• Jan 12, 2008

Historians file anti-discrimination brief at Supreme Court citing history of Reconstruction

An illustrious group of American historians filed an amicus curiae brief at the US Supreme Court in support of an employee who is suing Cracker Barrel under Section 1981 of the Civil Rights Act of 1866. Signers of the brief include: David Levering Lewis, Stanley N. Katz, Leon Litwack, James McPherson, and Mary Frances Berry. The case, Hendrick G. Humphries v CBOCS West, Inc. , will be heard by the Supreme Court on February 20, 2008.

Hendrick G. Humphries, an African-American, was an assistant manager at a Cracker Barrel in Bradley, Illinois for three years. For the first two and a half years, his performance was regarded as good, and he received annual merit raises and bonuses. However, with the arrival of a new general manager, Steve Cardin, things changed. Cardin allegedly made racially derogatory remarks and issued five disciplinary reports to the formerly well regarded Humphries. Humphries complained about Cardin to his supervisor, William Christensen. Christensen made no investigations into Humphries’s complaint.

In September 2001, Ken Dowd became the general manager. During this time, an African-American waitress was fired for failing to show up for a shift. Humphries complained to Dowd and Christensen that her absence was excused, while a white waitress was not fired for a similar offense. Christensen berated Humphries. Shortly thereafter, Humphries was fired on a complaint that he had left a safe unlocked. Humphries subsequently sued under section 1981 charging that the firing was retaliatory.

The issue the Supreme Court has been asked to address is whether Section 1981 allows Humphries to sue for retaliation. The historians hold that it does, since the original intent of the law was to address retaliation, and this intent was subsequently strengthened by a 1991 amendment to the law, Section 1982. The brief makes three arguments: first that the Civil Rights Act of 1866 must be understood in the context of Reconstruction politics and legislation; second, that Freedmen faced retaliation when they sought to make and enforce contracts; and finally, that the right to enforce a contract includes a right not to face retaliation.

Their brief cites the environment in the South during Reconstruction, and notes that a major part of the legislative process included gathering information on the mistreatment of Freedmen attempting to create and enforce employment contracts. They note that protecting Freedmen from retaliation was important to Congress, saying, “Protection from the kinds of reprisals suffered by freedmen who asserted their contract rights was and is a fundamental tool for ensuring that those contract rights are more than simply abstract principles.”

The brief was filed by Melissa Hart of the University of Colorado Law School. Professor Charles Ogletree and the Charles Hamilton Houston Institute at Harvard Law School hired Professor Hart to author the brief and joined as counsel.

Read the brief:

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