Goodman v. Lukens Steel Co.

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join, concurring in part and dissenting in part.

I join Part II of the Court’s opinion, affirming the Court of Appeals’ decision that the Unions engaged in race discrimina *670 tion in violation of 42 U. S. C. § 1981 and Title VII of the Civil Rights Act of 1964. I dissent, however, from Part I, which characterizes all §1981 actions as tort actions, and holds that they are subject to state statutes of limitations for personal injury. Section 1981, in its original conception and its current application, is primarily a proscription of race discrimination in the execution, administration, and enforcement of contracts. Our analysis in Wilson v. Garcia, 471 U. S. 261 (1985), requires us to hold, therefore, that § 1981 actions are governed by state statutes of limitations for interference with contractual relations.

H-f

In Wilson , the Court had to determine the most appropriate statute of limitations to apply to claims brought under § 1 of the Civil Rights Act of 1871, now codified at 42 U. S. C. § 1988 . First, the Court decided that characterization of a § 1983 action, for the purpose of selecting a state statute of limitations, was a matter of federal law. 471 U. S., at 268-271 . The Court then held that the federal interest in “uniformity, certainty, and the minimization of unnecessary litigation” required that all § 1983 actions receive a single broad characterization for statute-of-limitations purposes. Id., at 275. For reasons identical to those stated in Wilson , the Court today concludes that § 1981, like § 1983, must receive a single broad characterization for statute-of-limitations purposes. I agree. The Court goes on to hold, however, that claims brought under §§ 1983 and 1981 should receive the same characterization, and here I part company with the Court.

In Wilson , the Court relied on the history of § 1983 in its determination that claims under the statute were best characterized as tort actions for damages resulting from personal injury. The Court observed that § 1983, originally known as the Ku Klux Act, was enacted as part of the Civil Rights Act of 1871, and that the “specific historical catalyst” for § 1983 *671 was “the campaign of violence and deception in the South, fomented by the Ku Klux Klan.” Id., at 276. The Court highlighted the legislative history of § 1983, which made clear that Congress was attempting to stop a wave of murders, lynchings, and whippings and to eliminate “the refuge that local authorities extended to the authors of these outrageous incidents.” Ibid. From this, the Court concluded that “[t]he atrocities that concerned Congress in 1871 plainly sounded in tort.” Id., at 277. More specifically, the Court determined that, among the many types of tort claims filed under § 1983, the “action for the recovery of damages for personal injuries” was the most analogous common-law cause of action. Id., at 276.

Performing a like historical analysis of § 1981, I conclude that it should be characterized as an action for recovery of damages for interference with contractual relations. Section 1981, originally enacted as §1 of the Civil Rights Act of 1866, 1 presently provides:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

Clearly, the “full and equal benefit” and “punishment” clauses guarantee numerous rights other than equal treatment in the execution, administration, and the enforcement of contracts. In this sense § 1981, like § 1983, is broadly concerned with “the equal status of every ‘person.’” Wilson, supra, at 277 (emphasis in original). But § 1981 was primar *672 ily intended, and has been most frequently utilized, to remedy injury to a narrower category of contractual or economic rights.

The main targets of the Civil Rights Act of 1866 were the “Black Codes,” enacted in Southern States after the Thirteenth Amendment was passed. 2 Congress correctly perceived that the Black Codes were in fact poorly disguised substitutes for slavery:

“They defined racial status; forbade blacks from pursuing certain occupations or professions (e. g. skilled artisans, merchants, physicians, preaching without a license); forbade owning firearms or other weapons; controlled the movement of blacks by systems of passes; *673 required proof of residence; prohibited the congregation of groups of blacks; restricted blacks from residing in certain areas; and specified an etiquette of deference to whites, as, for example, by prohibiting blacks from directing insulting words at whites.” H. Hyman & W. Wiecek, Equal Justice Under Law 319 (1982). 3

