CBOCS WEST, INC. v. HUMPHRIES

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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 Title VII of the Civil
Rights Act of 1964 and 42 U. S. C. § 1981, the latter 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. 446–457.
(a) Because this conclusion rests in significant part upon stare
decisis 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
encompassed 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 prop
erty.” (2) This Court has long interpreted §§ 1981 and 1982 alike be
cause 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 Union, 491 U. S.
164, 177, without mention of retaliation, narrowed § 1981 by excluding
from its scope conduct occurring after formation of the employment con
tract, 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. Donnelley & 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 Ap
peals have uniformly interpreted § 1981 as encompassing retaliation ac

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Syllabus
tions. 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 considera
tions impose a considerable burden on those who would seek a different
interpretation that would necessarily unsettle many Court precedents.
Pp. 446–452.
(b) CBOCS’ several arguments, taken separately or together, cannot
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 protection against re
taliation; 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, Congress’ 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 plausi
bly explained by the fact that, given Sullivan and the new statutory
language nullifying Patterson, there was no need to include explicit re
taliation language. Third, the argument that applying § 1981 to
employment-related retaliation actions would create an overlap with
Title VII, allegedly allowing a retaliation plaintiff to circumvent Title
VII’s detailed administrative and procedural mechanisms and thereby
undermine their effectiveness, proves too much. Precisely the same
kind of Title VII/§ 1981 “overlap” and potential circumvention exists
in respect to employment-related direct discrimination, yet Congress
explicitly and intentionally 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 Burlington 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 Con
gress must separate the two in all events. Moreover, while Domino’s
Pizza and other more recent cases may place greater emphasis on statu
tory language than did Sullivan, any arguable change in interpretive
approach would not justify reexamination of well-established prior law
under stare decisis principles. Pp. 452–457.
474 F. 3d 387, affirmed.

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Syllabus
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, post,
p. 457.
Michael W. Hawkins argued the cause for petitioner.
With him on the briefs were Michael J. Newman and Mi
chael Zylstra.
Cynthia H. Hyndman argued the cause for respondent.
With her on the brief were Aleeza M. Strubel and Eric
Schnapper.
Solicitor General Clement argued the cause for the
United States as amicus curiae urging affirmance. With
him on the brief were Acting Assistant Attorney General
Becker, Deputy Solicitor General Garre, Curtis E. Gannon,
and Dennis J. Dimsey.*
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States of America by Catherine E. Stetson,
Robin S. Conrad, and Shane Brennan; and for the Equal Employment
Advisory Council et al. by Rae T. Vann, Karen R. Harned, and Elizabeth
Milito.
Briefs of amici curiae urging affirmance were filed for the State of New
York et al. by Andrew M. Cuomo, Attorney General of New York, Barbara
D. Underwood, Solicitor General, and Benjamin N. Gutman, Deputy Solic
itor General, and by the Attorneys General for their respective States as
follows: Terry Goddard of Arizona, Richard Blumenthal of Connecticut,
Lisa Madigan of Illinois, Thomas Miller of Iowa, Douglas F. Gansler of
Maryland, Martha Coakley of Massachusetts, Jeremiah W. (Jay) Nixon of
Missouri, Catherine Cortez Masto of Nevada, Anne Milgram of New Jer
sey, Marc Dann of Ohio, Hardy Myers of Oregon, William H. Sorrell of
Vermont, and Darrell V. McGraw, Jr., of West Virginia; for Historian
Mary Frances Berry et al. by Melissa Hart and Charles J. Ogletree, Jr.;
for the Leadership Conference on Civil Rights et al. by Paul R. Q. Wolf
son, Anne Harkavy, and Michael Foreman; for Members of Congress by
Aaron M. Panner and Priya R. Aiyar; and for the National Employment
Lawyers Association by Douglas B. Huron, Stephen Z. Chertkof, and
Tammany M. Kramer.

