Amicus Curiae Brief — Patterson v. McLean Credit Union

Supreme Court of the United

OCTOBER TERM, 1987

IN THE

>

BRENDA PATTERSON,

Petitioner,

atta.

MCLEAN CREDIT UNION,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

CIVIL LIBERTIES UNION FOUNDATION AND THE

NORTH CAROLINA CIVIL LIBERTIES LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

>

STEVEN R. SHAPIRO

(Counsel of Record)

JACQUELINE A. BERRIEN

JOHN A. POWELL

HELEN HERSHKOFF

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

132 West 43rd Street

New York, New York 10036

(212) 944-9800

ADAM STEIN

WILLIAM SIMPSON

NORTH CAROLINA CIVIL LIBERTIES

UNION LEGAL FOUNDATION

813 Southeastern Building

P.O. Box 3094

Greensboro, North Carolina 27402

(919) 274-3841

TABLE OF AUTHORITIES .... ++ «© «© «© «

INTEREST OF AMICI .. +.» 2s © s+ © © © @&

INTRODUCTION AND SUMMARY OF ARGUMENT ..

II.

THE LEGISLATIVE HISTORY

SURROUNDING THE ENACTMENT OF

42 U.S.C. §1981 MANIFESTS

CONGRESSIONAL INTENT THAT THE

ACT BE CONSTRUED LIBERALLY ...

42 U.S.C. §1981 PROVIDES

IMPORTANT INDEPENDENT REMEDIES

FOR VICTIMS OF ALL FORMS OF

RACIALLY-MOTIVATED EMPLOYMENT

DISCRIMINATION INCLUDING RACIAL

HARASSMENT IN THE WORKPLACE...

A. The Decisions Of This Court

Conclusively Establish That

42 U.S.C. §1981 Is An

Independent And Distinct

Avenue of Relief for Victims

of Racially Motivated

Employment Discrimination. .

B. This Court Has Recognized

The Availability Of Relief

Under 42 U.S.C. §1981 InN A

poe Of Circumstances

Including Racial Harassment

Im The Workplace ..... =.

=e

14

14

20

CONCLUSION .

The Remedial Provisions of

42 U.S.C. §1981 Are An

-ii-

415 U.S. 36 (1974) .... -

Products Co., Nos. 12190-EM,

15389-EM (Michigan Civil Rights

Commission 1984) ...+++++e«es-s

583 F.2d 143 (5th Cir. 1978),

cert. denied, 442 U.S. 934 (1979) .

Electrical Workers v. Robbins

& Myers, Inc.

429 U.S. 229 (1976) ee «eg

Goodman v. Lukens Steel Co.,

482 U.S.

96 L.Ed.24 572 tes @ 6 «

Johnson v. Railway Express Agency

421 U.S. 454 (1975) ....+e+.-.

Jones v. Alfred H. Mayer Co.

392 U.S. 409 (1968) .....

Lowery _v. WMC-TV,

658 F.Supp. 1240 (W.D. Tenn. 1987),

vacated on other grounds, 661 F. oaD-

65 (W.D. Tenn. 1987) .. .

McCrary v. Runyon,

515 F.2d 1082 (4th Cir. 1975)

-iii-

19

34

30

19

34

33

McDonald v. Santa Fe Trail

Transportation Co.,

cg * ew. _. | ee

Runyon v. McCrary,

427 U.S. 160 (1976) .....

Saint Francis College v. Al-

Khazraji, 481 U.S. __,

95 L.Ed.2d 582 (1987) ....

Shaare Tefila Congregation v.

Cobb, 481 U.S. ,

95 L.Ed.2d 594 (1987) ....

Taylor v. Jones,

653 F.2d 1193 (8th Cir. 1981).

’

United States v. Price

383 U.S. 787 (1966) .....

, 817 F.2d 1290

Pe a

Statutes

42 U.S.C. §1981 . > . . . * .

Civil Rights Act of 1866...

Civil Rights Act of 1870...

Immigration Reform and Control

Act of 1986 > . . 7 >. >. . . >.

-iv-

18,

32,

18

29

29

34

33

Title VII of the Civil Rights Act

of 1964. . . + +«+s-eeee ce ce 6 « + DASSIB

Voting Rights Act of 1965 ...... . 28

Other Authorities

Comment, “Developments in the Law -

Section 1981," 15 Harv.C.R.-C.L.

