CBOCS West v. Humphries

From ScotusWiki

Jump to: navigation, search

Authorship: Lyle Denniston

Contents

[edit] Briefs and Documents

Docket: 06-1431

Argument Transcript

Merits briefs

Amicus briefs

Certiorari stage

[edit] Pre-Argument Articles

[edit] Argument Preview

CBOCS West Inc. v. Humphries takes the Court on an excursion back to the Civil War era, to Congress’ first major civil rights law – the Civil Rights Act of 1866. The case raises an issue that remains unresolved in the Act’s nearly century and a half of history: does the Act’s first section, now codified as 42 U.S.C. 1981, guaranteeing equality in the right to make a contract, forbid reprisals against an individual who complains of discrimination against others. In short, the case asks whether retaliation is itself a form of forbidden discrimination when contracting rights are at stake. It is an issue that arises most often in workplace cases, but the Act seeks to assure equality in any form of contract so the retaliation issue potentially reaches much more widely.

Background

As American bound up its wounds from the Civil War and was just recovering from the shock of President Abraham Lincoln’s assassination, the 39th Congress went to work to fashion an uneasy peace – “the Reconstruction” of a united America, a part of which was to assure the freed slaves a chance to enter civil society as full participants. The Civil Rights Act of 1866 sought to assure full equality to all races, in the ordinary pursuits of life – to work, to file lawsuits, to enter into legal relationships including contracting, to rent, buy or sell property, to inherit property from forebears, and, generally, to be treated alike under the law. In 1870, most of the promises of equality were split off into what would become Section 1981, and the guarantees of equality in renting, acquiring or inheriting property would become Section 1982. The CBOCS case involves only Section 1981, and, in particular, the protection of an equal right “to make and enforce contracts.”

Congress found its authority to pass the 1866 Act in the newly ratified Thirteenth Amendment, ending slavery. Stubborn, often violent resistance to the entry of freed blacks into the American mainstream mounted after that Amendment was put into the Constitution. And the Civil Rights Act was Congress direct response, to the so-called “black codes” and other acts of harsh discrimination against blacks. The Act swept so broadly in its assurances of equality that it came to be understood as a blueprint for the Fourteenth Amendment in 1868. (It was after the Fourteenth Amendment was placed into the Constitution that, relying upon it, a later Congress reenacted the 1866 Act. The use of Fourteenth Amendment powers in the reenactment gave rise to an impression – one that lasted until 1976 – that Sections 1981 and 1982 may only apply to actions of state government, not to those of private individuals or groups, since the Fourteenth Amendment’s equality guarantee only applies to state action. There has been no doubt, since the 1976 Supreme Court ruling in Runyon v. McCrary, that these sweeping civil rights laws apply to private actions, too.

Section 1981’s guarantee of equality in making and enforcing contracts is a popular basis for lawsuits involving racial or ethnic discrimination in the workplace. Lawyers who specialize in employment law – both those who represent workers and those who represent employers – agree that 1981 is a ready tool for attacking on-the-job discrimination. There is no doubt that it protects a worker who is discriminated against in his or her own job situation because of his or her race or ethnic background. But, increasingly, Section 1981 workplace cases are focusing on claims of “retaliation” – that is, reprisals allegedly carried out by employers because workers have complained about biased treatment of other workers or biased conduct toward workers in general. Before the early 1950s, a claim for retaliation in the workplace was unheard of. The first mention of the concept in a Supreme Court decision came in 1972. That has changed markedly, so that now, nearly half of all Section 1981 claims are said to involve a retaliation claim. For years, most retaliation claims filed with the U,S. Equal Employment Opportunity Commission have come under an explicit retaliation clause in Title VII of the 1964 civil rights law, prohibiting race, sex and other forms of discrimination on the job Section 1981 claims do not go to the EEOC.

The two laws are quite different. Under Title VII, a worker must first take a complaint to EEOC, that agency is to engage in efforts to work out the situation, there are tight limits on filing such claims at EEOC and later in court, and there are limits on damages that a worker can win. Section 1981 is free of most of those restrictions: the worker goes directly to federal court to seek relief.

