Althiser v. New York State Department of Correctional Services Petition for a Writ of Certiorari

    No. 92-938

In  T h e

Supreme Court of tfje 'SHniteb
Octo b er  T e r m , 1993

Maurice Rivers and Robert C. Davison,
Petitioners,

v.

Roadway E xpress, Inc.,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR PETITIONERS

Elaine R. Jones 
‘Charles Stephen Ralston 
Eric Schnapper 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Cornelia T.L. Pillard 
Kerry Scanlon 
NAACP Legal Defense & 

Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington. D.C. 20005 
(202) 682-1300

Ellis Boal 
925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Attorneys for Petitioners

‘Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

TABLE OF CONTENTS

ARGUMENT ............................................. .........................  1

I. THE 1991 CIVIL RIGHTS ACT ITSELF MAKES
CLEAR THAT § 101 APPLIES HERE .................  1

A. The Statute’s Text and Structure Support
Application of § 1 0 1 ...................................... 1

B. The Identity Between § 1981 Prior to
Patterson v. McLean Credit Union and As 
Amended By § 101, and the Virtually 
Unanimous Acknowledgment in Congress 
of that Identity, Confirm that § 101 is 
Restorative ..........................     5

II. TH IS C O U R T  SH O U LD  R E A F F IR M  
BRADLEY V RICHMOND SCHOOL BOARD,
AND APPLY § 101 HERE ................    6

A. The Default Rule Respondents Advocate 
Would Require the Courts to Make 
Difficult and Unguided Distinctions 
Between New Statutes that Apply to 
Pending Cases and New Statutes that Do
Not .........................................................................   7

B. Bradley Was Consistent With Prior Law . . . .  11

1. Supreme Court C ase s ......................................  12

2. Court of Appeals Decisions ..........................  12

3. Treatises ............................................................  12



4. State Constitutions and Laws . . . . . . . . . .  14

5. English Cases . . . . . . . . . . . . . . . . . . . . . .  14

6. Prior Views of Respondent’s Counsel . . . .  15

C. Section 101’s Remedial and Procedural 
Nature is Unaffected By Whether § 1981 
is "A Distinct Positive Law" From Title
VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  16

III. T H I S  C O U R T  S H O U L D  N O T  
RETROACTIVELY CHANGE RULES ABOUT 
STATUTORY APPLICABILITY UPON WHICH 
CONGRESS HAS RELIED . . . . . . . . . . . . . . . .  19

CONCLUSION ----------------. . . . . . . . . . . . . . . . . . .  20

11

APPENDICES B-O



TABLE OF AUTHORITIES

CASES PAGE

Alexander v. Gardner-Denver,
415 U.S. 36 (1974).............. ............. .......................  17

Bowen v. Georgetown University Hosp.,
488 U.S. 204 (1988) . . . . . . . . ----- . . . . . . . . . .  10

V Bowles v. Strickland,
151 F.2d 419 (5th Cir. 1945) ................... .. 11, 12

i  Dargel v. Henderson,
200 F.2d 564 (Em. Ct. App. 1952) ........................  12

Bradley v. Richmond School Board,
416 U.S. 696 (1 9 7 4 )............   passim

, Chevron US, Inc. v. National Resources Defense Council,
■ Inc.,

467 U.S. 837 (1 9 8 4 )........ 4

■ Cox v. Thomason,
2 C. & J. 498 (Ct. Exch. 1 8 3 2 )............ .. 15

Dash v. Van Kleeck,
5 Am. Dec. 291 (1811)..........................  14

Freeman v. Moyers,
1 A. & E. 338 (K. B. 1834) ................................. .. 15

Johnson v. Railway Express Agency, Inc., 
421 U.S. 454 (1 9 7 5 )................... 17



IV

Kaiser Aluminum & Chemical Corp. v. Bonjomo,
494 U.S. 827 (1990) . . . . . . . . . . . . . . . . . .  . passim

V  Kimbray v. Draper,
3 Q.B. (L.R.) 160 (Q.B, 1868) . . . . . . . . . . . . . .  15

— Larkin v. Saffarans,
15 F. 147 (C.C. W.D. Tenn. 1883) . . . . . . . .  11, 12

Leatherman v. Tarrant County,
113 S. Ct. 1160 (1993) . . . . . . . . . . . . . . . . . . . .  18

Lytle v, Household Manufacturing, Inc.,
494 U.S. 545 (1990) . . . . . . . . . . . . . . . . . . . . . .  18

Minority Police Officers v. City o f South Bend,
617 F. Supp. 1330 (N.D.Ind. 1985) . . . . . . . . . . . .  6

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . .  5, 17

<  Pennsylvania v. Union Gas Co.,
491 U.S. 1 (1989)................... ........... ........... .. . 3, 16

A,Society v. Wheeler,
2 Gall. 139 (1814) . . . . . . . . . . . . . . . . . . . . . . .  13

Sturges v. Carter,
114 U.S. 511 (1885) . . . . . . . . . . . . . . . . . . . . . .  14

Thorpe v. Housing Authority o f Durham,
393 U.S. 268 (1969) . . . . . . . . . . . . . . . . . . . . . . .  6

'dTowler v. Chatterton,
6 Bing. 258 (Ct. Com. Pleas. 1829) . . . . . . . . . . .  15



V

United States v. Burke,
112 S. Ct. 1867 (1992) . . . ___ . . . . . . . . . . . . .  17

v United States v. McMann,
434 U.S. 192 (1977)....... .............................................4

Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1 9 8 9 )........................ 3

Weaver v. Graham,
450 U.S. 24 (1981)............ ........... ....................... 1, 2

Williams v. Atchison, Topeka and Santa Fe Railway,
627 F. Supp. 752 (W.D.Mo. 1986) .......... ................6

•< Wright v. Hale,
6 Hurl. & Norm. 226 (Ct. Exchequer 1860) . . . .  14 

STATUTES

i y  Rules Enabling Act, 28 U.S.C. § 2027(a)........................ . 10

42 U.S.C. § 1981 ................... .............................. .. passim

42 U.S.C. § 2000e-e£ s e q ............................................. .. passim

MISCELLANEOUS

1 Kent, Commentaries on American Law ................... .. . 13

Smead, The Rule Against Retroactive 
Legislation: A Basic Principle of 
Jurisprudence, 20 Minn. L. Rev. (1936) . . . . . . .  14



ARGUMENT
I. THE 1991 CIVIL RIGHTS ACT ITSELF MAKES

CLEAR THAT § 101 APPLIES HERE

A. The Statute’s Text and Structure 
Support Application of § 101

The central statutory construction question relating to 
the applicability of the Civil Rights Act of 1991 is what 
meaning to give to § 402(a). Respondents urge the Court to 
abandon any effort to divine meaning from the language of 
the statute. They argue that each of the key statutory 
provisions which bear on the statute’s applicability — 
§ 402(a), § 402(b) and § 109(c) — is devoid of meaning. 
Evaluated under normal principles of construction, however, 
these provisions are certainly as clear as the provisions this 
court has readily construed in Kaiser Aluminum & Chemical 
Corp. v. Bonjomo, 494 U.S. 827 (1990), and other cases.

Roadway’s only argument that the Act makes § 101 
inapplicable is that the phrase "take effect upon enactment" 
was routinely interpreted to apply only to conduct and trials 
occurring after enactment. Roadway Br. at 15. The six court 
of appeals decisions upon which Roadway relies in support of 
this assertion simply do not hold that such language means 
that a statute is not to be applied to pending cases. On the 
contrary, four of Roadway’s cited cases expressly assert that 
such language did not resolve the question of applicability of 
the statutes at issue. The other two of Roadway’s cases rely 
on different statutory language not present in the 1991 Act in 
addition to the general effective date provision. See 
Appendix B. Based on these cases, a Congress presumed to 
know the existing law would have no basis whatsoever to 
assume that "take effect upon enactment" means that the 
statute shall not apply to pre-Act conduct.

In Weaver v. Graham, 450 U.S. 24 (1981), another case 
upon which Roadway relies, this Court held that language 
requiring application of new statutory provisions "on the



2

effective date of the act" must be read to mean that new 
provisions did apply to pre-Act conduct. In Weaver, this 
Court considered whether a Florida statute diminishing gain 
time earned by convicted prisoners by its express terms 
applied to gain time earned pre-enactment. The Court 
determined that the statute on its face "[c]learly" would apply 
"to prisoners convicted for acts committed before the 
provision’s effective date." Id. at 31.1 Thus, under Weaver 
the Court could, based on the language of § 402(a) alone, 
construe § 101 to apply to pending cases addressing pre-Act 
discrimination.

In addition to § 402(a), the sections excepting certain 
pre-Act cases and conduct from the general rule —- §§ 402(b) 
and 109(c) — support petitioner’s position that the Act 
expressly applies. These exceptions must be read under 
established canons to (i) have a meaning different from 
(rather than redundant of) § 402(a) and2 (ii) describe the 
only situations receiving the specific treatment they demand.3

The existence of specific exceptions suffices to make 
clear the underlying rule even under the exacting standard

1 Once it determined that the statute would apply, the Court then 
proceeded to determine that the gain-time amendment violated the ex post 
facto clause, but in doing so the Court expressly distinguished its analysis 
under the ex post facto clause from "the test for evaluating retrospective 
laws in the civil context." Id. at 29, n. 13.

2 See Appendix C (listing Supreme Court cases retying on the anti­
redundancy canon).

3 See Appendix D (listing Supreme Court cases relying on the 
canon that the inclusion of one tiling implies the exclusion of others 
("expressio unius est exclusio alterius"), including two during 1993).



3

applied in Eleventh Amendment cases.4 In Pennsylvania v. 
Union Gas Co., 491 U.S. 1 (1989), the Court was faced with 
precisely the same kind of indicia of intent that petitioners 
point to here, and it held that those indicia sufficed to show 
that CERCLA subjected the states to suit in federal court. 
Under CERCLA, the general definition of "owners and 
operators" was held to be ambiguous standing alone, id. at 8, 
n. 2, but an exception that excluded states from liability under 
certain circumstances made clear that states were otherwise 
subject to suit. That exception acted as "an express 
acknowledgement of Congress’ background understanding ... 
that States would be liable in any circumstance ... from which 
they were not expressly excluded." Id. at 8.

The substance of the Civil Rights Act supports 
petitioners’ interpretation of § 402(a). Under Roadway’s 
view, §§ 402(b) and 109(c) are redundant, and Roadway 
implies that but for errors in final drafting these provisions 
would have been eliminated. Roadway Br. at 23. On the 
face of the statute, however, it makes sense that Congress 
chose to bar application of the Act to pending cases only with 
regard to §§ 109(c) and 402(b). While most of the 1991 Act 
is procedural and remedial, § 109(c), in contrast, clearly made 
illegal under Title VII conduct which had previously been 
wholly legal. Section 402(b), which only makes the Act 
inapplicable to Wards Cove Packing Co. v. Atonio, 490 U.S. 
642 (1989), was arguably a targeted effort to put to rest a

4 The proper standard of clarity according to which the 1991 Act 
should be read is not a clear-statement rule, but the standard this Court 
employed in Bonjonio. Under Bonjomo, whether the statute’s "plain 
language" requires that it be applied to pending cases is determined by 
"the most logical reading of the statute," 494 U.S. at 839, 838, which may 
be "[ijmplicit," id., 839, and need not be "clear and unequivocal," as 
Roadway asserts.



4

case in which, after sixteen years of litigation, plaintiffs had 
not established any liability.5

Roadway and USI Film Products are, in effect, 
arguing that they, too, should have been included in the 
statute’s two express exceptions and obtained the same 
treatment as defendants in cases by United States nationals 
abroad under § 109(c) and the Wards Cove case under 
§ 402(a). Roadway contends that the change made by § 101 
is like the change made by § 109, even though for Roadway, 
unlike for ARAMCO, the discrimination alleged was illegal 
all along under Title VII, and § 101 has no subsection like 
§ 109(c) limiting its applicability. USI Film Products 
contends that providing for new remedies is unfair in a case 
filed in 1989, but the change made by § 402(b) expressly drew 
a different line, finding unfairness only in applying the Act to 
old cases in which "a complaint was filed before March 1, 
1975." It is thus respondents themselves, not petitioners, who 
are "waging in a judicial forum a specific policy battle which 
they ultimately lost." USI Film Products Br. at 16-17, quoting 
Chevron US, Inc. v. National Resources Defense Council, Inc. , 
467 U.S. 837, 864 (1984).

Respondents seek to undercut the "most logical 
reading" of the statute by reference to legislative history . But 
where the language is reasonably clear, legislative history 
must not be relied upon to create ambiguity. United States v. 
McMann, 434 US 192, 199 (1977). After the language of the 
Act was agreed upon, statements were made on the floor of 
the Senate expressing conflicting views on its meaning. Prior 
to enactment, however, the vast majority of voting members 
expressed no position at all about the meaning of the 
effective date provisions, and all that is known about most

5 The constitutionality of § 402(b) has been challenged in the Wards 
Cove case.



5

members’ views is that they approved the statute’s text. This 
is why the text should be given controlling effect.

B. The Identity Between § 1981 Prior to Patterson v. 
McLean Credit Union and As Amended By § 101, 
and the Virtually Unanimous Acknowledgment in 
Congress of that Identity, Confirm that § 101 is 
Restorative

Respondents concede that, if Congress intended § 101 
to be restorative, such intent would be evidence in favor of 
application of the section to existing cases: "To be sure, the 
‘restorative’ purpose of a law ... may provide a suggestion of 
Congress’ intent to act retroactively." Roadway Br. at 43. 
That § 101 both was restorative and was intended to be is 
made evident by a simple comparison of the state of law prior 
to Patterson v. McLean Credit Union and after the Civil Rights 
Act of 1991. It was well established prior to this Court’s 
Patterson decision that § 1981 generally covered 
discrimination in all aspects of employment. In addition to 
this Court’s repeated assumption that § 1981 covered 
discharge, and the Sixth Circuit’s numerous holdings to that 
effect,6 the nearly 200 cases listed in Appendix E show that 
prior to Patterson § 1981 was overwhelmingly construed to 
cover discrimination in every aspect of employment now 
included in § 101.7

6 See Petitioners’ Br. at 28, nn. 29, 28.

7 Defendants’ assertion that "the law under Section 1981 was in a 
state of flux," Roadway Br. at 30, is completely refuted by the hundreds of 
cases holding § 1981 applicable to all aspects of employment. Virtually 
every federal judge in the United States who dealt with the issue prior to 
Patterson held that § 1981 prohibited discriminatory discharge. In every 
area of the law, no matter how settled, there is always some disagreement. 
But the two lone district court cases upon which Roadway relies do not 
change the reality that § 1981 was interpreted prior to Patterson to have

(continued...)



6

The overwhelming majority of the members of 
Congress who spoke about the provision that was finally 
enacted as § 101 characterized it as restorative. Appendix F 
(listing references to § 1981 as rejecting Patterson to restore 
prior law).7 8

II. THIS COURT SHOULD REAFFIRM BRAD LEY V  
RICHMOND SCHOOL BOARD, AND APPLY § 101 
HERE

If the statutory language is held to be unclear, the 
question is what default rule of statutory applicability governs: 
the established rule of Bradley v. Richmond School Board, 416 
U.S. 696 (1974), and Thorpe v. Housing Authority o f Durham, 
393 U.S. 268 (1969), that new statutes generally do apply, or 
a new rule purposed by respondents under which they might 
not. Roadway urges the Court to overrule Bradley and

7(... continued)
the same coverage as it does amended by § 101. The court in Minority 
Police Officers v. City o f South Bend, 617 F. Supp. 1330, 1352, n. 52 
(N.D.Ind. 1985), was uncertain whether even the Fourteenth Amendment 
prohibited intentional race discrimination in public employment. The 
court in Williams v. Atchison, Topeka and Santa Fe Ry., 627 F. Supp. 752, 
757, n. 5 (W.D.Mo. 1986), actually acknowledged the prevailing 
assumption that Title VII and § 1981 "run parallel, except for the more 
liberal damage potential of § 1981," and cited circuit court precedent to 
that effect.

8 The fact that the statute as it was enacted says that it "expands" 
and provides "additional" protections is not inconsistent with its 
restorativeness, nor is President Bush’s reference to "expanded 
protections." Viewed relative to the law immediately prior to passage of 
the Act in 1991, the law did "expand" and "add" to § 1981 beyond the 
contours Patterson accorded it. Viewed relative to the law as it stood prior 
to Patterson, however, the 1991 Act restored § 1981. This wording does 
not in any way affect the universality of congressional opinion that § 101 
was, and was meant to be, restorative, and the necessary conclusion that 
§ 101 should be applied here.



7

Thorpe. Respondents rely primarily on the concurring 
opinion of Justice Scalia in Bonjomo. Under Justice Scalia’s 
rule, new laws should be presumed to apply to pending cases 
only where such application is deemed to be "prospective," 
but not where it would have a "retroactive" effect. 494 U.S. 
at 841. Because the rule urged by Justice Scalia is contrary 
to established law and is entirely unclear in scope, this Court 
should reaffirm Bradley.