L. Rev. 33 (1980) >. . >. >. o . >. >. > . . >. BR

Cong. Globe,

39th Cong., 1st Sess. (1866) .. 8, 10, 11

M. Denis, “Race Harassment

Discrimination: A Problem That

Won't Go Away?,"

10 Empl. Rel. L.J. 415 . . «© «© «© «© «© «© « 30

-Yyo=

INTEREST OF AMICI+/

The American Civil Liberties Union

(ACLU) is a nationwide, nonpartisan

organization of over 250,000 members

dedicated to preserving and advancing the

fundamental civil rights and civil

liberties of the people of the United

States. The North Carolina,givil Liberties

Union Legal Foundation, with more than

3,500 members, is one of its national

chapters.

Central among the fundamental rights

and liberties of our society is the right

to be free from racial discrimination. The

ACLU has been involved in numerous cases

before this Court and other tribunals

1/ ‘he parties have consented to the filing

of this brief, as indicated by their letters of

involving issues relatc~ co the achievement

of the fundamental right of equality, and

to the advancement of antidiscrimination

principles.

This’ case raises important issues

concerning the protection afforded and the

remedies available to victims of racial

discrimination in employment. The

significance of this case to the

achievement of equal employment opportunity

has prompted the ACLU to file this brief

amicus curiae in support of petitioner.

It is the position of amici that

Claims of racial harassment in the

workplace are cognizable under 42 U.S.C.

§1981 ("Section 1981") as well as under

Title VII of the Civil Rights Act of 1964.

The court of appeals’ holding to the

-2-

contrary in this case erroneously narrows

the range of legal relief available to

victims of racial harassment in the

workplace and eviscerates the legal

protections which Congress intended to

extend to such victims.

The history surrounding the enactment

of the Civil Rights Act of 1866 supports

the conclusion that Congress intended to

create an expansive remedy for victims of

race discrimination. In light of the

legislative history accompanying its

enactment, §1981 is appropriately applied

to combat racial harassment in the

workplace today. As this Court has

repeatedly recognized, the legislative

history supports a liberal construction of

the provisions of the Act. Section 1981,

as interpreted by this Court, clearly

encompasses allegations that an employer

has targeted a black employee for

disparate, hostile treatment and has

engaged in a campaign of harassment solely

on account of that employee's race. The

acts alleged by the petitioner in pleadings

and argument belowé/ certainly interfered

with petitioner's ability to fulfill her

employment contract, and deprived her of an

opportunity to work in an atmosphere free

of racially motivated hostility and

harassment. The alleged acts undoubtedly

frustrate a black employee's exercise of

the rights declared in §1981.

The right to "make and enforce”

contracts in a manner identical to that

enjoyed by whites becomes meaningless if

the court of appeals’ decision <hat the

——e

right excludes the enjoyment of a workplace

free of racial harassment is allowed to

stand. The decision below is inconsistent

with the express intent of Congress in

enacting the predecessor to the modern

§1981, and conflicts with the decision of

this Court and the lower federal courts.

Accordingly, the decision should be

vacated.

Section 1981 is an important

independent means of redressing racially

motivated employment discrimination. The

relief available under §1981 to victims of

employment discrimination is particularly

appropriate relief in racial harassment

cases. Amici submit that it is important

to preserve the remedies available under 42

U.S.C. §1981, particularly compensatory and

punitive damages, in cases of racial

harassment in the workplace.

I. THE LEGISLATIVE HISTORY

SURROUNDING THE ENACTMENT

OF 42 U.S.C. §1981 MANIFESTS

CONGRESSIONAL INTENT THAT THE

ACT BE CONSTRUED LIBERALLY

Section 1981 prohibits racial

discrimination in the making and

enforcement of private contracts. Johnson

vy. Railway Express Agency, 421 U.S. 454,

459-60 (1975); Runyon v. McCrary, 427 U.S.

160, 168 (1976); McDonald v. Santa Fe Trail

Transportation Co., 427 U.S. 273, 295

(1976); Goodman v. Lukens Stee) Co., 482

U.S. _, 96 L.Ed.24 572, 582 (1987) .2/

2/ 42 U.S.C. $1981 provides in relevant part:

All persons within the jurisdiction of

the United States shall have the same

right in every State and Territory to

make ard enforce contracts... . as is

errjoyed by white citizens, amd shall be

subject to like punishments, pains,

penalties, taxes, licenses, and

exactions of every kind, and to no

other.

i.