In addition, the “formidable hand of custom,” id., at 321, interposed itself between blacks and economic independence, forcing Congress to move against private, as well as state-sanctioned economic discrimination. See generally Runyon v. McCrary, 427 U. S. 160 (1976); Kohl, The Civil Rights Act of 1866, Its Hour Come Round At Last: Jones v. Alfred H. Mayer Co., 55 Va. L. Rev. 272 , 279 (1969). 4

Obviously, both the Black Codes and longstanding custom imposed a number of discriminatory prohibitions that were noneconomic, and the 39th Congress therefore had significant *674 concerns that lay outside the economic realm. Nonetheless, as the Court has often acknowledged, 5 the Legislature’s central concerns in 1866 revolved around actions taken by the States and by private parties which consigned black Americans to lives of perpetual economic subservience to their former masters. These concerns were often denominated “civil rights” because, in the mid-19th century, “civil rights were commonly defined, especially by lawyers, as primarily economic.” Hyman & Wiecek, supra, at 299. 6

Congress clearly believed that freedom would be empty for black men and women if they were not also assured an equal opportunity to engage in business, to work, and to bargain for sale of their labor. In the debates, it emerged time and again that Congress sought to identify and guarantee those rights that would enable a person to sustain an independent economic unit (a family) once the master-slave relation had been dismantled:

*675 “[Section 1981’s] object is to secure to a poor, weak class of laborers the right to make contracts for their labor, the power to enforce the payment of their wages, and the means of holding and enjoying the proceeds of their toil.” Cong. Globe, 39th Cong., 1st Sess., 1159 (1866) (Rep. Windom).

“It is idle to say that a citizen shall have the right to life, yet to deny him the right to labor, whereby he alone can live. It is a mockery to say that a citizen may have a right to live, and yet deny him the right to make a contract to secure the privilege and the rewards of labor. It is worse than mockery to say that men may be clothed by the national authority with the character of citizens, yet may be stripped by State authority of the means by which citizens may exist.” Id., at 1833 (Rep. Lawrence). 7

*676 The historical origins of § 1981 therefore demonstrate its dominant concern with economic rights. The preeminence of this concern is even clearer if one looks at § 1981 in conjunction with 42 U. S. C. § 1982 , which was simultaneously-enacted. The plain language of § 1982 speaks squarely and exclusively to economic rights and relations. It 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.” Both §§ 1981 and 1982 were derived from § 1 of the Civil Rights Act of 1866; their wording and their identical legislative history have led the Court to construe them similarly. See Runyon, 427 U. S., at 171-173 ; Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431, 440 (1973). 8 Looking at §§ 1981 and 1982 in tandem, it is apparent that the primary thrust of the 1866 Congress was the provision of equal rights and treatment in the matrix of contractual and quasi-contractual relationships that form the economic sphere.

The Court maintains that § 1981 must be characterized as a personal injury action because it is “part of a federal law barring racial discrimination,” which is “a fundamental injury to *677 the individual rights of a person.” Ante, at 661. If this reasoning is the real basis of Wilson , its historical analysis was completely superfluous. Any act of racism doubtless inflicts personal injury. At its core, it is an act of violence — a denial of another’s right to equal dignity. 9 In many contexts, therefore, racially discriminatory acts are violations of federal civil rights laws. But the availability of a federal forum should not obscure the fact that the type of injury inflicted by discrimination will vary. Discrimination may overlap with almost all categories of legal claims, but does not wholly embrace any one. An assault, a breach of contract, an infliction of emotional distress, an unjust discharge, a refusal to hire or promote — all may be motivated by racial discrimination, but they are not for that reason the same type of legal claim. Bringing a claim under a civil rights Act should not alter this fact. Our analysis in Wilson requires us to differentiate between race discrimination that results in a tort and race discrimination that interferes with contractual relations. 10

*678 This Court has acknowledged the central theme of § 1981: “the Act was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 295 (1976). We should recognize this primary historical concern again today and, as Wilson requires, reflect it in our choice of the appropriate state statute of limitations for § 1981 claims.