A. The Default Rule Respondents Advocate Would 
Require the Courts to Make Difficult and 
Unguided Distinctions Between New Statutes that 
Apply to Pending Cases and New Statutes that Do 
Not

Notwithstanding important disagreements about the 
proper default rule, the parties agree about at least two 
points: First, all agree that laws which render illegal conduct 
which was legal when it was engaged in, or which eliminate 
vested rights (such as property interests or accrued causes of 
action), presumptively apply only to conduct occurring after 
the new rule is adopted. Under Justice Scalia’s rule, 
application of new laws under these circumstances would be 
among the types of conduct labelled "retroactive." Under 
Bradley, such application would be manifestly unjust.

The second point of agreement is that there is some 
category of new laws which presumptively do apply to pre­
enactment claims. Justice Scalia proposes to define the word 
"retroactive" in such a way that application of some new laws 
to pending cases would not be labelled "retroactive."9 Such

5 Roadway asserts that Rivers and Davison committed semantic 
suicide by conceding that application of § 101 should be labelled 
"retroactive," Roadway Br., at 13, but this assertion is simply false. 
Petitioners in their brief, including at the pages cited by Respondent,

(continued...)



8

non-retroactive applications arguably include the attorneys’ 
fees statute at issue in Bradley,* 10 as well as at least some 
procedural and other rules.11 Under Bradley, the category 
of cases in which applications of new laws is presumptively 
correct includes all laws the application of which would not 
produce a manifest injustice, which has consistently been 
understood to refer to changes in procedural and remedial 
laws. See Appendix G. In essence, what the parties agree 
about is simply that there are two categories of new laws — 
those which presumptively apply to pending cases, and those 
which presumptively do not. The dispute here concerns 
where to draw the line between those two categories.

Respondents and Justice Scalia attack Bradley’’s 
manifest injustice exception as a mechanism by which "[a] 
rale of law, designed to give statutes the effect Congress 
intended, has . . . been transformed to a rule of discretion, 
giving judges power to expand or contract the effect of 
legislative action." Bonjomo, 494 U.S. at 857, cited in 
Roadway’s Br. at 49. This contention is baseless, for at least 
two reasons:

First, the lower federal courts have implemented this 
standard for over a century. The experience of the lower

’(...continued)
consistently pose the question as whether § 101 applies to their pending 
claims, not as whether § 101 should be given "retroactive" effect. E.g. 
Petitioners’ Br. at 9, 14.

10 See Bonjomo, 494 U.S. at 849 (Scalia, J., concurring).

11 See, e.g. Brief for the American Trucking Associations, et al, as 
Amici Curiae Supporting Respondents, at 18 (stating that "it may be that 
most procedural changes are unlikely to have any retroactive effect (i.e. to 
change the consequences of prior conduct) and may routinely be applied 
to pending cases.... Application of such changes to pending cases have [sic] 
only prospective effects").



9

courts has established a clear and workable distinction 
between procedural and remedial changes in the law on one 
hand and changes affecting vested rights or substantive 
standards of conduct. See Appendix H; Appendix G. The 
principal source of confusion is Justice Scalia’s own assertion 
in his concurrence in Bonjomo that Bradley was an 
aberration. See e.g., Appendix to Petition for Certiorari in 
Landgraf v. USI Film Products, Inc., No. 92-757 (listing cases 
applying and not applying the 1991 Civil Rights Act to 
pending cases).

Second, this Court itself commonly uses a virtually 
identical "justice" standard in its orders instructing lower 
courts when to apply new rules to pending cases, presumably 
finding it to be a clear standard for application of new rules 
to pending cases. See Appendix I (listing orders applying new 
rules to pending cases "insofar as just and practicable", or 
unless doing so "would not be feasible or would work 
injustice"). Justice Scalia himself has approved at least four 
such orders, including one on April 17, 1990 —  just two 
weeks before the Bonjomo decision.

In place of the rule reaffirmed in Bradley, which has 
been administered by the lower courts for over a century 
without difficulty, Justice Scalia proposes an entirely new rule. 
Justice Scalia’s rule will turn on an as-yet-to-be articulated 
definition of the term "retroactive." Justice Scalia himself 
concedes that adoption of his rule would "n o t... always make 
it simple to determine the application in time of new 
legislation." Id. at 857. Among the admitted problems with 
his proposed approach is that "[i]t will remain difficult, in 
many cases ... to decide whether a particular application is 
retroactive." Id. Respondents and their amici repeatedly 
assert that Justice Scalia’s rule is a clear, "bright-line" rule. 
On the contrary, it is an unexplained rule with unforeseeable 
consequences.



10

Respondents and Justice Scalia urge that the rule 
against "retroactivity" in Bowen v. Georgetown Univ. Hosp., 
488 U.S. 204, 208 (1988), applies to changes in procedural 
and remedial laws. Bowen held that "retroactive" rules could 
not be promulgated without express statutoiy authority, but 
this holding cannot include procedural and remedial rules. 
Despite Bowen, and the absence of express authorization for 
retroactive rulemaking in the Rules Enabling Act,12 this 
Court has itself consistently ordered that amendments to the 
Federal Rules be applied in pending cases. See Appendix I 
(listing United States Supreme Court Orders applying new 
rules to pending cases). These orders would be entirely 
inconsistent with Bowen unless Bowen’s, dictate against 
"retroactivity" did not extend to procedural changes in 
governing law, but rather comported with Bradley in 
presuming that such changes are applicable in pending cases.

Even under Justice Scalia’s rule against retroactive 
application of new laws, § 101 should be applied here because 
the changes that § 101 would cause in this case are not 
"retroactive." Rivers and Davison seek application of § 101’s 
procedures and remedies in a trial which has not yet 
occurred. As explained in our opening brief, what is at stake 
here is whether the right to a jury trial and damages under 
§ 1981 as amended by § 101 will apply in a retrial of 
plaintiffs’ discharge claims on a remand for a trial on these 
claims that will occur in any event. Pet. Br., at 9. Whether 
a jury will hear the discharge claims is a question that relates 
to procedures for conducting a trial in the future. Similarly, 
if the jury finds liability on the discharge claim, whether that

12 28 U.S.C. § 2027(a) grants the Court "power to proscribe general
rules of practice and procedure and rules of evidence for cases in the 
United States district courts (including proceedings before magistrates 
thereof) and courts of appeals." It includes no express grant of power to 
apply new rules retroactively.



11

juiy will calculate only the extent of lost wages, or whether it 
will also compensate for other harm the discrimination caused 
the plaintiffs, is a question relating to the standard for a 
decision that the jury has yet to make. Thus, under either 
rule, § 101 should apply.

B. Bradley Was Consistent With Prior Law

In his concurrence in Bonjomo, Justice Scalia argued 
that Bradley was inconsistent with prior decisions. As we set 
forth below and in related Appendices, Bradley was in fact 
fully consistent with the law prior to 1974. In reading 
decisions prior to Bradley, it is important to bear in mind that 
the way in which the courts used the term "retroactive" 
changed over time. In the nineteenth century, the courts 
generally used the term "retroactive" to refer only to those 
laws which they believed should not apply to pre-enactment 
claims. The courts labelled "retroactive" laws which, if 
applied, would have eliminated accrued causes of action or 
impaired vested rights. Application of new remedial and 
procedural laws was termed "prospective," or "non­
retroactive." "Retroactive" was then, much like "ex post facto" 
is today, a conclusory label applied to those categories of 
statutes which the courts believed did not properly apply to 
pending cases.

The traditional prohibition against "retroactive" laws 
is consistent with Bradley as elaborated in Bennett. See 
Petitioners’ Br. at 39-45. It was when the courts began to use 
the term "retroactive" to refer more generally to any 
application of new law to pending cases that the default rule 
was properly articulated as favoring retroactive application of 
new laws in certain circumstances. See, e.g., Larkin v. 
Saffarans, 15 F. 147, 150 (C.C. W.D. Tenn. 1883) (remedial 
laws); Bowles v. Strickland, 151 F.2d 419, 420 (5th Cir. 1945) 
(procedural laws). In sum, a rule recognizing the distinction 
between applicability of new substantive laws and new



12

procedural or remedial changes has been made consistently 
for more than a century, and all that has changed is the 
language used to describe that rule.

1. Supreme Court Cases

We set forth in our opening brief Supreme Court 
cases preceding Bradley which held that changes in procedural 
and remedial rules presumptively apply to pending cases. Pet. 
Br. at 31-36. We set forth below other authorities.

2. Court of Appeals Decisions

For almost a century prior to Bradley, and for the two 
decades since, the lower federal courts consistently recognized 
and regularly implemented a distinction between changes in 
substantive obligations and changes in remedies or 
procedures. One of the earliest decisions observed that the 
presumption in favor of application of procedural and 
remedial rules to existing claims was "in accordance with the 
general rule that all remedial legislation shall be liberally 
construed, and particularly should this be so where new 
remedies are given." Larkin v. Saffarans, 15 F. 147, 150 
(C.C. W.D. Tenn. 1883). That presumption in favor of 
applying changes in procedure was understood to refer 
broadly to "the procedural machinery provided to enforce" 
existing rights. Bowles v. Strickland, 151 F.2d 419, 420 (5th 
Cir. 1945). The distinction between the two presumptions 
was, as one court put it, "settled rule" long before Bradley. 
Dargel v. Henderson, 200 F.2d 564, 566 (Em. Ct. App. 1952). 
Among the pre-Bradley circuit court opinions on this issue, 
there does not appear to be a single dissent. Under this long- 
established distinction, statutes providing for more complete 
relief for conduct that was already actionable were construed 
to apply to pending claims. See Appendix H.

3. Treatises

Justice Scalia in Bonjomo quotes Chancellor Kent’s



13

statement that "it cannot be admitted that a statute shall, by 
any fiction or relation, have any effect before it was actually 
passed." Bonjomo, 494 U.S. 855 (Scalia, J., concurring), 
quoting J. Kent, Commentaries on American Law *455. But 
Chancellor Kent goes on to explain that his objection is to a 
law "affecting and changing vested rights," and emphasizes 
that the doctrine quoted by Scalia

is not understood to apply to remedial statutes, 
which may be of a retrospective nature, 
provided they do not impair contracts, or 
disturb absolute vested rights, and only go to 
confirm rights already existing, and in 
furtherance of the remedy ... adding to the 
means of enforcing existing obligations.

Commentaries on American Law at *455-*456 (Emphasis 
added). Justice Scalia also quotes Justice Story’s statement 
that

retrospective laws are ... generally unjust; and 
... neither accord with sound legislation nor 
with the fundamental principles of the social 
compact.

108 L. Ed. 2d at 856, quoting J. Story, Commentaries on the 
Constitution, § 1398 (1851). Respondents rely on the same 
quotation. Roadway Br. at 9. But Justice Story himself 
defined "retrospective law" not to refer to any new statute 
affecting pending cases, but as a

statute which takes away or impairs vested 
rights acquired under existing laws, or creates 
a new obligation, imposes a new duty, or 
attaches a disability, in respect to transactions 
or considerations past.

Society v. Wheeler, 2 Gall. 139 (1814). Over a century ago the 
Supreme Court read Justice Story’s definition to mean that a



14

statute providing a new remedy to enforce an existing right 
was not, even as applied to a pre-Act violation, a "retroactive 
law." Sturges v. Carter, 114 U.S. 511, 519 (1885). By the end 
of the nineteenth century, treatises uniformly made this 
distinction. See Appendix I. The article by Instructor Smead 
on which Justice Scalia and Respondents relied is expressly 
about statutes which, if applied in pending cases, would 
eliminate vested rights.13

4. State Constitutions and Laws

Justice Scalia noted in Bonjomo that a number of state 
constitutions contain express prohibitions against "retroactive" 
laws. 494 U.S. at 856. These state provisions have long been 
construed, however, in a manner consistent with pre-Bradley 
federal decisional law, not to forbid new legislation at 
provided different remedies or procedural mechanisms to 
enforce pre-existing obligations. See Appendix K. Cases 
from other states also support the distinction upon which 
petitioners rely. See Appendix L. Judge Kent’s opinion in 
Dash v. Van Kleck is expressly limited to statutes which alter 
vested rights. 5 Am. Dec. 291, 308, 309, 310, 312 (1811) 
(opinion of Kent, J.); see also, id, at 302, 303, 306 (opinion of 
Thompson, J.).

5. English Cases

Respondents contend that their rule "has an ancient 
lineage," Roadway Br. at 9, but it is clear that the distinction 
between statutes altering standards of conduct or vested 
rights and statutes affecting procedures and remedies for 
enforcing those standards and rights was established in Great 
Britain by the mid-nineteenth century. The leading case was 
Wright v. Hale, 6 Hurl. & Norm. 226 (Ct. Exchequer 1860),

13 Smead, The Rule Against Retroactive Legislation: A Basic Principle
o f Jurisprudence, 20 Minn. L. Rev. 775, 781, n. 22 (1936).



15

which applied to pending cases a newly enacted statute 
limiting awards of costs. Baron Pollock explained that 
"[t]here is a considerable difference between new enactments 
which affect vested rights and those which merely affect the 
procedure in courts of justice, such as those relating to the 
service of proceedings, or what evidence must be produced to 
prove particular facts.... Rules as to the costs to be awarded 
in an action are of that description, and are not matters in 
which there can be vested rights."14 English common law 
does not support the rule respondents advocate, which would 
reject application of any new rule that alters a party’s expense 
associated with past conduct.

6. Prior Views of Respondent’s Counsel

Counsel for Respondent Roadway argues with great 
force that Bradley is bad law, and has been repudiated by the 
Supreme Court in cases such as Bowen and Bennett. The 
same counsel told the Senate in May 1990, however, precisely 
the opposite. He described Bradley as governing law under

14 6 Hurl. & Norm, at 230-31; see also id. at 231-32 (Channel, B.)
("In dealing with acts of parliament which would have the effect of taking 
away rights of action, we ought not to construe them as having a 
retrospective operation, unless it appears clearly that such was the 
intention of the legislature; but the case is different where the Act merely 
regulates practice and procedure"); Kimbray v. Draper, 3 Q.B. (L.R.) 160, 
163 (Q.B. 1868) (Blackburn, J.) ("When the effect of an enactment is to 
take away a right, prima facie it does not apply to existing rights; but 
where it deals with procedure only, prima facie it applies to all actions 
pending as well as future"); Towler v. Chatterton, 6 Bing. 258 (Ct. Com. 
Pleas. 1829) (applying to pending case new statute regarding evidence 
needed to place case outside limitations period); Cox v. Thomason, 2 C. 
& J. 498 (Ct. Exch. 1832) (applying to pending case new rule of court 
regarding taxation of costs). In Freeman v. Moyers, 1 A. & E. 338 (K. B. 
1834), (holding applicable to pending cases a new statute rendering certain 
unsuccessful plaintiffs liable for costs).



16

which, as petitioners here contend, new laws that affect 
procedures and remedies are presumptively applicable to 
pending litigation. See Appendix M.

C. Section 101’s Remedial and Procedural Nature is 
Unaffected By Whether § 1981 is "A Distinct 
Positive Law" From Title VII

Roadway does not contend that discriminatory 
discharge was legal at the time it fired Rivers and Davison. 
Because race discrimination in any aspect of employment, 
including discharge, was prohibited under Title VII when 
Roadway discharged Rivers and Davison, applying § 101 here 
to authorize a jury trial and damages for the discharge claim 
simply applies additional remedies and procedures for 
conduct which has at all times been illegal. Whether § 1981, 
as amended by § 101, is a "separate" or "distinct positive" law 
from Title VII does not affect the fact that application of 
§ 101 here is remedial. Cf. Pennsylvania v. Union Gas Co., 
491 U.S. at 8, n. 2 (reading separately enacted legislation "in 
combination") (emphasis in original). The location of the 
codification of § 1981 and Title VII in the statute books is 
not determinative of whether application of the § 101 jury 
trial and damages provisions in this case is remedial.15

13 Even if where § 101 is codified were determinative, § 101 is 
properly viewed as remedial of discrimination prohibited by Title VII. 
Title VII and § 1981 are both codified in Chapter 21 of Title 42 of the 
United States Code. Section 101 is codified as § 1981(b). The 1991 Act 
expressly recognizes the interrelationship between § 1981 and Title VII by 
codifying the new Title VII damages provisions at § 1981A. Roadway’s 
position is thus reduced to a contention that plaintiffs could prevail only 
if Congress had also moved § 2000e-5(a) of Title VII to make it part of 
§ 1981. Only the most arbitrary and unworkable doctrine would make 
such a detail of statutory compilation determinative of whether § 101 
applies to pending discrimination claims.



17

The federal courts have overwhelmingly rejected 
Roadway’s reasoning that, where the substantive conduct at 
issue was prohibited when engaged in, a new remedy does not 
apply if the preexisting prohibition was established by a 
different law from that in which the remedy was announced. 
See Appendix N. The very cases upon which Roadway relies 
support the conclusion that § 101 provides additional 
remedies for employment discrimination which Title VII also 
prohibits. See Roadway Br. at 27-29. For example, this 
Court in Johnson v. Railway Express Agency, Inc., 421 U.S. 454 
(1975), characterized § 1981 as "a remedy," id. at 466, and 
referred to Title VII as conferring "remedies" that are co­
extensive with § 1981, id. at 459, and to Title VII and § 1981 
as "two procedures" for enforcing the same rights. Id.16 
Alexander v. Gardner-Denver, 415 U.S. 36 (1974), similarly 
emphasized that legislative enactm ents in the 
nondiscrimination area, specifically including Title VII and 
§ 1981, "have long evinced a general intent to accord parallel 
or overlapping remedies against discrimination." Id. at 47.

