Supreme Court Gives Green Light for Retaliation Claims Under Two Civil Rights Statutes

Sunday, June 1, 2008
by Jackson Lewis

In separate decisions issued the same day, the Supreme Court has given employees the okay to bring retaliation claims against their employers under anti-discrimination statutes, even though the laws make no mention of a retaliation cause of action. In CBOCS West, Inc. v. Humphries, the Court held by a 7-2 vote that a Reconstruction-era civil rights statute prohibiting race discrimination permits retaliation claims. No. 06-1431, 553 U.S. ____ (May 27, 2008). In the other case, Gomez-Perez v. Potter, the Court ruled by a 6-3 vote that federal employees who complain about age discrimination are protected from retaliation by their employers under the Age Discrimination in Employment Act ("ADEA"). No. 06-1321, 553 U.S. ____ (May 27, 2008).

Stare decisis, literally meaning "to stand by things decided," played a hand in both rulings. Only three years ago, the Court issued a 5-4 decision authored by now-retired Justice Sandra Day O'Connor holding that the broad prohibition on gender discrimination in Title IX of the Education Amendments of 1972 ("Title IX") encompasses retaliation claims even though the statute does not specifically provide for a retaliation cause of action. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005). Jackson relied on an earlier case in which the Court ruled that another post-Civil War statute, 42 U.S.C. §1982, prohibiting discrimination in property transfers allows for retaliation claims. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969). Justices Thomas and Scalia, who both dissented in Jackson, filed dissenting opinions in Humphries and Potter. Chief Justice Roberts dissented in Potter, but not Humphries, on the theory that "protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case." CBOCS West, Inc. v. Humphries: The Race Case

The plaintiff in this case, Hedrick G. Humphries, who worked as an assistant manager for the Cracker Barrel restaurant chain, brought a lawsuit against his employer alleging he was terminated because of his race and because he complained about racial discrimination against a co-worker. Mr. Humphries asserted claims under both Title VII of the Civil Rights Act of 1964 ("Title VII") and §1981, a post-Civil War statute prohibiting discrimination with regard to the right to "make and enforce contracts." The statute is derived from the Civil Rights Act of 1866, which implemented the Thirteenth Amendment, abolishing slavery. Like Title VII, §1981 protects employees from race discrimination, but unlike Title VII, it does not specifically prohibit retaliation. The Supreme Court agreed to hear this case after the Seventh Circuit Court of Appeals found that the plaintiff was entitled to proceed on a §1981 retaliation theory.

Stare decisis largely guided the majority's decision that §1981 allows retaliation claims. Because of the similarity between §1981 and §1982--the latter also derived from the 1866 Civil Rights Act--as well as the federal appellate courts’ consistent interpretation of §1981 as encompassing retaliation claims, there was no reason to displace the decisions in Sullivan and Jackson, the majority ruled.

Justice Breyer, who authored the majority's decision, also rejected the employer's argument that §1981 would overlap with Title VII, which provides a different remedial scheme, if it were interpreted to provide a retaliation cause of action. "This argument...proves too much," wrote Justice Breyer. "Precisely the same kind of TitleVII/§1981 'overlap' and potential circumvention exists in respect to employment-related direct discrimination," he continued.

Justice Thomas, joined by Justice Scalia, dissented vehemently. "Retaliation is not discrimination based on race," wrote Justice Thomas, emphasizing the distinction between anti-discrimination provisions which prohibit discrimination based on who an individual is, and anti-retaliation provisions which seek to protect individuals based on what they do. Justice Thomas reiterated his belief that the Court misinterpreted Sullivan in the Jackson decision, pointing out that the former decision does not even contain the word "retaliation."

The ruling is significant because §1981 has a longer statute of limitations than Title VII and, unlike Title VII, contains no limitations on the amount of punitive and pain and suffering damages available to a plaintiff. In addition, a plaintiff must file a charge of discrimination with the EEOC prior to suing in federal court under Title VII within 300 days of the alleged discriminatory act. In contrast, under §1981, a plaintiff may file a lawsuit immediately, and has four years in which to do so. Gomez-Perez v. Potter: The Age Case

In Potter, the Supreme Court was called upon to determine whether the ADEA's federal sector provision, 29 U.S.C. § 633a(a), which--unlike the Act's private sector provision--does not explicitly mention retaliation, permits federal employees to bring retaliation claims.

Justice Alito, writing for the majority of the Court, concluded that §633a(a), which requires that "[a]ll personnel actions affecting least 40 years of made free from any discrimination based on age," encompasses retaliation claims. The majority's decision was guided by Sullivan and Jackson.

As Justice Alito made clear, the Government--the defendant in this case arguing against a retaliation cause of action in the federal sector ADEA provision--urged the Court to follow Sullivan in both Jackson and Humphries. Indeed, the Government submitted in amicus curiae, or "friend of the court," brief in Humphries asserting that §1981's prohibition on "discrimination...quite naturally includes discrimination on account of having complained about discrimination," Justice Alito noted.

The Court found it of little consequence that the federal sector provision is silent on a retaliation cause of action. "Respondent places too much reliance on the presence of an ADEA provision specifically prohibiting retaliation against individuals complaining about private-sector age discrimination...and the absence of a similar provision in §633a(a)," explained Justice Alito. Among other things, he pointed out that the two statutes were enacted seven years apart and structured differently, with the private sector provision specifically listing prohibited practices.

In dissent, Chief Justice Roberts, joined by Justices Thomas and Scalia, maintained that the statutory language and structure of the federal sector provision demonstrate that Congress did not intend to create a cause of action for retaliation. "Congress was not sloppy in creating this distinction; it did so for good reason: because the federal workplace is governed by comprehensive regulation, of which Congress was well aware, while the private sector is not," Chief Justice Roberts concluded.

The Potter decision is the second of four rulings regarding age discrimination from the nation's highest court this term.


Both age discrimination and retaliation cases feature prominently on the Supreme Court's docket this year. Employers should note that the number of retaliation cases has climbed steadily in recent years. In the last decade, the number of charges filed with the EEOC alleging employment retaliation has continued to grow, increasing from 18,198 in 1997 to 26,663 in 2007. Retaliation claims now represent over 32 percent of all charges filed with the EEOC. Likewise, age discrimination claims have climbed from 19.6 percent to 23.2 percent of the total number of charges filed with the EEOC.
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