Patterson v. McLean Credit Union Brief for Petitioner

    * *

III

No. 87-107

In t h e

Supreme (Euurt uf %  llnxUb §>UUa
Octobeb T ebm, 1987

B renda P atterson,
Petitioner,

vs.

McLean Cbedit U nion,
Respondent.

ON WBIT OF CEBTIOBABI TO TH E UNITED STATES COURT 
OF APPEALS FOB THE FOUBTH CIBCU1T

BRIEF FOR PETITIONER

J ulius LeV on ne Chamuebs 
Charles S tephen R alston*

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

P enda D. H aib
800 15th Street, N.W. 
Washington, D.C. 20010 
(202) 038-3278

H arold L. K ennedy, III 
H arvey L. K ennedy 

Kennedy, Kennedy, 
Kennedy and Kennedy 

710 First Union Building 
Winston-Salem, NC 27101 
(919) 721-9207

Attorneys for Petitioner 

•Counsel of Record



QUESTIONS PRESENTED

1. Does 42 U.S.C. § 1981 encompass 
a claim of racial discrimination in the 
terms and conditions of employment, 
including a claim that petitioner was 
harassed because of her race?

2. Did the district court err in 
instructing the jury that for petitioner 
to prevail on her claim of discrimination
in promotion she must prove that she was

»•more gualified than the white person who 
received the promotion?,*

* All parties in this matter are set 
forth in the caption.

l



i

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ............. i
TABLE OF CONTENTS...............  ii
TABLE OF AU T H O R I T I E S ........... iv
CITATIONS TO OPINIONS BELOW . . .  1
JURISDICTION ...................  2
STATUTE INVOLVED ...............  3
STATEMENT OF THE C A S E ........... 3
SUMMARY OF ARGUMENT............. 19
A R G U M E N T .......................  2 6
I. SECTION 1981 PROVIDES A

CAUSE OF ACTION FOR RACIAL 
DISCRIMINATION IN THE TERMS 
AND CONDITIONS OF EMPLOY­
MENT ........................ 2 6
A. The Court Has Repeated­

ly Recognized That Sec­
tion 1981 Prohibits All 
Racial Discrimination 
Affecting the Right to 
Contract 26

Page
B. The Plain Language of 

Section 1981 Prohibits 
Racial Discrimination
in the Terms and Con- ,
ditions of an Employ­
ment Contract........  37

C. Protection Against Dis­
crimination in the Terms 
and Conditions of Employ­
ment Is Mandated by the 
Broad Purpose of Section 
1 9 8 1 .................  39

II. DISCRIMINATORY INTENT CAN BE 
CONCLUSIVELY ESTABLISHED 
WITHOUT PROOF OF PLAINTIFF'S 
SUPERIOR QUALIFICATIONS . . 63
A. The Fourth Circuit's

Ruling Eliminates At 
Least Four Ways In 
Which the Plaintiff May 
Prove Discriminatory 
Intent Without Estab­
lishing Her Superior 
Qualifications . . . .  67

B. Proof of Superior Quali­
fications Is Not Neces­
sary To Establish a
Prima Facie Case . . .  88

C O N C L U S I O N ..................... 102

1



TABLE OF AUTHORITIES
Cases: Page
Anderson v. Bessemer City,

470 U.S. 564 (1985)........... 84
Anderson v. Bessemer City,

717 F .2d 149 (4th Cir.
1983), rev'd. 470 U.S.
564 (1985)...................  18

Bell v. Birmingham Linen 
Service, 715 F.2d 1552 
(11th Cir. 1983), cert, 
denied, 104 S. Ct. 2385
(1985) .......................  69

Block v. R.H. Macy & Co.,
712 F .2d 1241 (8th Cir.
1983) .....................  35, 62

Board of Trustees of Keene State 
College v. Sweeney, 439 U.S.
24 (1978).....................  77

Box v. A & P Tea Co., 772 F.2d 
1372 (7th Cir. 1985), cert, 
denied, 106 S.Ct. 3311
(1986)    74

Burdine v. Texas Dept, of 
Community Affairs, 608 F.2d 
563 (5th Cir. 1979)   94

Burrus v. United Telephone Co.,
683 F .2d 339 (10th Cir.),
cert, denied, 459 U.S. 1071
(1982)........................ 97

IV

Cases:
Carmichael v. Birmingham Saw 

Works, 738 F .2d 1126 (11th 
Cir. 1 9 8 4 ) ...................  74

Carter v. Duncan-Huggins,
Ltd., 727 F.2d 1225 (D.C.
Cir. 1984).................  35, 78

Clark v. Universal Builders,
501 F.2d 324 (7th Cir.),
cert, denied, 419 U.S. 1070
(1974)........................ 36

Curtis v. Loether, 415 U.S. 189
(1974)........................ 59

Eastland v. Tennessee Valley 
Authority, 704 F.2d 613 
(11th Cir.), modified on 
other grounds, 714 F.2d 1066 
(1983), cert, denied, 465
U.S. 1066 (1984)............. 88

Erebia v. Chrysler Plastic
Products Corp., 772 F.2d 1250 
(6th Cir. 1985), cert, denied,
106 S.Ct. 1197 (1986)........  35

Fisher v. Dillard University,
499 F. Supp. 525 (E.D. La.
1980)   62

Foster v. Tandy Corp., 44 Fair 
Empl. Prac. Cases 1518 (4th 
Cir., Sept. 16, 1987) . . . .  98

Foster v. Areata Associates,
Inc., 772 F .2d 1453 (9th Cir.
1985), cert, denied, 106
S. Ct. 1267 (1986)...........96-97

v



Cases: Page
Furnco Construction Corp. v.

Waters, 438 U.S. 567
(1978)........  24, 64, 65, 77, 79

92, 95, 96, 100
General Building Contractors 

v. Pennsylvania, 458 U.S.
375 (1982)...................  41

Goodman v. Lukens Steel Co.,
482 U.S. ___, 107 S.Ct. 2617,
(1987)............. 19, 27, 28, 37

Hamilton v. Rodgers, 791 F.2d
439 (5th Cir. 1 9 8 6 ) ..........  35

Hawkins v. Anheuser-Busch, Inc.,
697 F .2d 810 (8th Cir. 1983) .82,96

Hishon v. King & Spaulding,
467 U.S. 69 (1984)........... 38

Holmes v. Bevilacqua, 794 F.2d 
142 (4th Cir. 1986) (en 
banc)......................... 98,99

Hunter v. Allis-Chalmers Corp.,
797 F .2d 1417 (7th Cir.
1986)........................ 35, 60

Jayasinghe v. Bethlehem Steel 
Corp., 760 F .2d 132 (7th Cir.
1985)   96

Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454
(1975) . .20, 31-32, 37, 59, 60, 61

vi

Page
Jones v. Mayer Co., 392 U.S.

409 (1968)........ 20, 21, 31, 41,
42, 47, 55

Joshi v. Florida State University 
Health Center, 763 F.2d 1227 
(11th Cir. 1 9 8 5 ) .......  83, 88

Kilgo v.Bowman Transporta­
tion, 789 F .2d 859 (11th 
Cir. 1 9 8 6 ) .................  84

Lowery v. WMC-TV, 658 F. Supp.
1240 (W. D. Tenn. 1987) . . .  88

Lucero v. Beth Israel Hospital,
479 F. Supp. 452 (D. Colo.
1979)   35

Lynn v. Regents of University 
of California, 656 F.2d 1337 
(9th Cir. 1981), cert, denied,
459 U.S. 823 (1982)   97

Lytle v. Household Manufacturing 
Co., No. 86-1097, Slip op.
(4th Cir., October 20, 1987) . 98

McDonald v. Santa Fe Trail Trans­
portation Co., 427 U.S. 273
(1976)............. 20, 32, 33, 40

McDonald v. Verble, 622 F .2d
1227 (6th Cir. 1 9 8 0 ) ......  35

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)... passim

Cases:

vii



Memphis v. Greene, 451 U.S. 100 
(1981) ...............  34, 43,

Miles v. MNC Corp., 750 F.2d 867 
(11th Cir. 1 9 8 5 ) ........... 75,

Mitchell v. Baldridge, 759 F.2d 
80 (D.C. Cir. 1985) ........

Moore v. City of Charlotte,
754 F .2d 1100 (4th Cir), 
cert, denied, 105 S. Ct. 3489 
(1985).....................  98,

Nazaire v. Trans World Airlines, 
Inc., 807 F .2d 1372 (7th Cir.
1986) ........................

Newbern v. Lake Lorelei, 308 
F. Supp. 407 (S. D. Ohio 
1968) ........................

Ostroff v. Employment Exchange, 
683 F .2d 302 (9th Cir. 1982) .

Pullman-Standard v. Swint,
456 U.S. 273 (1982) ........

Ramsey v. American Air Filter 
Co., 772 F .2d 1303 (7th Cir. 
1985) ................... 35, 77

Reed v. Lockheed Aircraft Corp., 
613 F .2d 757 (9th Cir. 1980) .

Robinson v. Montgomery Ward,
823 F.2d 793 (4th Cir. 1987), 
petition for cert, filed,
No. 87-801 (November 12,
1987) .........................

Cases:

76

97

99

35

36 

74 

68

■78

74

98

Page

47

viii

Cases: Page
Runyon v. McCrary, 427 U.S. 160

(1976)............. 20, 32, 33, 62
Saint Francis College v. Al-

Khazraji, 481 U.S. ___, 107
S.Ct. 2022 (1987) . . . .19, 27-28

Saunders v. General Services 
Corp., Slip. op. No. 86- 
0229-R (E.D. Va. 1987),
(appeal pending, No. 87-2175
(4th Cir. ) ...................  36

Shaare Tefila Congregation v.
Cobb, 481 U.S. ____, 107 S.Ct.
2019 (1987) ........... 20, to CD 30

Teamsters v. United States, 
431 U.S. 324 (1977). 71, 72, 74, 78

Texas Dept, of Community Affairs 
v. Burdine, 450 U.S. 248 
(1981) ...................... passim

Tillman v. Wheaton-Haven Recre­
ation Ass'n, 410 U.S. 431 
(1973)............. 20, 29, 30, 31

Trans World Airlines v. Thurston,
469 U.S. Ill (1985) . . 68, 69, 72

United States Postal Service v. 
Aikens, 460 U.S. 711
(1983). .64, 68, 72, 75, 77, 78, 89

Van Houdnos v. 
648 (7th Cir.

Evans, 
1986).

807 F .2d
75

lx



Cases: Page

Webb v. City of Chester, 111.,
813 F.2d 824 (7th Cir. 1987) . 62

Wilmington v. J. I. Case Co.,
793 F. 2d 909 (8th Cir.
1986).......................... 35

Young v. Lehman, 748 F.2d 194
(4th Cir. 1984) .............  18

Constitution and Statutes: 
U.S. Constitution, Seventh

A m e n d m e n t ...................  59
U.S. Constitution, Fourteenth

Amendment.....................  42
Civil Rights Act of

1866 ........................passim
Civil Rights Act of 1964,

Title V I I ............. 59, 60, 61
42 U.S.C. § 1 9 8 1 ..............passim
42 U.S.C.§ 1982 . 20, 21, 28, 29, 31, 33, 34

Other Authorities:
Congressional Globe 

1st Sess. (1866)
, 39th Cong., 
........ 48-54, 58

Sen. Exec. Doc. No. 2, 39th 
Cong., 1st Sess.
(1865)................... 41» 43-46

x

Other Authorities:
Sen. Exec. Doc. No. 6, 39th

Cong., 2d Sess. (1867) . . . .47-49
H.R. Rep. No. 30, Report of 

the Joint Committee on 
Reconstruction, 39th Cong.,
1st Sess. (1866)........... 42, 46

J. H. Franklin, Reconstruction
After the Civil War (1961) . . 44

Restatement (Second) of
Contracts.....................  38

xi



No. 87-107

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

Brenda Patterson,

Petitioner,
vs.

McLean Credit Union,

Respondent.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONER

CITATIONS TO OPINIONS BELOW 
The opinion of the court of appeals 

is reported at 805 F.2d 1143 and is set 
out in the Appendix to the Petition for 
Writ of Certiorari (Pet. App.) at pages 
la-20a. The order of the court of



2
appeals denying rehearing is set out in 
that Appendix at pages 21a-22a. The oral 
ruling of the district court granting in 
part respondent's motion to dismiss is 
unreported and is set out in the Petition 
Appendix at pages 23a-25a. The judgment 
of the district court dismissing the case 
based on the jury's verdict is set out in 
the Petition Appendix at pages 26a-28a.