Roadway mischaracterizes the issue presented by this 
case when it asks whether § 101 should be applied to 
"conduct which was adjudicated to be non-discriminatory 
prior to the date on which Section 101 became law," Roadway 
Br. at i, or to "trials occurring before the date of its 
enactment." Id. at iii, iv, 8, 13, 26; see id. at 14. The question 
is not whether § 101’s new remedies could require a new trial 
of claims that were properly tried under pre-Act law, but

16 See e.g. Patterson v. McLean Credit Union, 491 U.S. 164 (1989) 
(referring repeatedly to the different "remedies" and the "procedures" 
§ 1981 and Title VII provide for the same conduct); United States v. Burke, 
112 S.Ct. 1867, 1873 (1992) (explaining that "the circumscribed remedies 
available under Title VII stand in marked contrast... to those available ... 
under other federal antidiscrimination statutes....") (emphasis supplied).



18

whether § 101 should be applied to a new trial which will 
occur in any event, without regard to whether § 101 
applies.17

17 Although it declined to apply § 101, the Sixth Circuit remanded 
the § 1981 retaliatory discharge claim for trial on the ground that the 
district court’s dismissal of that claim turned on a misapplication of 
Patterson. On remand, the jury — to which plaintiffs are already entitled 
on the retaliation claim under Patterson, even apart from § 101 ■— may 
find that Roadway did discriminate against the plaintiffs in their efforts to 
enforce their contract rights. If the jury so finds, then the district court’s 
factual finding of non-discrimination under Title VII cannot collaterally 
estop the jury’s verdict, but will have to be vacated and a new Title VII 
judgment entered consistent with the jury’s verdict. Lytle v. Household 
Mf gInc . ,  494 U.S. 545 (1990), cited in Hatvis v. Roadway Express, 973 
F.2d 490, 495 (6th Cir. 1992), P.A. 9a-10a. Respondents did not raise for 
consideration by this Court any issue of collateral estoppel. Cf 
Leatherman v. Tarrant County, 113 S. Ct. 1160, 1162 at n. 1 (1993).

Roadway suggests that the district court’s Title VII determination 
on the claim of discriminatory discharge would not be reopened because 
"the court of appeals did not purport to remand on those claims; it 
remanded only on the retaliation claims." Roadway Br., at 4 n. 1. As the 
Court of Appeals recognized in its opinion, however, if the jury’s 
determination on the common issues of fact relating to racial motive 
differs from the judge’s, the Seventh Amendment requires that the jury’s 
determination prevail. The district court will then have to vacate the 
inconsistent Title VII determination. If the 1991 Act applies here, the jury 
will determine the discharge claim as well as the retaliation claim, and 
determine the propriety of damages on each; if not, the court will enter 
a judgment on discharge. It is thus not a "free-standing jury trial right," 
Roadway Br. at 35, which Rivers and Davison assert, but a right to have 
a jury on claims when those claims are to be adjudicated in any event.

The appellate court’s failure to vacate the Title VII judgment 
does not affect plaintiffs’ rights under Lytle. It could well have been 
considered premature for the court of appeals, rather than the district 
court on remand, to vacate the Title VII judgment. If the jury decides 
that no discrimination occurred, the Title VII judgment need not be 
disturbed.



19

III. THIS COURT SHOULD NOT RETROACTIVELY 
CHANGE RULES ABOUT STATUTORY 
APPLICABILITY UPON WHICH CONGRESS HAS 
RELIED

There is probably no area of the law where stare 
decisis is of such practical importance, and so vital to 
preserving the proper balance between Congress and the 
courts, as the rules of statutory construction. The rules of 
construction are a critical part of the context in which 
Congress legislates; they control the terms, syntax and 
structure which Congress must use to achieve a desired result. 
Changing a rule of construction would be as disruptive of the 
law-making process as a decision to change by judicial fiat the 
meaning of a word commonly used in federal statutes. The 
truism that Congress is presumed to legislate with a 
knowledge of the law is particularly important, and realistic, 
with regard to the principles of statutory construction.

Over the course of the last two decades, congressional 
reports and individual members of Congress have repeatedly 
referred to Bradley as establishing the rule of interpretation 
regarding pre-Act claims. See Appendix O. Since 1974, 
Congress has enacted more than 5000 Public Laws 
encompassing 40,000 pages of Statutes at Large. Stat. at 
Large, vols. 89-106. In the vast majority of these statutes, 
Congress chose not to attempt to specify expressly which 
provisions would and would not apply to pre-existing cases, 
but decided instead to let that issue be determined through 
judicial application of established legal principles. To now 
alter the rules of interpretation applicable to those statutes 
would wreak havoc with the intent and expectations of 
Congress.

Bradley has proved to be a highly accurate method of 
ascertaining congressional intent. Despite the frequency with 
which this issue has arisen in the courts, it appears that



20

Congress has never overturned by legislation any of the 
circuit court decisions before or after Bradley regarding the 
applicability of particular statutes to pre-Act claims. Justice 
Scalia’s concurrence in Bonjomo now proposes, paradoxically, 
that the Court announce — and apply retroactively — a new 
rule against the retroactive application of new rules.

CONCLUSION

The judgment of the court of appeals should be 
reversed insofar as it did not apply the Civil Rights Act of 
1991 petitioners’ pending claims.

Respectfully submitted,

C h a r l e s  St e p h e n  R a l s t o n  
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

August 10, 1993



APPENDICES



INDEX TO APPENDICES

A1 Appellate Cases in Which the United States
Has Sought to Apply a New Statute to a Pre- 
Existing Claim

B A p p e lla te  D ecisions U pon  W hich
Respondents Rely Construing "Take Effect 
Upon Enactment"

C United States Supreme Court Decisions
Applying the Canon of Construction that No 
Word in a Statute Should be Read to Be 
Redundant

D United States Supreme Court Decisions
Recognizing the Canon of Construction 
"Expressio Unius Est Exclusio Alterius"

E Lower Federal Court Decisions Prior to
Patterson v. McLean Credit Union Interpreting 
42 U.S.C. § 1981 to Cover All Conduct 
Covered by § 1981 as Amended By § 101 of 
the Civil Rights Act of 1991

F Legislative History References to § 101 as
Restoring Pre-Patterson Interpretation of 
§ 1981

G Court of Appeals Decisions Since Bradley v.
Richmond Sch. Bd. Applying Statutes 
Affecting Remedies and Procedures to 
Pending Cases

APPENDIX DESCRIPTION

This was an Appendix to Petitioners’ opening brief.



2a

H Court of Appeals Decisions Prior to Bradley v.
Richmond Sch, Bd. Recognizing a Distinction 
Between New Laws Affecting Standards of 
Conduct or Vested Rights, Which Were 
Presumed Inapplicable to Pending Cases, and 
Methods for Enforcing Existing Rights, Which 
Were Presumed Applicable

I United States Supreme Court Orders
Applying New Rules to Pending Cases Absent 
Injustice

J Old Treatises Recognizing the Rule in Favor
of Application of New Remedial Procedural 
and Restorative Statutes to Pending Cases

K Colorado, Montana, New Hampshire, and
Ohio Cases Interpreting the Respective State 
C onstitu tional Provision P roh ib iting  
"Retroactive" Statutes

L Other State Cases Interpreting Prohibitions
on "Retroactive" Statutes

M Prior View of Roadway Counsel Glen D.
Nager Expressed in Legislative History of 
Civil Rights Act of 1991

N Court of Appeals Decisions Applying New
Statutes Providing Additional Remedies for 
Conduct Already Illegal Under Other Law

O Decisions Citing to Legislative History In
Which Members of Congress Expressed Their 
Reliance on Bradley v, Richmond School Bd.



APPENDIX B

Appellate Decisions Upon Which Respondents Rely 
Construing "Take Effect Upon Enactment"

Court held phrase did not resolve applicability:

1. Leland v. Federal Ins. A d m ’r, 934 F.2d 524, 529 (4th 
Cir.) cert, denied, 112 S. Ct. 417 (1991) (giving 
credence to Bradley and analyzing question without 
regard to statutory language about application upon 
enactment, but rather concluding that no 
congressional intent "is discernible from [Jeither the 
language of the amendment itself []or from any other 
indication of congressional intent")

2. Jensen v. Gulf Oil Refining & Marketing Co., 623 F.2d 
406, 409 (5th Cir. 1980) (relying on Bradley and 
holding "we do not find the statement that the 
amendment prohibiting involuntary retirement before 
age sixty-five shall take effect upon enactment 
dispositive") (emphasis added).

3. Sikora v. American Can Co., 622 F.2d 1116,1120 (3rd 
Cir. 1980) (citing Bradley in its exposition of the law 
and stating "we turn to the statute under 
consideration and find its language equivocal. 
Congress simply provided that the amendment 
prohibiting involuntary retirement before age 65 
’shall take effect on the date of enactment of this 
Act...’") (emphasis added). 4

4. Yakim v. Califano, 587 F.2d 149, 150-51 (3rd Cir. 
1978) (relying on Bradley in holding that language in 
§ 20 directing that statute take effect on the date of 
enactment gives "no explicit direction on the 
retroactivity issue," and proceeding to determine that



B-2

it was a different statutory subsection, § 15(c) which 
"indicated] that Congress was aware of the 
retroactivity problem and decided to limit such effect 
to those cases eligible for a fresh review under the 
Reform Act")(emphasis added).

Court also relied on different statutory language:

5. Condit v. United Air Lines, Inc., 631 F.2d 1136, 1140 
(4th Cir. 1980) (citing Bradley, but deciding based on 
text that the Pregnancy Discrimination Act, which in 
addition to stating that it shall take effect upon 
enactment states that it "shall not apply to any fringe 
benefit program or fund, or insurance program which 
is in effect on the date of enactment of this Act until 
180 days after enactment of this Act," is inapplicable 
where it would impose liability for actions under a 
fringe benefit program which occurred 7 years prior 
to the Act).

6. Schwabenbauer v. Board o f Education, 667 F.2d 305, 
310 n. 7 (2d. Cir. 1981) (relying on Condit and the 
same additional statutory language considered there 
in order not to apply the Pregnancy Discrimination 
Act where it would have "invalidated past conduct").



APPENDIX C

United States Supreme Court Decisions 
Applying the Canon of Construction that 

No Word in a Statute Should be Read to be Redundant

1. Sale v. Haitian Centers Council Inc., 113 S. Ct. 2549 
(1993)

2. United States v. Nordic Village, Inc., 112 S. Ct. 1011, 
1015 (1992)

3. Liljeberg v. Health Services Acquisition Corp., 486 
U.S. 847, 859-60 n.8 (1988)

4. Mackey v. Lanier Collection Agency and Serv., Inc., 
486 U.S. 825, 837 (1988)

5. Kungys v. United States, 485 U.S. 759, 778 (1988)

6. Mountain States Tel. and Tel. Co. v. Pueblo o f Santa 
Ana, 472 U.S. 237, 249 (1985)

7. Securities Industry A ss’n v. Bd. o f  Governors o f  
Federal Reserve System, 468 U.S. 207, 165 (1984)

8. Jewett v. Commissioner o f Internal Revenue, 455 
U.S. 305, 315 (1982)

9. Colautti v. Franklin, 439 U.S. 379, 392 (1979)

10. Colgrove v. Battin, 413 U.S. 149, 184 (1973)

11. United States v. Menasche, 348 U.S. 528, 538-39 
(1955)

12. Shapiro v. United States, 335 U.S. 1 (1948)



C-2

13. Singer v. U.S., 323 U.S. 338, 344 (1945)

14. Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)

15. Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879)



APPENDIX D

United States Supreme Court Decisions 
Recognizing the Canon of Construction 
"Expressio Unius Est Exclusio Alterius"

1. Crosby v. United States, 506 U .S ,___, 122 L Ed. 2d
25, 30 (1993)

2. Leatherman v Tarrant County, 507 U .S .___, 122 L.
Ed. 2d 517, 524 (1993)

3. Sullivan v. Hudson, 490 U.S. 877, 891-93 (1989)

4. United States v. Wells Fargo Bank, 485 U.S. 351, 357 
(1988)

5. California Coastal Comm’n v. Granite Rock Co.,
480 U.S. 572, 600 (1987)

6. Herman & MacLean v. Huddleston, 459 U.S. 375, 
387 n.23 (1983)

7. Becker v. United States, 451 U.S. 1306, 1309 (1981)

8. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 
U.S. 11, 30 n.6 (1979) (White J., dissenting) 
(criticizing the majority for implicitly applying the 
canon, but recognizing the canon except where it 
would constrict a statute’s remedial purpose)

9. Tennessee Valley Authority v. Hill, 437 U.S. 153, 188 
(1978)

10. National R.R. Passenger Corp. v. National A ss’n o f  
R.R. Passengers, 414 U.S. 453, 458 (1974)



D-2

11. Evans v. Newton, 382 U.S. 296, 311 (1966) (White 
J., concurring)

12. Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 
375-76 (1958)

13. Wilko v. Swan, 346 U.S. 427, 434 n.18 (1953)

14. SEC  v. C.M. Joiner Leasing Corp., 320 U.S. 344, 350 
(1943)

15. Neuberger v. Commissioner o f Internal Revenue, 311 
U.S. 83, 88 (1940)

16. Ford v. United States, 273 U.S. 593, 611 (1927)

17. United States v. Barnes, 222 U.S. 513, 518-19 (1912)

18. Bend v. Hoyt, 38 U.S. 263, 271 (1839)

19. United States v. Arredondo, 31 U.S. 691, 724-25 
(1832) (applying the canon).



APPENDIX E

Lower Federal Court Decisions Prior to 
Patterson v. McLean Credit Union Interpreting 

42 U.S.C. § 1981 to Cover All Conduct Covered by § 1981 
as Amended By § 101 of the Civil Rights Act of 1991

FIRST CIRCUIT

Oliver v. Digital Equipment Corp., 846 F.2d 103 (1st Cir. 
1988) (discharge; harassment; terms and conditions).

Rowlett v. Anheiser-Busch, Inc., 832 F.2d 194 (1st Cir. 
1987) (discharge; retaliation).

Springer v. Seaman, 821 F.2d 871 (1st Cir. 1987) 
(discharge).

Bums v. Sullivan, 619 F.2d 99 (1st Cir. 1980) cert, denied 
449 U.S. 893 (1980) (promotion denial).

DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir. 1980) 
(discharge; harassment)

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) (hiring; 
recruitment)

Townsend v. Exxon Company, U.S.A., 420 F. Supp. 189 
(D.Mass. 1976) (refusal to rehire; discharge)

SECOND CIRCUIT

Tach v. Chemical Bank, 849 F.2d 775 (2nd Cir. 1988) 
(retaliatory discharge).



E-2

Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987) 
(constructive discharge; harassment).

De Cintio v. Westchester County Medical Center, 821 F.2d 
111 (2d Cir. 1987) (retaliation; discharge).

Hill v. Coca-Cola Bottling Co. o f N.Y., 786 F.2d 550 (2d 
Cir. 1986) (discharge).

Martin v. Citibank, N.A., 762 F.2d 212 (2nd Cir. 1985) 
(discharge).

Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980) 
(retaliation).

Hudson v. International Business Machines, Inc., 620 F.2d 
351 (2d Cir. 1980) cert, denied, 449 U.S. 1066 (1980) 
(retaliation).

Powell v. Syracuse University, 580 F.2d 1150, cert, denied 
439 U.S. 984 (1978) (2d Cir. 1978) (discharge).

Brown v. Ralston Purina, 557 F.2d 570 (2d Cir. 1975) 
(discharge).

Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976) 
(discharge; promotion denial).

DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir.
1975). (discharge; retaliation).

Williams v. State University o f N.Y., 635 F. Supp. 1243 
(E.D.N.Y. 1986) (discharge).

Almendral v. New York State Office o f Mental Health, 568 
F. Supp. 571 (S.D.N.Y. 1983) aff’d in relevant part, 743 
F.2d 953 (2d Cir. 1984) (promotion denial; discharge; 
retaliation)



E-3

Ingram v. Madison Square Garden Center, Inc., 482 F. 
Supp. 414 (S.D.N.Y. 1979) (hiring; terms and conditions; 
promotion denial).

Patterson v. United Federation o f Teachers, 480 F. Supp.
550 (S.D.N.Y. 1979) (failure to represent).

Williams v. Interstate Motor Freight System, 458 F. Supp. 20 
(S.D.N.Y. 1978) (discharge).

Lee v. Bolger, 454 F. Supp. 226 (S.D.N.Y. 1978)
(promotion denial).

THIRD CIRCUIT

Kelly v, Tyk Refractories Co., 860 F.2d 1188 (3rd Cir. 1988) 
(discharge; constructive discharge).

Roebuck v. Drexel University, 852 F.2d 715 (3rd Cir. 1988) 
(failure to grant tenure).

