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

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~_ 382% No. 06-1431 LAN 2 — 2°08

|

IN THE

| OFeICE OF THE CLERK |

Supreme Court of the United States

CBOCS WEST, INC.,

Petitioner,

HEDRICK G. HUMPHRIES,

Respondent. )

—- ---

* Counsel of Record

On Writ or CERTIORARI TO THE

UNITED StaTeEs Court OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE STATES OF NEW YORK, ARIZONA, CONNECTICUT,

Towa, ILLINOIS, MARYLAND, MasSACHUSETTS, Missouri, NEVADA,

New JerseEY, On10, OREGON, VERMONT, AND WEST VIRGINIA

AS Amici CuRIAE IN SuPPoRT OF RESPONDENT

AnpDREW M. Cuomo

Attorney General of the

State of New York

BaRBARA D. UNDERWOOD*

Solicitor General

BENJAMIN N. GUTMAN

Deputy Solicitor General

PETER KARANJIA

Special Counsel to the

Solicitor General

120 Broadway, 25th Floor

New York, NY 10271

(212) 416-8020

Attorneys for Amici Curiae

(Additional Counsel Listed on Signature Pages)

213243

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Does 42 U.S.C. § 1981 provide redress to persons

who have suffered retaliation as a result of complaining

about race discrimination? |

ii

TABLE OF CONTENTS

QUESTION PRESENTED ..................

TABLE OF CONTENTS ....................

TABLE OF CITED AUTHORITIES .........

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

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

SED 4A acne dceeniwaddndadatipadeicss

I.

SECTION 1981’S CAUSE OF ACTION

ENCOMPASSES CLAIMS ' OF

RETALIATION FOR COMPLAINTS

ABOUT RACE DISCRIMINATION ...

A. Retaliation “Impairs” an Individual’s

Ability to “Make and Enforce

Contracts” Within the Meaning of

CN ekksbnske peauiestucewsabades

B. This Court’s Precedents Confirm

That § 1981 Embraces Claims for

i aie i

C. Excluding Retaliation Claims from

§ 1981 Would Subvert the Goals of

Congress in Enacting, and Expanding

the Scope of, the Statute. ..........

13

16

adual

iii

Contents

II. SECTION 1981 SHOULD NOT BE

CURTAILED BECAUSE OF OVERLAP

WERE CEE WEE Kesass dccedcceesees 20

A. Congress Intended to Create

Partially Overlapping Schemes of

Liability Under § 1981 and Title

gE SMEARS IR Eee eae yre eer) Aer 21

B. Reading § 1981 To Encompass Claims

for Retaliation Does Not Undermine

SI ines a oa ee eS 24

C. There is No Reason to Believe That

Plaintiffs Will Bypass Title VII for

i GitealuGhand sunwuadecet caus 26°

REN “Riwrek cS ddadndvnctundsndencess 27

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Am. Nat'l Red Cross v. S.G.,

EES cb ve cucvecsececesveens 12

Anthony v. Butler,

Teese 18

Bd. of County Comm’rs v. Umbehr,

ee SP IED vc cocscccccoccccoececces 25.

Burnett v. Grattan,

SE 5. cc cccwavcesucesactes 7,8

Cannon v. Univ. of Chi.,

Nd sc cececccuvewecews 11

Danco Inc. v. Wal-Mart Stores, Inc.,

SPRUE DD wwvdvcbscccecccsens 25

Domino’s Pizza, Inc. v. McDonald,

aca iui cucacaceesoes 9,10

Dickerson v. United States,

ee eeee 23

Gade v. Nat'l Solid Wastes Mgmt. Ass’n,

ee a I Seen ow b 6k vo 68 Scecew case. 12

Vv

Cited Authorities

Page

Goodman v. Lukens Steel Co.,

Ge iis SPEED. 6 kc6 kc cwccvcccesectuce 3, 13,14

Humana Inc. v. Forsyth,

i cnc acuysaeneaneue 8

Jackson v. Birmingham Board of Education,

544 U.S. 167 (2005) ....... cece ceeeee 9, 12, 15, 18

Jett v. Dallas Indep. Sch. Dist.,

Be IEE hs be todcne cc cccevseusec 11

Jones v. Alfred H. Mayer Co.,

Be WP GED vicncnes cvccdcccccenseun 7-8, 16

Jones v. R.R. Donnelley & Sons Co.,

Be CE EE: hb 06. ioato cv escusevetous 6

Malhotra v. Cotter & Co.,

885 F.2d 1305 (7th Cir. 1989) ................ 9

McDonald v. Santa Fe Trail Transp. Co.,

ee EE “UES dasbeesecwudeedeuéeetes 7

N. Star Steel Co. v. Thomas,

ED in dos ccdcccpascketveveuns 18

Patterson v. McLean Credit Union,

er Se ED wkbicdi.céuneedocdaente passim

vi

Cited Authorities

Page

Perry v. Sindermann,

en ow coccccevceeeecees 25

Rivers v. Roadway Express, Inc.,

ss cdc ececentececese 17, 24

Runyon v. McCrary,

EE Ee 6, 15, 22

Sullivan v. Little Hunting Park, Inc.,

SOG UB. FEO CIGGS) 2. cc cccccccccccccccecs passim

Salinas v. United States,

EE 7

Tillman v. Wheaton-Haven Recreation

Ass’n, Inc., 410 U.S. 481 (1973) ............. 15

United States v. Wiltberger,

nn oc ccwesee 18

Federal Statutes

EE eee passim

A 24

eae 6, 24

MEE cca peccsacdéccecvescesescesec 7,11, 15

vil

Cited Authorities

Page

EEE i dc cckanctcaveccaseedekasns 24

io ct dg cbcdndenhaned 11, 24, 27

i <i. cadvcsecdunesbesweweanal 11, 24

ECR SP pe ee eee 26

EE NES SEE RE PIS te 26

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

se eat cc kia gun heeaeneeete 17

Civil Rights Act of 1866, 14 Stat. 27 ......... passim

Legislative History

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

reprinted in 1991 U.S.C.C.A.N. 549 ......... 6

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

reprinted in 1991 U.S.C.C.A.N. 549 ......... 7

H.R. Rep. No. 101-315 (1990) .............00.- 24

viii

Cited Authorities

Miscellaneous

Black’s Law Dictionary (6th ed. 1990) ........

