Anthony Kennedy

“ In recent decades, state and federal legislation has been enacted to prohibit private racial discrimination in many aspects of our society. Whether Runyon's interpretation of § 1981 as prohibiting racial discrimination in the making and enforcement of private contracts is right or wrong as an original matter, it is certain that it is not inconsistent with the prevailing sense of justice in this country. To the contrary, Runyon is entirely consistent with our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin. ”

“ The plaintiff's ability to plead that the racial harassment is "severe or pervasive" should not allow him to bootstrap a challenge to the conditions of employment (actionable, if at all, under Title VII) into a claim under § 1981 that the employer refused to offer petitioner the "same right to . . . make" a contract. We think it clear that the conduct challenged by petitioner relates not to her employer's refusal to enter into a contract with her, but rather to the conditions of her employment. ”

“ Petitioner's claim that respondent violated § 1981 by failing to promote her, because of race, to a position as an intermediate accounting clerk is a different matter. As a preliminary point, we note that the Court of Appeals distinguished between petitioner's claims of racial harassment and discriminatory promotion, stating that although the former did not give rise to a discrete § 1981 claim, " [c] laims of racially discriminatory . . . promotion go to the very existence and nature of the employment contract and thus fall easily within § 1981's protection." ”

“ Another traditional justification for overruling a prior case is that a precedent may be a positive detriment to coherence and consistency in the law, either because of inherent confusion created by an unworkable decision, see, e.g., Continental T.V., Inc. ”

“ Only where the promotion rises to the level of an op ortunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981. Cf. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (refusal of law firm to accept associate into partnership) (Title VII) . Because respondent has not argued at any stage that petitioner's promotion claim is not cognizable under § 1981, we need not address the issue further here.
This brings us to the question of the District Court's jury instructions on petitioner's promotion claim. ”