Lewis v. University o f Pittsburgh, 725 F.2d 910 (3rd Cir. 
1983) cert, denied 469 U.S. 892 (1984) (promotion denial).

Wilmore v. City o f Wilmington, 699 F.2d 667 (3rd Cir.
1983) (promotion denial).

Walton v. Eaton Corp., 563 F.2d 66 (3rd Cir. 1977) 
(discharge; harassment)

Wilson v. Sharon Steel Corp., 549 F.2d 276 (3rd Cir. 1977) 
(discharge; terms and conditions).

Commonwealth o f Pa. v. Flaherty, 404 F. Supp. 1022 (W.D. 
Pa. 1975) (hiring).



E-4

FOURTH CIRCUIT

Sharma v. Lockheed Engineering & Mgmt. Services, Co.,
Inc. 862 F.2d 314 (4th Cir. 1988) (discharge).

Hughes v. International Business Machines Corp., 848 F.2d 
185 (1988) (promotion denial; terms and conditions)

Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496 (4th Cir. 
1988) (promotion denial; terms and conditions).

Crawford v. College Life Insurance o f America, 831 F.2d 
1057 (4th Cir. 1987) (discharge)

McCausland v. Mason County Board o f Education, 649 
F,2d 278 (4th Cir. 1981) cert, denied 454 U.S. 1090 
(discharge).

Sledge v. I P  Stevens & Co., 585 F.2d 625 (4th Cir. 1978) 
cert, denied 440 U.S. 981 (1979) (hiring; promotion denial; 
recall; terms and conditions).

Reynolds v. Abbeville County School District No. 60, 554 
F.2d 638 (4th Cir. 1977) (discharge).

Roman v. E.S.B., Inc., 550 F.2d 1343 (4th Cir. 1976) 
(discharge; hiring)

Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir.
1976) cert, denied 429 U.S. 920 (1976) (promotion denial; 
hiring).

Day v. Patapapsco & Back Railroad Co., 504 F. Supp. 1301 
(D.Md. 1981) (terms and conditions; seniority system)



E-5

FIFTH CIRCUIT

Johnson v. Chapel Hill Independent School District, 853 
F.2d 375 (5th Cir. 1988) (failure to rehire; retaliation).

Hernandez v. Hill County Telephone Corp., 849 F.2d 139 
(5th Cir. 1988) (hiring; promotion denial; retaliation).

Comeaux v. Unirogal Chemical Corp., 849 F.2d 191 (5th 
Cir. 1988) (discharge).

Price v. Digital Equipment Corp., 846 F.2d 1026 (5th Cir. 
1988).

Page v. US Industries, Inc., 726 F.2d 1038 (5th Cir. 1984) 
(hiring; promotion denial).

Freeman v. Motor Convoy, 700 F.2d 1339 (5th Cir., 1983) 
(hiring; seniority).

Adams v. McDougal, 695 F.2d 104 (5th Cir. 1983) (terms 
and conditions; failure to rehire).

Williams v. New Orleans Steamship Association, 688 F.2d 
412 cert, denied 460 U.S. 1038 (1982) (5th Cir. 1982)
(terms and conditions).

Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir.
1982) cert, denied 459 U.S. 1105 (1983) (discharge; 
retaliation).

Payne v. Travenol Lab, 673 F.2d 798 (5th Cir. 1982)
(hiring; promotion denial).

Rivera v. City o f Wichita Falls, 665 F.2d 531 (5th Cir. 1982) 
(hiring; promotion denial).



E-6

Bobo v. ITT, Continental Baking Company, 662 F.2d 340 
(5th Cir. 1982) cert, denied 456 U.S. 933 (1982)
(discharge).

McWilliams v. Escambia County School Board, 658 F.2d, 
326 (5th Cir. 1981) (transfer; demotion; promotion 
denial).

Jackson v. City o f Kileen, 654 F.2d 1181 (5th Cir. 1981) 
(discharge).

Whiting v. Jackson State University, 616 F.2d 116 (5th Cir. 
1980) (discharge).

Crawford v. Western Electric, 614 F.2d 1300 (5th Cir. 1980) 
(promotion denial).

Grigsby v. North Mississippi Medical Center, 586 F.2d 457 
(5th Cir. 1978) (discharge; promotion denial; terms and 
conditions).

Claiborne v. Illinois Central Railroad, 583 F.2d 143 (5th 
Cir. 1978) cert, denied 442 U.S. 934 (1979) (promotion 
denial; discharge).

Barnes v. Jones County School District, 575 F.2d 490 (5th 
Cir. 1978) (discharge; demotion).

Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 
1374 (5th Cir. 1978) cert, denied 441 U.S. 968 (1979) 
(retaliation; promotion denial).

Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978) 
(discharge)

Gamer v. Ciarrusso, 571 F.2d 1330 (5th Cir. 1978) 
(retaliation; discharge; terms and conditions).



E-7

Jenkins v, Caddo-Bossier Association for Retarded Citizens, 
570 F.2d 1227 (5th Cir. 1978) (discharge; promotion 
denial; harassment; hiring)

Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir.
1977) (discharge).

Harkless v. Sweeny, Ind., 554 F.2d 1353 (5th Cir. 1977) cert, 
denied 434 U.S. 966 (1977) (failure to rehire).

Smith v Olin, 535 F.2d 862 (5th Cir. 1976) (discharge).

Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975) cert, 
denied 422 U.S. 1006 (1975) (failure to rehire).

Cooper v. Allen, 493 F.2d 765 (5th Cir. 1975) (hiring).

Belt v. Johnson Motor Lines, 458 F.2d 443 (5th Cir. 1972) 
(promotion denial; terms and conditions).

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 
1970) cert, denied 401 U.S. 948 (1971) (discharge).

Quarles v. Northern Miss. Retardation Center, 455 F. Supp. 
52 (N.D. Miss. 1978) aff’d, 580 F.2d 1051 (5th Cir. 1978) 
(discharge).

SIXTH CIRCUIT

Erebia v. Chrysler Plastic Products Corp., 863 F.2d 47 (6th 
Cir. 1988) (harassment).

Singala v. Electroha Corp., 862 F.2d 316 (6th Cir. 1988) 
(discharge).

Simmonds v. Superior Pontiac Cadillac, Inc., 861 F.2d 721 
(6th Cir. 1988) (discharge).



E-8

Horton v. Edgcomb Metals Company, 860 F.2d 1079 (6th 
Cir. 1988).

Waller v. Thames, 852 F.2d 569 (6th Cir. 1988) 
(harassment; constructive discharge).

Hill v. Duriron Company, Inc., 656 F.2d 1208 (6th Cir. 
1981) (discharge)

Grano v. Department o f Development, 637 F.2d 1073 (6th 
Cir. 1980) (terms and conditions)

Everson v. McLouth Steel Corp., 586 F.2d 6 (6th Cir. 1978) 
(discharge)

Winston v. Lear-Siegler, 558 F.2d 1266 (6th Cir. 1977) 
(discharge; retaliation)

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974) 
(discharge; terms and conditions; promotion)

Rodgers v. Peninsular Steel Co., 542 F. Supp. 1215 (N.D. 
Oh. 1982) (hiring; promotion; harassment)

Hatton v. Ford Motor Co., 508 F. Supp. 620 (E.D. Mich. 
1981) (discharge)

McGee v. Grand Rapids, 486 F. Supp. 584 (W.D. Mich. 
1980), aff’d, 663 F.2d 1072 (6th Cir. 1981) (discharge)

SEVENTH CIRCUIT

Yarborough v. Tower Oldsmobile, Inc., 789 F.2d 508 (7th 
Cir. 1986) (discharge).



E-9

Ramsey v. American Air Filter Co., 772 F.2d 1303 (7th Cir. 
1985) (terms and conditions; harassment; layoff; 
discharge).

Christensen v. Equitable Life Assurance Society, 767 F.2d 
340 (7th Cir. 1985) cert, denied 474 U.S. 1102 (1985) 
(constructive discharge).

Mason v. Continental III. National Bank, 704 F.2d 361 (7th 
Cir. 1983) (promotion denial).

Ekamen v. Health and Hospitals Corporation o f Marion 
County, 589 F.2d 316 (7th Cir. 1978) cert, denied 469 U.S. 
821 (1984) (hiring; promotion; terms and conditions; 
retaliation)

Flowers v. Cronch-Walker Corp., 552 F.2d 1277 (7th Cir. 
1977) (discharge).

Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 
1976) cert, denied 433 U.S. 919 (1977) (discharge)

Gunn v. Dow Chemical Co., 522 F.Supp. 1172 (S.D. Ind. 
1981) (terms and conditions; constructive discharge)

Dawson v. Pastrich, 441 F.Supp. 133 (N.D. Ind. 1977) 
(hiring)

EIGHTH CIRCUIT

Tart v. Levi Strauss & Co., 864 F.2d 615 (8th Cir. 1988) 
(discharge).

Lassiter v. Covington, 861 F.2d 680 (8th Cir. 1988) 
(discharge).



E-10

Estes v. Dick Smith Ford, 856 F.2d 1097 (8th Cir. 1988) 
(discharge)

Edwards v. Jewish Hospital o f St. Louis, 855 F.2d 1345 (8th 
Cir. 1988) (discharge).

Scoggins v. Bd. o f Education o f the Nashville, Arkansas 
Public Schools, 853 F.2d 1472 (8th Cir. 1988) (discharge).

Monroe v. Guardsmark, Inc., 851 F.2d 1065 (8th Cir.
1988). (discharge)

Pacheco v. Advertisers Lithographing, 657 F,2d 191 (8th Cir. 
1981) (promotion denial; suspension).

Owens v. Ramsey Corp., 656 F.2d 340 (8th Cir. 1981) 
(discharge)

Taylor v. Jones, 653 F.2d 193 (8th Cir. 1981) (discharge).

Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981) 
(discharge; constructive discharge).

Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir. 
1981) (retaliation).

Martin v. Arkansas Arts Center, 627 F.2d 876 (8th Cir.
1980) (discharge)

Middleton v. Remington Arms Co., Inc., 594 F.2d 1210 (8th 
Cir. 1979) (discharge)

Hudak v. Curators o f the University o f Missouri, 586 F.2d 
105 (8th Cir., 1978) cert, denied 440 U.S. 985 (1979) 
(discharge; harassment; terms and conditions)

DeGraffenreid v. General Motors Assembly Division, 558 
F.2d 480 (8th Cir. 1977) (discharge)



E -ll

Donaldson v. Pillsbury Co., 554 F.2d 825 cert, denied, 434 
U.S. 856 (1977)(8th Cir. 1977) (discharge)

Thompson v. McDonnell Douglas Corp., 552 F,2d 220 (8th 
Cir. 1977) (constructive discharge).

Stevens v. Junior College o f St. Louis, 548 F.2d 779 (8th 
Cir. 1977) (discharge; retaliation)

Jimerson v. Kisco, 542 F.2d 1008 (8th Cir. 1976)
(discharge).

King v. Yellow Freight Systems, Inc., 523 F,2d 879 (8th Cir.
1975) (discharge)

Payne v. Ford Motor Co., 461 F.2d 1107 (8th Cir. 1972) 
(terms and conditions)

Brady v. Bristol Meyers, Inc., 459 F.2d 621 (8th Cir. 1976) 
(terms and conditions)

Poindexter v. Kansas City, Mo. Water Dept., 573 F. Supp. 
647 (W.D. Mo. 1983) aff’d 754 F.2d 377 (8th Cir. 1984) 
(discharge)

Robertson v. Doctor’s Hospital, 570 F.Supp. 663 (E.D. Ark.,
1983) (discharge)

Farrakhan v. Sears, Roebuck & Co., 511 F. Supp. 893 (D. 
Neb. 1980) (discharge)

Rose v. Eastern Neb. Human Services Agency, 510 F. Supp. 
1343 (D. Neb. 1981) (discharge)

Lindsey v. Angelica Corp., 508 F. Supp. 363 (E.D. Mo. 
1981) (hiring)



E-12

Madrigal v. Certaineed, 508 F. Supp. 310 (W.D. Mo. 1981) 
(discharge)

Metcalf v. Omaha Steel Castings Co., 507 F. Supp. 679 (D. 
Neb. 1981) (discharge)

Williams v. Trans World Air Lines, Inc., 507 F. Supp. 293 
(W.D. Mo. 1980), aff’d , 660 F.2d 1267 (8th Cir. 1981) 
(discharge)

Spearman v. Southwestern Bell, 505 F. Supp. 761 (E.D. Mo. 
1980), aff’d 662 F.2d 509 (8th Cir. 1981)

Coleman v. General Motors, 504 F. Supp. 900 (E.D. Mo. 
1980), (8th Cir. 1981) (discharge; retaliation)

Taylor v. Jones, 495 F.Supp. 1285 (E.D. Ark., 1980) 
(non-renewal; discharge)

Setser v. Novack Investment Co., 483 F. Supp. 1147 (E.D. 
Mo. 1980), rev’d on other grounds, 638 F.2d 1137, (8th Cir. 
1980), vac’d and amended, 657 F.2d 962 (8th Cir. 1981) 
(retaliation; hiring)

Sutton v. Addressograph-Multigraph Corp., 481 F. Supp. 
1148 (E.D. Mo. 1979) (discharge)

Buckley v. City o f Omaha, 477 F. Supp. 754 (D. Neb. 1978) 
aff’d, 605 F.2d 1078 (8th Cir. 1979)(discharge)

Slotkin v. Human Development Corp., 454 F. Supp. 250 
(E.D. Mo. 1978) (retaliation; constructive discharge)

Mixon v. Hanley Ind., 454 F. Supp. 386 (E.D. Mo. 1978), 
aff’d, 594 F.2d 869 (8th Cir. 1978) (failure to rehire; 
discharge)



E-13

Oliver v. Moberly Missouri School District, 427 F. Supp. 82 
(E.D. Mo. 1977) (hiring)

Mopkins v. St. Louis Die Casting Corp., 423 F. Supp. 132 
(E.D. Mo. 1976), aff’d, 569 F.2d 454 (8th Cir. 1978) 
(discharge)

Jimerson v. Kisco Co., 404 F. Supp. 338 (E.D. Mo. 1976), 
aff’d, 542 F.2d 1008 (8th Cir. 1978) (discharge)

NINTH CIRCUIT

Brown v. Boeing Company, 843 F.2d 501 (9th Cir. 1988) 
cert, denied, 488 U.S. 865 (1988)(discharge).

Mitchell v. Keith, 752 F.2d 385 (9th Cir. 1985) cert, denied, 
M2 U.S. 1028 (1985)(discharge; retaliation)

Wiltshire v. Standard Oil Co., 652 F.2d 837 (9th Cir. 1981) 
(discharge)

London v. Coopers & Lyhrand, 644 F.2d 811 (9th Cir., 
1981) (retaliation; discharge)

St. John v. Employment Development Corp., 642 F.2d 273 
(9th Cir. 1981) (retaliation; discharge).

Shah v. Mt. Zion Hospital and Medical Center, 642 F.2d 
268 (9th Cir. 1981) (discharge; retaliation)

Fong v. American Airlines, Inc., 626 F.2d 759 (9th Cir. 
1980) (discharge)

Miller v. Bank o f America, 600 F.2d 211 (9th Cir. 1979) 
(discharge).



E-14

Smallwood v. National Can Co., 583 F.2d 419 (9th Cir.
1978) (retaliation; terms and conditions)

Cooper v. Dept, o f Administration, State o f Nevada, 558 F. 
Supp. 244 (D. Nev. 1982) (hiring)

Sethy v. Alameda County Water Dist., 545 F.2d 1157 (9th 
Cir. 1976) (discharge; harassment)

Chatman v. U.S. Steel, 425 F. Supp. 753 (N.D. Ca., 1977) 
(terms and conditions)

TENTH CIRCUIT

Skinner v. Total Petroleum, Inc., 859 F.2d 1439 (10th Cir. 
1988) (retaliatory discharge; discriminatory discharge).

McAlester v. United Air Lines, Inc., 851 F.2d 1249 (10th 
Cir. 1988) (discharge).

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) 
(harassment).

Meade v. Merchants Fast Motorline, Inc., 820 F.2d 1124 
(10th Cir. 1987) (discharge).

Whatley v. Scaggo Companies, Inc., 707 F.2d 1129 (10th 
Cir. 1983) cert, denied, 464 U.S. 938 (1983) discharge).

Trujillo v. State o f Colorado, 649 F.2d 823 (10th Cir. 1981) 
(retaliation; terms and conditions; hiring)

Shah v. Halliburton Co., 627 F.2d 1055 (10th Cir. 1980) 
(discharge)

Manzanares v. Safeway Stores, 593 F.2d 968 (10th Cir. 
1978) (terms and conditions)



E-15

Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 
1977) (discharge)

Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir.
1975) (discharge)

Foster v. M.C.I., 555 F. Supp. 330 (D.Colo. 1983) aff’d, 773 
F.2d 1116 (10th Cir. 1985) (discharge)

Whatley v. Skaggs, 502 F.Supp. 370 (D.Colo. 1980), aff’d, 
707 F.2d 1129 (10th Cir. 1983) (discharge; demotion)

LaFore v. Emblem Tape & Label, 448 F.Supp. 824 
(D.Colo. 1978) (discharge)

Apodaca v. General Electric Corp., 445 F. Supp. 821 
(D.N.M. 1978) (discharge)

Enriquez v. Honeywell, Inc., 431 F. Supp. 901 (W.D. Ok. 
1977) (terms and conditions)

ELEVENTH CIRCUIT

Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 
1988) (retaliation).

