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Hedrick Humphries, Claiming Protection Under Section 1981, Wins a Precedent-Setting US Supreme Court Case Decision Against Workplace Racial Discrimination and Retaliation
The question raised by Humphries was whether Section 1981 protects individuals who complain about race discrimination in contracting from retaliation by their employers. This question arises because Section 1981 – both in its original and revised form – does not expressly provide for protection against retaliation. The Court thus had to decide whether such a right was implicit in the statute or not. It ruled 7-2, in an opinion authored by Justice Breyer, that Section 1981 prohibits retaliation as well as direct discrimination. In another case, and in a 6-3 ruling, the court likewise held that the part of the major anti-age bias law covering federal employees also protects them from retaliation after complaining about discrimination.
          
Court OKs suits on retaliation in race, age cases
(The Associated Press circulated the following on May 27.)
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WASHINGTON, D.C. — The Supreme Court sided Tuesday with employees who faced retaliation after complaining about race and age discrimination in rulings that drew support from conservative and liberal justices.

The court, by a 7-2 vote, said a provision of the Civil Rights Act of 1866 covers claims of retaliation that follow complaints about discrimination on the basis of race.

In a 6-3 ruling, the court likewise held that the part of the major anti-age bias law covering federal employees also protects them from retaliation after complaining about discrimination.

Neither provision contains express prohibitions against retaliation.

But Justice Stephen Breyer, writing for the court in a case involving a black Cracker Barrel employee who was fired, said that previous Supreme Court decisions and congressional action make clear that retaliation is covered.

The idea that a provision of the 1866 law, known as section 1981, "encompasses retaliation claims is indeed well embedded in the law," Breyer said.

Business groups objected that the absence of an explicit prohibition on retaliation was significant and said employees should have to file suit under another law, Title VII of the Civil Rights Act of 1964. That law has a shorter deadline for filing suit and caps the amount of money that a successful plaintiff may recover.

The Bush administration was on the side of the workers.

The case grew out of the firing of a black associate manager at a Cracker Barrel restaurant in Bradley, Ill. Hedrick Humphries claimed he was fired after he complained about race discrimination by other Cracker Barrel supervisors.

Humphries filed a lawsuit claiming both discrimination and retaliation. Both claims were dismissed by a federal judge and only the retaliation claim was appealed.

The Chicago-based 7th U.S. Circuit Court of Appeals said Humphries could pursue his retaliation claim under section 1981. The high court upheld the appeals court ruling.

In the age retaliation case, Justice Samuel Alito's majority opinion concluded that a U.S. Postal Service employee may pursue her lawsuit under the Age Discrimination in Employment Act.

The law does specifically bar reprisals against private sector employees who complain about discrimination. But it is silent as to federal workers. Alito said the law indeed does apply to both categories of employees.

The case involves Myrna Gomez-Perez, a postal worker in Puerto Rico who alleged she was being discriminated against because of her age. Gomez-Perez, who was then 45, said that after she filed a complaint with the Equal Opportunity Employment Commission, she suffered a "series of reprisals" from her supervisors.

Gomez-Perez sued under the ADEA, claiming retaliation in violation of the law.

The 1st U.S. Circuit Court of Appeals in Boston upheld a lower court's dismissal. The Supreme Court reversed that ruling Tuesday.

The administration, which is backing workers in other age bias cases at the high court, said the ADEA does not afford federal workers protection from retaliation. It said Congress could have extended protections to federal workers, but didn't.

Justices Antonin Scalia and Clarence Thomas dissented. Chief Justice John Roberts joined them in the age bias case, but sided with the majority in the Cracker Barrel case.

Both decisions relied, in part, on a 2005 ruling that called retaliation another form of intentional, unlawful discrimination under Title IX, which bars sex discrimination in education. Title IX also doesn't explicitly talk about reprisals.

Justice Sandra Day O'Connor wrote that 5-4 decision. She has since retired, having been replaced by Alito.

The cases are Gomez-Perez v. Potter, 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.

Thursday, May 29, 2008
bentley@ble.org

The Supreme Court Holds that an Important Federal Civil Rights Law, Section 1981, Prohibits Retaliation as Well as Discrimination
By JOANNA GROSSMAN
Tuesday, Jun. 10, 2008
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An interesting case that the Supreme Court recently resolved began when Hedrick Humphries, an African-American assistant manager at a Cracker Barrel restaurant, sued his employer for firing him. Humphries alleged that he had been fired in retaliation for his complaint about a fellow assistant manager’s treatment of another African-American employee.