1 — 1 ) — I

Even aside from its inconsistency with the intent of the 39th Congress, the application of the state statute of limitations for personal injury to § 1981 actions is the wrong choice as a practical matter. An overwhelming number of § 1981 actions concern enforcement of economic rights. See Comment, Developments in the Law — Section 1981, 15 Harv. Civ. Rights-Civ. Lib. L. Rev. 29, 34 (1980) (“Plaintiffs in section 1981 suits have relied predominantly on the statute’s guarantee of the right to contract free from racial discrimination”); see also Brief for Petitioners in No. 85-1626, pp. 18-19. It is well known that States apply different, usually longer limitations periods to contractual claims than to those sounding in tort. 11 Personal injury actions are often based upon a single, dramatic event, and depend upon evidence of physical injury or eyewitness testimony that becomes less accessible and less trustworthy with the passage of time. In contrast, contract actions or injury to economic relations may involve an extended relationship between parties and may be supported by documentary evidence. See, e. g., Comment, 15 Harv. Civ. *679 Rights-Civ. Lib. L. Rev., supra, at 225, 228. Obviously, a breach of contract or a refusal to contract resulting from race discrimination can occur in one traumatic moment, but, as a general rule, state legislatures have concluded that contract actions frequently have an evidentiary foundation with a greater life expectancy, and thus warrant a longer limitations period. 12

The Court has said that “the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting *680 valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 463-464 (1975). Today we have required States to apply in contract cases a “value judgment” reached with regard to torts. Inevitably, the statute of limitations henceforth used in § 1981 cases will be wrong most of the time. 13

Ill

It may well be that “it is the fate of contract to be swallowed up by tort (or for both of them to be swallowed up in a generalized theory of civil obligation),” G. Gilmore, The Death of Contract 94 (1974), but it has not happened yet. The general obligation to treat all persons with equal dignity undeniably prohibits discrimination based on race. Yet that obligation is still imposed in a legal system that classifies obligations, a system that distinguishes between obligations based on contract and those based on the reasonable person’s duty of care. Section 1981 actions were primarily intended to, and most often do, vindicate claims which related to contractual rights, and we should apply a state statute of limitations governing contractual relations to them. I respectfully dissent.

It was reenacted, with minor changes, as § 16 of the Act of May 31, 1870, 16 Stat. 144 , and was recodified in 1874. See Runyon v. McCrary, 427 U. S. 160, 168-169, n. 8 (1976).

See B. Schwartz, Prom Confederation to Nation: The American Constitution 1835-1877, p. 191 (1973) (“The purpose of the act as explained by Lyman Trumbull, chairman of the Senate Judiciary Committee, in his address introducing the proposed legislation, was to carry into effect the Thirteenth Amendment by destroying the discrimination against the Negro that existed in the laws of the southern states, particularly the Black Codes enacted since emancipation”); id., at 193 (“Before the Thirteenth Amendment, slaves could not own property, and after emancipation the southern states enacted Black Codes to perpetuate this disability. This was the ‘incident of slavery’ which the 1866 statute was aimed at, relying for its enforcement on the Thirteenth Amendment”); 6 C. Fairman, History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-1888, p. 110 (1971) (“Eight Southern legislatures were in session at some time in December 1865. Each addressed itself to the status of the Negro. . . . The Southern States had spoken, and the impact was felt in Congress from the moment it assembled. In a major aspect, the problem was economic”); K. Stampp, The Era of Reconstruction 1865-1877, p. 123 (1965) (“This condition of economic helplessness ... enabled the white landholders, with the aid of the Black Codes, to re-establish bondage in another form. The congressional Committee on Reconstruction heard a great deal of convincing testimony about the use of southern vagrancy laws and various extra-legal coercive devices to force Negroes back into agricultural labor under strict discipline. This testimony suggested that there was a close relationship between the securing of civil and political rights on the one hand and the establishment of economic independence on the other”).

The Black Codes had “attenuated counterparts” in some Northern States, usually “prohibiting the ingress of blacks into the state, imposing Jim Crow in public facilities, or prohibiting blacks from voting.” H. Hyman & W. Wiecek, Equal Justice Under Law 320 (1982).