JURISDICTION
The judgment of the court of appeals 

was entered on November 25, 1986. Pet. 
App. la. The court of appeals entered an 
order denying a timely petition for 
rehearing en banc on March 19, 1987. 
Pet. App. 22a. On June 5, 1987, Chief 
Justice Rehnquist entered an order 
extending the time for filing a Petition 
for a Writ of Certiorari to and including 
July 17, 1987. The Petition for a Writ 
of Certiorari was filed on July 17, 1987, 
and was granted on October 5, 1987. The

3
jurisdiction of the Court is invoked 
under 28 U.S.C. § 1254(1).

STATUTE INVOLVED
This case involves 42 U.S.C. § 1981, 

which provides:
All persons within the 
jurisdiction of the United 
States shall have the same t 
right in every State and 
Territory to make and enforce 
contracts, to sue, be parties, 
give evidence, and to the full 
and equal benefit of all laws 
and proceedings for the 
security of persons and 
property as is enjoyed by white 
citizens, and shall be subject 
to like punishment, pains, 
penalties, taxes, licenses, and 
exactions of every kind, and to 
no other.

(R. S . § 1977) .
STATEMENT OF THE CASE 

This is an action under 42 U.S.C.
§ 1981, to redress discrimination in
employment on the basis of race.

Petitioner, Brenda Patterson, was 
employed by respondent, McLean Credit* 
Union, from May, 5, 1972, until July 19,



4
1982. TR1 1-20, 1-50. During that time
period, McLean Credit Union provided 
savings and loan services for employees 
of McLean Trucking Company. TR 3-79 to 
3-80, 4-20 to 4-21. McLean employed
between eight and ten "general office" 
employees, including tellers, secretaries 
and accounting clerks, as well as several 
other supervisors, managers and 
professional employees. TR 3-82 to 3-83.

During Patterson's employment, 
Robert Stevenson served as President and 
General Manager of the Credit Union. TR
3- 79. Stevenson made all of the 
company's major personnel decisions 
governing the general office workers, 
including hiring, firing and salary 
levels. TR 3-81 to 3-82, 3-123 to 3-124,
4- 7.

^■References are to Transcript of 
Trial, November 12, 13, 14, 15, 18, 1985.

5
Brenda Patterson was hired by 

Stevenson as an accounting clerk. TR 
2-115 to 2-116. Her primary responsi­
bility was filing, although she 
occasionally served as a backup teller. 
TR 1-98 to 1-120. During her pre­
employment interview Stevenson informed 
Patterson "that I was going to be working 
with all white women ... and that 
probably they wouldn't like me because 
they weren't used to working with 
blacks." TR 1-19. Stevenson himself 
testified: "I also had no experience
working with black people, and from the 
very beginning I tried to counsel with 
Brenda." TR 3-97.

Throughout the time she worked at 
McLean Credit Union, Patterson was 
subjected to abusive and demeaning terms 
and conditions of employment. Unlike the 
other clerical workers, who were white, 
Patterson was assigned to dust and sweep



6
the office. TR 1-31. Patterson was 
constantly scrutinized and criticized in 
a manner not practiced with respect to 
the white office workers. Stevenson 
frequently stood near Patterson's desk, 
staring at her for several minutes at a
time. TR 1-38 to 1-39, 1-90 to 1-91.
This close observation, which was not
given to white clerical employees, made
Patterson nervous and disturbed her
concentration on her work. TR 1-38 to 
1-39, 2-134 to 2-135.

When white employees made mistakes, 
they were counselled in private, 
individual conferences with their 
supervisor. TR 1-40. However, when 
Patterson made an error, she was singled 
out and criticized by name in group staff 
meetings. TR 1-40 to 1-41, 1-89 to 1-90.

Throughout her employment, Patterson 
was given an oppressive work load, much 
in excess of that of her white co-

7
workers. TR 1-27 to 1-29, 1-81 to 1-83,
1-85 to 1-87. She was required to help 
white clerical workers with their tasks, 
but no one was ever assigned to help 
Patterson. TR 1-37 to 1-38, 1-87, 2-129. 
Even when her immediate supervisor timed 
her tasks and determined that Patterson 
had too much work to do, Stevenson 
continued to add tasks. TR 1-85 to 1-87, 
1-126 to 1-127, 2-126 to 2-128. He then
criticized Patterson for her alleged 
’slowness." When Patterson complained 
about the amount of work, Stevenson 
replied: "Well, blacks are known to work
slower than whites by nature." TR 1-88.

Company witnesses did not deny this 
general policy of racial discrimination. 
In fact, Patterson's supervisor, 
testifying on behalf of the company, 
confirmed that Stevenson had stated on 
numerous occasions that he was, not 
interested in hiring blacks and that the



8
company's Vice-President and Secretary 
was aware of Stevenson's attitude. TR 
4-89, 4-49. Stevenson's attitudes toward 
black workers is also revealed in remarks 
he made to another supervisor. In 1980, 
this supervisor, Warren Behling, 
recommended a black candidate for the 
position of computer operator. After 
Stevenson had met the applicant, he 
telephoned Behling to ask: "why the hell
didn't you tell me this person was 
black?" TR 2-161. Behling replied that 
he did not think that it mattered. Id. 
Stevenson then stated: "Well it does.
We don't need any more problems around 
here." Id. Stevenson further commented: 
"We will interview this person but we 
will not hire him and we will search for 
additional people who are not black." 
Id. A less qualified white worker was 
subsequently hired into the computer

9
operator position. TR 2-162.2

During the entire period that 
Patterson worked at McLean Credit Union, 
all of the supervisors were white. TR 
1-29, 3-128 to 3-129. In the thirty-two
years that Stevenson worked there, the 
Company employed only a total of three 
black workers. TR 3-125 to 3-126, 3-128 
to 3-129, 3-195 to 3-196, 4-90. All
three of these black workers were given 
filing jobs. TR 2-115 to 2-116, 3-127.
When secretarial or bookkeeping positions 
opened, white workers were hired or 
promoted into the positions, while the 
black workers remained in the file room. 
TR 4-11 to 4-12.

When she was hired at McLean Credit 
Union, Patterson told Stevenson that she 
would accept an entry-level file clerk 
job, but that she was interested in

, ^ee 1R 1—44 to 1-45 (black job
applicant told "he can just forget it").



10
advancing to bookkeeping or secretarial 
positions. TR 1-22 to 1-23. Yet, the 
company did not post job opportunities 
and Patterson was never able to find out 
about promotion opportunities until after 
the decisions had been made. TR 1-45 to 
1-46, 1-91 to 1-92, 3-162 to 3-164.
Several white workers with less 
education, less seniority and less 
experience than Patterson were hired or 
promoted into secretarial and bookkeeping 
positions, while Patterson was not. TR 
1-92 to 1-96. In each case, the 
selection of workers to hire and promote 
was made by Stevenson and the other white 
supervisors on the basis of their 
subjective judgments. TR 1-46, 1-92.

iif

In 1974, Susan Williamson, a white 
woman, was hired into the position of 
accountant junior, a bookkeeping 
position. TR 3-105 to 3-106. Patterson, 
who had been working as an accounting

11
file clerk for two years, was never given 
the opportunity to apply for or transfer 
to the accountant junior position. 
TR 1-45 to 1-46, 1-91 to 1-92. In 1982, 
Williamson was promoted into the job of 
accountant clerk intermediate. TR 3-100, 
4-69. Again Patterson had no knowledge 

the vacancy and no opportunity to 
apply. TR 1-46 .to 1-47.

Patterson was a college graduate 
with more formal education and more 
seniority than Williamson. TR 3,-11 to 
1-12, 1-21, 1-47 to 1-48. Prior fto her
promotion, Williamson was given on-the-

'i '
job training in the duties of the 
accountant intermediate position. TR 
1-48 to 1-49, 3-187 to 3-188. This
training was not available to Patterson. 
Id. One of Williamson's supervisors 

that Williamson did not grasp 
accounting functions, TR 2-190, and that 
she was more interested in doing her



12
crocheting and reading her magazines than 
in doing her job. TR 2-191. This 
supervisor testified that the quality of 
Williamson's work was below average. TR 
2-159.

In 1982, during her last year of 
employment with McLean Credit Union, 
Patterson was denied a merit increase in 
her salary that was given to white 
employee^. TR 2-129 to 2-130. 
Patterson's supervisor testified that 
this increase was denied because of 
Patterson's attitude problems. TR 4-46. 
However, Patterson's annual evaluation, 
prepared by the same supervisor one month 
earlier, indicated that Patterson's 
attitude was above average, and included 
the comment "Actually Goes Out [of her] 
Way To Be Pleasant With Everyone." TR 
1-63 to 1-64, 4-57 to 4-58, 4-61.

On July 19, 1982, Patterson was laid 
off and subsequently terminated.

13

TR 1-50• white employees with less 
seniority than Patterson were retained. 
TR 1-57 to 1-58.

District_Court Proceedings
Patterson brought this lawsuit 

against McLean Credit Union on January 
25, 1984, in the United States District
Court for the Middle District of North 
Carolina. Patterson alleged that the 
company was liable under 42 U.S.C.
§ 1981, for subjecting her to racial
harassment and discriminating against her 
on the basis of her race with respect to 
promotions and layoffs. j a 7-9. The 
alleged racial harassment included 
subjecting plaintiff to racial slurs, 
assigning her excessive work and denying 
her a merit increase in her salary, id. 
In addition, plaintiff alleged, under 
pendent jurisdiction, the state tort 
action of intentional infliction of 
mental and emotional distress. j a 15.



14
The case was tried before a jury 

from November 12 to November 18, 1985.
After the presentation of the plaintiff's 
evidence, the district court ruled that 
section 1981 does not provide a remedy 
for racial harassment by the employer. 
Pet. App. 23a-25a. The court dismissed 
all of the claims except the claim of 
discrimination in the promotion of Susan 
Williamson and in the layoff and 
subsequent dismissal of Patterson. The 
court thus dismissed Patterson's claims 
under section 1981 of racial harassment 
and salary discrimination, as well as the 
state law claim of intentional infliction 
of mental and emotional distress. Pet. 
App. 24a-25a.3

At the close of all of the evidence, 
the district court denied the defendant's 
motion for a direct verdict on the

3 The district court's ruling
dismissing the state tort claim is not 
before the Court.

15
promotion claim. TR 3-46 to 3-51, 3-76. 
However, the court instructed the jury 
that to prevail on the promotion claim, 
plaintiff had to prove that she was more 
qualified for the position than was Susan 
Williamson, the white employee who 
received the job.4 The court charged the

4The district court instructed the 
lury on the promotion claim as follows:

In order to carry her burden on 
[the promotion claim], the 
plaintiff must establish (1) 
that a promotion was in fact 
g i v e n  to S u s a n  H o w a r d  
Williamson; (2) that the 
plaintiff had expressed an 
interest in the promotion, 
plaintiff may satisfy this 
requirement by showing that she 
had e x p r es s ed  a general 
interest in advancing as 
opportunities arose within the 
credit union; and (3) that 
Bl.aintiff was better qualified 
-or— the position received by 
Susan— Howard Williamson than 

— Susan Howard Williamson; 
and. (4) that plaintiff was 
denied the promotion because of her race.

* **
With regard to the fourth

(continued...)



16
jury that, in addition to proving that 
"McLean's intentional discrimination 
against her because of her race was the 
real reason that she did not receive the 
promotion," Patterson had to prove that 
she was better qualified than was Susan 
Williamson for the position that 
Williamson ultimately received. JA 42-43.

4 (...continued)
requirement, plaintiff offered 
evidence tending to show that 
she had not been trained for 
the job of a c c o u n t a n t  
intermediate because of her 
race and was thus denied the 
promotion because of her race.

JA 40-41 (emphasis added).
The court later charged:
[I]t is n e c e s s a r y  that 
[plaintiff] satisfy you by a 
preponderance of the evidence 
that she was more qualified to 
receive the promotion to the 
a c c o u n t a n t  i n t e r m e d i a t e  
position than was Susan Howard 
Williamson and that McLean's 
intentional discrimination 
against her because of her race 
was the real reason that she 
did not receive the promotion.

JA 42-43 (emphasis added).

17
The court explained this instruction:

. . . the law in the Fourth 
Circuit seems to be that in 
order to make out a prima facie 
case, you must show that you 
are better qualified than the 
person who received [the 
promotion], and I have so 
instructed the jury.

JA 71. Plaintiffs' counsel specifically 
objected to this part of the charge. id. 
The jury returned a verdict in favor of 
the defendant employer and the district 
court dismissed the case in its entirety. 
Pet. App. 26a-28a.

