No More Discrimination Lawsuits? Supreme Court May Make It Easier to Retaliate

CBOCS West v. Humphries considers whether employment laws that prevent race discrimination also prevent retaliation against those who complain of it. Should the Supreme Court side with CBOCS West, it would become easier for companies to retaliate against workers who file discrimination lawsuits. This would discourage many from disclosing illegal discriminatory practices.

Last June, the Supreme Court enhanced protections for employees on the basis of retaliation under Title XII of the Civil Rights Act of 1964. Two years ago, the court ruled 5-4 that Title IX includes protection against retaliation for alleged victims of sex discrimination. All lower courts in the case against CBOCS West sided with the plaintiff. Read the legal memo or download the opinion of the 7th Circuit Court of Appeals. 

So why is the Supreme Court taking up the issue again? Remember that all the lower courts also sided with the schools in the voluntary-integration cases the court decided in June. It appears the new Supreme Court, where right-leaning Justice Samuel J. Alito sits in place of moderate former Justice Sandra Day O'Connor, is taking on the CBOCS West case as it did with the school cases to advance a conservative agenda.

(See also: The End of an Era? Supreme Court Deals Blow to School Integration)

The Case: What Happened?

Hedrick Humphries, a black male, was an associate manager at an Illinois Cracker Barrel restaurant. His performance during his first two-and-a-half years with the company was "generally excellent," according to court testimony, and Humphries' direct supervisor testified that he thought Humphries was "his best associate manager."

Humphries' reviews turned sour when a new general manager, Steve Cardin, took over as a temporary replacement. Cardin issued Humphries five disciplinary reports alleging a range of misconduct within his first month on the job, all of which Humphries said were "groundless" and a product of Cardin's allegedly racist mindset.

The opinion reads: "According to Humphries, Cardin routinely made racially derogatory remarks, such as stating that all African Americans are 'drunk or high on drugs' or that 'all Mexicans have a bunch of kids.' Humphries alleges that other employees confirmed Cardin's inappropriate comments, and told Humphries that Cardin had stated that he was there 'for the white people' and 'was going to take care of the white people.'"

Court documents say it appears there was no thorough investigation into these complaints. Soon after, Humphries complained about the termination of a black-female employee by another general manager, Ken Dowd, alleging discrimination on the basis of race, and he reminded Dowd's supervisor William Christensen, who also had supervised Cardin, about his previous complaints.

Christensen scolded Humphries for "going outside the management group" and demanded he schedule a meeting with Dowd. Humphries was fired the day before the meeting because he allegedly failed to lock the safe at night, which he denies, and sued for retaliation and race discrimination under Section 1981 of the Civil Rights Act of 1991.

What Do the Courts Say?

A 7th Circuit Court upheld the retaliation claim but rejected the race-discrimination claim because Humphries failed to make a compelling argument. Section 1981 does not mention the term "retaliation" specifically, which is the basis for CBOCS West's technical legal defense, but court precedent says this statute includes protection against employer retaliation, and all lower courts involved in Humphries' case agreed.

Federal law includes "retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices," according to the U.S. Equal Employment Opportunity Commission (EEOC).

In 2004, the EEOC received 22,740 charges of retaliation discrimination and recouped more than $90 million in monetary benefits.

This is one of several controversial cases taken on by the Roberts court, reports The New York Times, which has 19 cases on the docket for the upcoming term. Another case that has attracted significant attention involves photo-ID requirements for voting.

In 2006, Cracker Barrel paid $2 million to 51 current and former employees in three Illinois restaurants for racial and sexual harassment and retaliation. The settlement also prevented retaliation against employees who complained about sexual harassment. Cracker Barrel also has been accused of discriminating against customers on the basis of race, including comedian Chris Rock's mother.