Supreme Court: Section 1981 prohibits retaliation

There is more than one way to file an employment discrimination lawsuit. The most common way is to file a charge of discrimination with the Equal Employment Opportunity Commission, which has authority to investigate and resolve the claim. If the EEOC cannot resolve the claim, you can ask that agency to terminate the investigation and issue a "Right to Sue" letter. Then you have 90 days to bring the lawsuit in Federal court.

The easier way to sue for employment discrimination is to bypass the Title VII process completely and file directly in Federal court under 42 U.S.C. sec. 1981. We call them Section 1981 cases. Unlike Title VII, you don't need a Right to Sue letter, and you can sue employers with less than 15 employees. But Section 1981 only covers racial discrimination, unlike Title VII, which covers race, gender and religion. Until now, there was also a loophole under Section 1981 in that it doesn't specifically prohibit retaliation for invoking rights under that statute. That loophole has been closed, by the U.S. Supreme Court.

The case is CBOCS West v. Humphries, decided on May 27. Reviewing the history of Section 1981 and a related statute, Section 1982, which Congress enacted in 1860's to prohibit racial discrimination in the ownership of real property, the Court held today that Section 1981 does prohibit retaliation. The Supreme Court notes that the Courts of Appeal, including the Second Circuit, are already in agreement that Section 1981 prohibits retaliation.

In dissent, Justice Thomas, joined by Justice Scalia, argues that since the plain text of Section 1981 does not mention retaliation, the statute cannot be interpreted that way, and that "Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather, it is the result of his conduct."

The consequences of today's opinion may not be apparent to the casual observer. But as I noted above, Title VII carries a tight time-frame for pursuing rights under that statute. You have to bring the EEOC charge within 300 days of the discrimination in New York, and once the Right to Sue Letter arrives in the mail you have 90 days to bring the lawsuit. Many people put that off and miss the Title VII deadline. The backup claim is Section 1981, which carries a four-year statute of limitations.