Deborah L. Brake, Retaliation, 90 Minn. L. Rev.

INS RNG er NE A eT ONES Oa oe

Cheryl R. Kaiser & Brenda Major, A Social

Psychological Perspective on Perceiving and

Reporting Discrimination, 31 Law & Soc.

EE nc 6 abs ct vdcnatdnnsescucesse

Webster’s New International Dictionary

ET iba Lineage Gubet deakee skews

1

INTEREST OF AMICI CURIAE

At stake in this case is the right of citizens to be

protected from reprisal when they report unlawful race

discrimination that violates 42 U.S.C. § 1981. Section

1981, originally enacted as part of the: Reconstruction-

era Civil Rights Act of 1866, prohibits the “impairment”

of the rights of all citizens to “make and enforce

contacts,” irrespective of race. In this case, respondent,

an African-American employee of a restaurant operated

by petitioner, alleged that he was fired because he

complained about his supervisor’s allegedly racially

discriminatory behavior.

Amici States are dedicated to fostering a culture in

which citizens feel free to report violations of the civil

rights laws to the appropriate authorities. Effective legal .

protection against retaliation is an integral part of such

a culture. The States therefore have a profound interest

in ensuring that § 1981 provides protection to those who

report discrimination that violates the statute’s promise

of equal treatment in contractual relationships, without

fear of retaliation.

As the chief law enforcement officers of the

respective States, the amici attorneys general are also

committed to the proper interpretation of civil rights

laws, 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.” Patterson v. McLean

Credit Union, 491 U.S. 164, 174 (1989). In this

connection, notwithstanding the existence of state

antidiscrimination statutes, the States frequently rely

on federal statutes such as § 1981 when acting as

2

parens patriae. In many cases, § 1981 is the only federal

cause of action available to provide redress for private

racial discrimination. For example, unlike Title VII of

the Civil Rights Act of 1964, § 1981 covers independent

contractors and employees of firms with fewer than

fifteen employees. The amici States therefore have a

strong interest in ensuring that courts give real content

to § 1981’s guarantee of equal treatment in contractual

relationships, including effective protection against

retaliation.

SUMMARY OF ARGUMENT

Section 1981 provides redress to parties to contracts,

including employees, who suffer retaliation because they

complained about race discrimination.

The text of § 1981 broadly prohibits the

“impairment” of the right to “enjoy[] ... all benefits,

privileges, terms, and conditions of the contractual

relationship” on an equal footing with “white citizens.”

An employer’s retaliation against an employee who

complains about race discrimination falls squarely within

the terms of the statute, because such reprisal impairs

the employee’s right to equal treatment in contractual

relationships. Furthermore, this impairment is based on

race because, as this Court has recognized, retaliation

is a form of intentional discrimination, and retaliating

against persons because they have complained about

race discrimination is itself discrimination “based on

race.”

While the text of § 1981 does not include the word

“retaliate,” no such magic words are required for the

3

statute to be fairly construed as providing redress for

retaliation. Petitioner’s contrary argument, which

emphasizes the explicit retaliation provisions in various

modern antidiscrimination statutes, overlooks the

fundamental difference in text and structure between

such statutes and the Reconstruction-era Civil Rights

Act from which § 1981 derives. Because the text of § 1981

indicates that its long-recognized cause of action

encompasses claims alleging retaliation, this reading of

the statute does not involve “implying” any new cause

of action or “reading into” the text of the statute any

novel rights.

This Court’s longstanding precedent, coupled with

the historical context surrounding the enactment of

§ 1981, further compel the conclusion that the broad

terms of § 1981 encompass a claim for retaliation. In

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

(1987), establishes that obstruction of employees’ efforts

to obtain redress for discrimination is actionable under

§ 1981, even when the obstruction is motivated not by

the employees’ race but rather by the racial nature of

their complaint.

Reading § 1981 to provide redress for retaliation will

not cause plaintiffs to circumvent the strictures of Title

VII, because proceeding under Title VII offers plaintiffs

the advantages of the U.S. Equal Employment

Opportunity Commission’s administrative process.

There thus is no reason to believe that plaintiffs alleging

retaliation will generally bypass Title VII in favor of

§ 1981.

4

ARGUMENT

I. SECTION 1981°S CAUSE OF ACTION

ENCOMPASSES CLAIMS OF RETALIATION

FOR COMPLAINTS ABOUT RACE DISCRIM-

_INATION

A. Retaliation “Impairs” an Individual’s Ability

to “Make and Enforce Contracts” Within the

Meaning of § 1981.

Claims of retaliation for complaints about race

discrimination fall within the broad terms of § 1981,

because an employer that retaliates against an employee

who has complained about race discrimination has

“impaired” that employee’s ability to “make and enforce

contracts” — which includes the right to “enjoy[] . . . all

benefits ... of the contractual relationship” — on an

equal footing with “white citizens.”

1. The current text of § 1981(a), which is essentially

the same as its precursor in the Civil Rights Act of 1866,

states in relevant part that “[a]ll persons ... shall have

the same right . . . to make and enforce contracts . . . as

is enjoyed by white citizens. ...”'

1. The current text of § 1981 provides in full:

(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 make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal

(Cont'd)

5

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

(1989), this Court held that the first aspect of § 1981(a)’s

guarantee of equal rights (“the same right ... to make

... contracts”) extended only to the formation of a

contract, but not to “postformation conduct” such as

workplace harassment or a discriminatory termination.