Ultimately, the Supreme Court took the case and was confronted with the following question: Does Section 1981, a federal civil rights law that prohibits race discrimination in contracting, protect employees like Humphries against such retaliation? The Court ruled, in CBOCS WEST, Inc. v. Humphries, that it does. (see below)

In this column, I will explain why this was clearly the right outcome – indeed, perhaps an outcome so plainly right that it needn’t ever have bothered the Court at all.

Section 1981: Providing Federal Protection Against Race Discrimination in Contracts, Including Employment Contracts

Immediately following the Civil War and the ratification of the Thirteenth Amendment to the federal constitution, Congress enacted the Civil Rights Act of 1866, a wide-ranging ban on race discrimination. Part of this Act, eventually codified as 42 U.S.C. § 1981 (“Section 1981”) addressed the problem of race discrimination in contracting. It provides that “(a)ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens. . . .”

As first enacted, Section 1981 was used to challenge the Black Codes used by southern states to limit the rights and opportunities of newly-freed slaves. But beyond the 1870s, the statute went largely unused for nearly a century. The Court breathed new life into Section 1981 in a series of cases, including Johnson v. Railway Express Agency, in which it held that the law applied not only to government-sponsored discrimination, but also to private discrimination, including discrimination by employers. This ruling was later codified by Congress.

Section 1981 applies to all contracts, including those between employer and employee, and has become an important tool for employment discrimination claimants. Indeed, in recent decades, Section 1981 has been invoked more often to challenge race discrimination in employment than to challenge any other kind of contract discrimination.

During the 1980s, the Supreme Court narrowly interpreted Section 1981 twice. In General Building Contractors Association v. Pennsylvania, it held that Section 1981 could not be used to attack unintentional (“disparate impact”) discrimination. (Under Title VII, plaintiffs can challenge either intentional or unintentional discrimination.) In a second case, Patterson v. McLean Credit Union, the Court dramatically undercut Section 1981 by ruling that it only applied to contract formation. In the employment context, this meant that the statute could not be used to challenge any discrimination that occurred after an employee’s initial hire – the point when the contract was “formed” – such as harassment or wrongful discharge.

Fortunately, Patterson’s life was short. Congress overruled the Court’s restrictive interpretation of Section 1981 by statute, as part of the Civil Rights Act of 1991 (in which Congress overturned a variety of Supreme Court decisions that had undermined federal anti-discrimination laws). Section 1981 thus once again became a useful tool to challenge all forms of employment discrimination on the basis of race.

Section 1981 and Retaliation Claims: The Humphries Case’s Question, Allegation, and Rulings

The question raised by Humphries was whether Section 1981 protects individuals who complain about race discrimination in contracting from retaliation by their employers. This question arises because Section 1981 – both in its original and revised form – does not expressly provide for protection against retaliation. The Court thus had to decide whether such a right was implicit in the statute or not. It ruled 7-2, in an opinion authored by Justice Breyer, that Section 1981 prohibits retaliation as well as direct discrimination.

Humphries alleged that he was dismissed from his position as an assistant manager at a Cracker Barrel restaurant both because of race discrimination against him, and in retaliation for his complaint that a fellow assistant manager had dismissed a black employee for race-based reasons. He filed a charge with the EEOC, a prerequisite to pursuing a claim under Title VII, and then filed a lawsuit alleging unlawful discrimination under both Title VII and Section 1981.

The federal district court granted summary judgment to Cracker Barrel (formally, CBOCS) on the direct discrimination and the retaliation claim. The court of appeals, however, reversed the grant on the retaliation claim, concluding that Section 1981 encompasses a right against retaliation.

The Supreme Court agreed to review this ruling even though the relevant court of appeals had reached the same conclusion as other courts of appeals had in recent years. Perhaps the Court took the case to resolve uncertainty over time, rather than to resolve a current circuit split.

The Evolution of Answers to the Question Regarding Section 1981 and Retaliation

The retaliation question under Section 1981 has been answered variably over time. In the 1970s and 1980s, for example, most federal courts to consider the issue ruled that retaliation claims were viable under Section 1981.

