Wither Garcia?

Perhaps the most interesting thing about CBOCS West, Inc. v. Humphries has little directly to do with the holding in the case that Section 1981 encompasses retaliation claims. Of more importance may be a return by the Court to the principles of stare decisis, principles that have often had little meaning in recent years. The Court’s holding in CBOCS West, Inc. turns far less on the merits of the issue than it does in a refusal by the Court to overturn the plainly analogously applicable Sullivan v. Little Hunting Park, Inc., 396 US 229 (1969) which held that Section 1982 included retaliation claims.

One can only wonder what this means for the continued vitality of Garcia v. San Antonio Metropolitan Transit Authority, which held there was nothing unconstitutional about the application of the FLSA to local governments. For years, commentators have hypothesized that Garcia was on its last legs, with the Court’s recent federalism decisions undercutting the theoretical underpinnings of Garcia. However, Garcia has now been on the books for 23 years, venerable enough status for the sort of stare decisis approach that resulted in CBOCS West, Inc.

Another fascinating aspect of CBOCS West, Inc. is Justice Thomas’ dissent, in which he writes “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.” Whatever one thinks of Justice Thomas’ reading of Sullivan, this passage is interesting because it shows how far Justice Thomas now stands from a real-world understanding of discrimination, where retaliation is usually a more powerful tool to enforce discriminatory work environments than what Justice Thomas would call actual acts of discrimination. Link