Swint v. Pullman Standard, 854 F.2d 1549 (11th Cir. 1988) 
(promotion denial; terms and conditions).

Zaklama v. Mt. Sinai Medical Center o f Greater Miami, 842 
F.2d 291 (11th Cir. 1988) (discharge).

Graham v. Jacksonville, 568 F. Supp. 1575 (M.D.Fla. 1983) 
(discharge)

Nation v. Winn-Dixie Stores, Inc., 567 F. Supp. 997 
(N.D.Ga. 1983) (promotion; demotion)



E-16

Schwartz v. State o f Florida, 494 F. Supp. 574 (N.D.Fla. 
1980) (hiring)

Johnson v. City o f Albany, Georgia, 413 F Supp. 782 
(N.D.Ga. 1983) (hiring; promotion)

D.C. CIRCUIT

Frazier v. Consolidated Edison Corp., 851 F.2d 1447 (D.C. 
Cir. 1988) (discharge).

Barber v. American Security Bank, 841 F.2d 1159 (D.C. Cir. 
1988) (discharge).

Underwood v. District o f Columbia Armory Bd., 816 F.2d 
769 (D.C. Cir. 1987) (promotion denial).

Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225 (D.C. Cir.
1984) (terms and conditions).

Metrocare v. Washington Area Metro Area Transit Authority, 
679 F.2d 922 (D.C. Cir. 1982) (discharge; failure to 
promote).

Harris v. Group Health Association, Inc., 662 F.2d 869 
(D.C.Cir. 1981) (discharge)

Weahkee v. Perry, 587 F.2d 1256, (D.C.Cir. 1978) 
(discharge; promotion)

Payne v. Blue Bell, 550 F. Supp. 1324 (M.D.N.C. 1982) 
(discharge).

Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.Cir. 
1981) (terms and conditions; hiring)



E-17

Pope v. City o f Hickory, North Carolina, 541 F. Supp. 872 
(W.D.N.C. 1981), aff’d 679 F.2d 20 (4th Cir. 1982) 
(discharge; terms and conditions).

Cormier v. P.P.G. Industries, 519 F. Supp. 211 (W.D. La. 
1981) aff’d, 702 F.2d 567 (5th Cir. 1982) (hiring; 
promotion denial).

Adams v. Gaudet, 515 F. Supp. 1086 (W.D.La. 1981) 
(hiring; promotion denial).

Fisher v. Dillard Univ., 499 F. Supp. 525 (E.D. La. 1980) 
(discharge; terms and conditions).

Reynolds v. Sheet Metal Workers Local 102, 498 F.Supp. 
952 (D.D.C. 1980), aff’d. 702 F2d. 221 (D.C.Cir. 1981) 
(hiring; training)

Crawford v. Railway Express, Inc., 485 F. Supp. 914 (W.D. 
La. 1980) (retaliation).

Johnson v. Olin Corp., 484 F. Supp. 577 (S.D. Tex. 1980) 
(discharge)

Robertson v. Maryland State Department, 481 F. Supp. 108 
(D.Md. 1978) (termination; failure to rehire)

Liotta v. National Forge Co., 473 F. Supp. 1139 (W.D. Pa.
1979) , aff’d in part, rev’d in part, 629 F.2d 903 (3rd Cir.
1980) (discharge; retaliation).

Walker v. Robbins Hose Co., 465 F. Supp. 1023 (D.Del., 
1979) (hiring).

Queen v. Dresser Industries, Inc., 456 F. Supp. 257 (D.Md. 
1978) aff’d 609 F.2d 509 (4th Cir. 1979) (terms and 
conditions).



E-18

Neely v. City o f Grenada, 438 F. Supp. 390 (N.D. Miss. 
1977) (hiring; promotion denial).

Crocker v. Boeing Co., 437 F. Supp. 1138 (E.D. Pa. 1977), 
aff’d, 662 F.2d 975 (3rd Cir. 1981) (hiring; lay-offs; 
promotion denial; terms and conditions; harassment)

Winston v. Smithsonian Science Information Exchange, Inc., 
437 F.Supp. 456 (D.D.C. 1977), aff’d, 595 F.2d 888 
(D.C.Cir. 1979) (discharge; terms and conditions)

Jaw a v. Fayettevill State Univ., 426 F. Supp. 218 (E.D.N.C.
1976) (discharge; terms and conditions; promotion denial; 
retaliation).

Johnson v. Shreveport Garment Co., 422 F. Supp. 526 
(W.D.La. 1976), aff’d, 577 F.2d 1132 (5th Cir. 1978)
(terms and conditions; promotion denial).

Morris v. Board o f Education, 401 F. Supp. 188 (D.DeL, 
1975) (discharge; failure to rehire).



APPENDIX F

Legislative History References to 
§ 101 as Restoring Pre-Patterson 

Interpretation of § 1981

M E M B E R  O R  REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

SENATE-FEBRUARY 7. 1990

Kennedy
(S1018)

"The Civil Rights Act of 1990 is 
intended to overturn these Supreme 
Court decisions and restore and 
strengthen these basic laws. The 
Patterson decision, interpreting the 
1866 civil rights law . . . nullified the 
only Federal antidiscrimination law 
applicable to the 11 million workers 
in . . . firms with fewer than 15 
employees. Already the damage is 
unmistakable . . . and [the decision] 
should be overruled by Congress."

Jeffords
(S1021)

"The Civil Rights Act of 1990 was 
drafted with the specific intention of 
overruling dome of these decisions, 
as well as to restore and strengthen 
our civil rights laws. . . First. In 
Patterson versus McLean Credit 
Union, the Court reached the 
astounding conclusion that [§ 1981] 
pertained only to the formation of



F-2

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

Hatfield
(S1023)

Simon
(S1024)

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

the contracts and not to any conduct 
occurring thereafter. . . The Civil 
Rights Act of 1990 amends section 
1981 to reaffirm that the right to 
make and enforce contracts includes 
the enjoyment of all the benefits, 
privileges, terms and conditions of 
the contractual relationship."

"The Civil Rights Act of 1990 would 
essentially overturn, those Supreme 
Court decisions. . . First, it would 
restore the prohibition against racial 
discrimination in the making and 
enforcement of contracts. . . [to 
include] the enjoyment of all 
benefits, terms and conditions of the 
contractual relationship."

"The Civil Rights Act of 1990 would 
reverse five Supreme Court decisions 
that do particular harm to the notion 
of equal employment rights for all. 
The bill would reverse Patterson. . ." 
"Fortunately, Congress can, and 
should, step in to restore the civil 
rights safety net ripped open by the 
Supreme Court."



F-3

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

Packwood 
(SI024)

Cranston
(S1025)

"During 1989, however, the U.S. 
Supreme Court issued a series of 
d e c i s i o n s  in e m p l o y m e n t  
discrimination cases that threaten to 
set back our progress in the area of 
job opportunity by decades. As a 
result of the decision in Patterson 
. . . victims of even the most 
egregious racial harassment in the 
workplace can obtain no meaningful 
remedy."

"The bipartisan legislation being 
introduced today is designed to 
reverse the adverse impact of these 
decisions and to restore our Nation’s 
strong and effective weapons against 
employment discrimination."

SENATE-JUNE 8, 1990

Labor and Human 
R e s o u r c e s  
Committee Report 
(Page 12)

"Many Supreme Court decisions 
have held that section 1981 prohibits 
intentional race discrimination in the 
making and enforcement of private 
contracts, as well as in state action 
affecting individuals’ ability to make 
and enforce contracts. . . The 
Patterson decision sharply cut back 
on the scope and effectiveness of 
section 1981."



F-4

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATI VE  

(Page 58) Section 12 of the 1990 CRA "is
intended to overrule the Supreme 
Court’s decision in Patterson, which 
adopted an incorrect, crabbed 
interpretation of the law known as 
section 1981. . . . The Act would 
overrule Patterson."

SF.NATE-JULY 10. 1990

Hatch "I have to say that with respect to
(S9331) the Patterson versus McLean case,

which the distinguished Senator 
from Massachusetts said has to be 
overruled, there is no disagreement. 
I agree with that. I have from the 
beginning. The White House, as far 
as I know, has from the beginning 
. . . We agree that section 1981 
. . . should also cover the terms and 
conditions. . . We are going to 
overturn Patterson."

■SENATE—JULY 17. 1990

Mikulski "That section of the substitute seeks
(S9845) to overrule the Supreme Court’s

decision in Patterson . . . and to 
restore the prohibition against all 
racial discrimination in the making



F-5

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

Kennedy
(S9848)

and carrying out of contracts in 42 
U.S.C. § 1981."

"Now, we put the law back to what it 
was prior to Patterson in our 
substitute. The Bush administration 
has also adopted virtually similar 
language in their own proposal, to 
overturn Patterson."

SENATE-JULY 18. 1990

Kennedy Objecting to a substitute which
(S9906) would not adequately restore section

1981, stating "it is quite clear that 
the substitute would offer no relief 
to Brenda Patterson or to the 
victim s of intent ional  race 
discrimination in the more than 200 
other cases dismissed because of the 
S u p r e m e  C o u r t ’ s c l e a r  
misinterpretation of the law, because 
we are restoring the rights of these 
various defendants to what they 
were prior to the time of the Brenda 
Patterson [decision], and the 
substitute does not do so."



F-6

Kassebaum
(S9906)

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

Dodd
(S9914)

Cranston
(S9942)

Conrad
(S9957)

"We all wish to address the five 
Supreme Court decisions in a way 
that can correct those decisions so 
that we can address the question of 
discrimination that was weakened by 
those five Supreme Court decisions."

"Last year, however, the Supreme 
Court shocked the American public, 
the Congress, and even the 
administration when it blatantly 
reneged on its commitment to 
providing hard-working Americans 
equal protection under laws. . . To 
restore the heart and soul to our 
civil rights laws . . .  the Congress, in 
my view must act to overturn the 
1989 Supreme Court rulings."

"The Civil Rights Act of 1990 
restores the proper balance between 
employee and employer rights by 
conforming the congressional intent 
regarding the broad scope of our 
civil rights laws."

"This is an incredibly important 
proposal. It reverses or modifies a 
series of Supreme Court decisions 
which have severely weakened our 
country’s civil rights protections."

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE



F-7

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

Kohl
(S9957)

"I am proud to support efforts to 
restore remedies and protections to 
employees who are victims of 
discrimination."

Riegle
(S9957)

"One of last year’s most egregious 
S u p r e m e  C o u r t  d e c i s i o n s ,  
[Patterson], seriously limited the 
scope of section 1981 by protecting 
only against discrimination in the 
making of an employment contract; 
that is, hiring. . . . This decision 
seriously undermines the equal 
opportunity laws which have been 
developed over the years."

Kerry
(S9958)

"Tonight we attempt to reverse the 
recent actions of the Supreme Court 
and restore the full force of the 
antidiscrimination law."

Levin
(S9961)

"The Civil Rights Act of 1990 will 
restore and strengthen our civil 
rights laws to the scope which 
Congress intended and which the 
courts had interpreted them to have 
until the 1988-89 Supreme Court 
term."



F-8

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

H O U SE-JU LY  30. 1990

The Patterson decision sharply cut 
back on the scope and effectiveness 
of section 1981, shattering the 
uniform concensus the federal courts 
had reached on the scope of the 
statute. . . . Prior to the Patterson 
ruling, every federal court of appeals 
had held that section 1981 prohibits 
not just discrimination at the 
formation of an employment 
contract, but discrimination during 
the performance of that contract as 
well. . . . The committee finds that 
The Supreme Court’s ruling in 
Patterson v. McLean Credit Union 
conflicts federal appellate case law 
defining the scope of section 1981."

(Page 86) "The purpose of enacting the Civil
Rights Act of 1990 is to restore the 
rights, protections and remedies that 
were available under Title VII and 
Section 1981 prior to last year’s 
Supreme Court’s decisions. . . . 
[Section 1981] has provided 
important and in many instances 
exclusive federal relief against race 
discr iminat ion in cont ractual  
relations, including employment 
relationships, for many years."

C o m m i t t e e  on 
E d u c a t i o n  and 
Labor Report 
(Page 17)



F-9

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

HO U SE-JU LY  31. 1990

J u d i c i a r y  
Committee Report 
(Page 42)

"Many Supreme Court decisions 
have held that Section 1981 prohibits 
intentional racial discrimination in 
the making and enforcement of 
private contracts . . .  In Patterson, 
the Supreme Court gave Section 
1981 a narrow interpretation. . . . 
This subsection overrules Patterson."

HOUSE-AUGUST 2. 1990

Hayes
(H6324)

"It would certainly be a sad 
commentary if we were to fail today 
to restore and strengthen our laws 
that attempt to wipe out prejudice 
on the job."

Lloyd
(H6332)

"What we want to accomplish today 
is to restore the degree of civil rights 
protection provided by the 1866 and 
1964 acts."

LaFalce
(H6774)

"Our discrimination laws, as 
interpreted by the Supreme Court, 
are now disgracefully weak. We 
must reverse those Supreme Court 
decisions, and we must strengthen 
the civil rights law that exist."



F-10

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

Panetta
(H6779)

"The Supreme Court unfortunately 
has eroded those tools and 
undermined the ability to protect 
equal rights. This bill restores the 
vital tools that we need for 
enforcement."

Levine
(H6733)

”[T]his legislation, unamended will 
reverse what the Supreme Court has 
done in the late 1980’s, in order to 
restore what we thought we were 
doing as a nation in the 1960’s."

Lowey
(H6790)

"The Civil Rights Act of 1990-H.R. 
4000-overturns these decisions. It 
will restore and strengthen our civil 
rights laws by making clear that 
employment decisions based on 
prejudice are illegal."

Oakar
(H6791)

"[Tjhis legislation, in seeking to 
overturn six recent Supreme Court 
decisions, merely restores civil rights 
laws to the conditions prior to 1989."



F -ll

Mineta
(H6793)

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

Stokes
(H6794)

Owens
(H6795)

Espy
(H6796)

Vento
(H6799)

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

"In recent years, a number of 
decisions by the U.S. Supreme Court 
have weakened U.S. civil rights laws- 
the very laws that make our nation 
great. Today, with the Civil Rights 
Act of 1990, the House has the 
opportunity to restore the health and 
integrity of our commitment to civil 
rights."

"In effect, the Supreme Court has 
taken us back to where we were 
before 1964. Now Congress is 
having to restore those rights."

"We have the opportunity today to 
help stop the backward slide, to 
repudiate the Supreme Court’s 
attack on equal employment 
opportunity and restore the vitality 
of our civil rights laws."

"[T]his is not just a civil rights bill, 
this is a civil [rights] restoration act."

"H.R. 4000 clarifies Congressional 
intent and reinstates prior Federal 
judicial interpretations to include all 
aspects of a private contract. . ."



F-12

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

Kennelly
(H6758)

HOU SE-A UG U ST 3. 1990

"This legislation we have before us 
only attempts to restore those 
policies that we, in the Congress, 
thought were operative until the 
Supreme Court narrowed the 
application of the law. . . .  I think it 
is critical that we restore the law."

Matsui
(H6763)

"The Civil Rights Act of 1990 
restores to women and minorities in 
the workforce the guarantee that 
their rights will not be abridged."

Serrano
(H6764)

"The purpose of the [Act] is to 
restore and restrengthen civil rights 
laws that ban discrimination in 
employment."

Edwards
(H9977)

HOUSE-OCTOBER 17. 1990

"The Civil Rights Act of 1990 
amends the Civil Rights Acts of 1866 
and 1964 to restore and strengthen 
civil rights laws th a t ban 
discrimination in employment. The 
Suprem e C ourt dram atically  
narrowed these laws in a series of 
decisions last year."



F-13

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

Hayes
(H9989)

"This legislation . . . restores and 
strengthens the protections of every 
American and moreover, it sends a 
clear message that there will be not 
be any reversal on our national 
commitment to equal justice for all."

SENATE-OCTOBER 16, 1990

Hatch
(S15329)

"There is one aspect of this bill 
everyone agrees with, as I 
understand  it, or at least 
overwhelmingly would agree with 
and that is the . . . overrule of the 
Patterson versus McLean case."

Metzenbaum
(S15334)

"This conference report embodies 
the will of a strong majority of the 
Senate. More importantly, the 
conference report restores basic civil 
rights protections for millions of 
Americans. Women and minorities 
were victimized last year in a series 
of stunning Supreme Court 
decisions. Those decisions turned 
back the clock on our progress 
toward equal opportunity."

Mikulski
(S15377)

"[A]ll this legislation does is restore 
certain civil rights that were 
overturned by certain other legal



F-14

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

cases,"

Adams
(S15379)

"These rulings marked an erosion of 
the more than 25 years of progress 
made in eliminating discrimination 
in the workplace. I am proud that 
today we will reverse this trend and 
again send a message to employers 
throughout this country that the 
American people will not tolerate 
discrimination."

Levin
(S15381)

"The Civil Rights Act of 1990 would 
restore and strengthen our civil 
rights laws in a balanced way."

