Leave Act of 1993, 29 U.S.C.

PED Ciel cid hedeneensedehusneeeesenGataesese 21

National Labor Relations Act, 29 U.S.C. 160(b) ........ 21

Surface Transportation Assistance Act of 1982,

49 U.S.C. 31101 et seq.:

ET abi oo dubbacdedveerenianes 21

EE 3. 2, ved cotuduateasaneusedes 21

Uniformed Services Employment and Reemployment

Act of 1994, 38 U.S.C. 4323(a) ... 2.2.0.2. cece eee 21

i as Knee a enews see seaccehediphenen passim

SINS oo ctt cncdnddaweéncesaneuen 3, 4, 13, 16

ED i cn cdenstcesescaneceie 4, 5, 8, 22, 29, 31

ED pcinedoddécudcugcaksous 4, 5, 13, 16, 17, 22

ED: cvccsccesosevesetasenvenneenes 29

EE. 1. cccsncconseoucs eds edie 29

SEE Shane 6onnedecedtntdadesansamuns passim

DED. cicvanccennnysheseaneeencioeeeunene 4

Miscellaneous:

Akhil Reed Amar, America’s Constitution:

SEED. Kdmeciucviscéoncnscccuncvcdas 26

Vill

Miscellaneous—Continued: Page

Civil Rights Act of 1990, Hearing Before the Senate

Comm. on Labor and Human Resources,

10ist Cong., Ist Sess. (1990) ..............2eeeeee- 24

H.R. Rep. No. 40, 102d Cong., Ist Sess. Pt.1 (1991) ....24

Robert J. Kaczorowksi, Revolutionary

Constitutionalism in the Era of the Civil War and

Reconstruction, 61 N.Y.U. L. Rev. 863 (1986) ....... 27

William Lee Miller, Arguing About Slavery:

John Quincy Adams and the Great Battle

in the United States Congress (1995) ...........-... 26

Jacobus tenBroek, Equal Under Law (rev. ed. 1965) .. . 26

gn the Supreme Court of the Anited States

No. 06-1431

CBOCS WEST, INC., PETITIONER

v.

HENDRICK G. HUMPHRIES

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The question presented in this case is whether a

claim asserting retaliation against an individual who has

complained of intentional racial discrimination is cogni-

zable under 42 U.S.C. 1981. The United States has par-

ticipated as amicus curiae in other cases presenting the

question whether a statute’s broad-based prohibition of

discrimination encompasses a cause of action for retalia-

tion because of complaints about discrimination. See

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167

(2005) (Title [X of the Education Amendments of 1972,

20 U.S.C. 1681(a)), and Sullivan v. Little Hunting Park,

Inc., 396 U.S. 229 (1969) (42 U.S.C. 1982). The court of

appeals’ interpretation of Section 1981 in this case was

(1)

2

based in significant part on this Court’s decisions in

Jackson and Sullivan. See J.A. 138-144.

The United States has responsibility for enforcing

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

et seq. The availability of relief under Section 1981 for

acts of racial discrimination in employment may affect

the allocation of government resources in enforcing the

provisions of Title VII. The United States has often

participated as amicus curiae in cases involving Section

1981 where, as here, the Court’s interpretation of Sec-

tion 1981 could affect the interpretation or enforcement

of statutes, like Title VII, that the United States en-

forces. See, e.g., Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369 (2004); Patterson v. McLean Credit Union,

491 U.S. 164 (1989); Goodman v. Lukens Steel Co., 482

U.S. 656 (1987); McDonald v. Santa Fe Trail Transp.

Co., 427 U.S. 273 (1976); Johnson v. Railway Express

Agency, Inc., 421 U.S. 454 (1975).

STATEMENT

Respondent is an African-American man who was an

associate manager :<t a Cracker Barrel restaurant

owned and operated by petitioner. He alleges that peti-

tioner violated 42 U.S.C. 1981 by retaliating against him

because he had complained about racial discrimination

against him and another black employee. The district

court granted summary judgment for petitioner and

dismissed the Section 1981 retaliation claim. On appeal,

petitioner argued that Section 1981 does not provide a

cause of action for retaliation claims. The court of ap-

peals reversed the grant of summary judgment, holding

that Section 1981 encompasses retaliation claims.

3

1. Section 1981(a) of Title 42 of the United States

Code, one of the Nation’s oldest civil rights laws, pro-

vides the following “[s]tatement of equal rights”:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts * * * asis

enjoyed by white citizens.

This Court has repeatedly “traced the evolution of this

statute, and its companion, 42 U.S. C. § 1982.” General

Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375,

383-384 (1982). The “operative language of both laws

apparently originated in § 1 of the Civil Rights Act of

1866, enacted by Congress shortly after ratification of

the Thirteenth Amendment.” /d. at 384 (internal cita-

tion omitted). The language now contained in Section

1981(a) “is derived from § 1977 of the Revised Statutes

of 1874, which in turn codified verbatim § 16” of the En-

forcement Act of 1870 (itself a product of Congress’s

powers to enforce the Fourteenth Amendment). /d. at

385. Accordingly, the Court has “recognized that pres-

ent day 42 U.S. C. § 1981 is both a Thirteenth and a

Fourteenth Amendment statute.” Jett v. Dallas Indep.

Sch. Dist., 491 U.S. 701, 722 (1989) (plurality opinion).

From Section 1981(a)’s general statement of equal

rights, this Court has inferred a cause of action for

claims that private parties have engaged in intentional

_ racial discrimination. It first inferred such a cause of

action from the parallel “same right” language of Sec-

tion 1982, which gives “[alJll citizens” the “same right

* * * as is enjoyed by white citizens * * * to inherit,

purchase, lease, sell, hold, and convey real and personal

property.” See Jones v. Alfred H. Mayer Co., 392 U.S.

409, 414 (1968) (authorizing enforcement of Section 1982

4

by suit for an injunction); see also Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229, 238-240 (1969) (Sec-

tion 1982 suit for damages). Later, it expressly applied

that reasoning to Section 1981, holding that “{a]n indi-

vidual who establishes a cause of action under § 1981 is

entitled to both equitable and legal relief, including com-

pensatory, and under certain circumstances, punitive

damages.” Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 460 (1975).'

In Patterson v. McLean Credit Union, 491 U.S. 164

(1989), after requesting additional briefing and argu-

ment on the question, the Court “reaffirm[ed]” that Sec-

tion 1981 “prohibits racial discrimination in the making

and enforcement of private contracts.” Jd. at 172.

Patterson also limited the scope of Section 1981’s sub-

stantive protections, holding that Section 1981 “provides

no relief” for discrimination with regard to conduct after

a contract has already been formed (i.e., “postformation

conduct”), and instead applies only where “an alleged

act of discrimination” relates to the “formation” or en-

forcement of a contract. 491 U.S. at 176-177.

