McDonald v. Santa Fe Trail Transportation Co. Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae

    The Supreme Court 
of the United States

L. N. McDonald, et al.
versus
Santa Fe Trail
Transportation Co., et al.

Petition and Briefs

Law Reprints
Labor Series vol. 9, no. 12 
1975/1976 Term



IN THE

JSitpmtte fflmtrf af %  pttfoir JIMps
O c t o r e r  T e r m , 1975

NO.

L. N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners

v.
SANTA FE TRANSPORTATION COMPANY and 

TEAMSTERS FREIGHT, TANK LINE and 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

STUART M. NELKIN 
A Member of the Bar of the 
Supreme Court of the United States 
463S Southwest Fwy., Suite 320 W 
Houston, Texas 77027 
(713) 621-9923
HENRY M. ROSENBLUM 
4635 Southwest Fwy., Suite 320 W 
Houston, Texas 77027 
(713) 629-0650
ROBERT B. O’KEEFE 
4635 Southwest Fwy., Suite 320 W 
Houston, Texas 77027 
(713) 629-0650
Counsel for Petitioners



I N D E X
Page

Opinion Below ...................................................................     2
Jurisdiction ........................................................................    2
Questions Presented   ......................................................................  2
Statutory Provisions Involved ............................................    2
Statement of the C a s e .......................................................................  3
The Courts below clearly disregarded Congressional intent 

and decisions of this Court in finding that Petitioners had 
failed to state a claim under Title VII of the Civil Rights 
Act of 1964, as amended 42 U.S.C. §§2000e, et seq.......... 6

The Legislative History of the Civil Rights Act of 1866,
14 Stat. 27, compels the conclusion that white employees 
have standing to challenge racially discriminatory employ­
ment policies and practices under 42 U.S.C. §1981 ........  12

This Court should finally resolve the uncertainty and conflict 
in the lower courts as to whether white persons have stand­
ing to challenge racially discriminatory employment policies 17

Conclusion ............................................................................ 19
Certificate of Service ............ ...................................................... 20
Appendix A—Opinion of Fifth Circuit Court of May 21, 197S 21
Appendix B—Modified Memorandum and Opinion of the Dis­

trict Court of June 13, 1974 ..................................................  24
Appendix C—Memorandum and Opinion of the District Court

of May 2, 1974 ......................................................................  29
Appendix D—Memorandum and Order of the District Court

of January 4, 1974 ................................................................  34
Appendix E—Answers of the Santa Fe Trail Transportation

Company to Plaintiffs’ Interrogatories filed in District Court 37
Appendix F—Original Answer of Teamsters Freight and Tank 

Line Employees, Local Union No. 988 filed in District 
Court ...................................................................................... .. 42

Appendix G—Plaintiff’s Second Amended Complaint filed in
District Court ........................................................................  SI



II

LIST OF AUTHORITIES

CASES Page
Alexander v. Gardner-Denver Co., 41S U.S. 36, 41, 39 L.Ed.

2d 147, 94 S.Ct. 1011 (1974) ............................................  6
Cannon v. Action, 303 F. Supp. 1240 (E.D. Mo. 1965), 

aff’d in part, remanded in part on other grounds, 450 F.2d
1227 (8th Cir. 1971) .................. ........................................ 18

Conley v. Gibson, 355 U.S. 41, 46, 2 L.Ed.2d 80, 78 S.Ct.
99 (1957) ................................................................................. 11

Dematteis v. Eastman Kodak, 511 F.2d 306 (2nd Cir. 1975) 18
Georgia v. Rachel, 384 U.S. 780, 781, 16 L.Ed.2d 925, 933,

86 S.Ct. 1783 (1966) ................................................................ 16
Griggs v. Duke Power Co., 401 U.S. 424, 2 L.Ed.2d 158,

91 S.Ct. 849 ...........................................................................- 6,7
Hollander v. Sears, Roebuck & Co., 392 F. Supp. 90 (D.

