The Freedmen’s Remedy

The big discrimination case before the Supreme Court.

In last year’s Supreme Court sleeper case, a woman named Lily Ledbetter lost her right to sue because she didn’t go to court the first time her paycheck was docked because of sex discrimination, as opposed to when she later realized she was being shortchanged. On Wednesday, the Supreme Court will hear a new employment discrimination case that could also shake up the law of the land and leave the court’s liberal dissenters apoplectic. This one may not only prune back employees’ rights under the particular statute at issue, but also help the Supreme Court’s conservatives rein in discrimination suits more generally.

Hendrick Humphries helped manage a Cracker Barrel restaurant between 1999 and 2001. At first, he thrived, receiving top performance evaluations, bonuses, and raises. Then he got a new supervisor, whom Humphries says made racist remarks and punished black employees unfairly. Humphries complained. Soon after, he was fired.

Humphries represented himself when he initially sued Cracker Barrel for race discrimination, and for technical reasons (his filing fee was late, because he was trying to get it waived on the grounds that he couldn’t afford it), the district court dismissed the claim he brought under Title VII, the omnibus federal anti-discrimination statute. That left Humphries with a claim under a less-used law, Section 1981 of the Civil Rights Act of 1866. Congress had passed that law to give former slaves the same rights to “make and enforce contracts” as white people, at a time when freedmen were having all kinds of trouble doing that. The question before the Supreme Court on Wednesday is whether an employee can sue for race discrimination based on Section 1981 if his claim is that his employer retaliated against him (in Humphries’ case, by firing him).

When Section 1981 initially passed, it did not include the word retaliation. According to a group of historians who have filed a brief on Humphries’ behalf, however, there was all kinds of evidence before Congress about violent reprisals against black people who reported contract violations. In Louisiana, the chief of a Freedman’s Bureau reported that a group of freedmen tried to complain to him after a plantation owner refused to pay them promised rations and salary. On their way off the plantation, the group was followed and taken to prison, where they were held for weeks or months. Congress presumably wanted to end such lawlessness by enacting the new statute.

The basic principle here, as Humphries’ lawyers point out (disclosure: one of them, Aleeza Strubel, is a friend of mine), is that where the law creates a right, it generally gives “two distinct and equally essential protections: protection from direct obstruction of that right, and protection from reprisal for exercising that right.”

Under this theory, Section 1981 gives people the right to make and enforce contracts free of race discrimination, and if they can be fired when they call out employers, then the law isn’t worth much. In 1969, the Supreme Court recognized this principle in a case involving the companion statute to Section 1981—Section 1982. That law, also passed in 1866, affords broad-based protection of minority property rights. In that 1969 case, Sullivan v. Little Hunting Park, a private community blocked the sale of a home by a white owner to a black buyer, and the court said the white owner could sue under Section 1982 because he’d been “punished for trying to vindicate the rights” the statute protects.

Along similar lines, and far more recently, in the 2005 case Jackson v. Birmingham Board of Education the Supreme Court read into Title IX, a sex discrimination law, a protection against retaliation. The actual word doesn’t appear in this statute, either. This time, the plaintiff was a white basketball coach. In a 5-4 decision by Justice Sandra Day O’Connor, the court said the coach’s right to sue for discriminatory treatment of the girls on his team was key to “effective protection” of the equal rights for which Title IX provides.

So, what’s the problem? No problem, from the point of view of two of the three appeals court judges who ruled in Humphries’ favor, one of whom is the esteemed and hardly liberal Richard Posner. No problem, also, for the Bush Justice Department, which is weighing in on Humphries’ side and thinks that Sullivan and Jackson pretty much settle the question. But Judge Frank Easterbrook, another esteemed member of the U.S. Court of Appeals for the 7th Circuit, disagreed with his colleagues and wrote a cranky dissent in which he signals to the Supreme Court to step in. “There has been a sea change in interpretive method between Sullivan and today,” Easterbrook writes. “We must respect our superiors’ decision to call a halt to judicial extrapolation. … My colleagues indulge an assumption—that if some remedies are good, then more must be better—that has no support on today’s Supreme Court.”

And what about Jackson, decided less than three years ago? Easterbrook waves it away—Title IX is simply a different statute. Sullivan really shouldn’t count, he continues, because Congress amended Section 1982 in 1991, at a time when the court was no longer taking the “freewheeling approach” to statutory interpretation that Easterbrook imputes to the 1960s. If Congress wanted Section 1982 to protect against retaliation, it should have said so. It didn’t. That’s that.

Here’s why that is unconvincing. (Remember, the Bush administration is on the side of the African-American guy who got fired here, so he must have a pretty good claim!) When Congress amended Section 1982 in 1991, it did so in response to a 1989 Supreme Court decision that had cut off the statute at the knees, or rather at the moment when employees might actually take advantage of it. In that case, Patterson v. McLean Credit Union, the court said that Section 1982 only applied when a contract was actually being formed, during the hiring process. After that, nada. Congress got mad and restored the statute to what lawmakers believed to be its original scope, at every phase of employment. It was responding, in part, to lower courts that in the wake of Patterson had dismissed suits for retaliation. As the Bush administration brief argues, “In reality, Congress responded to Patterson in a way that makes clear that both harassment and retaliation are prohibited.” That’s the context that matters—not the Supreme Court’s greater reluctance to read statutes broadly in 1991 vs. 1969.

Well-reasoned and explained as all of this is by Humphries’ lawyers and the government, the tea leaves of disaster for this case are also here for the reading. Patterson is the case in which liberal lion Justice William Brennan lost swing-vote Superman Justice Anthony Kennedy, according to Closed Chambers, an account of that year on the court by then-clerk Edward Lazarus. Despite initial moves in the other direction, Lazarus recounts, Kennedy ended up as the fifth vote in Patterson for chopping off Section 1981. He also dissented from O’Connor’s opinion in Jackson. Now, O’Connor’s seat belongs to archconservative Justice Samuel Alito. And Hendrick Humphries’ case seems an all-too-likely vehicle for furthering a cherished project of Alito’s side of the bench: reading laws—especially civil rights laws—narrowly. Which just happens to slam the door on plaintiffs.

Unless Kennedy changes his course, which is doubtful, the court’s right flank could use this case not only to block suits for retaliation like Humphries’, but also to set the stage to make it ever harder to sue for discrimination under other laws. You can imagine the opinion to be written this spring, perhaps by Alito or Chief Justice John Roberts. There will be no need to get fiery—that’s not these new justices’ style. Instead, it can all seem unremarkable and straightforward: Congress didn’t say retaliation, so Hendrick Humphries, you don’t get your retaliation suit. Oh, and by the way, we look forward to citing this opinion the next time a screwed-over plaintiff comes around.