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

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A2AP4P No. 06-1431

IN THE

Supreme Court of the Gnited States

CBOCS WEST, INC.,

Petitioner,

HEDRICK G. HUMPHRIES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICI CURIAE OF THE EQUAL

EMPLOYMENT ADVISORY COUNCIL AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KAREN R. HARNED RAE T. VANN

ELIZABETH MILITO Counsel of Record

NATIONAL FEDERATION OF NORRIS, TYSSE, LAMPLEY

INDEPENDENT BUSINESS & LAKIS, LLP

LEGAL FOUNDATION 1501 M Street, N.W.

1201 F Street, N.W. Suite 400

Washington, DC 20004 Washington, DC 20005

(202) 406-4443 (202) 629-5600

Attorneys for Amicus Attorneys for Amicus Curiae

Curiae National Federation Equal Employment Advisory

of Independent Business Counsel

Legal Foundation

November 2007

WILSON-EPES PRINTING CO. INC. - (202) 789-0096 - WASHINGTON.D C 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIEBG.....................ccccscsesees

INTEREST OF THE AMICI CURIAE................

STATEMENT OF THE CASE ...................scceeeees

SUMMARY OF ARGUMENT ....................ccsceeees

ERT ENTE eT ETT

Il.

THE PANEL MAJORITY BELOW

IMPROPERLY READ INTO SECTION

1981 A PROTECTION THAT SIMPLY

IS NOT CONTAINED IN THE ACT........

A. Neither the Original Text of Section

1981 Nor Its 1991 Amendment Con-

tains the Term “Retaliation”...............

B. Retaliation Is Not Discrimination

RECOGNIZING A CAUSE OF ACTION

FOR RETALIATION UNDER SECTION

1981 WILL ENCOURAGE PLAIN-

TIFFS TO BYPASS TITLE VIIS

WELL-ESTABLISHED ENFORCE-

MENT MECHANISM, THUS

DEPRIVING EMPLOYERS OF THE

BENEFIT OF TIMELY NOTICE AND

EXPEDITIOUS RESOLUTION OF

RETALIATION CLAIMS .................eeee

RTPID Sctinticovcnvcenensicsiseetentanmmineeisninmentansttes

(i)

TABLE OF AUTHORITIES

FEDERAL CASES Page

Alexander v. Gardner-Denver Co., 415 U.S.

SITU schtchesinsiencinideibteinitaitinbemhinaliabeianeinhblanaiintine 17

Burlington Northern Railroad v. Ohkla-

homa Tax Commission, 481 U.S. 454

Ran iiiiiikiatinichicissisihtabiiinctatibnsieiniaiimabaimaimibgimeeiiies 12

Domino’s Pizza, LLC v. McDonald, 546

Ss i iccintncacnnenncsitinminninions passim

General Building Contractors Association

v. Pennsylvania, 458 U.S. 375 (1982)....... 15

Goodman v. Lukens Steel Co., 482 U.S. 656

eee iiesintianiiailiicthldintilapiiieiaitininpetunniinidinmiinie 4

Jackson v. Birmingham Board of Educa-

tion, 544 U.S. 167 (2005) ......................... 5, 6, 14

Patterson v. McLean Credit Union, 491

ASR enranc enna 3, 4, 16, 17

Rivers v. Roadway Express, Inc., 511 US.

SUI dich ciadglciecnsidllninariadineialdidicaedibnaetitieen 3

Russello v. United States, 464 U.S. 16

EES a 12

FEDERAL STATUTES

Age Discrimination in Employment Act of

1967,

29 U.S.C. §$§ 621 et seq. ...............cccccceeseeee 7

ee ee Se iiihcniclinicatinicscniniinssideiennitintninainte 14, 15

Americans with Disabilities Act of 1990,

GB UB. Be TRIOS 66 GOD. 2.0cccccccsscccccsveccees 7

i iin ccitsienaiesaniadininiies 14, 15

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

166, 105 Stat. 1074 (1991)........................ 5, 16

Equal Pay Act of 1963,

Se NENT cs ininicnepinensiencosniineensesianinaneein 7

iil

TABLE OF AUTHORITIES—Continued

Page

Fair Labor Standards Act of 1938,

Se ee He EE EINE, ceccecsnsennoscseroncsscosens 7

Fe ae ID cecevtncccncccecssscsesnccocccons 14, 15

Family Medical and Leave Act of 1993,

29 U.S.C. $§ 2601 et seq. .....................s00008 7

ee SI inscssiecuisiintaseonenteescogneiiees 14,15

Section 1981 of the Civil Rights Act of

1866,

| ee passim

te IED vicctencniesennstncutonntocuaniapen 9

a II wiinstntnctnnsoniscsenniecnninteven 7,9

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq. ................c0000ee passim

