|Patterson v. McLean Credit Union
[ Kennedy ]
[ Brennan ]
[ Stevens ]
Patterson v. McLean Credit Union
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, and with whom JUSTICE STEVENS joins as to Parts II-B, II-C, and III, concurring in the judgment in part and dissenting in part.
What the Court declines to snatch away with one hand, it takes with the other. Though the Court today reaffirms § 1981's applicability to private conduct, it simultaneously gives this landmark civil rights statute a needlessly cramped interpretation. The Court has to strain hard to justify this choice to confine § 1981 within the narrowest possible scope, selecting the most pinched reading of the phrase "same right to make a contract," ignoring powerful historical evidence about the Reconstruction Congress' concerns, and bolstering its parsimonious rendering by reference to a statute enacted nearly a century after § 1981, and plainly not intended to affect its reach. When it comes to deciding whether a civil rights statute should be construed to further our Nation's commitment to the eradication of racial discrimination, the Court adopts a formalistic method of interpretation antithetical to Congress' vision of a society in which contractual opportunities are equal. I dissent from the Court's holding that § 1981 does not encompass Patterson's racial harassment claim. [p190]
Thirteen years ago, in deciding Runyon v. McCrary, 427 U.S. 160 (1976), this Court treated as already "well established" the proposition that
§ 1 of the Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1981 prohibits racial discrimination in the making and enforcement of private contracts,
as well as state-mandated inequalities, drawn along racial lines, in individuals' ability to make and enforce contracts. Id. at 168, citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975); Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 (1973); and Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Since deciding Runyon, we have upon a number of occasions treated as settled law its interpretation of § 1981 as extending to private discrimination. Goodman v. Lukens Steel Co., 482 U.S. 656 (1987); Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982); Delaware State College v. Ricks, 449 U.S. 250 (1980); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). We have also reiterated our holding in Jones that § 1982 similarly applies to private discrimination in the sale or rental of real or personal property -- a holding arrived at through an analysis of legislative history common to both § 1981 and § 1982. Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969).
The Court's reaffirmation of this long and consistent line of precedents establishing that § 1981 encompasses private discrimination is based upon its belated decision to adhere to the principle of stare decisis -- a decision that could readily, and would better, have been made before the Court decided to put Runyon and its progeny into question by ordering reargument in this case. While there is an exception to stare decisis for precedents that have proved "outdated, . . . unworkable, or otherwise legitimately vulnerable to serious [p191] reconsideration," Vasquez v. Hillery, 474 U.S. 254, 266 (1986), it has never been arguable that Runyon falls within it. Rather, Runyon is entirely consonant with our society's deep commitment to the eradication of discrimination based on a person's race or the color of her skin. See Bob Jones University v. United States, 461 U.S. 574, 593 (1983) ("[E]very pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination"). That commitment is not bounded by legal concepts such as "state action," but is the product of a national consensus that racial discrimination is incompatible with our best conception of our communal life, and with each individual's rightful expectation that her full participation in the community will not be contingent upon her race. In the past, this Court has overruled decisions antagonistic to our Nation's commitment to the ideal of a society in which a person's opportunities do not depend on her race, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)), and I find it disturbing that the Court has in this case chosen to reconsider, without any request from the parties, a statutory construction so in harmony with that ideal.
Having decided, however, to reconsider Runyon, and now to reaffirm it by appeal to stare decisis, the Court glosses over what are in my view two very obvious reasons for refusing to overrule this interpretation of § 1981: that Runyon was correctly decided, and that, in any event, Congress has ratified our construction of the statute.
A survey of our cases demonstrates that the Court's interpretation of § 1981 has been based upon a full and considered review of the statute's language and legislative history, assisted by careful briefing, upon which no doubt has been cast by any new information or arguments advanced in the briefs filed in this case. [p192]
In Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), this Court considered whether § 1982, which provides that
[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property,
prohibits private discrimination on the basis of race, and if so, whether the statute is constitutional. The Court held, over two dissenting votes, that § 1982 bars private, as well as public, racial discrimination, and that the statute was a valid exercise of Congress' power under § 2 of the Thirteenth Amendment to identify the badges and incidents of slavery and to legislate to end them.
The Court began its careful analysis in Jones by noting the expansive language of § 1982, and observing that a black citizen denied the opportunity to purchase property as a result of discrimination by a private seller cannot be said to have the "same right" to purchase property as a white citizen. 392 U.S. at 420-421. The Court also noted that, in its original form, § 1982 had been part of § 1 of the Civil Rights Act of 1866, [n1] and that § 2 of the 1866 Act provided for criminal penalties against any person who violated rights secured or [p193] protected by the Act "under color of any law, statute, ordinance, regulation, or custom." 392 U.S. at 424-426. This explicit limitation upon the scope of § 2, to exclude criminal liability for private violations of § 1, strongly suggested that § 1 itself prohibited private discrimination, for otherwise the limiting language of § 2 would have been redundant. Ibid. Although Justice Harlan, in dissent, thought a better explanation of the language of § 2 was that it "was carefully drafted to enforce all of the rights secured by § 1," id. at 454, it is by no means obvious why the dissent's view should be regarded as the more accurate interpretation of the structure of the 1866 Act. [n2]
The Court then engaged in a particularly thorough analysis of the legislative history of § 1 of the 1866 Act, id. at 422-437, which had been discussed at length in the briefs of both parties and their amici. [n3] While never doubting that the prime targets of the 1866 Act were the Black Codes, in which the Confederate States imposed severe disabilities on the freedmen in an effort to replicate the effects of slavery, see, e.g., 1 C. Fairman, Reconstruction and Reunion 1864-1888, pp. 110-117 (1971) (discussing Mississippi's Black Codes), the Court concluded that Congress also had intended § 1 to reach private discriminatory conduct. The Court cited [p194] a bill (S. 60) to amend the Freedmen's Bureau Act, introduced prior to the civil rights bill, and passed by both Houses during the 39th Congress (though it was eventually vetoed by President Johnson), as persuasive evidence that Congress was fully aware that any newly recognized rights of blacks would be as vulnerable to private as to state infringement. 392 U.S. at 423, and n. 30. The amendment would have extended the jurisdiction of the Freedmen's Bureau over all cases in the former Confederate States involving the denial on account of race of rights to make and enforce contracts or to purchase or lease property, "in consequence of any State or local law, ordinance, police, or other regulation, custom, or prejudice." Cong.Globe, 39th Cong., 1st Sess., 209 (1866) (emphasis added). When the civil rights bill was subsequently introduced, Representative Bingham specifically linked it in scope to S. 60. Id. at 1292. See Jones, supra, at 424, n. 31.