The worker involved in the CBOCS case, Hedrick G. Humphries, a black man who was fired from his job, allegedly as a retaliatory gesture, actually began his case under both Title VII and Section 1981. But his Title VII claims were dismissed for procedural defects, and his case then proceeded solely as a Section 1981 claim. A District Court ruled that Section 1981 does not cover retaliation claims. The Seventh Circuit Court, however, disagreed, sending the case back for a trial on whether Humphries was fired because – as he claims – he had complained about the firing of a black employee who was a food server.. He also had complained earlier about a supervisor’s remarks to white workers that he was there to take care of their interests.

The company that operates Cracker Barrel restaurants, CBOCS West Inc., then appealed to the Supreme Court.

Petition for Certiorari

In its appeal filed on April 25 of last year, the restaurant chain raised a single question: “Is a race retaliation claim cognizable under 42 USC Sec. 1981?” The company, noting that Section 1981 does not include the word “retaliation,” argued that there is a basic difference in the concept of a firing based on retaliation and one based on discrimination. A retaliatory discharge, it said, is motivated by the worker’s complaint, not by his or her race. If the worker had not complained, it added, there would have been no firing – whether the worker is white or black. By contrast, a discriminatory firing is based explicitly on that worker’s race; if it were not for the worker’s race, there would have been no discharge. The petition also argued that the lower courts have “struggled mightily” over the scope of Section 1981, and that the Supreme Court has not helped matters by rulings in 1969, 1989 and 2005.

Humphries opted initially not to respond to the petition, but the Court on May 17 asked for a response. Humphries then contended that the Court essentially settled the matter in two decisions – one in 1969 in Sullivan v. Little Hunting Park, allowing a retaliation claim under the 1866 Act’s guarantee of equality in property transactions (under Section 1982, the original companion to 1981), and in 2005, in Jackson v. Birmingham Board of Education, allowing a retaliation claim for complaining of sex bias under Title IX of the 1972 civil rights law. His response also argued that Congress, in passing the Civil Rights Act of 1991, left no doubt that Section 1981 was to be read broadly to include all aspects of a contractual relationship – including, he said, protection against retaliation.

The Court granted review on Sept. 25 in the opening grants for the new Term. The case is now scheduled for oral argument on Wednesday, Feb. 20. It is the only case scheduled for argument that day. Michael W. Hawkins of Cincinnati will argue for CBOCS, and Cynthia M. Hyndman of Chicago will argue for Humphries. Hyndman will divide her time with U.S. Solicitor General Paul D. Clement, since the federal government is supporting Humphries’ right to bring a retaliation claim.

Merits Briefs

The restaurant chain puts heavy emphasis in its merits brief on the argument that what is at stake is the need for the judiciary to respect the text of laws that Congress passes, not to undertake to “legislate” on their own. The case, it contends, is not about taking a remedy away from Humphries, or anyone else who is retaliated against for complaining about racial bias in the workplace. That remedy is clearly available under Title VII. Because, in 144 years, Congress has not once put a retaliation right into Section 1981, while doing so explicitly in other federal civil rights laws, CBOCS asserts that no such right exists in 1981. This case, it thus says, “:is about respect for and proper construction of the laws Congress, as the elected representatives of the people, enacts….The Seventh Circuit has, in effect, drafted, parsed, and executed legislation without concern for the democratic norms embodied in the Constitution, particularly the separation of powers.”

Its brief also argues, for policy reasons, that Section 1981 lawsuits “will end up clogging the judicial system” if retaliation claims are allowed, undercutting the mechanisms that Congress expressly created under Title VII to deal with such claims. It also suggests that the Circuit Court misread the Supreme Court’s prior opinions, and misinterpreted the legislative history of both the 1866 Act itself and Congress’ civil rights enactments in 1991.

The written argument for Humphries suggests that Section 1981 is, indeed, different from Title VII, but in the sense that 1981 uses operative language describing the rights it protects, but does not enumerate what conduct violates those rights – as does Title VII. Congress, the brief goes on, intended to have overlapping remedies in the two laws.

As a general policy matter, the Humphries brief says, “the existence of a right provides the right-holder protection not only from direct obstruction of the right, but also from reprisals for exercising that right.” The brief interprets the original enactment of the 1866 Act as intended to deal with “widespread retaliation against freed slaves who attempted to assert their new rights” under the Thirteenth Amendment. Thus, the brief concludes, “Section 1981’s protections against reprisal for exercising statutory rights are firmly rooted.”

