CBOCS West, Inc. v. Humphries

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CBOCS WEST, INC. v. HUMPHRIES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT

No. 06–1431. Argued February 20, 2008—Decided May 27, 2008
Claiming that petitioner CBOCS West, Inc., dismissed him because he
is black and because he complained to managers that a black co-
employee was also dismissed for race-based reasons, respondent
Humphries filed suit charging that CBOCS’ actions violated both Ti-
tle VII of the Civil Rights Act of 1964 and 42 U. S. C. §1981, the lat-
ter of which gives “[a]ll persons . . . the same right . . . to make and
enforce contracts . . . as is enjoyed by white citizens.” The District
Court dismissed the Title VII claims for failure to timely pay filing
fees and granted CBOCS summary judgment on the §1981 claims.
The Seventh Circuit affirmed on the direct discrimination claim, but
remanded for a trial on Humphries’ §1981 retaliation claim, rejecting
CBOCS’ argument that §1981 did not encompass such a claim.
Held: Section 1981 encompasses retaliation claims. Pp. 2–14.
(a) Because this conclusion rests in significant part upon stare de-
cisis principles, the Court examines the pertinent interpretive his-
tory. (1) In 1969, Sullivan v. Little Hunting Park, Inc., 396 U. S. 229,
237, as later interpreted and relied on by Jackson v. Birmingham Bd.
of Ed., 544 U. S. 167, 176, recognized that retaliation actions are en-
compassed by 42 U. S. C. §1982, which provides that “[a]ll citizens . . .
shall have the same right, . . . , as is enjoyed by white citizens . . . to
inherit, purchase, lease, sell, hold, and convey real and personal
property.” (2) This Court has long interpreted §§1981 and 1982 alike
because they were enacted together, have common language, and
serve the same purpose of providing black citizens the same legal
rights as enjoyed by other citizens. See, e.g., Runyon v. McCrary, 427
U. S. 160, 183, 197, 190. (3) In 1989, Patterson v. McLean Credit Un-
ion, 491 U. S. 164, 177, without mention of retaliation, narrowed
§1981 by excluding from its scope conduct occurring after formation
2 CBOCS WEST, INC. v. HUMPHRIES

Syllabus

of the employment contract, where retaliation would most likely be
found. Subsequently, Congress enacted the Civil Rights Act of 1991,
which was designed to supersede Patterson, see Jones v. R. R. Don-
nelley & Sons Co., 541 U. S. 369, 383, by explicitly defining §1981’s
scope to include post-contract-formation conduct, §1981(b). (4) Since
1991, the Federal Courts of Appeals have uniformly interpreted
§1981 as encompassing retaliation actions. Sullivan, as interpreted
by Jackson, as well as a long line of related cases where the Court
construes §§1981 and 1982 similarly, lead to the conclusion that the
view that §1981 encompasses retaliation claims is well embedded in
the law. Stare decisis considerations strongly support the Court’s
adherence to that view. Such considerations impose a considerable
burden on those who would seek a different interpretation that would
necessarily unsettle many Court precedents. Pp. 2–8.
(b) CBOCS’ several arguments, taken separately or together, can-
not justify a departure from this well-embedded interpretation of
§1981. First, while CBOCS is correct that §1981’s plain text does not
expressly refer to retaliation, that alone is not sufficient to carry the
day, given this Court’s long recognition that §1982 provides protec-
tion against retaliation; Jackson’s recent holding that Title IX of the
Education Amendments of 1972 includes an antiretaliation remedy,
despite Title IX’s failure to use the word “retaliation,” 544 U. S., at
173–174, 176; and Sullivan’s refusal to embrace a similar argument,
see 396 U. S., at 241. Second, contrary to CBOCS’ assertion, Con-
gress’ failure to include an explicit antiretaliation provision in its
1991 amendment of §1981 does not demonstrate an intention not to
cover retaliation, but is more plausibly explained by the fact that,
given Sullivan and the new statutory language nullifying Patterson,
there was no need to include explicit retaliation language. Third, the
argument that applying §1981 to employment-related retaliation ac-
tions would create an overlap with Title VII, allegedly allowing a re-
taliation plaintiff to circumvent Title VII’s detailed administrative
and procedural mechanisms and thereby undermine their effective-
ness, proves too much. Precisely the same kind of Title VII/§1981
“overlap” and potential circumvention exists in respect to employ-
ment-related direct discrimination, yet Congress explicitly and inten-
tionally created that overlap, Alexander v. Gardner-Denver Co., 415
U. S. 36, 48–49. Fourth, contrary to its arguments, CBOCS cannot
find support in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53,
63, and Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470. While Bur-
lington distinguished discrimination based on status (e.g., as women
or black persons) from discrimination based on conduct (e.g., whistle-
blowing that leads to retaliation), it did not suggest that Congress
must separate the two in all events. Moreover, while Domino’s Pizza
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Syllabus

and other more recent cases may place greater emphasis on statutory
language than did Sullivan, any arguable change in interpretive ap-
proach would not justify reexamination of well-established prior law
under stare decisis principles. Pp. 9–14.
474 F. 3d 387, affirmed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and ALITO, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.
 Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–1431
_________________

CBOCS WEST, INC., PETITIONER v. HEDRICK G.

HUMPHRIES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[May 27, 2008]

JUSTICE BREYER delivered the opinion of the Court.
A longstanding civil rights law, first enacted just after
the Civil War, provides 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.” Rev. Stat. §1977, 42
U. S. C. §1981(a). The basic question before us is whether
the provision encompasses a complaint of retaliation
against a person who has complained about a violation of
another person’s contract-related “right.” We conclude
that it does.
I
The case before us arises out of a claim by respondent,
Hedrick G. Humphries, a former assistant manager of a
Cracker Barrel restaurant, that CBOCS West, Inc.
(Cracker Barrel’s owner) dismissed him (1) because of
racial bias (Humphries is a black man) and (2) because he
had complained to managers that a fellow assistant man-
ager had dismissed another black employee, Venus Green,
for race-based reasons. Humphries timely filed a charge
with the Equal Employment Opportunity Commission
2 CBOCS WEST, INC. v. HUMPHRIES

Opinion of the Court

(EEOC), pursuant to 42 U. S. C. §2000e–5, and received a
“right to sue” letter. He then filed a complaint in Federal
District Court charging that CBOCS’ actions violated both
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U. S. C. §2000e et seq., and the older “equal
contract rights” provision here at issue, §1981. The Dis-
trict Court dismissed Humphries’ Title VII claims for
failure to pay necessary filing fees on a timely basis. It
then granted CBOCS’ motion for summary judgment on
Humphries’ two §1981 claims. Humphries appealed.
The U. S. Court of Appeals for the Seventh Circuit ruled
against Humphries and upheld the District Court’s grant
of summary judgment in respect to his direct discrimina-
tion claim. But it ruled in Humphries’ favor and re-
manded for a trial in respect to his §1981 retaliation
claim. In doing so, the Court of Appeals rejected CBOCS’
argument that §1981 did not encompass a claim of retalia-
tion. 474 F. 3d 387 (2007). CBOCS sought certiorari,
asking us to consider this last-mentioned legal question.
And we agreed to do so. See 551 U. S.___ (2007).
II
The question before us is whether §1981 encompasses
retaliation claims. We conclude that it does. And because
our conclusion rests in significant part upon principles of
stare decisis, we begin by examining the pertinent inter-
pretive history.
A
The Court first considered a comparable question in
1969, in Sullivan v. Little Hunting Park, Inc., 396 U. S.
229. The case arose under 42 U. S. C. §1982, a statutory
provision that Congress enacted just after the Civil War,
along with §1981, to protect the rights of black citizens.
The provision was similar to §1981 except that it focused,
not upon rights to make and to enforce contracts, but
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Opinion of the Court