The Court further noted that there had been
an imposing body of evidence [before Congress] pointing to the mistreatment of Negroes by private individuals and unofficial groups, mistreatment unrelated to any hostile state legislation.
392 U.S. at 427. This evidence included the comprehensive report of Major General Carl Schurz on conditions in the Confederate States. This report stressed that laws were only part of the problem facing the freedmen, who also encountered private discrimination and often brutality. [n4] The congressional [p195] debates on the Freedmen's Bureau and civil rights bills show that legislators were well aware that the rights of former slaves were as much endangered by private action as by legislation. See id. at 427-428, and nn. 37-40. To be sure, there is much emphasis in the debates on the evils of the Black Codes. But there are also passages that indicate that Congress intended to reach private discrimination that posed an equal threat to the rights of the freedmen. See id. at 429-437. Senator Trumbull, for example, promised to introduce a bill aimed not only at "local legislation," but at any "prevailing public sentiment" that blacks in the South "should continue to be oppressed and in fact deprived of their freedom." [p196] Cong.Globe, 39th Cong., 1st Sess., 77 (1866), quoted in Jones, supra, at 431. [n5] In the Jones Court's view, which I share, Congress said enough about the injustice of private discrimination, and the need to end it, to show that it did indeed intend the Civil Rights Act to sweep that far.
Because the language of both § 1981 and § 1982 appeared traceable to § 1 of the Civil Rights Act of 1866, the decision in Jones was naturally taken to indicate that § 1981 also prohibited private racial discrimination in the making and enforcement of contracts. Thus, in Tillman v. Wheaton-Haven Recreational Assn., Inc., 410 U.S. at 440, the Court held that "[i]n light of the historical interrelationship between § 1981 and § 1982," there was no reason to construe those sections differently as they related to a claim that a community swimming club denied property-linked membership preferences to blacks; and in Johnson v. Railway Express Agency, Inc., 421 U.S. at 459-460, the Court stated that "§ 1981 affords a federal remedy against discrimination in private employment on the basis of race." The Court only addressed the scope of § 1981 in any depth, however, in Runyon v. McCrary, 427 U.S. 160 (1976), where we held that § 1981 prohibited racial discrimination in the admissions policy of a private school. That issue was directly presented and fully briefed in Runyon. [n6] [p197]
Although the Court in Runyon treated it as settled by Jones, Tillman, and Johnson that § 1981 prohibited private racial discrimination in contracting, it nevertheless discussed in detail the claim that § 1981 is narrower in scope than § 1982. The primary focus of disagreement between the majority in Runyon and JUSTICE WHITE'S dissent, a debate renewed by the parties here on reargument, concerns the origins of § 1981. Section 1 of the 1866 Act was expressly reenacted by § 18 of the Voting Rights Act of 1870. Act of May 31, 1870, ch. 114, § 18, 16 Stat. 144. Section 16 of the 1870 Act nevertheless also provided
[t]hat all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts. . . .
Ibid. Section 1 of the 1866 Act, as reenacted by § 18 of the 1870 Act, was passed under Congress' Thirteenth Amendment power to identify and legislate against the badges and incidents of slavery, and, we held in Jones, applied to private acts of discrimination. The dissent in Runyon, however, argued that § 16 of the 1870 Act was enacted solely under Congress' Fourteenth Amendment power to prohibit States from denying any person the equal protection of the laws, and could have had no application to purely private discrimination. See Runyon, supra, at 195-201 (WHITE, J., dissenting). But see District of Columbia v. Carter, 409 U.S. 418, 424, n. 8 (1973) (suggesting Congress has the power to proscribe purely private conduct under § 5 of the Fourteenth Amendment). When all existing federal statutes were codified in the Revised Statutes of 1874, the Statutes included but a single provision prohibiting racial discrimination in the making and enforcement of contracts -- § 1977, which was identical to the current § 1981. The Runyon dissenters believed that this provision derived solely from § 16 of the 1870 Act, that the analysis of § 1 in [p198] Jones was of no application to § 1981, and that § 1981 hence could not be interpreted to prohibit private discrimination.
The Court concluded in Runyon, however -- correctly, I believe -- that § 1977 derived both from § 1 of the 1866 Act (as reenacted) and from § 16 of the 1870 Act, and thus was to be interpreted, in light of the decision in Jones, as applying to private conduct. See also General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. at 390, n. 17 ("[Section] 1981, because it is derived in part from the 1866 Act, has roots in the Thirteenth as well as the Fourteenth Amendment"). This result followed, the Court held, from the terms of the 1874 revision of the statutes. The revisers who prepared the codification had authority only to "revise, simplify, arrange, and consolidate" existing laws, to omit "redundant or obsolete" provisions, and to make suggestions for repeal. Act of June 27, 1866, 14 Stat. 74-75. See Runyon, 427 U.S. at 168, n. 8. The revisers made no recommendation that § 1 of the 1866 Act, as reenacted, be repealed, and obviously the broad 1866 provision, applying to private actors, was not made redundant or obsolete by § 16 of the 1870 Act, with its potentially narrower scope. Hence it is most plausible to think that § 1977 was a consolidation of § 1 and of § 16. Id. at 169, n. 8. The Runyon Court explained that a revisers' note printed alongside § 1977, indicating that it was derived from § 16, but not mentioning § 1 or its reenactment, had to be viewed in light of the terms of the codification as either inadvertent or an error, and declined
to attribute to Congress an intent to repeal a major piece of Reconstruction legislation on the basis of an unexplained omission from the revisers' marginal notes.
Ibid. [n7] Respondent has supplied [p199] no new information suggesting that the Court's conclusion as to the dual origins of § 1981 was mistaken. [n8] In sum, I find the careful analysis in both Jones and Runyon persuasive. [p200]
Even were there doubts as to the correctness of Runyon, Congress has in effect ratified our interpretation of § 1981, a fact to which the Court pays no attention. We have justified our practice of according special weight to statutory precedents, see ante, at 172-173, by reference to Congress' ability to correct our interpretations when we have erred. To be sure, the absence of legislative correction is by no means in all cases determinative, for where our prior interpretation of a statute was plainly a mistake, we are reluctant to "‘place on the shoulders of Congress the burden of the Court's own error.'" Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695 (1978), quoting Girouard v. United States, 328 U.S. 61, 70 (1946). Where our prior interpretation of congressional intent was plausible, however -- which is the very least that can be said for our construction of § 1981 in Runyon -- we have often taken Congress' subsequent inaction as probative to varying degrees, depending upon the circumstances, of its acquiescence. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 629-630, n. 7 (1987). Given the frequency with which Congress has in recent years acted to overturn this Court's mistaken interpretations of civil rights statutes, [n9] its failure to enact legislation [p201] to overturn Runyon appears at least to some extent indicative of a congressional belief that Runyon was correctly decided. It might likewise be considered significant that no other legislative developments have occurred that cast doubt on our interpretation of § 1981. Cf., e.g., Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 233-234 (1987) (regulatory developments); Monell, supra, at 697-699; Califano v. Sanders, 430 U.S. 99, 105-107 (1977).