Backing CBOCs’ position, the U.S. Chamber of Commerce echoes the restaurant chain’s arguments that anti-retaliation concepts developed only long after Section 1981 was enacted, and that the law not only does not expressly mention retaliation, but actually is focused solely on protection of a worker’s race, not his or her conduct. A combined brief from the Equal Employment Advisory Council and the National Federal of Independent Business Legal Foundation, notes that virtually every other federal non-discrimination law – those protecting against bias based on race, gender, religion, age, disability, and family status – include specific language protecting against firing or other discrimination against someone who has opposed some conduct made unlawful by those statutes.

Supporting Humphries, the federal government relies on a variety of arguments, the most novel of which is that this case actually is about stare decisis – the need to respect two precedents that did not deal directly with Section 1981 (Sullivan, involving Section 1982, and Jackson, involving Title IX). “Considerations of stare decisis have their greatest force in the areas of statutory interpretation, and petitioner has supplied no basis for the Court to deviate from the statutory holdings of Sullivan and Jackson in the analogous setting here,” the brief asserts.

In an argument based on statutory construction, the Solicitor General says there was no need for a specific mention of retaliation in Section 1981. Other civil rights laws, more detailed in form, set up causes of action, the brief says, but Section 1981 belongs in a narrow group of statutes on anti-discrimination that “are so abbreviated that any cause of action, for any kind of prohibited activity, must be inferred.”

The government brief also relies upon the 1991 civil rights law as resolving any doubts about the issue. And, for policy reasons, the brief says, “absent protection against retaliation, the underlying discrimination prohibited by such statutes could go unremedied.” The brief also argues that Section 1981 is a necessary source of remedy for retaliation claims, because many employers are exempted from Title VIII and, moreover, Section 1981 covers all contracts, not just those involving employment relationships.

Four-dozen historians and other scholars join Humphries’ side of the case, seeking to put the 1866 law in the broader context of what was happening during the time of the 39th Congress. Reprisals and fear of reprisals, that brief says, played an “integral role” in seeking to withhold from the freed slaves their right to enter into and enforce contracts.

Fourteen states also join in arguing the importance of Section 1981 in attacking retaliation. The National Employment Lawyers Association argues how frequently retaliation claims are now being advanced in 1981 cases. That group also contends that the Court would have to overrule both Sullivan and Jackson in order to hold that retaliation is beyond the reach of Section 1981.

[edit] Oral Argument Recap

A number of Supreme Court Justices — at least a strong nucleus of a potential majority — on Wednesday showed fairly strong attachment to an idea that definitely would reduce the chances that an old civil rights law could be used to protect workers against a modern form of punishment at work. In the oral argument on CBOCS West v. Humphries (06-1431), those Justices implied that the Court could prevent claims of retaliation for complaining of workplace racial bias, under a law that dates to 1866, by simply concluding that the law gives no one the right to sue to raise such an issue. The Justices who seemed fascinated with denying a “cause of action” for retaliation under so-called “Section 1981″ said they could find nothing in that statute to permit such a lawsuit.

As the CBOCS case was prepared for the Court’s review, the focus was entirely elsewhere than on whether anyone has a right to sue under Section 1981; that right, apparently, was thought to be resolved long ago. Instead, the petition and briefs focused on whether the Court’s past precedents on other civil rights laws settled that reprisals for claiming violations of rights had to be barred in order to make the rights effective, on whether the words of Section 1981 would support a retaliation claim, and on whether public policy would support such a claim even if it is not explicitly mentioned in the language of that 142-year-old statute.

But, as the oral argument developed on Wednesday, Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Antonin Scalia returned, repeatedly, to the issue of whether the Court should now rule that — whatever the words of the law might convey about the specific rights at stake — no one is given the option of filing a lawsuit focused on a claim of retaliation as punishment for complaining of workplace discrimination.