_ In 1991, Congress amended Section 1981 and effec-

tively “overturned Patterson” by expanding the defini-

tion of “make and enforce contracts” to include a pano-

ply of postformation conduct. Jones v. R.R. Donnelley

& Sons Co., 541 U.S. 369, 383 (2004). That amendment

redesignated the former provision as subsection (a) and

added new subsections (b) and (c). See Civil Rights Act

' The Court subsequently declined to infer Section 1981 causes of

action against the federal government, Brown v. GSA, 425 U.S. 820, 835

(1976), or against state actors (because they are covered by 42 U.S.C.

1983), Jett, 491 U.S. at 735, but in doing so it did not question the con-

tinuing validity of an inferred cause of action against. private discrim-

inators. See, e.g., id. at 731-732.

5

of 1991 (1991 Act), Pub. L. No. 102-166, § 101, 105 Stat.

1071. Those new provisions read as follows:

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and

enforce contracts” includes the making, perfor-

mance, modification, and termination of contracts,

and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected

against impairment by nongovernmental discrimina-

tion and impairment under color of State law.

42 U.S.C. 1981(b) and (c).

After the 1991 amendments, there is still no express

cause of action in Section 1981, but the Court has contin-

ued to recognize that Section 1981 “offers relief” to pri-

vate plaintiffs when “racial discrimination blocks the

creation of a contractual relationship” or “impairs an

existing contractual relationship.” Domino’s Pizza, Inc.

v. McDonald, 546 U.S. 470, 476 (2006).

2. Respondent began working as an associate man-

ager at one of petitioner’s Cracker Barrel restaurants in

1999, and, viewing the record in a light favorable to re-

spondent, his performance was considered generally

excellent for more than two years. J.A. 118. In 2001,

Steve Cardin began supervising respondent, and fre-

quently made racially derogatory remarks in the work-

place. J.A. 118-119. Cardin, the general manager at the

restaurant, issued five disciplinary reports against re-

spondent, all of which respondent claimed were ground-

less and reflections of Cardin’s racial animus. J.A. 119.

Respondent complained to district manager William

6

Christensen about Cardin, but Christensen never inves-

tigated his complaints. /bid.

A new general manager, Ken Dowd, took over in Sep-

tember 2001. J.A. 119. Shortly thereafter, Joe Stinnett,

one of respondent’s fellow associate managers, fired

Venus Green,” a black female food server, purportedly

because she failed to show up for a shift (although a

white employee had not been fired after failing to ap-

pear “on several occasions without notice”). Jbid. Re-

spondent complained to Dowd and Christensen that

Green’s firing was another example of racial discrimina-

tion, and he reminded Christensen of his earlier com-

plaints. J.A. 119-120. In December 2001—a week after

that complaint and one day before “a scheduled meeting

with Dowd, which, presumably would have created a

more elaborate (and less favorable to Cracker Barrel)

documentary record of [respondent’s] complaints”—

Christensen fired respondent, allegedly because he left

a safe unlocked. Respondent both denies that he left the

safe unlocked and claims that white associate managers

routinely left it unlocked. J.A. 120, 155-157.

3. After filing a timely charge with the Equal Em-

ployment Opportunity Commission (EEOC) and receiv-

ing a right-to-sue letter, J.A. 36-39, 54-57, 58-59, respon-

dent filed suit in the United States District Court for the

Northern District of Illinois, alleging one count of racial

discrimination in violation of Section 1981 and Title VII

of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.),

and one count of retaliation in violation of Section 1981

and Title VII. J.A. 43-53. The district court dismissed

respondent’s Title VII claims for procedural deficiencies

* The district court (J.A. 109) and court of appeals (J.A. 119) refer to

“Venis Green,” hut Ms. Green’s first name is spelled “Venus” in the

First Amended Complaint (J.A. 48) and the Answer (J.A. 71).

7

involving his late payment of filing fees, and respondent

did not appeal that dismissal. J.A. 82-92.

The district court then granted summary judgment

for petitioner on respondent’s Section 1981 claims. J.A.

108-116. The district court held that respondent had

failed to allege sufficient facts to prove either directly or

indirectly that he had suffered retaliation for his com-

plaints of racial discrimination against himself and his

co-worker. J.A. 111-115. The district court further held

that respondent’s discrimination claim failed because it

rested on the same allegations. J.A. 115.

4. The court of appeals reversed. J.A. 117-166. By

a 2-1 vote, the court rejected petitioner’s argument—

raised for the first time on appeal—that Section 1981

does not encompass retaliation claims, and reversed the

district court’s grant of summary judgment in favor of

petitioner on the Section 1981 claim.

Analyzing the origins of Section 1981, the court of

appeals observed that it and Section 1982 derived from

the Civil Rights Act of 1866, ch. 31, 14 Stat. 27, a Recon-

struction-era statute recognized as the “first significant

civil rights legislation enacted by Congress” pursuant to

Section 2 of the Thirteenth Amendment. J.A. 123-126.

The court of appeals observed that in Sullivan, this

Court permitted a white landowner to bring suit under

Section 1982 for retaliation he had suffered for attempt-

ing to vindicate the rights of minorities protected by

that statute. J.A. 126-127. Moreover, “(flollowing Sul-

livan,” the courts of appeals had reached a “general con-

sensus” that Section 1981 “broadly prohibited racial dis-

crimination in all contractual facets of the employment

relationship, including ‘postformation’ adverse acts, such

as retaliation.” J.A. 128. But later, in the wake of this

Court’s Patterson decision, several courts determined

8

that “retaliation claims” were precluded “because such

employer behaviors purportedly involved now-unpro-

tected postformation conduct.” J.A. 129-130.

The court of appeals stated that Congress super-

seded Patterson by enacting the Civil Rights Act of

1991. J.A. 133-134. The court noted that the 1991 Act,

which added Section 1981(b), “was to be read broadly to

include all aspects of the contractual relationship be-

tween parties, including the postformation conduct,” and

that the legislative history of the 1991 Act refers to “re-

taliation” as an action that would fall within the scope of

Section 1981, as amended. J.A. 134-135. The court of

appeals concluded that the 1991 Act led several circuits

to “reverse course (again) and to allow retaliation claims

under section 1981.” J.A. 135.

Based on that backdrop, the court of appeals held

that Section 1981, as amended by the Civil Rights Act

of 1991, “applies to claims of retaliation.” J.A. 136-138.