There is no cause, though, to consider the precise weight to attach to the fact that Congress has not overturned or otherwise undermined Runyon. For in this case, we have more positive signs of Congress' views. Congress has considered and rejected an amendment that would have rendered § 1981 unavailable in most cases as a remedy for private employment discrimination, which is evidence of congressional acquiescence that is "something other than mere congressional silence and passivity." Flood v. Kuhn, 407 U.S. 258, 283 (1972). In addition, Congress has built upon our interpretation of § 1981 in enacting a statute that provides for the recovery of attorney's fees in § 1981 actions.
After the Court's decision in Jones v. Alfred H. Mayer Co., Congress enacted the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, amending Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. During Congress' consideration of this legislation -- by which time there had been ample indication that § 1981 was being [p202] interpreted to apply to private acts of employment discrimination [n10] -- it was suggested that Title VII rendered redundant the availability of a remedy for employment discrimination under provisions derived from the Civil Rights Act of 1866. Some concluded that Title VII should be made, with limited exceptions, the exclusive remedy for such discrimination. See H.R.Rep. No. 92-238, pp. 66-67 (1971) (minority views). Senator Hruska proposed an amendment to that effect. 118 Cong.Rec. 3172 (1972). Speaking for his amendment, Senator Hruska stated his belief that, under existing law, private employment discrimination would give rise to a § 1981 claim. He complained specifically that, without a provision making Title VII an exclusive remedy, "a black female employee [alleging] a denial of either a promotion or pay raise . . . because of her color," might "completely bypass" Title VII by filing "a complaint in Federal court under the provisions of the Civil Rights Act of 1866 against . . . the employer." Id. at 3368, 3369. In speaking against the Hruska amendment, Senator Williams, floor manager of the bill, stated that it was not the purpose of the bill "to repeal existing civil rights laws," and that to do so "would severely weaken our overall effort to combat the presence of employment discrimination." Id. at 3371. He referred to § 1981 as an existing protection that should not be limited by the amendments to Title VII:
The right of individuals to bring suits in Federal courts to redress individual acts of discrimination, including [p203] employment discrimination[,] was first provided by the Civil Rights Acts of 1866 and 1871, 42 U.S.C. sections 1981, 1983. It was recently stated by the Supreme Court in the case of Jones v. Mayer that these acts provide fundamental constitutional guarantees. In any case, the courts have specifically held that title VII and the Civil Rights Acts of 1866 and 1871 are not mutually exclusive, and must be read together to provide alternative means to redress individual grievances.
Mr. President, the amendment of [Senator Hruska] will repeal the first major piece of civil rights legislation in this Nation's history. We cannot do that.
* * * *
The peculiarly damaging nature of employment discrimination is such that the individual, who is frequently forced to face a large and powerful employer, should be accorded every protection that the law has in its purview, and that the person should not be forced to seek his remedy in only one place.
Id. at 3371-3372. [n11]
The Hruska amendment failed to win passage on a tied vote, id. at 3373, and the Senate later defeated a motion to reconsider the amendment by a vote of 50 to 37, id. at 3964-3965. Though the House initially adopted a similar amendment, 117 Cong.Rec. 31973, 32111 (1971), it eventually agreed with the Senate that Title VII should not preclude other remedies for employment discrimination, see H.R.Conf.Rep. No. 92-899 (1972). Thus, Congress in 1972 assumed that § 1981 reached private discrimination, and declined to alter its availability as an alternative to those remedies provided by Title VII. The Court in Runyon properly relied upon Congress' refusal to adopt an amendment that [p204] would have made § 1981 inapplicable to racially discriminatory actions by private employers, and concluded, as I do, that
[t]here could hardly be a clearer indication of congressional agreement with the view that § 1981 does reach private acts of racial discrimination.
427 U.S. at 174-175 (emphasis in original).
Events since our decision in Runyon confirm Congress' approval of our interpretation of § 1981. In 1976 -- shortly after the decision in Runyon and well after the Court had indicated in Tillman and Johnson that § 1981 prohibits private discrimination -- Congress reacted to the ruling in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), that attorney's fees are not ordinarily recoverable absent statutory authorization, by enacting the Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988. A number of civil rights statutes, like § 1981, did not provide for the recovery of attorney's fees, and Congress heard testimony that the decision in Alyeska Pipeline might have a "devastating impact" on litigation under the civil rights laws. H.R.Rep. No. 94-1558, p. 3 (1976). Congress responded by passing an Act to permit the recovery of attorney's fees in civil rights cases, including those brought under § 1981.
Congress was well aware when it passed the 1976 Act that this Court had interpreted § 1981 to apply to private discrimination. The House Judiciary Committee Report had expressly stated:
Section 1981 is frequently used to challenge employment discrimination based on race or color. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975). Under that section, the Supreme Court recently held that whites as well as blacks could bring suit alleging racially discriminatory employment practices. McDonald v. Santa Fe Trail Transportation Co.[, 427 U.S. 273 (1976)]. Section 1981 has also been cited to attack exclusionary admissions policies at recreational facilities. [p205] Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 (1973).
Id. at 4 (footnote omitted). The House recognized that § 1981, thus interpreted, overlaps significantly with Title VII, and expressed dissatisfaction that attorney's fees should be available under the latter, but not the former, statute. See also S.Rep. No. 94-1011, p. 4 (1976) ("[F]ees are now authorized in an employment discrimination suit brought under Title VII of the 1964 Civil Rights Act, but not in the same suit brought under 42 U.S.C. § 1981 which protects similar rights but involves fewer technical prerequisites to the filing of an action"). Congress' action in providing for attorney's fees in § 1981 actions, intending that successful § 1981 plaintiffs who could have brought their action under Title VII not be deprived of fees, and knowing that this Court had interpreted § 1981 to apply to private discrimination, goes beyond mere acquiescence in our interpretation of § 1981. Congress approved and even built upon our interpretation. Overruling Runyon would be flatly inconsistent with this expression of congressional intent. See Bob Jones University v. United States, 461 U.S. at 601-602; Patsy v. Florida Bd. of Regents, 457 U.S. 496, 501 (1982); Apex Hosiery Co. v. Leader, 310 U.S. 469, 488(1940).