rights related to the ownership of property. The statute
provides that “[a]ll citizens of the United States shall have
the same right, in every State and Territory, as is enjoyed
by white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.” §1982.
Paul E. Sullivan, a white man, had rented his house to
T. R. Freeman, Jr., a black man. He had also assigned
Freeman a membership share in a corporation, which
permitted the owner to use a private park that the corpo-
ration controlled. Because of Freeman’s race, the corpora-
tion, Little Hunting Park, Inc., refused to approve the
share assignment. And, when Sullivan protested, the
association expelled Sullivan and took away his member-
ship shares.
Sullivan sued Little Hunting Park, claiming that its
actions violated §1982. The Court upheld Sullivan’s claim.
It found that the corporation’s refusal “to approve the
assignment of the membership share . . . was clearly an
interference with Freeman’s [the black lessee’s] right to
‘lease.’ ” 396 U. S., at 237. It added that Sullivan, the
white lessor, “has standing to maintain this action,” ibid.,
because, as the Court had previously said, “the white
owner is at times ‘the only effective adversary’ of the
unlawful restrictive covenant.” Ibid. (quoting Barrows v.
Jackson, 346 U. S. 249 (1953)). The Court noted that to
permit the corporation to punish Sullivan “for trying to
vindicate the rights of minorities protected by §1982”
would give “impetus to the perpetuation of racial restric-
tions on property.” 396 U. S., at 237. And this Court has
made clear that Sullivan stands for the proposition that
§1982 encompasses retaliation claims. See Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167, 176 (2005) (“[I]n
Sullivan we interpreted a general prohibition on racial
discrimination [in §1982] to cover retaliation against
those who advocate the rights of groups protected by that
prohibition”).
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Opinion of the Court

While the Sullivan decision interpreted §1982, our
precedents have long construed §§1981 and 1982 simi-
larly. In Runyon v. McCrary, 427 U. S. 160, 173 (1976),
the Court considered whether §1981 prohibits private acts
of discrimination. Citing Sullivan, along with Jones v.
Alfred H. Mayer Co., 392 U. S. 409 (1968) and Tillman v.
Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431
(1973), the Court reasoned that this case law “necessarily
requires the conclusion that §1981, like §1982, reaches
private conduct.” 427 U. S., at 173. See also id., at 187
(Powell, J., concurring) (“Although [Sullivan and Jones]
involved §1982, rather than §1981, I agree that their
considered holdings with respect to the purpose and mean-
ing of §1982 necessarily apply to both statutes in view of
their common derivation”); id., at 190 (STEVENS, J., con-
curring) (“[I]t would be most incongruous to give those two
sections [§§1981 and 1982] a fundamentally different
construction”). See also Shaare Tefila Congregation v.
Cobb, 481 U. S. 615, 617–618 (1987) (applying to §1982
the discussion and holding of Saint Francis College v. Al-
Khazraji, 481 U. S. 604, 609–613 (1987), a case interpret-
ing §1981).
As indicated in Runyon, the Court has construed §§1981
and 1982 alike because it has recognized the sister stat-
utes’ common language, origin, and purposes. Like §1981,
§1982 traces its origin to §1 of the Civil Rights Act of 1866,
14 Stat. 27. See General Building Contractors Assn., Inc.
v. Pennsylvania, 458 U. S. 375, 383–384 (1982) (noting
shared historical roots of the two provisions); Tillman,
supra, at 439–440 (same). Like §1981, §1982 represents
an immediately post-Civil War legislative effort to guaran-
tee the then newly freed slaves the same legal rights that
other citizens enjoy. See General Building Contractors
Assn., supra, at 388 (noting strong purposive connection
between the two provisions). Like §1981, §1982 uses
broad language that says “[a]ll citizens of the United
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Opinion of the Court

States shall have the same right, in every State and Terri-
tory, as is enjoyed by white citizens . . . .” Compare
§1981’s language set forth above, supra, at 1. See Jones,
supra, at 441, n. 78 (noting the close parallel language of
the two provisions). Indeed, §1982 differs from §1981 only
in that it refers, not to the “right . . . to make and enforce
contracts,” 42 U. S. C. §1981(a), but to the “right . . . to
inherit, purchase, lease, sell, hold, and convey real and
personal property,” §1982.
In light of these precedents, it is not surprising that
following Sullivan, federal appeals courts concluded, on
the basis of Sullivan or its reasoning, that §1981 encom-
passed retaliation claims. See, e.g., Choudhury v. Poly-
technic Inst. of N. Y., 735 F. 2d 38, 42–43 (CA2 1984); Goff
v. Continental Oil Co., 678 F. 2d 593, 598–599 (CA5 1982),
overruled, Carter v. South Central Bell, 912 F. 2d 832
(CA5 1990); Winston v. Lear-Siegler, Inc., 558 F. 2d 1266,
1270 (CA6 1977).
B
In 1989, 20 years after Sullivan, this Court in Patterson
v. McLean Credit Union, 491 U. S. 164, significantly lim-
ited the scope of §1981. The Court focused upon §1981’s
words “to make and enforce contracts” and interpreted the
phrase narrowly. It wrote that the statutory phrase did
not apply to “conduct by the employer after the contract
relation has been established, including breach of the
terms of the contract or imposition of discriminatory work-
ing conditions.” Id., at 177 (emphasis added). The Court
added that the word “enforce” does not apply to post-
contract-formation conduct unless the discrimination at
issue “infects the legal process in ways that prevent one
from enforcing contract rights.” Ibid. (emphasis added).
Thus §1981 did not encompass the claim of a black em-
ployee who charged that her employer had violated her
employment contract by harassing her and failing to
6 CBOCS WEST, INC. v. HUMPHRIES

Opinion of the Court

promote her, all because of her race. Ibid.
Since victims of an employer’s retaliation will often have
opposed discriminatory conduct taking place after the
formation of the employment contract, Patterson’s holding,
for a brief time, seems in practice to have foreclosed re-
taliation claims. With one exception, we have found no
federal court of appeals decision between the time we
decided Patterson and 1991 that permitted a §1981 re-
taliation claim to proceed. See, e.g., Walker v. South
Central Bell Tel. Co., 904 F. 2d 275, 276 (CA5 1990) (per
curiam); Overby v. Chevron USA, Inc., 884 F. 2d 470, 473
(CA9 1989); Sherman v. Burke Contracting, Inc., 891 F. 2d
1527, 1534–1535 (CA11 1990) (per curiam). See also
Malhotra v. Cotter & Co., 885 F. 2d 1305, 1312–1314 (CA7
1989) (questioning without deciding the viability of re-
taliation claims under §1981 after Patterson). But see
Hicks v. Brown Group, Inc., 902 F. 2d 630, 635–638 (CA8
1990) (allowing a claim for discriminatory discharge to
proceed under §1981), vacated and remanded, 499 U. S.
914 (1991) (ordering reconsideration in light of what be-
came the Eighth Circuit’s en banc opinion in Taggart v.
Jefferson Cty. Child Support Enforcement Unit, 935 F. 2d
947 (1991), which held that racially discriminatory dis-
charge claims under §1981 are barred).
In 1991, however, Congress weighed in on the matter.
Congress passed the Civil Rights Act of 1991, §101, 105
Stat. 1071, with the design to supersede Patterson. Jones
v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004).
Insofar as is relevant here, the new law changed 42
U. S. C. §1981 by reenacting the former provision, desig-
nating it as §1981(a), and adding a new subsection, (b),
which, says:
“ ‘Make and enforce contracts’ defined
“For purposes of this section, the term ‘make and en-
force contracts’ includes the making, performance,
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Opinion of the Court

modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and condi-
tions of the contractual relationship.”
An accompanying Senate Report pointed out that the
amendment superseded Patterson by adding a new subsec-
tion (b) that would “reaffirm that the right ‘to make and
enforce contracts’ includes the enjoyment of all benefits,
privileges, terms and conditions of the contractual rela-
tionship.” S. Rep. No. 101–315, p. 6 (1990). Among other
things, it would “ensure that Americans may not be har-
assed, fired or otherwise discriminated against in con-
tracts because of their race.” Ibid. (emphasis added). An
accompanying House Report said that in “cutting back the
scope of the rights to ‘make’ and ‘enforce’ contracts[,]
Patterson . . . has been interpreted to eliminate retaliation
claims that the courts had previously recognized under
section 1981.” H. R. Rep. No. 102–40, pt. 1, pp. 92–93, n.
92 (1991). It added that the protections that subsection
(b) provided, in “the context of employment discrimina-
tion . . . would include, but not be limited to, claims of
harassment, discharge, demotion, promotion, transfer,
retaliation, and hiring.” Id., at 92 (emphasis added). It
also said that the new law “would restore rights to sue for
such retaliatory conduct.” Id., at 93, n. 92.
After enactment of the new law, the Federal Courts of
Appeals again reached a broad consensus that §1981, as
amended, encompasses retaliation claims. See, e.g., Haw-
kins v. 1115 Legal Serv. Care, 163 F. 3d 684, 693 (CA2
1998); Aleman v. Chugach Support Servs., Inc., 485 F. 3d
206, 213–214 (CA4 2007); Foley v. University of Houston
System, 355 F. 3d 333, 338–339 (CA5 2003); Johnson v.
University of Cincinnati, 215 F. 3d 561, 575–576 (CA6
2000); 474 F. 3d, at 403 (case below); Manatt v. Bank of
America, NA, 339 F. 3d 792, 800–801, and n. 11 (CA9
2003); Andrews v. Lakeshore Rehabilitation Hospital, 140
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Opinion of the Court

F. 3d 1405, 1411–1413 (CA11 1998).
The upshot is this: (1) in 1969, Sullivan, as interpreted
by Jackson, recognized that §1982 encompasses a retalia-
tion action; (2) this Court has long interpreted §§1981 and
1982 alike; (3) in 1989, Patterson, without mention of
retaliation, narrowed §1981 by excluding from its scope
conduct, namely post-contract-formation conduct, where
retaliation would most likely be found; but in 1991, Con-
gress enacted legislation that superseded Patterson and
explicitly defined the scope of §1981 to include post-
contract-formation conduct; and (4) since 1991, the lower
courts have uniformly interpreted §1981 as encompassing
retaliation actions.
C
Sullivan, as interpreted and relied upon by Jackson, as
well as the long line of related cases where we construe
§§1981 and 1982 similarly, lead us to conclude that the
view that §1981 encompasses retaliation claims is indeed
well embedded in the law. That being so, considerations of
stare decisis strongly support our adherence to that view.
And those considerations impose a considerable burden
upon those who would seek a different interpretation that
would necessarily unsettle many Court precedents. See,
e.g., Welch v. Texas Dept. of Highways and Public Transp.,
483 U. S. 468, 494–495 (1987) (plurality opinion) (describ-
ing importance of stare decisis); Patterson, 491 U. S., at
172 (considerations of stare decisis “have special force in
the area of statutory interpretation”); John R. Sand &
Gravel Co. v. United States, 552 U. S. ___, ___ (2008) (slip
op., at 8–9) (same).
III
In our view, CBOCS’ several arguments, taken sepa-
rately or together, cannot justify a departure from what
we have just described as the well-embedded interpreta-
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Opinion of the Court

tion of §1981. First, CBOCS points to the plain text of
§1981—a text that says that “[a]ll persons . . . shall have
the same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens.” 42 U. S. C. §1981(a) (emphasis
added). CBOCS adds that, insofar as Humphries com-
plains of retaliation, he is complaining of a retaliatory
action that the employer would have taken against him
whether he was black or white, and there is no way to
construe this text to cover that kind of deprivation. Thus
the text’s language, CBOCS concludes, simply “does not
provide for a cause of action based on retaliation.” Brief
for Petitioner 8.
We agree with CBOCS that the statute’s language does
not expressly refer to the claim of an individual (black or
white) who suffers retaliation because he has tried to help
a different individual, suffering direct racial discrimina-
tion, secure his §1981 rights. But that fact alone is not
sufficient to carry the day. After all, this Court has long
held that the statutory text of §1981’s sister statute,
§1982, provides protection from retaliation for reasons
related to the enforcement of the express statutory right.
See supra, at 3.
Moreover, the Court has recently read another broadly
worded civil rights statute, namely, Title IX of the Educa-
tion Amendments of 1972, 86 Stat. 373, as amended, 20
U. S. C. §1681 et seq., as including an antiretaliation
remedy. In 2005 in Jackson, the Court considered
whether statutory language prohibiting “discrimination
[on the basis of sex] under any education program or
activity receiving Federal financial assistance,” §1681(a),
encompassed claims of retaliation for complaints about sex
discrimination. 544 U. S., at 173–174. Despite the fact
that Title IX does not use the word “retaliation,” the Court
held in Jackson that the statute’s language encompassed
such a claim, in part because: (1) “Congress enacted Title
IX just three years after Sullivan was decided”; (2) it is
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Opinion of the Court

“ ‘realistic to presume that Congress was thoroughly famil-
iar’ ” with Sullivan; and (3) Congress consequently “ ‘ex-
pected its enactment’ ” of Title IX “ ‘to be interpreted in
conformity with’ ” Sullivan. Jackson, supra, at 176. The
Court in Jackson explicitly rejected the arguments the
dissent advances here—that Sullivan was merely a stand-
ing case, see post, at 8–11 (opinion of THOMAS, J.). Com-
pare Jackson, 544 U. S., at 176, n. 1 (“Sullivan’s holding
was not so limited. It plainly held that the white owner
could maintain his own private cause of action under
§1982 if he could show that he was ‘punished for trying to
vindicate the rights of minorities’ ” (emphasis in original)),
with id., at 194 (THOMAS, J., dissenting).
Regardless, the linguistic argument that CBOCS makes
was apparent at the time the Court decided Sullivan. See
396 U. S., at 241 (Harlan, J., dissenting) (noting the con-
struction of §1982 in Jones, 392 U. S. 409 was “in no way
required by [the statute’s] language,”—one of the bases of
Justice Harlan’s dissent in Jones—and further contending
that the Court in Sullivan had gone “yet beyond” Jones).
And we believe it is too late in the day in effect to overturn
the holding in that case (nor does CBOCS ask us to do so)
on the basis of a linguistic argument that was apparent,
and which the Court did not embrace at that time.
Second, CBOCS argues that Congress, in 1991 when it
reenacted §1981 with amendments, intended the reen-
acted statute not to cover retaliation. CBOCS rests this
conclusion primarily upon the fact that Congress did not
include an explicit antiretaliation provision or the word
“retaliation” in the new statutory language—although
Congress has included explicit antiretaliation language in
other civil rights statutes. See, e.g., National Labor Rela-
tions Act, 29 U. S. C. §158(a)(4); Fair Labor Standards Act
of 1938, 29 U. S. C. §215(a)(3); Title VII of the Civil Rights
Act of 1964, 42 U. S. C. §2000e–3(a); Age Discrimination
in Employment Act of 1967, 29 U. S. C. §623(d); Ameri-
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Opinion of the Court