Conn. 1975) ............................................................................. 18
Johnson v. Railway Express Agency, 44 L.Ed.2d 295, 301

(1975) ....................................................................................... 17
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-44, 20

L.Ed.2d 1189, 1197-1200, 88 S.Ct. 2186 (1968) ............  13,15
Kurylas v. U.S. Department of Agriculture, 373 F. Supp.

1072 (D.C. D.C. 1974) .......................................................... 18
Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974) . . .  7, 11
Martin v. Chrysler Corporation, _____ F. Supp. , 10

FEP Cases 329, 332 (E.D. Mich., 1974) ........................  7
McDonald v. Santa Fe Trail Transportation Company, 513

F.2d 90 (1973) ......................................................................... S
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 36

L.Ed.2d 668, 93 S.Ct. 1817 (1973) .............................6 ,7 ,8 ,9 ,10,11
McRae v. Goddard College, _____ F. Supp. ■ 10 FEP

Cases 143, 149 (D.C. Ver. 1975) ........................................  7,8,11
Perkins v. Banster, 190 F. Supp. 98 (D. Md.), aff’d 285

F.2d 42 (4th Cir. 1960) .........................................................  18
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237,

24 L.Ed. 386, 392, 90 S.Ct. 400 (1969) .......................... 13, 15, 16
Van Hoomissen v. Xerox Corp., 368 F. Supp. 829 (N.D.

Cal. 1973) ............................................................................... 18
WRMA Broadcasting Co. v. Hawthorne, 355 F. Supp. 577 

(M.D. Ala. 1973) ..................................................................... 18



Ill

Page
UNITED STATES CONSTITUTION 

Thirteenth Amendment ............................................................ 12,13,14

UNITED STATES STATUTES
28 U.S.C. §1254(1) ................................................................... 2
42 U.S.C. §1981, Civil Rights Act of 1866. .2, 12, 13, 14, 15, 16, 17, 18 
42 U.S.C. §§2000e, et seq., Title VII of the Civil Rights Act

of 1964 .................................................................................2, 6, 11,13

MISCELLANEOUS
CCH EEOC Decision No. 74-25 §6400 (1973) ...................  7
CCH EEOC Decision No. 74-95 §6432 (1974) ................... 7
Cong. Globe, 39th Cong., 1st Sess. 366 (1866) ................... 14
Cong. Globe, 39th Cong., 1st Sess. 1115 (1866) ................  15



IN THE

jiupmur Court of %  Puttzb jitairs
O c t o r e r  T e r m , 1975

NO.

L. N. MCDONALD and RAYMOND L. LAIRD, 
Petitioners

v.
SANTA FE TRANSPORTATION COMPANY and 

TEAMSTERS FREIGHT, TANK LINE and 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The petitioners L. N. McDonald and Raymond Laird 
respectfully pray that a writ of certiorari issue to review 
the judgment and opinion of the United States Court of 
Appeals for the Fifth Circuit entered in this proceeding 
on May 21, 1975.

1



2

OPINION BELOW
The opinion of the Court of Appeals, a copy of which 

appears in the Appendix attached hereto, is reported at 
513 F.2d 90. The opinions rendered by the United States 
District Court for the Southern District of Texas are 
unreported and appear in the Appendix attached hereto.

JURISDICTION
The judgment of the United States Court of Appeals 

for the Fifth Circuit was entered on May 21, 1975, and 
this petition for certiorari was filed within 90 days of 
that date. This Court’s jurisdiction is invoked under 
28 U.S.C. §1254(1).

QUESTIONS PRESENTED
1. Whether dismissal of white employees charged with 

misappropriating company property while not dismissing 
a similarly charged black employee raises a claim under 
Title VII of the Civil Rights Act of 1964, as amended, 
42 U.S.C. §§2000e, et seq.

2. Whether white employees who were discharged for 
alleged misappropriation of company property when a 
similarly charged black employee was not discharged, 
have standing to sue under the Civil Rights Act of 1866, 
42 U.S.C. §1981.

