The “new” but old retaliation claim

On May 27, 2008, the Supreme Court held that there is an implied right of action for retaliation in 42 U.S.C. 1981. CBOCS West Inc. v. Humphries, As to Tennessee employers, that had been the view of the Sixth Circuit for over 30 years (Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977), so, contrary to the splashy publicity, employers in this area will probably not see a major change (most attorneys who represent employees in race discrimination claims already add a 1981 claim when they file a Title VII lawsuit).

Two decisions from the Supreme Court have made lawsuits under section 1981 quirky from a procedural standpoint. The original statute, passed after the civil war, provided that all persons have the same right to make and enforce contracts as did white persons. After the supreme court narrowly interpreted the statute, Congress amended it in 1991 to broaden the kind of claims that could be brought.

Then, in 2004, the Supreme Court held lawsuits that could be brought because of the 1991 amendment could be filed within 4 years but claims that could have been brought under the statute before it was amended still borrowed state law which in Tennessee is 1 year. Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004). The reasoning behind these decisions is largely irrelevant to this topic so I'll omit it.

Two decsisions not terribly rooted in common sense mean that depending on the type of discrimination (i.e., hire v. fire) have very different time periods for filing a lawsuit. In Tennessee lawsuits over hiring decisions must be filed within 1 year while lawsuits over terminations have four years. So employers should keep all employment records, we advise, for at least four years.

What the recent CBOCS retaliation decision seems to foretell is that all retaliation claims (no matter the type) must be filed within 1 year (in Tennessee). The seven member majority reasons that in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), it had recognized a right to bring a retaliation claim based on a companion statute (section 1982) and that it had long interpreted sections 1981 and 1982 "similarly." Sullivan was obviously issued well before the 1991 Civil Rights Amendments Act. If, as the Court reasoned, a retaliation claim was originally recognized in 1969, that should mean that all retaliation claims under section 1981 borrow the state law statute of limitations (1 year in Tennessee) rather than the 4 year statute of limitations.

The CBOCS decision did not, however, specifically address the statute of limitation issue and different parts of the decision, if read out of context, could be read to support or deny the proposition that courts must borrow state statutes of limitations so it isn't yet clear which limitations period applies. Employers in Tennessee therefore should assume the 4 year period applies until the issue is resolved.

I should add that none of the above discussion affects lawsuits filed under Title VII, the "regular" employment discrimination statute.