The U.S. Supreme Court recently granted employees the right to sue their employers for race-based retaliation under Section 1981 of civil rights law. Suing for employer retaliation under Section 1981 has several advantages verses suing under Title VII of the Civil Rights Act of 1964, because Section 1981 has:
- A four-year statute of limitations, which is much longer than under the other discrimination laws
- No limit on compensatory damages, which are capped under Title VII
- No minimum employee requirement for employers; only employers who employ 15 or more employees are bound by Title VII
- No requirement to first file a retaliation charge with the EEOC, as most other discrimination laws require
The wording in Section 1981 means that all people, regardless of race or color, have the right to make and enforce contracts, including employment agreements.
A contract exists between employer and employee, even in the absence of a written employment agreement. Subsequently, as indicated in Section 1981, an employee has the right to enjoy “all benefits, privileges, terms, and conditions of the contractual relationship.”
The Supreme Court has interpreted that employee right to include suing an employer for race discrimination or race-based retaliation, even though Section 1981 mentions neither.
Section 1981 Background
If you’re wondering why you’ve never heard of Section 1981, it’s likely because it’s a very old race discrimination law from the Reconstruction era that hasn’t had much press until recently.
Section 1981(a) was originally the first section of the Civil Rights Act of 1866, which was designed to protect the contractual rights of freed slaves. Congress amended Section 1981(b) and (c) into the law based on the outcome of the 1989 case of Patterson v. McLean Credit Union and the Civil Rights Act of 1991.
The Supreme Court has since affirmed that employees may file lawsuits under Section 1981 for employment discrimination on the basis of race. But it wasn’t until the recent case of CBOCS West, Inc. v. Humphries that the Supreme Court set the new precedent for race-based retaliation lawsuits under Section 1981.
In the case, African-American Hedrick Humphries worked for Cracker Barrel as an assistant manager, before Cracker Barrel terminated his employment. In his lawsuit against Cracker Barrel under Section 1981, Mr. Humphries essentially alleged that his discharge was raced-based retaliation for complaining about racial discrimination against an African-American coworker, whom Cracker Barrel had previously discharged.
Employees of various races may file race discrimination or race-based retaliation lawsuits under Section 1981, not just African Americans. Consult a lawyer for legal advice about that.