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

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Yo pao __No. 06-1431 | yg

IN THE

Supreme Court of the Anited States

CBOSC WEST, INC.,

Petitioner,

Vv.

HEDRICK G. HUMPHRIES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

STEFANO G. MOSCATO DOUGLAS B. HURON *

NATIONAL EMPLOYMENT STEPHEN Z. CHERTKOF

LAWYERS ASSOCIATION TAMMANY M. KRAMER

44 Montgomery Street HELLER, HURON, CHERTKOF

Suite 2080 LERNER, SIMON & SALZMAN

San Francisco, CA 94104 1730M Street, N.W.

(415) 296-7629 Suite 412

Washington, DC 20036

(202) 293-8090

* Counsel of Record Counsel for Amicus Curiae

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

oS ~

TABLE OF CONTENTS

TABLE OF AUTHORITIESG...............::csscsseseseeees

INT REST OF AMICUS CURIAE..............000008+

ET I iiiitictnripiinipecercncenntoonepeoniedeses

REIT E, Siiichsahipihieubiarnitensssesnecsnanenictintenenesnte

SUMMARY OF ARGUMENT ...............::ccccceeeeees

EE hehiigeiiiiidivditeipiiinditiiphiiniensipresscncusincescqnens

I. THE SCOPE OF THE ISSUE...................

I}. SECTION 1981 COVERS RETALIA-

TION

UNDER THE COURT'S PRE-

CEDENTS, CONSISTENT WITH THE

WILL OF CONGRESS. ................sseseeseeeees

Section 1981 Covers Retaliation under

the Court’s Precedents Interpreting

Thirteenth Amendment Statutes .........

The Four Significant Thirteenth

Amendment Decisions: Jones,

Sullivan, Johnson and Runyon .....

Section 1981 Covers Retaliation

under the Court's’ Thirteenth

Amendment Decisions.....................

. In the Civil Rights Act of 1991,

Congress Rejected Patterson’s Hold-

ing Narrowing the Reach of § 1981 ....

RITE SRS ee SO

(i)

J 1 © NO = =

TABLE OF CONTENTS—Continued

2. The Sweep of the 1991 Civil

Rights Act in Overriding

RETESET ne ee

3. Retaliation Is Covered by the

Text of the 1991 Amendments to

C. Jackson Confirms that § 1981 Covers

REST SES ree eee La Seca

EEL ORE OS TER

Ill. THE PRACTITIONERS’ PERSPEC-

Page

bia .

; ;

ili

TABLE OF AUTHORITIES

FEDERAL CASES = Page

Aleman v. Chugach Support Services, 485

F.3d 206 (4th Cir. 2007)....................ssseees 23

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

is sitiannctiniedtaniniabtimsniinninsininicasdveneess 11

Andrews v. Lakeshore Rehabilitation Hos-

pital, 140 F.3d 1405 (11th Cir. 1998)....... 23

Burlington Northern and Santa Fe Ry.

Co., v. White, 126 &. Ct. 2405 (2006)........ 22

Carter v. South Central Bell, 912 F.2d 832

NY, Ba iaiilteinciceegadicdnstiednctieuinscenetenncss 16

Choudhury v. Polytechnic Institute of New

_ York, 735 F.2d 38 (2d Cir. 1984) .............. 15

Dickerson v. United States, 530 U.S. 428

i ceinditinsditecbiitesinhcan’ Ddalehadtioeaabdiiinadicinesiasids 27

Domino’s Pizza, Inc. v. McDonald, 546

I a rh id cs ncictanitniitineiinnti 25

Foley v. University of Houston System, 355

F.3d 333 (Sth Cir. 2003).............cccccssscceeees 23

Goff v. Continental Oil Co., 678 F.2d 593

I outs 15

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

1 RDI STETERE 1s tac REE eT Eo 15

Hart v. Transit Management of Racine,

Inc., 426 F.3d 863 (7th Cir. 2005) ............ 3

Hawkins v. 1115 Legal Service Care, 163

F.3d GB4 (2d Cir. 1906) .........scccccccosescocecees 23

International Union of Electrical, Radio &

Machine Workers, AFL-CIO, Local 790

v. Robbins & Myers, Inc., 429 U.S. 229

acca tatinielicdiceiiclaeinstsiaciadinaptesieibinintnies 27

Jackson v. Birmingham Board of Educa-

tion, 544 U.S. 167 (2005) ................cccceeeee passim

TABLE OF AUTHORITIES—Continued

Page

Johnson v. Railway Express Agency, Inc.,

is GE chipeiesdasesnctssecnsssncmncnnin passim

Jones v. Alfred H. Mayer Co., 392 U.S. 409

SS iatisecss cd chibiahclicanceciidinsanincatadasiinesiitinatede passim

Jones v. R.R. Donnelly & Sons Co., 541

RS iaicitcintstidiinnecnsntianinmibintilitin 19, 28, 29

Kim v. Nash Finch Co., 123 F.3d 1046 (8th

ERR SER ERO ERD Ps erator 23

Landgraf v. USI Film Products, 511 US.

SEAS ESR ee NO 16

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

| ESR ARTs aR 15

Manatt v. Bank of America, N.A., 339 F.3d

Pe I MI a i Sirccirevnctndeireddansianseosvess 23

Miranda v. Arizona, 384 U.S. 436 (1966).... 28

O’Neal v. Ferguson Construction Co., 237

F.3d 1248 (10th Cir. 2001)... 23

Patterson v. McLean Credit Union, 491

RE RT ee passim

Rivers v. Roadway Express, Inc., 511 U.S.

re iicaieitcidhennvasisiieeniaiinansniiiiiinivninaaeseinton 18

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

Setser v. Novack Inv. Co., 638 F.2d 1137

(8th Cir. 1981), modified on other

grounds, 657 F.2d 962 (1981), cert.

denied, 454 U.S. 1064 (1982)... 15

Sherman v. Burke Contracting Inc., 891

F.2d 1527 (11th Cir. 1990)...............ccsseees 16

Sullivan v. Little Hunting Park, Inc., 396

REE Ee Ea a ae passim

Tillman v. Wheaton-Haven Recreation ;

Asean, 410 U.S. 431 (1973) ..........0000...2.0000. 13

TABLE OF AUTHORITIES—Continued

Page

Wards Cove Packing Co. v. Atonio, 490

Ne ihe discasiitincaicciagtiniogutipionsbapiadiaeni 19

Winston v. Lear-Siegler, Inc., 558 F.2d

BIE EP cccvciccsivvecssssenccccseiectoees 15

FEDERAL STATUTES

a sei cssninusmienenbbilie 21

diss cs sccsésscusetnideseniudtelanis 28

i ittissdccsccocesecisovensonsescsinees passim

sc ccncessntccsioodisnssbiien 17

NE a a passim

42 U.S.C. § 2000 e¢ seq. ............cceeeeeeeeeeee passim

Civil Rights Act of 1866, 14 Stat. 27.....5, 9, 10, 24

Civil Rights Act of 1991, Pub. L. 102-166,

I TE nicidetccnddadniebecencnsencndnadunindieel . passim

MISCELLANEOUS

The Federalist, No. 78 ..................ssessseesees 26

H. Rep. 102-40(IT) (1991)....................00000 20

S. Rep. No. 101-315 (1990) ...................00. 20

INTEREST OF AMICUS CURIAE '

The National Employment Lawyers Association

_(NELA) .is the largest professional membership

organization in the country comprised of practi-

tioners who represent employees in labor, employ-

ment and civil rights disputes. NELA and its 67

state and local affiliates have a membership of over

3,000 lawyers working on behalf of clients with

claims of unlawful treatment in the workplace.