I turn now to the two issues on which certiorari was originally requested and granted in this case. The first of these is whether a plaintiff may state a cause of action under § 1981 based upon allegations that her employer harassed her because of her race. In my view, she may. The Court reaches a contrary conclusion by conducting an ahistorical analysis that ignores the circumstances and legislative history of § 1981. The Court reasons that Title VII or modern state contract law "more naturally govern[s]" harassment actions, ante at 177-- nowhere acknowledging the anachronism attendant upon the implication that the Reconstruction Congress would have viewed state law, or a federal civil rights [p206] statute passed nearly a century later, as the primary basis for challenging private discrimination.
The legislative history of § 1981 -- to which the Court does not advert -- makes clear that we must not take an overly narrow view of what it means to have the "same right . . . to make and enforce contracts" as white citizens. The very same legislative history that supports our interpretation of § 1981 in Runyon also demonstrates that the 39th Congress intended, in the employment context, to go beyond protecting the freedmen from refusals to contract for their labor and from discriminatory decisions to discharge them. Section 1 of the Civil Rights Act was also designed to protect the freedmen from the imposition of working conditions that evidence an intent on the part of the employer not to contract on nondiscriminatory terms. See supra at 194, and n. 4. Congress realized that, in the former Confederate States, employers were attempting to
adher[e], as to the treatment of the laborers, as much as possible to the traditions of the old system, even where the relations between employers and laborers had been fixed by contract.
Report of C. Schurz, S. Exec. Doc. No. 2, 39th Cong., 1st Sess., p. 19 (1865) (emphasis added). These working conditions included the use of the whip as an incentive to work harder -- the commonplace result of an entrenched attitude that "[y]ou cannot make the negro work without physical compulsion," id. at 16 -- and the practice of handing out severe and unequal punishment for perceived transgressions. See id. at 20 ("The habit [of corporal punishment] is so inveterate with a great many persons as to render, on the least provocation, the impulse to whip a negro almost irresistible"). Since such "acts of persecution" against employed freedmen, ibid., were one of the 39th Congress' concerns in enacting the Civil Rights Act, it is clear that, in granting the freedmen the "same right . . . to make [p207] and enforce contracts" as white citizens, Congress meant to encompass postcontractual conduct.
The Court holds that § 1981, insofar as it gives an equal right to make a contract, "covers only conduct at the initial formation of the contract." Ante at 179; see also ante at 176-177. This narrow interpretation is not, as the Court would have us believe, ante at 176-177, the inevitable result of the statutory grant of an equal right "to make contracts." On the contrary, the language of § 1981 is quite naturally read as extending to cover post-formation conduct that demonstrates that the contract was not really made on equal terms at all. It is indeed clear that the statutory language of § 1981 imposes some limit upon the type of harassment claims that are cognizable under § 1981, for the statute's prohibition is against discrimination in the making and enforcement of contracts; but the Court mistakes the nature of that limit. [n12] In my view, harassment is properly actionable under the language of § 1981 mandating that all persons "shall have the same right . . . to make . . . contracts . . . as is enjoyed by white citizens" if it demonstrates that the employer has in [p208] fact imposed discriminatory terms, and hence has not allowed blacks to make a contract on an equal basis.
The question in a case in which an employee makes a § 1981 claim alleging racial harassment should be whether the acts constituting harassment were sufficiently severe or pervasive as effectively to belie any claim that the contract was entered into in a racially neutral manner. Where a black employee demonstrates that she has worked in conditions substantially different from those enjoyed by similarly situated white employees, and can show the necessary racial animus, a jury may infer that the black employee has not been afforded the same right to make an employment contract as white employees. Obviously, as respondent conceded at oral argument, Tr. of Oral Arg. 30 (Feb. 29, 1987), if an employer offers a black and a white applicant for employment the same written contract, but then tells the black employee that her working conditions will be much worse than those of the white hired for the same job because "there's a lot of harassment going on in this work place and you have to agree to that," it would have to be concluded that the white and black had not enjoyed an equal right to make a contract. I see no relevant distinction between that case and one in which the employer's different contractual expectations are unspoken, but become clear during the course of employment as the black employee is subjected to substantially harsher conditions than her white coworkers. In neither case can it be said that whites and blacks have had the same right to make an employment contract. [n13] The Court's failure to consider such examples, and to explain the abundance of legislative history that confounds [p209] its claim that § 1981 unambiguously decrees the result it favors, underscore just how untenable is the Court's position. [n14]
Having reached its decision based upon a supposedly literal reading of § 1981, the Court goes on to suggest that its grudging interpretation of this civil rights statute has the benefit of not undermining Title VII. Ante at 180-182. It is unclear how the interpretation of § 1981 to reach pervasive postcontractual harassment could be thought in any way to undermine Congress' intentions as regards Title VII. Congress has rejected an amendment to Title VII that would have rendered § 1981 unavailable as a remedy for employment discrimination, and has explicitly stated that § 1981 "protects similar rights [to Title VII] but involves fewer technical prerequisites to the filing of an action," see supra at 205; that the Acts "provide alternative means to redress individual grievances," see supra at 203; and that an employee who is discriminated against
should be accorded [p210] every protection that the law has in its purview, and . . . the person should not be forced to seek his remedy in only one place,
ibid. Evidently, Title VII and § 1981 provide independent remedies, and neither statute has a preferred status that is to guide interpretation of the other. The Court, indeed, is forced to concede this fact, admitting that, where the statutes overlap "we are not at liberty ‘to infer any positive preference for one over the other.'" Ante at 181. But the Court then goes on to say that the existence of Title VII "should lessen the temptation for this Court to twist the interpretation of [§ 1981] to cover the same conduct." Ante at 181. This, of course, brings us back to the question of what § 1981, properly interpreted, means. The Court's lengthy discussion of Title VII adds nothing to an understanding of that issue.