This Court has reviewed the

legislative history of the Civil Rights Act

of 1866 on several occasions and has

concluded thet the Civil Rights Act was

intended as a broad prohibition against

racial discrimination, and that it is

consistent with the legislative intent to

read the statute liberally. See @.g.,

Jones v. Alfred H. Mayer Co., 392 U.S. 409

Y (.. continued)

42 U.S.C. §1961 was derived fram §1 of the

enacted wi

Rights Act of 1870, 16 Stat. 144. See Runyon vy.

(1968);4/ McDonald v. Santa Fe Trail

Trans. Co., 427 U.S. 273 (1976) .2/

Congress enacted the Civil Rights Act

of 1866 in response to post-Emancipation

legal and extra-legal efforts to oppress

the freedmen, and intended the legislation

to "'give effect to th(e Thirteenth

Amendment) and secure to all persons within

the United States practical freedom. '"9/

4/ “We think that history leaves no doubt

that, if we are to give [the law) the scope that

—————EO

In his comprehensive review of the

legislative history of the 1866 Civil

Rights Act in the majority opinion in

Jones, supra, Justice Stewart wrote:

That the bill would indeed have...

{a es effect was seen as its

— virtue by its friends and as

ts great danger by its enemies but

was disputed BY mone... . Thus,

passed the Civil

it did so fully aware

f the breadth of the measure it had

prevailed in the Senate: It too

believed that it was approv a

ive statute forbidding ali

racial discrimination —e the

basic civil rights enumerated in the

Act

In light of the concerns that led

Congress to adopt it and the contents

of the debates that preceded its

passage, it is clear that the Act was

designed to do just what its terms

suggest: to prohibit all racial

discrimination, whether or not under

color of law, with respect to the

rights enumerated therein.

Jones vy. Alfred H. Mayer Co., 392 U.S. 409,

433, 435-36 (1968).

The Civil Rights Act of 1866 was

drafted and introduced by Senator Trumbull

shortly after the ratification of the

Thirteenth Amendment to the Constitution. 2/

Senator Trumbull stated that his proposed

bill was intended to provide a “means” of

“carr{ying) into effect" the “declaration”

of the Thirteenth Amendment ,£/ and would

“break down all discrimination between

black men and white men.*2/ In the House

of Representatives another proponent of the

/ See Jones v. Alfred H. Mayer Gp., 392 U.S.

at 429-32.

The Thirteenth Amercizert to the

Guatenien eee SS ee nor

involuntary servitiaie . exist wi the

ey Se an

jurisdiction." U.S. Const., Amendment 1), $11

(1865). Section 2 of the Amendment authorizes

congressional enforcement of the amerdment by

appropriate legislation.

&/ cong. Globe, 39th Cong., Ist Sess. 474

(1866) .

2 cong. Globe, 39th Cong., ist Seas. at 599.

ee

Act, Representative Cook of Illinois,

expressed particular concern about

“f eradicating interference with the labor

contracts of black workers. Representative

Cook advanced the proposed Civil Rights Act

as an antidote to interference with the

employment rights of the freedmen:

[I}f it is competent for the

. « « Legislatures of the rebel

States to enact .. . laws which

impair their (the freedmen's) ability

to make coneracts for labor in such a

manner as virtually to deprive them of

the power of making such contracts

then . . . of what practical

value is the amendment abolishing

slavery in the United States?

Against this background, Congress

enacted the Civil Rights Act of 1866 to

correct a myriad of perceived evils. The

legislation was intended to prohibit the

various manifestations of racial

19/ cong. Globe, 39th Cong., ist Sess. 1151

(1866).

-ll-

discrimination which emerged during the

post-Emancipation period. As this Court

observed in Jones v. Alfred H. Mayer Co.:

[Section] 1 of the Civil Rights

Act of 1866... . was cast in

sweeping terms:

[A]ll persons born in the United

States and not subject to any

foreign power [. . .] are hereby

declared to be citizens of the

United States; and such citizens,

of every race and color, without

regard to any previous condition

of slavery or servitude [. . .-]

shall have the same right, in

every State and Territory of the

United States, to make and

enforce contracts [. . .] as is

enjoyed by white citizens

392 U.S. 409, 422-23 (1968).

It is well settled that Congress

intended, in enacting the Civil Rights Act

of 1866, from which §1981 was derived, to

impose a far-reaching prohibition against

racial discrimination in various

transactions and relationships including

the private employer-employee

-12-

—————<_

relationship.42/ The language of the

statute is itself expansive, and was

intended to be so by the Thirty-ninth

Congress. Accordingly, this Court's

decisions have liberally construed the

statute. In light of the breadth of this

legislation as drafted by Congress and

construed by this Court, the restriction of

its force and effect embodied in the

decision below in this case is contrary to

the legislative intent and should be

rejected by this Court.