cans with Disabilities Act of 1990, 42 U. S. C. §§12203(a)–
(b); Family and Medical Leave Act of 1993, 29 U. S. C.
§2615.
We believe, however, that the circumstances to which
CBOCS points find a far more plausible explanation in the
fact that, given Sullivan and the new statutory language
nullifying Patterson, there was no need for Congress to
include explicit language about retaliation. After all, the
1991 amendments themselves make clear that Congress
intended to supersede the result in Patterson and embrace
pre-Patterson law. And pre-Patterson law included Sulli-
van. See Part II, supra. Nothing in the statute’s text or in
the surrounding circumstances suggests any congressional
effort to supersede Sullivan or the interpretation that
courts have subsequently given that case. To the contrary,
the amendments’ history indicates that Congress intended
to restore that interpretation. See, e.g., H. R. Rep. No.
102–40, at 92 (noting that §1981(b) in the “context of
employment discrimination . . . would include . . . claims of
. . . retaliation”).
Third, CBOCS points out that §1981, if applied to em-
ployment-related retaliation actions, would overlap with
Title VII. It adds that Title VII requires that those who
invoke its remedial powers satisfy certain procedural and
administrative requirements that §1981 does not contain.
See, e.g., 42 U. S. C. §2000e–5(e)(1) (charge of discrimina-
tion must be brought before EEOC within 180 days of the
discriminatory act); §2000e–5(f)(1) (suit must be filed
within 90 days of obtaining an EEOC right-to-sue letter).
And CBOCS says that permitting a §1981 retaliation
action would allow a retaliation plaintiff to circumvent
Title VII’s “specific administrative and procedural mecha-
nisms,” thereby undermining their effectiveness. Brief for
Petitioner 25.
This argument, however, proves too much. Precisely the
same kind of Title VII/§1981 “overlap” and potential cir-
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Opinion of the Court

cumvention exists in respect to employment-related direct
discrimination. Yet Congress explicitly created the over-
lap in respect to direct employment discrimination. Nor is
it obvious how we can interpret §1981 to avoid employ-
ment-related overlap without eviscerating §1981 in respect
to non-employment contracts where no such overlap
exists.
Regardless, we have previously acknowledged a “neces-
sary overlap” between Title VII and §1981. Patterson, 491
U. S., at 181. We have added that the “remedies available
under Title VII and under §1981, although related, and
although directed to most of the same ends, are separate,
distinct, and independent.” Johnson v. Railway Express
Agency, Inc., 421 U. S. 454, 461 (1975). We have pointed
out that Title VII provides important administrative
remedies and other benefits that §1981 lacks. See id., at
457–458 (detailing the benefits of Title VII to those ag-
grieved by race-based employment discrimination). And
we have concluded that “Title VII was designed to sup-
plement, rather than supplant, existing laws and institu-
tions relating to employment discrimination.” Alexander
v. Gardner-Denver Co., 415 U. S. 36, 48–49 (1974). In a
word, we have previously held that the “overlap” reflects
congressional design. See ibid. We have no reason to
reach a different conclusion in this case.
Fourth, CBOCS says it finds support for its position in
two of our recent cases, Burlington N. & S. F. R. Co. v.
White, 548 U. S. 53 (2006), and Domino’s Pizza, Inc. v.
McDonald, 546 U. S. 470 (2006). In Burlington, a Title
VII case, we distinguished between discrimination that
harms individuals because of “who they are, i.e., their
status,” for example, as women or as black persons, and
discrimination that harms “individuals based on what
they do, i.e., their conduct,” for example, whistle-blowing
that leads to retaliation. 548 U. S., at 63. CBOCS says
that we should draw a similar distinction here and
 Cite as: 553 U. S. ____ (2008) 13

Opinion of the Court

conclude that §1981 only encompasses status-based dis-
crimination. In Burlington, however, we used the
status/conduct distinction to help explain why Congress
might have wanted its explicit Title VII antiretaliation
provision to sweep more broadly (i.e., to include conduct
outside the workplace) than its substantive Title VII
(status-based) antidiscrimination provision. Burlington
did not suggest that Congress must separate the two in all
events.
The dissent argues that the distinction made in Burling-
ton is meaningful here because it purportedly “under-
scores the fact that status-based discrimination and con-
duct-based retaliation are distinct harms that call for
tailored legislative treatment.” Post, at 5. The Court’s
construction of a general ban on discrimination such as
that contained in §1981 to cover retaliation claims, the
dissent continues, would somehow render the separate
antiretaliation provisions in other statutes “superfluous.”
Ibid. But the Court in Burlington did not find that Title
VII’s antiretaliation provision was redundant; it found
that the provision had a broader reach than the statute’s
substantive provision. And in any case, we have held that
“legislative enactments in this area have long evinced a
general intent to accord parallel or overlapping remedies
against discrimination.” Alexander, supra, at 47. See
Great American Fed. Sav. & Loan Assn. v. Novotny, 442
U. S. 366, 377 (1979) (“[S]ubstantive rights conferred in
the 19th century [civil rights acts] were not withdrawn,
sub silentio, by the subsequent passage of the modern
statutes”). Accordingly, the Court has accepted overlap
between a number of civil rights statutes. See ibid. (dis-
cussing interrelation of fair housing provisions of the Civil
Rights Act of 1968 and §1982; between §1981 and Title
VII). See also supra, at 11–12 (any overlap in reach be-
tween §1981 and Title VII, the statute at issue in Burling-
ton, is by congressional design).
14 CBOCS WEST, INC. v. HUMPHRIES

Opinion of the Court

CBOCS highlights the second case, Domino’s Pizza,
along with Patterson, and cites Cort v. Ash, 422 U. S. 66
(1975) and Rodriguez v. United States, 480 U. S. 522
(1987) (per curiam), to show that this Court now follows
an approach to statutory interpretation that emphasizes
text. And that newer approach, CBOCS claims, should
lead us to revisit the holding in Sullivan, an older case,
where the Court placed less weight upon the textual lan-
guage itself. But even were we to posit for argument’s
sake that changes in interpretive approach take place
from time to time, we could not agree that the existence of
such a change would justify reexamination of well-
established prior law. Principles of stare decisis, after all,
demand respect for precedent whether judicial methods of
interpretation change or stay the same. Were that not so,
those principles would fail to achieve the legal stability
that they seek and upon which the rule of law depends.
See, e.g., John R. Sand & Gravel Co., 552 U. S., at ___
(slip op., at 8–9).
IV
We conclude that considerations of stare decisis strongly
support our adherence to Sullivan and the long line of
related cases where we interpret §§1981 and 1982 simi-
larly. CBOCS’ arguments do not convince us to the con-
trary. We consequently hold that 42 U. S. C. §1981 en-
compasses claims of retaliation. The judgment of the
Court of Appeals is affirmed.
It is so ordered.
 Cite as: 553 U. S. ____ (2008) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–1431
_________________

CBOCS WEST, INC., PETITIONER v. HEDRICK G.

