Gary V. Powell, Author

Years ago, in law school, I wrote a law review article on "Section 1981" and its interaction with Title VII of the Civil Rights Act of 1964. In the article I contended that Section 1981 was supplementary to Title VII and that Title VII did not supplant rights granted by Section 1981. It took a long time, but yesterday, the Supreme Court upheld my view--although they had no idea they were doing so.

Title VII created the EEOC and specifically prohibits discrimination in employment practices. Enacted in the wake of the Civil War, Section 1981 provides that "all 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.” Rev. Stat. §1977, 42 U. S. C. §1981(a).

The case before the Court yesterday dealt with retaliation against a black man who objected to the firing of another black man. Humphries failed to meet some of the statutory hurldles imposed by Title VII, but won in the lower court by relying on Section 1981. CBOCS argued that Title VII supplanted Section 1981 but Justice Breyer writing for the majority (all but Scalia and Thomas, throwbacks to the Neanderthal era), dismissed the argument summarily. CBOCS also argued that Section 1981 didn't apply to retaliation because it didn't mention it specifically. No doubt in an effort to bring Alito and Roberts into the fold, Breyer relied on stare decisis  to resolve this issue and citing two earlier case that had previously decided that Section 1981, if it had teeth at all, had to include law suits for retaliation and Congress recognized this at the time of enactment.

Overall, it was a good decision, highlighting the coalitions that have emerged in the Roberts Court. Currently, Breyer, Souter, Ginsburg, and Stevens generally vote together, opposing the troglodytes--Roberts, Scalia, Alito, and Thomas (interestingly, Thomas used to head the EEOC and should have known better in this case). Kennedy is the swing vote and, in general, is about all that stands between relegation of the Constitution and your civil rights to minor details. My guess is that all of the good guys could be looking at retirement in the next few years and are perhaps hanging on in hopes of a new and more reasonable President.

At least they got it right this time.