11/ In Johnson v. Railway Eoress Agency

421 U.S. 454 (1975), this Court confirmed that

§1981 is "a remedy against private employment

discrimination separate from and independent of

. « « Title VII (of the Civil Rights Act of 1964)."

421 U.S. 454, 466. Compare 42 U.S.C. §1981 (§1 of

the Civil Rights Act of 1866, reenacted as §16 of

the Civil Rights Act of 1870) with 42 U.S.C.

§§2000e et seg. (Title VII of the Civil Rights Act

of 1964). See also Rumyon v. McCrary, 427 U.S.

160, 179 (1976) (noting that U.S.C. §1981

“eliminate(d] . . . racial discrimination in the

making of private employment contracts.")

-13-

II. 42 U.S.C. §1981 PROVIDES

IMPORTANT INDEPENDENT REMEDIES

FOR VICTIMS OF ALL FORMS OF

RACIALLY-MOTIVATED EMPLOYMENT

DISCRIMINATION INCLUDING RACIAL

HARASSMENT IN THE WORKPLACE

The decision of this Court in Johnson

vy. Railway Express Agency, 421 U.S. 454

(1975) conclusively established that 42

U.S.C. §1981 provides a remedy for victims

of racially motivated employment

discrimination.42/ In Johnson, this Court

addressed the issue of whether the statute

of limitations for filing an employment

discrimination action pursuant to Section

42/ “Although this Court has not specifically

so held, it is well settled among the Federal

Courts of Appeals — and we now join them — that

§1981 affords a federal remedy against

discrimination in private employment on the basis

of race." Johnson v. Railway Express Agency, 421

U.S. 454, 459-60 (1975).

-14-

EO

1981 should be tolled during the pendency

of administrative procedures required as a

prerequisite to the initiation of an action

under Title VII of the Civil Rights Act of

1964 ("Title VII"), 42 U.S.C. §2000e et

seg. The Johnson decision affirmed the

holding of the Sixth Circuit Court of

Appeals that the timely filing of an

employment discrimination charge with the

Equal Employment Opportunity Commission,

pursuant to Title VII, does not toll the

limitation period for filing a Section 1981

action based on the same facts. Johnson v.

Railway Express Agency, 421 U.S. 454

(1975).

Justice Blackmun, writing for the

majority of the Court, reviewed the

legislative history of Title VII and

concluded that while Title VII “was enacted

‘to assure equality of employment

opportunities by eliminating those

practices and devices that discriminate on

the basis of race, color, religion, sex, or

national origin,'" Congress did not intend

to establish Title VII as an exclusive

remedy for employment discrimination.

Johnson v. Railway Express Agency, 421 U.S.

454, 457, 459 (1975) (quoting Alexander v.

Gardner-Denver Co., 415 U.S. 36, 44

.1974)). This Court held that the passage

of Title VII did not vitiate the remedies

available to victims of racially motivated

employment discrimination under other

federal laws and concluded that “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."

-16-

Johnson v. Railway Express Agency, 421 U.S.

at 461.43/

This Court has reaffirmed the

principle that Section 1981 is an

independent and distinct avenue of relief

for victims of racially motivated

employment discrimination in a number of

decisions since Johnson. For example, in

Runyon v, McCrary, 427 U.S. 160, 49 L.Ed.2d

415 (1976), a §1981 action challenging the

exclusion of non-whites from private

schools, the Court noted that “Congress in

enacting the Equal Employment Opportunity

Act of 1972 . . . specifically considered

and rejected an amendment that would have

repealed the Civil Rights Act of 1866

insofar as it affords private-sector

employees a right of action based on

racial discrimination in employment." 427

U.S. 160, 174. See also Runyon, id., 427

U.S. at 174 n.11. Similarly, this Court's

decision last term in Saint Francis

College v. Al-Khazraji, 481 U.S. , 95

L.Ed.2d 582 (1987) again confirmed that

§1981 “forbid[{s] all ‘racial’

discrimination in the making of private as

well as public contracts," including

employment contracts. 481 U.S. __, 95

L.Ed.2d 582, 589.244/ Inasmuch as the

14/ See also

Transportation Co., 427 U.S. 273, 288

(1976) (holding in an employment discrimination case

that §1981 “prohibit[s] any racial discrimination

in the making and enforcement of contracts,");

Goodman v. Lukens Steel Co., 482 U.S. __, 96

L.Ed.2d 572, 582 (1987) (holding in an employment

discrimination case that §1981 "declares the

(continued...)

