# 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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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 .........

A.

5

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 ....

1.

RITE SRS ee SO

(i)

J 1 © NO = =

14

15
15

ii
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
16

18

20
23
23
25

28
29
la

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

iv

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

Vv

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.

2

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.

(c) Protection against impairment. The rights
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

3

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.

4

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

5

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.

6

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.

7
| 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

8

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 Ҥ 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.

9

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

10

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.

12

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

13

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.

14

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

15

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).

16

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).

17

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.”).

18

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

19

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.

20

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

21

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... .”

22

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

c

"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.

23

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”).

24

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
(Ҥ 1981 affords a federal remedy against discrimi-
nation in private employment on the basis of race”);
Patterson, 491 U.S. at 172 (reaffirming that Ҥ 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

ie
\fe

ae

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.”

26

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).

27

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.”

28
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.

29

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.

30

| 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

la
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

2a

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

3a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0536%3A15. Public record. Not legal advice.