HUMPHRIES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[May 27, 2008]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting.
The Court holds that the private right of action it has
implied under Rev. Stat. §1977, 42 U. S. C. §1981, encom-
passes claims of retaliation. Because the Court’s holding
has no basis in the text of §1981 and is not justified by
principles of stare decisis, I respectfully dissent.
I
It is unexceptional in our case law that “ ‘[s]tatutory
construction must begin with the language employed by
Congress and the assumption that the ordinary meaning
of that language accurately expresses the legislative pur-
pose.’ ” Engine Mfrs. Assn. v. South Coast Air Quality
Management Dist., 541 U. S. 246, 252 (2004) (quoting Park
’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 194
(1985)). Today, that rule is honored in the breach: The
Court’s analysis of the statutory text does not appear until
Part III of its opinion, and then only as a potential reason
to depart from the interpretation the Court has already
concluded, on other grounds, must “carry the day.” Ante,
at 9. Unlike the Court, I think it best to begin, as we
usually do, with the text of the statute. Section 1981(a)
provides:
“All persons within the jurisdiction of the United
2 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

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 bene-
fit of all laws and proceedings for the security of per-
sons 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.”
Section 1981(a) thus guarantees “[a]ll persons . . . the
same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens.” It is difficult to see where one
finds a cause of action for retaliation in this language. On
its face, §1981(a) is a straightforward ban on racial dis-
crimination in the making and enforcement of contracts.
Not surprisingly, that is how the Court has always con-
strued it. See, e.g., Domino’s Pizza, Inc. v. McDonald, 546
U. S. 470, 476 (2006) (“Section 1981 offers relief when
racial discrimination blocks the creation of a contractual
relationship, as well as when racial discrimination impairs
an existing contractual relationship”); Patterson v.
McLean Credit Union, 491 U. S. 164, 171 (1989) (“[Section]
1981 ‘prohibits racial discrimination in the making and
enforcement of private contracts’ ” (quoting Runyon v.
McCrary, 427 U. S. 160, 168 (1976))); Johnson v. Railway
Express Agency, Inc., 421 U. S. 454, 459 (1975) (Section
1981 “on its face relates primarily to racial discrimination
in the making and enforcement of contracts”).
Respondent nonetheless contends that “[t]he terms of
section 1981 are significantly different, and broader, than
a simple prohibition against discrimination.” Brief for
Respondent 15. It is true that §1981(a), which was en-
acted shortly after the Civil War, does not use the modern
statutory formulation prohibiting “discrimination on the
basis of race.” But that is the clear import of its terms.
Contrary to respondent’s contention, nothing in §1981
 Cite as: 553 U. S. ____ (2008) 3

THOMAS, J., dissenting

evinces a “concer[n] with protecting individuals ‘based on
what they do,’ ” as opposed to “ ‘prevent[ing] injury to
individuals based on who they are.’ ” Ibid. (quoting Bur-
lington N. & S. F. R. Co. v. White, 548 U. S. 53, 63 (2006)).
Nor does §1981 “affirmatively guarante[e]” freestanding
“rights to engage in particular conduct.” Brief for Respon-
dent 16. Rather, §1981 is an equal-rights provision. See
Georgia v. Rachel, 384 U. S. 780, 791 (1966) (“Congress
intended to protect a limited category of rights, specifically
defined in terms of racial equality”). The statute assumes
that “white citizens” enjoy certain rights and requires that
those rights be extended equally to “[a]ll persons,” regard-
less of their race. That is to say, it prohibits discrimina-
tion based on race.1
——————
1 The United States, appearing as amicus curiae in support of respon-
dent, contends that §1981 prohibits not only racial discrimination, but
also any other kind of “discrimination” that “impair[s]” the rights
guaranteed by §1981(a). Brief for United States 17. In support of this
argument, the United States points to §1981(c), which provides that
“[t]he rights protected by this section are protected against impairment
by nongovernmental discrimination and impairment under color of
State law.” Thus, the argument goes, retaliation is prohibited because
it is discrimination (differential treatment for those who complain) and
it impairs the right granted in §1981(a) to be free from racial discrimi-
nation in the making and enforcement of contracts (by penalizing
assertion of that right).
Although I commend the United States for at least attempting to
ground its position in the statutory text, its argument is unconvincing.
Section 1981(c) simply codifies the Court’s holding in Runyon v.
McCrary, 427 U. S. 160 (1976), that §1981 applies to private, as well as
governmental, discrimination. Nothing in §1981(c) indicates that
Congress otherwise intended to expand the scope of §1981. To the
contrary, §1981(c) refers to “[t]he rights protected by this section,” i.e.,
the rights enumerated in §1981(a) to make and enforce contracts on the
same terms as white citizens. Moreover, the word “discrimination” in
§1981(c) does not refer to “all discrimination,” as the United States
would have it. See Brief for United States as Amicus Curiae 16, n. 4.
Rather, it refers back to the type of discrimination prohibited by
§1981(a), i.e., discrimination based on race. Thus, §1981 is violated
4 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

Retaliation is not discrimination based on race. When
an individual is subjected to reprisal because he has com-
plained about racial discrimination, the injury he suffers
is not on account of his race; rather, it is the result of his
conduct. The Court recognized this commonsense distinc-
tion just two years ago in Burlington when it explained
that Title VII’s antidiscrimination provision “seeks to
prevent injury to individuals based on who they are, i.e.,
their status,” whereas its “antiretaliation provision seeks
to prevent harm to individuals based on what they do, i.e.,
their conduct.” 548 U. S., at 63. This distinction is sound,
and it reflects the fact that a claim of retaliation is both
logically and factually distinct from a claim of discrimina-
tion—logically because retaliation based on conduct and
discrimination based on status are mutually exclusive
categories, and factually because a claim of retaliation
does not depend on proof that any status-based discrimi-
nation actually occurred. Consider, for example, an em-
ployer who fires any employee who complains of race
discrimination, regardless of the employee’s race. Such an
employer is undoubtedly guilty of retaliation, but he has
not discriminated on the basis of anyone’s race. Because
the employer treats all employees—black and white—the
same, he does not deny any employee “the same right . . .
to make and enforce contracts . . . as is enjoyed by white
citizens.”2
——————
only when racial discrimination impairs the right to make and enforce
contracts.
2 Of course, if an employer had a different retaliation policy for blacks

and whites—firing black employees who complain of race discrimina-
tion but not firing similarly situated white employees—a black em-
ployee who was fired for complaining of race discrimination would have
a promising §1981 claim. But his claim would not sound in retaliation;
rather, it would be a straightforward claim of racial discrimination. In
his briefs before this Court, respondent attempts to shoehorn his claim
into this category, asserting that petitioner “retaliated against [him]
because he was a black worker who exercised his right” to lodge a
 Cite as: 553 U. S. ____ (2008) 5

THOMAS, J., dissenting

The Court apparently believes that the status/conduct
distinction is not relevant here because this case, unlike
Burlington, does not require us to determine whether
§1981’s supposed prohibition on retaliation “sweep[s] more
broadly” than its antidiscrimination prohibition. Ante, at
13. That is nonsense. Although, as the Court notes, we
used the status/conduct distinction in Burlington to ex-
plain why Title VII’s antiretaliation provision must sweep
more broadly than its antidiscrimination provision in
order to achieve its purpose, 548 U. S., at 63–64, it does
not follow that the distinction between status and conduct
is irrelevant here. To the contrary, Burlington under-
scores the fact that status-based discrimination and con-
duct-based retaliation are distinct harms that call for
tailored legislative treatment. That is why Congress, in
Title VII and a host of other statutes, has enacted sepa-
rate provisions prohibiting discrimination and retaliation.
See Brief for Petitioner 17–18 (citing statutes); see also
ante, at 10–11 (same). Construing a general ban on dis-
crimination such as that contained in §1981 to cover re-
taliation would render these separate antiretaliation
provisions superfluous, contrary to the normal rules of
statutory interpretation.
Of course, this is not the first time I have made these
——————
grievance under petitioner’s open-door policy. Brief for Respondent 27;
see also id., at 33 (“[S]ection 1981 forbids an employer from having one
dismissal policy for blacks who complain about race discrimination, and
another for whites who complain about such discrimination”). But
respondent cites no record evidence to support his assertion that
petitioner treated him differently than it would have treated a similarly
situated white complainant. And while the Court of Appeals found that
respondent had established a prima facie case of retaliation, 474 F. 3d
387, 406–407 (CA7 2007), it did not identify any evidence that would
permit a jury to conclude that the alleged retaliation was race based.
Indeed, the Court of Appeals held that respondent had “waived . . . his
discrimination claim by devoting only a skeletal argument [to it] in
response to [petitioner’s] motion for summary judgment.” Id., at 407.
6 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