-18-

decision below suggests that the

availability of a Title VII remedy in

racial harassment cases conflicts with

availability of §1981 as an avenue of

relief in such cases, the decision is

clearly erroneous. +2/

An uninterrupted line of decisions of

this Court beginning with Johnson v.

14/ (...contimed)

personal right to make and enforce contracts, a

right, as the section has been construed, that may

not be interfered with on racial grounds.").

15/ this Court has previously rejected

arguments suggesting the exclusivity of Title VIi

as a remedy for employment discrimination clains.

See e.g., Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974) (Arbitrator's decision not binding in

Title VII actions because contractual rights under

a collective bargaining agreement and rights under

Title VII "have legally independent origins and are

equally available to the aggrieved employee.") ;

j , 429

U.S. 229 (1976) (collective bargaining

grievance arbitration procedure and Title VII

charge may be pursued concurrently, and period for

filing charge of discrimination with the Equal

Employment Opportunity commission is not tolled

during pendency of grievance arbitration

procedure) .

-19-

Railway Express Agency, supra, holds that

42 U.S.C. §1981 establishes an independent

remedy for victims of racially mocivated

employment discrimination. Thus, this

Court should reject the decision below,

which suggests that the availability of a

Title VII remedy somehow undermines

petitioner's reliance upon §1981 to obtain

relief for racial harassment.

B. This Court Has Recognized The

Availability Of Relief Under 42

U.S.C. §1981 In A Variety Of

Circumstances Including Racial

Harassment In The Workplace

The §1981 employment discrimination

cases reviewed by this Court since Johnson

have involved varied factual

scenarios, and presented different legal

and procedural issues, but the decisions of

this Court have in no instance questioned

the appropriateness of reliance upon §1981

-20-

as a remedy for racially motivated

employment discrimination.

The court of appeals distinguished

between the "terms, conditions, or

privileges of employment "26/ and "§1981's

more narrow prohibition of discrimination

in the making and enforcing of contracts."

Patterson v. McLean Credit Union, 805 F.2d

1143, 1145. The court of appeals' analysis

engrafts the novel requirement that the

courts assess the facts of a racial

discrimination claim and determine whether

the acts alleged "go to the very existence

and nature of the contract" before allowing

the claimant to proceed with a §1981

employment discrimination. There is no

support for this analysis of §1961 in this

Court's decisions.

16/ See 42 U.S.C. §2000e-2(a).

-2i-

Johnson v. Railway Express Agency,

supra, involved challenges to an employer's

discrimination "against its Negro employees

with respect to seniority rules and job

assignments," and to several labor unions’

maintenance of "racially segregated

memberships."17/ with these allegations

before it, this Court held that dismissal

of the §1981 claim as untimely was

appropriate. The Johnson opinion is free

of any suggestion, however, that the §1981

Claim based, inter alia, upon allegations

of discriminatory seniority rules and job

17/ Johnson v. Railway Express Agency, 421

U.S. 454, 455 (1975).

The Court noted, however, that "(t]he

Claims against the union were dismissed [below] on

res judicata grounds... . [and tjhis issue...

was not included in [the Court's] grant of

certiorari." Johnson, 421 U.S. at 457 n.3.

Petitioner Johnson was fired three weeks after he

filed his EEOC charge, so he subsequently amended

his charge to include an allegation of

discriminatory termination. 421 U.S. 454, 455.

-22-

ee ee a ee cally

ee ee ee ae ee

Sa ee et er ee re, ee A ee OR. 5 ct 2 ete

assignments was substantively defective.

From all that appears in Johnson, the only

bar to proceeding with a §1981 claim in the

case was procedural rather than

substantive.

As noted in the opinion below, 48/ fo

, a“

The cases relied on by Patterson...

[do not] directly hold[{]} that racial

harassment gives rise to a discrete

18/ ‘Me court of appeals wrote: 4

, “a

may give rise to a discrete Title VII

claim.

805 F.2d at 1146. The decision then

cites the district court opinion in Goodman

(reported at 580 F.Supp. 1114) with a parenthetical

that the opinion "very generally

cit{ed] §1981, along with Title VII, as a basis for

a Claim of racial harassment." 805 F.2d 1143,

1146. Cf. Goodman v. Lukens Steel Co., 96 L.Ed.2d

572, 584 ("(T]he unions were found to have

discriminated on racial grounds in violation of

both Title VII and §1981 in certain ways...

