In seven years, Hendricks Humphries went from a Cracker Barrel assistant manager to the plaintiff in a lawsuit. The story behind the Humphries lawsuit began in 2001, when Humphries, who is African-American, pointed out that one of his supervisors used racially offensive remarks. Humphries also stated that an African-American waitress was fired for missing a shift while a Caucasian waitress committed the same offense and kept her job. Humphries worked for the restaurant chain for three years his reports of race discrimination. He received recognition and bonuses throughout his employment. Nevertheless, he was fired for leaving a store safe open shortly after he complained of race discrimination.
Humphries filed the lawsuit CBOCS West Inc. v. Humphries alleging that his employment was terminated because of his race and in retaliation for his race discrimination complaints. The significant thing about Humphries lawsuit was that his retaliation claim was brought under §1981. Prior to Humphries lawsuit, it was unclear whether §1981 allowed retaliation claims. The plain language of the statute states 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.” In CBOCS West Inc. v. Humphries, the Supreme Court held that §1981’s language allows for retaliation claims.
Why is it significant that you can sue for retaliation under §1981?
1. Title VII has a $300,000 cap on damages. §1981 has no such cap on damages.
2. Title VII claims have a 180/300 day statute of limitations. §1981 has a much longer four year statute of limitations.
3. Title VII requires that employees exhaust their administrative remedies before filing their lawsuit. This means that employees must file a discrimination or retaliation charge with the Equal Employment Opportunity Commission and go through that process before they can go to court. §1981 has no such requirement. You can go straight to court.
4. Title VII does not allow employees to sue their managers, i.e., the individuals who personally inflicted your harm. Again, §1981 has no such limitation. §1981 allows you to sue the company and the individual managers. This gives employees more options strategically and financially.
A plaintiff’s employment lawyer said to me, “I don’t know why anyone fools around with Title VII anymore. §1981 is so much better.” I certainly see his logic. But, Title VII still has one big advantage over §1981 . . . the EEOC’s administrative process. Your employer must provide a written position statement and supporting documentation when you file a discrimination or retaliation charge with the EEOC. This requires that they commit to a position much earlier and with a lot less knowledge about your claims than they would if you went straight to court under §1981. And, the law allows you to obtain the information your employer provided to the EEOC thereby allowing you to educate yourself on your employer’s position/defenses very early in the case. That is priceless. However, once your employer has committed its position to writing, Title VII loses its advantage and §1981 appears to be the stronger cause of action.
Humphries filed the lawsuit CBOCS West Inc. v. Humphries alleging that his employment was terminated because of his race and in retaliation for his race discrimination complaints. The significant thing about Humphries lawsuit was that his retaliation claim was brought under §1981. Prior to Humphries lawsuit, it was unclear whether §1981 allowed retaliation claims. The plain language of the statute states 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.” In CBOCS West Inc. v. Humphries, the Supreme Court held that §1981’s language allows for retaliation claims.
Why is it significant that you can sue for retaliation under §1981?
1. Title VII has a $300,000 cap on damages. §1981 has no such cap on damages.
2. Title VII claims have a 180/300 day statute of limitations. §1981 has a much longer four year statute of limitations.
3. Title VII requires that employees exhaust their administrative remedies before filing their lawsuit. This means that employees must file a discrimination or retaliation charge with the Equal Employment Opportunity Commission and go through that process before they can go to court. §1981 has no such requirement. You can go straight to court.
4. Title VII does not allow employees to sue their managers, i.e., the individuals who personally inflicted your harm. Again, §1981 has no such limitation. §1981 allows you to sue the company and the individual managers. This gives employees more options strategically and financially.
A plaintiff’s employment lawyer said to me, “I don’t know why anyone fools around with Title VII anymore. §1981 is so much better.” I certainly see his logic. But, Title VII still has one big advantage over §1981 . . . the EEOC’s administrative process. Your employer must provide a written position statement and supporting documentation when you file a discrimination or retaliation charge with the EEOC. This requires that they commit to a position much earlier and with a lot less knowledge about your claims than they would if you went straight to court under §1981. And, the law allows you to obtain the information your employer provided to the EEOC thereby allowing you to educate yourself on your employer’s position/defenses very early in the case. That is priceless. However, once your employer has committed its position to writing, Title VII loses its advantage and §1981 appears to be the stronger cause of action.
I am not saying that you should abandon Title VII retaliation claims. Rather, the lesson of CBOCS West Inc. v. Humphries is that employees should not overlook the Supreme Court’s tremendous gift of §1981 retaliation claims, i.e., unlimited damages, longer statute of limitations, and more individuals to hold accountable.
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