42 U.S.C. § 2000e-2(a) ...................cccescroees 13

42 U.S.C. § 2000e-3(a) ......................00000000 13, 15

42 U.8.C. § 2000e-G(D) ................ccecsrreseseee 17

Title IX of the Education Act Amendments

of 1972, 20 U.S.C. §§ 1681 et seq.............. 6

LEGISLATIVE HISTORY

H.R. Rep. No. 102-40, pt. 1 (1991) ......00....... 11

IN THE

Supreme Court of the Anited States

No. 06-1431

CBOCS WEST, INC.,

Petitioner,

HEDRICK G. HUMPHRIES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICI CURIAE OF THE EQUAL

EMPLOYMENT ADVISORY COUNCIL AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and the

National Federation of Independent Business Legal

Foundation respectfully submit this brief as amici

curiae. The brief urges reversal of the decision below

and thus supports the position of Petitioner CBOCS

West, Inc. before this Court.’

‘The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (EEAC)

is a nationwide association of employers organized in

1976 to promote sound approaches to the elimination

of discriminatory employment practices. Its mem-

bership includes over 300 major U.S. corporations.

EEAC’s directors and officers include many of the

nation’s leading experts in the field of equal

employment opportunity. Their combined experien 2

gives EEAC an unmatched depth of knowledge of the

practical, as well as legal, considerations relevant to

the proper interpretation and application of equal

employment policies and practices. EEAC’s members

are firmly committed to the principles of nondis-

crimination and equal employment opportunity.

The National Federation of Independent Business

Legal Foundation (NFIB Legal Foundation), a

nonprofit, public interest law firm established to be

the voice for small business in the nation’s courts and

the legal resource for small business, is the legal arm

of the National Federation of Independent Business

(NFIB). NFIB is the nation’s leading small-business

advocacy association, with offices in Washington, DC

and all 50 state capitals. Founded in 1943 as a

nonprofit, nonpartisan organization, NFIB’s mission

is to promote and protect the right of its members to

own, operate and grow their businesses. To fulfill

this role as the voice for small business, the NFIB

Legal Foundation frequently files amicus briefs in

cases that will impact small businesses nationwide.

Amici’s members are employers or representatives

of employers that are subject to Section 1981 of the

other than amici curiae, their members, or their counsel made a

monetary contribution to its preparation or submission.

Civil Rights Act of 1866 (Section 1981), as amended,

42 U.S.C. § 1981; Title VII of the Civil Rights Act of

1964 (Title VII), as amended, 42 U.S.C. §§ 2000e et

seq.; and other federal employment-related laws and

regulations. As potential defendants to claims under

these laws, amici’s members have a direct and

ongoing interest in the issue presented before this

Court regarding whether a cause of action for

retaliation is available under 42 U.S.C. § 1981. A

divided panel of the Seventh Circuit erroneously

found that Section 1981’s plain language and

legislative history compel the conclusion that

Congress intended to prohibit retaliation under the

statute, even though it did not include any language

to that effect in Section 1981’s actual text.

The issue of whether retaliation claims are

available under Section 1981 is of great importance

to the constituency amici represents. While a

substantial segment of EEAC’s members are large

corporations with tens of thousands of employees,

NFIB is comprised of many small businesses for

whom the cost of defending even a single lawsuit

would be devastating. Creating a cause of action for

retaliation under Section 1981 would greatly expand

the number and scope of claims brought under the

law and would undermine Title VII’s well-established

administrative enforcement scheme designed to

resolve workplace disputes in a timely manner and

without unnecessary resort to protracted litigation.