{including their] tacit encouragement of racial

harassment.").

-23-

Goodman v. Lukens Stee] Co., 482 U.S. ;

96 L.Ed.2d 572 (1987), involved a racial

harassment claim. The district court in

Goodman found defendants United

Steelworkers Union and two local unions

"guilty of discriminatory practices...

[including] tacit[] encourag[ement of]

racial harassment." 96 L.Ed.2d 572, 581.

See also Goodman v. Lukens Steel Co., 580

F.Supp. 1114 (E.D.Pa. 1984). The Third

Circuit “affirmed the liability judgment

against the Unions."22/ This court noted

that the liability of the unions was

founded upon “both Title VII and §1981

[violations]," and concluded that "[tjhe

courts below . . . properly construed and

applied Title VII and §1981." Goodman v.

Lukens Steel Co., 482 U.S. , 96 L.Ed.2d

12/96 L.Bd.2d 572, 581. See also Goodman v.

Lukens Stee] Co., 777 F.2d 113 (3d Cir. 1985).

-24-

a ae

572, 587 (1987). As in Johnson, supra,

this Court's decision in Goodman contrasts

starkly with the analysis of the court

below. There is, again, no intimation in

this Court's Goodman decision that racial

harassment or other claims beyond those

that "go to the very existence and nature

of the contract" as defined in the decision

below are cognizable under Title VII but

not under §1981. Indeed, this Court's

affirmance of the judgment finding the

unions liable for racial harassment under

both Title VII and §1981 squarely conflicts

with the decision below.

| The court of appeals' decision in this

case confining the application of §1981 to

race discrimination claims which "go to the

very existence and nature of the

employment contract," Patterson v. McLean

Credit Union, 805 F.2d 1143, 1145 (4th Cir.

-25-

1986) unduly restricts the availability of

the §1981 remedy for employment

discrimination victims, and is contrary to

the decisions of this Court, which have

expressly and tacitly approved and applied

§1981 in a variety of employment

situations.

Cc. The Remedial Provisions Of 42 U.S.C.

§1981 Are An Important Weapon In The

Arsenal Of Legal Remedies To Combat

Racial Harassment In The Workplace

Justice Marshall, in a separate

opinion in Johnson v. Railway Express

observed:

In recognizing that Congress intended

to supply aggrieved employees with

independent but related avenues of

relief under Title VII of the Civil

Rights Act of 1964 and §16 of the

Civil Rights Act of 1870, 42 U.S.C.

§1981, the Court emphasizes the

importance of a full arsenal of

weapons to combat unlawful employment

discrimination in the private as well

as the public sector." 421 U.S. 454,

468 (1975) (Marshall, 3., concurring

in part and dissenting in part).

-26-

ee rr a Ea ah a a ce ne a et a ly

The decision below effectively eliminates

§1981 from the “arsenal of weapons"

available to combat racial harassment in

the workplace. That decision is contrary

to congressional intent, the decisions of

this Court, and the decisions of other

federal courts. Moreover, the elimination

of §1981 as a remedy against racial

harassment in the workplace clearly

conflicts with the national policy of

eradicating racial discrimination, and

will seriously hamper efforts to eliminate

racial harassment in the workplace.

In his separate concurring opinion in

Runyon v. McCrary, Justice Stevens wrote:

[E]ven if [the Court's decision

in Jones v. Alfred H. Mayer Co. }

did not accurately reflect the

sentiments of the Reconstruction

Congress, it surely accords with

the prevailing sense of justice

today.

The policy of the Nation as

formulated by the Congress in

-27-

recent years has moved constantly

in the direction of eliminating

racial segregation in all sectors

of society. This Court has given

a liberal construction to such

legislation. For the Court now

to overrule Jones would be a

significant step backwards . .

Such a step would be so clearly

contrary to my understanding of

the mores of today that I think

the Court is entirely correct in

adhering to Jones.

Runyor, supra, 427 U.S. 160, 191

(1976) (Stevens, J., concurring).

Justice Stevens' observation that

Congress has endeavored, through

legislation, to eliminate race

discrimination throughout our society

remains true today.29/ This court has

Similarly continued to "give[] a

20/ See e.G., Pub. &. No. 97-205, 96 Stat.