NELA strives to protect the rights of its members’

clients and regularly supports precedent-setting

litigation affecting the rights of employees.

Of particular importance in this case, NELA’s

members have a wealth of experience representing

individuals under Title VII and 42 U.S.C. § 1981. In

so doing, they have been guided by, and relied on, the

unanimity among eight Courts of Appeals in inter-

preting this Court’s decisions and the Civil Rights

Act of 1991 as providing that retaliation is covered by

§ 1981.

STATUTE AT ISSUE

42 U.S.C. § 1981, as amended by the Civil Rights

Act of 1991, provides: )

(a) Statement of equal rights. All persons within

the jurisdiction of the United States shall have

the same right in every State and Territory to

' The parties have consented to the filing of this brief, and

their letters of consent are on file with the Clerk. Counsel for

amicus curiae certifies that this brief was not written, in whole

or part, by counsel for a party, and that no person or entity,

other than amicus curiae and counsel, made a monetary contri-

bution to the preparation or submission of the brief. Supreme

Court Rule 37.6.

make and enforce contracts, to sue, be parties,

give evidence, and to the full and equal benefit 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.

(b) “Make and enforce contracts” defined. For

purposes of this section, the term “make and

enforce contracts” includes the making, per-

formance, modification, and termination of

contracts, and the enjoyment of all’ benefits,

privileges, terms, and conditions of the con-

tractual relationship.

protected by this section are protected against

impairment by nongovernmental discrimination

and impairment under color of State law.

STATEMENT

Respondent, an African American who served as an

associate manager in a Cracker Barrel restaurant

owned by petitioner, sued petitioner under Title

VII and 42 U.S.C. § 1981 after he was fired. The

district court held the Title VII claims were proce-

durally barred (a ruling which was not appealed) and

granted summary judgment on the § 1981 claims, one

of which alleged the firing was taken in retaliation

for respondent’s complaints of racial discrimination.

On appeal to the Seventh Circuit, Judge Williams

(joined by Judge Posner) held that § 1981 embraces

retaliatory conduct, relying principally on this Court’s

decisions in Sullivan v. Little Hunting Park, Inc., 396

U.S. 229 (1969), and Jackson v. Birmingham Board

of Education, 544 U.S. 167 (2005), as well as § 101 of

the Civil Rights Act of 1991, Pub. L. 102-166, 105

Stat. 1072, which responded to Patterson v. McLean

Credit Union, 491 U.S. 164 (1989). The court also

held that summary judgment was improper as to the

§ 1981 retaliation claim and overruled Hart v.

Transit Management of Racine, Inc., 426 F.3d 863

(7th Cir. 2005), which held that § 1981 did not protect

a non-victim of discrimination who suffered retalia-

tion for complaining about bias suffered by others.

Joint Appendix (JA) 117-159.

Chief Judge Easterbrook dissented, arguing that

Jackson could be distinguished and that Sullivan

would not be decided the same way today. JA 159-

166. 3

SUMMARY OF ARGUMENT

Section 1981 bars retaliation against workers for

complaining about discrimination based on race or

color. This issue has been settled since enactment of

the Civil Rights Act of 1991—and certainly since the

Court’s decision three terms ago in Jackson uv.

Birmingham Board of Education. Practitioners from

both the plaintiffs’ and defense bar share this view,

with the result that nearly half of all § 1981 claims

involve retaliation. See Appendix bound with this

brief at 3.

This appreciation of the statute’s meaning is

grounded on the Court’s decisions as well as the 1991

Civil Rights Act. Two of those precedents—Jackson

and Sullivan v. Little Hunting Park—would need to

be overruled in order to hold that § 1981 does not

cover retaliation. Stare decisis is not an absolute, but

it is a generally trustworthy principle, and it should

govern here.

Contrary to the fears expressed by petitioner and

its amici, Title VII’s processes will not wither away if

the judgment below is affirmed. Rather, the Seventh

Circuit simply preserved the status quo in the lower

courts—a status quo in which retaliation claims are

regularly asserted by § 1981 plaintiffs and in which

nine out of ten lawsuits (88 percent) with § 1981

allegations are accompanied by claims under Title

VII (which means that the plaintiff has exhausted

Title VII’s administrative process). See App. at 3.

This high rate of coupling results from a recognition

that the Title VII machinery is often useful; hence

practitioners advise their clients, where possible, to

pursue the Title VII approach as well as keeping the

§ 1981 option open.

1. In Johnson v. Railway Express Agency, Inc., 421

U.S. 454 (1975), the Court held that § 1981, which

secures the right to “make and enforce contracts”

on the same basis as whites, forbids racial discrimi-

nation in private sector employment. A year later, in

Runyon v. McCrary, 427 U.S. 160 (1976), the Court

confirmed that § 1981 reaches private racial dis-

crimination.

After the Court in 1989 ruled in Patterson uv.

McLean Credit Union, 491 U.S. 164, that § 1981

does not cover conduct that occurs after a contract

is formed (such as racial harassment), Congress

responded by amending § 1981 as part of the Civil

Rights Act of 1991. The new definition of “make and

enforce contracts” makes it clear that § 1981 applies

to all manner of postformation conduct, including

harassment and retaliation.

In addition, § 1981 not only protects the right to

make and enforce contracts, but also the rights “to

sue, be parties [and] give evidence.” And another

amendment added in the 1991 Act specifies that

all § 1981 rights are protected from “impairment”—

weakening—not just simple denial. If an employer

fires a black worker because he has filed a lawsuit

under § 1981 alleging racial discrimination, there

is impairment of the right to sue on the same

unfettered basis as whites.

2. Before Patterson, the Court had given a broad

construction to both statutes enacted during Re-

construction under the Thirteenth Amendment’s

enabling clause—42 U.S.C. §§ 1981 and 1982. The

Court considered § 1982 first, in Jones v. Alfred H.

Mayer Co., 392 U.S. 409 (1968), holding that the

statute’s ban on racial discrimination in the sale and

rental of housing applies to private bias as well as

state action. In so ruling, the Court examined the

common ancestor of both §§ 1981 and 1982—8§ 1 of

the Civil Rights Act of 1866—and held that Congress

in 1866 intended to reach private discrimination in

§ 1 and had the authority to do so under the enabling

clause of the Thirteenth Amendment, in order to

eliminate the “badges and the incidents of slavery.”

Following Jones, the Court held in Sullivan uv.

