Wednesday, February 20, 2008
Right on the heels of the oral argument of the Gomez-Perez case yesterday (dealing with whether a retaliation action exists for federal employees under the ADEA), the Supreme Court today didn't have to switch gears too much to hear oral argument in the case of Humphires v. CBOCS West, the question being whether a retaliation claim exists under the civil rights statute, Section 1981 (Civil Rights Act of 1866).
And you will not be surprised to learn that similar arguments, and even mention of the Gomez-Perez case, litter the argument of the CBOCS case. However, CBOCS may be more closely related to the Jackson Title IX case which implied a retaliation claim to vindicate the intent of the statute than Gomez-Perez because whereas the latter involves similar provisions providing and not providing a retaliation action in the same statute, Section 1981 and Title IX are statutes whose language stand alone. It also helps that the Court has already inferred a private cause of action for discrimination and harassment in two previous separate case. Also favoring a Jackson-oriented implying of a private retaliation action is the fact that there is no other statute that provides important background considerations like the Civil Service Reform Act of 1978 does for federal employees in Gomez-Perez. Of course, it is helpful that the Government is supporting the plaintiff, and not arguing against the plaintiff as in yesterday's case.
Favoring a finding of no retaliation claim under Section 1981 is the fact that unlike Title IX, Section 1981 was recently amended in the Civil Rights Act of 1991 to clarify its scope. Congress could have supplied a retaliation claim, but did not (at least expressly). That being said, CBOCS attorney's argument that the CRA of 1991 narrowed Section 1981 is ludicrous (and even Scalia, Alito, and Kennedy agreed that there was no sense in his argument), and he certainly didn't help his side of the case with that exchange.
So, in short, this case has all the trappings of a very-closely contested and important case. Section 1981 is particularly important in states like Mississippi where there is no state anti-discrimination law, and race discrimination plaintiffs in companies with less than 15 employees need to rely on 1981 for relief. It is also an important vehicle for those plaintiffs who do not wish to be subject to the compensatory and punitive damage caps of Title VII, the relatively short statute of limitations under Title VII (180/300 days), and retain the ability to go right to federal court without exhausting administrative remedies with the EEOC or similar state agency.
Paul Mollica, of Daily Developments in EEO Law, has already helpfully done highlights on the oral argument transcript so I'm going to piggyback on his observations. First, he not surprisingly writes:
The court wrestled with the collision between stare decisis -- whether to extend or contract decisions in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) (implying retaliation under section 1982) and Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (same under Title IX) -- and the Court's recent retrenchment in implying private rights of action. Summarized in a sentence, the survival of retaliation claims under section 1981 depends on a change of heart by Justice Kennedy, who dissented in Smith and behaved skeptically here.
My only additional thought here is that Kennedy did not ask questions yesterday during argument in Gomez-Perez and his noted skepticism might not only be bad for plaintiff in the CBOCS case, but also in the Gomez-Perez case.
On other issues:
1. I'm also a little shocked that Chief Justice Roberts doesn't understand that discrimination and harassment cases on the one hand are different from retaliation cases, on the other. Most importantly, you can be retaliated against not based on your race, but on the mere fact that you filed a complaint. (Even Justice Scalia couldn't believe his Chief's views on this: "Surely -- surely, you [referring to CBOCS attorney who agreed with Roberts] don't mean what you just said a minute ago, that in order to have a retaliation claim you must have a discrimination claim." I think it would have been funny (and knowing Scalia's sense of humour, he might have too), if Counsel had responded: "I do. And don't call me, Shirley."
2. Amazing that someone representing Cracker Barrel could rub all the Justices the wrong way (given what a cuddly place the restaurant has shown itself to be to blacks, women, and gays), but Mr. Hawkins seemed to achieve that feat throughout his argument. CBOCS will win not because of his oral argument, but in spite of it (to borrow from the Section 1983 Feeney case).
3. Another non-surprise is that Justice Breyer nicely helped to summarize Humphries' argument in this case:
Well, here we have a Federal policy, and the Federal policy is that black people shall be treated the same as white in respect to making a contract. But were the law to allow you to fire anybody who complained about it, then black people wouldn't have that right. And therefore the policy is that you can't do it under this statute because otherwise the written policy is ineffective.
4. Leading those who would find no retaliation claim here, Chief Justice Roberts remarks: "And my question for you is: Under principles of stare decisis, 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?" I think he knows the answer for himself and so do Thomas, Alito, and Scalia.
5. And here's Justice Scalia's textualist argument:
That's a good argument to Congress. Congress should enact a retaliatory provision. But the statute says what it says, and what it says is that there has to be discrimination on the basis of race. And firing somebody for -- in retaliation for making a complaint is not firing him on the basis of race. Indeed, the person making the complaint may not have been the person who was racially discriminated against. You would acknowledge that you couldn't fire -- if retaliations claims lie, you couldn't fire a white whistleblower who says this employer has been discriminating against blacks. Wouldn't that white whistleblower have a cause of action for being fired?
6. Like Paul Mollica, I think Solicitor General Clement is a class act (though I don't tend to agree with him). I also think he is a highly effective speaker and beats Justice Scalia on this argument:
No, Justice Scalia, we're not asking to you to go back to the bad old days. But I think it's important to recognize that we are simply asking you to interpret the scope of the cause of action you've already inferred.
Though, in order to make nice (kiss ass?), he says something which I disagree with 100% (at least with labor and employment cases in mind):
GENERAL CLEMENT: The bad old days ended when you got on the Court, Mr. Justice Scalia.
Was it derisive laughter at least?
7. Finally, because Kennedy is inevitably going to be the swing vote in this case (though I know Ross Runkel is likely to disagree with me and say that the employer wins 7-2), this quote from Kennedy is probably the most important said in all the transcript because it signals that Kennedy is heavily leaning toward CBOCS:
Well, you say it's clear, but neither you or the government seems to tell me any words in this statute. Your argument is that we should create a cause of action in order to make this effective. I understand that argument. I think the Court's cases stand against it, and if you want to -but it seems to me that you're admitting that nothing in the words of the statute as amended help you. And the government -- which as well is an impairment, which I think is quite wrong because that's not what section (c} intended for. But that's almost an admission on the government's part that it can't find any words in section (b) either . . . .
What I'm -- 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, given the authorities and the approach of the Court that we've discussed.
Eerily, it is almost like Kennedy knows that he will have the opportunity to write the majority decision in this case and he is telling plaintiff's counsel, "Don't count that I will be ruling in your favor.
So, prediction: like Gomez-Perez, but for different reasons, a 5-4 victory for CBOCS.