Court_of Appeals Proceedings
The United States Court of Appeals 

for the Fourth Circuit affirmed the 
district court. The Fourth Circuit held 
that section 1981 covers racial 
discrimination only in hiring, firing and 
promotion, since those matters "go to the 
very existence and nature of the 
employment contract." Pet. App. 8a. 
Characterizing section 1981 as a "more 
narrow prohibition" than Title VII, the



18
court ruled that racial harassment 
relates to the terms and conditions of 
employment and, therefore, does not 
abridge the right to make and enforce 
employment contracts that is conferred by 
section 1981. Pet. App. 8a-9a.

The Fourth Circuit also held that 
the jury charge on the promotion claim 
was proper. The court noted that this 
case involves a situation in which "an 
e m p l o y e r  had a dv an ce d s up erior 
q u a l i f i c a t i o n  as a l e g i t i m a t e  
nondiscriminatory reason for favoring 
another employee over the claimant." 
Pet. App. 19a. Relying on Fourth Circuit 
precedents,5 the court ruled that in this 
situation, "the burden [is] upon the 
c l ai m a n t  to prove her superior 
qualifications." Pet. App. 19a-20a.

5Young v. Lehman. 748 F.2d 194, 197- 
198 (4th Cir. 1984); Anderson v. Bessemer 
City. 717 F . 2d 149, 154 (4th Cir. 1983),
rev1d . 470 U.S. 564 (1985).

19
A timely petition for rehearing and 

suggestion for rehearing en banc was 
denied. Pet. App. 21a-22a.

SUMMARY OF ARGUMENT
I. Racial discrimination in the terms 
and conditions of employment, including 
racial harassment and salary discrimi­
nation, interferes with the right to make 
and enforce contracts and discourages the 
exercise of this protected right. Last 
Term, the Court reaffirmed that the right 
to make and enforce contracts "may not be

l '
interfered with on racial ‘grounds,
Goodman v. Lukens Steel Co., 482 U.S. __,
107 S.Ct. 2617, 2621 (1987), and that
section 1981 forbids all racial 
discrimination in the making of private 
as well as public contracts," Saint 
Francis College v, Al-Khazraiif 481 U.S.
---, 107 S.Ct. 2022, (1987). The Court
i-n Goodman upheld findings that 
toleration of a pattern of racial



20
harassment of employees violated section 
1981. Id. Also last Term the Court held 
that racial harassment and vandalism of a 
synagogue violated the owner's rights 
under 42 U.S.C. § 1982 to purchase and
h o l d  property. Shaare---T e f i l a.
C o n g r e g a t i o n  v. Cobb, 481 U.S. --- , 107
S.Ct. 2019 (1987).

These recent decisions follow a long 
line of cases interpreting section 1 of 
the Civil Rights Act of 1866 to prohibit 
racial discrimination that interferes 
with, or discourages the exercise of, the 
right to contract or to purchase and 
lease property.6 For example, in Tillman 
v. Wheaton Haven Recreation— Association , 
410 U.S. 431, 437 (1973), the Court held

6 Jones v. Maver Co . . , 392 U.S. 409
( 19 6 8) ; Tillman v. Wheaton--Haven
Recreation Ass'n, 410 U.S. 431 (1973),
Johnson v. Railway Express Agency Inc,., 
421 U.S. 454 (1975); Runyon v. McCrary,
427 U.S. 160 (1976); McDonald v. Santa Fe 
Trail Transportation Co, , 427 U.S. 273 
(1976).

21
that 42 U.S.C. § 1982 prohibits
discrimination with respect to the entire 
"bundle bt rights for which an individual

.1
pays when buying or leasing" property.

The Court's rulings that section 
1981 prohibits "all racial discrimination 
. . . with respect to" the right to make 
and enforce contracts, Jones v. Maver 
Co.. 392 U.S. 409, 436 (1968), are firmly
grounded in the plain language of section 
1981 and the legislative history of the 
provision. Section 1981 guarantees to 
black persons the "same" right to make 
and enforce a contract as is afforded to 
white persons. The lower court's
limitation of section 1981's coverage to 
hiring, firing and promotion means that 
the only right that is protected is the 
right to make a contract on unequal 
terms.

The legislative history of section 
1981 shows that congress in 1866 was not



22
primarily interested in protecting blacks 
from discrimination in hiring, firing and 
promotion. The former slaveowners in the 
Reconstruction Era were all too eager to 
hire and retain black labor. These 
southern planters devised schemes to 
continue employing black labor under the 
same onerous terms and conditions that 
prevailed prior to emancipation. The 
Black Codes did not prevent freedmen from 
entering into contracts. Instead, they 
imposed detailed, draconian terms and 
conditions of employment. Congress
intentionally drafted a broad and 
comprehensive provision, directed at a 
variety of practices, including the harsh 
treatment of black workers, refusals to 
pay black workers, conspiracies to fix a 
maximum wage for black labor, and laws 
that allowed black employees to be 
whipped and compelled them to work from 
"sunrise to sunset." The Fourth

23

Circuit's limitation of section 1981's 
scope would exclude from coverage most of
the problems that the provision was
intended to address.

S e c t i o n 19 8 1 ' s cove rage o f
discriminatory terms and conditions of
employment, such as racial, harassment, is
important because section 1981 provides 
remedies not available to plaintiffs 
under Title VII. Compensatory and 
punitive damages are particulary 
appropriate as a remedy for racially 
discriminatory working conditions. Such 
violations often are egregious, and yet 
may not result in a significant backpay 
award under Title VII. Section 1981's 
protection from discriminatory terms and 
conditions of contract also is important 
in areas such as private education, where 
many institutions and programs are not 
covered by any other federal anti- 
discrimination statute.



24
Because section 1981 provides a 

cause of action to remedy discriminatory 
terms and conditions of employment, 
plaintiff's claims of racial harassment 
and salary discrimination were improperly 
dismissed.
II. A plaintiff may prove that she was 
denied a promotion on the basis of race 
w i t h o u t  e s t a b l i s h i n g  that her 
qualifications are superior to those of 
the person selected for the promotion. 
Even when the employer articulates the 
selectee's superior qualifications as the 
reason for its decision, the plaintiff's 
proof that the employer's reason is 
pretextual may "take a variety of forms." 
Furnco Construction Corp. v. Waters. 438 
U.S. 567, 578 (1978).

For example, the plaintiff could 
show that the employer did not actually 
rely on comparative qualifications by 
introducing evidence that the employer

25
was not aware o f the candidates'
qualifications at the

1
time the decision

was made, that the employer did not
actually consider the plaintiff for the
job or that the employer normally made 
promotions on the basis of seniority. In 
addition, the plaintiff could introduce 
direct or circumstantial evidence from 
which the factfinder could conclude that 
the employer had a policy of racial 
discrimination. The jury instruction in 
this case, charging that plaintiff had 
the burden of proving that she was more 
qualified than the white person who 
received the promotion, prevented the 
jury from considering whether the 
totality of plaintiff's evidence 
established discriminatory intent.

It follows from the fact that proof 
of superior qualifications is not 
necessary for the plaintiff to prevail on 
the merits that such proof is not



26
necessary to establish a prima facie 
case. The Court's precedents make clear 
that the plaintiff need only show that 
she met the minimum qualifications for 
the job in order to meet the 
"qualifications" element of the prima 
facie case. Alternatively, the plaintiff 
can make out a prima facie case through 
introduction of direct or circumstantial 
evidence of a policy of racial 
discrimination.

ARGUMENT
I.

SECTION 1981 PROVIDES A CAUSE OF ACTION 
FOR RACIAL DISCRIMINATION IN THE TERMS 
AND CONDITIONS OF EMPLOYMENT
A. The Court Has Repeatedly Recognized 

That Section 1981 Prohibits All 
Racial Discrimination Affecting the 
Right to Contract____________________
The Fourth Circuit's "narrow"

reading of section 1981, to protect
against discrimination only in hiring,
firing and promotion, is inconsistent
with the Court's repeated rulings that

section 1981's scope is broad and 
comprehensive. Just this past Term, the 
Court specifically indicated that section 
1 of the 1866 Civil Rights Act covers 
racial discrimination that interferes 
with the enjoyment of contract rights. 
In Goodman v. Lukens Steel Co., 482 U .S .
___/ 107 S.Ct. 2617 (1987), the Court
upheld findings that section 1981 had 
been violated by, inter alia, toleration 
by both the employer and the union of 
racial harassment of black employees. The 
Court concluded that under section 1981, 
the right to make and enforce contracts 
"may not be interfered with on racial 
grounds." Id. at 2621.7 And in Saint

2 7

7'In a dissenting opinion addressing 
a statute of limitations question, three 
members of the Court explicitly 
concluded: "Section 1981 banned racial
discrimination in contractual relations, 
whether individuals were expressly or 
constructively denied the right to 
contract because of race, or were 
provided a lesser opportunity than 
others, in the form of less favorable

(continued...)



28
Francis College v. Al-Khazra~i i, 481 U.S.
__, 107 S.Ct. 2022 (1987), the Court
reaffirmed the holding of prior cases 
that section 1981 "forbid[s] all ‘racial' 
discrimination in the making of private 
as well as public contracts." (Emphasis 
added) . Also last Term, the Court 
construed 42 U.S.C. § 1982, the parallel
provision to section 1981 that protects 
the right to purchase and lease property, 
to encompass a claim of desecration of a 
synagogue. Shaare Tefila Congregation v.
Cobb, 481 U.S. ___, 107 S.Ct. 2019
(1987) .7 8

7 (...continued)
contract terms or unequal treatment, 
discouraging entry into contractual
relations." Goodman v. Lukens Steel_Co •_,
107 S.Ct. at 2627, n. 4 (1987) (Brennan, 
j. # joined by Marshall & Blackmun, JJ. , 
concurring in part and dissenting in part) .

8Both § 1981 and § 1982 derive from 
§ 1 of the Civil Rights Act of 1866. In 
language parallel to that of § 1981, 
§ 1982 guarantees "the same right ... as 
is enjoyed by white citizens ••. to 
inherit, purchase, lease, sell, hold, and(continued...)

2 9

Last Term's decisions are the most 
recent in a consistent line of cases 
construing section 1 of the Civil Rights 
Act of 1866. These cases uniformly 
recognize that section 1 encompasses 
racial discrimination that discourages 
exercise of the right to contract or to
purchase property. For example, in
T illman-- v^---Wheaton_Haven Recreation
Association, 410 U.S. 431, 437 (1973)
the Court construed section 1982 to
prohibit discrimination with respect to 
the entire "bundle of rights for which an 
individual pays when buying or leasing" 
property. in that case, the right to 
join a neighborhood swimming pool was 
held to be part of the right to "purchase

Q(•..continued)
convey real and personal property." "in 
light of the historical interrelationship 
between § 1981 and § 1982," the Court has 
in the past "found no reason to construe 
these sections differently." Tillman v. 
Wheaton-Haven Recreation Ass'n. 410 U S* 431, 440 (1973).



30
... property," even though membership 
rights in the swimming pool "could 
neither be leased nor transferred 
incident to the acquisition of property." 
Id. at 435. The Court reasoned that the 
right of blacks to purchase homes in the 
neighborhood was "abridged and diluted" 
by the recreation association's refusal 
to p ro v id e them the membership 
opportunities afforded to white property 
owners. Id. at 437.

In both Shaare Tefila and Tillman. 
the plaintiffs already owned the property 
at issue. Neither the vandalism of the 
synagogue nor the denial of the right to 
join a swimming pool club resulted in an 
absolute barrier to the plaintiffs' 
ability to "purchase" or "hold" property. 
Rather, these deprivations "diluted" the 
right to purchase property, just as 
subjecting a black worker to onerous 
terms and conditions of employment

31
"dilute [s]" the right to make an 
employment contract.9

In Jones v . Mayer Co.f 392 U.S. 409, 
423-24 (1968), the Court, in holding that 
section 1982 reaches private actions, 
concluded that section 1982 protects 
property rights against "interference 
from any source whatever." (Emphasis 
added) . "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 ...." id. at 436 
(emphasis added). In Johnson v. Railway

9The Court's analysis of section 
1982 in Tjllman is directly applicable to 
the coverage of section 1981. In Tillman 
the Court also ruled that the rights of 
white pool members to make and enforce a 
contract under section 1981 were violated 
by the pool's exclusion of the members' 
black guests. 410 U.S. at 439-440. 
Clearly, the ability to bring a black 
guest is an incidental term of the 
membership contract, similar to the right 
to be free from racial harassment.



