The United States Supreme Court recently confirmed that a restaurant employee could pursue a retaliation claim against the restaurant’s owner under the Civil Rights Act of 1866, 42 U.S.C. § 1981, where the employee allegedly was dismissed for complaining about discriminatory treatment of a black co-employee. CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008).

Hedrick G. Humphries, an assistant manager at a Cracker Barrel restaurant owned by CBOCS West, Inc. (“CBOCS”), claimed CBOCS violated Section 1981 and Title VII of the Civil Rights Act of 1964 when it fired Humphries from his position as assistant manager because of racial bias—Humphries is black—and because Humphries had complained that a fellow assistant manager terminated a black employee for race-based reasons. Section 1981 provides that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

Humphries filed a charge with the Equal Employment Opportunity Commission (“EEOC”), received a “right to sue” letter, and thereafter filed a complaint in federal court. The District Court dismissed the Title VII claims for failure to timely pay filing fees and granted CBOCS summary judgment on the Section 1981 claims. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed dismissal of the Section 1981 race bias claim, but reinstated the Section 1981 retaliation claim.

The Supreme Court affirmed the Seventh Circuit’s decision, reasoning that because Section 1981’s sister provision, Section 1982—which addresses property rights of non-white citizens—recognizes the implied right to sue for retaliation, and past Supreme Court decisions have interpreted Sections 1981 and 1982 similarly, Section 1981 likewise covers claims for retaliation.

The Supreme Court’s decision in CBOCS West may encourage employees to pursue their retaliation claims via Section 1981 rather than Title VII, thereby bypassing the requirements of the Title VII process, including the requisite filing of a charge with the EEOC. This would eliminate a means by which employers receive an early warning of bias claims and a chance to resolve such claims before litigation ensues. Without these pre-litigation measures in place, to achieve advance resolution of discrimination claims, institution of an effective reporting system in the workplace is all the more important.