Because of their interest in matters of this nature,

EEAC and/or NFIB have filed amicus curiae briefs in

a number of cases involving § 1981 before this Court,

including Domino’s Pizza, LLC v. McDonald, 546

U.S. 470 (2006), Rivers v. Roadway Express, Inc., 511

U.S. 298 (1994), Patterson v. McLean Credit Union,

491 U.S. 164 (1989), and Goodman v. Lukens Steel

Co., 482 U.S. 656 (1987). Given their significant

experience in these matters, amici are well-situated

to brief the Court on the ramifications of the issues

beyond the immediate concerns of the parties to

the case.

STATEMENT OF THE CASE

Respondent Hedrick Humphries (Humphries)

worked for Petitioner CBOCS West (hereinafter

referred to as Cracker Barrel) as an associate

manager in its Bradley, Illinois store. Jt. App. 118.

In the last several months of his employment,

Humphries received nine written and _ verbal

warnings regarding deficient work performance, the

last three of which, issued in September 2001,

indicated they were “final” warnings. Jd. at 109.

In November 2001, Humphries, who is African-

American, complained to William Christensen, the

Bradley store’s district manager, about discrimi-

natory employment practices. Jd. Specifically,

Humphries complained that he and Venus Green, an

African-American employee who recently had been

terminated by Joe Stinnett, another associate

manager, were treated unfairly on the basis of race.

Id. Christensen received the complaint, but evidently

failed to conduct an investigation in accordance with

Cracker Barrel’s company policies. Jd. at 119.

On December 3, Stinnett reported finding the store

safe unlocked. Jd. at 120. Humphries was on duty on

December 2, and it was his responsibility pursuant to

company policy to ensure the safe was closed and

locked before leaving the store. Jd. On December 5,

the company terminated Humphries’ employment

based on his violation of company policies in failing to

ensure the store safe was closed and locked on

December 2. Jd. Humphries denied that it was he

who left the store safe unlocked on December 2. Id.

Humphries filed an action in the United States

District Court for the Northern District of Illinois,

alleging he was subjected to race discrimination and

retaliation, in violation of Title VII of the Civil Rights

Act (Title VII), 42 U.S.C. §§ 2000e et seqg., and

42 U.S.C. § 1981 (Section 1981). Jd. at 117. The

district court dismissed the Title VII race and

retaliation claims based on Humphries’ failure to

timely file an action within 90 days of receiving

a Notice of Right to Sue from the U.S. Equal

Employment Opportunity Commission (EEOC), and

subsequently dismissed his Section 1981 claims,

concluding he failed to establish a prima facie case of

retaliation or race discrimination. Id. at 91.

Humphries appealed to the Seventh Circuit, which

in a 2-1 decision reversed the district court’s ruling in

part. The panel majority reasoned Section 1981’s

plain language, coupled with the legislative history of

the Civil Rights Act of 1991—which among other

things amended Section 1981 to extend a race

discrimination prohibition to post-formation con-

duct—“confirms that Congress intended retaliation to

be included under this provision.” Jd. at 138.

Conceding that “strictly speaking, a discriminatory

‘termination of contract’ is not the same thing as

a retaliatory discharge—for instance, analytically,

retaliation need not have a discriminatory intent

behind it,” the panel majority nevertheless de-

termined, “the Civil Rights Act of 1991 dispensed

with this heightened degree of formalism.” Id.

In finding that a cause of action for retaliation

exists under Section 1981, the panel majority relied

heavily on this Court’s holding in Jackson uv.

Birmingham Board of Education, 544 U.S. 167

(2005), which addressed whether Title IX of the

Education Act Amendments of 1972, 20 U.S.C.

§§ 1681 et seqg., prohibits retaliation for opposing

alleged workplace discrimination. Jd. at 138-144.

The panel majority concluded that this Court’s

rationale for reading a retaliation cause of action in

Title IX’s definition of “to discriminate” supports a

similarly broad reading of Section 1981—even though

neither Title IX nor Section 1981 contain anti-

retaliation provisions. Id.