After Patterson, however, courts reversed course. If (as courts then ruled) Section 1981 did not apply to any employer conduct following formation of the employment contract, then it could hardly be understood to encompass a claim for retaliation, which would only take place after that point.

Then, when Congress – as noted above -- intervened to reverse Patterson in the 1991 Civil Rights Act, the Act explicitly stated that Section 1981 applied to post-formation conduct in that Act, but remained silent on the issue of retaliation.

After the 1991 Act was adopted, the question was once again raised: Does Section 1981 encompass a right against retaliation? The Court in Humphries relied on two basic reasons in saying “Yes.”

First, the Court noted that it had interpreted a companion statute, Section 1982, which prohibits race discrimination in property transactions, to include a right of retaliation. Sections 1981 and 1982 were enacted together after the Civil War, both intended to squelch the practices that would continue to subordinate blacks in society despite the abolition of slavery. The statutory provisions are worded and structured in a similar matter. Moreover, in a 1969 ruling, Sullivan v. Little Hunting Park, Inc., the Court had recognized a Section 1982 retaliation claim when it ruled in favor of a property owner who was retaliated against by a homeowner’s association for violating a restrictive covenant by selling his property to a black man.

It is a common rule of statutory construction that provisions with common language, origin, and purposes should be interpreted in the same way. And, indeed, sections 1981 and 1982 have been interpreted to be generally co-extensive. Sullivan was thus a powerful force in favor of finding retaliation to be covered by Section 1981. Pre-Patterson, federal appellate courts relied on Sullivan to find a right of retaliation in Section 1981.

Second, the Court applied another rule of statutory construction to charge Congress with knowledge of existing law when it amended Section 1981 in the 1991 Act. At that time, the Court had already implied rights of retaliation into a variety of similar anti-discrimination laws that did not expressly provide one. (As I discussed in a prior column, for example, the Court implied a right of retaliation into Title IX, a federal law prohibiting sex discrimination by educational institutions that receive any federal funding.) Thus, the Court reasoned that Congress did not need to expressly provide for a right of retaliation, since it could have assumed that one would be implied.

Bolstering the Court’s conclusion was Section 1981’s legislative history, which clearly illustrates Congress’ intent to provide robust protection against race discrimination in contracting. As the Court has ruled in many other contexts, protection against retaliation is essential to the protection against discrimination itself. After all, the ability to complain that one has been discriminatorily fired is worth little if one can then be legally fired in retaliation for complaining!

No wonder, then, that after the 1991 Act, federal appellate courts again reached a “broad consensus that Section 1981, as amended, encompasses retaliation claims.”

Why Section 1981 Matters

The majority in Humphries treated its approach as virtually inevitable, given the “well-embedded interpretation of Section 1981,” which might make one wonder why the Court took the case at all. But the ruling does end the need for circuit-by-circuit litigation and will provide greater certainty to employees and parties to other types of contracts.

Moreover, the Court’s adopting a broad interpretation of Section 1981 is important, particularly in the context of employment discrimination. Although it overlaps in some circumstances with Title VII, Section 1981 provides an alternative cause of action for employees who suffer race discrimination. Section 1981, for example, has no administration exhaustion requirement (meaning a plaintiff can go straight to court without first availing himself of administrative remedies. Moreover, Section 1981 has a longer statute of limitations. (I have written in previous columns such as this one about the problems posed by Title VII’s inordinately short statute of limitations.)

In some ways, Section 1981 is also more generous about damages. Thus, even workers who can pursue Title VII remedies may also want to sue under Section 1981 as well. Pursuant to the Civil Rights Act of 1991, damages awarded in Title VII claims are capped based on the size of the employer—$300,000 is the largest potential award. (The caps were set in 1991 and have never even been adjusted for inflation.) Backpay is also limited under Title VII to two years. There are no similar limits on damages under Section 1981.

For Section 1981 to provide meaningful protection against discrimination, however, it must also protect against retaliation. Fear of retaliation is the number one reason that employees do not complain about perceived discrimination, and study after study shows that this fear is warranted. People don’t like “complainers,” and employees who complain are very likely to suffer both social and employment costs for doing so. Robust protection against retaliation is thus a necessary complement to all anti-discrimination laws. Laudably, the Court has realized that crucial point with its ruling in Humphries.