Actually, it was Justice Stephen G. Breyer who first raised that issue. He did so in quizzing CBOCS’ lawyer, Michael W. Hawkins of Chicago, about whether Section 1981 could be read to imply protection against reprisals. Hawkins kept insisting that the law’s plain language does not embrace retaliation claims. But, Breyer asked, does it say that there is a right to sue at all to enforce Section 1981? Hawkins said the Court had implied that there was a right to sue. So, said Breyer, “if they’re implying a right of action from the statute, why wouldn’t courts also imply those rights of action necessary to make the statute effective?” Hawkins’ response was to focus on the language of the statute.d

That stirred Justice Scalia to pursue the point. “Mr. Hawkins,” he began, “don’t we have a whole line of recent cases which say we have set our face against implying causes of action?….A whole bunch of recent cases saying we’re not going to do that any more…We used to do it, bu we said we’re not going to do it anymore.” Hawkins readily and repeated agreed.

The Chief Justice immediately picked up on the point, noting that the Court more recently had foresworn implying rights to sue.

The point, however, took on greater prominence when the lawyers defending retaliation claims took to the podium. As Chicago attorney Cynthia H. Hyndman was arguing that Congress had made it clear it wanted such claims available under Section 1981, Justice Kennedy retorted: “Your argument is that we should create a cause of action [for retaliation] in order to make this effective. I understand that argument. I think the Court’s cases stand against it…[and] you’re admitting that nothing in the words of the statute as amended help you.” As the exchange went on, it was not entirely clear whether Kennedy and Hyndman were debating over whether retaliation was or was not covered because that word is not in the law, or over whether the law made no provision to sue to make such a claim.

But shortly afterward, the Chief Justice returned the focus explicitly to the question of a right to sue. Citing one of the Court’s most prominent modern rulings declining to allow a right to sue under a federal civil rights law (Alexander v. Sandoval — a case not mentioned in the parties’ briefs here), Roberts noted the trend away from allowing implied rights to sue.

Kennedy summed up where he, the Chief and Scalia had been focusing, telling Hyndman: “What I’m taking away from the argument is that if I were to write this opinion in your favor, I would have to say that it’s necessary to imply a cause of action prohibiting retaliation in order to make these other words effective. And that seems to me a very limited argument and a very difficult argument for you to prevail upon…You want to add a new term. You can’t use the existing terms to say that there is a cause of action…that helps your client.”

The right-to-sue question also figured importantly in the Justices’ exchanges with U.S. Solicitor General Paul D. Clement, who was there to support inclusion of retaliation claims under the old law. After Clement said the Court had previously inferred a right to sue under Section 1981, Scalia commented: “We inferred that cause of action in the bad old days, when we were inferring cause of action all over the place.” Kennedy asked: “Are you asking us to infer, to find implied in the words a cause of action against retaliation?” Clement replied: “No. We’re asking you to interpret the cause of action that exists to include retaliation.” Kennedy said he could find no words in the law to support that interpretation.

The Court is expected to decide the CBOCS case before late spring.

[edit] Opinion Analysis

Kevin Russell wrote the following analysis of the CBOCS decision in a post for SCOTUSblog, in which he also discussed a second case, Gomez-Perez v. Potter, which also pertained to retaliation in the workplace.

I don’t really know of anyone (with the possible exception of defendants and their lawyers in particular cases) who thinks that it should be legal for someone to retaliate against an individual who seeks to enforce their federal civil rights. Congress often expressly proscribes such conduct in modern civil rights (and other) statutes. But sometimes it doesn’t. And it didn’t do so in some of the seminal civil rights statutes passed in the wake of the Civil War. Why not? In all honesty, it is probably (at least with respect to modern statutes) because Congress didn’t think about it. But that nonetheless leaves courts with a tricky question - do the statutes not mentioning retaliation nonetheless proscribe it?

The Court confronted that question in two cases decided yesterday: CBOCS v. Humphries, No. 06-1431, which construed the Civil War-era 42 U.S.C. § 1981, and Gomez-Perez v. Potter, No. 06-1321. which interpreted the federal-sector provision of the Age Discrimination in Employment Act, passed in 1974. (Disclosure: I consulted with respondent’s counsel in CBOCS).

[edit] I. Introduction

There was a time when courts would have felt free to judicially imply an anti-retaliation right in order to make a statutory regime effective, in the same way that they implied private rights of actions and damages remedies. But no more. At the oral argument in CBOCS, Justice Scalia referred to those times as the “bad old days” and asked his former law clerk, Solicitor General Paul Clement, when those days ended; ever quick on his feet, Clement answered “when you got on the Court, Mr. Justice Scalia.”