Mitchell
(S15400)

"[The bill] seeks to restore to the law 
the interpretation of job-place 
discrimination which was the law of 
the land from 1971 to 1989. It 
would restore explicitly to the law 
the understanding that a contract 
cannot be honored in the making 
and broken in the performance 
without contravening the law."



F-15

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

SENATE-OCTOBER 24. 1990

Hatch
(S16565)

Expressing opposition to one version 
of the bill, "except for the overrule 
of the Patterson versus McLean case 
which would take care of Brenda 
Patterson. We are prepared to do 
that right now. We are for 
overruling the Patterson versus 
McLean case."

Kassebaum
(S16575)

"It is the President’s view, a view I 
strongly share, that legislation is 
needed to address the Supreme 
Court decisions handed down last 
year that have weakened civil rights 
protections. These rulings have 
swung the pendulum in favor of 
employers and against the real and 
potential victims of discrimination 
and harassment."

Kerry
(S16577)

"This bill is designed to correct those 
decisions, to restore the full force of 
the antidiscrimination laws which 
have guided us for more than two 
decades."

Hoi lings 
(S16580)

"[I]t is clear to any citizen that 
[Patterson] twisted the spirit of the 
law, and the current legislation is 
needed to restore its intent."



F-16

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

Akaka 
(SI6585)

"Those of us who support civil rights 
sought this bill to overturn six recent 
Supreme Court decisions that have 
greatly diminished the ability of 
women and minorities to win job 
discrimination suits. We saw our 
vote as restoring prohibitions against 
employment discrimination that have 
been in force for nearly 20 years."

Levin 
(SI6586)

"This bill would restore some of the 
rights we fought so hard for in the 
1960’s and 1970’s that were lost in a 
few Supreme Court decisions in the 
1980’s. Those decisions last year 
took us backward. This bill would 
overturn those decisions and take us 
forward."

Simpson
(S2261)

SENATE--FEBRUARY 22. 1991

" In  a g r e e m e n t  w i t h  t h e  
administration, Senator Kennedy, 
and the civil rights groups, my bill 
would also overturn . . . Patterson."

Hatch
(S3026)

SENATE-M ARCH 12. 1991

"I am pleased that that bill overturns 
. . . Patterson."



F-17

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

SEN A TT-JU N E 4. 1991

Durenberger
(S7026)

Chafee
(S7027)

The Civil Rights Act overturns 
Patterson and "[a]ll interested 
parties, including the administration, 
civil rights groups and business 
groups, agree that these two cases 
incorrectly narrowed the protections 
available to minorities."

Patterson and the other 1989 
S u p r e m e  C o u r t  d e c i s i o n s  
"established far more stringent 
requirements than had previously 
existed in discrimination suits. . .
At worst, the Court took a 180- 
degree turn from what we in 
Congress over the years have tried 
to do. At best they took an 
unnecessarily severe interpretation 
of our intent. . . We wrote the 
statutes that the Court interpreted. 
We must be sure the rights 
guaranteed by those statutes remain 
intact."



F-18

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

Brooks
(H3834)

Gephardt
(H3837)

Gunderson
(H3841)

H O U SE-JU N E 4. 1991

Patterson and other 1989 decisions 
"narrowed the interpretation of these 
laws and threaten to erode the 
progress we have made. Passage of 
H.R. 1 is, therefore, essential to 
assure fair treatment in the work 
place for all Americans."

The CRA of 1991 "restores the law 
as it existed before the 1989 
Supreme Court decisions that
weakened an individual’s recourse 
against discrimination and all but 
denied victims of discrimination 
protection under the law."

"The President overturns the
Supreme Court on Patterson. Yes, 
the Democratic bill does, too."

Moorhead "[T]he much criticized Patterson case
(H3843) is overruled."

Clay The 1991 Act "simply seeks to
(H3844) restore the fair balance between

employers and employees that 
existed for 25 years prior to the 
Supreme Court’s notorious 1989 
te rm .. . Those 1989 decisions gutted 
title VII’s effectiveness."



F-19

Wolpe
(H3845)

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

Collins
(H3859)

Hughes
(H3859)

Espy
(H3862)

Mineta
(H3862)

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

Central purpose of the 1991 Act "is 
simply to restore equal employment 
opportunity to where it was before a 
series of recent Supreme Court 
decisions made it much more 
d i f f i c u l t  f o r  v i c t i m s  o f  
discrimination,"

In Patterson "the Court turned the 
clock back" and the bills she 
supported "would reinstate these 
modern-day protections."

The Patterson provision and certain 
other provisions "will restore civil 
rights standards that served us well 
for many years. . . This legislation 
will correct the aggressive tilt in the 
civil rights law created by five 1989 
U.S. Supreme Court decisions."

The CRA of 1991 "does not make 
any radical changes in civil rights 
law. . . It will restore laws which 
have served our Nation well."

"Before the Supreme Court 
decisions, we had a system that 
worked for 18 years and could have 
worked for years to come. We need 
to put that system back in place."



F-2Q

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

Stokes
(H3863)

The Supreme Court wrote "in the 
law a series of loopholes that permit 
many employers to discriminate with 
virtual impunity. . . H.R. 1 would 
close the court-created loopholes."

Lewis
(H3865)

The CRA of 1991 "only attempts to 
take us back to where we were 
before the recent Supreme Court 
decisions."

Kennedy
(H3866)

"For decades, the Court said that an 
1866—-yes, 1866-—law prevented 
discrimination on the job. Now the 
Court says that the law only prevents 
prejudice at the door—at the time of 
hiring. . . Now we are going to do 
something about these latest 
backward decisions. Because 
America will not tolerate racial bias 
on the job any more than at the time 
of hiring."

Romer
(H3866)

The CRA of 1991 "will restore and 
strengthen the equal employment 
opportunities that were severely 
weakened by Supreme Court 
decisions in 1989."



F-21

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

Edwards
(H3869)

The 1991 Act "amends the Civil 
Rights Acts of 1866 and 1964 to 
restore and strengthen their 
prohibition against employment 
discrimination. The Supreme Court 
dramatically narrowed these laws in 
a series of decisions in 1989. . . The 
Michel Republican substitu te 
reverses only one of the devastating 
1989 Supreme Court decisions, the 
Patterson case."

Levine
(H3875)

The CRA Act of 1991 "would 
restore to the disenfranchised 
American workers equal opportunity 
rights lost in Supreme Court 
decisions in 1989."

Gunderson
(H3885)

" B o t h  [ H . R .  1 a n d  t h e  
Administration’s bill] overturn the 
Supreme Court in Patterson, 
restoring the expansive reading of 
protections against discrimination in 
all aspects of contracts."

Owens
(H3888)

"We have the opportunity today to 
help stop the backward slide, to 
repudiate the Supreme Court’s 
attack on equal employment 
opportunity and restore the vitality 
of our civil rights laws."



F-22

Waters
(H3890)

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

Towns
(H3895)

Goodling
(H3900)

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

The Supreme Court decisions 
"effectively eroded rights that we 
thought we already had."

In Patterson, the Supreme Court 
"has stripped workers of any 
protection against racial or sexual 
harassment at work. . . Only
Congress can fully restore the 
protections and remedies stripped 
from American workers by the 1989 
Supreme Court decisions."

"Probably the most important of all 
is the Patterson case, which is totally 
reversed by the President’s" bill. 
The Michel substitute "restores the 
expansive reading of section 1981 
that racial discrim ination is 
prohibited in all aspects of the 
making and enforcem ent of 
contracts. . . .  As did my colleagues 
on the other side of the aisle, we 
recognize that. . . . the Supreme 
Court restricted Federal civil rights 
protections in a manner that was not 
consistent with the intent of 
Congress."



F-23

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

Brooks
(H3928)

Morelia
(H3938)

Shays
(H3946)

Zimmer
(H3947)

H O U SE-JU N E 5. 1991

"[DJespite the complexity of the 
subject matter, the simplicity of the 
legislative goal remains clear—that of 
restoring what had been the law and 
what had been the operating 
procedures for the past 25 years 
before the Supreme Court decided 
to change the rules in midcourse."

The 1989 decisions "have narrowed 
the application of important civil 
rights laws" and the substitute 
"restores and strengthens our civil 
rights laws."

The recent Supreme Court decisions 
in 1989 "seriously weakened the 
employment protection provisions of 
the landmark 1964 act. The reality 
is we need the Brooks-Fish civil 
rights bill to undo the damage done 
by the Supreme Court."

"[Tjhere is nearly universal 
agreement that legislation is needed 
to reverse several restrictive 
Supreme Court decisions."



F-24

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

McMillen
(H3954)

"We are in a position today to 
reaffirm our commitment to equal 
opportunity and restore the status 
quo that existed before the six recent 
Supreme Court decisions."

Skaggs
(H3956)

"America needs to regain the ground 
lost in civil rights as a result of 
recent Supreme Court decisions. . . 
[W]e need to put the country back 
on the track of progress from which 
the High Court derailed us in 1989."

Bustamante
(H3957)

Recent Supreme Court rulings have 
narrowed "the scope of legislation 
designed to prevent work place 
discrimination."

Delugo
(H3957)

The House has worked diligently "to 
frame legislation to overturn 1989 
Supreme Court decisions that 
severely reduce remedies for civil 
rights violations."



F-25

SENATE-OCTOBER 25. 1991

Kennedy "Members of this body have joined
(S15233) with administration representatives

to craft a civil rights bill that will 
restore to all Americans the ability 
to enforce their rights to equal 
opportunity."

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

SENATE-OCTOBER 28. 1991

Seymour
(S15285)

Metzenbaum
(S15287)

"[T]he bill restores section 1981—one 
of the Nation’s oldest civil rights 
laws—to its original intent by 
a l l o w i n g  v i c t i ms  o f  r a c e  
discrimination in all facets of the 
work environment to seek legal 
remedies."

In its 1989 decisions, "the Court 
retreated from long-standing rules 
and principles, making it harder for 
victims of discrimination to get into 
court, harder for them to prove their 
cases, and harder for them to obtain 
meaningful relief if they won their 
cases. . . [W]e are finally returning 
this Nation to the pursuit of fairness 
and equality of opportunity in the 
workplace."



F-26

MEMBER OR REFERENCE TO § 101
OTHER SOURCE OF THE CRA AS
W/ PAGE CITE RESTORATIVE

SENATE-OCTOBER 29. 1991

Jeffords
(S15383)

"Every civil rights proposal made 
over the past year and a half has 
included a Patterson reversal as one 
of its terms. . . [W]e will restore the 
rights taken away in Patterson."

Breaux
(S15391)

The 1989 Supreme Court decisions 
brought "the reversal of long­
standing gains in civil rights."

Robb
(S15445)

SENATE-OCTOBER 30. 1991

"This act restores the civil rights 
remedies which were taken away in 
the late 1980’s by the new majority 
on the Supreme Court."

Dodd
(S15465)

"I strongly believe that it is 
imperative that we restore the full 
force and effectiveness of our 
Nation’s civil rights laws to millions 
of minorities and women."



F-27

Gore
(S15482)

MEMBER OR
OTHER SOURCE
W/ PAGE CITE

Danforth
(S15483)

Danforth
(S15500)

REFERENCE TO § 101
OF THE CRA AS
RESTORATIVE

"During the 1988-89 term, the U.S. 
Supreme Court handed down 
decisions in a series of cases which 
severely curtailed the rights of 
minorities and women in the 
workplace and made it harder for 
them to fight discrimination. This 
bill recognizes that those decisions 
were flawed . . . and restores 
protections against racial and ethnic 
discrimination which were struck 
down by these rulings."

The Patterson section of the bill 
"reinstates the prohibition of 
d i s c r i m i n a t i o n  d u r i n g  t h e  
performance of the contract and 
restores protection from racial and 
ethnic discrimination to the millions 
of individuals employed by firms 
with fewer than 15 employees."

"What was wrong was that in the 
year 1989 the Supreme Court chose 
to turn the clock back, and that can 
never happen in civil rights; it can 
never be allowed to happen."



F-28

MEMBER OR 
OTHER SOURCE 
W/ PAGE CITE

REFERENCE TO § 101 
OF THE CRA AS 
RESTORATIVE

HOUSE-NOVEM BER 7. 1991

Edwards
(H9526)

The Patterson provision "reinstates 
the prohibition of discrimination 
during the performance of the 
contract and restores protection for 
racial and ethnic discrimination to 
millions of individuals."



APPENDIX G

Court of Appeals Decisions Since 
Bradley v. Richmond Sch. Bd. Applying Statutes Affecting 

Remedies and Procedures To Pending Cases

1. United States v. Peppertree Apartments, 942 
F.2d 1555, 1560-61 (11th Cir. 1991) 
(explaining that "[statutory changes that are 
remedial in nature apply retroactively....
The change in the statute ... does not 
impose a new obligation upon [the 
defendant]. Instead, it imposes an 
additional remedy on already proscribed 
conduct."), petition for cert, filed (Dec. 26, 
1991).

2. In re Resolution Trust Corp., 888 F,2d 57, 58 
(8th Cir. 1989) (endorsing presumption 
favoring application to pending cases for 
"new enactments changing procedural or 
jurisdictional rules").

3. Delta Computer Corp. v. Samsung 
Semiconductor, 879 F.2d 662, 663 (9th Cir. 
1989) (applying statute to pending cases 
when it is "addressed to remedies or 
procedures and does not otherwise alter 
substantive rights") (quoting Friel v. Cessna 
Aircraft Co., 751 F.2d 1037, 1039 (9th Cir.
1985). 4

4. Nichols v. Stapleton, 877 F.2d 1401, 1403 
(9th Cir. 1989) (applying to pending cases 
new statutes that change remedies and 
procedures, not substantive rights)



G-2

5. Kniso v. International Telephone and 
Telegraph Corp., 872 F.2d 1416, 1425 (9th 
Cir. 1989) (endorsing presumption in favor 
of applying to pending claims "a statute ... 
addressed to remedies or procedure").

6. DeGundes v. I.N.S., 833 F.2d 861, 863 (9th 
Cir. 1987) (finding no manifest injustice 
under Bradley when new law provides "a 
grant or expansion of an access to a 
remedy").

7. Yakima Valley Cablevision, Inc. v. F.C.C., 
794 F.2d 737, 748 (D.C. Cir. 1986) 
(explaining that "this circuit views statutes 
that change substantive rights as differing 
from those — as in Bradley -  that merely 
change substantive remedies") (emphasis in 
original).

8. Friel v. Cessna Aircraft Co., 751 F.2d 1037, 
1039 (9th Cir. 1985) (endorsing presumption 
in favor of applying law "addressed to 
remedies or procedures").

9. United States v. Femandez-Toledo, 749 F.2d 
703, 705 (11th Cir. 1985) (endorsing 
presumption in favor of applying laws "that 
affect only procedure or remedy").

10. United States v. Kairys, 782 F.2d 1374, 1381 
(7th Cir.), cert, denied, 476 U.S. 1153 (1984) 
(finding a statute remedial when it "relates 
to the means and procedures for 
enforcement of [existing] rights")

11. Shirey v. Devine, 670 F.2d 1188, 1197 (D .C  
Cir. 1982) (applying new statute to pre-



G-3

existing claims where it "refined and 
strengthened the remedies available to 
enforce pre-existing rights.")

12. Eikenberry v. Callahan, 653 F.2d 632, 635-36 
n.14 (D.C. Cir. 1981) (recognizing remedy- 
right distinction in determining new law’s 
applicability to pending cases).

13. Hastings v. Earth Satellite Corp., 628 F.2d 85, 
93 (D.C. Cir. 1980) (explaining that 
application to pending claims of new 
enforcement mechanisms rarely involves any 
risk of serious unfairness because it "harbors 
much less potential for mischief than 
retroactive changes in the principles of 
liability.... Modification of remedy merely 
adjusts the extent, or method of 
enforcement, of liability in instances in 
which the possibility of liability previously 
was known")

14. Reeves v. International Tel and Tel. Corp., 
616 F.2d 1342, 1350 (5th Cir. 1980) 
(endorsing presumption in favor of applying 
to pre-existing claims new laws which "are 
procedural and affect only remedies"), cert, 
denied, 449 U.S. 1077 (1981).

15. Samuelson v. Susen, 576 F.2d 546., 551 (3rd 
Cir. 1978) (endorsing presumption in favor 
of applying "laws of a remedial or 
procedural nature").

16. Cooper Stevedoring o f Louisiana, Inc. v. 
Washington, 556 F.2d 268, 272 (5th Cir.), 
reh’g denied, 560 F.2d 1023 (1977) (finding 
new statute applicable that affected



G-4

procedural, not substantive rights).

17. United states v. Blue Sea Line, 553 F,2d 445, 
448 (5th Cir. 1977) (concluding that a 
statutory change that is "primarily 
procedural" takes precedence over prior 
law)



APPENDIX H

Court of Appeals Decisions Prior to Bradley v. Richmond 
Sch. Bd. Recognizing a Distinction Between New Laws 

Affecting Standards of Conduct or Vested Rights, Which 
Were Presumed Inapplicable to Pending Cases, and 
Methods for Enforcing Existing Rights, Which Were 

Presumed Applicable 1 2 3 4

1. Roger v. Ball, 497 F.2d 702, 705 (4th Cir. 
1974) (applying new remedial procedures to 
federal employees’ race discrimination 
claims because "[procedural statutes that 
affect remedies" are generally applicable to 
pending cases)

2. Federal Shopping Way, Inc. v. McQuaid, 457 
F.2d 176, 180 (9th Cir. 1972) (concluding 
that "where the statute relates to remedies 
only and does not effect substantive rights, 
we recognize an exception to the general 
rule that amendments are prospective 
only.")