Little Hunting Park that § 1982 prohibited retaliation

against someone for seeking to vindicate the rights

protected by § 1982. And in Runyon v. McCrary, the

Court ruled that § 1981 should be interpreted the

same fashion as § 1982, in view of their common

origin. So it was no surprise that many circuits held

that § 1981 likewise bars retaliatory conduct. Then

came Patterson, with its narrow reading of § 1981,

followed almost immediately by the Civil Rights Act

of 1991, in which Congress showed a marked pref-

erence for the Court’s earlier, broader construction of

the statute.

3. Finally, just three terms ago, the Court held in ~

Jackson v. Birmingham Board of Education that

Title [X’s ban on sex discrimination includes a

prohibition of retaliation, because retaliating against

someone for complaining about sex discrimination is

itself a form of sex bias. In so holding, the Court

pointed to Sullivan, saying that the Court there ruled

that retaliation for pressing for the rights secured by

§ 1982 constituted discrimination on the basis of race.

4. Given the Civil Rights Act of 1991, as well as

the Court’s precedents, eight Courts of Appeals have.

all held that § 1981 proscribes retaliation. It is not

too much to say that.a ruling that retaliation is

permitted under § 1981 would necessitate over ruling

precedent, most notably Sullivan and Jackson. But

there is no reason here to depart from familiar

principles of stare decisis.

5. In the Civil Rights Act of 1991, Congress for the

first time authorized a damage remedy under Title

VII, with damages restricted by statutory caps. Un-

capped damages were already available under § 1981,

however, and Congress carefully wrote the new

damage provision to exclude § 1981 claims from the

caps.

This and other aspects of the 1991 Act reflect

an affirmative congressional interest in securing

§ 1981’s role as a separate source of relief from racial

discrimination. That is, Congress wished to preserve

_ § 1981 as an independent source of protection for the

very people whose fate was originally bound up with

the Union’s in the Civil War—and whose post-war

plight prompted passage of major civil rights acts a

century apart, in 1866 and 1964.

| ARGUMENT

I. THE SCOPE OF THE ISSUE

A memorandum from Dr. Laura Beth Nielsen, an

Assistant Professor of Sociology at Northwestern

University and a Research Fellow for the American

Bar Foundation (ABF), is appended to this brief. In

the memo, Dr. Nielsen describes the methodology for,

and some results concerning 42 U.S.C. § 1981, from

an as yet unpublished study of judicial filings under

federal statutes relating to employment, including

Title VII and § 1981. The study is jointly com-

missioned by the National Science Foundation and

ABF. App. at 1.

The study analyzes data from 1988 through 2003.

Focusing on the six-year period 1998-2003, Dr.

Nielsen reports that nearly half of all § 1981 filings

(45 percent) include a claim of retaliation. App. at 3.

This does not mean that Title VII’s processes have

been jettisoned. Far from it. Practitioners appre-

ciate the light that an EEOC investigation may shed

on frequently unknown facts, and most welcome the

opportunity for early resolution afforded by EEOC’s

conciliation process. See 42 U.S.C. § 2000e-5(b). And

if conciliation fails and litigation looms, far better if

EEOC elects to carry the water and sue on behalf of

the complaining party. See id. at (f(1).

Because EEOC performs valuable services, most

practitioners whose clients have § 1981 claims advise

them also to file a Title VII charge with EEOC. The

result is that the vast majority—88 percent—of

judicial filings under § 1981 are accompanied by a

claim under Title VII. App. at 3. Only 12 percent

stand alone. There is no danger that Title VII will

become a dead letter.’

II. SECTION 1981 COVERS RETALIATION

UNDER THE COURT’S PRECEDENTS,

CONSISTENT WITH THE WILL OF

CONGRESS

A. Section 1981 Covers Retaliation under

the Court’s Precedents Interpreting

Thirteenth Amendment Statutes

1. The Four Significant Thirteenth Amend-

ment Decisions: Jones, Sullivan, Johnson

and Runyon

The Court’s modern examination of the two stat-

utes passed under the Thirteenth Amendment’s

enabling clause—42 U.S.C. §§ 1981 and 1982—began

in 1968 with Jones v. Alfred H. Mayer Co., 392 U.S.

409. In Jones, the Court considered the claim of a

black prospective home buyer, who alleged that a

developer had refused to sell him a house because of

his race in violation of 42 U.S.C. § 1982, which

provides that all citizens “shall have the same right

. aS is enjoyed by white citizens . . . to inherit,

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

personal property.” In response to the argument that

the statute constrains only state action, the Court

held that “§ 1982 bars all racial discrimination,

private as well as public, in the sale or rental of

* Section II.B of the amicus brief supporting respondent sub-

mitted by the Leadership Conference on Civil Rights suggests

that the percentage of freestanding 1981 claims is lower than 12

percent and is in fact under one percent. But even the higher

figure demonstrates that the overwhelming majority of § 1981

claims are filed together with Title VII allegations and so have

traversed the requisite Title VII processes.

property, and that the statute, thus construed, is a

valid exercise of the power of Congress to enforce the

Thirteenth Amendment.” 392 U.S. at 413 (emphasis

- original) (footnote omitted).

In so ruling, the Court reasoned that “[o)n its face

. . . § 1982 appears to prohibit ail discrimination

against Negroes in the sale or rental of property—

discrimination by private owners as well as discrimi-

nation by public authorities.” Jd. at 421 (emphasis

original). Examining the statute’s history, the Court

observed that § 1982 was originally “part of § 1 of the

Civil Rights Act of 1866,” which was enacted over

President Andrew Johnson’s veto and which provided:

That all persons born in the United States and

not subject to any foreign power, . . . are hereby

‘declared to be citizens of the United States; and

such citizens, of every race and color, without

regard to any previous condition of slavery or

involuntary servitude, . . . shall have the same

right, in every State and Territory in the United

States, to make and enforce contracts, to sue, be

parties, and give evidence, to inherit, purchase,

lease, sell, hold, and convey real and personal

property, and to full and equal benefit of all laws

and proceedings for the security of person and

property, as is enjoyed by white citizens, and

shall be subject to like punishment, pains, and

penalties, and to none other, any law, statute,

ordinance, regulation, or custom, to the contrary

notwithstanding.

Id. (emphasis added) (ellipses original) (footnotes

omitted).”

* The emphasis added to § 1 above highlights language that is

the same as in the present day 42 U.S.C. § 1981(a); the Court in

The Court then thoroughly canvassed the legisla-

tive history of § 1 of the 1866 Civil Rights Act and

concluded that “it is clear that the Act was designed

to do just what its terms suggest: to prohibit all racial

discrimination, whether or not under color of law,

with respect to the rights enumerated therein.” Id.

at 436.

Eighteen months after deciding Jones, the Court in

1969 held that § 1982 prohibits retaliatory conduct.

In Sullivan v. Little Hunting Park, 396 U.S. 229, the

white owner of a share in a community recreational

corporation sought to assign the share to an African

American. The corporation’s board refused to approve

the assignment because of the prospective assignee’s

race, and the white share owner protested. The

board then expelled him from the corporation.

