noting that “the question of what constitutes a new employment relation under Patterson is difficult and unsettled” and stating that job changes within “the ordinary progression of a business executive in his career with a company” are not sufficient to establish a section 1981, failure-to-promote claim
How later courts described this case
- noting that “the question of what constitutes a new employment relation under Patterson is difficult and unsettled” and stating that job changes within “the ordinary progression of a business executive in his career with a company” are not sufficient to establish a section 1981, failure-to-promote claim
- defining frontpay as "a lump sum ... representing the discounted present value of the difference between the earnings [an employee] would have received in [her] old employment and the earnings [she] can be expected to receive in [her] present and future, and by hypothesis inferior, employment"
- suggesting that retaliation might be actionable if employer impaired ability to collect wages, enforce pension rights, enforce a "just cause" provision or seniority right, etc.
- noting that we commend district court judges who manage trials with an iron hand by scrutinizing witness and exhibit lists, and pruning redundant or marginal evidence
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Superseded by statute, as recognized in Patricia D. Rush v. McDonald Corporation, Sharon Funston, and William R. Rose
908 F.2d 104, 115 (7th Cir.1990) (“[I]n this age of swollen federal caseloads district judges must manage their trials with an iron hand — must scrutinize the witness list and the exhibit list with a beady eye and ruthlessly prune redundant or marginal evidence. We do not reverse district judges who do this.”), superseded by statute on other grounds as stated in Rush v. McDonald’s Corp., 966 F.2d 1104, 1119 (7th Cir.…
The opinion
FAIRCHILD, Senior Circuit Judge,
concurring in part, dissenting in part.
42 U.S.C. § 1981 , guaranteeing a racially equal “right ... to make and enforce contracts,” has been interpreted as a prohibition against racial discrimination in the making and enforcement of private contracts. Runyon v. McCrary, 427 U.S. 160, 168 , 96 S.Ct. 2586, 2593 , 49 L.Ed.2d 415 (1976); Patterson v. McLean Credit Union, — U.S.-, 109 S.Ct. 2363, 2370 , 105 L.Ed.2d 132 (1989). “The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms.” Patterson, 109 S.Ct. at 2372 .
I would think it reasonable and proper to interpret the statutory language, “right ... to make ... contracts,” applied to contracts of employment, as including the right to continue to work, in the face of racially discriminatory termination. The difficult question is whether that interpretation can and does survive Patterson .
Patterson’s first holding dealt with the claim of racial harassment of an employee during the course of the employment, and the court did not expressly assert that a racially discriminatory termination would not be a violation of § 1981. Patterson reached its result as to harassment by interpreting narrowly what it is “to make” a contract of employment as Congress used those terms in § 1981.
On its facts, the holding does not reach the case before us. We must decide whether the Court has defined the right “to make” a contract in such a way that it no longer has relevance and thus is not impaired at the time the contract of employment is terminated on account of race.
There is, indeed, much language in Patterson focusing on the stage when an employment relationship is initially formed.
Judge Posner has adverted to the language in Patterson , that “the right to *118 make contracts does not extend ... to conduct by the employer after the contract relation has been established....” 109 S.Ct. at 2373 . There is similar language at page 2369. It was said that the right “to make” a contract “extends only to the formation of a contract.” Id. at 2372 . Elsewhere the protection of the right to make a contract is said to cover “only conduct at the initial formation of the contract.” Id. at 2374 .
In its treatment of a claim of discriminatory denial of promotion after the beginning of employment, the Court said, “Only where the promotion rises to the level of an opportunity for a new and distinct relationship between the employee and the employer is such a claim actionable under § 1981.” Id. at 2377 (citation omitted).
My colleagues evidently take the position that termination of a contract of employment is “conduct” in the sense the Court used that term and therefore the right “to make” a contract free of racial discrimination was fulfilled as to that employment when the employment began and is not protected by § 1981 when discriminatory termination occurs. With all respect, I do not agree that Patterson so held.
In the first place, the Patterson Court was dealing with a claim of racial harassment during the existence of the employment relationship. The Court was directly concerned with employer conduct which occurred after contract formation, but before contract termination. In this context, “conduct” as used by the Court may well not have been meant to embrace an employer’s act in terminating the contract. In saying that the right to make contracts does not extend to conduct by the employer after the relation has been established, the Court referred to that conduct as “including breach of the terms of the contract or imposition of discriminatory working conditions.” 109 S.Ct. at 2373 . Termination of a contract at will is not breach, and no reference was made to termination or discharge as an instance of employer conduct to which the right does not extend. It is very difficult to believe that this omission was inadvertent, particularly in the light of Justice Brennan’s positive assertion in dissent that Congress intended “to go beyond protecting the freedmen from refusals to contract for their labor and from discriminatory decisions to discharge them.” Id. at 2388 (Brennan, J., dissenting). See Hicks v. Brown Group, Inc., 902 F.2d 630, 638 (8th Cir.), reh’g and reh’g in banc denied (1990).
In the second place, one facet of termination of employment is a refusal to enter into a contract for the future, and thus termination is a violation of § 1981 if based on race. Patterson, 109 S.Ct. at 2372 .
I am aware that the majority opinion spoke critically, at p. 2377 n. 6, of Justice Stevens’ assertion in dissent that an at-will employee is constantly re-making the contract and a new contract is made whenever significant new duties are assigned to the employee. Id. at 2396 (Stevens, J., dissenting). Fairly read, this exchange relates to activity during the existence of the employment relationship and not to termination.
I have also noted another point in the Patterson majority opinion where there is no reference to termination. The Court indicated reasons for avoiding overlap of coverage between § 1981 and Title VII. It concluded that “some overlap will remain.” But the only instance it cited was “a refusal to enter into an employment contract on the basis of race.” Id. at 2375 and n. 4. If discriminatory discharge is a violation of § 1981, it would be an important instance of overlap.
The omission would be consistent with a judgment by the Court that discriminatory discharge is not a violation of § 1981. Considering it, however, along with the omission earlier noted, it seems most probable that the omissions indicate that the Court elected not to decide the impact of § 1981 on discriminatory discharge.
Concluding that Patterson leaves open the question whether a racially discriminatory termination is a violation of § 1981 and deeming it a better construction of congressional intent that it is such a viola *119 tion, 1 I respectfully dissent from the views of my colleagues on this branch of the case.
. See Hicks. 902 F.2d 630, 638 .