The court explained that its reading of Section 1981

is consistent with this Court’s decision in Jackson v. Bir-

mingham Board of Education, 544 U.S. 167 (2005),

which relied on Sullivan’s holding that Section 1982 pro-

hibits retaliation. J.A. 138-144. The court of appeals

stated that, “at least for the purpose of interpreting

broad statutory discrimination prohibitions that omit

specific retaliation provisions, the Supreme Court has

determined that retaliation is simply a different form of

discrimination, and one that is included within broad-

based prohibitions of discrimination.” J.A. 141.°

* The court of appeals also concluded that respondent had estab-

lished a prima facie case of retaliation sufficient to survive petitioner's

motion for summary judgment. J.A. 149-158. Petitioner, however, does

not challenge that aspect of the court of appeals’ ruling. See Pet. 2

9

Chief Judge Easterbrook dissented. J.A. 159-166. In

his view, the majority (Judges Williams and Posner)

misinterpreted this Court’s decisions in Jackson and

Sullivan, and failed to follow an appropriately text-

based method of statutory interpretation, exemplified by

this Court’s recent decision in Domino’s Pizza.

SUMMARY OF ARGUMENT

The court of appeals correctly held that Section 1981

prohibits retaliation against an individual because that

individual has complained about intentional racial dis-

crimination proscribed by Section 1981.

A. That conclusion is compelled by this Court’s deci-

sions addressing retaliation claims under broad-based

prohibitions against discrimination. Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229 (1969); Jackson v. Bir-

mingham Bad. of Educ., 544 U.S. 167 (2005). In Sulli-

van, the Court held that 42 U.S.C. 1982—a companion

statute to Section 1981 with similar operative language

and common lineage—encompasses retaliation claims.

And in Jackson, the Court—relying on Sullivan—held

that the prohibition against sex discrimination in pro-

grams receiving federal financial assistance in Title IX

of the Education Amendments of 1972, 20 U.S.C. 1618 et

seg., encompasses retaliation claims. If—as Sullivan

and Jackson establish—Section 1982 prohibits retalia-

tion, then Section 1981 must do so as well. Consider-

ations of stare decisis have their greatest force in the

area of statutory interpretation, and petitioner has sup-

plied no basis for this Court to deviate from the statu-

tory holdings of Sullivan and Jackson in the analogous

setting here.

(“The sole legal issue presented here [is] whether race retaliation is

cognizable under Section 1981.”); Pet. Br. 7 (same).

10

B. Unlike some anti-discrimination statutes, Section

1981 does not expressly mention retaliation or establish

an express cause of action for retaliation. But—as this

Court has recognized is true for Section 1982 and Title

IX—that is unsurprising, since Section 1981 consists of

a general prohibition on discrimination, and it lacks any

express cause of action against any form of discrimina-

tion. Petitioner incorrectly analogizes Section 1981 to

more detailed statutes that include express causes of

action. The statutory schemes that are materially analo-

gous to Section 1981 are not the ones cited by petitioner,

where Congress expressly provided for a cause of action

and expressly prohibited retaliation, but rather the

much smaller category of anti-discrimination statutes

that are so abbreviated that any cause of action, for any

kind of prohibited activity, must be inferred.

As this Court reaffirmed just two Terms ago in Jack-

son, in that context it makes sense to include an anti-

retaliation protection in the cause of action that the

Court has inferred, because that establishes a coherent

remedial regime and appropriately protects the right to

contract from impairment. Indeed, if anything, the rec-

ognition of a retaliation remedy in this case follows

a fortiori from Jackson because the text of Section 1981

more naturally encompasses a retaliation remedy. The

dissenting Justices in Jackson contended not that retali-

ation was not a form of “discrimination,” but that it was

not discrimination “on the basis of sex.” See 544 U.S.

at 185-186 (Thomas, J., dissenting). Section 1981, as

amended, prohibits all “impairment” by “discrimina-

tion,” which quite naturally includes discrimination on

account of having complained about discrimination on

account of race.

11

C. Any doubt about whether Section 1981 proscribes

retaliation was resolved by the Civil Rights Act of 1991.

The pre-1991 argument against construing Section 1981

to protect against retaliation was not based on a narrow

reading of the word “discrimination”—that word did not

even appear in the pre-1991 text—but rested on the no-

tion that most retaliation was postformation conduct.

However, following this Court’s decision in Patterson v.

McLean Credit Union, 491 U.S. 164 (1989), Congress

expanded the meaning of the term “make and enforce

contracts” in Section 1981 to include all aspects of the

contracting process, including postformation conduct,

and that should suffice to make retaliation actionable.

Petitioner’s argument to the contrary demands such a

high level of specificity from Congress that it would up-

set settled doctrine by refusing to countenance claims of

racial harassment and preventing any private cause of

action from being inferred under Section 1981.

D. Policy considerations likewise support the conclu-

sion that Section 1981 prohibits retaliation. This Court’s

decisions in Sullivan and Jackson, as well as courts of

appeals decisions interpreting Section 1981, recognize

that, absent protection against retaliation, the underly-

ing discrimination prohibited by such statutes could go

unremedied. And, b« -ause of the inferred nature of the

underlying rights of action in Sullivan and Jackson, the

Court determined that it was appropriate for the Court

to consider that policy concern in interpreting the cause

of action it had inferred. Moreover, when Congress en-

acted the original version of Section 1981 (the Civil

Rights Act of 1866), it possessed substantial evidence

that the rights of freedmen could not be protected un-

less those who would help them were also protected

from reprisals.

12

E. Petitioner’s contention that recognizing a cause

of action for retaliation under Section 1981 will improp-

erly allow employees to bypass Title VII’s procedural

mechanisms is unpersuasive and, in any event, fore-

closed by this Court’s repeated explanations that Title

VII and Section 1981 are separate and independent rem-

edies for racial discrimination. In addition, many em-

ployers are expressly exempted from Title VII coverage,

and Section 1981 applies to all types of contracts—not

just the employment relationship. Thus, unless Section

1981 itself prohibits retaliation, many of those who com-

plain about racial discrimination that violates the statute

will be left without protection against retaliation.

F. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470

(2006), provides no basis to deviate from the statutory

interpretation that the Court adopted the year before in

Jackson. Domino’s Pizza does not require that a Sec-

tion 1981 plaintiff be the direct victim of non-retaliatory,

status-based discrimination, but only that, as with any

claim of discrimination, the plaintiff allege that retalia-

tory discrimination has impaired the plaintiff's own con-

tract rights. In this case, respondent has alleged that

his own contract rights were impaired by retaliation,

because his employment contract with petitioner was

terminated. Unlike Domino’s Pizza, this case therefore

involves a paradigmatic Section 1981 claim. Moreover,

such impairment is likely to exist anytime a plaintiff

alleges that a defendant has altered the terms, condi-

tions, or privileges of his employment in retaliation for

complaining about conduct prohibited by Section 1981.

13

ARGUMENT

CLAIMS ASSERTING RETALIATION BECAUSE OF COM-

PLAINTS OF INTENTIONAL RACIAL DISCRIMINATION

ARE COGNIZABLE UNDER SECTION 1981

As amended, Section 1981(a) of Title 42 of the United

States Code guarantees to every person within the

United States “the same right * * * to make and en-

force contracts * * * as is enjoyed by white citizens.”

