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The Freedmen's RemedyThe big discrimination case before the Supreme Court.

By Emily Bazelon
Posted Monday, Feb. 18, 2008, at 7:01 AM ET

In last year's Supreme Court sleeper case, a woman named Lily Ledbetter lost her right to sue because she didn't go to court the first time her paycheck was docked because of sex discrimination, as opposed to when she later realized she was being shortchanged. On Wednesday, the Supreme Court will hear a new employment discrimination case that could also shake up the law of the land and leave the court's liberal dissenters apoplectic. This one may not only prune back employees' rights under the particular statute at issue, but also help the Supreme Court's conservatives rein in discrimination suits more generally.

Hendrick Humphries helped manage a Cracker Barrel restaurant between 1999 and 2001. At first, he thrived, receiving top performance evaluations, bonuses, and raises. Then he got a new supervisor, whom Humphries says made racist remarks and punished black employees unfairly. Humphries complained. Soon after, he was fired.

Humphries represented himself when he initially sued Cracker Barrel for race discrimination, and for technical reasons (his filing fee was late, because he was trying to get it waived on the grounds that he couldn't afford it), the district court dismissed the claim he brought under Title VII, the omnibus federal anti-discrimination statute. That left Humphries with a claim under a less-used law, Section 1981 of the Civil Rights Act of 1866. Congress had passed that law to give former slaves the same rights to "make and enforce contracts" as white people, at a time when freedmen were having all kinds of trouble doing that. The question before the Supreme Court on Wednesday is whether an employee can sue for race discrimination based on Section 1981 if his claim is that his employer retaliated against him (in Humphries' case, by firing him).

When Section 1981 initially passed, it did not include the word retaliation. According to a group of historians who have filed a brief on Humphries' behalf, however, there was all kinds of evidence before Congress about violent reprisals against black people who reported contract violations. In Louisiana, the chief of a Freedman's Bureau reported that a group of freedmen tried to complain to him after a plantation owner refused to pay them promised rations and salary. On their way off the plantation, the group was followed and taken to prison, where they were held for weeks or months. Congress presumably wanted to end such lawlessness by enacting the new statute.

The basic principle here, as Humphries' lawyers point out (disclosure: one of them, Aleeza Strubel, is a friend of mine), is that where the law creates a right, it generally gives "two distinct and equally essential protections: protection from direct obstruction of that right, and protection from reprisal for exercising that right."

Under this theory, Section 1981 gives people the right to make and enforce contracts free of race discrimination, and if they can be fired when they call out employers, then the law isn't worth much. In 1969, the Supreme Court recognized this principle in a case involving the companion statute to Section 1981—Section 1982. That law, also passed in 1866, affords broad-based protection of minority property rights. In that 1969 case, Sullivan v. Little Hunting Park, a private community blocked the sale of a home by a white owner to a black buyer, and the court said the white owner could sue under Section 1982 because he'd been "punished for trying to vindicate the rights" the statute protects.

Along similar lines, and far more recently, in the 2005 case Jackson v. Birmingham Board of Education the Supreme Court read into Title IX, a sex discrimination law, a protection against retaliation. The actual word doesn't appear in this statute, either. This time, the plaintiff was a white basketball coach. In a 5-4 decision by Justice Sandra Day O'Connor, the court said the coach's right to sue for discriminatory treatment of the girls on his team was key to "effective protection" of the equal rights for which Title IX provides.

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Emily Bazelon is a Slate senior editor.
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