Chief Judge Easterbrook dissented in part.’ He

took issue with the panel majority's reliance on

Jackson, lamenting, “[tloday this court attributes to

Jackson the conclusion that all federal statutes

dealing with the employment relation prohibit

retaliation.” Jd. at 159. He observed, “[t]he question

at issue today is not whether an employer may fire a

worker who protested discrimination, but whether an

employee may present a claim of retaliation even

though he failed to file a timely charge under Title

VII and engage in conciliation before turning to

court.” Id. at 160. Noting, “[t]his is not the first time

that a disgruntled employee has turned to § 1981

after missing the deadline for litigation under Title

VII,” id., Judge Easterbrook concluded the panel

majority’s action in manufacturing a cause of action

for retaliation under Section 1981 effectively “demol-

ishes components of Title VII that Congress thought

necessary to expedite the resolution of disputes and

resolve many of them out of court.” Jd.

* Judge Easterbrook joined the majority in affirming the

district court’s dismissal of Humphries’ race discrimination

claim.

Cracker Barrel filed a petition for certiorari, which

this Court granted on September 25, 2007.

SUMMARY OF ARGUMENT

Unlike Title VII, Section 1981 is not a com-

prehensive nondiscrimination law, but a narrow

statutory provision that prohibits only intentional

race discrimination in the making and enforcement of

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

474 (2006). Although Congress in 1991 extended

Section 1981’s scope to include “the making, per-

formance, modification, and termination of contracts,

and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship,”

42 U.S.C. § 1981(b), as Judge Easterbrook in his

dissenting opinion below observed, neither the

original text of Section 1981 nor its 1991 amendment

contains the term “retaliation.” Jt. App. 161.

The panel majority below thus read into Section

1981 a protection that simply is not contained in

the actual text of the law. Retaliation, i.e., being

subjected to an adverse employment action for having

opposed a discriminatory act, is not the same as

being subjected to an adverse employment action on

the basis of race. Section 1981 prohibits treating

individuals differently on the basis of race, and

should not be read to extend to retaliation in the

absence of an act of Congress expressly providing

such protection.

Virtually every other federal nondiscrimination

law—including Title VII, the Age Discrimination

in Employment Act (ADEA), the Americans with

Disabilities Act (ADA), the Fair Labor Standards Act

(FLSA), the Equal Pay Act (EPA) and the Family

and Medical Leave Act (FMLA)—contains specific

language that makes it unlawful for employers to

discharge or otherwise discriminate against someone

who has opposed some conduct made unlawful by the

law. The fact that Congress chose not to include an

anti-retaliation provision in either the initial version

of the statute or the 1991 amendments to the Act

further demonstrates such claims are not available

under Section 1981.

By recognizing a cause of action for retaliation

under Section 1981—particularly in a case in which

the plaintiff was barred from proceeding on identical

claims under Title VII for failure to timely file an

action in federal court—the Seventh Circuit has

expanded the law’s reach beyond that which was

contemplated by Congress. Under this rule,

employees essentially are given a choice between

filing a retaliation claim under Title VII—which

imposes, for good reason, strict timeframes on

the filing of such claims, requires administrative

exhaustion as a precondition to filing suit, and places

statutory caps on punitive and compensatory

damages—and Section 1981, which does not. As a

practical matter, such a result will force employers to

defend stale claims—notice of which may never be

provided until a federal complaint actually has been

served—and will deprive them of the benefit of the

informal conciliation and settlement mechanisms

contained in Title VII’s administrative enforcement

procedures.

ARGUMENT

I. THE PANEL MAJORITY BELOW IM-

PROPERLY READ INTO SECTION 1981 A

PROTECTION THAT SIMPLY IS NOT

CONTAINED IN THE ACT

A. Neither the Original Text of Section

1981 Nor Its 1991 Amendment Contains

the Term “Retaliation”

Section 1981 of the Civil Rights Act of 1866

provides:

All persons within the jurisdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full and

equal benefits of all laws and proceedings for the

security of persons and property as is enjoyed

by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses and |

exactions of every kind, and to no other.

42 U.S.C. § 1981(a). “Among the many statutes that

combat racial discrimination, § 1981, originally § 1 of

the Civil Rights Act of 1866, 14 Stat. 27 (1866), has a

specific function: It protects the equal right of ‘all

persons within the jurisdiction of the United States’

to ‘make and enforce contracts’ without respect to

race.” Domino’s, Inc. v. McDonald, 546 U.S. 470, 474

(2006).