Id. at 177.2 “In 1991, however, Congress responded to

(Cont'd)

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,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.

(c) Protection against impairment

The rights protected by this section are protected

against impairment by nongovernmental

discrimination and impairment under color of State

law.

42 U.S.C. § 1981.

2. The Patterson Court held that the second aspect of the

equal rights guarantee (“the same right ... to ... enforce

contracts”) embraced “protection of a legal process, and of a right

of access to legal process, that will address and resolve contract-

(Cont'd)

6

Patterson by adding a new subsection to § 1981 that

defines the term ‘make and enforce contracts’ to include

the ‘termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the

contractual relationship.” Jones v. R.R. Donnelley &

Sons Co., 541 U.S. 369, 373 (2004) (quoting 42 U.S.C.

§ 1981(b)). This legislative amendment “overturned

Patterson” and “enlarged the category of conduct that

is subject to § 1981 liability.” Jones, 541 U.S. at 383

(citation and quotation marks omitted).

2. The 1991 amendment also added to the statute a

new subsection (c), not discussed by petitioner or its

amici. Subsection (c) provides, under the heading

“Protection against impairment,” that “[t]he rights

protected by this section are protected against

impairment by nongovernmental discrimination and

impairment under color of State law.” 42 U.S.C. § 1981(c).

Subsection (c) was intended to codify this Court’s holding

in Runyon v. McCrary, 427 U.S. 160 (1976), that § 1981

covers both private and governmental discrimination.

See H.R. Rep. No. 102-40(ID), at 37 (1991), reprinted in

1991 U.S.C.C.A.N. 549, 731. And because Congress was

at the same time expanding the conduct prohibited by

the statute, Congress chose the comprehensive term

“impairment” (“(t)he rights protected by this section are

protected against impairment”) to describe the broad

scope of the conduct prohibited by subsection (b),

(Cont'd)

law claims without regard to race.” Patterson, 491 U.S. at 177.

The Court specifically noted that this right also extended to

“wholly private efforts to impede access to the courts or obstruct

nonjudicial methods of adjudicating disputes about the force of

binding obligations.” /d. (emphasis altered).

7

including the postformation conduct previously excluded

by Patterson.’

The statute’s expansive language commands a liberal

interpretation. As this Court admonished in the context

of § 1981’s companion provision, 42 U.S.C. § 1982, which

is likewise derived from § 1 of the Civil Rights Act of

1866, “[a] narrow construction of the language of § 1982

wou.d be quite inconsistent with the broad and sweeping

nature of the protection meant to be afforded by § 1 of

the Civil Rights Act of 1866, ... from which § 1982 was

derived.” Sullivan v. Little Hunting Park, Inc., 396 U.S.

229, 237 (1969). Or, as the Court noted in discussing a

different statute in Salinas v. United States, 522 U.S.

52, 56 (1997), the “enactment’s expansive, unqualified

language” militates against a “narrowing construction.”

This basic principle of statutory construction applies

here because the Civil Rights Acts are “characterized

by broadly inclusive language. They do not limit who may

bring suit, [and] do not limit the cause of action to a

circumscribed set of facts... .” Burnett v. Grattan, 468

U.S. 42, 50 (1984); see also McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 295 (1976) (noting the “broad

terms” of the 1866 Act); Jones v. Alfred H. Mayer Co.,

3. As the court below recognized, the report of the House

Committee on Education and Labor also indicates that the

committee understood that “retaliation” would be covered by the

1991 revisions to the statute. See H.R. Rep. No. 102-40(1), at 92

(1991), reprinted in 1991 U.S.C.C.A.N. 549, 630 (“the list set forth

in [§ 1981(b)) is intended to be illustrative rather than exhaustive.

In the context of employment discrimination, for example, this

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

discharge, demotion, promotion, transfer, retaliation, and

hiring.”) (emphasis added).

8

392 U.S. 409, 437 (1968) (according § 1981 “a sweep as

broad as its language”) (citation and quotation marks

omitted).

The text of § 1981 neither “limit{[s] the cause of

action” provided thereunder “to a circumscribed set of

facts,” Burnett, 468 U.S. at 50, nor limits the cause of

action to a specific legal theory (such as one for

“discrimination” rather than “retaliation”). This is not

surprising in a Reconstruction-era statute that, in

contrast with more detailed modern legislation like Title

VII, provides a sweeping definition of a right to equal

treatment and broadly proscribes the “impairment” of

that right. That being so, the most natural construction

of the statute’s expansive language encompasses

retaliation claims. An employer that retaliates against

an employee who complains that he is a victim of race

discrimination in the employment relationship

“impair({s}” that employee’s ability to “make and enforce

contracts” — 2.e., the right to “enjoy[] ... all benefits

... of the contractual relationship” — on an equal footing

with “white persons,” and such impairment therefore

violates § 1981. See Humana Inc. v. Forsyth, 525 US.

299, 309-10 (1999) (“[t]he dictionary definition of ‘impair’

is ‘to weaken, to make worse, to lessen in power, diminish,

or relax, or otherwise affect in an injurious manner.””)

(quoting Black’s Law Dictionary 752 (6th ed. 1990));

Webster’s New International Dictionary 1131 (3d ed.

1981) (defining “impair” as “to make worse: diminish in

quantity, value, excellence, or strength” and to “do harm

to”).

Retaliating against someone because he or she has

complained about race discrimination (particularly

9

where, as here, the victim of the retaliation was also a

victim of the alleged initial discrimination) assuredly

diminishes, and thus impairs, that person’s right to enjoy

all the incidents of the contractual relationship

irrespective of race. Cf’ Malhotra v. Cotter & Co., 885

F.2d 1305, 1313 (7th Cir. 1989) (Posner, J.) (discussing

pre-1991 text of § 1981). Such a violation is actionable

under the statute because “[s]ection 1981 offers relief

when racial discrimination blocks the creation of a

contractual relationship, as well as when racial

discrimination impairs an existing contractual

relationship.” Domino’s Pizza, Inc. v. McDonald, 546

U.S. 470, 476 (2006) (emphasis added).