CBOCS WEST, INC. v. HUMPHRIES
certiorari to the united states court of appeals for the seventh circuit
No. 06-1431. Argued February 20, 2008--Decided May 27, 2008

Claiming that petitioner CBOCS West, Inc., dismissed him because he is black and because he complained to managers that a black co-employee was also dismissed for race-based reasons, respondent Humphries filed suit charging that CBOCS' actions violated both Title VII of the Civil Rights Act of 1964 and 42 U. S. C. §1981, the latter of which gives "(a)ll persons ... the same right ... to make and enforce contracts ... as is enjoyed by white citizens." The District Court dismissed the Title VII claims for failure to timely pay filing fees and granted CBOCS summary judgment on the §1981 claims. The Seventh Circuit affirmed on the direct discrimination claim, but remanded for a trial on Humphries' §1981 retaliation claim, rejecting CBOCS' argument that §1981 did not encompass such a claim.

Held: Section 1981 encompasses retaliation claims. Pp. 2-14.

(a) Because this conclusion rests in significant part upon stare decisis principles, the Court examines the pertinent interpretive history. (1) In 1969, Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237, as later interpreted and relied on by Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 176, recognized that retaliation actions are encompassed by 42 U. S. C. §1982, which provides that "(a)ll citizens ... shall have the same right, ... , as is enjoyed by white citizens ... to inherit, purchase, lease, sell, hold, and convey real and personal property." (2) This Court has long interpreted §§1981 and 1982 alike because they were enacted together, have common language, and serve the same purpose of providing black citizens the same legal rights as enjoyed by other citizens. See, e.g., Runyon v. McCrary, 427 U. S. 160, 183, 197, 190. (3) In 1989, Patterson v. McLean Credit Union, 491 U. S. 164, 177, without mention of retaliation, narrowed §1981 by excluding from its scope conduct occurring after formation of the employment contract, where retaliation would most likely be found. Subsequently, Congress enacted the Civil Rights Act of 1991, which was designed to supersede Patterson, see Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383, by explicitly defining §1981's scope to include post-contract-formation conduct, §1981(b). (4) Since 1991, the Federal Courts of Appeals have uniformly interpreted §1981 as encompassing retaliation actions. Sullivan, as interpreted by Jackson, as well as a long line of related cases where the Court construes §§1981 and 1982 similarly, lead to the conclusion that the view that §1981 encompasses retaliation claims is well embedded in the law. Stare decisis considerations strongly support the Court's adherence to that view. Such considerations impose a considerable burden on those who would seek a different interpretation that would necessarily unsettle many Court precedents. Pp. 2-8.

(b) CBOCS' several arguments, taken separately or together, cannot justify a departure from this well-embedded interpretation of §1981. First, while CBOCS is correct that §1981's plain text does not expressly refer to retaliation, that alone is not sufficient to carry the day, given this Court's long recognition that §1982 provides protection against retaliation; Jackson's recent holding that Title IX of the Education Amendments of 1972 includes an antiretaliation remedy, despite Title IX's failure to use the word "retaliation," 544 U. S., at 173-174, 176; and Sullivan's refusal to embrace a similar argument, see 396 U. S., at 241. Second, contrary to CBOCS' assertion, Congress' failure to include an explicit antiretaliation provision in its 1991 amendment of §1981 does not demonstrate an intention not to cover retaliation, but is more plausibly explained by the fact that, given Sullivan and the new statutory language nullifying Patterson, there was no need to include explicit retaliation language. Third, the argument that applying §1981 to employment-related retaliation actions would create an overlap with Title VII, allegedly allowing a retaliation plaintiff to circumvent Title VII's detailed administrative and procedural mechanisms and thereby undermine their effectiveness, proves too much. Precisely the same kind of Title VII/§1981 "overlap" and potential circumvention exists in respect to employment-related direct discrimination, yet Congress explicitly and intentionally created that overlap, Alexander v. Gardner-Denver Co., 415 U. S. 36, 48-49. Fourth, contrary to its arguments, CBOCS cannot find support in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63, and Domino's Pizza, Inc. v. McDonald, 546 U. S. 470. While Burlington distinguished discrimination based on status (e.g., as women or black persons) from discrimination based on conduct (e.g., whistle-blowing that leads to retaliation), it did not suggest that Congress must separate the two in all events. Moreover, while Domino's Pizza and other more recent cases may place greater emphasis on statutory language than did Sullivan, any arguable change in interpretive approach would not justify reexamination of well-established prior law under stare decisis principles. Pp. 9-14.