The Court's use of Title VII is not only question-begging, it is also misleading. Section 1981 is a statute of general application, extending not just to employment contracts but to all contracts. Thus we have held that it prohibits a private school from applying a racially discriminatory admissions policy, Runyon, and a community recreational facility from denying membership based on race, Tillman. The lower federal courts have found a broad variety of claims of contractual discrimination cognizable under § 1981. E.g., Wyatt v. Security Inn Food & Beverage, Inc., 819 F.2d 69 (CA4 1987) (discriminatory application of hotel bar's policy of ejecting persons who do not order drinks); Hall v. BioMedical Application, Inc., 671 F.2d 300 (CA8 1982) (medical facility's refusal to treat black person potentially cognizable under § 1981); Hall v. Pennsylvania State Police, 570 F.2d 86 (CA3 1978) (bank policy to offer its services on different terms dependent upon race); Cody v. Union Electric, 518 F.2d 978 (CA8 1975) (discrimination with regard to the amount of security deposit required to obtain service); Howard Security Services, Inc. v. Johns Hopkins Hospital, 516 F.Supp. 508 (Md.1981) (racially discriminatory award of contract to [p211] supply services); Grier v. Specialized Skills, Inc., 326 F.Supp. 856 (WDNC 1971) (discrimination in admissions to barber school); Scott v. Young, 307 F.Supp. 1005 (ED Va.1969), aff'd, 421 F.2d 143 (CA4), cert. denied, 398 U.S. 929 (1970) (discrimination in amusement park admissions policy). The Court, however, demonstrates no awareness at all that § 1981 is so much broader in scope than Title VII, instead focusing exclusively upon the claim that its cramped construction of § 1981 "preserve[s] the integrity of Title VII's procedures," ante at 181, and avoids "[u]nnecessary overlap" that would "upset the delicate balance between employee and employer rights struck by Title VII," ante at 182, n. 4. Rights as between an employer and employee simply are not involved in many § 1981 cases, and the Court's restrictive interpretation of § 1981, minimizing the overlap with Title VII, may also have the effect of restricting the availability of § 1981 as a remedy for discrimination in a host of contractual situations to which Title VII does not extend.
Even as regards their coverage of employment discrimination, § 1981 and Title VII are quite different. As we have previously noted,
the remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.
Johnson, 421 U.S. at 461. Perhaps most important, § 1981 is not limited in scope to employment discrimination by businesses with 15 or more employees, cf. 42 U.S.C. § 2000e(b), and hence may reach the nearly 15% of the workforce not covered by Title VII. See Eisenberg & Schwab, The Importance of Section 1981, 73 Cornell L.Rev. 596, 602 (1988). A § 1981 backpay award may also extend beyond the 2-year limit of Title VII. Johnson, 421 U.S. at 460. Moreover, a § 1981 plaintiff is not limited to recovering backpay; she may also obtain damages, including punitive damages in an appropriate case. Ibid. Other differences between the two statutes include the right to a jury trial under § 1981, but not Title VII; a different statute of limitations in [p212] § 1981 cases, see Goodman v. Lukens Steel Co., 482 U.S. 656 (1987); and the availability under Title VII, but not § 1981, of administrative machinery designed to provide assistance in investigation and conciliation, see Johnson, supra, at 460. [n15] The fact that § 1981 provides a remedy for a type of racism that remains a serious social ill broader than that available under Title VII hardly provides a good reason to see it, as the Court seems to, as a disruptive blot on the legal landscape, a provision to be construed as narrowly as possible.
Applying the standards set forth above, I believe the evidence in this case brings petitioner's harassment claim firmly within the scope of § 1981. Petitioner testified at trial that, during her 10 years at McLean, she was subjected to racial slurs; given more work than white employees and assigned the most demeaning tasks; passed over for promotion, not informed of promotion opportunities, and not offered training [p213] for higher level jobs; denied wage increases routinely given other employees; and singled out for scrutiny and criticism.
Robert Stevenson, the General Manager and later President of McLean, interviewed petitioner for a file clerk position in 1972. At that time, he warned her that all those with whom she would be working were white women, and that they probably would not like working with a black. Tr. 119. In fact, however, petitioner testified that it was Stevenson and her supervisors who subjected her to racial harassment, rather than her coworkers. For example, petitioner testified that Stevenson told her on a number of occasions that "blacks are known to work slower than whites by nature," id. at 1-87 to 1-88, 2-80 to 2-81, or, as he put it in one instance, that "some animals [are] faster than other animals." Id. at 2-83. Stevenson also repeatedly suggested that a white would be able to do petitioner's job better than she could. Id. at 1-83. [n16]
Despite petitioner's stated desire to "move up and advance" at McLean to an accounting or secretarial position, id. at 1-22, she testified that she was offered no training for a higher level job during her entire tenure at the credit union. Id. at 1-25. White employees were offered training, id. at 1-93, including a white employee at the same level as petitioner, but with less seniority. That less senior white employee was eventually promoted to an intermediate accounting clerk position. Id. at 1-48 to 1-49, 2-114 to 2-115. As with every other promotion opportunity that occurred, petitioner was never informed of the opening. Id. at 1-46, 1-91 to 1-92. During the 10 years petitioner worked for McLean, white persons were repeatedly hired for more senior [p214] positions, without any notice of these job openings being posted, and without petitioner's ever being informed of, let alone interviewed for, any of these opportunities. Id. at 1-93 to 1-97. Petitioner claimed to have received different treatment as to wage increases, as well as promotion opportunities. Thus she testified that she had been denied a promised pay raise after her first six months at McLean, though white employees automatically received pay raises after six months. Id. at 1-84 to 1-85. See also id. at 1-60 to 1-65 (denial of merit increase).
Petitioner testified at length about allegedly unequal work assignments given by Stevenson and her other supervisors, id. at 1-27 to 1-28, 1-30, and detailed the extent of her work assignments. Id. at 1-31, 1-101 to 1-120, 2-18, 2-119 to 2-121. When petitioner complained about her workload, she was given no help with it. Id. at 1-82 to 1-83. In fact, she was given more work, and was told she always had the option of quitting. Id. at 1-29. Petitioner claimed that she was also given more demeaning tasks than white employees, and was the only clerical worker who was required to dust and to sweep. Id. at 1-31. She was also the only clerical worker whose tasks were not reassigned during a vacation. Whenever white employees went on vacation, their work was reassigned, but petitioner's work was allowed to accumulate for her return. Id. at 1-37, 1-87.