3. While the “impairment” of the contractual

relationship must of course be related to race, it is settled

that retaliation is a species of discrimination. As this

Court recently made clear in Jackson v. Birmingham

Board of Education, 544 U.S. 167, 173-74 (2005),

retaliation against a person because that person has

complained about unlawful discrimination is simply

“another form” of “intentional” and unlawful

discrimination. Although the Jackson Court. was

addressing sex (rather than race) discrimination in the

context of liability under Title IX (rather than § 1981),

its reasoning applies with full force here. “[RJetaliation

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

intentional response to the nature of the complaint: an

allegation of sex discrimination.” /d. at 173-74.

‘ Even apart from Jackson, the argument that § 1981

excludes retaliation claims does not respect the statute’s

expansive language prohibiting the “impairment” of the

right to equal treatment in contractual relationships

4

Ptc

10

irrespective of race. While the initial discriminatory act

must of course be “based on race,” see Patterson, 491

U.S. at 176-77; Domino’s Pizza, 546 U.S. at 474, nothing

in the text of § 1981 suggests that the concomitant act of

retaliation must itself be motivated by the complainant’s

race. It is sufficient that the retaliation responds to a

complaint of race discrimination, and in that sense, is

“based on race.” This establishes a nexus between the

subject matter of the complaint (race discrimination) and

the retaliatory act that flows from the nature of the

complaint (i.e., an act of retaliation “based on” a prior

complaint about race discrimination). Whether or not

other statutes addressing discrimination also encompass

retaliation, the broad and general language of § 1981

does so.

4. Petitioner and its amici are wrong to suggest that

construing § 1981 to encompass a claim of retaliation for

complaints about race discrimination necessarily

involves “implying” a non-existent right (Brief of Amicus

Curiae the Chamber of Commerce of the United States

(“Chamber of Commerce Amicus Br.”) at 17), “creating

a cause of action . . . out of whole cloth” (Pet. Br. at 42),

or “read[ing] into” the text of the statute a protection

that does not exist (Brief of Amici Curiae the Equal

Employment Advisory Council and National Federation

of Independent Business Legal Foundation (““EEAC

Amicus Br.”) at 7). To portray the issue in this manner

is merely to assume the answer to the very question

posed: whether § 1981, fairly construed, provides redress —

for retaliation based on an individual’s complaints about

11

race discrimination.* This mistaken view appears to stem

from the erroneous assumption that there must be

distinct causes of action for “discrimination” and

“retaliation,” and that the lack of the word “retaliate”

or its equivalent in § 1981 means that such a claim is not

cognizable under the statute. See, e.g., Pet. Br. at 12

(noting that “Congress never used the word ‘retaliation’

or a derivative thereof in its text”).

Whatever force such an argument might have in the

context of a statute like Title VII that expressly

addresses discrimination and retaliation in separate

statutory sections (compare 42 U.S.C. § 2000e-2(a), with

42 U.S.C. § 2000e-3(a)), it makes no sense in the context

of § 1981. Section 1981, which speaks broadly of the right

to equal treatment in all aspects of the contractual

relationship and proscribes the “impairment” of that

right, does not by its terms limit itself to a cause of action

denominated “discrimination.” While the text of § 1981

does not include the word “retaliate,” to accord

talismanic significance to that fact is to adopt a “magic

4. Petitioner’s claim finds no support in Supreme Court

cases generally characterizing the private cause of action under

§ 1981 (like the cause of action under its companion provision,

§ 1982) as an “implied” remedy. See Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 731 (1989); Cannon v. Univ. of Chi., 441 U.S.

677, 690, 698 nn.13, 23 (1979) (citing Sullivan v. Little Hunting

Park, 396 U.S. 229 (1969), as a case in which the Court “impl[ied]”

a cause of action under § 1982). Nothing in those cases suggests

that a claim for retaliation is distinctively nontextual or requires

a special act of “implication” beyond the original and

unchallenged judicial determination that an implied private right

of action exists to enforce the rights expressly created by §§ 1981

and 1982. A claim for retaliation stands on the same footing as a

claim for any other conduct prohibited by §§ 1981 and 1982.

12

words’ jurisprudence that departs from ordinary rules

of English usage.” Am. Nat'l Red Cross v. S.G., 505 U.S.

247, 265 (1992) (Scalia, J., dissenting, joined by

Rehnquist, C.J., and Kennedy and O’Connor, JJ.); cf

Gade v. Natl Solid Wastes Mgmt. Ass’n, 505 U.S. 88,

112 (1992) (Kennedy, J., concurring in part and

concurring in the judgment) (noting that the Court has

“never required any particular magic words” and its task

is to “enforce the ‘clear and manifest purpose of

Congress.””) (citation omitted).

Such a wooden approach to statutory construction

would be particularly incongruous when applied to a

Reconstruction-era statute that is phrased more in the

manner of a broad constitutional norm. In that respect,

§ 1981 is quite different from the detailed statutory

schemes found in many twentieth-century

antidiscrimination laws, including Title VII. Cf Jackson,

544 U.S. at 175 (noting that “Title VII ... is a vastly

different statute from Title IX. ... Title IX is a broadly

written general prohibition on discrimination, followed

by specific, narrow exceptions to that broad prohibition,”

while “Title VII spells out in greater detail the conduct

that constitutes discrimination in violation of the

statute.”). For this reason, this is an even easier case

than Jackson, which addressed Title [X’s proscription

of “discrimination” on the basis of sex. Title IX, while

not as detailed as Title VII, still reflects a modern and

specific style of statutory drafting. Section 1981, by

contrast, is cast in more sweeping terms. It would

therefore be inappropriate to look for the kinds of

specifics found in a statute like Title VII when

interpreting § 1981.