474 F. 3d 387, affirmed.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.

CBOCS WEST, INC., PETITIONER v. HEDRICK G.
HUMPHRIES


on writ of certiorari to the united states court of
appeals for the seventh circuit

May 27, 2008

Justice Breyer delivered the opinion of the Court.

A longstanding civil rights law, first enacted just after the Civil War, provides that "(a)ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." Rev. Stat. §1977, 42 U. S. C. §1981(a). The basic question before us is whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person's contract-related "right." We conclude that it does.

I

The case before us arises out of a claim by respondent, Hedrick G. Humphries, a former assistant manager of a Cracker Barrel restaurant, that CBOCS West, Inc. (Cracker Barrel's owner) dismissed him (1) because of racial bias (Humphries is a black man) and (2) because he had complained to managers that a fellow assistant manager had dismissed another black employee, Venus Green, for race-based reasons. Humphries timely filed a charge with the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U. S. C. §2000e-5, and received a "right to sue" letter. He then filed a complaint in Federal District Court charging that CBOCS' actions violated both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the older "equal contract rights" provision here at issue, §1981. The District Court dismissed Humphries' Title VII claims for failure to pay necessary filing fees on a timely basis. It then granted CBOCS' motion for summary judgment on Humphries' two §1981 claims. Humphries appealed.

The U. S. Court of Appeals for the Seventh Circuit ruled against Humphries and upheld the District Court's grant of summary judgment in respect to his direct discrimination claim. But it ruled in Humphries' favor and remanded for a trial in respect to his §1981 retaliation claim. In doing so, the Court of Appeals rejected CBOCS' argument that §1981 did not encompass a claim of retaliation. 474 F. 3d 387 (2007). CBOCS sought certiorari, asking us to consider this last-mentioned legal question. And we agreed to do so. See 551 U. S.___ (2007).

II

The question before us is whether §1981 encompasses retaliation claims. We conclude that it does. And because our conclusion rests in significant part upon principles of stare decisis, we begin by examining the pertinent interpretive history.

A

The Court first considered a comparable question in 1969, in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229. The case arose under 42 U. S. C. §1982, a statutory provision that Congress enacted just after the Civil War, along with §1981, to protect the rights of black citizens. The provision was similar to §1981 except that it focused, not upon rights to make and to enforce contracts, but rights related to the ownership of property. The statute provides that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." §1982.

Paul E. Sullivan, a white man, had rented his house to T. R. Freeman, Jr., a black man. He had also assigned Freeman a membership share in a corporation, which permitted the owner to use a private park that the corporation controlled. Because of Freeman's race, the corporation, Little Hunting Park, Inc., refused to approve the share assignment. And, when Sullivan protested, the association expelled Sullivan and took away his membership shares.

Sullivan sued Little Hunting Park, claiming that its actions violated §1982. The Court upheld Sullivan's claim. It found that the corporation's refusal "to approve the assignment of the membership share . . . was clearly an interference with Freeman's (the black lessee's) right to 'lease.' " 396 U. S., at 237. It added that Sullivan, the white lessor, "has standing to maintain this action," ibid., because, as the Court had previously said, "the white owner is at times 'the only effective adversary' of the unlawful restrictive covenant." Ibid. (quoting Barrows v. Jackson, 346 U. S. 249 (1953)). The Court noted that to permit the corporation to punish Sullivan "for trying to vindicate the rights of minorities protected by §1982" would give "impetus to the perpetuation of racial restrictions on property." 396 U. S., at 237. And this Court has made clear that Sullivan stands for the proposition that §1982 encompasses retaliation claims. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 176 (2005) ("(I)n Sullivan we interpreted a general prohibition on racial discrimination (in §1982) to cover retaliation against
those who advocate the rights of groups protected by that prohibition").