Petitioner further claimed that Stevenson scrutinized her more closely and criticized her more severely than white employees. Stevenson, she testified, would repeatedly stare at her while she was working, although he would not do this to white employees. Id. at 1-38 to 1-39, 1-90 to 1-91. Stevenson also made a point of criticizing the work of white employees in private, or discussing their mistakes at staff meetings without attributing the error to a particular individual. But he would chastise petitioner and the only other black employee publicly at staff meetings. Id. at 1-40, 1-89 to 1-90, 2-72 to 2-73. [p215]
The defense introduced evidence at trial contesting each of these assertions by petitioner. But given the extent and nature of the evidence produced by Patterson, and the importance of credibility determinations in assigning weight to that evidence, the jury may well have concluded that petitioner was subjected to such serious and extensive racial harassment as to have been denied the right to make an employment contract on the same basis as white employees of the credit union. [n17]
I agree that the District Court erred when it instructed the jury as to petitioner's burden in proving her claim that McLean violated § 1981 by failing to promote her, because she is black, to an intermediate accounting clerk position. The District Court instructed the jury that Patterson had to prove not only that she was denied a promotion because of her race, but also that she was better qualified than the white employee who had allegedly received the promotion. That instruction is inconsistent with the scheme of proof we have carefully designed, in analogous cases, "to bring the litigants and the court expeditiously and fairly to [the] ultimate question" whether the defendant intentionally discriminated against the plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
A § 1981 plaintiff must prove purposeful discrimination. General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. at 391. Where the ultimate issue in a disparate treatment action is whether the defendant intentionally discriminated against the plaintiff, a well established framework of proof applies if the plaintiff offers only indirect evidence of discriminatory motive. See McDonnell Douglas [p216] Corp. v. Green, 411 U.S. 792 (1973) (Title VII); Dister v. The Continental Group Inc., 859 F.2d 1108 (CA2 1988) (discriminatory interference with right to benefits, in violation of § 510 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1140); Loeb v. Textron, Inc., 600 F.2d 1003 (CA1 1979) (violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.). There is no reason why this scheme of proof, carefully structured as a "sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination," Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978), should not apply to claims of racial discrimination under § 1981. Indeed, the Court of Appeals held below that
[t]he disparate treatment proof scheme developed for Title VII actions in McDonnell Douglas Corp. v. Green, [supra] and its progeny may properly be transposed, as here, to the jury trial of a § 1981 claim.
805 F.2d 1143, 1147 (CA4 1986). The courts below erred, however, in identifying a § 1981 plaintiff's burden under that framework.
A black plaintiff claiming that an employment decision infringed her § 1981 right to make and enforce contracts on the same terms as white persons has the initial burden of establishing a prima facie case. This burden is not an onerous one. Burdine, supra, at 253. The plaintiff need only prove by a preponderance of the evidence that she applied for an available position for which she was qualified, see supra, at 213-214, that she was rejected, and that the employer either continued to seek applicants for the position, or, as allegedly occurred in this case, filled the position with a white employee, see McDonnell Douglas, supra, at 802; Burdine, supra, at 253. We have required at this stage proof only that a plaintiff was qualified for the position she sought, not proof that she was better qualified than other applicants. See McDonnell Douglas, supra, at 802; Burdine, supra, at 253, n. 6. Proof sufficient to make out a prima facie case raises a presumption that the employer acted for impermissible [p217] reasons, see Furnco Construction Corp., supra, at 577, which the employer may then rebut by articulating "some legitimate, nondiscriminatory reason for the employee's rejection," McDonnell Douglas, supra, at 802.
In this case, in addition to attacking petitioner's claim to have made out a prima facie case, respondent introduced evidence tending to show that, if it promoted a white employee over petitioner, it did so because the white employee was better qualified for the job. This evidence rebutted any presumption of discrimination raised by petitioner's prima facie case. Our cases make it clear, however, that a plaintiff must have the opportunity to introduce evidence to show that the employer's proffered reasons for its decision were not its true reasons. It is equally well established that this evidence may take a variety of forms. McDonnell Douglas, supra, at 804-805; Furnco Construction Corp., supra, at 578. Though petitioner might have sought to prove that McLean's claim to have promoted a better qualified applicant was not its true reason by showing she was in fact better qualified than the person promoted, the District Court erred in instructing the jury that, to succeed, petitioner was required to make that showing. Such an instruction is much too restrictive, cutting off other methods of proving pretext plainly recognized in our cases. We suggested in McDonnell Douglas, for example, that a black plaintiff might be able to prove pretext by showing that the employer has promoted white employees who lack the qualifications the employer relies upon, or by proving the employer's "general policy and practice with respect to minority employment." 411 U.S. at 804-805. And, of particular relevance given petitioner's evidence of racial harassment and her allegation that respondent failed to train her for an accounting position because of her race, we suggested that evidence of the employer's past treatment of the plaintiff would be relevant to a showing that the employer's proffered legitimate reason was not its true reason. Id. at 804. There are innumerable different [p218] ways in which a plaintiff seeking to prove intentional discrimination by means of indirect evidence may show that an employer's stated reason is pretextual and not its real reason. The plaintiff may not be forced to pursue any one of these in particular. [n18]
I therefore agree that petitioner's promotion discrimination claim must be remanded because of the District Court's erroneous instruction as to petitioner's burden. It seems to me, however, that the Court of Appeals was correct when it said that promotion discrimination claims are cognizable under § 1981 because they "go to the very existence and nature of the employment contract." 805 F.2d at 1145. The Court's disagreement with this common sense view, and its statement that
the question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer,
ante at 185, display nicely how it seeks to eliminate with technicalities the protection § 1981 was intended to afford -- to limit protection to the form of the contract entered into, and not to extend it, as Congress intended, to the substance of the contract as it is worked out in practice. Under the Court's view, the employer may deny any number of promotions solely on the basis of race, safe from a § 1981 suit, provided it is careful that promotions do not involve new contracts. [p219] It is admittedly difficult to see how a "promotion" -- which would seem to imply different duties and employment terms -- could be achieved without a new contract, and it may well be as a result that promotion claims will always be cognizable under § 1981. Nevertheless, the same criticisms I have made of the Court's decision regarding harassment claims apply here: proof that an employee was not promoted because she is black -- while all around white peers are advanced -- shows that the black employee has in substance been denied the opportunity to contract on the equal terms that § 1981 guarantees.
In summary, I would hold that the Court of Appeals erred in deciding that petitioner's racial harassment claim is not cognizable under § 1981. It likewise erred in holding that petitioner could succeed in her promotion discrimination claim only by proving that she was better qualified for the position of intermediate accounting clerk than the white employee who was in fact promoted.
1. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27. Section 1 provided:
[C]itizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
All members of the Court agreed in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), that intervening revisions in the property clause of § 1 -- the reenactment of the 1866 Act in § 18 of the Voting Rights Act of 1870, ch. 114, § 18, 16 Stat. 144, the codification of the property clause in § 1978 of the Revised Statutes of 1874, and its recodification as 42 U.S.C. § 1982 -- had not altered its substance. Jones, 392 U.S. at 436-437 (opinion of the Court); id. at 453 (dissenting opinion).