Section 1981(c) further protects that right against “im-

pairment by nongovernmental discrimination.” The

text, background, and purposes of Section 1981 demon-

strate that the court of appeals correctly held that Sec-

tion 1981 encompasses claims of retaliation against those

who complain about conduct that violates that statute.

A. Retaliation Because Of Complaints About Racial Dis-

crimination Impairs Contract Rights In Violation Of

Section 1981's General Anti-Discrimination Prohibition

This Court’s prior decisions holding that Section

1982 and Title [IX encompass claims of retaliation com-

pel the conclusion that the general prohibition of inten-

tional racial discrimination in Section 1981 includes

claims of discrimination against those who complain

about racial discrimination proscribed by Section 1981.

Indeed, given the direct link between Section 1981 and

Section 1982, that conclusion is considerably more

straightforward than in the Jackson case just two Terms

ago.

1. In Sullivan v. Little Hunting Park, Inc., 396 U.S.

229 (1969), this Court held that 42 U.S.C. 1982—the

companion statute to Section 1981—encompasses claims

arising from retaliation against those who complain of

racial discrimination. Sullivan, a white man, rented a

14

house to a black man and assigned him a membership

share that permitted him to use a private park. The

corporation that owned the park refused to approve the

assignment because the lessee was black. When Sulli-

van protested that action, the corporation expelled him

and took his membership shares. Sullivan sued the cor-

poration under Section 1982, which provided (and con-

tinues to provide) that “alll citizens of the United States

shall have the same right * * * asis enjoyed by white

citizens * * * to inherit, purchase, lease, sell, hold, and

convey real and personal property.”

This Court held that Sullivan could maintain an ac-

tion under Section 1982 not only for having been denied

the right to complete his transaction with a black per-

son, but also for his “expulsion for the advocacy of [the

black person’s] cause.” 396 U.S. at 237. The Court rea-

soned that, “{i]f that sanction [of retaliatory expulsion]

* * * can be imposed, then Sullivan is punished for try-

ing to vindicate the rights of minorities protected by

§ 1982. Such a sanction would give impetus to the per-

petuation of racial restrictions on property.” /bid.

Thus, in Sullivan, this Court construed Section 1982’s

general prohibition on racial discrimination in the sale

or rental of property to cover retaliation against persons

who complain about such discrimination.

Similarly, in Jackson v. Birmingham Board of Edu-

cation, 544 U.S. 167 (2005), this Court held that another

broad-based prohibition against discrimination protects

from retaliation those who complain about the kind of

discrimination the statute prohibits. Title 1X of the Ed-

ucation Amendments of 1972 provides in relevant part

that “[nJo person in the United States shall, on the basis

of sex, * * * be subjected to discrimination under any

education program or activity receiving Federal finan-

15

cial assistance.” 20 U.S.C. 1681(a). Jackson was the

male coach of a high-school-girls’ basketball team who

complained about sex discrimination in the school’s ath-

letic program and was then relieved of his coaching posi-

tion. He sued the respondent board of education under

Title [X, alleging that it had retaliated against him for

his complaints about discrimination. 544 U.S. at 171-

172.

This Court held that Title [X’s prohibition of “dis-

crimination” “on the basis of sex” includes a ban on re-

taliation against those who complain of sex discrimina-

tion. As the Court explained:

Retaliation against a person because that person has

complained of sex discrimination is another form of

intentional sex discrimination encompassed by Title

IX’s private cause of action. Retaliation is by defini-

tion an intentional act. * * * Moreover, retaliation

is discrimination “on the basis of sex” because it is an

intentional response to the nature of the complaint:

an allegation of sex discrimination. We conclude that

when a funding recipient retaliates against a person

because he complains of sex discrimination, this con-

stitutes intentional “discrimination” “on the basis of

sex,” in violation of Title IX.

Jackson, 544 U.S. at 173-174.

In reaching that interpretation of Title IX, Jackson

affirmatively relied on Sullivan, which it characterized -

as “interpret[ing] a general prohibition on racial dis-

crimination to cover retaliation against those who advo-

cate the rights of groups protected by that prohibition.”

544 U.S. at 176. The Jackson Court reasoned that “[r]Je-

taliation for Jackson’s advocacy of the rights of the girls’

basketball team in this case is ‘discrimination’ ‘on the

16

basis of sex,’ just as retaliation for advocacy on behalf of

a black lessee in Sullivan was discrimination on the ba-

sis of race.” Id. at 176-177."

Because the operative language in Section 1982—

i.e., “shall have the same right * * * as is enjoyed by

white citizens”—is identical to that in Section 1981(a),

Sullivan and Jackson compel the conclusion that Sec-

tion 1981 encompasses retaliation claims as well.

2. “This Court has said often and with great empha-

sis that ‘the doctrine of stare decisis is of fundamental

importance to the rule of law.’” Patterson v. McLean

Credit Union, 491 U.S. 164, 172 (1989) (quoting Welch v.

Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468,

494 (1987) (plurality opinion)). In addition, the Court

has explained that “[cjonsiderations of stare decisis have

special force in the area of statutory interpretation, for

here, unlike in the context of constitutional interpreta-

tion, the legislative power is implicated, and Congress

* Repeating a point made in the dissent in the court of appeals (J.A.

159), petitioner contends that Jackson is inapposite because it relied

upon ambiguity in the word “discrimination,” which supposedly does

not appear in Section 1981. Pet. Br. 38. But, as amended in 1991, Sec-

tion 1981 makes express that it proscribes “discrimination.” See 42

U.S.C. 1981(c) (protecting rights “against impairment by nongovern-

mental discrimination”). Moreover, Section 1981 has uniformly been

interpreted as a prohibition on racial “discrimination” in the making

and enforcement of contracts. See, e.g., Domino’s Pizza, Inc. v. Mc-

Donald, 546 U.S. 470, 474 (2006); Johnson v. Railway Express Agency,

Inc., 421 U.S. 455, 459-460 (1975). Finally, the real debate in Jackson

was not over the meaning of “he word “discrimination,” but the phrase

“on the basis of sex” and whether that phrase precluded relief for some-

one subject to discrimination because he complained about discrimina-

tion on the basis of sex. Here, Section 1981, as amended, forbids all

impairment and all discrimination, which naturally includes discrimina-

tion on the basis of complaining about racial discrimination. See p. 17,

infra.

17

remains free to alter what we have done” (as Congress’s

reaction to Patterson itself illustrates). /d. at 172-173.

Petitioner has provided no basis—much less a compel-

ling basis—for the Court to deviate from the path of

statutory construction paved by Sullivan and Jackson

in this case.