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Opinion of the Court
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 encom
passes 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 com
plained to managers that a fellow assistant manager had dis
missed another black employee, Venus Green, for race-based
reasons. Humphries timely filed a charge with the Equal
Employment Opportunity Commission (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 District Court dismissed Hum
phries’ 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. Hum
phries 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 discrimination
claim. But it ruled in Humphries’ favor and remanded for a

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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 retaliation. 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. 1189 (2007).
II
The question before us is whether § 1981 encompasses re
taliation 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 interpre
tive 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 Rev. Stat. § 1978, 42 U. S. C. § 1982, a statu
tory 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 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 con
vey 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 Free
man a membership share in a corporation, which permitted
the owner to use a private park that the corporation con
trolled. Because of Freeman’s race, the corporation, Little
Hunting Park, Inc., refused to approve the share assignment.
And, when Sullivan protested, the association expelled Sulli
van and took away his membership shares.
Sullivan sued Little Hunting Park, claiming that its ac
tions violated § 1982. The Court upheld Sullivan’s claim.

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It found that the corporation’s refusal “to approve the as
signment of the membership share . . . was clearly an inter
ference 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 cove
nant.” 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 minori
ties protected by § 1982” would give “impetus to the perpetu
ation of racial restrictions 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 ra
cial discrimination [in § 1982] to cover retaliation against
those who advocate the rights of groups protected by that
prohibition”).
While the Sullivan decision interpreted § 1982, our prece
dents have long construed §§ 1981 and 1982 similarly. In
Runyon v. McCrary, 427 U. S. 160, 173 (1976), the Court con
sidered whether § 1981 prohibits private acts of discrimina
tion. 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 rea
soned 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) (“Al
though [Sullivan and Jones] involved § 1982, rather than
§ 1981, I agree that their considered holdings with respect to
the purpose and meaning of § 1982 necessarily apply to both
statutes in view of their common derivation”); id., at 190
(Stevens, J., concurring) (“[I]t would be most incongruous
to give those two sections [1981 and 1982] a fundamentally

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different construction”). See also Shaare Tefila Congrega
tion 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 interpreting
§ 1981).
As indicated in Runyon, the Court has construed §§ 1981
and 1982 alike because it has recognized the sister statutes’
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 immedi
ately post-Civil War legislative effort to guarantee 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 States shall have the same
right, in every State and Territory, as is enjoyed by white
citizens . . . .” Compare § 1981’s language set forth above,
supra, at 445. 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 fol
lowing Sullivan, federal appeals courts concluded, on the
basis of Sullivan or its reasoning, that § 1981 encompassed
retaliation claims. See, e. g., Choudhury v. Polytechnic
Inst. of N. Y., 735 F. 2d 38, 42–43 (CA2 1984); Goff v. Conti
nental Oil Co., 678 F. 2d 593, 598–599 (CA5 1982), overruled,
Carter v. South Central Bell, 912 F. 2d 832 (1990); Win
ston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977).

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B
In 1989, 20 years after Sullivan, this Court in Patterson
v. McLean Credit Union, 491 U. S. 164, significantly limited
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 con
tract or imposition of discriminatory working 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 en
compass the claim of a black employee who charged that her
employer had violated her employment contract by harassing
her and failing to 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 forma
tion of the employment contract, Patterson’s holding, for a
brief time, seems in practice to have foreclosed retaliation
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 retaliation 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 Con
tracting, 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 via
bility of retaliation 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 became the

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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 discharge claims
under § 1981 are barred).
In 1991, however, Congress weighed in on the matter.
Congress passed the Civil Rights Act of 1991, 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, designating 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, modi
fication, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions 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 relation
ship.” 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 contracts
because of their race.” Ibid. (emphasis added). An accom
panying 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 discrimination . . . would include,
but not be limited to, claims of harassment, discharge, demo
tion, promotion, transfer, retaliation, and hiring.” Id., at 92

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(emphasis added). It also said that the new law “would re
store 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 Cin
cinnati, 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 F. 3d 1405, 1411–1413 (CA11
1998).
The upshot is this: (1) In 1969, Sullivan, as interpreted
by Jackson, recognized that § 1982 encompasses a retaliation
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, Congress enacted legisla
tion 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 inter
preted § 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 em
bedded 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

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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) (describing im
portance of stare decisis); Patterson, 491 U. S., at 172 (consid
erations of stare decisis “have special force in the area of
statutory interpretation”); John R. Sand & Gravel Co. v.
United States, 552 U. S. 130, 139 (2008) (same).
III
In our view, CBOCS’ several arguments, taken separately
or together, cannot justify a departure from what we have
just described as the well-embedded interpretation 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 citi
zens.” 42 U. S. C. § 1981(a) (emphasis added). CBOCS adds
that, insofar as Humphries complains 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 retali
ation.” 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 discrimination,
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 en
forcement of the express statutory right. See supra, at 447.
Moreover, the Court has recently read another broadly
worded civil rights statute, namely, Title IX of the Education
Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C.
§ 1681 et seq., as including an antiretaliation remedy. In