134 (June 29, 1982) (amendnents

of the Voting Rights Act of 1965); Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603,

100 Stat. 3359 (November 6, 1986) (creating new

remedy for employment discrimination on the basis

of national origin or citizenship) .

-28-

sympathetic and liberal construction" to

Congress' antidiscrimination legislation,

particularly the modern derivatives of the

Civil Rights Act of 1866, 42 U.S.C. §§1981

and 1982.22/

The decision below retreats

significantly from this legislat’ -e

commitment to the eradication of race

discrimination and runs counter to

prevailing judicial support for legislative

initiatives to achieve greater racial

justice in this society.

For many persons in the workforce, the

principles of equal employment opportunity

2)/ See e.g., Saint Francis College v. Al-

i, 481 U.S. __, 95 L.Ed.2d 582

(1987) a §1981 to Arab's employment

discrimination claim) ;

v. Cobb, 481 U.S. _, 95 L.Ed.2d 594

(1987) (applying §1982 to case involving vandalism

of a synagogue); Goodman v. Lukens Stee] Co., 482

U.S. 96 L.Ed.2d 572 (1987) (applying §1981 in

case involving allegation of union acquiescence in

discriminatory acts, including racial harassment) .

-29-

are still aspirational. Racial harassment

in the workplace is one of the lingering

impediments to the achievement of equal

employment opportunity. 22/

Racial harassment in the workplace is

sometimes characterized by intransigent

resistance to compliance with the

antidiscrimination laws.23/ Occasionally

22/ A case before the Michigan Civil Rights

Commission,

, Nos. 12190-EM, 15389-EM (Michigan

Civil Rights Commission 1984) is illustrative of an

extreme case of racial harassment. The black

complainant in that case was subjected to racial

epithets, was physically segregated from white

employees, and received notes containing references

to the "KKK." See M. Denis, "Race Harassment

Discrimination: A Problem That Won't Go Away?" 10

Empl. Rel. L.J. 415 - 36. According to Denis,

Citchen also found "a noose . . . [and] a sign that

read(] ‘KKK for you, Ben,'" at his work station and

discovered "a dead mouse, fishbones, and a cross

soaked in kerosene burning in his locker." Denis,

id. at 415-16. The author concludes that "Citchen

is the egregious case. But in some respects it is

not really an aberration. Racial harassment still

exists," id. at 435.

23/ See, e.g., + Gaiborne v.11 inoie Cantal

-30-

racial harassment is manifested through

conduct which can only be described as

egregious.24/ Finally, in some instances

23/ (...contimmed)

R.R., 583 F.2d 143, 154 (5th Cir. 1978), cert.

denied, 442 U.S. 934 (1979) (affimaing trial court's

award of $50,000 in punitive damages in Title VII

and §1981 action on ground that "(tjhe railroad's

intransigence in failing . . . to redress any of

its prior discriminatory acts, plus its additional

acts of post [1964 Civil Rights] Act discrimina-

tion, such as testing only black helpers to

evaluate their asserted ‘deficiencies, '

the [trial] court's view that the defendant acted

with malice with respect to its black employees.").

24/ See e.g., Taylor v. Jones, 653 F.2d 1193

(8th Cir. 1981). In Taylor, the court of appeals

affirmed a trial court's award of relief under 42

U.S.C. §1981 to a victim of racial harassment. The

appeals court held that “ample evidence in the

record . . . support[(ed] the district court's

finding that the racial atmosphere of (plaintiff's

workplace] was ‘dismal,'" and characterized the

conditions existing in the worksite of plaintiff's

former employer as a “pervasive atmosphere of

prejudice." 653 F.2d 1193, 1199. The appeals

court "recite[d] some of the overwhelming evidence

relating to the 'dismal' racial atmosphere" in

plaintiff's former place of employment, including

evidence that racial slurs and epithets were

frequently used in the workplace; testimony about

an incident in which an employee notorious for his

Claimed affiliation with the Ku Klux Klan displayed

a noose in the supply roam; evidence that the

(contimed. . .)

-3l1-

racial harassment involves repeated

interference with opportunities for

advancement, or other, more subtle

manifestations of racial animus.25/

24/ (...contimued)

physically demanding position of mail clerk was

filled almost exclusively by black employees; and

testimony fram the plaintiff that “racially

offensive jokes" were told in her presence during

her employment with defendant. Id., at 1198-99.

See also Hunter v. Allis-Chalmers Corp., 797 F.2d

1417 (7th Cir. 1986) (plaintiff subjected to, inter

alia, racial epithets, derogatory graffiti, and

coworkers tampering with his equipment awarded

punitive and compensatory damages in Title VII and

§1981 action).