points. Three Terms ago in Jackson v. Birmingham Bd. of
Ed., 544 U. S. 167 (2005), the Court held that Title IX of
the Education Amendments of 1972, 20 U. S. C. §1681 et
seq., which prohibits recipients of federal education fund-
ing from discriminating “on the basis of sex,” §1681(a),
affords an implied cause of action for retaliation against
those who complain of sex discrimination. In so doing, the
Court disregarded the fundamental distinction between
status-based discrimination and conduct-based retaliation,
asserting that retaliation against those who complain of
sex discrimination “is discrimination ‘on the basis of sex’
because it is an intentional response to the nature of the
complaint: an allegation of sex discrimination.” 544 U. S.,
at 174. But as I explained in my dissenting opinion in
Jackson, “the sex-based topic of the complaint cannot
overcome the fact that the retaliation is not based on
anyone’s sex, much less the complainer’s sex.” Id., at 188.
Likewise here, the race-based topic of the complaint
cannot overcome the fact that the retaliation is not based
on anyone’s race. To hold otherwise would be to ignore the
fact that “protection from retaliation is separate from
direct protection of the primary right [against discrimina-
tion] and serves as a prophylactic measure to guard the
primary right.” Id., at 189; see also Burlington, supra, at
63 (explaining that Title VII’s “antidiscrimination provi-
sion seeks a workplace where individuals are not dis-
criminated against because of their racial, ethnic, reli-
gious, or gender-based status,” whereas its “antiretaliation
provision seeks to secure that primary objective by pre-
venting an employer from interfering (through retaliation)
with an employee’s efforts to secure or advance enforce-
ment of the Act’s basic guarantees”). In other words, “[t]o
describe retaliation as discrimination on the basis of [race]
is to conflate the enforcement mechanism with the right
itself, something for which the statute’s text provides no
warrant.” Jackson, supra, at 189 (THOMAS, J., dissenting).
 Cite as: 553 U. S. ____ (2008) 7

THOMAS, J., dissenting

Notably, the Court does not repeat Jackson’s textual
analysis in this case, perhaps because no amount of repeti-
tion could make it any more plausible today than it was
three years ago. Instead, the Court acknowledges that
“the statute’s language does not expressly refer to the
claim of an individual (black or white) who suffers retalia-
tion.” Ante, at 9. The Court concludes, however, that the
statute’s failure expressly to provide a cause of action for
retaliation “is not sufficient to carry the day,” ibid., despite
our usual rule that “affirmative evidence of congressional
intent must be provided for an implied remedy . . . for
without such intent the essential predicate for implication
of a private remedy simply does not exist, ” Alexander v.
Sandoval, 532 U. S. 275, 293, n. 8 (2001) (internal quota-
tion marks and emphasis deleted); see also id., at 286–287
(emphasizing that, absent evidence of Congress’ intent to
create a cause of action, the “cause of action does not exist
and courts may not create one, no matter how desirable
that might be as a policy matter, or how compatible with
the statute”).
Section 1981’s silence regarding retaliation is not dispo-
sitive, the Court says, because “it is too late in the day” to
resort to “a linguistic argument” that was supposedly
rejected in Sullivan v. Little Hunting Park, Inc., 396 U. S.
229 (1969). Ante, at 10. As I explain below, the Court’s
reliance on Sullivan is entirely misplaced. But it also
bears emphasis that the Court does not even purport to
identify any basis in the statutory text for the “well-
embedded interpretation of §1981,” ante, at 8–9, it adopts
for the first time today. Unlike the Court, I find the stat-
ute’s text dispositive. Because §1981 by its terms prohib-
its only discrimination based on race, and because retalia-
tion is not discrimination based on race, §1981 does not
provide an implied cause of action for retaliation.
8 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

II
Unable to justify its holding as a matter of statutory
interpretation, the Court today retreats behind the figleaf
of ersatz stare decisis. The Court’s invocation of stare
decisis appears to rest on three considerations: (1) Sulli-
van’s purported recognition of a cause of action for retalia-
tion under §1982; (2) Jackson’s (re)interpretation of Sulli-
van; and (3) the Courts of Appeals’ view that §1981
provides a cause of action for retaliation. None of these
considerations, separately or together, justifies implying a
cause of action that Congress did not include in the stat-
ute. And none can conceal the irony in the Court’s novel
use of stare decisis to decide a question of first impression.
I turn first to Sullivan, as it bears most of the weight in
the Court’s analysis. As I explained in my dissent in
Jackson, Sullivan did not “hol[d] that a general prohibi-
tion against discrimination permitted a claim of retalia-
tion,” but rather “that a white lessor had standing to
assert the right of a black lessee to be free from racial
discrimination.” 544 U. S., at 194. Thus, “[t]o make out
his third-party claim on behalf of the black lessee, the
white lessor would necessarily be required to demonstrate
that the defendant had discriminated against the black
lessee on the basis of race.” Ibid. Here, by contrast, re-
spondent “need not show that the [race] discrimination
forming the basis of his complaints actually occurred.”
Ibid. Accordingly, as it did in Jackson, the Court “creates
an entirely new cause of action for a secondary rights
holder, beyond the claim of the original rights holder, and
well beyond Sullivan.” Id., at 194–195.
Having reexamined Sullivan, I remain convinced that it
was a third-party standing case. Sullivan did not argue
that his expulsion from the corporation—as opposed to the
corporation’s refusal to approve the assignment—violated
§1982. Instead, he argued that his expulsion was “con-
trary to public policy” because it was the “direct result of
 Cite as: 553 U. S. ____ (2008) 9

THOMAS, J., dissenting

his having dealt with Freeman, as the statute requires, on
a non-discriminatory basis.” Brief for Petitioners in Sulli-
van v. Little Hunting Park, Inc., O. T. 1969, No. 33, p. 32.
Sullivan further contended not that his own rights under
§1982 had been violated, but that he “ha[d] standing to
rely on the rights of the Negro, Freeman,” since he was
best situated to vindicate those rights.3 Id., at 33; see also
Pet. for Cert. in Sullivan v. Little Hunting Park, Inc., O. T.
1969, No. 33, p. 17, n. 13 (“Although the statute declares
the rights of Negroes not to be discriminated against,
Sullivan, a Caucasian, has standing to rely on the invasion
of the rights of others, since he is the only effective adver-
sary capable of vindicating them in litigation arising from
his expulsion” (internal quotation marks omitted)). Simi-
larly, the United States, appearing as amicus curiae in
support of Sullivan, argued that because “the private
action involved in refusing to honor the assignment was
itself illegal,” “relief should be available to all persons
injured by it, or as a consequence of their efforts to resist
it.” Brief for United States, O. T. 1969, No. 33, p. 34.
Thus, both Sullivan and the United States argued that
Sullivan had standing to seek relief for injuries he suf-
fered as a result of the corporation’s violation of Freeman’s
rights—not that Sullivan’s own rights under §1982 were
violated. And that is the best interpretation of what the
——————
3 In contrast to his argument based on §1982, which he consistently

tied to the violation of Freeman’s rights, Sullivan also argued that his
own First Amendment rights were violated:
“Since Sullivan’s expulsion was in retaliation for his having obeyed
the dictate of the law the expulsion was against public policy, and he
should be reinstated. For the law to sanction punishment of a person
such as Sullivan for refusing to discriminate against Negroes would be
to render nugatory the rights guaranteed to Negroes by 42 U. S. C.
§§1981, 1982 . . . . Furthermore, by giving sanction to Sullivan’s expul-
sion, the state court deprived Sullivan of his rights, guaranteed by the
First Amendment to criticize the conduct of the association’s directors.”
Brief for Petitioners, O. T. 1969, No. 33, p. 14 (emphasis added).
10 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

