The United States Supreme Court has recognized a right to sue for retaliation under Section 1981 of the Civil Rights Act of 1866 ("Section 1981"), even though Section 1981 does not expressly prohibit retaliation. In CBOCS West, Inc. v. Humphries, the Court affirmed the consensus reached by a majority of the Courts of Appeals that the statute, as amended by Congress in 1991, encompasses retaliation claims.

In the underlying suit, a black employee claimed that his former employer terminated him because of his race and in retaliation for complaining about alleged discriminatory treatment of another black employee. He brought race discrimination and retaliation claims against CBOCS West, Inc. under both Title VII of the 1964 Civil Rights Act ("Title VII") and Section 1981. Title VII — which prohibits discrimination against any individual with respect to the individual's terms, conditions or privileges of employment because of race, color, religion, sex or national origin — contains an express prohibition on retaliation against individuals who have opposed unlawful discrimination in the workplace or who have brought or participated in a Title VII discrimination charge. Section 1981 of the Civil Rights Act, which provides that "all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens" contains no express prohibition on retaliation, although Congress amended the statute in 1991 to define "make and enforce contracts" to mean "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship."

The United States District Court for the Northern District of Illinois dismissed the employee's Title VII claims because of his failure to pay a filing fee, and granted summary judgment on the Section 1981 discrimination and retaliation claims. In January 2007, the United States Court of Appeals for the Seventh Circuit affirmed summary judgment on the Section 1981 race discrimination claim, but reinstated the Section 1981 retaliation claim, ruling that Section 1981 provides a right to sue for retaliation.

The United States Supreme Court affirmed the Seventh Circuit's ruling with regard to retaliation claims, reasoning that the 1991 Congressional amendments to the statute, made in direct response to an earlier Supreme Court decision restricting Section 1981, signaled Congressional intent to broaden the scope of the statute. It further reasoned that the Court had read other broadly-worded civil rights statutes to include an anti-retaliation remedy. While noting the overlap between Title VII and Section 1981, the Court pointed out that Title VII provides important administrative remedies lacking in 1981, and that Title VII, enacted after Section 1981, was intended to "supplement, rather than supplant" existing employment discrimination laws.

While the immediate impact of this ruling remains to be seen, employer representatives have voiced concern that this ruling will increase the number of Section 1981 retaliation claims, and will cause more plaintiffs to bypass the Title VII administrative procedures and directly file discrimination and retaliation suits under Section 1981. We will keep you apprised of developments resulting from this decision.