32
Express Agency Inc.. 421 U.S. 454, 459-60 
(1975), the Court confirmed that section 
1981 "affords a federal remedy against 
discrimination in private employment on 
the basis of race." Significantly, the 
employment discrimination claims in the 
Johnson case did not primarily involve 
hiring, firing10 or promotion. Rather 
the issues raised in that case-- 
seniority rules, job assignments and 
racial segregation11 —  like those raised 
by Mrs. Patterson, concerned the terms 
and conditions of employment.

The broad scope of section 1981's 
prohibition against all types of 
discrimination was reiterated in Runyon 
v. McCrary. 427 U.S. 160 (1976), and
McDonald v. Santa Fe Trail Transportation

10After the EEOC charge was filed, 
the plaintiff in Johnson was fired and 
subsequently amended his charge to allege 
discriminatory discharge.

11See 421 U.S. at 455.

33
—Q - ' 427 U.S. 273 (1976). In Runyon. the 
Court ruled that section 1981, like 
section 1982, covers private as well as 
governmental actions. The Court relied
upon the fact that section 1982
guarantees the right of blacks "to
purchase property on equal terms with 
whites." 427 U.S. at 170 (emphasis 
added). The court concluded that "a 
Negro's [§ 1981] right to 'make and
enforce contracts' is violated if a 
private offeror refuses to extend to a 
Negro, solely because he is a Negro, the 
same opportunity to enter into contracts 
as he extends to white offerees," id. at 
170-71. The McDonald decision, holding 
that section 1981 protects white persons 
as well as black persons, concluded that 
"the terms of the bill prohibited any 
racial discrimination in the making and 
enforcement of contracts ...." 427 U.S.
at 288.



34
In Memphis v. Greene. 451 U.S. 100, 

(1981), the Court reconfirmed that 
section 1 of the 1866 Act prohibits race- 
based interference with the enjoyment of 
protected rights. The Court concluded 
that section 1982 protects "not merely 
the enforceability" of property rights, 
but also the "right to acquire and use 
property on an equal basis with white 
persons." Id. at 120. The Court noted 
that actions which "hamper ... the use of 
... property" might violate section 1982. 
R a c i a l  h a r a s s m e n t  and s a l a r y  
discrimination obviously "hamper" the 
enjoyment of an employment contract. The 
Court's precedents leave no doubt that 
discrimination in the terms and 
conditions of employment, including 
r a c i a l  h a r a s s m e n t  and s a l a r y  
discrimination, are prohibited by section 
1981.

Except in the Fourth Circuit, the

35
lower federal courts have unanimously 
concluded that discrimination in the 
terms and conditions of employment is 
actionable under section 1981.12 13 The 
lower federal courts have also recognized 
causes of action under section 1982 to 
remedy conduct that discourages or 
interferes with the right to purchase and 
lease property.-1-2

12 Nazaire v, Trans World Airlines. 
Xnc^, 807 F . 2d 1372, 1380 (7th Cir.
198 6) ; Hunter v. A11 is-Chalmers. 7 97
F . 2 d 1417, 1421 (7th Cir. 1986);
Wilmington v. J.I. Case Co.. 793 F.2d 909 
(8th Cir. 1986); Hamilton v. Rodgers. 791 
F. 2d 439, 442 (5th Cir. 1986); Ramsey v.
American Air Filter Co. . 772 F.2d 1303
(7th Cir. 1985); Erebia v. Chrysler
Plastic Products Coro. . 772 F.2d 1250,
1254-57 (6th Cir. 1985), cert, denied. 
106 S.Ct. 1197 (1986); Carter v. Duncan- 
Huggins, Ltd., 727 F.2d 1225, 1233 (D.C.
Cir. 1984); Block v. R.H. Macv & Co.. 
712 F.2d 1241 (8th Cir. 1983); Lucero v. 
Beth Israel Hospital. 479 F. Supp. 452, 
453-55 (D. Colo. 1979).

13See e .g .. McDonald v. Verble. 622 
F.2d 1227 (6th Cir. 1980) (section 1982 
prohibits "subtle racial discrimination 
[in housing] sales efforts" even where

(continued...)



36
The Court's prior decisions do not 

distinguish, and there is no basis for a 
distinction, between explicit and 
implicit conditions of a contract. 
Discriminatory conditions to the 
employment contract, were they known at 
the o u t se t  of the c on tr a c t u a l 
relationship, would surely discourage 
black individuals from entering into an 
employment contract and thus deprive them 
of an equal right to make such contracts. 
The fact that discriminatory terms and 
conditions of employment are not stated 13

13(...continued)
there was no denial of sale) ; Clark v. 
Universal Builders. 501 F.2d 324, 330
(7th Cir.), cert, denied. 419 U.S. 1070 
(1974)(section 1982 prohibits offering 
blacks less favorable terms and 
conditions than those offered to whites); 
Newbern v. Lake Lorelei, 308 F. Supp. 
407, 416 (S.D. Ohio 1968) ("discrimina­
tion in the modes of negotiation" 
violates section 1982). But see Saunders 
v. General Services Corp., Slip Op., Civ. 
No. 86-0229-R (E.D. Va. 1987), appeal
pending. No. 87-2175 (4th Cir.)(section 
1982 covers only outright refusals to 
sell or lease).

37
at the outset and are not put into a
written document does not lead to a
different result. The employer's actions 
establish that these are implicit 
conditions of the contract which are 
different for black employees than for 
white employees, thus depriving black 
employees of an equal right to make and 
enforce an acceptable employment 
contract. The Court recognized this in 
both Johnson v. Railway Express. 421 U.S. 
at 455, and Goodman v. Lukens Steel. 107 
S.Ct. 2617, in upholding a cause of 
action for discriminatory terms and 
conditions of employment that were not 
included in any written employment 
contract.
B. The Plain Language of Section 1981 

Prohibits Racial Discrimination in 
the Terms and Conditions of an 
Employment Contract__________________
Section 1981 provides that "[a]11

persons within the jurisdiction of the
United States shall have the same right



38
. . to make and enforce contracts ... as 

is enjoyed by white citizens." The plain 
language of section 1981 makes clear that 
the statute protects against racial 
discrimination in the terms and 
conditions of employment contracts. 
Under section 1981, persons of all races 
are guaranteed the "same" right to make 
and enforce contracts. A contract of 
employment is merely a combination of 
many terms and conditions. E .g .
Restatement (Second) of Contracts §§ 5, 
224 (1981). A contract for employment
either explicitly or implicitly covers at 
least the fact of employment, the nature 
of the work, the salary, the working 
hours, the work rules and penalties for 
violations thereof, and the location of 
the job. As the Court noted in Hishon 
v. King & Spaulding. 467 U.S. 69, 74
(1984) :

B e c a u s e  the u n d e r l y i n g
employment relationship is

39
contractual, it follows that 
the "terms, conditions, or 
privileges of employment" 
clearly include benefits that 
are part of an employment contract.

U n d e r  the Fourth C ir cu i t' s
interpretation of section 1981, some
terms of the employment contract, such as
the fact of employment and the
opportunity for promotion, must be
provided on a non-discriminatory basis.
However, discrimination in other terms
and conditions, such as salary, working
conditions, and job duties, is not
covered by section 1981. This reasoning
converts section 198l4 guarantee of the

ii
same" right to make a contract into a 

guarantee of a "different" right to make 
a contract.

C. Protection Against Discrimination in 
the Terms and Conditions of 
Employment Is Mandated by the 
Broad_Purpose of Section 1981_______
Section 1981 was first enacted as

part of section 1 of the Civil Rights Act



40
of 1866. in enacting section 1981, 
Congress intended to prevent and remedy 
widespread schemes to force black workers 
to labor under onerous terms and 
conditions. In fact, Congress' major 
concern was exactly opposite of that 
ascribed to section 1981 by the Fourth 
Circuit. The ability of black workers to 
obtain or retain employment was not the 
primary problem. Rather, the problem was 
to enable black workers to obtain fair 
terms and conditions of employment.

" C o n g r e s s  w a s i n t e n t  upon 
establishing in the federal law a broader 
principle than would have been necessary 
simply to meet the particular and 
immediate plight of the newly freed Negro 
slaves," McDonald v. Santa Fe. 427 U.S. 
at 296. Nonetheless, a major impetus for 
enactment of section 1981 was the use of 
both Black Codes and private power to 
keep newly emancipated blacks in a

41
condition equivalent to slavery. See
Jones______Mayer. 392 U.S. at 426-429;
General B uilding Contractors v. 
Pennsylvania . 458 U.S. 375, 386-388
(1982). Thus, Congress' understanding of 
the problems faced by former slaves in 
making and enforcing contracts during the 
reconstruction era is highly probative of 
Congress' intent with respect to the 
coverage of section 1981.

The problems at which section 1981 
was directed included more than 
discrimination in the hiring, firing or 
promotion of black workers.14 In the 
reconstruction period, white plantation

14The primary concern of white 
landowners was to retain, not to fire or 
replace, black workers; far from refusing 
to hire blacks, landowners resorted to a 
variety of tactics, including threats, 
violence and patrols, to ensure that 
blacks stayed in their employ. See, 
e^g., Sen. Exec. Doc. No. 2, 39th Cong., 
1st Sess. 18 (1865) (hereinafter cited as 
"Schurz Report").



42
'owners continued to need black labor.15 
They simply wanted to maintain the same 
terms and conditions of employment that 
existed prior to emancipation.

When it enacted section 1981, 
Congress had before it massive evidence 
of efforts by plantation owners to retain 
former slaves under oppressive terms and 
conditions. The first detailed account 
of these new practices and schemes came 
in a report to the President and Congress 
by General Carl Schurz. This report 
played a critical role in the adoption of 
both the 1866 Act and the Fourteenth 
Amendment. Jones v. Maver Co. . 392 U.S. 
at 428. "The report expressed the 
general view that the South was having 
difficulty adjusting to the abolition of 
slavery and that in the absence of

15See. e.q.. H.R. Rep. No. 30,
Report of the Joint Committee on
Reconstruction, 39th Cong., 1st Sess.,
Part II, p .4 (1866) (hereinafter cited as
"Reconstruction Committee Report").

43
federal intervention, a substitute for
slavery was not unlikely." Memphis_v._
Greene, 451 U.S. 100, 131-32, n. 4 (1981) 
(White, J., concurring). General Schurz 
observed that the former slaveholders 
"simply adher[ed], as to the treatment of 
the laborers, as much as possible to the 
traditions of the old system, even when 
the relations between employers and 
laborers had been fixed by contract."1  ̂

Schurz noted that employers attempted to 
"introduce into that new system [of 
contractual employment] the element of 
physical compulsion." He concluded that 
"[t]he habit is so inveterate with a 
great many persons as to render, on the 
least provocation, the impulse to whip a 
negro almost irresistible."17 * *

The former masters were also 
determined to expend little more for the

16Schurz Report at 19.
17Id. at 19-20 (emphasis added).



44
labor of freedmen than they had for
slaves. One Freedmen's Bureau official
quoted by Schurz observed:

Nineteen-twentieths of the 
planters have no disposition to 
pay the negro well or treat him 
well ... To defraud, oppress, 
and maltreat the freedmen seems 
to be the principle governing 
the action of more than half of 
those who make contracts with 
them.18

Planters were entirely willing to enter 
into labor contracts with black workers, 
but sought to require them to "submi[t] 
to the will of the employer, "19 ancj t0 
permit employers to "arrange the matter 
of compensation according to their 
tastes. "20

Schurz appended to his report the

18Id. at 91. The Freedman's Bureau 
"was especially active" in the field of 
labor contracts, attempting to obtain 
" f a i r "  c o n t r a c t s  and improved 
"conditions" for black workers. E .g.. J. 
H. Franklin, Reconstruction After the 
Civil War 37-38 (1961).

19Schurz Report at 51.
20Id. at 24.

45
proposal of a group of Louisiana planters 
regarding the employment of black 
workers. Schurz described this plan as 
"true representations of the ideas and 
sentiments entertained by large numbers 
today."21 The plan did not contemplate 
racial discrimination in hiring or 
firing; rather, it called for draconian 
conditions of employment. Farm laborers 
were to work a sixty hour week, and 
"[t]he rate of wages should be fixed—  

above which no one should be allowed to 
go."22 Farm workers could neither leave 
the plantation, nor receive visitors, 
without written permission of the 
proprietor. Corporal punishment could be 
i-nflicted "to correct any abuse,"23 and 
fines or imprisonment would be imposed on 
any laborers who were not "respectful in

21Id. at 22.
22Id. at 84 (emphasis added).
23Id.



