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Supreme Court Recognizes Retaliation Claim Under Section 1981

Published by on May 27, 2008

The U.S. Supreme Court held today in CBOCS West, Inc. v. Humphries that 42 U.S.C. section 1981 provides a remedy for claims of retaliation for complaining about discrimination in connection with the making or enforcement of contracts.  Section 1981 itself prohibits race discrimination in the making or enforcement of contracts.  It has been construed to include […]

The U.S. Supreme Court held today in CBOCS West, Inc. v. Humphries that 42 U.S.C. section 1981 provides a remedy for claims of retaliation for complaining about discrimination in connection with the making or enforcement of contracts.  Section 1981 itself prohibits race discrimination in the making or enforcement of contracts.  It has been construed to include employment discrimination claims.  Today’s decision opens the door to retaliation claims.

The majority relied on prior decisions under 42 U.S.C. section 1982 in reaching its decision, invoking the principle of stare decisis.  Justice Thomas, writing in dissent, referred to the majority’s invocation of stare decisis as “hiding behind the fig leaf.”  He concluded his dissent as follows:

“As in Jackson, “[t]he question before us is only whether [s 1981] prohibits retaliation, not whether prohibiting it is good policy.” . . . “By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it created remedies out of whole cloth to effectuate its vision of congressional purpose.”  That the Court does so under the guise of stare decisis does not make its decision any more justifiable.”

It is difficult to see how a law that prohibits race discrimination can be read to imply a prohibition against retaliation.  But in both the CBOCS case and the Gomez-Perez v. Potter case (a federal-sector employment case reaching the same conclusion under the Age Discrimination in Employment Act, also decided today), the Court reached the conclusion that a statute prohibiting discrimination necessarily implies a cause of action for retaliation.

Various employment law blogs are already commenting on the decision today:  Ohio Employer’s Law Blog; Connecticut Employment Law Blog; Jottings By An Employer’s Lawyer.

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