It has been pointed out that “the Black Codes told only part of the story” of the attempt to prevent blacks from controlling their own labor. Kohl, The Civil Rights Act of 1866, Its Hour Come Round At Last: Jones v. Alfred H. Mayer Co., 55 Va. L. Rev. 272 , 279 (1969). The Joint Committee on Reconstruction heard testimony demonstrating that, even apart from the restrictions of formal law, black access to land and labor markets was in practice severely limited, that physical compulsion was used to force freedmen to sign employment contracts at low rates, that cartels of white plantation owners fixed the wages of black workers by agreement, and that whites refused to sell land to blacks. See id., at 279-283 ; see also Report of C. Schurz, S. Exec. Doc. No. 2, 39th Cong., 1st Sess., 24 (1865) (“The opposition to the negro’s controlling his own labor, carrying on business independently on his own account — in one word, working for his own benefit — showed itself in a variety of ways”). Section 1981 banned racial discrimination in contractual relations, whether individuals were expressly or constructively denied the right to contract because of race, or were provided a lesser opportunity than others, in the form of less favorable contract terms or unequal treatment, discouraging entry into contractual relations.

See General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375, 386 (1982) (“The principal object of the legislation was to eradicate the Black Codes, laws enacted by Southern legislatures imposing a range of civil disabilities on freedmen”); Runyon, 427 U. S., at 172 (racial discrimination in the making and enforcement of contracts for education is a “classic violation of § 1981”); McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 295 (1976) (Section 1981 prohibits “discrimination in the making or enforcement of contracts”); Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 459 (1975) (Section 1981 “on its face relates primarily to racial discrimination in the making and enforcement of contracts”); cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409, 443 (1968) (the rights protected by 42 U. S. C. § 1982 would be mere “paper guarantee[s]” if Congress could not “assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man”).

See also Hyman & Wiecek, supra, at 300 (“There were many civil rights. How many, no one knew, although lawyers tended to classify them neatly in terms of primarily economic, contract relationships”); id., at 301 (“The right Americans . . . enjoyed[,] the opportunity to enter into almost limitless civil relationships, and to gain or lose from these involvements was considered a precious right. This right underlay what Republicans meant by free labor”).

There are many passages to similar effect. See Cong. Globe, 39th Cong., 1st Sess., 1151 (1866) (Rep. Thayer):

“Sir, if it is competent for the new-formed Legislatures of the rebel States to enact laws which oppress this large class of people who are dependent for protection upon the United States Government, to retain them still in a state of real servitude; if it is practicable for these Legislatures to pass laws and enforce laws which reduce this class of people to the condition of bondmen; laws which prevent the enjoyment of the fundamental rights of citizenship; laws which declare, for example, that they shall not have the privilege of purchasing a home for themselves and their families; laws which impair their ability to make contracts for labor in such manner as virtually to deprive them of the power of making such contracts, and which then declare them vagrants because they have no homes and because they have no employment; I say, if it is competent for these Legislatures to pass and enforce such laws, then I demand to know, of what practical value is the amendment abolishing slavery in the United States?”

See also id., at 1160 (Rep. Windom):

“[Blacks] are denied a home in which to shelter their families, prohibited from carrying on any independent business, and then arrested and sold as vagrants because they have no homes and no business.

“Planters combine together to compel them to work for such wages as their former masters may dictate, and deny them the privilege of hiring to any one without the consent of the master; and in order to make it impossi *676 ble for them to seek employment elsewhere, the pass system is still enforced. ... Do you call that man free who cannot choose his own employer, or name the wages for which he will work? Do you call him a freeman who is denied the most sacred of all possessions, a home? Is he free who cannot bring a suit in court for the defense of his rights? Sir, if this be liberty, may none ever know what slavery is.”

The Court has previously acknowledged and relied upon the differing legislative histories and purposes of §§ 1981 and 1982 on the one hand, and § 1983 on the other, to demonstrate that the statutes should receive differing interpretations. See District of Columbia v. Carter, 409 U. S. 418 (1973) (holding that the District of Columbia is not a “State or Territory” under § 1983, although it is under § 1982). Cf. Monroe v. Pape, 365 U. S. 167, 205-206 (1961) (Frankfurter, J., dissenting in part) (“Different problems of statutory meaning are presented by two enactments deriving from different constitutional sources”).

