# 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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~_ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0536%3A16. Public record. Not legal advice.