Court subsequently held. Tracking the parties’ argu-
ments, the Court first concluded that that the corpora-
tion’s “refus[al] to approve the assignment of the member-
ship share . . . was clearly an interference with Freeman’s
right to ‘lease’ ” under §1982. 396 U. S., at 237. Only then
did it conclude—based on Barrows v. Jackson, 346 U. S.
249 (1953), a third-party standing case in which another
white litigant was permitted to “rely on the invasion of the
rights of others,” id., at 255—that Sullivan “ha[d] standing
to maintain this action.” Sullivan, 396 U. S., at 237. The
word “retaliation” does not appear in the Court’s opinion.
Nor is there any suggestion that Sullivan would have had
“standing” absent the violation of Freeman’s rights.
Of course, Sullivan is not a model of clarity, and Justice
Harlan, writing in dissent, was correct to criticize the
“undiscriminating manner” in which the Court dealt with
Sullivan’s claims. Id., at 251. Sullivan had sought relief
both for the corporation’s refusal to approve the assign-
ment and for his expulsion. Id., at 253. But in stating
that Sullivan had standing to maintain “this action,” id.,
at 237, the Court did not specify what relief Sullivan was
entitled to pursue on remand. Lamenting the Court’s
“failure to provide any guidance as to the legal standards
that should govern Sullivan’s right to recovery on re-
mand,” id., at 252 (dissenting opinion), Justice Harlan
provided an instructive summary of the ambiguities in the
Court’s opinion:
“One can imagine a variety of standards, each based
on different legal conclusions as to the ‘rights’ and ‘du-
ties’ created by §1982, and each having very different
remedial consequences. For example, does §1982 give
Sullivan a right to relief only for injuries resulting
from Little Hunting Park’s interference with his
statutory duty to Freeman under §1982? If so, what is
Sullivan’s duty to Freeman under §1982? Unless
 Cite as: 553 U. S. ____ (2008) 11

THOMAS, J., dissenting

§1982 is read to impose a duty on Sullivan to protest
Freeman’s exclusion, he would be entitled to rein-
statement under this standard only if the Board had
expelled him for the simple act of assigning his share
to Freeman.
“As an alternative, Sullivan might be thought to be
entitled to relief from those injuries that flowed from
the Board’s violation of its ‘duty’ to Freeman under
§1982. Such a standard might suggest that Sullivan
is entitled to damages that resulted from Little Hunt-
ing Park’s initial refusal to accept the assignment to
Freeman but again not to reinstatement. Or does the
Court think that §1982 gives Sullivan a right to relief
from injuries that result from his ‘legitimate’ protest
aimed at convincing the Board to accept Freeman?”
Id., at 254–255.
It is noteworthy that of the three possible standards
Justice Harlan outlined, the first two clearly depend on a
showing that Freeman’s §1982 rights were violated. Only
the third—“Or does the Court think that §1982 gives
Sullivan a right to relief from injuries that result from his
‘legitimate’ protest”—resembles a traditional retaliation
claim and, in context, even it is probably best read to
presuppose that Sullivan was protesting an actual viola-
tion of Freeman’s rights. Id., at 255. Which, if any, of
these standards the Court had in mind is anybody’s guess.
It did not say.
I thus adhere to my view that Sullivan is best read as a
third-party standing case. That is how the parties argued
the case, and that is the most natural reading of the
Court’s opinion. But even if Sullivan could fairly be read
as having inferred a freestanding cause of action for re-
taliation—which I doubt it can, at least not without super-
imposing an anachronistic outlook on a Court that was not
as familiar with retaliation claims as we are today—the
12 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

Court’s one-paragraph discussion of the issue was, at best,
both cursory and ambiguous. This is hardly the stuff of
which stare decisis is made.
Steadfastly refusing to acknowledge any ambiguity, the
Court asserts that it is “not surprising that following
Sullivan, federal appeals courts concluded, on the basis of
Sullivan or its reasoning, that §1981 encompassed retalia-
tion claims.” Ante, at 5. But given Sullivan’s use of the
word “standing” and its reliance on a third-party standing
case, what is unsurprising is that each of the cases the
Court cites either characterized the issue as one of stand-
ing, Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270
(CA6 1977) (characterizing the issue as “whether or not
the white plaintiff in this action has standing to sue his
former employer under 42 U. S. C. §1981 for discharging
him in alleged retaliation for plaintiff’s protesting the
alleged discriminatory firing of a black co-worker”), or
recognized that it was taking a step beyond Sullivan in
inferring a cause of action for retaliation, Choudhury v.
Polytechnic Inst. of N. Y., 735 F. 2d 38, 42 (CA2 1984)
(stating that the Second Circuit “ha[d] never decided
whether §1981 creates a cause of action for retaliation,”
even though it had previously held, based on Sullivan,
“that a white person who claimed to have suffered repri-
sals as a result of his efforts to vindicate the rights of non-
whites had standing to sue under §1981”); Goff v. Conti-
nental Oil Co., 678 F. 2d 593, 598, n. 7 (CA5 1982) (recog-
nizing that Sullivan and a previous Fifth Circuit decision
relying on Sullivan were “essentially standing cases hold-
ing that white people can assert civil rights claims when
they are harmed by someone’s discrimination against
blacks,” which is distinct from holding that “a particular
type of conduct—retaliation for the filing of a §1981 law
suit—is actionable in the first place”).
Moreover, even if Sullivan had squarely and unambigu-
ously held that §1982 provides an implied cause of action
 Cite as: 553 U. S. ____ (2008) 13

THOMAS, J., dissenting

for retaliation, it would have been wrong to do so because
§1982, like §1981, prohibits only discrimination based on
race, and retaliation is not discrimination based on race.4
The question, then, would be whether to extend Sullivan’s
erroneous interpretation of §1982 to §1981. The Court
treats this as a foregone conclusion because “our prece-
dents have long construed §§1981 and 1982 similarly.”
Ante, at 4. But erroneous precedents need not be extended
to their logical end, even when dealing with related provi-
sions that normally would be interpreted in lockstep.5
——————
4 The majority claims that Sullivan “did not embrace” this “linguistic

argument.” Ante, at 10. That is because the argument was not before
the Court. The corporation did not argue that §1982’s text could not
reasonably be construed to create a cause of action for retaliation; nor
did Justice Harlan in dissent. No one made this argument because that
was not how the issue was framed, either by Sullivan or by the Court.
The majority suggests that the argument was “apparent at the time the
Court decided Sullivan.” Ibid. But the only evidence it cites is Justice
Harlan’s observation that the Court’s holding in Jones v. Alfred H.
Mayer Co., 392 U. S. 409 (1968), that §1982 prohibits private as well as
governmental discrimination was “in no way required by [§1982’s]
language.” Sullivan, 396 U. S., at 241. I fail to see how that observa-
tion—or Justice Harlan’s further observation that the Court in Sullivan
had gone “yet beyond Jones,” ibid.—shows that the Court considered
and rejected the entirely different argument that §1982’s text does not
provide a cause of action for retaliation.
5 For example, we have refused to extend the holding of J. I. Case Co.

