Although the Supreme Court’s recent opinion in CBOCS West, Inc. v. Humphries (“Cracker Barrel”) confirmed what some already believed to be true about the scope of §1981, the opinion brought the continuing vitality of the anti-slavery statute to the forefront.
In Cracker Barrel, the Court held that §1981 encompasses claims for retaliation, claims which in many cases overlap with those available under Title VII of the Civil Rights Act of 1964 (Title VII). Unlike Title VII, however, §1981 does not require submission of claims to the Equal Employment Opportunity Commission (EEOC), and has a four-year statute of limitations. Because Cracker Barrel eases the procedural hurdles and time restrictions under which plaintiffs must bring retaliation claims, the decision will have a profound and immediate impact upon the practice of employment counseling and litigation.
The Cracker Barrel Decision
Plaintiff Hedrick G. Humphries was an assistant manager of a Cracker Barrel Restaurant owned by defendant Cracker Barrel. Humphries was terminated and filed a complaint in United States District Court for the Northern District of Illinois alleging violations of Title VII of the Civil Rights Act, as well as 42 U.S.C. §1981. Humphries alleged that he was fired for two reasons: (1) as a result of discrimination on the basis of his race (African American); and (2) as retaliation for complaints he made to management regarding the termination of another African American employee, which Humphries regarded as discriminatory.
The District Court dismissed Humphries’ Title VII claims on a technicality (failure to pay timely filing fees) and granted Cracker Barrel’s motion for summary judgment on Humphries’ §1981 discrimi-nation and retaliation claims. The Court of Appeals for the Seventh Circuit reversed on his retaliation claim, holding that §1981 could encompass a claim for retaliation. The Supreme Court of the United States granted Cracker Barrel’s request for certiorari on this last point – whether §1981 can sustain an action for retaliation – and ultimately held that an action for retaliation can be brought under §1981.
The Court applied the doctrine of stare decisis to justify its holding. Stare decisis is a ‘doctrine of precedent’ which requires the Court to uphold and follow its earlier holdings in later cases. Although the Supreme Court had never ruled directly on whether §1981 permits a claim for retaliation, the Cracker Barrel Court relied on its earlier opinion in Sullivan v. Little Hunting Park, in which it held that, under §1982, a plaintiff could bring a claim for retaliation. Sections 1981 and 1982 are sister statutes of the Civil Rights Act of 1866, which was passed to address the discrimination that persisted in many states towards the former slaves. As a result of their shared origin and purpose, federal courts have interpreted §1981 and §1982 similarly. Thus, the Cracker Barrel Court held that its determination in Sullivan (that retaliation claims could be brought under §1982) required that retaliation claims could likewise be brought under §1981.
Ramifications of the Cracker Barrel Decision
The Court’s holding in Cracker Barrel that §1981 can be used to bring claims of retaliation will likely be viewed as a victory for plaintiffs, who in some cases will be freed of the procedural requirements of Title VII. That said, since the passage of the 1991 Act, lower federal courts have almost universally interpreted §1981 to include claims for retaliation. Thus, not much has changed. Many states, including New Jersey, have comprehensive discrimination statutes that incorporate claims for retaliation. Prior to Cracker Barrel, however, none of these states used §1981 or any analogue as their basis for doing so.
In any event, the expansion of §1981 to include retaliation claims has a number of important consequences. First, claimants under §1981 do not have to pursue the administrative remedies of Title VII. Under Title VII, a plaintiff is required to file a charge with the EEOC within 180 days of an allegedly discriminatory act. The EEOC will attempt to resolve the charge, and if it cannot, will issue a notice of “right to sue.” Failure to follow these Title VII requirements will result in dismissal of the claim. Second, the statute of limitations under §1981 is four years. As set forth above, plaintiffs under Title VII must file their charge with the EEOC within 180 days of the allegedly discriminatory act. Third, §1981 applies to all employers, whereas Title VII only applies to employers who have 15 or more employees for at least 20 weeks of the year. In states that do not have comprehensive discrimination statutes, §1981 may be the only means by which retaliation claims against employers with less than 15 employees may be brought. Under Cracker Barrel, §1981 could be used to bring retaliation claims against employers with less than 15 employees, even in states that do not have comprehensive anti-discrimination laws. Finally, §1981 has no statutory cap on damages. Under Title VII, the compensatory and punitive damages that a successful plaintiff may recover are capped between $50,000 and $300,000, depending on the size of the defendant-employer. For these reasons, pursuing claims for retaliation under §1981, in lieu of Title VII, could offer material advantages for plaintiffs.
Cracker Barrel expands the functional statute of limitations of retaliation claims, creates an end-around by which plaintiffs can sidestep “pesky” EEOC procedures and formalities and, in some cases, removes statutory caps on the damages available to plaintiffs. Perhaps more interesting than its holding, however, is the Cracker Barrel Court’s interpretation of §1981 as providing a parallel avenue of relief to Title VII retaliation claims. After all, Title VII is a comprehensive legislative and administrative framework that was enacted, in part, to monitor and enforce discrimination laws. By upholding §1981 as a potential avenue for retaliation claims outside the Title VII framework, the Cracker Barrel Court has empowered §1981’s largely judge-made jurisprudence at the expense of the Title VII administration.