# Amicus Curiae Brief — Patterson v. McLean Credit Union

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 164

## Text

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

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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...)

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1013%3A11. Public record. Not legal advice.