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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 442

## Text

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No. 06-1431

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0536%3A09. Public record. Not legal advice.