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2005 in Jackson, the Court considered whether statutory lan
guage 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 “retalia
tion,” 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 “ ‘realistic to presume that Congress was
thoroughly familiar’ ” with Sullivan; and (3) Congress conse
quently “ ‘expected its enactment’ ” of Title IX “ ‘to be inter
preted in conformity with’ ” Sullivan. 544 U. S., at 176.
The Court in Jackson explicitly rejected the arguments the
dissent advances here—that Sullivan was merely a standing
case, see post, at 464–467 (opinion of Thomas, J.). Compare
Jackson, 544 U. S., at 176, n. 1 (“Sullivan’s holding was not
so limited. It plainly held that the white owner could main
tain 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 construc
tion of § 1982 in Jones, 392 U. S. 409, was “in no way required
by [the statute’s] language”—one of the bases of Justice Har
lan’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 re
enacted § 1981 with amendments, intended the reenacted
statute not to cover retaliation. CBOCS rests this conclu

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sion 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 in
cluded explicit antiretaliation language in other civil rights
statutes. See, e. g., National Labor Relations 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); Americans 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 in
clude 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 Sullivan.
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 amend
ments’ 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 discrimi
nation . . . would include . . . claims of . . . retaliation”).
Third, CBOCS points out that § 1981, if applied to
employment-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 discrimination
must be brought before EEOC within 180 days of the dis
criminatory act); § 2000e–5(f)(1) (suit must be filed within
90 days of obtaining an EEOC right-to-sue letter). And

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Cite as: 553 U. S. 442 (2008) 455
Opinion of the Court
CBOCS says that permitting a § 1981 retaliation action
would allow a retaliation plaintiff to circumvent Title VII’s
“specific administrative and procedural mechanisms, ”
thereby undermining their effectiveness. Brief for Peti
tioner 25.
This argument, however, proves too much. Precisely the
same kind of Title VII/§ 1981 “overlap” and potential circum
vention exists in respect to employment-related direct dis
crimination. Yet Congress explicitly created the overlap in
respect to direct employment discrimination. Nor is it obvi
ous how we can interpret § 1981 to avoid employment
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 (de
tailing the benefits of Title VII to those aggrieved by race
based employment discrimination). And we have concluded
that “Title VII was designed to supplement, rather than sup
plant, existing laws and institutions 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

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456 CBOCS WEST, INC. v. HUMPHRIES
Opinion of the Court
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 conclude that § 1981 only encompasses
status-based discrimination. In Burlington, however, we
used the status/conduct distinction to help explain why Con
gress might have wanted its explicit Title VII antiretaliation
provision to sweep more broadly (i. e., to include conduct out
side 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 “underscores
the fact that status-based discrimination and conduct-based
retaliation are distinct harms that call for tailored legislative
treatment.” Post, at 462. The Court’s construction of a gen
eral ban on discrimination such as that contained in § 1981 to
cover retaliation claims, the dissent continues, would some
how 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 re
dundant; 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 si
lentio, by the subsequent passage of the modern statutes”).
Accordingly, the Court has accepted overlap between a num
ber of civil rights statutes. See ibid. (discussing interrela
tion of fair housing provisions of the Civil Rights Act of 1968
and § 1982; between § 1981 and Title VII). See also supra,

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at 455 (any overlap in reach between § 1981 and Title VII,
the statute at issue in Burlington, is by congressional
design).
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 language 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 reexamina
tion of well-established prior law. Principles of stare deci
sis, 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 de
pends. See, e. g., John R. Sand & Gravel Co., 552 U. S., at
139.
IV
We conclude that considerations of stare decisis strongly
support our adherence to Sullivan and the long line of re
lated cases where we interpret §§ 1981 and 1982 similarly.
CBOCS’ arguments do not convince us to the contrary. We
consequently hold that 42 U. S. C. § 1981 encompasses claims
of retaliation. The judgment of the Court of Appeals is
affirmed.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins,
dissenting.
The Court holds that the private right of action it has im
plied under Rev. Stat. § 1977, 42 U. S. C. § 1981, encompasses
claims of retaliation. Because the Court’s holding has no