13

B. This Court’s Precedents Confirm That § 1981

Embraces Claims for Retaliation.

Reading § 1981 to provide redress for retaliation is

further supported by two decisions of this Court.

In Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), a

group of black employees asserted claims of race

discrimination, under § 1981 and Title VII, against both

their employer and their unions as collective bargaining

agents. In a portion of Justice White’s opinion joined by

five Members of the Court, the Court held that the unions

were liable under § 1981 for refusing to process

grievances that charged the employer with race

discrimination. Jd. at 668-69. Contending that “the

employer would ‘get its back up’ if racial bias was

charged,” the unions had effectively “categorized racial

grievances as unworthy of pursuit and, while pursuing

thousands of other legitimate grievances, ignored racial

discrimination claims on behalf of blacks.” Jd. at 668.

The Lukens Court agreed that such conduct

“intentionally discriminated against blacks seeking a

remedy” and held that § 1981, like Title VII, was violated

where a union rejected grievances alleging race

discrimination “solely because the claims assert racial

bias and would be very troublesome to process.”

Id. at 669. Significantly, the Court reached this

conclusion even though “there was no suggestion. . . that

the Unions held any racial animus against or denigrated

blacks generally,” id. at 668, and the refusal to process

grievances apparently stemmed from the nature of the

grievance (as about race discrimination) rather than from

the race of the complainant. See id. at 669 (quoting with

approval the district court’s statement that “[a] union

14

which intentionally avoids asserting discrimination

claims ... is liable under ... § 1981, regardless of

whether, as a subjective matter, its leaders were

favorably disposed toward minorities.””); see also id. at

681 (Powell, J., concurring in part and dissenting in part)

(“(njeither of the courts below specifically found that the

Unions were motivated by racial animus”).

Accordingly, Lukens demonstrates that, even under

the narrower (pre-1991) text of § 1981, obstruction of an

employee’s efforts to obtain redress for race

discrimination is actionable under § 1981, and that this

is so notwithstanding the fact that the obstruction is not

motivated by the employee’s race, but rather by the

racial nature of the employee’s complaint. Similarly, an

employer’s retaliation for an employee’s complaints

about race discrimination constitutes obstruction based

on the racial nature of the employee’s complaint.° Indeed,

given that such obstruction is actionable under § 1981

even when it takes the form of passive conduct (such as

the deliberate failure to respond to the grievances at

issue in Lukens), it surely must be actionable where, as

here, it also involves an affirmative act of alleged

retaliation — termination of the employee.

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969),

further buttresses the conclusion that § 1981’s cause of

action for discriminatory impairments of contractual

relationships encompasses claims for retaliation. There,

5. Like the unions’ failure to process employee grievances

about discrimination in Lukens, petitioner’s agent in this case

(district manager William Christensen) apparently failed to

conduct any investigation of respondent’s complaints about race

discrimination. J.A. 119.

15

the Court held that Sullivan, a white property owner,

could sue for retaliation under § 1981’s companion

provision (§ 1982) even though his underlying complaint

was that Freeman, an African-American person, had

been subjected to unlawful discrimination. Sullivan was

expelled from a corporation that operated recreational

facilities for the local community in retaliation for his

opposition to the corporation’s racially exclusive leasing

policy. The Court concluded that Sullivan could sue under

§ 1982 for his “expulsion for the advocacy of Freeman’s

cause” because, if that sanction could lawfully be

imposed, “then Sullivan is punished for trying to

vindicate the rights of minorities protected by § 1982”

and “[sJuch a sanction would give impetus to the

perpetuation of racial restrictions on property.”

Id. at 237.

Although Sullivan addressed § 1982 rather than

§ 1981, its holding is no less applicable here. See Tillman

v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431,

439-40 (1973) (noting in the context of discrimination

claims under § 1981 and § 1982 that, “(ijn light of the

historical interrelationship between § 1981 and § 1982,

we see no reason to construe these sections differently”)

(footnote omitted); accord Runyon v. McCrary, 427 U.S.

160, 171 (1976).

Taken together, these precedents, along with

Jackson, confirm that retaliation for complaints about

race discrimination is but a species of intentional

discrimination, and that it “impair{s]” the rights secured

by § 1981 to enjoy all the benefits of the contractual

relationship irrespective of race. Obstructing employees’

efforts to obtain redress for discrimination violates

16

§ 1981, and permitting unchecked retaliation against

efforts to vindicate the rights protected by the Act of

1866 “would give impetus” to the very discrimination

that the Act was designed to forbid, Sullivan, 396 U.S.

at 237.

C. Excluding Retaliation Claims from § 1981

Would Subvert the Goals of Congress in

Enacting, and Expanding the Scope of, the

Statute.

Not only do the text and precedent compel the

conclusion that the broad terms of § 1981 cover claims

for retaliation, but a contrary reading would subvert the

purposes of the legislation. The context surrounding the

initial enactment of § 1981, amplified by Congress’

explicit declarations of purpose in the legislation that

enlarged the statute’s reach in 1991, confirm Congress’

broad remedial goal in enacting the statute and its

intention to eradicate discrimination in contractual

relationships.

1. This Court has previously emphasized Congress’

intentions during the legislative debates over the

enactment of § 1981’s source, § 1 of the Civil Rights Act

of 1866, to give that statute real content and practical

effect. As the Court has described these debates, while

“much was said” in both the House and the Senate about

“eliminating the infamous Black Codes” that subjected

recently freed slaves to multiple disabilities, “like the

Senate, the House was moved by a larger objective —

that of giving real content to the freedom guaranteed

by the Thirteenth Amendment.” Jones v. Alfred H.

Mayer Co., 392 U.S. 409, 433 (1968) (emphasis added).