Indeed, far from presenting any basis to disregard

the statutory constructions in Sullivan and Jackson,

this case presents a more compelling situation for read-

ing the general prohibition at issue to encompass retali-

ation claims. A retaliation cause of action fits more com-

fortably within the plain text of Section 1981 than it does

within that of Section 1982 or Title IX, because Section

1981 applies whenever contract rights are “impair[ed]

by * * * discrimination.” 42 U.S.C. 1981(c). The ref-

erence to “impairment” connotes a less direct relation-

ship between the discrimination and the effect on the

underlying contract rights. Moreover, the primary tex-

tual difficulty the Court confronted in Jackson—the lim-

itation of the prohibition on discrimination to discrimina-

tion “on the basis of sex”—is absent. Unlike Title IX,

there is no requirement in Section 1981 that the prohib-

ited discrimination be “on the basis of” status but only

that the discrimination impair rights under Section 1981,

which vitiates the primary textual concern of the Jack-

son dissent. See 544 U.S. at 185-186 (Thomas, J., dis-

senting).

Furthermore, because of the direct link between Sec-

tion 1981 and Section 1982, the conclusion that Section

1981 encompasses retaliation claims follows a fortiori

from this Court’s decision in Jackson, which reaffirmed

and extended to Title IX Sullivan’s holding that Section

1982 encompasses retaliation claims. In addition to

their common terms, Sections 1981 and 1982 have a com-

18

mon origin (the Civil Rights Act of 1866) and common

purposes. See, e.g., General Bldg. Contractors Ass'n v.

Pennsylvania, 458 U.S. 375, 384 (1982); Runyon v. Mc-

Crary, 427 U.S. 160, 168 & n.8 (1976); Jones v. Alfred H.

Mayer Co., 392 U.S. 409, 441 n.78 (1968). Thus, as a re-

sult of the close, “historical interrelationship between”

Sections 1981 and 1982, this Court has generally found

“no reason to construe these sections differently.” Till-

man v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431,

440 (1973).

For example, in Runyon, the Court held that Section

1981 applies to private discrimination, in part because

the case was “directly analogous to * * * Sullivan.”

427 U.S. at 173 n.10. As Justice Powell observed, the

holding of Sullivan “necessarily appl[ies]” to Section

1981 in light of the two statutes’ “common derivation.”

Id. at 187 (Powell, J., concurring); see id. at 190 (Ste-

vens, J., concurring) (“Although I recognize the force of

MR. JUSTICE WHITE’s argument that the construction of

§ 1982 does not control § 1981, it would be most incon-

gruous to give those two sections a fundamentally differ-

ent construction.”). See also Shaare Tefila Congrega-

tion v. Cobb, 481 U.S. 615, 617-618 (1987) (applying to

Section 1982, without further analysis, the Section 1981

discussion and holding of Saint Francis College v. Al-

Khazraji, 481 U.S. 604, 609-613 (1987)).

Given the common origin of Section 1981 and Section

1982, and this Court’s decisions in Sullivan and Jack-

son, the Court could not interpret Section 1981 to lack

a retaliation provision without creating an enormous

incongruity in the case law in this area, if not effectively

overruling the Court’s prior cases. And even petitioner

has not asked this Court to take the dramatic step of

overruling its prior precedent, much less elaborated on

19

the relevant considerations. Cf. Randall v. Sorrell, 126

S. Ct. 2479, 2500 (2006) (Alito, J., concurring in part and

concurring in the judgment).

B. The Absence Of A Reference To Retaliation Is Not

Dispositive In The Context Of A General Prohibition On

Discrimination That Lacks An Express Cause Of Action

Petitioner’s call for a plain-language reading of Sec-

tion 1981 is premised almost exclusively on the point

that, unlike most other federal anti-discrimination stat-

utes, Section 1981 includes neither the word “retalia-

tion” nor a separate provision addressing retaliation.

See Br. 12, 14-18. But that line of argument is fore-

closed by this Court’s decision in Jackson.

The school board in Jackson contrasted Title IX

(which does not address retaliation) with Title VII

(which contains a distinct anti-retaliation provision, 42

U.S.C. 2000e-3(a)). The Court explained that Title VII

is “a vastly different statute from Title [X,” because:

Title [X is a broadly written general prohibition on

discrimination, followed by specific, narrow excep-

tions to that broad prohibition. * * * By contrast,

Title VII spells out in greater detail the conduct that

constitutes discrimination in violation of that statute.

* * * Because Congress did not list any specific dis-

criminatory practice when it wrote Title IX, its fail-

ure to mention one such practice does not tell us any-

thing about whether it intended that practice to be

covered.

544 U.S. at 175. The Court also stressed that Title 1X,

unlike Title VII, provides no express cause of action.

See 544 U.S. at 175 (citing Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 283-284 (1998)). In Gebser, the

Court had stated that, when a right of action has been

20

inferred by the courts, it has “a measure of latitude to

shape a sensible remedial scheme that best comports

with the statute.” 524 U.S. at 284.

Like Title IX, Section 1981 is a “broadly written gen-

eral prohibition” against discrimination in which “Con-

gress did not list any discriminatory practice.” Accord-

ingly, under the reasoning of Jackson, the presence of

explicit anti-retaliation provisions in other, dissimilar

statutes does not answer whether Congress intended

Section 1981 to prohibit retaliation. Moreover, as in

Title LX, all causes of action under Section 1981 have

been inferred by the courts. See pp. 3-5, supra. Thus,

in elaborating on the resulting causes of action the

Court has assumed a greater latitude to make them

workable and sensible—a function distinct from the one

that the Court exercises in construing and giving effect

to express causes of action with more reticulated reme-

dial schemes.”

In that regard, the statutory schemes that are mate-

rially analogous to Section 1981 are not the ones cited by

petitioner—each of which includes an express right of

° A general nondiscrimination provision does not invariably e1com-

pass a prohibition on retaliation. Other indications from text and con-

text can show that claims for retaliation are excluded, as, for instance,

in the federal-sector provision of the Age Discrimination in Employ-

ment Act of 1967 (ADEA), 29 U.S.C. 683a, that is at issue in Gomez-

Perez v. Potter, cert. granted, No. 06-1321 (oral argument scheduled for

Feb. 19, 2008). In the ADEA, there is no need to infer a right of action

for federal employees in the anti-discrimination context, and there are

obvious differences between the private-sector regime (which includes

both anti-discrimination and anti-retaliation provisions), the provision

making the private-sector regime applicable to states, and the federal-

sector provision. See Gov’t Br. at 14-27, Gomez-Perez, supra (No. 06-

1321). Moreover, federal employees generally have means of securing

relief for retaliation independent of the ADEA. See id. at 27-37.