46
tone,' manner, and language to their 
employers."24

In the wake of the Schurz report, 
Congress in early 1866 organized a Joint 
Committee on Reconstruction to conduct a 
further investigation. The Joint
Committee compiled a detailed record of 
the circumstances in each of the former 
rebel states, confirming and elaborating 
on Schurz 1 s conclusions. Witnesses 
repeatedly testified that the planters 
were refusing to pay freedmen a living 
wage, indeed in some instances refusing 
to pay them at all,25 and continued to 
resort to whipping and other acts of 
cruelty.26

The framers of the 1866 Civil Rights 
Act were particularly concerned about the 24 * 26

24Id. at 85.
^Reconstruction Committee Report, 

Part II at 17, 52, 54, 56, 61, 83.
26Id. at 55, 61, 83.

47
southern legislation known collectively 
as the Black Codes, Memphis v. Greenef 
451 U.S. at 132 (White, J., concurring); 
Jones v. Mayer Co., 392 U.S. at 426, 432, 
433. But the Black Codes, like the 
planters, were largely concerned with 
controlling, directly or indirectly, the 
terms and conditions under which blacks 
would be employed, not with preventing 
blacks from entering into employment 
contracts. None of the Black Codes 
prohibited blacks from signing employment 
c o n t r a c t s ,  or m a n d a t e d  racial 
discrimination in hiring, promotions, or 
dismissals.27

Proponents of the 1866 Act denounced 
those aspects of the Black Codes which 
directly controlled the terms and 
conditions of black employment. In his 
statement opening the debate on the civil

27£Lee Sen. Exec. Doc. No. 6, 39th 
Cong., 2d Sess. 170-230 (1867) (Laws in
Relation to Freedmen).



48
rights bill, Senator Wilson denounced
provisions of a Georgia statutory
proposal that "regulates contracts
between master and servant, ... [sets]
[w]ork hours, :from sunrise to sunset,
[makes] [t]he servant ... responsible for 
damaging the master's property [and 
allows] [t]he employer [to] discharge 
servants for ... want of respect."28

28Cong. Globe, 39th Cong., 1st Sess. 
39 (1866). Wilson also warned that the 
Louisiana legislature was considering a 
bill governing the conditions of 
employment. Wilson pointed out that 
under the Louisiana proposal, "[g]eneral 
conversation will not be allowed during 
working hours, ... l[ea]ving home without 
permission, will be deemed disobedience," 
subject to fines, "[n]o live stock will 
be allowed the laborers without the 
permission of the employer [and for] all 
lost time from work hours (unless in case 
of sickness) the laborers shall be 
charged twenty-five cents per hour." Id.

The Louisiana measure referred to by 
Senator Wilson, which had in fact been 
enacted in December 1865, also required 
farm workers to labor for ten hours a day 
six days a week, and authorized penalties 
for "impudence," for "swearing ... to or 
in the presence of the employer, his 
family or agent" and for "bad work." S.

(continued...)

49
i

Finally, Senator Wilson and others 
objected to the sanctions which a number 
of southern states imposed on any 
freedman who attempted to leave his
employer in violation of his labor 
contract. In a number of states, Wilson 
observed, a laborer's wages were to be 
withheld until the end of the season, and 
all of his earned wages were forfeited to 
the employer if the laborer quit for

28(...continued)
Exec. Doc. No. 6, at 181-182. The South 
Carolina statute regulating farm labor, 
objected to by Wilson and members of 
Congress, see. e.q.. Cong. Globe, 39th 
Cong., 1st Sess. 39 (remarks of Sen. 
Wilson), 1160 (remarks of Rep. Windom),
provided that "the hours of labor, except 
on Sunday, shall be from sun-rise to sun­
set," forbade workers to leave the farm 
or receive visitors without permission of 
the planter, and authorized corporal 
punishment for indolence, for being 
absent "on two or more occasions without 
permission," or for "want of respect and 
civility" to the "planter or his family, 
guests or agents." S. Exec. Doc. No. 6, 
at 211-212.



50
another job.29 South Carolina and other 
states, Representative Windom objected, 
permitted local authorities forcibly to 
return to his employer any worker who had 
not fulfilled his contract.30 The 
Mississippi law quoted by Senator Wilson 
provided a bounty to private citizens as 
well as government officials who 
summarily returned runaways to their 
former employers.31 Such measures, by 
penalizing any freedman who attempted to 
quit his job, forced laborers to tolerate 
whatever abuses their employers might 
perpetrate.

Thus, Congress in enacting section 
1981 was not primarily concerned about 
refusals to hire or promote blacks, but 
rather about leaving blacks "in reality

29Cong. Globe, 39th Cong., 1st Sess. 
39 (Georgia and Mississippi).

30Cong. Globe, 39th Cong., 1st Sess.
1160.

31Id. at 39.

51
in a condition of modified slavery, 
subject to the old injustice and the old 
tyranny which characterized their former 
unhappy condition." Cong. Globe, 39th 
C ong., 1st Sess. 1152 (1866)
(Representative Thayer). Congress wanted 
to assure "not only that slavery shall be 
abolished upon the pages of your 
Constitution, but that it shall be 
abolished in fact and in deed." Id. The 
members were concerned that without the 
protection _ of the civil rights bill, 
withdrawal of military rule from the 
South would leave blacks "practically 
reduce[d] ... to the condition of 
slavery." Id. at 1124 (Rep. Cook).32

Section 1981 was therefore directed

32See also id. at 504 (Senator 
Howard) (Congress must not allow blacks 
to be reduced "to a condition infinitely 
worse than actual slavery") , 1124 (Rep.
Cook) ("it is apparent that under other 
names and in other forms a system of 
i n v o l u n t a r y  servitude might be 
perpetuated over this unfortunate race"), 
1159 (Rep. Windom).



52
at a variety of practices, including: 
"white employers who refused to pay their 
Negro workers";33 employers who treated 
black workers with "great harshness and 
injustice";34 "planters [who] combine[d] 
together to compel [freedmen] to work for 
such wages as their former masters may 
dictate";35 laws "compelling the return 
of the freedmen to his master under the 
name of employer, and allowing him to be 
whipped for insolence";36 and laws 
setting "[w]ork hours from sunrise to 
sunset."37 In order to remedy all of 
these practices, Congress enacted a 
comprehensive statute that is broad in

33Id. at 95.
34Cong. Globe, 39th Cong., 1st Sess. 

1833 (Rep. Lawrence, guoting testimony of 
Major General Alfred H. Terry, commanding 
the department of Virginia, taken before 
the reconstruction committee, March 1866).

35Id. at 1160 (Rep. Windom).
3 6 Id.
37Id. at 39 (Senator Wilson) .

53
scope. Senator Trumbull, the bill's 
sponsor, described the protection it 
would afford as "sweeping and efficient." 
Cong. Globe, 39th Cong. 1st Sess. 43 
(1866). The Senator said that with 
regard to the rights enumerated, "the 
very object of the bill is to break down 
all discrimination between black men and 
white men." Id. at 599 (emphasis added). 
Senator Howard, another supporter, 
concluded that, as to the rights 
enumerated, "there is to be hereafter no 
distinction between the white race and 
the black race." Id. at 504.

In the House, Representative Cook 
argued that with respect to the basic 
civil rights, including "the right to 
make and enforce contracts," Congress 
must provide that "there ... be no 
discrimination" on grounds of race or



54

color, id. at 1124.38 Senator Cowan of 
Pennsylvania, one of the bill's 
opponents, believed that section 1981 
would confer the right to make and 
e n f o r c e  c o ntracts "without any 
qualification and without any restriction
w h a t e v e r ," i d . a t 17 8 1. This
understanding of the breadth of the

•^Representative Windom explained 
the provision's requirement of "absolute 
equality" with timely examples:

In other words, it 
declares that henceforth 
the colored soldier, who has 
worn the uniform of the 
Republic and periled his life 
for its defense, shall have an 
equal right, nothing more, with 
the white rebel yet reeking 
with the blood of our murdered 
defenders; to make and enforce 
contracts ... [and that] no 
discrimination shall be made in 
favor of traitors, because they 
are white and have always been 
petted and pampered by the 
Government, as against patriots 
because they are black and have 
always been held in cruel and 
degrading bondage.

Cong. Globe, 39th Cong., 1st Sess. 1159 
(1866) (emphasis added).

55
provision was not contradicted by the 
bill's supporters. See Jones v. Maver 
Co.. 392 U.S. at 435.

Considered in light of this 
legislative history, the Fourth Circuit's 
interpretation of section 1981 is plainly 
mistaken. If, as the court below 
believed, section 1981 applies only to 
discrimination in hiring, firing, and 
promotions, then the law would not have 
forbidden most of the practices to which 
the Thirty-ninth Congress objected. In 
the face of elaborate schemes to 
reintroduce slavery by means of 
oppressive terms and conditions of 
employment, it is inconceivable that 
Congress intended only to forbid 
discrimination in hiring, firing and 
promotion. Southern planters were all 
too anxious to hire their former slaves 
and were quite determined to see that 
those freedmen did not depart for other



5 6

jobs. The 1866 Civil Rights Act was 
adopted to forbid the introduction of a 
contract based labor system whose terms 
and conditions were essentially the same 
as the old slave system.

The line drawn by the Fourth Circuit 
between "hiring, firing and promotion" on 
the one hand, and terms and conditions of 
employment on the other, would permit, in 
the modern context, the oppression and 
exploitation of black workers that 
Congress in enacting section 1981 wanted 
to prevent. For example, an employer 
could have two standard employment 
contracts, one for whites and one for 
blacks. White applicants could be 
offered pleasant, dignified treatment, 
normal workloads and job assignments 
consistent with their status. On the 
other hand, black applicants could be 
offered an employment contract that 
provided for them to be subjected to

57

racial slurs and demean ing scrutiny and
to be given much harder and more arduous
work than white employees. Under the
Fourth Circuit's rule, the offering of
two different employment contracts on the 
basis of race would not violate section 
1981, even though the different terms and 
conditions would discourage blacks from 
"mak[ing]" a contract with this employer. 
As long as the employer does not apply an 
absolute prohibition on contracting with 
blacks, under the Fourth Circuit's ruling 
it is free to use any means of 
discouraging or intimidating blacks from 
entering into a contract.

The Fourth Circuit's ruling also 
apparently means that wage discrimination 
is not actionable under section 1981. In 
the instant case, plaintiff's claim of 
salary discrimination was dismissed. 
Thus, an employer that paid black workers 
less than white workers doing the same



58
job would not be found liable under 
section 1981, notwithstanding that wage 
discrimination was one of Congress' major 
concerns when it enacted section 1981. 
See Cong. Globe, 39th Cong., 1st Sess. at 
504, 1160, 1833.39

The Fourth Circuit's narrow 
interpretation would eliminate section 
1981's coverage in the areas where its 
protection and remedies are most needed. 
Section 1981 provides a "separate, 
distinct and independent" remedy from

3 9 T h e  e x c l u s i o n  of w a g e  
discrimination under the Fourth Circuit's 
decision illustrates the difficulty of 
drawing a clear line between those terms 
of employment that "go to the very 
existence and nature" of the employment 
contract and those that do not. To 
implement the Fourth Circuit's ruling, 
the federal courts would be faced with 
the task of determining whether a large 
variety of employment-related decisions 
do or do not relate to the "essence" of 
the contract. The courts will have to 
decide the status of such matters as 
transfers (arguably like promotions) , 
training, discipline that does not lead 
to immediate discharge, harassment that 
results in constructive discharge and 
awards of seniority.

59
Title VII of the Civil Rights Act of 
1964. Johnson v. Railway Express Agency. 
421 U.S. at 461. Although section 1981 
and Title VII of the Civil Rights Act of 
1964 both prohibit racial discrimination 
in employment,40 section 1981 covers 
additional types of discrimination that 
are not prohibited by any other federal 
statute and provides valuable rights and 
procedures that are not available under 
Title VII.

The Seventh Amendment right to a 
jury trial applies to claims brought 
under section 1981,41 while Title VII

40Section 1981 is directed at racial i 
discrimination in all types of contracts/>< 
including employment contracts, while 
Title VII is limited to employment 
d i s c r i m ination, but • covers such 
discrimination on the basis of religion, 
sex and national origin, as well as race 
and color, see 42 U.S.C. § 2000e-2.

41In Curtis v. Loether. 415 U.S. 
189, 194 (1974), the Court held that the
Seventh Amendment applies to an action in 
federal court to enforce a civil rights 
statute that creates legal rights and

(continued...)