17

For example, Representative Thayer of Pennsylvania

noted that the bill that was to become the 1866 Act had

the object of “carry[ing] out and guarant[eeing] the

reality of [the Thirteenth Amendment]. It [was] to give

to it practical effect and force. It [was] to prevent that

great measure from remaining a dead letter upon the

constitutional page of this country.” Jd. at 433-34 (quoting

Cong. Globe, 39th Cong., Ist Sess. 1151).

Consistent with the broad remedial goal and

pragmatic focus of the original statute, Congress sought

to broaden the scope of § 1981 in 1991. In particular,

Congress explicitly stated its findings in Public Law 102-

166 that “additional remedies under Federal law are

needed to deter unlawful harassment and intentional

discrimination in the workplace” and “legislation is

necessary to provide additional protections against

unlawful discrimination in employment.” Pub. L. 102-

166, § 2, 105 Stat. 1071. In a similar vein, the law states

that among the purposes of the 1991 amendments were

“to provide appropriate remedies for intentional

discrimination and unlawful harassment in the

workplace” and “to respond to recent decisions of the

Supreme Court by expanding the scope of relevant civil

rights statutes in order to provide adequate protection

to victims of discrimination.” /d., § 3; see also Rivers v.

Roadway Express, Inc., 511 U.S. 298, 309 (1994).

These statements by the legislative branch manifest

an unequivocal intent to buttress the remedies

previously recognized under § 1981, and to protect

broadly against the impairment of contractual

relationships, including employment, on the basis of race.

18

2. As Justice Marshall observed long before the

passage of the Civil Rights Act, “[s]tatutes ... are not

to be construed so strictly as to defeat the obvious

intention of the legislature.” United States v. Wiltberger,

18 U.S. 76, 95-96 (1820); see also N. Star Steel Co. v.

Thomas, 515 U.S. 29, 37 (1995) (Scalia, J., concurring in

judgment) (considering, where Congress had not

prescribed a limitations period to govern a cause of

action, whether application of a state statute of

limitations “would frustrate the purposes of the federal

enactment”). Here, exclusion of retaliation claims from

the broad compass of § 1981 would thwart the purpose

of the statute.* Such a reading should therefore be

avoided.

The promise of equal treatment in the context of

contractual relationships would be nullified if employers

could retaliate with impunity against employees who

lodge grievances about race discrimination. Without an

apparatus to redress and deter retaliation, not only

would the core antidiscrimination imperative of § 1981

become a dead letter in the individual case, but at a more

fundamental level, the very system would “unravel,” as

this Court noted in the analogous context of sex

discrimination in violation of Title IX. See Jackson, 544

U.S. at 180 (“Reporting incidents of discrimination is

integral to Title IX enforcement and would be

6. Disregard of Congress’ purpose was no more sanctioned

around the time of the enactment of the Civil Rights Act in 1866

than it is now. See, e.g., Anthony v. Butler, 38 U.S. 423, 426 (1839)

(where the “statute [is] remedial in its character, and [is] intended

by the legislature to remedy the mischief occasioned by the rule

of law as expounded by the Courts,” “(t]he construction of such

a statute should be liberal, to prevent the mischief”).

19

discouraged if retaliation against those who report went

unpunished. Indeed, if retaliation were not prohibited,

Title IX’s enforcement scheme would unravel.”). This

unraveling effect would be particularly pronounced in

the context of racial harassment at the workplace and

racially hostile work environments, which are forms of

discrimination that are often insidious and difficult to

detect. Accordingly, it is particularly important for

employees, who are uniquely well positio.ed to identify

and report such discrimination, to feel free to report it

to theiremployer. Individuals — particularly those

who are not protected by other statutes such as Title

VII — will! likely be chilled into silence by a regime that

tolerates retaliation. Indeed, a significant body of social

science literature confirms that ’the threat of retaliation

functions as a powerful silencer” and the “understanding

of retaliation that emerges from this literature

demonstrates the need for strong legal protection from

retaliation against persons who identify and challenge

inequality.” Deborah L. Brake, Retaliation, 90 Minn. L.

Rev. 18, 24-25, 64 & n.75 (2005) (citing social science

data); see also Cheryl R. Kaiser & Brenda Major,

A Social Psychological Perspective on Perceiving and

Reporting Discrimination, 31 Law & Soc. Inquiry 801,

818 (2006) (noting “[e)xperimental research”

substantiating fears expressed by those alleging

discrimination that they will suffer retaliation).

Absent meaningful protection against reprisal,

unlawful acts of discrimination will never come to light.

And absent an effective deterrent mechanism in the form

of liability for retaliation in the many cases where

Title VII does not provide relief, employers and other

parties to contracts who engage in unlawful

20

discrimination will have no incentive to change their

ways. Quite the opposite, as the opinion below pointed

out: “To hold that section 1981 allows unfettered

retaliation ... would create perverse incentives for the

employer to fire complainants as quickly as possible to

thereby limit (or entirely avoid) damages under section

1981.” J.A. 144.

Reversal of the lower court’s conclusion that § 1981

provides redress for retaliation would undermine the

robust remedial scheme that § 1981 was designed to

create. Without such protection, the statute would

become in many cases little more than a precatory

statement of a lofty ideal, but an ideal without real

content. Such a reading of the statute — so

fundamentally at odds with its purpose — cannot be

correct.

II. SECTION 1981 SHOULD NOT BE CURTAILED

BECAUSE OF OVERLAP WITH TITLE VII

Petitioner and its amici are mistaken in suggesting

that the court of appeals’ reading of the statute will cause

plaintiffs to circumvent the strictures of Title VII —

including, in particular, its statute of limitations and

requirement to exhaust administrative remedies before

filing suit in court — and that § 1981 should be curtailed

to avoid that possibility. Pet. at 16; EEAC Amicus Br. at

16-17; Chamber of Commerce Amicus Br. at 21. First,

as this Court has repeatedly recognized, Congress

specifically intended to create partially overlapping

schemes of liability under § 1981 and Title VII, and the

coexistence of those complementary schemes is firmly

embedded in our legal tradition. Second, the lower

21

court’s reading of § 1981 does not create any conflict

between § 1981 and Title VII in any event, because the

two regimes are not coextensive. Third, because Title

VII affords plaintiffs many advantages, there is no

reason to believe — and no evidence to suggest — that

plaintiffs will generally bypass Title VII in favor of

§ 1981.