In 1991, Congress amended Section 1981 to specify

that “the term ‘make and enforce contracts’ includes

the making, performance, modification, and termina-

tion of contracts and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b). Although this

new language expanded the definition of “to make

and enforce contracts” to encompass post-formation

conduct previously rejected by this Court in Patterson

as not actionable under Section 1981, the 1991

amendment did not include any language creating a

cause of action for retaliation. Indeed, as Chief

Judge Easterbrook observed in his dissenting opinion

below, nowhere in the original text of Section 1981 or

its 1991 amendment is the term “retaliation” even

mentioned.

The panel majority below determined, “(t]he plain

text of the statute, as amended in 1991, makes clear

that section 1981 encompasses the ‘termination

of contracts, and there can be no doubt that a

retaliatory discharge is indeed a termination of the

employment contract.” Jt. App. 137. While acknowl-

edging, as it must, that “strictly speaking, a

discriminatory ‘termination of contract’ is not the

same thing as a retaliatory discharge—for instance,

analytically, retaliation need not have a discrimi-

natory intent behind it,” id. at 138, the panel

majority nonetheless went on to conclude that “the

Civil Rights Act of 1991 dispensed with this

heightened degree of formalism, and the legislative

history confirms that Congress intended retaliation

to be included within section 1981.” Id.

While a House Report on the 1991 amendments

makes passing reference to the term “retaliation” in

the context of workplace discrimination, its

importance in establishing Congress’ intent to create

a retaliation cause of action under Section 1981 is

very much overstated by the panel majority below. A

careful review of the legislative history confirms

unequivocally that Congress’ clear intent in amend-

ing Section 1981 was to ensure that employees who

suffer intentional workplace discrimination on the

basis of race are afforded the statute’s full pro-

tections. Indeed, the term “retaliation” is discussed

in every instance in the context of intentional race

discrimination; there is no mention at all of any need

to provide substantive rights for employees who are

subjected to retribution by their employers for

engaging in what amounts to whistleblower activity.

In its Report accompanying the House version

of the proposed amendments to Section 1981,

for instance, the Education and Labor Committee

explained:

Section 210 would overrule Patterson by adding

at the conclusion of section 1981 a new

subsection (b). This subsection would clarify that

the right to “make and enforce contracts” free

from race discriminaticn includes “the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms and conditions of the contrac-

tual relationship.” The Committee intends this

provision to bar all race discrimination in con-

tractual relations. The list set forth in sub-

section (b) is intended to be illustrative rather

than exhaustive. In the context of employment

discrimination, for example, this would include,

but not be limited to, claims of harassment,

discharge, demotion, promotion, transfer, retalia-

tion, and hiring.

H.R. Rep. No. 102-40, pt. 1, at 92 (1991) (emphasis

added). Nothing contained in the legislative history

of the 1991 amendments suggests Congress in any

way intended to fundamentally alter the nature and

purpose of the statute by extending protection to

those who are retaliated against by their employers

for having “blown the whistle” on alleged employer

misconduct, whether or not they can state an actual

claim of intentional discrimination based on race.

“Legislative history can be a legitimate guide to a

statutory purpose obscured by ambiguity, but in the

absence of a clearly expressed legislative intention to

the contrary, the language of the statute itself must

ordinarily be regarded as conclusive.” Burlington N.

R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461

(1987) (internal quotations and citations omitted).

The text of Section 1981 plainly contains no provision

making retaliation a prohibited act, and the passing

references to the term “retaliation” in the legislative

history of the 1991 amendments can hardly be said to

evince “a clearly expressed legislative intent to the

contrary.” Jd. In other words, “(t]he short answer is

that Congress did not write the statute that way.”

Russello v. United States, 464 U.S. 16, 23 (1983)

(internal quotations and citations omitted).