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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 con
struction must begin with the language employed by Con
gress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.’ ”
Engine Mfrs. Assn. v. South Coast Air Quality Manage
ment 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 analy
sis 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 452. 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
States shall have the same right in every State and Ter
ritory to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, li
censes, 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 discrimination in
the making and enforcement of contracts. Not surprisingly,
that is how the Court has always construed it. See, e. g.,
Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470, 476 (2006)
(“Section 1981 offers relief when racial discrimination blocks

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Thomas, J., dissenting
the creation of a contractual relationship, as well as when
racial discrimination impairs an existing contractual relation
ship”); 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) (Sec
tion 1981 “on its face relates primarily to racial discrimina
tion in the making and enforcement of contracts”).
Respondent nonetheless contends that “[t]he terms of sec
tion 1981 are significantly different, and broader, than a
simple prohibition against discrimination.” Brief for Re
spondent 15. It is true that § 1981(a), which was enacted
shortly after the Civil War, does not use the modern statu
tory 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 evinces a “con
cer[n] with protecting individuals ‘based on what they do,’ ”
as opposed to “ ‘prevent[ing] injury to individuals based on
who they are.’ ” Ibid. (quoting Burlington N. & S. F. R. Co.
v. White, 548 U. S. 53, 63 (2006)). Nor does § 1981 “affirma
tively guarante[e]” freestanding “rights to engage in particu
lar conduct.” Brief for Respondent 16. Rather, § 1981 is an
equal-rights provision. See Georgia v. Rachel, 384 U. S.
780, 791 (1966) (“Congress intended to protect a limited cate
gory of rights, specifically defined in terms of racial equal
ity”). The statute assumes that “white citizens” enjoy cer
tain rights and requires that those rights be extended
equally to “[a]ll persons,” regardless of their race. That is
to say, it prohibits discrimination based on race.1
1 The United States, appearing as amicus curiae in support of respond
ent, 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 nongovern

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460 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 complained
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 distinction just two
years ago in Burlington when it explained that Title VII’s
antidiscrimination provision “seeks to prevent injury to indi
viduals based on who they are, i. e., their status,” whereas
its “antiretaliation provision seeks to prevent harm to indi
viduals 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 dis
tinct from a claim of discrimination—logically because retali
ation 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 discrimination actually occurred. Consider, for
example, an employer who fires any employee who complains
of race discrimination, regardless of the employee’s race.
mental 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 discrimination 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 in
tended 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 citi
zens. 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 only when racial discrimination impairs
the right to make and enforce contracts.

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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
The Court apparently believes that the status/conduct dis
tinction is not relevant here because this case, unlike Bur
lington, does not require us to determine whether § 1981’s
supposed prohibition on retaliation “sweep[s] more broadly”
than its antidiscrimination prohibition. Ante, at 456. That
is nonsense. Although, as the Court notes, we used the sta
tus/conduct distinction in Burlington to explain 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 dis
2 Of course, if an employer had a different retaliation policy for blacks
and whites—firing black employees who complain of race discrimination
but not firing similarly situated white employees—a black employee 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 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 rec
ord evidence to support his assertion that petitioner treated him differ
ently 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.

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tinction between status and conduct is irrelevant here. To
the contrary, Burlington underscores the fact that status
based discrimination and conduct-based retaliation are dis
tinct harms that call for tailored legislative treatment. That
is why Congress, in Title VII and a host of other statutes,
has enacted separate provisions prohibiting discrimination
and retaliation. See Brief for Petitioner 17–18 (citing stat
utes); see also ante, at 453–454 (same). Construing a gen
eral ban on discrimination such as that contained in § 1981 to
cover retaliation would render these separate antiretaliation
provisions superfluous, contrary to the normal rules of statu
tory interpretation.
Of course, this is not the first time I have made these
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 funding from
discriminating “on the basis of sex,” § 1681(a), affords an im
plied cause of action for retaliation against those who com
plain of sex discrimination. In so doing, the Court disre
garded 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 inten
tional response to the nature of the complaint: an allegation
of sex discrimination.” 544 U. S., at 174. But as I ex
plained in my dissenting opinion in Jackson, “the sex-based
topic of the complaint cannot overcome the fact that the re
taliation is not based on anyone’s sex, much less the com
plainer’s sex.” Id., at 188.
Likewise here, the race-based topic of the complaint can
not 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 discrimination] and
serves as a prophylactic measure to guard the primary