STATUTORY PROVISIONS INVOLVED
United States Code, Title 42

§2000e-2(a)(1) Unlawful employment practices— 
Employer practices

(a) It shall be an unlawful employment practice 
for an employer—

2



3

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against 
any individual with respect to his compensation, 
terms, conditions or privileges of employment, 
because of such individual’s race, color, religion, 
sex, or national origin;

United States Code, Title 42

§ 1981 Equal Rights under the law—
All persons within the jurisdiction of the United 

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

STATEMENT OF THE CASE
On September 26, 1970, Petitioners, who are white, 

were accused by the Respondent of having misappropri­
ated certain of the Respondent’s property. A black em­
ployee was similarly accused. On October 2, 1970, follow­
ing an investigation by the Respondent, the Petitioners 
were terminated but the black employee was not.

On October 8, 1970, Petitioner McDonald initiated a 
grievance in which the charges of misappropriation were 
emphatically denied.1 On April 3, 1971, Petitioner Mc­
Donald was notified that his discharge had been sustained 
and that his grievance would not be further pursued.

1. Appendix F, p. 49.

3



4

On April 26, 1971, Petitioner McDonald filed a Charge 
of Discrimination with the Equal Employment Opportunity 
Commission in which he charged that his race had been 
a factor in the employment decision of Respondent to 
discharge him.

On August 16, 1971, Petitioners initiated an action 
against Respondent in the United States District Court 
for the Southern District of Texas invoking the Court’s 
jurisdiction pursuant to 42 U.S.C. §2000e-5(f) and 42 
U.S.C. §1981. Following discovery and certain Motion 
Practice, Petitioners filed their Second Amended Com­
plaint on July 19, 1973.2 3

On January 4, 1974, the District Court denied Motions 
to Dismiss. At issue in the Motion was (1) the proposition 
of whether white persons may bring an action under 
42 U.S.C. § 1981,8 and (2) the proposition that the 
Plaintiffs who were discharged following their apprehen­
sion for the theft of their employer’s property, while an 
equally guilty Negro employee was retained because of 
his race, have not stated a claim under Title VII.4

On May 2, 1974, the District Court issued a second 
Memorandum and Opinion in which it held that “[42 
U.S.C.] §1981 is inapplicable to white persons”;5 6 addi­
tionally, the Court held “[T]hat the dismissal of white 
employees charged with misappropriating company prop­
erty while not dismissing a similarly charged Negro em­
ployee does not raise a claim upon which Title VII relief 
may be granted”.*

2. See, Plaintiff’s Second Amended Complaint, Appendix G.
3. Appendix D, p. 35.
4. Appendix D, p. 36.
5. Appendix C, p. 30.
6. Appendix C, p. 33.

4



5

The District Court apparently predicated its decision, 
in part, on the finding that Petitioners had failed to allege 
that they were falsely charged with misappropriating 
company property. This finding was adopted by the 
United States Court of Appeals for the Fifth Circuit.7 
In fact, evidence of each Petitioner’s innocence of the 
charges of misappropriation had been squarely presented 
to the District Court.8

On appeal to the United States Court of Appeals For 
The Fifth Circuit the Fifth Circuit panel held, per curiam, 
that 42 U.S.C. §1981 “confers no actionable rights upon 
white persons,” and “that an employer’s dismissal of 
white employees charged with misappropriating company 
property while not dismissing a similarly charged Black 
employee does not raise a claim upon which relief may 
be granted under Title VII, 42 U.S.C. §§2000e et seq.”9

The Petitioners were never afforded an opportunity by 
the District Court to offer evidence that (1) they were 
innocent of the accusations, or that (2) the not-discharged 
black employee was equally culpable, and that (3) race 
was a factor considered by Respondent in their discharge.

7. “There is no allegation that the Plaintiffs were falsely charged.” 
McDonald v. Santa Fe Trail Transportation Company, S13 F.2d 90 
(1975).