Both the black would-be assignee and the white

share owner sued, invoking § 1982. The Court first

held that the black plaintiff stated a § 1982 claim in

challenging the board’s refusal to approve the

assignment. Jd. at 236-37. Turning to the white

share owner’s “expulsion for the advocacy of [the

black plaintiffs] cause,” the Court held that he had

standing to contest being “punished for trying to

vindicate the rights of minorities protected by

§ 1982.” Id. at 237.

Since Sullivan, there has been no doubt that

§ 1982 bars retaliation, and the Court recently

reaffirmed this point in Jackson v. Birmingham

Board of Education, 544 U.S. 167: “in Sullivan we

interpreted a general prohibition on racial dis-

Jones noted that § 1981, like § 1982, is “derived from § 1 of the

Civil Rights Act of 1866,” and that its “terms . . . closely parallel

those of § 1982.” 392 U.S. at 441 n.78.

iil

crimination to cover retaliation against those who,

advocate the rights of groups protected by that

prohibition.” Jd. at 176.

Jones noted that §§ 1981 and 1982 share common

ancestry and have parallel terminology, see 392 U.S.

at 441 n.78, so it was foreseeable that the Court

would hold, as it did in 1975 in Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, that § 1981’s

prohibition of racial discrimination in the making

and enforcing of contracts covers private contracts,

specifically contracts of employment. In Johnson, the

issue was whether filing a Title VII charge with

EEOC tolled the statute of limitations for a § 1981

action brought on the same facts. The Court held

there was no tolling, because the remedies and

procedures of Title VII and § 1981 were entirely

separate from, and independent of, one another. On

this point, the Court quoted Alexander v. Gardner-

Denver Co., 415 U.S. 36, 48 (1974): “[T]he legislative

history of Title VII manifests a congressional intent

to allow an individual to pursue independently his

rights under both Title VII and other applicable state

and federal statutes.” See 421 U.S. at 459.

More specifically, the House report on what became

the Equal Employment Opportunity Act of 1972 said

“that the remedies available to the individual under

Title VII are co-extensive with the individual’s right

to sue under the provisions of the Civil Rights Act of

1866, 42 U.S.C. § 1981, and that the two procedures

augment each other and are not mutually exclusive.”

Id. The Senate report contained similar language.

Id.

Addressing the protections afforded by § 1981, the

Court said that the statute

relates primarily to racial discrimination in the

making and enforcement of contracts. Althougt

this Court has not specifically so held, it is wel]

settled among the Federal Courts of Appeals—

and we now join them—that § 1981 affords a

federal remedy against discrimination in private

employment on the basis of race.

Id. at 459-60 (footnote omitted).

The Court was also satisfied that “Congress did not

expect that a § 1981 court action usually would

be resorted to only upon completion of Title VII

procedures and the Commission’s efforts to obtain

voluntary compliance.” Jd. at 461. Indeed, the ab-

sence of conciliation in § 1981 cases, and the possibly

detrimental effect on the Commission’s compliance

program if a § 1981 lawsuit is unsuccessful, are “the

natural effects of the choice Congress has made

available to the claimant by its conferring upon him

independent administrative and judicial remedies.

The choice is a valuable one.” Jd. In these circum-

stances, the Court was “disinclined . . . to infer any

positive preference for one over the other,” i.e., Title

VII over § 1981. Zd.

A year after Johnson, in Runyon v. McCrary, 427

U.S. 160, which did not involve a contract of

employment but rather the right of black parents to

enter into contracts to send their children to private

schools, the Court treated the question of § 1981’s

application to private conduct as settled. The Court

said that it was “now well established that § 1 of the

Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C.

§ 1981, prohibits racial discrimination in the making

and enforcement of private contracts,” 427 U.S. at

168, explaining that its ruling on § 1982 in Jones

“necessarily implied that the portion of § 1 of the

1866 Act presently codified as 42 U.S.C. § 1981

likewise reaches purely private acts of racial dis-

crimination.” Jd. at 170.

The Court said that “[t]he applicability of the

holding in Jones to § 1981 was confirmed” by the

decisions in Johnson v. Railway Express Agency and

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

431 (1973), see 427 U.S. at 171, so “[t]he Court of

Appeals’ conclusion that § 1981 was .. . violated

follows inexorably from the language of that statute,

as construed in Jones, Tillman, and Johnson.” Id.

at 173.*

The Court also thought it “noteworthy” that in

the debate culminating in the Equal Employment

Opportunity Act of 1972, Congress “specifically

considered and rejected an amendment that would

have repealed the Civil Rights Act of 1866 . . . insofar

as it affords private-sector employees a right of action

based on racial discrimination in employment. * * *

There could hardly be a clearer indication of

* Tillman was a challenge to the racially restrictive practices

of a recreation association brought under both §§ 1981 and

1982. Rejecting the association’s argument that it was a private

club, the Court first focused on § 1982 and noted that the

association’s membership practices were “indistinguishable”

from those of the respondent in Sullivan v. Little Hunting Park,

which the Court had held was not private. 410 U.S. at 438.

Turning to the § 1981 claim, the Court said that “[t}he operative

language of both § 1981 and § 1982 is traceable to” § 1 of the

Civil Rights Act of 1866. Jd. at 439. “In light of the historical

interrelationship between.§ 1981 and § 1982, we see no reason

to construe these sections differently when applied . . . to the

claim of [the association] that it is a private club.” /d. at 439-40.

congressional agreement with the view that § 1981

does reach private acts of racial discrimination.” Id.

at 174-75 (citation omitted) (footnote omitted). The

Court ended its discussion of § 1981’s reach by saying

that, “[iJn these circumstances there is no basis for

deviating from the well-settled principles of stare

decisis applicable to this Court’s construction of

federal statutes.” Jd. 427 U.S. at 175.

2. Section 1981 Covers Retaliation under

the Court’s Tyirteenth Amendment

Decisions

Beginning with Jones in 1968 and culminating

with Runyon in 1976, the Court vivified both

Thirteenth Amendment statutes, 42 U.S.C. §§ 1981

and 1982. In Jones, which focused on § 1982, the

Court held that § 1 of the Civil Rights Act of 1866

reached private racial discrimination, so § 1982, sim-

ply a codification of part of § 1, also covers conduct in

the private sphere.

Since § 1981 likewise had its origins in § 1, the

Court in Runyon said that Jones “necessarily

implied” that § 1981 also reaches private racial

discrimination. 427 U.S. at 170. And by the time

Runyon was decided, it was clear in particular that

“Congress clearly has retained § 1981 as a remedy

against private employment discrimination separate

from and independent of the more elaborate and

time-consuming procedures of Title VII.” Johnson uv.

Railway Express Agency, 421 U.S. at 466.°

* Johnson dealt with alleged discrimination by a private com-

pany, but § 1981 also applies to “[a] union which intentionally

avoids asserting discrimination claims, either so as not to an-

tagonize the employer and thus improve its chances of success

on other issues, or in deference to the perceived desires of

Finally, the Court in Sullivan v. Little Hunting

Park held that § 1982 “cover(s] retaliation against

those who advocate the rights of groups protected by

[its] prohibition” on racial discrimination in housing.