3. United States v. Haughton, 413 F.2d 736, 738 
(9th Cir. 1969) (concluding that change in 
administrative procedure for conscientious 
objector requests applied because "[sjtatutes 
effecting procedural changes, which do not 
otherwise alter substantive rights, generally 
are considered immediately applicable to 
pending cases.")

4. Turner v. United States 410 F.2d 837, 842 
(5th Cir. 1969) (concluding that change in 
administrative procedure for conscientious 
objector request applied because "changes



H-2

in statute law relating only to procedure or 
remedy are usually held immediately 
applicable to pending cases, including those 
on appeal from a lower court.")

5. Grummit v. Sturgeon Bay Winter Sports Club, 
354 F.2d 564, 568 (7th Cir. 1966) (applying
a change in the notice of injury requirement 
that allowed increased compensation for a 
negligence claim because "its retroactive 
effect violated no right of the defendant.")

6. United States v. Village Corp., 298 F.2d 816, 
820 (4th Cir. 1962) (allowing government to 
pursue claims against dissolved corporations 
under a new statute because the statute 
"altered no substantive right. It only altered 
the procedure by which substantive rights 
may be judicially enforced.").

7. Dargel v. Henderson, 200 F.2d 564, 566 n. 5 
(Em. Ct.App. 1952) (applying new law 
conferring jurisdiction for enforcing rent 
regulations because "changes in procedural 
or remedial law are generally to be regarded 
as immediately applicable to existing causes 
of action and not merely to those which 
may accrue in the future unless a contrary 
intent is expressed in the statute.")

8. Beatty v. United States, 191 F.2d 317, 320 
(8th Cir. 1951) (applying new law that 
allowed government to recover for 
overcharges to a tenant because 
presumption of prospective effect "does not 
apply to statutes which effect merely 
changes in remedies or modes of procedure



H-3

for enforcing existing liabilities.")

9. O n v. United States, 174 F.2d 577, 580 (2d 
Cir. 1949) (removing bar to a libel claim by 
applying new law to a pending case because 
statute of limitations is only a procedural 
change)

10. Bowles v. Strickland, 151 F.2d 419 (5th Cir. 
1945) (applying in a pending case a change 
in the statute of limitations that allowed the 
government to recover for three times the 
amount of a seller’s overcharge because it 
"did not affect substantive rights, but related 
only to the procedural machinery provided 
to enforce such rights.")

11. Luckenbach S.S. Co. v. Norton, 106 F.2d 
137, 138 (3d Cir. 1939) (finding that 
application to a pending case of new law 
that allowed for increased compensation for 
injury was "remedial, affecting matters of 
procedure")

12. New Amsterdam Casualty Co. v. Cardillo,
108 F.2d 492, 493 (D.C. Cir. 1939) (applying 
to a pending case a new law that allowed 
for increased compensation for injury 
because it "neither creates new, nor destroys 
old rights. It applies only to the remedy")

13. Federal Reserve Bank o f Richmond v. Kalin, 
77 F.2d 50 (4th Cir. 1935) (finding that new 
law conferring jurisdiction applied in a 
pending case because "‘[statutes relating to 
practices and procedure generally apply to 
pending actions and those subsequently 
instituted, although the cause of action may



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have arisen before.’" (quoting Link v. 
Receivers o f Seabord Air Line Ry Co., 73 
F.2d 149, 151 (4th Cir. 1934)).

14. Downs v. Blount, 170 F. 15, 21 (5th Cir. 
1909) (holding that new law changing rules 
of evidence applied to a pending case 
because "[t]he prohibition against the 
enactment of retroactive law in the Texas 
Constitution . . . does not cut off remedial 
laws nor curative statutes which do not 
deprive one of vested rights.")

15. Larkin v. Saffarans, 15 F. at 149, 150 
(Explaining that "one can have no vested 
right to any particular remedy, or to sue or 
be sued in any particular court," and thus 
applying new law conferring jurisdiction 
because it "takes away from these 
defendants no right of action, or defense to 
this action on its merits.")



APPENDIX I

United States Supreme Court Orders 
Applying New Rules to Pending Cases Absent Injustice

1. Order Amending Federal Rules of Criminal
Procedure, 109 L. Ed. 2d xxxv (May 1,1990) (making 
changes applicable to pending cases "insofar as just 
and practicable") (Scalia J., joining).

2. Order Amending Federal Rules of Appellate 
Procedure, 104 L. Ed. 2d lii (April 25, 1989) (making 
changes applicable to pending cases "insofar as just 
and practicable") (Scalia J., joining).

3. Order Amending Federal Rules of Criminal
Procedure, 104 L. Ed. 2d lvi (April 25, 1989) (making 
changes applicable to pending cases "insofar as just 
and practicable") (Scalia J., joining).

4. Order Changing Federal Rules of Criminal
Procedure, 94 L. Ed. 2d lxxviii (March 9, 1987) 
(making changes applicable to pending cases "insofar 
as just and practicable") (Scalia J., joining).

5. Order Changing Rules of Appellate Procedure, 89 L. 
Ed. 2d xliii (March 10, 1986) (making changes 
applicable to pending cases "insofar as just and 
practicable").

6. Order Amending Bankruptcy Rules, 85 L. Ed. 2d 
xxxix (April 29, 1985) (making changes applicable to 
pending cases "insofar as just and practicable").

7. Order Amending Federal Rules of Criminal 
Procedure, 85 L. Ed. 2d xliv (April 29, 1985) (making 
changes applicable to pending cases "insofar as just 
and practicable").



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8. Order Amending Bankruptcy Rules, 75 L. Ed. 2d xliii 
(April 25, 1983) (making changes applicable to 
pending cases unless doing so would "not be feasible 
or would work injustice").

9. Order Amending Rules Governing Proceedings 
Under 28 U.S.C.S. §§ 2254, 2255 in the United States 
District Court, 72 L. Ed. 2d xlv (April 28, 1982) 
(making changes applicable to pending cases "insofar 
as just and practicable").

10. Order Amending Federal Rules of Criminal 
Procedure, 72 L. Ed. 2d lix (April 28, 1982) (making 
changes applicable to pending cases "insofar as just 
and practicable").

11. Order Modifying Rules and Forms Governing 
Proceedings Under 28 U.S.C.S. §§ 2254, 2255, 47 L. 
Ed. 2d xliv (April 26, 1976) (making changes 
applicable to pending cases unless doing so "would 
not be feasible or would work injustice").

12. Order Modifying Bankruptcy Rules and Forms, 47 L. 
Ed. 2d lxv (April 26, 1976) (making changes 
applicable to pending cases unless doing so "would 
not be feasible or would work injustice").

13. Order Amending Bankruptcy Rules and Forms, 44 L. 
Ed. 2d xxxiii (April 28, 1975) (making changes 
applicable to pending cases unless doing so "would 
not be feasible or would work injustice").

14. Order Changing Rules of Bankruptcy Procedure, 44 
L. Ed. 2d lxi (April 28, 1975) (making changes 
applicable to pending cases unless doing so "would 
not be feasible or would work injustice").

15. Order Changing Bankruptcy Rules and Forms, 39 L.



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Ed. 2d xxxvii (March 18, 1974) (making changes 
applicable to pending proceedings unless doing so 
"would not be feasible or would work injustice").

16. Order Changing Bankruptcy Rules and Official 
Bankruptcy Forms, 36 L. Ed. 2d xxxvii (April 24, 
1973) (making changes applicable to pending cases 
unless doing so "would not be feasible or would work 
injustice").

17. Order Changing Bankruptcy Rules and Official 
Bankruptcy Forms, 37 L. Ed. 2d xxxi (April 24, 1973) 
(making changes applicable to pending cases unless 
doing so "would not be feasible or would work 
injustice").

18. Order Establishing the Federal Rules of Evidence, 34 
L. Ed. 2d Ixv (November 20, 1972) (making rules 
applicable to pending proceedings unless doing so 
"would not be feasible or would work injustice").

19. Order Amending Rules of Civil Procedure for the 
United States District Courts 15 L. Ed. 2d lxxv 
(February 28, 1966) (making changes applicable to 
pending cases unless doing so "would not be feasible 
or would work injustice").

20. Order Amending Federal Rules of Civil Procedure, 
9 L. Ed. 2d liv, lxv, lxvii (March 18, 1963) (making 
changes applicable to pending cases unless doing so 
"would not be feasible or would work injustice").

21. Order Amending Federal Rules of Civil Procedure 
and Forms, 6 L. Ed. 2d xxxvii, xxxviii - ix (Aprii 17, 
1961) (making changes applicable to pending cases 
unless doing so "would not be feasible or would work 
injustice").



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22. Order Amending Rules of Practice in Admiralty and 
Maritime Cases, 6 L. Ed. 2d xl, xlvii - viii (April 17, 
1961) (making changes applicable to pending cases 
unless doing so "would not be feasible or would work 
injustice").

23. Order Amending Federal Rules of Civil Procedure, 
91 L. Ed. 2113, 2124 (Dec. 27, 1946) (making 
changes applicable to pending cases unless doing so 
"would not be feasible or would work injustice").

24. Order Adopting Rules of Civil Procedure for the 
District Courts of the United States, 82 L. Ed. 1563, 
1608 (Dec. 20, 1937) (making rules applicable to 
pending proceedings unless doing so "would not be 
feasible or would work injustice").



APPENDIX J

Old Treatises Recognizing The Rule 
in Favor of Application of New 

Remedial, Procedural, and Restorative 
Statutes to Pending Cases

1. H.C. Black, Handbook on the Construction and 
Interpretation of the Laws (1911)

Defining "the General Rule" to incorporate certain 
established exceptions:

Except in the case of remedial statutes and 
those which relate to procedure in the courts, 
it is a general rule that acts of the legislature 
will not be so construed to make them 
operate retrospectively....

Id. at 385 (emphasis added).

Defining "retrospective" as altering substantive or vested 
rights:

A retrospective law is one which is made to 
affect acts or transactions occurring before it 
came into effect, or rights already accrued, 
and which imparts to them effects which are 
not inherent in their nature in the 
contemplation of the law as it stood at the 
time of their occurrence.

Id. at 380.

The statutes ... subjected to the strictness of 
judicial construction — statutes which may be 
properly be denominated ’retrospective’ — are



J-2

such as take away or impair vested rights 
acquired under existing laws, or create a new 
obligation, impose a new duty, or attach a 
new disability, in respect to transactions or 
considerations already past.

Id. at 404.

Explaining that remedial statutes may be applied 
retrospectively:

Remedial statutes are to be liberally 
construed ; and if a re tro spective  
interpretation will promote the ends of justice 
and further the design of the legislature in 
enacting them, or make them applicable to 
cases which are within the reason and spirit of 
the enactment, though not within its direct 
words, they should receive such a 
construction, provided it is not inconsistent 
with the language employed.... In the class of 
s ta tu te s  which may be construed  
retrospectively are those which create a new 
remedy, or enlarge the existing remedy for 
existing causes of action.

Id. at 404-410.

Explaining that it is also the norm to apply new procedures 
to pre-existing claims:

Statutes regulating the procedure of the 
courts will be construed as applicable to 
causes of action accrued, and actions pending 
and undetermined, at the time of their 
passage, unless such actions are expressly 
excepted, or unless vested rights would be 
disturbed by giving them a retrospective



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operation. 

Id. at 108.

2. C. Endlich, Commentary on the Interpretation of 
Statutes (1888)

Defining narrowly the presumption against retroactivity:

Upon the presumption that the Legislature 
does not intend what is unjust rests the 
leaning against giving certain statutes a 
retrospective operation.... It is chiefly where 
the enactment would prejudicially affect 
vested rights, or the legal character of past 
transactions, that the rule in question prevails.

Id. at 362-67

Stating that the opposite rule of construction prevailed for 
new legislation regarding the means of enforcing existing 
rights:

[Tjhe presumption against a retroactive 
construction has no application to enactments 
which affect only the procedure and practice 
of the Courts ..., even where the alteration 
which the statutes make has been 
disadvantageous to one of the parties.... The 
remedy does not alter the contract or the tort; 
it takes away no vested right for the defaulter 
can have no vested right in a state of the law 
which left the injured party without, or with 
only a defective remedy.... The general 
principle, indeed, seems to be that alterations 
in the procedure are always retrospective, 
unless there be some good reason against it.



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Id. at 386-7.

Citing as examples of statutes presumptively applicable to 
pending claims:

laws changing the forum in which a claim is to be 
determined, id. at 387;

provision of new remedies for existing rights, id. at 
388;

provision for or limiting of costs, id. 388;

provision for or limiting of counsel fees, id. at 388, 
390;

extending the period of limitations, id. at 390.

3. W.G. Myer, Vested Rights (1891)

Emphasizing that retroactivity "in a legal sense" did not 
encompass many applications of new legislation to pre­
existing claims:

The general rule is, that a statute will not be 
construed as retroactive in its operation, 
unless the intention that it shall so act 
appears on its face.... It is to be understood, 
of course, that the rule applies to such laws 
only as are retrospective in a legal sense, and 
not such as are simply curative or remedial.... 
Statutes which are remedial in their effect will 
be given a retrospective operation, unless the 
contrary intent appears.... The rule as to 
remedial statutes is stated thus: Statutes are, 
in the absence of directions to the contrary, 
retrospective in their operation whenever they



J-5

are remedial, as where they create new 
remedies for existing rights....

Id. at 18.

4. H. Broom, Legal Maxims (8th ed. 1911)

No suitor ... has a vested interest in the 
course of procedure, or a right to complain, if 
during his litigation the procedure is changed, 
provided that no injustice be done. 
Alterations in the form of procedure are 
always retrospective, unless there be some 
good reason to the contrary; and so are 
alterations in the law of evidence in matters 
both civil and criminal.

Id. at 27.

5. 59 Corpus Juris §§ 696, 700, at. 1171-74 (1932)

Retroactive legislation changing rights is not 
favored, and the rule that statutes are not to 
be construed retrospectively unless such 
construction was plainly intended by the 
legislature applies with peculiar force.... A 
difference is recognized between statutes 
affecting substantial rights and those affecting 
only procedure.... The general rule that 
statutes will be construed to be prospective 
only ... ordinarily does not apply to statutes 
affecting remedy or procedure.... [I]n the 
absence of directions to the contrary statutes 
merely affecting the remedy or law of 
procedure apply to actions thereafter, whether 
the right of action accrued before or after the



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change in the law.

Id. See also 82 C.J.S. Statutes §§ 421-25, at. 976-1001.

6. 50 American Jurisprudence "Statutes" § 482, at 505-
06 (1944)

Emphasizing that the word "retrospective" had a special
"legal sense" related to vested rights and new duties:

A retrospective law, in a legal sense, is one 
which takes away or impairs vested rights 
acquired under existing laws, or creates a new 
obligation and imposes a new duty, or 
attaches a new disability in respect of 
transactions or considerations already past.
Hence, remedial statutes or statutes relating 
to remedies or modes of procedure, which do 
not create new or take away vested rights, but 
only operate in furtherance of the remedy or 
confirmation of rights already existing, do not 
come within the legal conception of a 
retrospective law, or the general rule against 
the retrospective operation of statutes. To 
the contrary, statutes or amendments 
pertaining to procedure are generally held to 
operate retrospectively, where the statute or 
amendment does not contain language clearly 
showing a contrary intention. Indeed, in the 
absence of any savings clause, a new law 
changing a rule of practice is generally 
regarded as applicable to all cases then 
pending. A fortiori, a statute or amendment 
which furnishes a new remedy, but does not 
impair or affect any contracted obligations or 
disturb vested rights, is applicable to 
proceedings begun after its passage, though



J-7

relating to acts done previously thereto. 

73 Am. Jur. 2d "Statutes" § 354-55, at 489-91.



APPENDIX K

Colorado, Montana, New Hampshire, and Ohio Cases 
Interpreting the Respective State Constitutional Provision 

Prohibiting "Retroactive" Statutes

Colorado

Article 2, § 11 of the Colorado Constitution provides that, 
"[n]o ex post facto law, nor law impairing the obligation of 
contracts, or retrospective in its operation, or making any 
irrevocable grant of special privileges, franchises or 
immunities, shall be passed by the general assembly."

Continental Title Co. v. District Ct., Etc., 645 P.2d 1310, 1315 
(1982) ("Application of a statute to a subsisting claim for 
relief does not violate the prohibition of retroactive 
legislation where the statute effects a change that is only 
procedural and remedial in nature.")

People v. Board o f Trustees o f Firemen’s Pension Fund, 82 
P.2d 765, 771 (1938) (retrospective act is defined as "one 
which takes away or impairs vested rights acquired under 
existing laws. . . .")