The tortious aspect of racial discrimination has been noted by the Court in Curtis v. Loether, 415 U. S. 189, 196, n. 10 (1974) (citing C. Gregory & H. Kalven, Cases and Materials on Torts 961 (2d ed. 1969)), in which Justice MARSHALL suggested that racial discrimination might eventually be treated as a “dignitary tort.”

The Court appears to argue that because “§ 1983 would reach state action that encroaches on the rights protected by § 1981,” ante, at 661, it is important that they have the same statute of limitations. As Judge Garth demonstrated below, this argument is without merit:

“It is true that the same nucleus of operative fact sometimes could be characterized as either a § 1981 and/or § 1983 claim and thereby receive different limitations treatment if [a different statute were] applied under § 1981. Such variations, however, are commonplace in the law. In a run-of-the-mill automobile accident case, for example, identical facts could give rise to warranty claims sounding in contract and strict liability claims sounding in tort — each to be governed by a different statute of limitations. This is not thought to be a ‘bizarre result,’ and the possibility that the same or similar facts could support causes of action under different Civil Rights statutes is no more ‘bizarre.’” 777 F. 2d 113, 136 (CA3 1985).

A longer statute of limitations might actually reduce federal litigation. Cases arising under the Pair Housing Act of 1968, 42 U. S. C. §3601 etseq. (1982 ed. and Supp. Ill), and Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., are likely to overlap with § 1981 claims. If a short limitations period is imposed, plaintiffs in such cases will be forced to file their suits before exhausting administrative remedies, for fear of running out of time.

See Wilson v. Garcia, 471 U. S. 261, 282 (1985) (O’Connor, J., dissenting) (“[A] legislature’s selection of differing limitations periods for a claim sounding in defamation and one based on a written contract is grounded in its evaluation of the characteristics of those claims relevant to the realistic life expectancy of the evidence and the adversary’s reasonable expectations of repose”); 777 F. 2d, at 138 (statement of Judge Garth sur petition for rehearing) (“Most states have concluded that economically grounded causes of action will more frequently arise from patterned and well-documented courses of conduct than will claims for personal injury .... There is no reason we should not respect these policy choices, grounded as they are in real and substantial differences between and among causes of action, in applying civil rights statutes which reflect the same differences”); Meyers v. Pennypack Woods Home Ownership Assn., 559 F. 2d 894, 903, n. 26 (CA3 1977) (quoting Dudley v. Textron, Inc., Burkart-Randall Division, 386 F. Supp. 602, 606 (ED Pa. 1975) (Section 1981 and 1982 eases normally involve ‘“patterned-type behavior, frequently involving documentary proof’”; accordingly, ‘“[t]he passage of time is less likely to impede the proof of facts’”)); Dupree v. Hertz Corp., 419 F. Supp. 764, 767 (ED Pa. 1976) (“[T]he passage of time is not as likely to interfere with the proof of an employment discrimination case as it would affect the memories of witnesses in a personal injury action”); Dudley v. Textron, Inc., supra, at 606 (“[Section] 1983 actions have typically involved tort claims arising from personal injury, in many cases involving physical conduct of an irregular or sudden nature. By contrast, claims made pursuant to § 1981 usually arise out of employment contract relationships which consist of more patterned-type behavior, frequently involving documentary proof in the form of employment records. Accordingly, the passage of time is less likely to impede the proof of facts in a § 1981, than in a § 1983, case and a longer statute of limitations under § 1981 is, therefore, more appropriate”).

Pennsylvania formerly applied a 6-year statute of limitations to contract actions. Pa. Stat. Ann., Tit. 42, § 5527 (Purdon 1981). This statute has generally been applied to § 1981 actions arising in Pennsylvania “where the gist of the cause of action is economic rather than bodily injury caused by interference with the employment rights of black workers,” 777 F. 2d, at 131 (Garth, J., dissenting), and I would apply it here.