Jackson v. Birmingham Board of Education, 544 U.S.

at 176. Given the common derivation of 42 U.S.C.

§§ 1981 and 1982 from a single Reconstruction

statute, and given as well the identical operative,

rights-conferring language of the two laws—those

protected “shall have the same right . . . as is enjoyed

by white citizens”—it is small wonder that Courts of

Appeals in the 1970’s and 1980’s held that § 1981

also covers retaliation.°

B. In the Civil Rights Act of 1991, Con-

gress Rejected Patterson’s Holding

Narrowing the Reach of § 1981

1. Patterson

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

the Court first considered whether to overrule

Runyon’s holding that § 1981 reaches private con-

duct. Principles of stare decisis counseled against

overruling, though, so Runyon was not disturbed.

See id. at 171-75.

One of the plaintiffs claims was an allegation of

racial harassment, which the Court held was not

its white membership.” Goodman v. Lukens Steel Co., 482 U.S.

656, 669 (1987).

* See Choudhury v. Polytechnic Inst. of N.Y., 735 F.2d 38, 42-

43 (2d Cir. 1984); Goff v. Continental Oil Co., 678 F.2d 593, 598

(5th Cir. 1982); Winston v. Lear-Siegler, Inc., 558 F.2d 1266,

1268-70 (6th Cir. 1977); Setser v. Novack Inv. Co., 638 F.2d

1137, 1147 (8th Cir. 1981), modified on other grounds, 657

F.2d 962 (1981), cert. denied, 454 U.S. 1064 (1982); London v.

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

covered by § 1981. More generally, the Court ruled

that the statute did not apply to conduct after the

contract was formed—in a contract of employment,

after the initial hire (except for promotions where

“the nature of the change in position was such that it

involved the opportunity to enter into a new contract

with the employer,” id. at 185). The Court felt that

such “postformation conduct” was beyond the reach of

§ 1981 because of the “statute’s limitation to the

making and enforcement of contracts.” Jd. at 180. In

addition, “[w|]here 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 those statutory prerequisites.” Jd. at 181.

2. The Sweep of the 1991 Civil Rights Act

in Overriding Patterson

In the immediate aftermath of Patterson, a few

circuits held that § 1981 did not permit claims of

retaliation.’ But the Patterson era was short-lived.

The Civil Rights Act of 1991, Pub. L. 102-166, 105

Stat. 1072, included statutory responses to several

of the Court’s decisions with which Congress was

dissatisfied, including Patterson. See Landgraf v.

USI Film Products, 511 U.S. 244, 251 (1994).

In particular, § 101 of the Act amended § 1981 to

make it clear that the statute covers all manner

of postformation conduct by adding two new sub-

sections—(b), which defines “the term ‘make and

enforce contracts’ [as] includ{ing) the making,

performance, modification, and termination of con-

" See, e.g., Carter v. South Central Bell, 912 F.2d 832 (5th Cir.

1990); Sherman v. Burke Contracting, Inc., 891 F.2d 1527 (Lith

Cir. 1990).

tracts, and the enjoyment of all benefits, privileges,

terms, and conditions of the contractual rela-

tionship”; and (c), which provides in part that “[t/he

rights protected by this section are protected against

impairment by nongovernmental discrimination”

(emphasis added), thus making it clear that the

statute is concerned with the impairment—weak-

ening—of the rights enumerated, not just their denial

(as well as forestalling any future attempt to overrule

Runyon).

In addition to being the focus of § 101 of the 1991

Act, § 1981 also figures prominently in § 102, which

for the first time authorized damages in Title VII

cases but capped damage awards based on the size

of the defendant, with a maximum of $300,000

available against defendants employing more than

500 people.* Congress wrote § 102 carefully to insure

it would not limit relief in § 1981 cases, where

uncapped damages were already available.” Thus

subsection (a)(1) in § 102 authorizes damages in Title

VII cases of intentional discrimination, “provided

that the complaining party cannot recover under

section 1977 of the Revised Statutes (42 U.S.C.

§ 1981).” And subsection (b)—which sets forth the

various damage caps—provides at subsection (4) that

“{nJothing in this section shall be construed to limit

the scope of, or the relief available under” § 1981.

* Section 102 is codified (somewhat confusingly) at 42 U.S.C. §

198 1a.

* See Johnson v. Railway Express Agency, 421 U.S.at 460 (“An

individual who establishes a cause of action under § 1981 is

entitled to both equitable and legal relief, including compen-

satory and, under certain circumstances, punitive damages.”).

Sections 101 and 102 together show that the

Court’s assumption in Rivers v. Roadway Express,

Inc., 511 U.S. 298, 306-07 (1994)—“that § 101 reflects

congressional disapproval of Patterson’s interpre-

tation of § 1981”—is accurate. Indeed, both §§ 101

and 102 of the 1991 Civil Rights Act bespeak

dissatisfaction with Patterson, as well as an affirma-

tive congressional interest in securing § 1981’s role as

a separate source of relief from racial discrimination,

entirely independent of Title VII.

The Court in Patterson declined to view § 1981 “as

a general proscription of racial discrimination in all

aspects of contract relations,” 491 U.S. at 181, and

expressed reluctance “to read an earlier statute

broadly where the result is to circumvent the detailed

remedial scheme constructed in a later statute.” Id.

But §§ 101 and 102 in the Civil Rights Act of 1991

reflect a clear congressional choice precisely in favor

of construing § 1981 as “a general proscription of

racial discrimination in all aspects of contract

relations,” regardless of the impact on Title VII's

remedial scheme—that is, a return to Johnson’s

caution against “infer{ring] any positive preference

for one [statute] over the other.” 421 U.S. at 461. In

these circumstances, it is unsurprising that coverage

of retaliatory conduct is evident from the statutory

text.

3. Retaliation Is Covered by the Text of the

1991 Amendments to $ 1981

Respondent argues that retaliation must not be

covered by the amended § 1981, because the text

of the statute does not contain the word. But

“harassment” does not appear in the text, either, and

there is no doubt that racial harassment is prohibited

by § 1981 as amended, because Congress wished to

overturn Patterson, which dealt with harassment.

See, e.g., Jones v. R.R. Donnelley & Sons. Co., 541

U.S. 369 (2004), a § 1981 case in which “plaintiffs

alleged that they were subjected to a racially hostile

work environment,” id. at 372, and it was “undis-

puted that [they] have alleged violations of the

amended statute.” Id. at 373.

The plaintiffs in Donnelley also alleged wrongful

termination, and “termination”’—unlike ‘“harass-

ment”—is included in the statutory text, as the Court

pointed out by quoting new subsection (b) of the

statute. Jd. The Court also quoted the language in

subsection (b) that further defines “make and enforce

contracts” as including “the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.” Jd. This is the only text that covers

harassment, but it covers it nicely, since an employee

who is harassed because of race is denied the full

“enjoyment . . . of the contractual relationship.” In

the same fashion, a worker is deprived of enjoyment

of the contractual relationship if retaliation follows a

complaint about racial discrimination in contract

administration.