22/ For example, in Williamson v. Handy

Button Machine Co., 817 F.2d 1290 (7th Cir. 1987)

the court affirmed an award of punitive and

compensatory damages to Title VII and §1981

plaintiff who was repeatedly denied promotions, and

witnessed white employees with less seniority

promoted above her over the course of eight years.

After plaintiff filed a charge of discrimination

with the EEOC, her supervisor placed a document in

plaintiff's personnel file regarding her use of

vacation time. Subsequently, plaintiff's

supervisor “berated” her for using a particular

washroom facility, and plaintiff suffered a nervous

breakdown shortly after this confrontation. 817

F.2d 1290, 1292-93. The court of appeals observed

that "none of these events involved racial

epithets, and the employer offered neutral

(continued...)

-32-

Nevertheless racial harassment --- whether

sophisticated or crude--- impedes the

achievement of equal employment

opportunity. 29/ It is important to

25/ (...contimed)

explanations for each. But once a jury decides

that an employer makes use of race in its everyday

decisions — in this case, that it held

Williamson's race against her over a decade — it

is permissible to infer that race also explains

other disparate treatment." 817 F.2d at 1295.

26/ In McCrary v. Rumyon, 515 F.2d 1082 (4th

Cir. 1975) the court wrote:

Section 1981 doubtless was intended to give

the former slaves access to opportunities

for material betterment of themselves, but it

was also intended to remove the stigma which

the disabilities under which they

these statutory rights is treatment of the

victim as being subject to those earlier

disabilities. It is an affront, of which

515 F.2d 1082, 1089, aff'd Runyon v. McCrary, 427

U.S. 160 (1976).

(continued. . . )

-33-

preserve a broad range of remedies to

address this persistent and troubling

phenomenon.

In appropriate cases, the

remedies and procedures available under 42

U.S.C. §198127/ are a valuable means of

26/ (...contimued)

Assessment of a racial harassment claim

necessarily involves the exercise of discretion by

the trier of fact. However, it is important, as

many lower courts have recognized, to be sensitive

to forms of employment discrimination which, while

more subtle than the behavior recounted in cases

such as Taylor, supra, nevertheless constitute

"treatment of the victim as being subject to th[e]

- - » Gisabilities [of slavery]." McCrary, id.

See e€.g., Lowery v. WMC~TV, 658 F.Supp. 1240 (W.D.

Tenn. 1987), vacated on other grounds, 661 F.Supp.

65 (W.D. Tenn. 1987).

27/ This Court has observed that "[tJhe

remedies available under Title VII of the Civil

Rights Act of 1964 and under Section 1981...

augment each other and are not mutually exclusive."

Johnson v. Railway Express Agency, 421 U.S. 454,

459 (1975). Compensatory and punitive damages, as

well as equitable remedies, are available to a

prevailing §1981 plaintiff. Id. at 460. In

addition, the lower court have allowed jury trials

in §1981 actions since legal as well as equitable

remedies are available in such actions. Cf. Qurtis

v. Loether, 415 U.S. 189 (1974) (holding that jury

(continued. . . )

-34-

providing complete relief to victims of

racial harassment and deterring the

degrading and debilitating phenomenon of

racial harassment in the workplace.

The decision below shrinks the

“arsenal of weapons" available to combat

racial harassment in the workplace. In

light of the legislative history, judicial

decisions, and public policy which

squarely conflict with this result, the

decision below she 1“ be reversed by this

Court.

27/ (...contimmed)

trial is available in 42 U.S.C. §1982 actions).

See generally Comment, "Developments in the Law -

Section 1981," 15 Harv.Civ.R.-Civ.L.L.Rev. at 246-

50.

-35-

CONCLUSION

For the reasons stated above, the

decision of the court of appeals should be

reversed and the case remanded for a new

trial.

Dated:

December 3,

Respectfully submitted,

STEVEN R. SHAPIRO

(Counsel of Record)

JACQUELINE A. BERRIEN

JOHN A. POWELL

HELEN HERSHKOFF

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43 Street

New York, NY 10036

(212) 944-9800

ADAM STEIN

WILLIAM SIMPSON

NORTH CAROLINA CIVIL

LIBERTIES UNION

LEGAL FOUNDATION

813 Southeastern Bldg.

P. O. Box 3094

Greensboro, NC 27402

(919) 274-3841

1987

-36-

aos &

awed