A. Congress Intended to Create Partially

Overlapping Schemes of Liability Under

§ 1981 and Title VII.

Petitioner and its amici urge the Court to construe

§ 1981 narrowly to foreclose claims for retaliation based

on the policy argument that the lower court’s contrary

reading “dilutes Title VII” (Pet. Br. at 39), improperly

allows plaintiffs to “bypass” Title VII’s enforcement

mechanism (EEAC Amicus Br. at 17) and “undermine[s}”

Title VII's conciliation process (Chamber of Commerce

Amicus Br. at 24). Unsurprisingly, these and similar

arguments have been made numerous times before and,

just as many times, they have been rejected by this

Court.

Johnson provides a paradigmatic example of the

Court’s repeated recognition and approval of the

partially overlapping schemes of liability that the

legislative branch has deliberately created. There, the

Court held that “the remedies available under Title VII

and § 1981, although related, and although directed to

most of the same ends, are separate, distinct, and

independent,” notwithstanding the benefits of the

22

conciliation procedure contemplated by Title VII.

421 U.S. at 461. As the Court explained:

Despite Title VII’s range and its design as a

comprehensive solution for the problem of

invidious discrimination in employment, the

aggrieved individual clearly is not deprived of

other remedies he possesses and is not limited

to Title VII in his search for relief.

Id. at 459 (citation omitted). Indeed, the Johnson Court

noted evidence of Congress’ intention that the remedial

schemes under § 1981 and Title VII exist side by side

and “augment each other” in such a way that they “are

not mutually exclusive.” /d. at 459 (quoting H.R. Rep.

No. 92-238, at 19 (1971), 1972 U.S.C.C.A.N. 2137, 2154).

The Court, moreover, pointed out that, in considering

the Equal Employment Opportunity Act of 1972, the

Senate had specifically rejected an amendment that

would have deprived a claimant of any right to sue under

§ 1981 in lieu of an exclusive remedy under Title VII

and the Equal Pay Act. Jd. at 459 (citing 118 Cong. Rec.

3371-73 (1972)); see also Runyon, 427 U.S. at 175 n.11.

In Patterson, the Court again was asked to curtail

the reach of § 1981 based on the argument that the

statute “frustrates the objectives of Title VII” when

applied to contracts of employment and “undermines

Congress’ detailed efforts in Title VII to resolve disputes

... through conciliation rather than litigation as an initial

matter.” Patterson, 491 U.S. at 173-74. Rejecting these

calls, the Patterson Court noted that “there is some

necessary overlap between Title VII and § 1981, and...

23

where the statutes do in fact overlap we are not at liberty

‘to infer any positive preference for one over the other.”

Id. at 181 (quoting Johnson, 421 U.S. at 461).”

These cases foreclose petitioner’s argument that

§ 1981 must be read narrowly because, in effect,

deference to Title VII’s administrative scheme “trumps”

the remedies provided by § 1981. Accordingly, even if

the lower court’s reading of § 1981 did undermine

Title VII’s regime (which, as shown below, it did not),

petitioner’s argument should be rejected for two reasons.

First, stare decisis compels adherence to the

longstanding precedent, firmly embedded in our legal

culture, establishing that any overlap between the two

schemes is neither problematic nor inadvertent. See

Dickerson v. United States, 530 U.S. 428, 443 (2000)

(citing “‘wide acceptance in the legal culture” as a reason

to avoid overruling precedents) (quoting Mitchell v.

United States, 526 U.S. 314, 331-32 (1999) (Scalia, J.,

dissenting)). Indeed, the Court in Patterson noted that

“({cjonsiderations of stare decisis have special force in

the area of statutory interpretation, for here, unlike in

the context of constitutional interpretation, the

legislative power is implicated, and Congress remains

free to alter what we have done.” Patterson, 491 U.S. at

7. Although the Court went on to note its “reluctan[ce]. . .

to read an earlier statute broadly where the result is to

circumvent the detailed remedial scheme constructed in a later

statute,” Patterson, 491 U.S. at 181, that statement provides no

support for a limiting construction of § 1981 here because, after

Patterson — and long after the passage of Title VII in the Civil

Rights Act of 1964 — Congress deliberately expanded the reach

of § 1981 in the amendments to the statute in 1991. See pp. 5-6,

17, supra.

“—

|,

24

172-73. And, second, the question of whether or not the

partial overlap reflects sound policy is ultimately an issue

for Congress, not for the courts.

B. Reading § 1981 To Encompass Claims for

Retaliation Does Not Undermine Title VII.

In any event, the conclusion that § 1981 covers claims

for retaliation presents no conflict between the two

remedial schemes because “[sJection 1981 is not

coextensive in its coverage with Title VII.” Johnson, 421

U.S. at 460. Section 1981 reaches a variety of claims that

Title VII does not reach (and which might go unremedied

without a retaliation claim under § 1981), such as claims

against businesses with fewer than fifteen employees.

See Rivers, 511 U.S. at 304 n.3 (“Even in the employment

context, § 1981’s coverage is broader than Title VII’s,

for Title VII applies only to employers with 15 or more

employees, see 42 U.S.C. § 2000e(b), whereas § 1981 has

no such limitation.”). Indeed, in 1990, a Senate report

noted that § 1981 is “the only federal law banning race

discrimination applicable to the 3.7 million firms with

fewer than 15 employees.” H.R. Rep. No. 101-315, at 12

(1990).

