Introduction

It has been two years since the Supreme Court's decision in Burlington Northern & Santa Fe Railway v. White.1 In White, the Court adopted a lower threshold for Title VII retaliation claims than that which it applied to discrimination claims when it held: 1) Title VIFs anti-retaliation protections are not limited to employment-related acts (i.e., protections apply regardless of whether the employer's alleged retaliatory act occurs on or off the job, or whether or not it entails employment-related actions); and 2) the "reasonable employee" standard is used to determine whether the retaliatory act violates Title VII (i.e., whether the challenged action would have likely dissuaded a reasonable worker from making or supporting a charge of discrimination). Legal scholars widely pronounced that White would increase the number of retaliation claims, and that prediction has certainly held true.

Two recent Supreme Court pronouncements on May 27, 2008 - CBOCS West, Inc. v. Humphries2 and Gomez-Perez v. Potter3 - should continue the acceleration of retaliation claims. In both cases, the Supreme Court read a retaliation prohibition into two important federal discrimination statutes, even though neither statute contained specific retaliatory language. With these latest decisions, the Supreme Court seems bound and determined to protect employees' unfettered access to the employment discrimination laws.

This article will analyze: 1) Humphries and Gomez-Perez, 2) the appropriateness of each decision, and 3) the renewed importance of implementing effective counter measures to protect against the expected onslaught of retaliation claims. There can be scant doubt that, with adverse forces straining our economy today, retaliation claims will continue to soar.

The History Of Section 1981 Leading UpTo CBOCS West v. Humphries

The Civil Rights Act of 1866, 42 U.S.C. § Section 1981, enacted shortly after the Civil War, provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.4

Prior to 1964 and the momentous enactment of Title VII,5 Section 1981 enveloped claims of race discrimination in the workplace. With the passage of Title VII in 1964, Congress added another avenue for bringing workplace race discrimination claims, as well as for raising employment discrimination claims based upon gender, national origin, and several other protected categories.

In 1989, the Supreme Court in Patterson v. McLean Credit Union,6 limited the scope of Section 1981. The Patterson Court held that the language "...make and enforce contracts" excluded conduct that occurs after the contract relationship has already formed. In otìier words, 1981's language precluded claims for on-the-job harassment, failure to promote, discriminatory discharge, and the like. Essentially, Patterson limited the scope of Section 1981 to failure to hire cases.

In 1991, Congress reacted to Patterson by including certain provisions in the Civil Rights Act of 1991. In addition to expanding the remedies and creating jury trials for Title VII, the 1991 Act modified Section 1981 by adding a new subsection (b), which provides:

'Make and enforce contracts' defined For purposes of this section, the term 'make and enforce contract's' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.7

With that language, Section 1981 was expanded to include all harms flowing from race discrimination in the workplace. What remained unclear was whether retaliation claims were encompassed by Section 1981. …