Congress expected the courts to rely on legislative

history in construing the Civil Rights Act of 1991,

and it added a proviso in § 105 (the part of the Act

responding to Wards Cove Packing Co. v. Atonio, 490

U.S. 642 (1989)) which prohibited use of any history

other than an interpretive memorandum appearing

in the Congressional Record “in construing or apply-

ing, any provision of this Act that relates to Wards

Cove—Business necessity,‘cumulation/alternative busi-

ness practice.” See § 105‘b). There are no restric-

tions on use of legislative ‘1istory to interpret any

other provisions of the Act.

Given the congressional expectation on judicial use

of the 1991 Act’s legislative history as an interpretive

aid, it is noteworthy that the relevant committee

reports of both houses of Congress say, in the words

of the Senate, that the list of covered acts in § 1981’s

new subsection (b) “is intended to be illustrative

rather than exhaustive.” S. Rep. No. 101-315 (1990)

at 58. In addition, the House report says that the list

“would include, but not be limited to, claims of

harassment... [and] retaliation.” H. Rep. 102-40 (II)

(1991) at 37.

Subsection (a) of § 1981—the original statute—is

also relevant here, when considered in light of sub-

section (b)’s inclusion of postformation conduct and

new subsection (c)’s declaration that the enumerated

rights are protected from “impairment,” not just

absolute denial. Analysis of § 1981 typically focuses

on the right to make and enforce contracts, but

§ 198l(a) also safeguards the rights “to sue, be

parties [and] give evidence” on the same basis as

whites. An employer who retaliates against an

employee for filing a § 1981 lawsuit has certainly

impaired the right to sue in the same unfettered

manner that Congress rightly believed was enjoyed

by whites. And since filing a Title VII charge with

EEOC or lodging an internal complaint of bias are

frequently precursors to more formal legal action, an

employer who retaliates because of such activity also

impairs rights secured by § 1981.

C. Jackson Confirms that § 1981 Covers

Retaliation

Concurring in Runyon, Justice Powell said he

agreed with the Court that the “considered holdings

lof Jones v. Mayer and Sullivan v. Little Hunting

Park] with respect to the purpose and meaning of

§ 1982 necessarily apply to both [§§ 1981 and 1982]

in view of their common derivation.” 427 U.S. at.187.

In Sullivan, the Court applied § 1982 to retaliatory

conduct. And in the Civil Rights Act of 1991, Con-

gress rejected the Court’s narrow reading of § 1981

in Patterson and added expansive language to the

statutory text. It was clear to the Courts of Appeals

prior to Patterson that § 1981, like § 1982, barred

retaliation, and that point was solidified by the 1991

Act.

The Court dispelled any doubts on this score with

its 2005 decision in Jackson v. Birmingham Board of

Education, 544 U.S. 167, which construed Title [IX of

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

§§ 1681 et seg., which prohibits sex discrimination by

recipients of federal education funding. The issue in

Jackson was whether a ban on retaliatory conduct

was. encompassed in Title IX’s prohibition of sex

discrimination, and the Court held it was."

The Court explained that “[(rjetaliation against a

person because that person has complained of sex

discrimination is another form of intentional sex

discrimination,” id. at 173; i.e., it is “discrimination

‘on the basis of sex’ because it is an intentional

response to the nature of the complaint: an allegation

of sex discrimination.” Jd. at 174. It was also

important for the Court that Title [IX was enacted

three years after its decision in Sullivan v. Little

” Title [X’s bar to discrimination is contained in 20 U.S.C.

§ 1681(a): “Prohibition against discrimination; exceptions. No

person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or

activity receiving Federal financial assistance... .”

Hunting Park, which “interpreted a general prohi-

bition on racial discrimination to cover retaliation

against those who advocate the rights of groups

protected by that prohibition.” Jd. at 176 (footnote

omitted). In Jackson, “{rljetaliation for [plaintiffs]

advocacy of the rights of the girls’ basketball team in

this case is ‘discrimination’ ‘on the basis of sex,’ just

as retaliation for advocacy on behalf of a black lessee

in Sullivan was discrimination on the basis-of race.”

Id. at 176-77.

Jackson added another, straightforward reason

why § 1981 bars retaliation: if “[rjetaliation against a

person because that person has complained of sex

discrimination is another form of intentional sex

discrimination,” 544 U.S. at 173, then retaliation

because someone has complained of racial discrimi-

nation is likewise a form of intentional racial dis-

crimination."

These two lines of argument—one based on analy-

sis of the Court’s decisions in cases involving the two

Thirteenth Amendment statutes, including the con-

gressional response to Patterson in 1991, the other

grounded in Jackson's understanding that retaliation

for complaining about discrimination is itself a form

of the discrimination complained about—are both

anchored by this Court’s decisions. Each is powerful

in its own right. So it is not surprising that, in

"In Burlington Northern and Santa Fe Ry. Co. v. White, 126

S. Ct. 2405, 2412 (2006), the Court said that “[t]he substantive

provision [of Title VII] seeks to prevent injury to individuals

based on who they are, i.e., their status. The anti-retaliation

provision seeks to prevent harm to individuals based on what

they do, i.e., their conduct.” Jackson held that if that conduct

protested bias against a particular status, then punishing some-

one for that conduct was equivalent to punishing for the status.

addition to the court below, the other seven circuits

to address the question following passage of the Civil

Rights Act of 1991 have all held that § 1981 prohibits

retaliation.”

D. Considerations of Stare Decisis

1. The Dissent Below

Even if the statutory text were less clear, Sullivan

and Jackson, both singly and together, block any

effort to say that § 1981 does not reach retaliation.

Dissenting below, Chief Judge Easterbrook therefore

sought to distinguish Jackson, saying first that

See Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693

(2d Cir. 1998) (“We remain of the view, in light of the broad

sweep of § 1981(b), that a retaliation claim may be brought

under § 1981.”); Aleman v. Chugach Support Services, 485 F.3d

206, 213 (4th Cir. 2007) (“Supreme Court .. . precedent...

hoid[s] retaliation to be a form of differential treatment sub-

sumed in the anti-discrimination language of Section 1981,”

citing Jackson and Sullivan); Foley v. University of Houston

System, 355 F.3d 333, 338-39 (5th Cir. 2003) (plaintiffs “contend

that the right to be free from retaliation for exercising rights

protected by § 1981 was clearly established by the Civil Rights

Act of 1991 * * * we agree.”); Kim v. Nash Finch Co., 123 F.3d

1046, 1059 (8th Cir. 1997) (“Like the substantive claim of racial

discrimination, a claim of retaliation, in a racial discrimination

context, can violate both Title VII and 42 U.S.C. § 1981.”);

Manatt v. Bank of America, N.A., 339 F.3d 792, 800-01 (9th Cir.

2003) (recognizing that plaintiff had stated a § 1981 claim

where she “contend[ed) that the [defendant] retaliated against

her for complaining to her supervisor and to human resources

about racial discrimination”); O’Neal v. Ferguson Construction

Co., 237 F.3d 1248, 1258 (10th Cir. 2001) (affirming damage

award above the cap for Title VII damages for a § 1981 re-

taliation claim); Andrews v. Lakeshore Rehabilitation Hospital,

140 F.3d 1405, 1412-13 (11th Cir. 1998) (“post-1991 retaliation

claim brought by [plaintiff] is cognizable under the amended

section 1981”).