v. Borak, 377 U. S. 426 (1964), which inferred a private right of action
for violations of §14(a) of the Securities Exchange Act of 1934, to other
sections of the Act. Borak applied the understanding—later abandoned
in Cort v. Ash, 422 U. S. 66, 78 (1975)—that “it is the duty of the courts
to be alert to provide such remedies as are necessary to make effective
the congressional purpose” expressed by a statute. 377 U. S., at 433.
As Chief Judge Easterbrook explained in dissent below, the analogy to
the present case is obvious:
“The argument goes that, because Sullivan ignored the language of
§1982 and drafted an ‘improved’ version of the statute, we are free to do
the same today for §1981, its neighbor. The Supreme Court requires us
to proceed otherwise. Borak dealt with §14(a) of the Securities Ex-
change Act of 1934, 15 U. S. C. §78n(a). It was as freewheeling in
14 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

Otherwise, stare decisis, designed to be a principle of
stability and repose, would become a vehicle of change
whereby an error in one area metastasizes into others,
thereby distorting the law. Two wrongs do not make a
right, and an aesthetic preference for symmetry should not
prevent us from recognizing the true meaning of an Act of
Congress.
The Court’s remaining reasons for invoking stare decisis
require little discussion. First, the Court relies on the fact
that Jackson interpreted Sullivan as having recognized a
cause of action for retaliation under §1982. See ante, at 3,
9–10. That is true but irrelevant. It was only through
loose language and creative use of brackets that Jackson
was able to assert that Sullivan “upheld Sullivan’s cause
of action under 42 U. S. C. §1982 for ‘[retaliation] for the
advocacy of [the black person’s] cause.’ ” 544 U. S., at 176
(quoting Sullivan, 396 U. S., at 237; brackets in original).
Of course, Sullivan did not use the word “retaliation,” did
not say anything about a “cause of action,” and did not
state that Sullivan had rights under §1982. It most cer-
tainly did not “interpre[t] a general prohibition on racial
discrimination to cover retaliation against those who
advocate the rights of groups protected by that prohibi-
tion.” Jackson, 544 U. S., at 176. Jackson’s assertion that
——————
‘interpreting’ that law as Sullivan was with §1982. Yet the Court has
held that the change of interpretive method announced in Cort applies
to all other sections of the Securities Exchange Act. See Piper v. Chris-
Craft Industries, Inc., 430 U. S. 1 (1977) (§14(e)); Touche Ross & Co. v.
Redington, 442 U. S. 560 (1979) (§17(a)). Borak and similar decisions
from the 1960s have not been overruled, but we have been told in no
uncertain terms that they must not be extended. Indeed, in Virginia
Bankshares, Inc. v. Sandberg, 501 U. S. 1083 (1991), the Court declined
to apply Borak to a portion of §14(a) that had not been involved in
Borak. So that case has been limited to a single sentence of one subsec-
tion. Why, then, may the method of Sullivan be applied to other
sections of the Civil Rights Act of 1866 despite intervening precedent?”
474 F. 3d, at 410–411 (citations omitted).
 Cite as: 553 U. S. ____ (2008) 15

THOMAS, J., dissenting

Sullivan “plainly held that the white owner could main-
tain his own private cause of action under §1982,” id., at
176, n. 1, misses the point entirely. While Sullivan held
that “the white owner” had standing to maintain his own
suit, it said nothing to suggest that he could sue to vindi-
cate his own right to be free from retaliation under §1982.
Rather, as I have explained, Sullivan’s “standing” was
derivative of the violation of Freeman’s rights. In short,
Jackson’s characterization of Sullivan was erroneous, and
I am aware of no principle of stare decisis that requires us
to give decisive weight to a precedent’s erroneous charac-
terization of another precedent—particularly where, as
here, the cases involved different statutes, neither of
which was the statute at issue in the case at bar.
Second, the Court appears to give weight to the fact
that, since Congress passed the Civil Rights Act of 1991,
§101, 105 Stat. 1071, “the lower courts have uniformly
interpreted §1981 as encompassing retaliation actions.”
Ante, at 8. This rationale fares no better than the others.
The Court has never suggested that rejection of a view
uniformly held by the courts of appeals violates some
principle of stare decisis. To the contrary, we have not
hesitated to take a different view if convinced the lower
courts were wrong. Indeed, it has become something of a
dissenter’s tactic to point out that the Court has decided a
question differently than every court of appeals to have
considered it. See, e.g., McConnell v. Federal Election
Comm’n, 540 U. S. 93, 278, n. 11 (2003) (THOMAS, J.,
concurring in part, concurring in result in part, concurring
in judgment in part, and dissenting in part); Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health
and Human Resources, 532 U. S. 598, 643 (2001)
(GINSBURG, J., dissenting); Sandoval, 532 U. S., at 294
(STEVENS, J., dissenting); Jones v. United States, 526 U. S.
227, 254 (1999) (KENNEDY, J., dissenting); McNally v.
United States, 483 U. S. 350, 365 (1987) (STEVENS, J.,
16 CBOCS WEST, INC. v. HUMPHRIES

THOMAS, J., dissenting

dissenting). The Court does not explain what makes this
particular line of lower court authority any more sacro-
sanct than those we have rejected in the past.
Of course, lower court decisions may be persuasive, and
when the Court rejects the unanimous position of the
courts of appeals, it is fair to point out that fact. But the
point has traction only to the extent it tends to show that
the Court’s reasoning is flawed on the merits, as demon-
strated by the number of judges who have reached the
opposite conclusion. See, e.g., Buckhannon, supra, at 643–
644 (GINSBURG, J., dissenting) (“When this Court rejects
the considered judgment prevailing in the Circuits, respect
for our colleagues demands a cogent explanation”). Unlike
decisions of this Court, decisions of the courts of appeals,
even when unanimous, do not carry stare decisis weight,
nor do they relieve us of our obligation independently to
decide the merits of the question presented. That is why,
when we have affirmed a view unanimously held by the
courts of appeals, we have done so (at least until today)
not because we gave precedential weight to the lower
courts’ decisions, but because we agreed with their resolu-
tion of the question on the merits. See, e.g., Gonzalez v.
Crosby, 545 U. S. 524, 531 (2005) (“Virtually every Court
of Appeals to consider the question has held that such a
pleading . . . is in substance a successive habeas petition
. . . . We think those holdings are correct”); Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350,
362 (1991) (“Thus, we agree with every Court of Appeals
that has been called upon to apply a federal statute of
limitations to a §10(b) claim”).
III
As in Jackson, “[t]he question before us is only whether
[§1981] prohibits retaliation, not whether prohibiting it is
good policy.” 544 U. S., at 195 (THOMAS, J., dissenting).
“By crafting its own additional enforcement mechanism,
 Cite as: 553 U. S. ____ (2008) 17

THOMAS, J., dissenting

the majority returns this Court to the days in which it
created remedies out of whole cloth to effectuate its vision
of congressional purpose.” Ibid. That the Court does so
under the guise of stare decisis does not make its decision
any more justifiable. Because the text of §1981 provides
no basis for implying a private right of action for retalia-
tion, and because no decision of this Court holds to the
contrary, I would reverse the judgment below.