Moreover, while Title VII covers discrimination and

retaliation only in the context of employment, 42 U.S.C.

§§ 2000e-2(a) & 2000e-3(a), § 1981 covers discrimination

and retaliation in the context of all contracts. 42 U.S.C

§ 1981(a), (b); see also Rivers, 511 U.S. at 304 (noting

that because § 1981 “covers all contracts,” a “substantial

part” of its sweep “does not overlap Title VII”)..

Because Title VII is limited to discrimination in

employment, it affords no protection from retaliation

|

!

:

25

against independent contractors, see, e.g., Danco Inc. v.

Wal-Mart Stores, Inc., 178 F.3d 8, 13 (1st Cir. 1999), and

a reading of § 1981 that forecloses claims for retaliation

in this context would accordingly leave such persons

without a federal remedy if they suffer reprisal as a

result of complaining about race discrimination. In other

areas, such as the First Amendment context, the Court

has recognized the need to protect independent

contractors — like employees — from retaliation. Even

though the text of the First Amendment contains no

mention of the word “retaliation,” this Court has not only

extended its protections to public employees who suffer

retaliation for the exercise of their free speech rights,

see Perry v. Sindermann, 408 U.S. 593, 597 (1972), but

also to independent contractors who provide services or

goods to the government and who likewise suffer such

retaliation. See Bd. of County Comm’rs v. Umbehr,

518 U.S. 668, 679 (1996) (failure to afford such protections

to independent government contractors would leave

their rights “unduly dependent on whether state law

labels a government service provider’s contract as a

contract of employment or a contract for services”).

Amici’s argument that Title VII should be an

employee’s exclusive remedy for retaliation because it

affords the employer “prompt notice” of a potential claim

(EEAC Amicus Br. at 18; Chamber of Commerce Amicus

Br. at 24) amounts to a paradoxical proposition. When

an employer fires an employee for notifying it of race

discrimination, it can hardly maintain that it is entitled

to prompt notice of a subsequent retaliation claim that

is predicated on the very grievance that caused it to

retaliate in the first place.

26

C. There is No Reason to Believe That Plaintiffs

Will Bypass Title VII for § 1981.

Finally, the suggestion that upholding the lower

court’s conclusion will cause plaintiffs to bypass the

strictures of Title VII, and that Title VII will be rendered

a nullity as a result, is implausible and not empirically

supported. While petitioner notes statistics showing a

rise in retaliation claims wnder Title VII over the last

decade, it points to no evidence suggesting a significant

rise in the filing of § 1981 claims alleging retaliation for

complaints about race discrimination in the wake of

decisions by the courts of appeals, including the Seventh

Circuit, concluding that such claims are cognizable under

§ 1981. See Pet. Br. at 39; see also Chamber of Commerce

Amicus Br. at 23.

In fact, there is no reason to anticipate that this

Court’s confirmation of a right to seek redress for

retaliation under § 1981 would render Title VII

redundant, because there are important advantages to

the employee of Title VII’s administrative apparatus.

For example, the employee many benefit from an

investigation conducted by the Equal Employment

Opportunity Commission, which — armed with broad

investigative powers, including the power to issue

subpoenas, see 42 U.S.C. § 2000e-9 — may unearth

evidence the employee would never otherwise uncover.

That is especially so if the employee is proceeding pro

se, as was respondent at the outset of this litigation. The

employee may also benefit from the Commission’s

decision to commence a civil proceeding itself against

the employer, see 42 U.S.C. § 2000e-5(f)(1). Moreover,

the employee may assert a Title VII claim on multiple

27

grounds in addition to race, including, “color, religion,

sex, or national origin,” 42 U.S.C. § 2000e-2. Given these

benefits, in many situations, “the administrative route

may be highly preferred over the litigatory [one].”

Johnson, 421 U.S. at 461.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

ANDREW M. Cuomo

Attorney General of the

State of New York

BaRBARA D. UNDERWOOD*

Solicitor General

BENJAMIN N. GUTMAN

Deputy Solicitor General

PETER KARANJIA

Special Counsel to the

Solicitor General

120 Broadway, 25th Floor

New York, NY 10271

(212) 416-8020

* Counsel of Record

TERRY GODDARD

Attorney General

State of Arizona

1275 West Washington

Phoenix, Arizona 85007

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

55 Elm Street

Hartford, Connecticut 06106

Lisa MADIGAN

Attorney General

State of Illinois

100 West Randolph Street

Chicago, Illinois 60601

THOMAS MILLER

Attorney General

State of Iowa

Hoover Building, 2nd Floor

1305 East Walnut Street

Des Moines, Iowa 50319

Douc.as F: GANSLER

Attorney General

State of Maryland

200 Saint Paul Place

Baltimore, Maryland 21202

MARTHA COAKLEY

Attorney General

Commonwealth of Massachusetts

One Ashburton Place

Boston, Massachusetts 02108

JEREMIAH W. (Jay) NIXON

Attorney General

State of Missouri

Supreme Court Building

207 West High Street

Jefferson City, Missouri 65101

CATHERINE CorTEZ Masto

Attorney General

State of Nevada

100 North Carson Street

Carson City, Nevada 89701

ANNE MILGRAM

Attorney General

State of New Jersey

Hughes Justice Complex

PO. Box 080

Trenton, New Jersey 08625

Marc DANN

Attorney General

State of Ohio

30 East BRoaD STREET

17th Floor

Columbus, Ohio 43215

29

Harpy MYErs DARRELL V. McGraw, JR.

Attorney General Attorney General

State of Oregon State of West Virginia

1162 Court Street, N.E. Office of the Attorney General

Salem, Oregon 97301 State Capitol, Room 26-E

Charleston, West Virginia 25305

WILuiaM H. SorRELL

Attorney General

State of Vermont

109 State Street

Montpelier, Vermont 05609

Attorneys for Amici Curiae