SCOTUS holds that section 1981 creates a private right of action for retaliation claims

Yesterday, the United States Supreme Court decided CBOCS West Inc. vs. Humphries which dealt with whether a 150 year old statutory provision encompasses a complaint of retaliation. At issue was 42 U.S.C.A. section 1981(a) which provides that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens."

The case arose out of the complaint filed by Humphries against Cracker Barrel alleging that Cracker Barrel had dismissed him because of racial bias and because he had complained to managers that a fellow assistant manager had dismissed another black employee for race-related reasons. The District Court held that section 1981 did not encompass a claim of retaliation. The 7th Circuit reversed and the Supreme Court granted certiorari.

Based on prior case law and interpretation of similar statutes, the Supreme Court held that section 1981 does encompass retaliation claims and that this principal is well embedded in the law. The Court further noted that considerations of stare decisis strongly supported adherence to this view.

Justices Thomas and Scalia descended. They found it difficult to see where one finds a cause of action for retaliation in the statutory language. They describe section 1981(a) as a straightforward band on racial discrimination in the making and enforcement of contracts. They further noted that retaliation is not discrimination based on race. When an individual is subjected to a reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race, rather, it is the result of his conduct. Because section 1981 by its terms only prohibits discrimination based on race, and because retaliation is not discrimination based on race, Justices Scalia and Thomas would have held that section 1981 does not provide an implied cause of action for retaliation.