While the Sullivan decision interpreted §1982, our precedents have long construed §§1981 and 1982 similarly. In Runyon v. McCrary, 427 U. S. 160, 173 (1976), the Court considered whether §1981 prohibits private acts of discrimination. Citing Sullivan, along with Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968) and Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431 (1973), the Court reasoned that this case law "necessarily requires the conclusion that §1981, like §1982, reaches private conduct." 427 U. S., at 173. See also id., at 187 (Powell, J., concurring) ("Although [Sullivan and Jones] involved §1982, rather than §1981, I agree that their considered holdings with respect to the purpose and meaning of §1982 necessarily apply to both statutes in view of their common derivation"); id., at 190 (Stevens, J., concurring) ("[(I)t would be most incongruous to give those two sections [§§1981 and 1982] a fundamentally different construction"). See also Shaare Tefila Congregation v. Cobb, 481 U. S. 615, 617-618 (1987) (applying to §1982 the discussion and holding of Saint Francis College v. Al-Khazraji, 481 U. S. 604, 609-613 (1987), a case interpreting §1981).

As indicated in Runyon, the Court has construed §§1981 and 1982 alike because it has recognized the sister statutes' common language, origin, and purposes. Like §1981, §1982 traces its origin to §1 of the Civil Rights Act of 1866, 14 Stat. 27. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 383-384 (1982) (noting shared historical roots of the two provisions); Tillman, supra, at 439-440 (same). Like §1981, §1982 represents an immediately post-Civil War legislative effort to guarantee the then newly freed slaves the same legal rights that other citizens enjoy. See General Building Contractors Assn., supra, at 388 (noting strong purposive connection between the two provisions). Like §1981, §1982 uses broad language that says "(a)ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens ... ." Compare §1981's language set forth above, supra, at 1. See Jones, supra, at 441, n. 78 (noting the close parallel language of the two provisions). Indeed, §1982 differs from §1981 only in that it refers, not to the "right . . . to make and enforce contracts," 42 U. S. C. §1981(a), but to the "right . . . to inherit, purchase, lease, sell, hold, and convey real and personal property," §1982.

In light of these precedents, it is not surprising that following Sullivan, federal appeals courts concluded, on the basis of Sullivan or its reasoning, that §1981 encompassed retaliation claims. See, e.g., Choudhury v. Polytechnic Inst. of N. Y., 735 F. 2d 38, 42-43 (CA2 1984); Goff v. Continental Oil Co., 678 F. 2d 593, 598-599 (CA5 1982), overruled, Carter v. South Central Bell, 912 F. 2d 832 (CA5 1990); Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977).

B

In 1989, 20 years after Sullivan, this Court in Patterson v. McLean Credit Union, 491 U. S. 164, significantly limited the scope of §1981. The Court focused upon §1981's words "to make and enforce contracts" and interpreted the phrase narrowly. It wrote that the statutory phrase did not apply to "conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions." Id., at 177 (emphasis added). The Court added that the word "enforce" does not apply to post-contract-formation conduct unless the discrimination at issue "infects the legal process in ways that prevent one from enforcing contract rights." Ibid. (emphasis added). Thus §1981 did not encompass the claim of a black employee who charged that her employer had violated her employment contract by harassing her and failing to promote her, all because of her race. Ibid.

Since victims of an employer's retaliation will often have opposed discriminatory conduct taking place after the formation of the employment contract, Patterson's holding, for a brief time, seems in practice to have foreclosed retaliation claims. With one exception, we have found no federal court of appeals decision between the time we decided Patterson and 1991 that permitted a §1981 retaliation claim to proceed. See, e.g., Walker v. South Central Bell Tel. Co., 904 F. 2d 275, 276 (CA5 1990) (per curiam); Overby v. Chevron USA, Inc., 884 F. 2d 470, 473 (CA9 1989); Sherman v. Burke Contracting, Inc., 891 F. 2d 1527, 1534-1535 (CA11 1990) (per curiam). See also Malhotra v. Cotter & Co., 885 F. 2d 1305, 1312-1314 (CA7 1989) (questioning without deciding the viability of retaliation claims under §1981 after Patterson). But see Hicks v. Brown Group, Inc., 902 F. 2d 630, 635-638 (CA8 1990) (allowing a claim for discriminatory discharge to proceed under §1981), vacated and remanded, 499 U. S. 914 (1991) (ordering reconsideration in light of what became the Eighth Circuit's en banc opinion in Taggart v. Jefferson Cty. Child Support Enforcement Unit, 935 F. 2d 947 (1991), which held that racially discriminatory discharge claims under §1981 are barred).

In 1991, however, Congress weighed in on the matter. Congress passed the Civil Rights Act of 1991, §101, 105 Stat. 1071, with the design to supersede Patterson. Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004). Insofar as is relevant here, the

 
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