Whatever the exact date, there is no question that the current Court has no appetite for openly inventing rights and implying remedies. Indeed, in his opinion for the Court in Gomez-Perez case, Justice Alito rejected the argument that a prior case - Jackson v. City of Birmingham - had found an anti-retaliation right under Title IX only because it was construing a previously-implied private right action (i.e., one created back in the “bad old days”) and, therefore, had greater leeway to base its decision on its own policy views of what made sense.

So the right against retaliation under Section 1981 and the ADEA had to be found in the text of their respective statutes. But the statutes themselves, in slightly different terms, address only discrimination, not retaliation per se. The question in both cases thus became whether prohibiting discrimination on the basis of age or race should be read to include a prohibition against retaliating against those who complain about age or race discrimination. The answer to that question, it turns out, was derived in both cases chiefly from prior decisions construing other antidiscrimination statutes, decisions that I will wager (and the defendant in CBOCS did wager its case on) that a majority of the present Court would have decided differently today. Thus the critical importance of stare decisis in yesterday’s decisions.

The second axis of disagreement - which is responsible for the different line-ups in the two cases - was over what to make of the fact that Congress has expressly forbidden both discrimination and retaliation in related statutes. The short answer, it turns out, is “not much.”

[edit] II. Cracker Barrel and the Scope of Stare Decisis

In CBOCS, a black manager at a Cracker Barrel restaurant filed suit under Section 1981, alleging he was fired after complaining about discrimination against other black mid-level managers. Section 1981, passed during Reconstruction, provides that “[a]ll persons within the jurisdiction of the United States shall have the same right to make and enforce contracts … as enjoyed by white citizens.” CBOCS argued to the Court that this language prohibits adverse treatment of citizens on the basis of race but that retaliating against someone who has complained about discrimination is not race discrimination within the meaning of the Act.

Justice Breyer, writing for the Court, concluded otherwise, expressly basing the decision “in significant part upon principles of stare decisis.” He explained that in Sullivan v. Little Hunting Park, Inc., 369 U.S. 229 (1969), the Court had construed the nearly identical language of the statute’s companion provision - Section 1981, which prohibits discrimination with respect to property rights - as prohibiting retaliation. In Sullivan, a white property owner was kicked out of his property association after complaining that the association wouldn’t allow a black person, who’d bought the plaintiff’s property, to use the association’s private park. Justice Breyer acknowledged that this ruling wasn’t entirely clear at the time - there was an argument that Sullivan simply held that a white person has standing to raise the anti-discrimination rights of a black person. But the Court had rejected that reading of Sullivan a couple terms ago in Jackson v. Birmingham Board of Education (2005). And because Section 1981 and Section 1982 were passed at the same time (in fact, they are separate codifications of parts of the same provision of the Civil Rights Act of 1866) and directed at the same general object, the Court felt compelled to give the same construction to both provisions.

As Justice Thomas notes in dissent, the Court does little to defend its decision on textual grounds. Indeed, Justice Breyer’s decision seems to go out of its way to explain that it is grounded on its adherence, under stare decisis, to the Court’s prior decisions construing similar text, as opposed to the Court’s own construction of the text of Section 1981 itself.

But what kind of stare decisis are we talking about here? The Court is not simply adhering to a prior on-point decision, as it would had this case been about the scope of Section 1982. Instead, the majority felt bound by the rationale of decisions construing closely-related statutes, unwilling to create the uncomfortable circumstance in which related statutes with similar texts are read quite differently, principally as a consequence of when in the Court’s history the issue came before it.

This is a tricky business. As the Chief Justice noted at oral argument, it gives rise to a tension between the need to reach consistent results in closely-related cases and the desire to apply a consistent interpretive methodology across decisions. “Under principles of stare decisis,” the Chief asked, “which body do we follow, the earlier case interpreting 1982 under the more freewheeling approach to statutory interpretation or this later body of law that says we’re not going to do that any more?”

At least in this case, the Chief Justice followed the route of consistent results. As did Justice Alito, and, perhaps most surprisingly of all, Justice Kennedy, who joined the dissent in Jackson arguing that Sullivan, properly read, did not recognize a cause of action for retaliation under Section 1982.

