Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, May 27, 2008

Supremes Hold (7-2) That Section 1981 Encompasses Retaliation Claims

Supreme_court_2 Section 1981 is an important discrimination statute. It applies to much more than just employment discrimination. Until the Supreme Court's May 27, 2008 decision in CBOCS West v. Humphries, 553 U.S. __(May 27, 2008), there was some question whether 1981 claims could encompass retaliation claims similar to that of Title VII. The Court held 7-2 that 42 USC Section 1981 does indeed include such claims.

The case is procedurally unusual in that the plaintiff also plead a Title VII claim which was dismissed due to his failure to pay the requisite filing fee. Section 1981, unlike many other statutes, does not have an explicit anti-retaliation provision. The Court held however, that there was no need for Congress to include an explicit language about retaliation. The Court largely relied on principles of stare decisis by looking to decisions restored by the Civil Rights Act of 1991 which, of course, amended Section 1981 to explicitly encompass employment discrimination. The Civil Rights of 1991, legislatively overruled the Court's 1989 decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) which held that the statute did not apply to employment termination cases.

The two most conservative Justices on the Court, Justice Thomas and Scalia, dissented. They essentially would strictly construe Section 1981. Since the statute did not have an express anti-retaliation provision, they would not imply one. Retaliation, the dissent reasons "is not discrimination based on race. . . .rather, it is the result of his conduct."

Mitchell H. Rubinstein

Employment Discrimination | Permalink

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Retaliation is in response to conduct... conduct being of a certain race, (or sexual orientation as Scalia's dissent in Romer indicates) where Scalia somehow uses 'conduct' as a ruse.

Posted by: Sujan Vasavada | May 27, 2008 9:48:49 PM

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