60
claims are tried to the court. In 
addition, the remedies available under 
section 1981 are broader than those 
authorized by Title VII. Because of 
these differences in remedy, section 
1981's prohibition of discrimination in 
the terms and conditions of employment, 
particularly racial harassment, is 
critically important. Title VII provides 
only equitable relief, which means that 
the only monetary remedy available under 
that statute is lost salary or wages.41 42 
Discrimination in the terms and 
conditions of employment, such as racial 
harassment, may not give rise to any 
monetary claim for backpay. In many

41(. ..continued)
remedies. The right to a jury trial 
applies under § 1981 because that section 
affords plaintiffs both equitable and 
legal relief, including compensatory and, 
in some cases, punitive damages. Johnson 
v. Railway Express. 421 U.S. at 460.

42E .q.. Hunter v. Allis-Chalmers. 
797 F .2d at 1421.

61
cases of such discrimination, the only 
relief available under Title VII will be 
an injunction that simply reiterates the 
command of the statute. Often, that 
relief will not be a sufficient deterrent 
to harassment.

Section 1981 authorizes compensatory 
and punitive damages, in addition to 
backpay and the other types of equitable 
relief available under Title VII. 
Johnson v. Railway Express. 421 U.S. at 
460. Because racial harassment is often 
an egregious form of discrimination, 
compensatory damages for mental suffering 
and punitive damages are particularly 
appropriate in many of these cases. The 
availability of actual and punitive 
damages can provide an effective 
deterrent and help to rid the workplace 
of t h i s  p e r s i s t e n t  f o r m  of



62
discrimination.43

Section 19£l's protection against
* •, f

discrimination in the terms and 
conditions of contracts is vitally 
important in areas other than employment. 
Section 1981 provides a cause of action 
to remedy discrimination in the right to 
contract for other types of benefits. 
For example, in Runyon v. McCraryr the 
Court held that section 1981 prohibits 
discrimination by private schools. 427 
U.S. at 172-173. A ruling that section

— ‘— / Block v. R. h . Macy & 
'— Lnc. , 712 F . 2d 1241, 1243, 1245-48

(8th Cir. 1983) (Title VII and § 1981
claims for discharge and racial 
harassment; $20,000 in actual and $60,000 
in punitive damages awarded, of which 
only $7,598 was back pay under Title 
VH) * Fisher v. Dillard University. 499 
F. Supp. 525, 537 (E.D. La. 1980)(Title
VII and § 1981 claims of unequal pay;
$11,127 in backpay, $50,000 in 
compensatory damages and $10,000 in 
punitive damages awarded). Cf. Webb v.
City of Chester. Ill.r 813 F.2d 824, 836 
(7th Cir. 1987) (§ 1983 sex discrimination 
claim for discharge; $20,250 awarded for 
embarrassment and humiliation; $9,750 for lost wages).

63
1981 does not encompass discrimination in 
the terms and conditions of contracts 
would mean that many victims of such 
discrimination would have no remedy. 
Under the Fourth Circuit's decision, 
black students could obtain admission to 
the programs of private educational 
institutions that receive no federal 
financial assistance, but the students 
could then be racially harassed or 
segregated.

II.
DISCRIMINATORY INTENT CAN BE CONCLUSIVELY 
ESTABLISHED WITHOUT PROOF OF PLAINTIFF'S SUPERIOR QUALIFICATIONS

The district court and the court of 
appeals each relied upon a different 
ground in attempting to justify the 
s u p e r i o r  q u a l i f i c a t i o n s "  jury 

instruction. The district court believed 
that proof that the plaintiff's 
qualifications were superior to those of 
the selectee was necessary for the



64

plaintiff to establish a prima facie case 
of discrimination. The court of appeals 
reasoned that once the employer 
articulates the selectee's superior 
qualifications as a defense, the only way 
that the plaintiff can rebut the 
employer's assertion and prevail on the 
ultimate question of discriminatory 
intent is to prove that her own 
qualifications are superior.

Both courts below erred by looking 
at the wrong question. The ultimate 
issue is not whether plaintiff s 
qualifications are superior to those of 
the selectee. The factual question to be 
decided is whether the employer acted 
with a discriminatory motive. United
states Postal Service_v.--- Aikens, 4 60
U.S. 711, 715-716 (1983).

Evidence of discriminatory intent 
"might take a variety of forms." Furnco
Construction Coro, v.__W a t e r s , 438 U.S.

6 5
♦.»V

567,V$78 (1978).44 where the employer 
articulates the selectee's alleged 
superior qualifications as the reason for 
its decision, the plaintiff may still 
prevail without proving that her own 
qualifications are superior. In that 
situation, the plaintiff may prevail 
either by showing that her own 
qualifications are superior or by 
convincing the factfinder that the 
employer did not actually rely on a 
c o m p a r i s o n  of the c a n d i dates' 
qualifications in making its decision. 
The plaintiff's burden is to prove that

i

the employer's reason is pretextual. She 
may do this in either of two ways:

44The method of proof was "never 
intended to be rigid, mechanized, or 
ritualistic." Furnco, 438 U.S. at 577. 
"The facts necessarily will vary in Title 
VII cases, and the specification ... of 
the prima facie proof required from [the 
plaintiff] is not necessarily applicable 
in every respect to differing factual 
situations." McDonnell Douglas Corn. v. 
Green. 411 U.S. 792, 802, n.13 (1973).



66
"directly by persuading the court that a 
discriminatory reason more likely 
motivated the employer or indirectly by 
showing that the employer's proffered 
explanation is unworthy of credence." 
Texas Dept. of Community Affairs v. 
Burdine. 450 U.S. 248, 256 (1981).

The Fourth Circuit's "superior 
qualifications" requirement relies on the 
Court's conclusion in Burdine that "the 
employer has discretion to choose among 
equally qualified candidates, provided 
the decision is not based upon unlawful 
criteria." 450 U.S. at 259.45 Yet, this 
statement from the Burdine opinion 
d e m o n s t r a t e s  why the "superior 
qualifications" rule is erroneous. 
Admittedly, the mere fact that an 
employer has chosen a white when there 
were two equally qualified candidates 
d o e s  not by i t s e l f  e s t a b l i s h

45See Pet. App. at 20a.

67
discrimination. However, the stipulation 
that "the decision is not based upon 
unlawful criteria" indicates that the 
plaintiff must be afforded an opportunity 
to prove that the decision was in fact 
based on discrimination.
A. The Fourth Circuit's Ruling 

Eliminates At- Least Four Ways By 
Which the Plaintiff May Prove 
Discriminatory Intent Without 
E s t a b l i s h i n g  Her S u p e r i o r  
Qual if ications________________ ______
In this case, the "superior

qualifications" instruction prevented the
jury from| considering whether the
totality of plaintiff's evidence
established discrimination. A number of
methods' by which a plaintiff may
establish discriminatory intent are well-
established in the federal courts. In
appropriate circumstances, any single
type of evidence may be sufficient to
permit the factfinder to make the
ultimate finding of discrimination. In
reality, the plaintiff will most often



68
rely on a combination of different types 
of evidence, each of which sheds light on 
the defendant's intent from a different 
perspective. Thus, it is the totality of 
the evidence that paints a picture of the 
defendant's state of mind.46

1. Overt policy of discrimination.
One type of evidence which may alone 

support a finding of discriminatory 
i n t e n t  is an overt policy of 
discrimination. In Trans World Airlines 
y. Thurston. 469 U.S. Ill (1985), the 
Court unanimously concluded that a 
w r i t t e n ,  o v e r t  p o l i c y  of age 
discrimination was conclusive proof of 
discriminatory intent. This evidence 
operated to shift the burden of proof to 
the defendant to show that the plaintiff

46B.g. United States Postal Service 
v. Aikens, 460 U.S. 711, 714-16 (1983); 
Pullman-Standard v. Swint. 456 U.S. 273, 
279, 281-82, 291 (1982); McDonnell 
Douglas. 411 U.S. at 804-805.

69
was not the victim of the policy.47 Yet, 
under the Fourth Circuit's ruling, the 
plaintiff cannot prevail even if she 
introduces uncontroverted, direct 
evidence of the employer's discriminatory 
intent. An admission by the employer's 
witness or a written statement of 
discriminatory intent would not suffice 
to rebut a mere articulation by the 
employer that the selectee was more 
qualified than the plaintiff. This 
ruling eliminates the overt policy as a 
method of proving discriminatory intent 
and is directly contrary to Thurston.48

47The Court ruled in Thurston that 
the method of proof established in 
McDonnell Douglas does not apply in cases 
where the plaintiff relies on direct 
evidence. 469 U.S. at 121. See also 
Bell v. Birmingham Linen Service. 715 
F .2d 1552, 1556-1557 (11th Cir. 1983),
cert, denied. 104 S.Ct. 2385 (1985).

48Plaintiff1s counsel specifically 
argued to the district court that the 
" s u p e r i o r  q u a l i f i c a t i o n s "  jury 
instruction is improper where the 
plaintiff introduces direct evidence of

(continued...)



70
The p l a i n t i f f  in this case 

introduced evidence that the employer had 
an overt policy of discrimination. The 
admission by the company's own witness 
that the defendant's President "didn't 
want to hire any blacks or women," TR 
4-89, is equivalent to the facial 
evidence of discrimination in Thurston. 
The jury could reasonably conclude that 
this admitted policy applied to 
promotions as well as hiring. The 
district court should not have instructed 
the jury that plaintiff had the burden of 
proving her superior qualifications. 
Instead, the court should have charged 
that, if the jury found on the basis of 
direct evidence that the company had a 
policy of discrimination in promotions, 
the burden would shift to the employer to 
prove that, even in the absence of the 48 *

48 (...continued)
discriminatory intent. JA 72-73.

71
policy of discrimination, plaintiff would 
not have received the promotion in 
question.

2. Inferential proof of a pattern 
of discrimination.

In Teamsters v. United States. 431 
U.S. 324, 335, n.15, 358 n.44 (1977), the 
Court ruled that the plaintiff may 
establish a pattern and practice of 
discrimination through circumstantial 
evidence. The evidence in that case 
included statistical analyses of the 
employer's hiring and assignment 
decisions, anecdotal evidence of the 
treatment of individual minority workers 
and historical evidence of discriminatory

ipractices. Id. at 336-340.
Although Teamsters involved an 

allegation of a company-wide pattern of 
discrimination against a class of 
minority workers, the method of proof 
used in that case is also applicable to



72
an individual claim.49 Plaintiff in the 
instant case introduced evidence 
analogous to that presented in Teamsters. 
Although the small size of the 
defendant's work force did not permit a 
statistical analysis of its promotion 
practices, Patterson introduced other 
evidence sufficient to support a finding 
of a p a t t e r n  and practice of 
discrimination. Patterson showed that 
the company had no black supervisors, 
accounting employees or secretaries ever. 
She showed that in its entire history, 
the company had only three black 
employees and that they were all file 
clerks. she introduced evidence

. The c°urt in Thurston, an
individual, non-class action case, cited 
eamsters to support the conclusion that 

direct evidence of a policy of 
discrimination shifts the burden of proof 
to the employer. 469 U.S. at 121. The 
Court has also relied on the principles 
announced in Teamsters in its decisions 
n other individual, non-class action 

cases. Ê _g. Aikens, 460 U.S. at 714 
n.3; Burdine, 450 U.S. at 254.

73
sufficient to support the finding that 
whites with lesser qualifications were 
transferred or hired into the secretarial 
and accounting positions. She showed 
that when.the company finally decided to 
hire its first black employee some eight 
years after passage of Title VII, the 
idea was so traumatic that it required 
special meetings and counseling.50 * She 
also introduced evidence sufficient to 
support a finding of racial harassment.

When a pattern of discrimination is 
shown, the only additional evidence 
necessary to establish an individual 
claim is that the "alleged individual 
discriminatee unsuccessfully applied for 
a job and therefore was a potential 
victim of the proved discrimination."

50Stevenson testified that prior to
Patterson's employment, he held a staff 
meeting to explain "that we had not had 
black employees before, and the white 
people in the past had not had any 
experience working with black people." 
TR 3-96 to 3-97. «*.'



74

431 U.S. at 362. Moreover, an
application is not necessary if the 
employer's discrimination discouraged the 
worker from applying. Id. at 365-66.51 
Clearly, proof of the plaintiff's 
superior gualifications is not necessary 
for the plaintiff to make out a prima 
facie case under this method of proof.

3 • Remarks betraying racial prejudice.
Remarks by a key decisionmaker that 

reflect racial prejudice or racially 
stereotypical thinking are directly

51Patterson's proof that she was 
never able to find out about vacancies in 
order to apply is sufficient to satisfy 
this requirement, particularly since she 
expressed a general interest in 
promotional opportunities. See JA at 40;

v •__A_&__P Tea Co. . 772 F.2d 1372,
1376, 1377 (7th Cir. 1985), cert. denied, 
106 S.Ct. 3311 (1986); Carmichael v.
Birmingham Saw Works. 738 F.2d 1126, 
1132-34 (11th Cir. 1984); Ostroff v!
Employment Exchange. 683 F.2d 302, 304
(9th Cir. 1982) ; Reed v. Lockheed 
Aircraft Corp. , 613 F.2d 757, 761, 762(9th Cir. 1980).