2. In support of its view, the Court in Jones quoted from an exchange during the House debate on the civil rights bill. When Congressman Loan of Missouri asked the Chairman of the House Judiciary Committee why § 2 had been limited to those who acted under color of law, he was told not that the statute had no application at all to those who had not acted under color of law, but that the limitation had been imposed because it was not desired to make "‘a general criminal code for the States.'" Id. at 425 n. 33, quoting Cong.Globe, 39th Cong., 1st Sess., 1120 (1866). Justice Harlan in dissent conceded that the Court's interpretation of this exchange as supporting a broader reading of § 1 was "a conceivable one." 392 U.S. at 470
3. See, e.g., Brief for Petitioners 12-16, Brief for Respondents 7-24, Brief for United States as Amicus Curiae 28-35, 38-51, and Brief for National Committee Against Discrimination in Housing et al. as Amici Curiae 9-39, in Jones v. Alfred H. Mayer Co., O.T. 1967, No. 45.
4. Report of C. Schurz, S. Exec. Doc. No. 2, 39th Cong., 1st Sess. (1865). The Schurz report is replete with descriptions of private discrimination, relating both to the freedmen's ability to enter into contracts and to their treatment once under contract. It notes, for example, that some planters had initially endeavored to maintain
the relation of master and slave, partly by concealing from [their slaves] the great changes that had taken place, and partly by terrorizing them into submission to their behests.
Id. at 15. It portrays as commonplace the use of "force and intimidation" to keep former slaves on the plantations:
In many instances, negroes who walked away from the plantations, or were found upon the roads, were shot or otherwise severely punished, which was calculated to produce the impression among those remaining with their masters that an attempt to escape from slavery would result in certain destruction.
Id. at 17. In Georgia, Schurz reported, "the reckless and restless characters of that region had combined to keep the negroes where they belonged," shooting those caught trying to escape. Id. at 18. The effect of this private violence against those who tried to leave their former masters was that "large numbers [of freedmen], terrified by what they saw and heard, quietly remained under the restraint imposed upon them." Ibid. See Jones, 392 U.S. at 428-429.
It must therefore have been evident to members of the 39th Congress that, quite apart from the Black Codes, the freedmen would not enjoy the same right as whites to contract or to own or lease property so long as private discrimination remained rampant. This broad view of the obstacles to the freedmen's enjoyment of contract and property rights was similarly expressed in the Howard Report on the operation of the Freedmen's Bureau, H.R. Exec. Doc. No. 11, 39th Cong., 1st Sess. (1865). It likewise appears in the hearings conducted by the Joint Committee on Reconstruction contemporaneously with Congress' consideration of the civil rights bill. See Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess., pts. I-IV (1866). These investigations uncovered numerous incidents of violence aimed at restraining southern blacks' efforts to exercise their new-won freedom, e.g., id., pt. III, p. 143, and whippings aimed simply at making them work harder, or handed out as punishment for a laborer's transgressions, e.g., id. pt. IV, p. 83, as well, for example, as refusals to pay freedmen more than a fraction of white laborers' wages, e.g., id. pt. II, pp. 12-13, 54-55, 234.
5. Senator Trumbull was speaking here of his Freedmen's Bureau bill, which was regarded as having the same scope as his later civil rights bill. See supra at 193-194.
For other statements indicating that § 1 reached private conduct, see Cong.Globe, 39th Cong., 1st Sess., 1118 (1866) ("Laws barbaric and treatment inhuman are the rewards meted out by our white enemies to our colored friends. We should put a stop to this at once and forever") (Rep. Wilson); id. at 1152 (bill aimed at "the tyrannical acts, the tyrannical restrictions, and the tyrannical laws which belong to the condition of slavery") (emphasis added) (Rep. Thayer).
6. See, e.g., Brief for Petitioners 2, 6-11, Brief for Respondents 13-22, and Brief for United States as Amicus Curiae 13-18, in Runyon v. McCrary, O.T. 1975, No. 75-62; Brief for Petitioner 17-59, in Fairfax-Brewster School, Inc. v. Gonzales, O.T. 1975, No. 75-66.
7. Congress originally entrusted the revision of the laws to three Commissioners appointed under the Act of June 27, 1866, 14 Stat. 74-75. These Commissioners were instructed to draft sidenotes indicating the source of each section of their revision, § 2, id. at 75, and they wrote the marginal note to what became § 1977 of the Revised Statutes, which referred as a source only to § 16 of the 1870 Act. See 1 Revision of the United States Statutes as Drafted by the Commissioners Appointed for that Purpose 947 (1872). Congress rejected the work of the Commissioners, however, precisely because members believed it to contain new legislation. See 2 Cong.Rec. 646 (1874). Congress then appointed Thomas Durant to review the Commissioners' work. See Act of Mar. 3, 1873, § 3, 17 Stat. 580. "[W]herever the meaning of the law had been changed," Durant was "to strike out such changes." 2 Cong.Rec. 646 (1874). Durant reported that he had compared the Commissioners' revision with preexisting statutes, and that
wherever it has been found that a section contained any departure from the meaning of Congress as expressed in the Statutes at Large, such change has been made as was necessary to restore the original signification.
Report to the Joint Committee on the Revision of the Laws 1 (1873). Durant's revision, H.R. 1215, 43d Cong., 1st Sess. (1874), which was put before Congress in the form of a bill, see 2 Cong.Rec. 819 (1874), contained no marginal notations. See id. at 826-827, 1210. The Commissioners' reference to § 16 reappeared only after Congress authorized the Secretary of State to publish the Revised Statutes with marginal notations. See Act of June 20, 1874, ch. 333, § 2, 18 Stat. (part 3) 113. Apparently, the Secretary simply lifted notations from the Commissioners' draft revision. Hence, insofar as Durant might have thought that the Commissioners had changed the law by referring only to § 16 as their source, and that this problem had been cured merely by the omission of the marginal note from his own draft, it seems strained to rely upon the later decision to restore the Commissioners' marginal notes as evidence that § 1977 derives solely from § 16. This is particularly so in light of criticism directed in Congress to the accuracy of some of the Commissioners' sidenotes. See 2 Cong.Rec. 828 (1874) (citing as an error a marginal note that was "not sufficiently comprehensive" to reflect the provision's source) (Rep. Lawrence).
8. I find strong support for our prior holding that § 1981 is derived in part from the 1866 Act in the legislative history of the 1874 codification. Representative Lawrence, a member of the Joint Committee on the Revision of the Laws, specifically commented in the House upon the proposed revision of the 1866 and 1870 Acts. Id. at 827-828. He noted that the plan of revision was "to collate in one title of ‘civil rights' the statutes which declare them." Id. at 827. After setting out § 1 and § 2 of the 1866 Act, and then § 16 and § 17 of the 1870 Act, Representative Lawrence stated that the revisers had "very properly not treated [the 1870 Act] as superseding the entire original act." Id. at 828. Rather, they had "translat[ed] the sections I have cited from the acts of 1866 and 1870, so far as they relate to a declaration of existing rights," in the provisions that have now become § 1981 and § 1982. Ibid. There is no hint in this passage that any part of the 1866 Act would be lost in the revision, and indeed in other parts of his statement Representative Lawrence makes it plain that he understood the revisers' task to be that of presenting "the actual state of the law." Id. at 826. See also id. at 647-649 (general discussion on the aim of the revision to codify existing law without modification), and id. at 1210 ("[W]e do not purpose to alter the law one jot or tittle") (Rep. Poland).