They did so on the basis of a broad conception of stare decisis. Answering the Chief Justice’s oral argument question, the seven-member majority explained that “even if we were to posit for argument’s sake that changes in interpretive approach take place from time to time, we could not agree that the existence of such a change would justify reexamination of well-established prior law.”

Justice Thomas could not disagree more. His dissent, joined by Justice Scalia, begins “with the text of the statute,” and derides the majority for starting with the Court’s own prior decisions. The implication seems to be that if the text of the statute is clear, resort to the Court’s prior decisions is inappropriate (like resort to legislative history?). As for those prior decisions, unlike Justice Kennedy, Justice Thomas continues to insist that Jackson was wrongly decided and, therefore, an inappropriate basis for today’s decision.

At the same time, Justice Thomas describes what he calls the “irony in the Court’s novel use of stare decisis to decide a question of first impression,” questioning the Court’s willingness to be bound, as a matter of stare decisis, by the rationale of a decision construing a different statute. Given the choice between inconsistent results and extending the effect of a prior erroneous decisions, he would mitigate the damage at the cost of a less coherent body of law. “[E]rroneous precedents,” he says, “need not be extended to their logical end, even when dealing with related provisions that normally would be interpreted in lockstep.”

[edit] III. Gomez-Perez and the Meaning of Silence

For Kevin's discussion on the Gomez-Perez decision see here.

[edit] IV. Concluding Thoughts

What to take away from these decisions?

First, I think that the Court has more or less established a general presumption that federal civil rights statutes prohibit retaliation whether they say so explicitly or not. Defendants hoping to avoid such liability will have to show some pretty clear indication of a contrary legislative intent; the fact that Congress elsewhere (or even in the same statute) prohibited retaliation explicitly, is unlikely to carry the day.

Second, I find the comparison between the tenor of Justice Breyer and Justice Alito’s opinions quite interesting. Breyer bends over backwards to emphasize that his opinion is grounded principally in stare decisis, even to the extent of almost seeming apologetic for having to follow questionable prior precedent. Justice Alito, on the other hand, mentions stare decisis only once, in a footnote. His opinion, in contrast, reads as if convinced that the decisions in Sullivan and Jackson were rightly decided and would be followed even setting aside respect for prior precedent.

I seriously doubt that Justice Breyer has greater doubts about those cases than Justice Alito - after all, Breyer signed on to the majority opinion in Jackson. Instead, I wonder whether in writing his opinion, Breyer was worried that straying too far from a stare decisis rationale might lose him votes, particularly the votes of Justice Kennedy, who dissented in Jackson, and the Chief, who by that time had presumably voted in favor of reversal in Gomez-Perez.

Even more interesting to me is the question of whether Justice Alito actually thinks that Jackson and Sullivan were rightly decided. It is hard to say. Perhaps so, which would be heartening to the civil rights community. But the tenor of the opinion could also simply be a stylistic choice or might reflect that Alito knew that the CBOCS opinion was already addressing stare decisis in detail.

Third, these opinions have to be a real disappointment to conservatives who thought that the recent changes in the Court would call into question many of the Court’s 5-4 decisions in which Justice O’Connor cast the deciding vote. Indeed, many (including myself) thought that the Court had likely granted certiorari in CBOCS to circumscribe Jackson, given that the Court took the case in the absence of any asserted circuit split.

But not only did the new members decline to find a way to circumscribe O’Connor’s Jackson decision - a decision that offended many conservatives not only for its pro-plaintiff result, but also for what they perceived as its failure to adhere to core textualist principles - they extended that decision to another context and, in the case of Justice Alito, seemingly used the decision to establish a broad principle of implied anti-retaliation protection across-the-board in civil rights statutes.

To be sure, there are important counter-examples in the area of affirmative action and abortion in which the Chief and Justice Alito have been less reticent to depart from prior 5-4 decisions of the recent past. But the decisions this week add support to the view that on issues they care less deeply about, the Chief Justice and Justice Alito are more amenable to stare decisis arguments than some had hoped and others had feared.

[edit] Links and further information

[edit] Press

Decision related articles:

[edit] Blogosphere

[edit] SCOTUSblog

[edit] Video

Retrieved from "http://www.scotuswiki.com/index.php?title=CBOCS_West_v._Humphries"
Personal tools