# 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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A2AP4P No. 06-1431

IN THE
Supreme Court of the Gnited States

CBOCS WEST, INC.,

Petitioner,
v.
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

I.

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
I

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)

14

16
18

il

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,
v.
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

2
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.

a

3

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,

4

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

5

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.

6

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.

7

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

8

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.

9
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

10

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

11

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

12

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

13

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).

14

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

15

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

16

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,

17

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

18

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,

KAREN R. HARNED RAE T. VANN

ELIZAB ILITO Counsel of Record

NATIONAL FRDERATION 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0536%3A11. Public record. Not legal advice.