Jackson construed the term “discrimination” in Title

IX, but that § 1981 does not contain that term: “The

word ‘discriminate’ does not appear in § 1981.” JA

159. This is just wrong. Subsection (c) of § 1981

(added by the Civil Rights Act of 1991) provides that

“(tlhe rights protected by this section are protected

against impairment by nongovernmental discrimi-

nation” (emphasis added). In any event, the Court

has never doubted that § 1981 is concerned with

racial discrimination; see Johnson, 421 U.S. at 460

(“§ 1981 affords a federal remedy against discrimi-

nation in private employment on the basis of race”);

Patterson, 491 U.S. at 172 (reaffirming that “§ 1981

prohibits racial discrimination in the making and

enforcement of private contracts.”).

As to Sullivan, the dissent plainly thinks it was

wrongly decided, saying that “Sullivan engaged in a

freewheeling ‘interpretation’ of § 1982,” JA 164, and

“ignored the language” of the statute. Id. “There

has been a sea change in interpretive method

between Sullivan and today,” id. at 165, however, so

Sullivan’s construction of § 1982 should not be a

model for “§ 1981, its neighbor.” Jd. at 164. But

§§ 1981 and 1982 are not mere “neighbors” in the

code. These two statutes were originally part of the

same law—§ 1 of the Civil Rights Act of 1866—and

this is why the Court has instructed that they should

be interpreted in the same fashion.

Chief Judge Easterbrook also said that judges

should adhere to what he called “the holding of

Patterson”: when interpreting § 1981, courts “must

consider the effect that [the interpretation] would

have on Title VII.” JA 161-62. In the Civil Rights

Act of 1991, though, Congress rejected this approach,

preferring two independently firing, fully loaded

\fe

weapons to combat racial discrimination in employ-

ment, even at the expense of Title VII’s processes. In

such circumstances, some measure of deference to the

will of Congress is called for."

2. Stare Decisis

It would be extraordinarily difficult to say that

§ 1981 lacks protection against retaliation, without

overruling either or both Sullivan and Jackson. But

overruling either would abridge the principle of stare

decisis without good cause.

In Patterson, the first issue addressed was whether

to overrule Runyon v. McCrary’s holding that § 1981

covers private conduct, in a setting in which “[s]ome

Members of th[e] Court believe[d] that Runyon was

decided incorrectly, and others consider[ed] it correct

on its own footing.” 491 U.S. at 171-72. The Court

consequently discussed stare decisis at some length,

saying it is “a basic self-governing principle within

the Judicial Branch, which is entrusted with the

sensitive and difficult task of fashioning and pre-

" The dissent repeatedly cites the Court’s unanimous decision

in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006), in

which the black owner of a construction company sought to

invoke § 1981 on his own behalf, even though all contracts at

issue were (or would have been) with his company, not himself

personally. The Court held that § 1981 did not apply, for the

statute, which “offers relief when racial discrimination blocks

the creation of a contractual relationship, as well as when racial

discrimination impairs an existing contractual relationship, so

long as the plaintiff has or would have rights under the existing

or proposed contractual relationship,” 546 U.S. at 476 (emphasis

added), did not assist a plaintiff who neither had, nor would

have had, contract rights. This is an important principle, but it

has nothing to do with claims of retaliation by those who in fact

“have rights under the existing or proposed contractual relation-

ship.”

serving a jurisprudential system that is not based

upon ‘an arbitrary discretion.” Jd. at 172, quoting

The Federalist, No. 78."

The Court noted in Patterson that it had previously

“held that ‘any.departure from the doctrine of stare

decisis demands special justification,” id. (citation

omitted), and that “[clonsiderations of stare decisis

have special force in the area of statutory inter-

pretation, for here, unlike in the context of con-

stitutional interpretation, the legislative power is

implicated, and Congress remains free to alter what

we have done.” Id. at 172-73.

The Court concluded that there was “no special

justification” for overruling Runyon, id. at 173, such

as “the intervening development of the law,” id., or

that the decision is “unworkable” or “poses a direct

obstacle to the realization of important objectives

embodied in other laws,” id., or had become outdated,

as experience has shown it to be “inconsistent with

the sense of justice or with the social welfare.” Id.

at 174, quoting the concurring opinion by Justice

The Chief Justice echoed these sentiments on the first day

of his confirmation hearing, saying “Judges have to have the

‘humility to recognize that they operate within a system of

precedent, shaped by other judges equally striving to live up to

the judicial oath.” Confirmation Hearing On The Nomination

Of John G. Roberts, Jr. To Be Chief Justice Of The United States

before the Senate Comm. On The Judiciary, 109” Cong. at 55

(2005) (statement of nominee) (reprint Serial No. J-109-37).

Later, in response to questions from Senator Specter, the Chief

Justice said, “I would point out that the principle [of stare

decisis} goes back even farther than Cardozo and Frankfurter.

Hamilton, in Federalist No. 78, said that, ‘To avoid an arbitrary

discretion in the judges, they need to be bound down by rules

and precedents,” id., at 141-142 (questions by Chairman

Specter).

Stevens in Runyon, 427 U.S. at 191, which in turn

quoted Justice Cardozo. Indeed, on this latter count,

Runyon was hardly outdated: “To the contrary,

Runyon is entirely consistent with our society’s deep

commitment to the eradication of discrimination

based on a person’s race or the color of his or her

skin.” 491 U.S. at 174.

There is no “special justification” for overruling

either Sullivan or Jackson. There has been no “the

intervening development of the law” that suggests

the necessity of overruling; neither decision has

proved unworkable or poses an obstacle to the

realization of the objectives of other laws; and neither

is outdated from the perspective of social mores. As

with Runyon, the reverse is true.

Sullivan and Jackson should remain good law.

And if they do, a ruling that retaliation is not covered

by § 1981 is, as Justice Rehnquist said in another

context, “virtually foreclosed.” Internationai Union of

Electrical, Radio & Machine Workers, AFL-CIO,

Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236

(1976).°

‘* Justice White dissented in Runyon v. McCrary, 427 U.S. at

192, and among other things criticized the majority’s reliance on

Johnson v. Railway Express Agency, labeling dictum Johnson’s

statement that § 1981 covers private discrimination. See id. at

213. Justice Rehnquist joined the dissent. Six months later,

Justice Rehnquist wrote the 1.U.E. v. Robbins & Myers decision,

holding that a worker’s resort to a collective bargaining agree-

ment’s grievance machinery does not toll Title VII's time limits.

The decision cited Johnson extensively and quoted from it liber-

ally, including setting forth at length the passage saying, “Con-

gress clearly has retained § 1981 as a remedy against private

employment discrimination separate from and independent of

the more elaborate and time consuming procedures of Title VII.”