9. See, e.g., Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (overturning Alyeska Pipeline Service Co. V. Wilderness Society, 421 U.S. 240 (1975)); Pregnancy Discrimination Act, Pub.L. 95-555, 92 Stat. 2076, 42 U.S.C. § 2000e(k) (overturning General Electric Co. v. Gilbert, 429 U.S. 125 (1976); see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)); Voting Rights Act Amendments of 1982, Pub.L. 97-205, 96 Stat. 131, 42 U.S.C. § 1973 (overturning Mobile v. Bolden, 446 U.S. 55 (1980); see, e.g., H.R.Rep. No. 97-227, pp. 28-30 (1981)); Handicapped Children's Protection Act of 1986, Pub.L. 99-372, 100 Stat. 796, 20 U.S.C. §§ 1415(e)(4)(B)(G) (1982 ed., Supp. V) (overturning Smith v. Robinson, 468 U.S. 992 (1984); see e.g., H.R.Rep. No. 99-296, p. 4 (1985)); Civil Rights Restoration Act of 1987, Pub.L. 100-259, 102 Stat. 28, note following 20 U.S.C. § 1687 (overturning Grove City College v. Bell, 465 U.S. 555 (1984); see, e.g., S.Rep. No. 100-64, p. 2 (1987)).
10. The Court had remarked in Jones upon the close parallel between § 1981 and § 1982. 392 U.S. at 441, n. 78. Moreover, the lower federal courts already had begun to interpret § 1981 to reach private employment discrimination. See, e.g., Waters v. Wisconsin Steel Works, 427 F.2d 476 (CA7), cert. denied, 400 U.S. 911 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (CA5 1970), cert. denied, 401 U.S. 948 (1971); Young v. International Tel. & Tel. Co., 438 F.2d 757 (CA3 1971); Caldwell v. National Brewing Co., 443 F.2d 1044 (CA5 1971), cert. denied, 405 U.S. 916 (1972); Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (CA5 1971).
11. See also 118 Cong.Rec. 3370 (1972) (Sen. Javits) (opposing the Hruska amendment because it would "cut off . . . the possibility of using civil rights acts long antedating the Civil Rights Act of 1964 in a given situation which might fall, because of the statute of limitations or other provisions, in the interstices of the Civil Rights Act of 1964").
12. The Court's overly narrow reading of the language of § 1981 is difficult to square with our interpretation of the equal right protected by § 1982 "to inherit, purchase, lease, sell, hold, and convey real and personal property" not just as covering the rights to acquire and dispose of property, but also the "right . . . to use property on an equal basis with white citizens," Memphis v. Greene, 451 U.S. 100, 120 (1981) (emphasis added), and "not to have property interests impaired because of . . . race," id. at 122 (emphasis added).
In Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987), we reversed the dismissal of a claim by a Jewish congregation alleging that individuals were liable under § 1982 for spraying racist graffiti on the walls of the congregation's synagogue. Though our holding in that case was limited to deciding that Jews are a group protected by § 1982, our opinion nowhere hints that the congregation's vandalism claim might not be cognizable under the statute because it implicated the use of property, and not its acquisition or disposal.
13. I observe too that a company's imposition of discriminatory working conditions on black employees will tend to deter other black persons from seeking employment.
[W]hen a person is deterred, because of his race, from even entering negotiations, his equal opportunity to contract is denied as effectively as if he were discouraged by an offer of less favorable terms.
Comment, Developments in the Law -- Section 1981, 15 Harv.Civ.Rights-Civ. Lib.L.Rev. 29, 101 (1980).
14. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), we addressed the question whether allegations of discriminatory workplace harassment state a claim under § 703 of Title VII, 42 U.S.C. § 2000e-2(a)(1), which prohibits discrimination "with respect to [an employee's] compensation, terms, conditions, or privileges of employment." We held that sexual harassment creating a hostile workplace environment may ground an action under Title VII. "[N]of all workplace conduct that may be described as ‘harassment' affects a ‘term, condition, or privilege' of employment within the meaning of Title VII," however. 477 U.S. at 67.
For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment."
Ibid. Similarly, not all workplace conduct that may be described as racial harassment affects an employee's right to make contracts free of discrimination. But racial harassment of sufficient severity may impinge upon that right, as explained in the text, and should be actionable under § 1981.
Petitioner has never argued that the harassment she allegedly suffered amounted to a breach of an express or implied contract under state law, so this case presents no occasion to consider the Solicitor General's view that such a breach is actionable under § 1981 because it deprives a black employee of the same right to make contracts as a white person.
15. The Court suggests that overlap between § 1981 and Title VII interferes with Title VII's mediation and conciliation procedures. Ante at 180-182, and n. 4. In Johnson v. Railway Express Agency, Inc., 421 U.S. at 461, however, we rejected a suggestion that the need for Title VII procedures to continue unimpeded by collateral litigation required that the timely filing of a discrimination charge with the EEOC toll the limitation period for § 1981:
Conciliation and persuasion through the administrative process . . . often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that a lack of success in the legal action could weaken the [EEOC's] efforts to induce voluntary compliance, and that suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. Under some circumstances, the administrative route may be highly preferred over the litigatory; under others, the reverse may be true.
16. A former manager of data processing for McLean testified that, when he recommended a black person for a position as a data processor, Stevenson criticized him, saying that he did not "need any more problems around here," that he would interview the person, but not hire him, and that he would then "search for additional people who are not black."
Tr. 2-160 to 2-161.
17. The proposed jury instruction quoted by the Court, ante at 179, is scarcely conclusive as to the nature of Patterson's harassment claim. Indeed, it is precisely harassment so pervasive as to create a discriminatory work environment that will demonstrate that a black plaintiff has been denied an opportunity to contract on equal terms with white employees.
18. The Court of Appeals mistakenly held that the instruction requiring petitioner to prove her superior qualifications was necessary in order to protect the employer's right to choose among equally well qualified applicants. As we stated in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981), "[T]he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria." (Emphasis added.) Where a plaintiff proves that an employer's purported reasons for a promotion decision were all pretextual, the factfinder may infer that the employer's decision was not based upon lawful criteria; and, as I point out in the text, there are many ways in which a plaintiff can prove pretext other than by proving her superior qualifications.