Hedrick Humphries, an African-American who worked for the restaurant as an associate manager from 1999 to 2001, alleges that he was fired after he complained about the racially discriminatory behavior of his supervisor.

He filed his suit under two civil rights statutes—one from the 1960s that has an explicit retaliation provision and one from the 1860s that lacks language about retaliation. A district court dismissed Humphries’ claims on summary judgment.

But the 7th Circuit Court of Appeals ruled that 19th century law, known as Section 1981, does address retaliation. That statute, which protects minorities in the making and enforcing of contracts, provides a four-year statute of limitations as well as unlimited damages.

A provision of the Civil Rights Act of 1964, Title VII, is more restrictive. It caps damages, requires plaintiffs to file their cases within months of a discriminatory act and establishes an administrative procedure to try to resolve the dispute.

Chief Justice John Roberts Jr. questioned whether a ruling in favor of Humphries would allow plaintiffs to “obliterate that cap [in] any case brought under 1981.”

Supreme Court thinking on the issue has changed over the years. In the late 1960s, the court ruled that Section 1981 does cover retaliation. But in 1989, it narrowed the scope of the law. In reaction to the latter decision, Congress amended the law in 1991.

Since then, courts have interpreted the congressional action as broadening Section 1981 to include retaliation.

“They haven’t been following the text of the law,” Michael Hawkins, who represents Cracker Barrel, told the court.

Several justices seemed to agree. Justice Anthony Kennedy told Humphries’ lawyer, Cynthia Hyndman, that language about retaliation was absent even from the revised version that Congress passed in 1991.

“You’re admitting none of the words in the statute as amended help you,” Kennedy said. “You want me to add a new term.”

Justice Antonin Scalia characterized Hyndman’s argument for a broad interpretation of the law as a good pitch for congressional changes rather than a Supreme Court decision. “That statute says what it says,” Scalia said. “We don’t write statutes, we read them.”

Demonstrating the complexities of the case, however, both Kennedy and Scalia pushed Hawkins on his restrictive view of the law.

When Hawkins argued that the 1989 case would not have allowed a retaliation claim even after the 1991 amendment, Kennedy and Scalia were askance.

Hawkins tried to clarify his answer, but the justices weren’t convinced.

Kennedy also questioned Hawkins’ assertion that Title VII was meant to be the avenue for retaliation cases rather than Section 1981. He said that Congress didn’t seem to want a clear delineation.

“If Congress is not concerned about [overlap], why should we be?” Kennedy asked.

Justice Ruth Bader Ginsburg asserted that it was necessary for Section 1981 to cover retaliation in order to deter bias.

“What kind of right to be free from discrimination would there be if once one complains, one can be fired, demoted?” she asked. “That would not be a very effective right, would it be?”

In supporting Humphries, the government made a similar argument.

“It seems to me that the guarantee of equal treatment quite naturally is violated not just by the basic discrimination but is also violated by retaliating against someone for exercising their rights,” said Solicitor General Paul Clement.

Between now and the end of its term in July, the court will have to decide whether Congress meant to say the same thing.

—Mark Schoeff Jr.