21

civil action or an administrative enforcement mechanism

to vindicate its principal anti-discrimination provision

(Pet. Br. 17-18)°—but rather the much smaller category

of anti-discrimination statutes—notably, Section 1982

and Title [X—that contain only general prohibitions that

have already been interpreted by this Court to embody

inferred causes of action against discrimination.

C. The Statutory History Confirms That Section 1981 En-

compasses Retaliation Claims

Before this Court’s decision in Patterson, the courts

of appeals had no difficulty concluding—on the basis of

Sullivan and the common language and history of Sec-

tions 1981 and 1982—that Section 1981 encompassed

retaliation claims.’ Congress is presumed to be aware of

that backdrop and when Congress enacted the Civil

Rights Act of 1991 in order (in pertinent part) to restore

the pre-Patterson law recognizing that Section 1981 ap-

plied to postformation conduct, Members of Congress

" See 29 U.S.C. 160(b) (provision of National Labor Relations Act

authorizing claims of unfair labor practices before the National Labor

Relations Board); 29 U.S.C. 216(b) (authorizing civil actions under Fair

Labor Standards Act of 1938); 29 U.S.C. 626(c) (authorizing civil actions

under the ADEA); 29 U.S.C. 2617(a) (authorizing civil actions under

Family and Medical Leave Act of 1993); 38 U.S.C. 4323(a) (authorizing

civil actions under Uniformed Services Employment and Reemploy-

ment Act of 1994); 42 U.S.C. 2000e-5(f) (authorizing civil actions under

Title VII); 42 U.S.C. 12117, 12138, 12188, 12203 (authorizing civil

actions under Americans with Disabilities Act of 1990); 49 U.S.C.

31105(b) and (c) (authorizing administrative complaints and judicial

review under Surface Transportation Assistance Act of 1982).

" See, e.g., Choudhury v. Polytechnic Inst., 735 F.2d 38, 42-43 (2d

Cir. 1984); Goff v. Continental Oil Co., 678 F.2d 593, 598-599 (5th Cir.

1982), overruled by Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir.

1990); Winston v. Lear-Siegler, Inc. , 558 F.2d 1266, 1270 (6th Cir. 1977);

London v. Coopers & Lybrand, 644 F.2d 811, 819 (9th Cir. 1981).

22

had every reason to believe that they were reinstating

that result (on a prospective basis). The pertinent provi-

sions of the 1991 Act bolster that conclusion. In adding

subsection (b) to Section 1981, Congress evinced an in-

tent to apply Section 1981’s prohibition against racial

discrimination to all aspects of the contractual relation-

ship—including the postformation conduct that Pat-

terson had excluded from the scope of Section 1981.°

Petitioner claims (Br. 19) that Congress knew by

1991 that “the judiciary would analyze Section 1981

based on its text,” and thus, “if Congress intended Sec-

tion 1981 to provide for a cause of action based on retali-

ation, it would have provided [one] in the statutory text.”

But while Congress would surely have been aware that

“text matters” in enacting the 1991 amendments, it

clearly did not write on a blank slate or ignore the pre-

existing judicial constructions of Sections 1981 and 1982.

Tellingly, Congress, in amending Section 1981, did not

rewrite it to create an express cause of action.” Rather,

Congress took this Court’s decisions recognizing an in-

ferred cause of action as a given. In the same way, Con-

gress legislated against the backdrop of Sullivan and

* As added by the 1991 Act, 42 U.S.C. 1981(b) provides:

For purposes of this section, the term “make and enforce con-

tracts” includes the making, performance, modification, and termina-

tion of contracts, and the enjoyment of all benefits, privileges, and

conditions of the contractual relationship.

* The 1991 Act added Section 1981(c), which codified this Court’s

previous holdings that Section 1981 covers discrimination by private

parties, see, ¢.g., Johnson, 421 U.S. at 460, but Congress did not create

an express cause of action for any discrimination cases. Nevertheless,

this Court has continued to infer an anti-discrimination cause of action

from Section 1981. See, ¢.g., Domino's Pizza, 546 U.S. at 476 (recogniz-

ing that Section 1981 “offers relief”).

23

the direct connection between Section 1981 and Section

1982. There is certainly no indication in the 1991 Act

that Congress intended a different construction of Sec-

tion 1981 than the one that this Court adopted for Sec-

tion 1982 in Sullivan.

To the contrary, it is clear that what Congress in-

tended to address, inter alia, was the Patterson decision

and the limitation of Section 1981 to postformation con-

duct. Indeed, this Court has acknowledged that the

1991 Act “overturned Patterson.” Jones v. R.R. Donnel-

ley & Sons Co., 541 U.S. 369, 383 (2004). But under peti-

tioner’s strained reasoning, Congress would not have

accomplished its objective because it failed to include

the term “harassment” in subsection (b), and has thus

made harassment no more actionable than retaliation.

In reality, Congress responded to Patterson in a way

that makes clear that both harassment and retaliation

are prohibited—viz., by covering postformation conduct.

After all, the argument that retaliation would not be

prohibited by the pre-1991 statute would not be based

on its limitation to “discrimination” or “discrimination

on the basis of race”; those terms did not even appear in

the statute. Rather the argument would be that most

retaliation would be postformation conduct. Congress

unambiguously and textually eliminated that argument,

and thus there is no reason to think that retaliation—

uniquely among postformation conduct impairing Sec-

tion 1981 rights—is not prohibited.

The legislative history of the 1991 Act bears this out.

The House Report stated:

The Committee intends this provision to bar all race

discrimination in contractual relations. The list set

forth in subsection (b) is intended to be illustrative

rather than exhaustive. In the context of employ-

24

ment discrimination, for example, this would include,

but not be limited to, claims of harassment, dis-

charge, demotion, promotion, transfer, retaliation,

and hiring.

H.R. Rep. No. 40, 102d Cong., ist Sess. Pt. 1 at 92 (1991)

(emphasis added). The report also stated that subsec-

tion (b) was intended to respond to several court of ap-

peals decisions that, after Patterson, had held that Sec-

tion 1981 does not encompass claims of retaliation. /d.

at 92-93 n.92."° The report’s principal discussion of mi-

nority views did not dispute the majority’s characteriza-

tion of that effect or its desirability. See id. at 141

(“While Patterson is clearly defensible as a matter of

strict statutory construction, we agree * * * that the

case creates an illogical situation under which” Section

1981 would not include “claims for harassment, wrongful

discharge, and many other employment situations.”).

Congress had heard evidence that Patterson was result-

ing in the dismissal of “racial harassment” and “retalia-

tion” claims. See Civil Rights Act of 1990, Hearing Be-

fore the Senate Comm. on Labor and Human Resources,

101st Cong., Ist Sess. 966, 976-983 (1990) (statement of

Julius LeVonne Chambers, Director-Counsel, NAACP

Legal Defense and Education Fund, Inc.).