7 5

probative of the employer's state of mind 
in making personnel decisions. E.g. 
Miles v. MNC Corp. . 750 F.2d 867, 874
(11th Cir. 1985); Van Houdnos v. Evans. 
807 F. 2d 648, 652-653 (7th Cir. 1986).
Such remarks alone can support an 
inference of discriminatory intent.52 
For example, in Miles v. MNC Corp. . 750
F. 2d at 874, the Eleventh Circuit held 
that a single racial slur, if believed by 
the factfinder, would be sufficient to 
e s t a b l i s h  the e x i s t e n c e  of a 
discriminatory motive that would shift 
the burden of proof to the defendant. In 
Miles, a former employee of the defendant 
testified that when she asked the hiring 
official "why they didn't have any 
blacks," he replied: "Half of them
weren't worth a shit." Id. at 874. The

52"As in any lawsuit, the plaintiff 
[in an employment discrimination case] 
may prove his case by direct or 
circumstantial evidence." Aikens, 460 
U.S. at 714, n.3.



76
court of appeals ruled that the trier of 
fact should first determine whether it 
believed this evidence. id. at 875. if 
so, the existence of a discriminatory 
motive would be established. The burden 
of proof then would shift to the 
defendant to prove that it would have 
made the same decision in the absence of 
the illegal motive. Id. at 875-876.

The facts of the instant case are 
almost identical to those in Miles v. MNC 
(~’orP • Both cases involved a racial slur 
that directly denigrated the work 
abilities of blacks. The statement in 
this case that blacks are "slower by 
nature" than whites is almost identical 
to the statement in Miles. in both cases 
the remark was made by the decisionmaker 
involved in the decision challenged by 
the plaintiff. Moreover, the remark in 
this case is consistent with a number of
other statements made by defendant's

77
President which reflect racial prejudices 
and policies. By requiring proof of the 
plaintiff's superior qualifications, the 
district court erroneously prevented the 
jury from considering whether this 
evidence e s t a b l i s h e d  defendant's 
discriminatory intent.

4. Proof of pretext. ,
I n McDonnell Douglas v. Green, 411 

U.S. 792 (1973), and subsequent cases,53 
the Court developed a model of proof of 
discriminatory intent based on indirect 
evidence.54 The McDonnell Douglas line

53Board of Trustees of Keene State 
College v. Sweeney. 439 U.S. 24 (1978); 
Furnco Construction Corp. v. Waters. 438 
U.S. 567 (1978); Texas Dept. of 
Community Affairs v. Burdine. 450 U.S. 
248 (1981); United States Postal Service 
v. Aikens. 460 U.S. 711 (1983).

54Although this method of proof was 
developed in the context of claims under 
Title VII, it would seem equally 
applicable to the identical issue of 
individual disparate treatment under 
section 1981. E .g .. Ramsey v. American

(continued...)



7 8

of cases recognizes that direct evidence 
of discriminatory intent, such as that 
discussed above, is rarely available. 
"There will seldom be 'eyewitness' 
testimony as to the employer's mental 
processes." Aikens. 460 U.S. at 716.
Moreover, these cases make clear that 
proof of a general, widespread pattern 
and practice of discrimination under the 
Teamsters model is not necessary for an 
individual plaintiff to prevail on a 
claim related to an adverse action in a 
specific situation.

The McDonnell Douglas line of cases 
focuses on the employer's reasons for 
making specific personnel decisions. 
Rather than directly seeking to prove the 
employer's state of mind, this method of 
proof seeks to eliminate all of the other 54

54(...continued)
Air Filter Co.. 772 F.2d at 1307; Carter
v.:__ Duncan-Huggins, Ltd.. 727 F.2d at1232.

I
7 9

possible reasons for the employer's 
decision, leaving discrimination as the 
only remaining explanation. "[W]hen all 
legitimate reasons for rejecting an 
applicant have been eliminated as 
possible reasons for the employer's 
actions, it is more likely than not the 
employer, who we generally assume acts 
only with some reason, based his decision 
on an impermissible consideration such as 
race." Furnco. 438 U.S. at 577.

The model utilizes a three-stage 
method of proof. The plaintiff first has 
the burden of establishing a prima facie 
case. McDonnell Douglas, 411 U.S. at 
802; Burdine. 450 U.S. at 252-53. Once 
the plaintiff establishes a prima facie 
case, the burden shifts to the defendant 
to "produc[e] evidence" that its decision 
w a s  b a s e d  on "a l e g i t i m a t e ,  
nondiscriminatory reason." Burdine, 450
U.S. at 254. The defendant's burden is



80
one of production, not proof. "If the 
defendant carries this burden of 
production, the presumption raised by the 
prima facie case is rebutted and the 
factual inquiry proceeds to a new level 
of specificity." Burdine. 450 U.s. at 
255. The plaintiff must then be provided 
a full and fair opportunity to 
demonstrate that the asserted reason is a 
pretext for discrimination. "This burden 
now merges with the ultimate burden of 
persuading the court that she has been 
t h e  v i c t i m  of i n t e n t i o n a l  
discrimination." Id. at 256.

Logic supports the conclusion that 
when the plaintiff relies on the
McDonnell__ Douglas approach to prove
intent, an absolute requirement that she 
prove her superior qualifications is 
improper, even where the employer 
articulates the selectee's superior 
qualifications as the purported reason

81
for its decision. Under the McDonnell 
Douglas method of proof, plaintiff's 
burden is to demonstrate that the 
"proffered explanation is unworthy of 
credence." Burd i ne. 450 U.S. at 256.
The plaintiff may be able to discredit 
the employer's reason without proving 
that her qualifications are superior.

At least two factual assertions are 
inherent in the employer's articulation 
t h a t  t h e  s e l e c t e e ' s  s u p e r i o r  
qualifications were the reason for its 
decision. One factual assertion is that 
the selectee's qualifications are in fact 
(or were genuinely perceived to be) 
superior, rather than equal or inferior 
to those of the plaintiff. The second 
assertion is that the employer actually 
r e l i e d  on th i s  d i s p a r i t y  in 
qualifications in making its decision.

Obviously, one way to discredit the 
employer's proffered explanation is to



82
show that it is untrue because plaintiff 
is the more qualified candidate. This is 
not the only way to accomplish this 
result, however. There are at least 
three ways through which the plaintiff 
can meet her burden of discrediting the 
proffered explanation that do not involve 
proof of her superior qualifications. 
First, the plaintiff could convince the 
factfinder that her qualifications are 
equal (or were perceived as equal) to 
those of the selectee. For example, in 
Hawkins v. Anheuser-Busch. Inc.. 697 F.2d 
810, 814-15 (1983), the court found the
defendant's explanation that the 
selectee's qualifications were superior 
to be a pretext, because the plaintiff 
proved that she was at least as qualified 
for the position. Thus, under Hawkins, 
in the appropriate circumstances a 
showing of equal qualifications would be 
sufficient to prove the Title VII claim

83
because it would demonstrate that the 
decision was made for reasons other than 
the candidates' relative qualifications.

Second, the plaintiff could convince 
the factfinder that the employer more 
likely than not did not rely on 
qualifications in making its decision. 
The plaintiff might cast doubt on the
employer's reliance on alleged superior

1
qualifications by showing that the 
employer normally promotes on the basis 
of seniority. Or, as in Joshi v. Florida 
State University Health Center. 763 F.2d 
1227, 1235 (11th Cir. 1985), the
plaintiff could prove that the relative 
qualifications of the selectee could not 
be the actual reason for the defendant's 
refusal to hire plaintiff, since the 
plaintiff was not actively considered for 
the position.

Third, the plaintiff might simply 
convince the factfinder that the asserted



84
reason is not credible. As the ultimate 
judge of credibility, the factfinder in 
making this determination could rely on 
any number of factors, from direct 
evidence of discriminatory motive to 
inconsistencies in the testimony to 
demeanor and inflection.55

The Court in McDonnell Douglas 
rejected any restriction on the ways in 
which a plaintiff may prove pretext and 
thus prevail on the ultimate question of 
discrimination. The Court in that case 
suggested a variety of types of evidence

55See Anderson v. Bessemer City, 470 
U.S. 564, 575 (1985) ("variations in
demeanor and tone of voice . . . bear so 
heavily on the listener's understanding 
... of and belief in what is said"; 
"[d]ocuments or objective evidence may 
contradict the witness' story; or the 
story itself may be so internally 
inconsistent or implausible on its face 
that a reasonable fact finder would not 
credit it"). See also Kilgo v. Bowman 
Transportation. 789 F.2d 859, 875 (11th
Cir. 1986)(employer's articulated reason 
found "unconvincing" because the reason constantly shifted).

85
that might be offered on the ultimate 
question of intent. Only one of the 
types of evidence mentioned by the Court 
involved a direct comparison between the 
plaintiff and the selectee with respect 
to the factor articulated by the employer 
as the decisive factor.56 * The Court did 
not indicate that this type of 
comparative evidence is required; only 
that such evidence would be "[e]specially 
relevant." 411 U.S. at 804. "Other 
evidence that may be relevant to any 
showing of pretext includes facts as to

56The Court concluded: "Especially
relevant to [a showing that the 
employer's stated reason was a pretext] 
would be evidence that white employees 
involved in acts against petitioner of 
comparable seriousness to the 'stall-in' 
were nevertheless retained or rehired." 
411 U.S. at 804. The treatment of 
persons with comparable misconduct in 
McDonnell Douglas is analogous to 
evidence of plaintiff's superior 
qualifications in a case where the 
employer articulates the selectee's 
superior qualifications as the reason for 
its decision. In each case, the evidence 
goes to a direct comparison of plaintiff 
and the selectee on the articulated factor.



86
the petitioner's treatment of respondent 
during his prior term of employment; 
petitioner's reaction, if any, to 
respondent's legitimate civil rights 
activities; and petitioner's general 
policy and practice with respect to 
minority employment.'* McDonnell Dougiasf 
411 U.S. at 804-805.

The "superior qualifications" 
instruction prevented the jury in this 
case from considering whether plaintiff 
had p r oved that the employer's 
articulated reason was not worthy of 
credence.57 Plaintiff introduced

57The jury instruction in the 
instant case had an additional flaw. The 
court charged the jury that it was 
required to find both that plaintiff's 
race was "the real reason that she did 
not receive the promotion," and that 
plaintiff was more qualified than the 
selectee. JA 40-41, 42-43. However,
these are alternative ways to prove 
pretext. E.g., Burdine. 450 U.S. at 256. 
If the plaintiff discredits the 
employer's articulated reason, no further 
proof of intent is required. id.; 
Aikens, 460 U.S. at 716; id. at 717-718 
(Blackmun, J., joined by Brennan, J., concurring).

substantial evidence to support such a 
conclusion. In addition to the direct 
and circumstantial evidence discussed 
above, Patterson introduced evidence from 
which the jury could have concluded that 
her qualifications were at least equal to 
those of Williamson.58 Patterson also 
introduced evidence that Williamson's 
qualifications resulted from training 
that Patterson was denied because of her 
race. TR 1-48 to 1-49, 3-187 to 3-188.59

I
87

58Patterson had a college degree, 
while Williamson had taken only a few 
college courses. TR 1-47 to 1-48.
Patterson also had more seniority with 
the company. Id. One of Williamson's 
s u p e r v i s o r s  severely c r i t i c i z e d 
Williamson's job performance and 
knowledge of accounting functions. TR 
1-159, 2-190 to 2-191.

59The district court concluded that 
"plaintiff offered evidence tending to 
show that she had not been trained for 
the job of accountant intermediate 
because of her race and was thus denied 
the promotion because of her race." JA 
41. However, the court related the 
allegation of discriminatory training to 
Patterson's burden of proving that race 
was the real reason for the selection of

(continued...)



88
Finally, Patterson introduced evidence 
suggesting that she was not actually 
considered for the promotion and that the 
employer was not fully aware of her 
qualifications. TR 3-179 to 3-180, 
4-27.59 60
B. Proof of Superior Qualifications Is 

Not Necessary To Establish a Prima Facie Case______
The district court justified the 

" s u p e r i o r  q u a l i f i c a t i o n s "  jury 
instructions on the ground that this 
element of proof is necessary to 
establish a prima facie case of

59(...continued)
Williamson, and did not instruct the jury 
that a finding in favor of plaintiff on 
the training allegation would negate the 
requirement that she prove that her 
qualifications were superior. id.

