The Buckley Brown Blog

The United States Supreme Court is considering whether race retaliation claims are allowable under 42 U.S.C. § 1981.  The Supreme Court’s answer to CBOCS West, Inc. v. Humphries, Docket No. 06-1431, argued before the Court last week, could dramatically affect employment litigation. 

Currently, several federal statutes provide protection from racial discrimination.  The most well-known, Title VII of the Civil Rights Act of 1964, explicitly prohibits certain employers from retaliating against an employee who makes a claim for racial discrimination.  In contrast, while the federal statute at issue in CBOCS West, (§ 1981), protects individuals from racial discrimination, it does not explicitly permit retaliation claims.  Nevertheless, many federal courts have allowed individuals to bring retaliation claims under 42 U.S.C. § 1981.   

The differences between Title VII and § 1981 are significant.  Title VII imposes strict time requirements on employees asserting a retaliation claim.  For instance, a Georgia employee must report the alleged retaliation within 180 days of the discriminatory or retaliatory action with the EEOC and must file a lawsuit within 90 days of receiving a right to sue letter from the EEOC.  Additionally, only private employers, state and local governments, and education institutions that employ 15 or more individuals are subject to Title VII.  Finally, Title VII limits the amount of damages that can be awarded based on the employer’s size.  However, 42 U.S.C. § 1981 is not so restrictive.  Employees have several years to file a claim under 42 U.S.C. § 1981, it applies to all employers regardless of their size, and it does not limit the amount of damages that can be awarded.  Because it eliminates some of the limits of Title VII, § 1981 is an attractive provision for employees to use as a basis for a retaliation claim.   

The employer’s argument in CBOSC West is that retaliation claims should not be allowed under § 1981 because they were not explicitly included.  The employer also claims that allowing retaliation claims under § 1981 erodes the limitations of Title VII.  The employee contends that § 1981 is a broad protection of race-based discrimination, including retaliation, and that Title VII was meant to supplement § 1981.  At oral argument, the Court seemed concerned about the lack of explicit language in § 1981 allowing retaliation claims, leading some to speculate that the Court may prohibit retaliation claims under § 1981. 

The Court’s opinion should be published in a few months. 

The attorneys at Buckley Brown are available to assist you in preventing and defending retaliation and other employment discrimination claims.

For more information, please contact T.K. Haff at (404) 633-9230.

Beginning July 1, 2009, the new Medicare, Medicaid, and SCHIP Extension Act of 2007 requires liability insurers, including self-insurers, no-fault insurers and workers’ compensation insurers, to:  

• Determine Medicare/Medicaid status for all claimants; and
• Report to the Centers for Medicare and Medicaid Services (“CMS”), the federal administrative agency responsible for administering Medicare and Medicaid, when those claims are resolved.

 This means a duty falls to an alleged tortfeasor’s insurance carrier or the tortfeasor if self-insured to determine whether the plaintiff is on Medicare and to report to the appropriate agency in the event resolution of the tort claim is being sought. The Secretary of Health and Human Services then will coordinate the Medicare benefits for the claimants.  The information must be timely submitted after the claim is resolved through settlement, judgment or award of other payment.  The requirements concerning when and what information is to be submitted to the Secretary will be later determined by the CMS.  Whether liability is determined or admitted does not impact the reporting requirement. Failure to comply with the Act’s notification requirements may result in a civil penalty of $1,000 per day per claimant.  This penalty is distinct from Medicare’s current statutory right to collect 100 percent of conditional payments to the Medicare beneficiary – that right of recovery stands against the tortfeasor or its carrier regardless of whether the claimant has received the full settlement funds.  Thus, this right to recover should be considered in any settlement agreement and before transferring any funds.   Until the rulemaking is completed, many unanswered questions about the implementation of this provision remain, including what information must be submitted to the Secretary and within what timeframe it must be submitted to comply with the Act.  We will continue to update any new developments concerning the Medicare, Medicaid, and SCHIP Extension Act of 2007 once regulations are promulgated.

For more information, please contact Denny Brown at (404) 633-9230.

The public duty doctrine dictates whether a governmental entity owes a duty of care to an individual.  Previously, the Georgia Supreme Court has applied the public duty doctrine only to cases involving police protection.  The defendant in Gregory v. Clive, S06G2138 (10/9/2007) asked for the public duty doctrine to be extended to the “general provision of government services under the ‘police power’ of local governments, if a special relationship between the plaintiff and the governmental entity can be shown.”  In Gregory, the plaintiffs built a house and barn on their property.  Clive, a building inspector with the county, inspected Gregory’s house and issued a certificate of occupancy, but did not inspect the barn.  The barn collapsed, injuring Gregory.  In the lawsuit, Gregory alleged that if the barn had been inspected, its defects would have been discovered.  The Georgia Supreme Court rejected plaintiff’s request to extend the doctrine, confirming that the public duty doctrine applies only in the context of the “provision of police protection services traditionally done by police enforcement personnel.”

For more information, please contact Tim Buckley at (404) 633-9230.