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Thomas, J., dissenting
right.” Id., at 189; see also Burlington, supra, at 63 (ex
plaining that Title VII’s “antidiscrimination provision seeks
a workplace where individuals are not discriminated against
because of their racial, ethnic, religious, or gender-based sta
tus,” whereas its “antiretaliation provision seeks to secure
that primary objective by preventing an employer from in
terfering (through retaliation) with an employee’s efforts to
secure or advance enforcement of the Act’s basic guaran
tees”). In other words, “[t]o describe retaliation as discrimi
nation 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).
Notably, the Court does not repeat Jackson’s textual anal
ysis in this case, perhaps because no amount of repetition
could make it any more plausible today than it was three
years ago. Instead, the Court acknowledges that “the stat
ute’s language does not expressly refer to the claim of an
individual (black or white) who suffers retaliation.” Ante,
at 452. 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 in
tent the essential predicate for implication of a private rem
edy simply does not exist,” Alexander v. Sandoval, 532 U. S.
275, 293, n. 8 (2001) (internal quotation marks omitted; em
phasis deleted); see also id., at 286–287 (emphasizing that,
absent evidence of Congress’ intent to create a cause of ac
tion, 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 disposi
tive, the Court says, because “it is too late in the day” to
resort to “a linguistic argument” that was supposedly re
jected in Sullivan v. Little Hunting Park, Inc., 396 U. S.

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229 (1969). Ante, at 453. 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 inter
pretation of § 1981,” ante, at 452, it adopts for the first time
today. Unlike the Court, I find the statute’s text dispositive.
Because § 1981 by its terms prohibits only discrimination
based on race, and because retaliation is not discrimination
based on race, § 1981 does not provide an implied cause of
action for retaliation.
II
Unable to justify its holding as a matter of statutory inter
pretation, the Court today retreats behind the figleaf of er
satz stare decisis. The Court’s invocation of stare decisis
appears to rest on three considerations: (1) Sullivan’s pur
ported recognition of a cause of action for retaliation under
§ 1982; (2) Jackson’s (re)interpretation of Sullivan; and
(3) the Courts of Appeals’ view that § 1981 provides a cause
of action for retaliation. None of these considerations, sepa
rately or together, justifies implying a cause of action that
Congress did not include in the statute. And none can con
ceal 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 Jack
son, Sullivan did not “hol[d] that a general prohibition
against discrimination permitted a claim of retaliation,” 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 discrimi
nated against the black lessee on the basis of race.” Ibid.
Here, by contrast, respondent “need not show that the [race]
discrimination forming the basis of his complaints actually
occurred.” Ibid. Accordingly, as it did in Jackson, the

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Court “creates an entirely new cause of action for a second
ary 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 corpo
ration’s refusal to approve the assignment—violated § 1982.
Instead, he argued that his expulsion was “contrary to pub
lic policy” because it was the “direct result of his having
dealt with Freeman, as the statute requires, on a non
discriminatory basis.” Brief for Petitioners in Sullivan 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, 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 adversary capable
of vindicating them in litigation arising from his expulsion”
(internal quotation marks omitted)). Similarly, 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
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 expulsion, 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
in Sullivan, p. 14 (emphasis added).

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available to all persons injured by it, or as a consequence of
their efforts to resist it.” Brief for United States in Sulli
van, p. 34.
Thus, both Sullivan and the United States argued that Sul
livan had standing to seek relief for injuries he suffered 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 Court subse
quently held. Tracking the parties’ arguments, the Court
first concluded that the corporation’s “refus[al] to approve
the assignment of the membership 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 Bar
rows 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 Sul
livan “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 Sulli
van would have had “standing” absent the violation of Free
man’s rights.
Of course, Sullivan is not a model of clarity, and Justice
Harlan, writing in dissent, was correct to criticize the “undis
criminating 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 assignment and for his
expulsion. Id., at 253. But in stating that Sullivan had
standing to maintain “this action,” id., at 237 (majority opin
ion), the Court did not specify what relief Sullivan was enti
tled 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 remand,” 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