Moore v. Chalmers-G allow ay Live Stock Co., 10 P.2d 950, 952 
(1932) ("the abolition of an old remedy or the substitution 
of a new one" is not considered as "impairing a vested right 
or imposing a new duty," and therefore does not constitute 
a retrospective act)

Evans v. City o f Denver, 57 P. 696, 697 (1899) (a 
retrospective statute is defined as one which "abrogates an 
existing right of action or defense. . . .")

Perry v. City o f Denver, 59 P. 747, 748 (1899) (a retrospective 
law is defined as one "which takes away or impairs vested



K-2

rights acquired under existing laws. . . .")

French v. Deane, 36 P. 609, 613 (1894) (defining "[a] statute 
which takes away or impairs any vested right. . . . "  as 
"retrospective or retroactive.")

Montana

Article XIII, § 1(3) of the Montana Constitution provides 
that, "[t]he legislature shall pass no law retrospective in its 
operations which imposes on the people a new liability in 
respect to transactions or considerations already passed."

Neel v. First Federal Sav, and Loan Assoc., 675 P. 2d 96, 101 
(Mont. 1984) ("A retroactive law is one which ’[Tjakes away 
or impairs vested rights acquired under existing laws or 
creates a new obligation, imposes a new duty or attaches a 
new disability in respect to transactions already past.5")

Castles v. State Ex Rel Mont. Dept, o f Highways, Mont., 609 
F.2d 1223, 1225 (1980) ("Statutes that modify the procedure 
for exercising a vested right or carrying out a duty do not 
constitute retroactive legislation.")

Continental Oil Co. v. Montana Concrete Co., 207 P. 116, 118 
(1922) (a retroactive law as proscribed by the constitution is 
one which "takes away or impairs vested rights acquired 
under existing laws. . . .")

New Hampshire

Part I, Article 23d of the New Hampshire Constitution states 
that, "[retrospective laws are highly injurious, oppressive, 
and unjust. No such laws, therefore, should be made, either 
for the decision of civil cases, or the punishment of 
offenses."



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Gould v. Concord Hospital, 126 N.H. 405, 408 (1985) (a 
retrospective law as prohibited by the constitution, is one 
which "impairs a vested legal right,")

Socha v. City o f Manchester, 126 N.H. 289, 291 (1985) ("To 
be retrospective [as prohibited by the constitution] a statute 
must impair a vested legal right.")

Gelinas v. Mackey, 123 N.H. 690, 695 (1983) ("A statute may 
apply to cases commenced but not yet decided when it is 
enacted, if it is remedial or procedural in nature.")

Lozier v. Brown Co., 121 N.H. 67, 70 (1981) ("Statutes that 
apply to remedies do not come within this constitutional 
prohibition [against retroactivity] and may be applied 
retroactively.")

Smith v. Sampson, 114 N.H. 638, 641 (1974) ("As such 
[remedial] statutes do not take away, impair, or affect those 
[substantive] rights, they do not come within the prohibition 
of N.H. Const. pt.I, art. 23 against retrospective laws.")

Simpson v. Savings Bank, 56 NH 466, 471 (1876) (a law 
which retroacts upon a past transaction, but affects the 
remedy only and does not affect it "injuriously, oppressively, 
or unjustly," is not considered retroactive within the meaning 
of the constitutional prohibition)

Rich v. Flanders, 39 N.H. 304, 322 (1859) ("[A]ny statute 
which changes or affects the remedy, and does not destroy 
or impair any vested right - which does not destroy any 
existing right of action or of defence, or create any new 
ground of action or of defence, is not a retrospective law in 
the sense in which such laws are prohibited by the 
constitution. . . ."

Willard v. Harvey, 24 N.H. 344, 353 (1852) ("[A] statute 
which changes or modifies the remedy of a party for the



K-4

recovery of his claim, which limits or restricts the process by 
which it is to be enforced . . .  is not within the prohibition 
of the Constitution as a retrospective law. . . .")

Clark v. Clark, 10 N.H. 380, 386 (1839) (defining as 
retrospective a law which "takjes] away or abrogates] a 
perfect existing right, although no suit or legal proceeding 
then exists.")

Ohio

Article II, § 28 of the Ohio Constitution provides in part 
that, "[t]he general assembly shall have no power to pass 
retroactive laws, or laws impairing the obligation of 
contracts. . . . "

State Ex Rel. McGovern v. Board o f Elections, 263 N.E. 2d 
586, 588 (1970) ("Retroactive laws have been defined as 
those which take away a vested right, or impose a new 
obligation or duty or disability with respect to transactions 
already passed")

Lash v. Mann, 49 N.E. 2d 689, 692 (1943) ("It is a general 
rule that there is no vested right in an existing remedy . . . 
and that a Statute subsequently passed may alter, modify or 
curtail such remedy provided a reasonable time is given for 
the assertion of the remedy.")

Weil v. Taxicabs o f Cincinnati, 39 N.E. 2d 148 (1942) (the 
Constitutional provision prohibiting the passage of 
retroactive laws applies to laws disturbing substantive rights 
as distinguished from laws merely changing the remedy for 
the enforcement of those rights)

Columbian Building & Loan Co. v. Meddles, 35 N.E. 2d 902, 
904 (1941) ("[parties to a contract] have no vested interest 
. . .  as to the forms of action or modes or remedy. The 
Legislature may change these at its discretion, provided



K-5

adequate means for enforcing the right remains.")

State v. Zangerle, 14 N.E. 2d 932, 934 (1938) ("[E]very 
Statute that is designed to act retrospectively is not 
retroactive within the terms . . .  of the constitution of 1851, 
which forbids the general assembly of this state to pass 
’retroactive’ laws. Whether a statute falls within the 
prohibition of this provision of the constitution depends 
upon the character of the relief that it provides. If it creates 
a new right, rather than affords a new remedy to enforce an 
existing right, it is prohibited by this clause of the 
constitution of this state.")

City o f Cincinnati v. Bachmann, 199 N.E. 853, 854-55 (1935) 
(holding that new remedies may be given for enforcing 
existing rights without violating Constitutional and statutory 
inhibitions on retroactivity)

Gray v. City o f Toledo, 89 N.E.D 12, 13 (1909) (adopted 
Justice Story’s definition of a retrospective law, which 
provides that, "every statute which takes away or impairs 
vested rights, acquired under existing laws, or creates a new 
obligation, imposes a new duty, or attaches a new disability, 
in respect to transactions or considerations already past, 
must be deemed retrospective."

Miller v. Hixson, 59 N.E. 749, 752 (1901) (a statute which 
imposes a new or additional burden, duty, obligation, or 
liability as to past transactions is retroactive and void under 
the State Constitution)

Rairden and Burnett v. Holden, 15 Ohio St. 207, 210 (1864) 
(adopting Justice Story’s definition of a retrospective law, 
which provides, "[u]pon principle, every statute which takes 
away or impairs vested rights, acquired under existing laws, 
or creates a new obligation, imposes a new duty, or attaches 
a new disability, in respect to transactions or considerations 
already past, must be deemed retrospective."



APPENDIX L
Other State Cases Interpreting Prohibitions on 

"Retroactive" Statutes

Alabama

Harlan v. State, 18 So. 2d 744, 747 (1944) ("The general rule 
prevails that unless expressly prohibited or unless some 
contractual rights are intervened, a statute which is remedial 
or procedural by its terms and provisions applies whether 
the cause of action accrued or had its inception before or 
after the effective date of the act.")

California

Davis & McMillan v. Industrial Accident Comm’n, 246 P. 
1046, 1048 (1926) ("’Retrospective statutes are usually 
considered to embrace only those which relate to substantial 
rights, as those which destroy or impair an existing right, or 
give a right which never before existed; and statutes which 
affect remedies only are not within the scope of the 
inhibition against retrospective laws, unless the remedy is 
entirely taken away, or is encumbered with conditions which 
render it impracticable.’")

Illinois

Fireside Chrysler-Plymouth v. Chrysler, 472 N.E. 2d 861, 866 
(Ill.App.Ct. 1984) (establishing that a "retroactive law" is 
"one that impairs vested rights," the Court went on to define 
a "vested right" as "more than a mere expectation based 
upon an anticipated continuance of existing law; it must have 
become a fixed right, complete and consummated."

Michigan

Stott v. Stott Realty Co., 284 N.W. 635, 640 (1939) ("The



L-2

constitutional prohibition of the passage of retroactive laws, 
Const, art. 239, refers only to retroactive laws that 
injuriously affect some substantial or vested right, and ’does 
not refer to those remedies adopted by a legislative body for 
the purpose of providing a rule to secure for its citizens the 
enjoyment of some natural right, equitable and just in itself, 
but which they were not able to enforce an account of 
defects in the law or its omission to provide the relief 
necessary to secure such right.’")

Missouri

Swedge v. Kansas City, St. L & C.R. Co., 53 S.W.2d 284, 288 
(1932) (legislation going to the remedy "is not a 
retrospective law within the meaning of that term as used in 
the Constitution.")

North Carolina

B-CRemedy Co. v. Unemployment Compensation Comm’n, 36
S.E. 2d 733, 737 (1946) (remedial statutes may be applied 
retroactively "in the absence of directions to the contrary 
when they create new remedies for existing rights, remove 
penalties or forfeitures, extenuate or mitigate offenses . . . 
unless in doing this we violate some contract obligation or 
divest some vested right.")

Oklahoma

In re Ross, 207 P,2d 254, 256 (1949) ("[A] retrospective or 
retroactive law is one which takes away or impairs vested or 
accrued rights under existing laws.")

Tennessee

Baker v. Rose, 56 S.W.2d 732, 734 (1933) ("A retrospective 
law within [the] constitutional inhibition, is one which 
infringes or divests vested rights.")



Texas

McCain v. Yost, 284 S.W.2d 898, 900 (1955) ("A statute 
cannot be said to be a retroactive law prohibited by the 
constitution unless it can be shown that the application of 
the law would take away or impair vested rights acquired 
under existing law.")

De Cordova v. City o f Galveston, 4 Tex 470, 479-80 (1849) 
("Laws are deemed retrospective and within the 
constitutional prohibition which by retrospective operation 
destroy of impair vested rights . . . but laws which affect the 
remedy merely are not within the scope of the inhibition 
unless the remedy be taken away altogether or incumbered 
with conditions that would render it useless or impracticable 
to pursue it.")



APPENDIX M

Prior View of Roadway Counsel 
Glen D. Nager Expressed in Legislative History of Civil 

Rights Act of 1991

Counsel for Roadway, Glen D. Nager, together with 
Laurie W. Finneran, both of Jones Day, Reavis & Pogue, 
wrote:

The Supreme Court has espoused the 
principle that "a court is to apply the law in 
effect at the time it renders its decision 
unless doing so would result in manifest 
injustice." Bradley v. Richmond School 
Board, 416 U.S. 696, 711 (1974). Courts 
generally will not find "manifest injustice" 
where "there [is] no change in the 
substantive obligation of the parties." Id. at 
721; see also Hallowed v. Commons, 239 
U.S. 506, 508 (1916). Therefore, as a 
matter of statutory construction, courts 
distinguish between statutes that affect only 
procedures and remedies, which 
presumptively apply to the pending 
litigation, and statutes that affect 
substantive rights, which did not enjoy a 
presumption of retroactivity.



M-2

"The purpose behind this rule of construction is 
clear. [Although] [n]on-retrospective application of 
statute prevents the assigning of a quality or effect 
to acts or conduct which they did not have or did 
not contemplate when they were performed, [t]his 
danger is not present where statutes merely affect 
remedies or procedures." Friel v. Cessna Aircraft Co., 
751 F.2d 1037, 1039 (9th Cir. 1985).

137 Cong. Rec. S 15959 (daily ed. Nov. 5, 1991)
(Emphasis added).



APPENDIX N

Court of Appeals Decisions Applying New Statutes 
Providing Additional Remedies for Conduct Already Illegal 

Under Other Law

Decisions Applying in Pending Cases the Provision in the 
1972 Civil Rights Act Authorizing Damages Against the 
Government

1. Koger v. Ball, 497 F.2d 702, 705 - 07 (4th Cir. 1974) 
(explaining that "the 1972 Act did not create a new 
substantive right for federal employees" but rather 
provided them with a new remedy for their already 
existing right to be free from racial discrimination in 
employment which dated back at least to a 1969 
Executive Order.)

2. Womack v. Lynn, 504 F.2d 267, 269 & n.5 (D.C. Cir. 
1974) (applying new provision because it "is merely
a procedural statute that affects the remedies 
available to federal employees suffering from 
employment discrimination." Relying on executive 
orders dating back to 1948, the court concluded that 
"[tjheir right to be free of such discrimination has 
been assured for years.") (Emphasis in original).

3. Thompson v. Sawyer, 678 F.2d 257, 287 - 88 (D.C. 
Cir. 1982) (explaining that the 1972 Amendments to 
Title VII were for federal workers "a new means to 
enforce their preexisting right to be free from 
discrimination" that dated back at least to a 1969 
Executive Order.)



N-2

4. Sperling v. United States, 515 F.2d 465, 471 n.14, 473 
- 74 (3d Cir.), cert, denied, 426 U.S. 919 (1975) 
(applying new provision as a new remedy for a right 
dating back to executive orders since 1948, and 
describing it as "a classic example of a procedural or 
remedial statute applicable to cases pending at the 
time of enactment").

5. Adams v. Brinegar, 521 F.2d 129, 131 - 32 (7th Cir.
1975) (explaining that based on the Fifth 
Amendment and executive orders dating back to 
1948 the "right of federal employees to seek relief 
from racial discrimination by the federal government 
was thus available some years before . . . 1972. 
Section 717(c) simply provided one more step in the 
existing review process.")

7. Mahroom v. Hook, 563 F.2d 1369, 1373 (9th Cir.
1977) (relying on reasoning in Koger and Womack in 
applying 1972 Amendments to pending cases), cert, 
denied, 436 U.S. 904 (1978)

8. Eastland v. Tennessee Valley Authority, 553 F.2d 364, 
367 n.5 (5th Cir. 1977) (applying 1972 amendments 
to pending cases)

9. Huntley v. Department o f Health, Education and 
Welfare, 550 F.2d 290, 295 (5th Cir.), cert, denied,
434 U.S. 985 (1977) (same)

10. Allen v. United States, 542 F.2d 176, 177 n.2 (3rd 
Cir. 1976) (same)

11. Weahkee v. Powell, 532 F.2d 727, 729 (10th Cir.
1976) (endorsing reasoning in Koger and Womack)



N-3

12. Ettinger v. Johnson, 518 F.2d 648, 651 n.71 (3rd Cir. 
1975) (relying on Sperling, Koger and Womack)

13. Brown v. General Services Administration, 507 F,2d 
1300, 1305-06 (2d Cir. 1974), aff’d 425 U.S. 820 
(1976) (endorsing reasoning of Womack and Koger)

Decisions Applying in Pending Cases the 1974 
Amendments to Age Discrimination in Employment Act

1. Bunch v. United States, 548 F.2d 336, 339 (9th Cir.
1977) (concluding that "[t]he age discrimination 
policy, like the anti-discrimination policy of Title 
VII, was seriously hampered by the lack of any 
effective enforcement machinery prior to the 
amendments in issue. The ADEA amendments, like 
the 1972 Title VII amendments, did not create new 
substantive rights, but simply created new 
procedures and remedies" for vindicating pre­
existing rights granted in earlier executive orders) 
(citations omitted).

Decisions Applying in Pending Cases the 1974 and 1977 
Amendments to the Fair Labor Standards Act

1. Bush v. State Industries, Inc., 599 F.2d 780, 786 (6th 
Cir. 1979) (finding the 1977 amendment applicable 
because "[a]n employee’s right to be free from 
discharge or other employment discrimination for 
attempting to have enforced the provisions of the 
FLSA has been protected for years. The 
amendment. . . did not create new substantive 
rights, but simply affected the remedies available to 
employees for vindication their pre-existing rights.")



APPENDIX O

Decisions Citing to Legislative History in Which Members 
of Congress Expressed Their Reliance on Bradley v. 

Richmond Sch. Bd.

1. United States v. Marengo County Comm’n,
731 F.2d 1546, 1554 (11th Cir. 1984) (Sen. 
Kennedy, Rep. Sensenbrenner)

2. People o f State o f Illinois v. I.C.C., 698 F.2d 
868, 872 (7th Cir. 1983) (Conference Report)

3. Gautreaux v. Chicago Housing Authority, 690 
F.2d 601, 603-04 (7th Cir. 1982) (House 
Report)

4. Alphin v. Henson, 552 F.2d 1033, 1035 n.3 
(4th Cir. 1977) (Sens. Hart and Abourezk)

5. Finney v. Hutto, 548 F.2d 740, 742 n.5 (8th 
Cir. 1977) (Rep. Drinan), aff’d, 437 U.S. 678 
(1978)

6. Rainey v. Jackson State College, 551 F.2d 672, 
676 n. 5 (5th Cir. 1977) (Sen. Abourezk, 
House Report)

7. Stanford Daily v. Zurcher, 550 F.2d 464, 466 
(9th Cir. 1977) (House Report)

8. Wharton v. Knefel, 562 F.2d 550, 557 n.33 
(8th Cir. 1977) (Sen. Kennedy, House 
Report)