A further indication of Congress’ intent to exclude

retaliation claims from coverage under Section 1981

is the fact that every other major federal law pro-

hibiting workplace discrimination contains specific

language, separate and apart from the actual

nondiscrimination provision, that makes it unlawful

for employers to discharge or otherwise discriminate

against someone who has opposed some conduct

made unlawful by the statute. In addition to ex-

pressly prohibiting discrimination in the terms,

conditions and privileges of employment on account

of race, color, religion, sex, or national origin, for

instance, Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seqg., contains a separate anti-

retaliation provision, which makes it unlawful for

an employer to discriminate against an employee

(or applicant for employment) “because he has

opposed any practice made an unlawful employment

practice” or “has made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing” under the Act. 42 U.S.C.

§ 2000e-3(a).°

* Specifically, § 2000e-2(a) of Title VII, captioned, “Unlawful

employment practices,” provides:

(a) Employer Practices

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of em-

ployment opportunities or otherwise adversely affect

his status as an employee, because of such individ-

ual’s race, color, religion, sex, or national origin.

42 U.S.C.§ 2000e-2(a) (emphasis added).

Title VII's anti-retaliation provision is found separately in

§ 2000e-3, Other unlawful employment practices, which

provides:

(a) Discrimination for making charges, testifying, as-

sisting, or participating in enforcement proceedings.

It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or

applicants for employment . . . because he has opposed

any practice made an unlawful employment practice by

this [subchapter], or because he has made a charge,

testified, assisted, or participated in any manner in

an investigation, proceedings, or hearing under this

[subchapter].

42 U.S.C.§ 2000e-3(a) (emphasis added).

Other nondiscrimination laws contain similar anti-

retaliation provisions. See the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12203(a); the Age

Discrimination in Employment Act (ADEA), 29 U.S.C.

§ 623(d); the Fair Labor Standards Act (FLSA), 29

U.S.C. § 215(a)(3); and the Family and Medical Leave

Act (FMLA), 29 U.S.C § 2615(a). The fact that

Congress chose not to include any anti-retaliation

provision in the 1991 amendments to the Act further

demonstrates such claims are not available under

Section 1981. See Jackson, 544 U.S. at 190 (“If a

prohibition on ‘discrimination’ plainly encompasses

retaliation, the explicit reference to it in these

statutes, as well as in Title VII, would be super-

fluous—a result we eschew in statutory interpreta-

tion. The better explanation is that when Congress

intends to include a prohibition against retaliation in

a statute, it does so.”) (Thomas, J., dissenting).

Neither a plain reading of Section 1981’s text nor

its legislative history supports the panel majority’s

conclusion that retaliation claims are viable under

the statute. Furthermore, “[{l]ack of an anti-retalia-

tion norm in § 1981 would not hinder enforcement of

civil rights laws, because there is a real anti-

retaliation rule in Title VII of the Civil Rights Act of

1964.” Jt. App. 160. Accordingly, the panel major-

ity’s decision below is erroneous and thus should be

reversed by this Court.

B. Retaliation Is Not Discrimination

Because of Race

Section 1981 prohibits intentional race discrimina-

tion in the contractual relationship. Domino’s Pizza,

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

legislative history of the 1866 Act clearly indicates

that Congress intended to protect a limited category

of rights, specifically defined in terms of racial

equality.” General Bldg. Contractors Ass’n uv.

Pennsylvania, 458 U.S. 375, 384 (1982) (citation

omitted). Retaliation is not discrimination “because

of race.” Rather, it is retribution or punishment for

having engaged in some type of activity, such as

blowing the whistle on alleged employer misconduct.

See, e.g. Title VII, 42 U.S.C. § 2000e-3(a), ADA, 42

U.S.C. § 12203(a); ADEA, 29 U.S.C. § 623(d); FLSA,

29 U.S.C. § 215(a)(3); FMLA, 29 U.S.C § 2615(a). As

the panel majority admitted below, retaliation need

not be—and, indeed, often is not—related to actual,

intentional discrimination of any kind, much less

that which is based on race.

The crux of Respondent’s claim below is that he

was discharged in retaliation for having “blown

the whistle” on alleged discriminatory employment

practices. Yet, as the district court found and the

Seventh Circuit below affirmed, Respondent failed

to show that his termination was motivated by

intentional racial animus, a required element of a

Section 1981 claim. See Jt. App. 115 (“Although

Humphries’ complaint contends that his termination

was motivated both by racial animus and by

retaliation for his prior complaints, it is apparent from

the presentation he makes in his opposition papers

that only the retaliation claim has any vitality”). As

Chief Judge Easterbrook observed, “(flor all this

record shows, Cracker Barrel fires every complainer,

without regard to the subject of the complaint. An

employer that treats everyone the same in this respect

complies with § 1981.” Jt. App. 166.

