stating that "[a] prohibition against retaliation is a necessary adjunct to the anti-discriminatory provision itself[,]” and that "the refusal of Patterson to countenance harassment claims under section 1981 has only the most superficial application to claims for retaliation[,]" and, in fact "would appear to support the recognition of a cause of action for retaliatory conduct.”
How later courts described this case
- stating that "[a] prohibition against retaliation is a necessary adjunct to the anti-discriminatory provision itself[,]” and that "the refusal of Patterson to countenance harassment claims under section 1981 has only the most superficial application to claims for retaliation[,]" and, in fact "would appear to support the recognition of a cause of action for retaliatory conduct.”
- stating “[t]here must be a violation within the period of the statute of limitations. If having proved such a violation, the plaintiff goes on to prove that it began earlier and that its earlier manifestation caused him additional injury, he can obtain a remedy for the increment as well as for the injury inflicted by the recent violation.”
- explaining that in the instant case, since plaintiff had been fired, there was nothing more his employer could do to him if he filed a second charge, yet nonetheless following the general rule excusing administrative exhaustion of retaliation claims
- holding that a discrimination claim should not have been dismissed for failure to produce sufficient evidence of discrimination, since defendant moved for summary judgment only on the ground that the claim was time-barred.
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Patricia D. Rush v. McDonald Corporation, Sharon Funston, and William R. Rose
885 F.2d 1305, 1312 (7th Cir. 1989), superseded by statute on other grounds as recognized in Luevano, 722 F.3d at 1030
The opinion
RIPPLE, Circuit Judge,
concurring.
I join the judgment of the court. I am also pleased to join much of the thoughtful opinion of the court. However, I respectfully must decline to join that part of the opinion that suggests that Patterson v. McClean Credit Union, — U.S. -, 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989), can be read as permitting a section 1981 action whenever the position to which the employee desires promotion could be filled by a stranger to the firm. Patterson quite simply says that “the question whether a promotion claim is actionable under § 1981 depends on whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer.” 109 S.Ct. at 2377 . Whether the position can be filled by a stranger to the firm indeed may be a factor to consider in answering this question. However, it is not a litmus test that may be applied to trigger, by its own force, the applicability of section 1981.
As the majority suggests, there may be a lack of symmetry in a regulatory scheme that provides different remedies to those who are already employees of the defendant and those who have no preexisting contractual relationship with the defendant. I do not see how that condition, an accident of history or of political will, permits us to revise the scheme. If making *1318 statutes logical or symmetrical was the judicial task, we would be a law revision commission, not a court.
In my view, the majority's gratuitous suggestion undermines Patterson , and, I fear, will create a great deal of needless confusion in the bench and bar. As a lower federal court, we always should strive to avoid introducing such ambiguity into the holdings of the Supreme Court. Here, we ought to be particularly circumspect because the Supreme Court has warned us rather pointedly that we are to apply Patterson , not undermine it. When dealing with this very issue, the Supreme Court specifically warned us to give “a fair and natural reading to the statutory phrase ‘the same right ... to make ... contracts’ ” and admonished us that we “should not strain in an undue manner the language of § 1981.” Id.
With respect to the matter of retaliation, Judge Cudahy’s analysis, consonant with the approach of other circuits, certainly presents a strong case. Patterson recognizes that section 1981 forbids conduct that “impairs the employee’s ability to enforce ... contract rights.” Id. at 2373 . As Judge Posner notes, however, the record does not permit us to reach the issue in this case.
With the exceptions noted, I am pleased to join the judgment and opinion of the court.