III. THE PRACTITIONERS’ PERSPECTIVE

Especially after Jones v. R.R. Donnelley & Sons

Co., 541 U.S. 369, which held that many § 1981

claims are subject to the four-year statute of

limitations in 28 U.S.C. § 1658, it is usually relatively

easy to coordinate Title VII’s and § 1981’s timing

requirements, so as to permit claims under both

statutes to be packaged in a single complaint. Tha‘

is, the Title VII charge in most cases must be filed

within 300 days of the event complained of; this gives

EEOC more than three years to complete its work

if the prospective plaintiff also wishes to rely on

§ 1981.”

On occasion, though, it is either impossible or

impractical to coordinate matters subject to Title VII

and § 1981, as when the Commission takes an

especially long time to complete its processes, or

when it acts quickly and sends a notice of right to

sue—thereby triggering a 90-period for filing suit, 42

U.S.C. § 2000e-5(f)(1)—and the person aggrieved is

awaiting the completion of a nonjudicial proceeding,

such as an arbitration under a collective bargaining

agreement. These situations do not happen often—

429 U.S. at 239, quoting Johnson, 421 U.S. at 466. This is a

homely example of Justice Rehnquist’s fealty to precedent,

something best exemplified when Chief Justice Rehnquist wrote

for the Court in Dickerson v. United States, 530 U.S. 428 (2000),

which declined to overrule Miranda v. Arizona, 384 U.S. 436

(1966).

Section 706(e)1) of Title VII, 42 U.S.C. § 2000e-5(e)(1),

imposes a 180-day deadline on charge filing, but that period is

increased to 300 days in jurisdictions having agencies “with

authority to grant or seek relief” concerning the charging party’s

allegations, id., and today there is such an agency in virtually

every large jurisdiction.

only 12 percent of § 1981 claims stand alone—but

roughly half of these involve retaliation (using the 45

percent figure reported by Dr. Nielsen, see App. at 3).

If § 1981 does not cover retaliation, such individuals,

who reasonably regarded the question whether

§ 1981 reaches retaliation as settled, will have no

remedy. The Court has suggested that “preserving

settled interests” is a factor to be considered when

statutes are construed, Donnelley, 541 U.S. at 382,

and these people would find their interests disrupted

by a ruling that § 1981 does not reach retaliatory

conduct.

A much larger group would also see legitimate

expectations thwarted. Whether or not linked to

Title VII, 45 percent of all § 1981 claims include an

allegation of retaliation. In § 102 of the Civil Rights

Act of 1991, 42 U.S.C. § 198la, Congress expressly

exempted claims under § 1981 from caps on damages

under Title VII, underscoring the broader congres-

sional goal of relieving § 1981 claims of all Title VII

requirements. In these circumstances, those § 1981

plaintiffs with retaliation claims—like all other

§ 1981 plaintiffs—reasonably thought their damages

would not be subject to caps, either. Some have in

all likelihood formulated settlement positions and

engaged in bargaining with that in mind.

There is no warrant to unsettle the expectations of

§ 1981 retaliation claimants. On the contrary, the

Civil Rights Act of 1991, as well as the Court’s

precedents, establish that § 1981 covers retaliation.

| CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

STEFANO G. MOSCATO

_ NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street

Suite 2080

San Francisco, CA 94104

(415) 296-7629

* Counsel of Record

Respectfully submitted,

DOUGLAS B. HURON *

STEPHEN Z. CHERTKOF

TAMMANY M. KRAMER

HELLER, HURON, CHERTKOF

LERNER, SIMON & SALZMAN

1730 M Street, N.W.

Suite 412.

Washington, DC 20036

(202) 293-8090

Counsel for Amicus Curiae

APPENDIX A

To: Tammany M. Kramer

Heller, Huron, Chertkof, Lerner, Simon &

Salzman, P.L.L.C.

1730 M St., NW—Suite 412

Washington, DC 20036

Fr: Laura Beth Nielsen, J.D., Ph.D

Research Fellow, American Bar Foundation

Assistant Professor of Sociology, Northwestern

University

Da: December 20, 2007

Re: Study of Employment Civil Rights Claims

Method

The principal quantitative data analyzed here were

collected through a research design that followed

Donohue and Siegelman (Donohue & Heckman 1997;

Donohue & Siegelman 1991; 1995; Siegelman &

Donohue 1990). The project design was peer-reviewed

and funded by the National Science Foundation and

the American Bar Foundation.

We drew random samples of all federal employ-

ment civil rights cases from seven regionally diverse

_ federal districts: Atlanta, Chicago, Dallas, New Orleans,

New York City, Philadelphia, and San Francisco filed

between 1988 and 2003. These districts contain about

20% of all filings, capture variation in legal and social

context, and, for cost considerations, are located close

to federal records depositories. The sample was drawn

from the list of all civil employment discrimination

cases filed in these districts from 1988 to 2003 com-

piled by the Administrative Office of the U.S. Courts

(AOUSC). 300 cases were randomly selected from

each of these districts over the time period tc yield a

sample of 2100 cases. Given our knowledge of the

universe from which the sample was drawn, it is

possible for us to assign sampling weights by district.

The analyses reported here are not weighted by geo-

graphic region. We included open cases in the overall

sample, but only examine closed cases (n=1805) in

this report.

We developed an extensive coding form and trained

teams of coders for each site. The same data collec-

tion manager supervised and trained coders in each

location. 10% of the cases were coded independently

by different coders to allow for tests of intercoder reli-

ability. We achieved reliability coefficients of 90%

across double coded items. These measures indicate

t’xat the coding of the cases was highly reliable.

Your Questions

a) How many §1981 claims have been filed each

year in the 1998- 2003 period?

Of employment civil rights claims’ filed in federal

court between 1998 and 2003, between 16 and 26%

included a §1981 claim.

% of all employment civil

rights claims that include

a §1981 claim

1998 17%

1999 16%

2000 20%

2001 26%

2002 23%

2003 17%

' Includes everything classified as 442: ADEA, ADA, Tit. VII,

§ 1981, § 1983, FMLA, PDA, EPA

b) How many of those §1981 claims also had a

Title VII claim?

Some 88% of case filings alleging a violation of

§1981 also allege a Title VII violation.

c) How many of those Sec. 1981 claims were for

retaliation?

Fully 45% of cases alleging a violation of §1981 are

for retaliation.

References

Donohue JJ, Heckman J. 1997. Continuous Versus

Episodic Change: The Impact of Civil Rights

Policy on the Economic Status of Blacks.

In Foundations of Employment Discrimination

Law, ed. JJD III, pp. 225-42. New York: Foun-

dation Press

Donohue JJ, Siegelman P. 1991. The Changing Na-

ture of Employment Discrimination Litigation.

Stanford Law Review 43:983-1033

Donohue JJ, Siegelman P. 1995. The Selection of

Employment Discrimination Disputes for Liti-

' gation: Using Business Cycle Effects to Test

the Priest/Klein Hypothesis. Journal of Legal

Studies 24:427

Siegelman P, Donohue JJ. 1990. Studying the Iceberg

from Its Tip: A Comparison of Published and

Unpublished Employment Discrimination Cases.

Law & Society Review 21:165-74

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.