Recent Developments in the District of Colorado Under 42 U.s.c. Section 1981
| Publication year | 1990 |
| Pages | 857 |
| Citation | Vol. 19 No. 5 Pg. 857 |
1990, May, Pg. 857. Recent Developments in the District of Colorado Under 42 U.S.C. Section 1981
The Labor Law Section wishes to thank Judge Zita Weinshienk for her presentation to the Section on December 21, 1989, when Judge Weinshienk discussed, among other points, local developments that have occurred under 42 U.S.C. § 1981 since Patterson v. McLean Credit Union.(fn1)
Section 1981 ("§ 1981") of 42 U.S.C., the Civil Rights Act of 1866 ("Act"), provides, in part:
All persons within the jurisdiction of the United States shall have the same right... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws ... as is enjoyed by white citizens....
Since the U.S. Supreme Court held that § 1981 applies to private acts of discrimination,(fn2) plaintiff-employees frequently have used the Act, together with Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended,(fn3) to redress employment discrimination. This article discusses the use of § 1981 in such cases, the restrictions placed on its use by a May 1989 U.S. Supreme Court decision, Patterson v. McLean Credit Union,(fn4) and the mixed results of subsequent cases in the U.S. District Court for the District of Colorado.
Although claims under § 1981 and Title VII bear certain similarities, § 1981 offers plaintiffs advantages not available under Title VII. For example, plaintiffs need not file a "charge" of discrimination under § 1981, as they must under Title VII.(fn5) The statute of limitations period for § 1981 claims is longer because it relies on state statutes of limitations for "personal injury" actions.(fn6) Plaintiffs may claim legal relief, including compensatory and punitive damages, under § 1981, but they are limited to equitable relief under Title VII.(fn7) Further, the plaintiff claiming such legal relief has a right to a jury trial under § 1981,(fn8) but not under Title VII.(fn9)
For obvious reasons, plaintiffs have sought to expand the reach of § 1981. However, in Patterson, the U.S. Supreme Court dramatically cut back the scope of the Act.
In Patterson, the black plaintiff alleged that her employer had subjected her to racial harassment, failed to promote her and then discharged her because of her race, all in violation of § 1981. The plaintiff also claimed that the conduct constituted intentional infliction of emotional distress under North Carolina tort law. The district court dismissed the claim of racial harassment as not actionable under § 1981 and directed a verdict for the credit union on the claim of intentional infliction of emotional distress. The court permitted the claims based on discriminatory discharge and failure to promote to go to the jury. The jury returned a verdict in favor of the credit union on both claims.(fn10)
The plaintiff appealed to the Fourth Circuit, raising two arguments. First, she asserted that the district court had erred in dismissing the claim of racial harassment. Second, she challenged the court's jury instruction on the failure-to-promote claim, because the instruction had required the plaintiff to show that she was better qualified than the white employee who was promoted in her place.(fn11)
The Fourth Circuit affirmed. It reasoned that racial harassment claims are not cognizable under § 1981, because "racial harassment does not abridge the right to 'make' and 'enforce' contracts. . . ."(fn12) The court also upheld the trial court's jury instruction requiring the plaintiff to show that she was better qualified than the employee selected for the promotion.(fn13)
The U.S. Supreme Court, after accepting certiorari of the Fourth Circuit's decision,(fn14) asked that the parties brief "[w]hether or not the interpretation of 42 U.S.C. § 1981 adopted by this Court
The Court held that claims of racial harassment relating to employment are not actionable under § 1981 because § 1981 by its terms protects only two enumerated rights: the right to make contracts and the right to enforce contracts. Under that rationale, § 1981 does not apply to conduct occurring after the formation of a contract. The Court explained its reasoning as follows:
By its plain terms,... §...
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