Since the plain text of Section 1981—both in its

original and amended forms—does not create a cause

of action for retaliation, the panel majority below was

wrong to allow Respondent’s claim to proceed under

Section 1981. To do so improperly reads into the

statute a prohibition that simply does not exist, and

diminishes Congress’ singular purpose in enacting

the law—to eradicate impermissible considerations of

race in the making and enforcement of contracts. As

this Court explained in Patterson:

The law now reflects society's consensus that

discrimination based on the color of one’s skin

is a profound wrong of tragic dimension.

Neither our words nor our decisions should be

interpreted as signaling one inch of retreat from

Congress’ policy to forbid discrimination in the

private, as well as the public, sphere. Neverthe-

less, in the area of private discrimination, to

which the ordinance of the Constitution does not

directly extend, our role is limited to interpreting

what Congress may do and has done.

Patterson v. McLean Credit Union, 491 U.S. 164, 188

(1989), superceded in part by statute, Civil Rights Act

of 1991, Pub. L. No. 102-166, 105 Stat. 1074 (1991);

see also Domino’s Pizza, 546 U.S. at 479 (“Trying to

make [Section 1981] a cure-all not only goes beyond

any expression of congressional intent, but would

produce satellite § 1981 litigation of immense scope”).

II. RECOGNIZING A CAUSE OF ACTION

FOR RETALIATION UNDER SECTION

1981 WILL ENCOURAGE PLAINTIFFS TO

RYPASS TITLE VII’S WELL-ESTAB-

LISHED ENFORCEMENT MECHANISM,

THUS DEPRIVING EMPLOYERS OF THE

BENEFIT OF TIMELY NOTICE AND

EXPEDITIOUS RESOLUTION OF RETAL-

LATION CLAIMS

Both Section 1981 and Title VII prohibit inten-

tional race discrimination. Unlike Title VII, however,

Section 1981 contains no enforcement mechanism

other than private suits in federal court. Title VII, by

contrast, contains detailed procedures for correcting

suspected workplace discrimination. Whenever a

complainant files a charge of discrimination or

retaliation under Title VII, for instance, the EEOC

statutorily is required to provide the employer-

respondent with notice of the charge and to

investigate the allegations. 42 U.S.C. § 2000e-5(b).

The purpose of this administrative scheme is to allow

the EEOC “to settle disputes through conference,

conciliation, and persuasion before the aggrieved

party was permitted to file a lawsuit.” Alexander uv.

Gardner-Denver Co., 415 U.S. 36, 44 (1974).

As this Court observed in Patterson, “(wjhere

conduct is covered by both § 1981 and Title VII, the

detailed procedures of Title VII are rendered a dead

letter, as the plaintiff is free to pursue a claim by

bringing suit under § 1981 without resort to these

statutory prerequisites.” 491 U.S. at 181. This Court

thus “should be reluctant ... to read an eurlier

statute broadly where the result is to circumvent the

detailed remedial scheme constructed in a later

statute.” Id.

Permitting retaliation causes of action to proceed

under Section 1981 invariably will encourage

workers to bypass Title VII’s detailed, administrative

enforcement procedures entirely. This is especially

true of those, like Respondent, who sit on their rights

by failing to file timely Title VII actions within the

prescribed limitations period. Chief Judge Easter-

brook made a similar observation in his dissent

below, pointing out that permitting retaliation claims

under Section 1981 “demolishes components of Title

VII that Congress thought necessary to expedite the

resolution of disputes and resolve many of them out

of court . . . such as short periods of limitations that

employees find inconvenient.” Jt. App. 160.

Depriving employers of prompt notice of workplace

claims prevents early detection and correction of

potentially discriminatory employment practices.

More importantly, however, it eliminates the oppor-

tunity for informal resolution of disputes without

resort to protracted litigation.

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be reversed.

Respectfully submitted,