^See, e.q., Joshi v. Florida State 
University Health Center. 763 F.2d 1227, 
1235 (11th Cir. 1985); Eastland v. 
Tennessee Valley Authorityf 704 F.2d 613, 
625-26 (11th Cir.), modified on other 
grounds. 714 F.2d 1066 (1983), cert. 
denied, 465 U.S. 1066 (1984); Lowerv v. 
WMC-TV. 658 F. Supp. 1240, 1259, vacated 
on other grounds. 661 F. Supp. 65 (W.D. 
Tenn. 1987).

89
employment discrimination. As discussed 
above, it is not necessary for plaintiff 
to establish her superior qualifications 
to prevail on the ultimate question of 
discriminatory intent. It follows that 
the plaintiff cannot be required to meet 
this burden at the prima facie case 
stage. Moreover, once the case has gone 
to the factfinder on the ultimate 
question of intent, it is not necessary 
to consider whether the plaintiff had 
established a prima facie case. Aikens. 
460 U.S. at 715-716. Nonetheless, 
because the jury instruction in this case 
was based on the district court's 
understanding of the prima facie case 
requirements, petitioner will address 
below the issue of plaintiff's burden at 
the prima facie case stage.

Requiring the plaintiff to prove her 
superior qualifications at the prima 
f a c i e  case stage is logicallycase stage



90
inconsistent with the theory behind the
McDonnell_Douglas method of proof. The
purpose of the prima facie case is not to 
ascertain whether the plaintiff has 
proved her entire case. Rather, the 
purpose is to determine whether the 
plaintiff has proved enough to make it 
fair to ask the employer to assist the 
plaintiff in further development of the 
case, by focusing the issue and saving 
time for everyone.61 The employer has

lThe McDonnell Douglas tripartite 
method of proof is designed "to bring the 
litigants and the court expeditiously and 
f?irlY [the] ultimate question" of
discriminatory intent. Burdine. 450 U.S. 
at 248. The major purpose of the prima 
facie case in this situation is not to 
"hel[p] the judge to determine whether 
the litigants have created an issue of 
fact to be decided by the [factfinder]." 
Burdine, 450 U.S. at 254, n.8. Rather,
"the creation of a presumption by the 
establishment of a prima facie case is 
intended progressively to sharpen the 
inquiry into the elusive factual question 
of intentional discrimination." id. The 
employer's intermediate burden of 
articulation operates simply to "frame 
the issue with sufficient clarity." id. 
at 255. Given the wide variety of

(continued...)

91
superior access to information about the 
actual reasons for its decision, and in 
many cases only the employer can specify 
which qualifications it considered 
important or how it weighed the different 
factors, such as education and 
experience, that comprise a candidate's 
qualifications.

Under the method of proof adopted in 
McDonnell Douglas and Burdine. the 
p l a i n t i f f  bears the burden o f  

discrediting only the reason or reasons 
articulated by the defendant. Comparative 
qualifications may not even be one of

61(...continued)
reasons that might possibly have 
motivated a particular decision, it makes 
sense, once the plaintiff has established 
that she applied, met the minimum 
qualifications and was rejected for a 
position, to require the employer to 
narrow the focus by identifying its 
purported actual reason.



92

those reasons.62 For example, in
McDonnell Douglas, the employer met its 
burden of articulation by introducing 
evidence that its decision not to rehire 
plaintiff was based on plaintiff's prior 
misconduct. The relative qualifications 
of plaintiff and the persons who were 
rehired never became an issue in the 
case. Yet, if the plaintiff had been 
required to prove his superior 
qualifications at the prima facie case 
stage, the case might have been dismissed 
before he had "a full and fair
opportunity" to introduce evidence on the

. ^Although it is socially desirable
decLions o^ r̂ h^hke hiring and Promotion uecisions on the basis of qualifications
HgDonnell Douglas, 411 u.s. at 801, it ii
common knowledge that other factors such
as prior employment, F u r ^ ,  « 8
. . ‘ , 570, disciplinary record

senioATv re^ rd' recommendations and seniority often are influential or
decisTon^ ^ P a c ?  i h i? .in<3 . or Promotion ecisions. Racial discrimination also
frequently is the real reason behind 
employment-related decisions.

93

factual questions that were actually 
relevant.

The McDonnell Dongle iine of 
cases indicates that, with respect to 
qualifications, the plaintiff's initial 
burden is to establish only that she 
meets the minimum, nondiscriminatory 
qualifications for the job at issue. In 
McDonnell Douglas, the plaintiff's burden 
at the prima facie stage was to show that 
he was "qualified." 411 U.S. at 802. 
The plaintiff met this burden by proving 
that his past work performance had been 
"satisfactory." id. The Court did not 
even consider how the performance and 
experience of the applicants who were 
hired compared to that of the plaintiff.

In Burdine, the Court noted that 
[t]he burden of establishing a prima 

facie case of disparate treatment is not 
onerous." 450 U.S. at 253. As in 
McDonnell__ Douglas. the Court had no



94

difficulty in concluding that the 
plaintiff had met this burden by showing 
that she was "a qualified woman." Id. at 
n. 6. The Court again did not consider 
whether the plaintiff was more qualified 
than the selectee. Yet, the court of 
appeals had ruled that the plaintiff met 
the qualification requirement of the 
prima facie case, on the ground that she 
had been considered for the open position 
and the selecting official "refused to 
state that plaintiff was not qualified 
... [but] merely asserted that Watts was 
£gtter— qualified." Burdine v. Texas 
Dept, of Community Affairs,. 608 F.2d 563, 
567, n . 6 (5th Cir. 1979) (emphasis 
added). Moreover, the issue directly 
raised and decided in Burdine was 
whether, in order to rebut the 
plaintiff's prima facie case, the 
defendant bears the burden of proving 
that the qualifications of the plaintiff

9 5

are inferior to those of the selectee. 
If the Court's finding that plaintiff 
s a tisfied the prima facie case 
requirement meant that plaintiff had 
proved her superior qualifications, then 
the question of the defendant's burden to 
prove that she was inferior would have 
never arisen.

Similarly in Furnco. 438 U.S. at 
576, the Court concluded that the 
plaintiffs established a prima facie case 
by proving that: "they were members of a 
racial minority; they did everything 
within their power to apply for 
employment; [the defendant] lias conceded 
that they were qualified in every respect 
for the jobs which were about to be open; 
they were not offered employment ...; and 
the employer continued to seek persons of 
similar qualifications." (Footnote 
omitted). The Court did not require
proof that the plaintiffs were more



96
qualified than the persons actually 
hired, but only that the plaintiffs were 
"fully qualified." Id. at 570. The 
defendant's contention that its hiring 
practice resulted in "highly qualified," 
"experienced," "skilled and competent," 
workers, id. at 571-572, was properly 
considered at the second and third stages 
of the litigation, and not as an aspect 
of the prima facie case. Id. at 576-80.

The lower federal courts are 
unanimous in concluding that proof that 
the plaintiff possesses the minimum 
qualifications is all that is required to 
satisfy the qualifications element of the 
McDonnell Douglas prima facie case.

63Seventh Circuit: Javasinghe v.
Bethlehem Steel Corp.. 760 F.2d 132, 134- 
35 (1985).

Eighth Circuit: Hawkins v. Anheuser- 
Busch. Inc.. 697 F. 2d 810, 813 (8th Cir. 
1983) .

Ninth Circuit: Foster v. Areata
Associates, Inc.. 772 F.2d 1453, 1460

(continued...)

97
In several recent cases, the Court 

of Appeals for the Fourth Circuit appears 
to have misunderstood the role of the 
prima facie case and has placed unduly 
harsh burdens of proof on the plaintiff. 
The district court's ruling that the 
plaintiff must establish her superior 
qualifications in order to make out a 
prima facie case may have been based on 
this same fundamental misconception. 
This misunderstanding, which seems to be 
gaining momentum, will, if not corrected, 63 * *

63(...continued)
(9th Cir. 1985), cert, denied. 106 S. Ct. 
1267 (1986); Lynn v. Regents of
University of California. 656 F.2d 1337, 
1344-45 (9th Cir. 1981) , cert, denied. 
459 U.S. 823 (1982).

Tenth Circuit: Burrus v. United
Telephone Co.. 683 F.2d 339, 342-43 (10th 
Cir.), cert, denied. 459 U.S. 1071 
(1982) ;

District of Columbia Circuit: 
Mitchell v. Baldridge. 759 F.2d 80, 85
(D.C. Cir. 1985).



98
result in improper jury instructions and 
improper dismissals of meritorious 
claims.

Relying on language to the effect 
that the prima facie case "give[s] rise 
to an i n f e r e n c e  of u n l a w f u l  
discrimination,1,64 the Fourth Circuit has 
required a higher level of proof at the 
prima facie case stage than is mandated 
under McDonnell Douglas and Burdine.65 
The fundamental misunderstanding that has 
led the Fourth Circuit into error is the

64lJ_g. Burdine. 450 U.S. at 253.
See, e  ̂g . Robinson v. Montgomery 

-^rd/ 823 F.2d 793 (4th Cir. 1987)
petition— for_cert, filed, No. 87-801
(November 12, 1987); Lytle v. Household 
Mlg. Inc., No. 86-1097, slip op. (October 
20, 1987); Holmes v. Bevilaccma. 794 
F.2d 142 (4th Cir. 1986) (en banc);
Moore v._ City of Charlotte, 754 F.2d 1100 
(4th Cir.), cert, denied, 105 S.Ct. 3489 
(1985). See also Foster v. Tandy Corn. 
44 Fair Empl. Prac. Cases 1518 (September 
16, 1987) (judgment notwithstanding the 
verdict entered, overturning jury verdict in favor of plaintiff).

99
assumption that it is the plaintiff's 
prima facie case alone that supports an 
inference of discrimination.66 The Court 
has repeatedly made clear that this is an 
incorrect assumption. Rather, the 
inference of discrimination arises from 
the combination of the prima facie case 
and the employer's failure to provide an 
explanation for its decision. "A prima 
facie case under McDonnell Douglas raises 
an inference of discrimination only 
because we presume that these acts, if 
otherwise unexplained, are more likely 
than not based on the consideration of

66The Court in Holmes v, Bevilacqua 
reasoned that the plaintiff's proof that 
he was a minority, that he was qualified, 
that he applied and that he was rejected 
in favor of a white person, was not 
sufficient "to justify the presumption of 
discrimination." 794 F.2d at 146-147. 
Similarly, in Moore. the Court reasoned 
that the McDonnell Douglas factors did 
not support "the finding of intentional 
discrimination." 754 F.2d 1110.



• « 100
impermissible factors." Furncof 438 U.S. 
at 577.

Under the McDonnell Douglas method 
of proof, the employer's asserted reason 
for its action, or the employer's failure 
to produce such a reason, often is the 
central piece of evidence. The 
employer's inability even to articulate a 
reason for its decision speaks volumes. 
Because the lack of any articulated 
non-discriminatory reason is such strong 
proof of discrimination, it is entirely 
appropriate that the rest of plaintiff's 
evidence make only a supporting 
contribution to the inference of 
discrimination.

Thus, the prima facie case standard, 
as applied in McDonnell Douglas ancj 
Burdine, is justified by the central 
importance of the employer's articulated 
reason, the efficiency gained by 
requiring the employer to come forward

101
with this reason at an early stage of the 
trial and the relative ease with which 
the employer can meet its burden of 
rebutting the prima facie case. It is 
neither necessary nor appropriate to use 
the prima facie case as a vehicle for 
wholesale dismissal of allegedly non- 
meritorious cases. Unless the employer 
is unable to articulate a legitimate, 
n o n - d i s c r i m i n a t o r y  reason, the 
plaintiff's case is not sufficiently far
enough along at this point to make a
judgment whether there is sufficient
evidence to raise a triable issue. By
definition, the bulk of plaintiff's
evidence of intent will come at the 
pretext stage, after the issues have been 
focused by the employer's articulation. 
Thus, the Court should reaffirm that the 
McDonnell Douglas and Burdine criteria 
still govern proof of a prima facie case.



• • ■
102

Conclusion
For the reasons stated, the decision 

of the court of appeals should be 
reversed and the case should be remanded 
for a new trial.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON*

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

PENDA D. HAIR
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278

HAROLD L. KENNEDY, III 
HARVEY L. KENNEDY 
Kennedy, Kennedy, Kennedy, 

and Kennedy
710 First Union Building 
Winston-Salem, N.C. 27101 
(919) 724-9207

Attorneys for Petitioners
♦Counsel of Record