William J. Brennan, Jr.

“ Obviously, as respondent conceded at oral argument, Tr. of Oral Arg. 30 (Feb. 29, 1987) , if an employer offers a black and a white applicant for employment the same written contract, but then tells the black employee that her working conditions will be much worse than those of the white hired for the same job because "there's a lot of harassment going on in this workplace and you have to agree to that," it would have to be concluded that the white and black had not enjoyed an equal right to make a contract. ”

“ The very same legislative history that supports our interpretation of § 1981 in Runyon also demonstrates that the 39th Congress intended, in the employment context, to go beyond protecting the freedmen from refusals to contract for their labor and from discriminatory decisions to discharge them. Section 1 of the Civil Rights Act was also designed to protect the freedmen from the imposition of working conditions that evidence an intent on the part of the employer not to contract on nondiscriminatory terms. ”

“ The question in a case in which an employee makes a § 1981 claim alleging racial harassment should be whether the acts constituting harassment were sufficiently severe or pervasive as effectively to belie any claim that the contract was entered into in a racially neutral manner. ”

“ I agree that the District Court erred when it instructed the jury as to petitioner's burden in proving her claim that McLean violated § 1981 by failing to promote her, because she is black, to an intermediate accounting clerk position. The District Court instructed the jury that Patterson had to prove not only that she was denied a promotion because of her race, but also that she was better qualified than the white employee who had allegedly received the promotion. ”

“ To be sure, there is much emphasis in the debates on the evils of the Black Codes. But there are also passages that indicate that Congress intended to reach private discrimination that posed an equal threat to the rights of the freedmen. See id., at 429-437, 88 S.Ct., at 2197-2202. Senator Trumbull, for example, promised to introduce a bill aimed not only at "local legislation," but also at any "prevailing public sentiment" that blacks in the South "should continue to be oppressed and in fact deprived of their freedom." ”

“ Rights as between an employer and employee simply are not involved in many § 1981 cases, and the Court's restrictive interpretation of § 1981, minimizing the overlap with Title VII, may also have the effect of restricting the availability of § 1981 as a remedy for discrimination in a host of contractual situations to which Title VII does not extend. ”

“ We suggested in McDonnell Douglas, for example, that a black plaintiff might be able to prove pretext by showing that the employer has promoted white employees who lack the qualifications the employer relies upon, or by proving the employer's "general policy and practice with respect to minority employment." ”

“ Similarly, not all workplace conduct that may be described as racial harassment affects an employee's right to make contracts free of discrimination. But racial harassment of sufficient severity may impinge upon that right, as explained in the text, and should be actionable under § 1981.↑ The Court suggests that overlap between § 1981 and Title VII interferes with Title VII's mediation and conciliation procedures. ”

“ Where a black employee demonstrat § that she has worked in conditions substantially different from those enjoyed by similarly situated white employees, and can show the necessary racial animus, a jury may infer that the black employee has not been afforded the same right to make an employment contract as white employees. ”

“ During the 10 years petitioner worked for McLean, white persons were repeatedly hired for more senior positions, without any notice of these job openings being posted, and without petitioner ever being informed of, let alone interviewed for, any of these opportunities. Id., at 1-93 to 1-97. Petitioner claimed to have received different treatment as to wage increases as well as promotion opportunities. Thus she testified that she had been denied a promised pay raise after her first six months at McLean, though white employees automatically received pay raises after six months. ”

“ In fact, however, petitioner testified that it was Stevenson and her supervisors who subjected her to racial harassment, rather than her co-workers. For example, petitioner testified that Stevenson told her on a number of occasions that "blacks are known to work slower than whites by nature," id., at 1-87 to 1-88, 2-80 to 2-81, or, as he put it in one instance, that "some animals [are] faster than other animals." Id., at 2-83. Stevenson also repeatedly suggested that a white would be abl to do petitioner's job better than she could. ”

“ The Court also noted that, in its original form, § 1982 had been part of § 1 of the Civil Rights Act of 1866, [1] and that § 2 of the 1866 Act provided for criminal penalties against any person who violated rights secured or protected by the Act "under color of any law, statute, ordinance, regulation, or custom." 392 U.S., at 424-426, 88 S.Ct., at 2195-2196. ”

“ In neither case can it be said that whites and blacks have had the same right to make an employment contract. [13] The Court's failure to consider such examples, and to explain the abundance of legislative history that confounds its claim that § 1981 unambiguously decrees the result it favors, underscore just how untenable is the Court's position. [14]
Having reached its decision based upon a supposedly literal reading of § 1981, the Court goes on to suggest that its grudging interpretation of this civil rights statute has the benefit of not undermining Title VII. Ante, at 180-182. ”

“ Applying the standards set forth above, I believe the evidence in this case brings petitioner's harassment claim firmly within the scope of § 1981. Petitioner testified at trial that during her 10 years at McLean she was subjected to racial slurs; given more work than white employees and assigned the most demeaning tasks; passed over for promotion, not informed of promotion opportunities, and not offered training for higher level jobs; denied wage increases routinely given other employees ”

“ These working conditions included the use of the whip as an incentive to work harder-the commonplace result of an entrenched attitude that " [y] ou cannot make the negro work without physical compulsion," id., at 16-and the practice of handing out severe and unequal punishment for perceived transgressions. See id., at 20 ("The habit [of corporal punishment] is so inveterate with a great many persons as to render, on the least provocation, the impulse to whip a negro almost irresistible") . ”

“ Pennsylvania, 458 U.S., at 390, n. 17, 102 S.Ct., at 3149-50, n. 17 (" [Section] 1981, because it is derived in part from the 1866 Act, has roots in the Thirteenth as well as the Fourteenth Amendment") . This result followed, the Court held, from the terms of the 1874 revision of the statutes. The revisers who prepared the codification had authority only to "revise, simplify, arrange, and consolidate" existing laws, to omit "redundant or obsolete" provisions, and to make suggestions for repeal. Act of June 27, 1866, 14 Stat. 74-75. See Runyon, 427 U.S., at 168, n. ”

“ No. 94-1558, p. 3 (1976) . Congress responded by passing an Act to permit the recovery of attorney's fees in civil rights cases, including those brought under § 1981.
Congress was well aware when it passed the 1976 Act that this Court had interpreted § 1981 to apply to private discrimination. The House Judiciary Committee Report had expressly stated:
"Section 1981 is frequently used to challenge employment discrimination based on race or color. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 [95 S.Ct. 1716, 44 L.Ed.2d 295] (1975) . ”

“ Justice Harlan in dissent conceded that the Court's interpretation of this exchange as supporting a broader reading of § 1 was "a conceivable one." 392 U.S., at 470, 88 S.Ct., at 2218-19.↑ See, e.g., Brief for Petitioners 12-16, Brief for Respondents 7-24, Brief for United States as Amicus Curiae 28-35, 38-51, and Brief for National Committee Against Discrimination in Housing et al. as Amici Curiae 9-39, in Jones v. Alfred H. Mayer Co., O.T. 1967, No. 45.↑ Report of C. Schurz, S. Exec. Doc. No. ”