John Paul Stevens

“ It is also difficult to discern why an employer who does not decide to treat black employees less favorably than white employees until after the contract of employment is first conceived is any less guilty of discriminating in the "making" of a contract. A contract is not just a piece of paper. Just as a single word is the skin of a living thought, so is a contract evidence of a vital, ongoing relationship between human beings. An at-will employee, such as petitioner, is not merely performing an existing contract; she is constantly remaking that contract. ”

“ Whenever significant new duties are assigned to the employee whether they better or worsen the relationship-the contract is amended and a new contract is made. Thus, if after the employment relationship is formed, the employer deliberately implements a policy of harassment of black employees, it has imposed a contractual term on them that is not the "same" as the contractual provisions that are "enjoyed by white citizens." Moreover, whether employed at will or for a fixed term, employees typically strive to achieve a more rewarding relationship with their employers. ”

“ Just as a qualified nonwhite child has a statutory right to equal access to a private school, so does a nonwhite applicant for employment have a statutory right to enter into a personal service contract with a private employer on the same terms as a white citizen. If an employer should place special obstacles in the path of a black job applicant-perhaps by requiring her to confront an openly biased and hostile interviewer-the interference with the statutory right to make contracts to the same extent "as is enjoyed by white citizens" would be plain. ”