In light of this legislative record, it is not surprising

that, in the wake of the 1991 Act, the courts of appeals

have again reached a broad consensus that Section 1981

" As noted, the reasoning of those cases was based on the argument

that retaliation occurred postformation, a concern that the 1991

amendments addressed directly and textually.

SS ————(it~*s

25

encompasses claims of retaliation against those who

complain of racial discrimination."

D. Policy Reasons Recognized In Jackson Support The

Conclusion That Section 1981 Prohibits Retaliation

Against Those Who Complain About Intentional Racial

Discrimination Against Themselves Or Others

This Court’s decisions in Jackson and Sullivan were

motivated in part by policy concerns about the lack of a

retaliation remedy under those statutes. In Jackson,

the Court stated that, unless retaliation were barred,

“{ndividuals who witness discrimination would be loath

to report it, and all manner of Title 1X violations might

go unremedied as a result.” 544 U.S. at 180. It also

characterized Sullivan as recognizing that “the underly-

ing discrimination is perpetuated” when there is no

“protection against retaliation.” /d. at 180.

Providing protections for a supervisor or colleague

who speaks up for a co-worker he believes to be a victim

of racial discrimination is consistent not only with the

rationale of the claims that the Court recognized in

Sullivan and Jackson, but also with the recognition un-

derlying Section 1981’s original incarnation that protect-

' See, e.g., Moore v. Consolidated Edison Co., 409 F.3d 506, 508 n.2

(2d Cir. 2005); Aleman v. Chugach Support Servs., Inc., 485 F.3d 206,

213-214 (4th Cir. 2007); Foley v. University of Houston Sys., 355 F.3d

333, 338-339 (Sth Cir. 2003); Johnson v. University of Cincinnati, 215

F.3d 561, 575-576 (6th Cir.), cert. denied, 531 U.S. 1052 (2000); J.A. 136-

149 (7th Cir. 2007); Manatt v. Bank of Am., NA, 339 F.3d 792, 800-801

& n.11 (9th Cir. 2003); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d

1405, 1411-1413 (11th Cir. 1998).

26

ing the rights of former slaves would require protections

for those allied with them."

As this Court has previously explained at length, the

Civil Rights Act of 1866 was intended to protect the

“civil rights of whites as well as nonwhites.” McDonald

v. Santa Fe Trail Transp. Co., 427 U.S. 273, 289 (1976);

see id. at 287-295. That protection is consistent with the

fact that the supporters of slavery had long punished

whites and nonwhites who spoke out on behalf of slaves

and freedmen in an attempt to discourage such support.

See Akhil Reed Amar, America’s Constitution: A Biog-

raphy 371-372 (2005); William Lee Miller, Arguing

About Slavery: John Quincy Adams and the Great Bat-

tle in the United States Congress 76 (1995). Even after

the Civil War, brutal reprisals continued not just against

freedmen but also against those who would assist them.

While Congress was considering the Civil Rights Act of

1866 (which contained what later became Section 1981’s

operative language):

the senators and representatives had before them a

sizeable body of data bearing on the treatment of the

Negro, the loyal white and the northerner in the

South by private individuals and unofficial groups.

* * * Accounts in newspapers|,] * * * official doc-

uments, private reports and correspondence were all

adduced to show that murder, shootings, whippings,

robbing, and brutal treatment of every kind were

daily inflicted on freedmen and their white friends.

Jacobus tenBroek, Equal Under Law 181 (rev. ed. 1965)

(emphases added; internal quotation marks omitted);

" In this case, respondent alleges that he was terminated by peti-

tioner because he complained about racially discriminatory treatment

of both himself and Venus Green. See J.A. 109, 112.

27

see also Robert J. Kaczorowksi, Revolutionary Consti-

tutionalism in the E'ra of the Civil War and Reconstruc-

tion, 61 N.Y.U. L. Rev. 863, 877 (1986) (“[W hile Recon-

struction civil rights enactments were intended primar-

ily for the protection of blacks, they were also intended

to protect whites.”).

Recognizing that Section 1981 encompasses a retalia-

tion right therefore not only accords with the policy con-

siderations identified in Jackson, but comports with the

purpose and history of Section 1981 itself.

E. Section 1981's Partial Overlap With Title VII Does Not

Preclude Retaliation Claims Here

Petitioner and its amici contend that recognizing a

cause of action for retaliation under Section 1981 would

be inconsistent with Title VII, which itself authorizes

retaliation claims in the employment context. See Pet.

Br. 21-26; Chamber of Commerce Amicus Br. 20-24;

Equal Employment Advisory Council Amicus Br. 16-18.

Notwithstanding the general principle that a specific

remedial scheme may trump a more general one, it is

well established that potential causes of action under

Section 1981 co-exist with those under Title VII, be-

cause “legislative enactments in this area have long

evinced a general intent to accord parallel or overlap-

ping remedies against discrimination.” Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47 (1974).

1. As an initial matter, Title VII and Section 1981

are not co-extensive. See Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 461 (1975). Section 1981 ap-

plies broadly to all types of contracts, not just those for

employment. Thus, unless Section 1981 itself prohibits

retaliation, Title VII cannot ensure a federal remedy for

all who are retaliated against for complaining about pri-

28

vate discrimination that could violate Section 1981.

Moreover, even in the employment context, many em-

ployers are exempted from Title VII: for example, those

with fewer than 15 employees, certain governmental

entities, and certain bona fide private membership clubs.

See 42 U.S.C. 2000e(b).

In light of the incomplete overlap between the two

statutes, it is impossible to tell where petitioner’s rea-

soning would sacrifice potential Section 1981 claims for

the sake of Title VII’s limits (e.g., in all employment-

discrimination cases, or only those that could be covered

by Title VII, or only those where the plaintiff fails to

meet Title VII’s procedural requirements). In fact, peti-

tioner admits that “it could be argued that Section 1981

should not apply in the employment context” at all. Pet.

Br. 21 n.2. That broader proposition is wholly inconsis-

tent with precedents of this Court and the text of the

1991 amendments, and thus petitioner draws the line at

retaliation claims “for purposes of this brief,” ibid. , but

gives no principled reason for that stopping point.

2. In any event, this Court has already recognized

that Title VII’s procedural requirements do not alter the

applicability of Section 1981. In Johnson, the Court

held that the timely filing of a Title VII employment-

discrimination charge with EEOC does not toll the run-

ning of the limitations period applicable to a Section

1981 action based on the same facts. After summarizing

the similarities and differences between Title VII and

Section 1981 (421 U.S. at 457-460), the Court concluded

that “the remedies available under Title VII and under

§ 1981, although related, and although directed to most

of the same ends, are separate, distinct, and independ-

ent.” /d. at 461; see also Runyon, 427 U.S. at 174 & n.11

(recognizing that Congress did not intend Title VII to

29

limit Section 1981’s applicability to employment discrim-

ination); General Bldg. Contractors Ass’n, 458 U.S. at

380 n.4 (noting petitioners were sued under Section 1981

rather than Title VII because they were not named in

the EEOC charge). Although Patterson invoked the

scope of Title VII to support its narrow reading of Sec-

tion 1981, it also recognized that “there is some neces-

sary overlap” between the two statutes. 491 U.S. at 181.