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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 § 1982 is read to
impose a duty on Sullivan to protest Freeman’s exclu
sion, he would be entitled to reinstatement under this
standard only if the Board had expelled him for the sim
ple 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 Hunting Park’s ini
tial 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 con
vincing the Board to accept Freeman?” Id., at 254–255.
It is noteworthy that of the three possible standards Jus
tice Harlan outlined, the first two clearly depend on a show
ing 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 Sul
livan was protesting an actual violation 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 retaliation—which
I doubt it can, at least not without superimposing an anach

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ronistic outlook on a Court that was not as familiar with re
taliation claims as we are today—the Court’s one-paragraph
discussion of the issue was, at best, both cursory and ambigu
ous. 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 Sulli
van, federal appeals courts concluded, on the basis of Sulli
van or its reasoning, that § 1981 encompassed retaliation
claims.” Ante, at 448. 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 standing, Win
ston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977)
(characterizing the issue as “whether or not the white plain
tiff in this action has standing to sue his former employer
under 42 U. S. C. § 1981 for discharging him in alleged retali
ation for plaintiff ’s protesting the alleged discriminatory fir
ing of a black co-worker”), or recognized that it was taking
a step beyond Sullivan in inferring a cause of action for re
taliation, 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
reprisals 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) (recogniz
ing that Sullivan and a previous Fifth Circuit decision rely
ing on Sullivan were “essentially standing cases holding 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 for

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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 ques
tion, then, would be whether to extend Sullivan’s erroneous
interpretation of § 1982 to § 1981. The Court treats this as
a foregone conclusion because “our precedents have long con
strued §§ 1981 and 1982 similarly.” Ante, at 447. But erro
neous precedents need not be extended to their logical end,
even when dealing with related provisions that normally
would be interpreted in lockstep.5 Otherwise, stare decisis,
4 The majority claims that Sullivan “did not embrace” this “linguistic
argument.” Ante, at 453. 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 Har
lan’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 (dissenting opinion). I fail to see how that observation—
or Justice Harlan’s further observation that the Court in Sullivan had
gone “yet beyond Jones,” ibid.—shows that the Court considered and re
jected 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 sec
tions 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 Exchange
Act of 1934, 15 U. S. C. § 78n(a). It was as freewheeling in ‘interpreting’

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470 CBOCS WEST, INC. v. HUMPHRIES
Thomas, J., dissenting
designed to be a principle of stability and repose, would be
come a vehicle of change whereby an error in one area me
tastasizes 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 447,
452–453. 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 ac
tion 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 any
thing about a “cause of action,” and did not state that Sulli
van had rights under § 1982. It most certainly did not “in
terpre[t] a general prohibition on racial discrimination to
cover retaliation against those who advocate the rights of
groups protected by that prohibition.” Jackson, 544 U. S.,
at 176. Jackson’s assertion that Sullivan “plainly held that
the white owner could maintain his own private cause of
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 sec
tions of the Securities Exchange Act. See Piper v. Chris-Craft Indus
tries, 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 subsection. 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 (some citations
omitted).

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action under § 1982,” 544 U. S., 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 vindicate his own right to be free from
retaliation under § 1982. Rather, as I have explained, Sulli
van’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 erro
neous characterization 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, 105 Stat.
1071, “the lower courts have uniformly interpreted § 1981
as encompassing retaliation actions.” Ante, at 451. 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., dissenting).
The Court does not explain what makes this particular line
of lower court authority any more sacrosanct than those we
have rejected in the past.

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Thomas, J., dissenting
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 demonstrated by the
number of judges who have reached the opposite conclusion.
See, e. g., Buckhannon, supra, at 643–644 (Ginsburg, J., dis
senting) (“When this Court rejects the considered judgment
prevailing in the Circuits, respect for our colleagues de
mands a cogent explanation”). Unlike decisions of this
Court, decisions of the courts of appeals, even when unani
mous, 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 preceden
tial weight to the lower courts’ decisions, but because we
agreed with their resolution of the question on the merits.
See, e. g., Gonzalez v. Crosby, 545 U. S. 524, 531 (2005) (“Vir
tually 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 stat
ute 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, the
majority returns this Court to the days in which it created
remedies out of whole cloth to effectuate its vision of con
gressional purpose.” Ibid. That the Court does so under
the guise of stare decisis does not make its decision any more

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justifiable. Because the text of § 1981 provides no basis for
implying a private right of action for retaliation, and because
no decision of this Court holds to the contrary, I would re
verse the judgment below.