At least two aspects of the Civil Rights Act of 1991

underscore that Congress intended that, when applica-

ble, Section 1981 would continue to provide remedies

independent of Title VII. First, Congress responded

to Patterson’s attempt to minimize overlap between

the statutes by adopting the expanded definition of

“make and enforce contracts” that now appears in Sec-

tion 1981(b). Second, it underscored the overlap and

lack of exclusivity of the two statutes by authorizing

damages awards under Title VII, 42 U.S.C. 1981la(a)(1),

and simultaneously specifying that the new Title VII

remedy should not “be construed to limit the scope of, or

the relief available under, [Section 1981.” 42 U.S.C.

1981a(b)(4).

Petitioner stresses (Br. 23) that the Court’s decision

in Ledbetter v. Goodyear Tire & Rubber Co., 1278. Ct.

2162 (2007), described the importance of short deadlines

within the framework of Title VII. But Ledbetter also

acknowledged that similar discrimination claims might

be vindicated under different statutory schemes with

fewer procedural requirements. Thus, the Court ex-

plained that “the Title VII obstacles” it enforced would

not apply to a claim under the Equal Pay Act of 1963, 29

U.S.C. 206(d) (which the petitioner in that case had

“elected to abandon”). Ledbetter, 127 S. Ct. at 2176 &

n.9. The same result follows here, especially in light of

30

the Court’s repeated recognition of Section 1981’s con-

tinuing vitality alongside Title VII.

3. As an empirical matter, there is no evidence that

retaliation claims under Section 1981 will disrupt Title

VII. Petitioner (Br. 39) notes the increasing proportion

of Title VII charges that include claims of retaliation.

See also Chamber of Commerce Amicus Br. 23. But that

trend has occurred in the presence of a general consen-

sus that Section 1981 already encompasses retaliation

claims. See note 11, supra. In this case, the Section

1981 retaliation claim did not deprive petitioner of an

opportunity for EEOC-assisted conciliation or any of the

other important benefits associated with Title VII, be-

cause respondent filed a charge with EEOC and waited

for a right-to-sue letter before filing his lawsuit.

Petitioner also claims (Br. 40) that allowing Section

1981 retaliation claims that could not be brought under

Title VII will create a legal regime that gives racial dis-

crimination a special status compared to other discrimi-

nation claims. But this Court’s decisions in Jackson and

Ledbetter recognized that certain victims of sex discrim-

ination have remedies under Title [X and the Equal Pay

Act that are unavailable to others protected by Title

VII. That inevitable result of differently worded but

sometimes overlapping anti-discrimination statutes did

not justify disregarding the intent of Congress and this

Court’s decisions in those cases, and there is no reason

for doing so here.

In any event, there is nothing problematic about spe-

cial protections against racial discrimination—especially

in light of Section 1981’s roots in the Thirteenth Amend-

ment, which “authorized Congress to enact legislation

abolishing the ‘badges and incidents of slavery.’” Gen-

eral Bldg. Contractors Ass'n, 458 U.S. at 390 n.17 (quot-

31

ing Civil Rights Cases, 109 U.S. 3, 20 (1883)). Other

constitutional and statutory anti-discrimination provi-

sions are not diminished by the acknowledgement that

“{t]he law now reflects society’s consensus that discrimi-

nation based on the color of one’s skin is a profound

wrong of tragic dimension” that must be “eradicat/{ed].”

Patterson, 491 U.S. at 174, 188.

F. This Court’s Decision in Domino's Pizza Does Not Pre-

clude Retaliation Claims Under Section 1981

In Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470

(2006), this Court held that a plaintiff cannot state a Sec-

tion 1981 claim unless he has an existing (or proposed)

contract that he wishes to make or enforce. /d. at 479-

480. That relatively unremarkable conclusion by a unan-

imous Court did not, as petitioner suggests, create a sea

change in Section 1981 law or in any way cast doubt on

the result (or reasoning) of Jackson and Sullivan, which

were not mentioned in Domino’s Pizza.

Consistent with the holding of Domino’s Pizza, how-

ever, a Section 1981 plaintiff alleging retaliation must

allege that retaliatory discrimination has impaired the

plaintiff’s own contract. At a minimum, a plaintiff may

satisfy that requirement by alleging retaliatory con-

duct that affects the “benefits, privileges, terms, and

conditions” of her employment relationship. 42 U.S.C.

1981(b). That ensures that there will be no attempt to

make Section 1981 “an omnibus remedy for all racial

injustice.” 546 U.S. at 479. It is also consistent with

Sullivan and Tillman, which allowed white plaintiffs to

pursue claims for injury to their own property or con-

tract rights that resulted from retaliation. See Sullivan,

396 U.S. at 237; Tillman, 410 U.S. at 434, 440.

32

In this case, there is no question that respondent has

alleged that his own contract rights were impaired by

petitioner’s retaliation: His employment contract was

terminated. Accordingly, allowing him to assert a retali-

ation claim under Section 1981 is perfectly consistent

with the rationale and holding of Domino’s Pizza.”

'S Because the alleged retaliation directly impaired the contractual re-

lationship, this case provides no occasion to consider whether, or to

what extent, the retaliation right embodied in Section 1981 is narrower

or broader than the one this Court recognized under Title VII in Burl-

ington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006).

In that case, the Court held that the express anti-retaliation provision

in Section 704(a) of Title VII, 29 U.S.C. 2000e-3(a), “extends beyond

workplace-related or employment-related retaliatory acts and harm.”

126 S. Ct. at 2414. It based that conclusion on textual differences be-

tween Title VII's “substantive anti-discrimination provision” (which is

limited to employment-related discrimination), and its anti-retaliation —

provision (which contains “{nJo such limiting words”). 126 S. Ct. at

2411-2412. Section 1981 does not contain such interrelated textual pro-

visions and, as discussed above, in Jackson this Court indicated that the

Court has more leeway in interpreting and giving effect to an inferred

right of action against retaliation under a broad anti-discrimination pro-

vision like Title IX—and Section 1981.

33

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor Genera!

GRACE CHUNG BECKER

Acting Assistant Attorney

General

GREGORY G. GARRE

Deputy Solicitor General

CURTIS E. GANNON

Assistant to the Solicitor

General

DENNIS J. DIMSEY

LISA WILSON EDWARDS

Attorneys

JANUARY 2008