8. As to Petitioner McDonald:
“These [C]harges are wrong and are unjust, because I did not 
steel [sic] anything. . .” Appendix F, p. 49.

As to Petitioner Laird:
“Raymond Lee Laird was discharged for failure to properly 
perform his duties, exercising poor judgment as General Dock 
Foreman and for violation of company rules.” Appendix E, p. 39.

9. Appendix A, p. 23.

5



6

THE COURTS BELOW CLEARLY DISREGARDED 
CONGRESSIONAL INTENT AND DECISIONS OF 
THIS COURT IN FINDING THAT PETITIONERS 
HAD FAILED TO STATE A CLAIM UNDER TITLE 
VII OF THE CIVIL RIGHTS ACT OF 1964, AS 

AMENDED 42 U.S.C. §§2000e, ET SEQ.
Title VII of the Civil Rights Act of 1964 was enacted 

to “assure equality of employment opportunities by 
eliminating those practices and devices that discriminate 
on the basis of the race, color, religion, sex or national 
origin”. Alexander v. Garnder-Denver Co., 415 U.S. 36, 
41, 39 L.Ed.2d 147, 94 S.Ct. 1011 (1974). In Griggs v. 
Duke Power Co., 401 U.S. 424, 28 L.Ed.2d 158, 91
S.Ct., 849, this Court examined Congressional intent to 
determine the scope of Title VII and found that discrimi­
natory preferences for minority employees, as well as for 
majority employees, were intended to be proscribed by 
the Act:

In short, the Act does not command that any person 
be hired simply because he was formerly the subject 
of discrimination, or because he is a member of a 
minority group. Discriminatory preference for any 
group, minority or majority, is precisely and only 
what Congress has proscribed. (Emphasis supplied)

401 U.S. at 431.

Thus, the important question to consider in a case in­
volving racial discrimination brought pursuant to Title 
VII is “whether, for any reason, a racially discriminatory 
employment decision has been made” McDonnell Doug­
las Corp. v. Green, 411 U.S. 792, 800, 36 L.Ed.2d 668, 
93 S.Ct. 1817 (1973).

6



7

In McDonnell Douglas Corp., v. Green, supra, this 
Court highlighted the important societal interest in fair 
and racially neutral employment decisions:

There are societal as well as personal interests on 
both sides of this equation. The broad, overriding 
interest, shared by the employer, employee, and 
consumer, is efficient and trustworthy workmanship 
assured through fair and racially neutral employment 
decisions. In the implementation of such decisions, 
it is abundantly clear that Title VII tolerates no 
racial discrimination, subtle or otherwise.

411 iU.S. at 801.

On this basis, federal courts facing claims of racial 
discrimination in employment have closely scrutinized 
the employment decisions of the charged employer to 
determine if the employer has placed more stringent re­
quirements on employees because of their race. See, e.g., 
Long v. Ford Motor Company, 496 F.2d 500 (6th Cir.
1974); McRae v. Goddard College, ,___ F.Supp____ ,
10 FEP Cases 143, 149 (D.C. Ver. 1975); Martin v.
Chrysler Corporation,___ F.Supp_____ , 10 FEP Cases
329, 332 (E.D. Mich., 1974); Also, CCH EEOC De­
cision No. 74-25 § 6400 (1973) and CCH EEOC De­
cision No. 74-95 § 6432 (1974).10 The purpose of this 
judicial inquiry is to consider whether the employer’s 
conduct was a mere pretext for the sort of discrimination 
prohibited by Title VII. McDonnell Douglas Corp. v. 
Green, supra; Long v. Ford Motor Company, supra. 
Particularly relevant to this determination is whether the

10. This Court has previously noted that “the administrative 
interpretation of the Act by the enforcing agency is entitled to great 
deference”. Griggs v. Duke Power Company, supra, 401 U.S. at 433.

7



8

employer has applied the challenged employment policy 
equally to similarly situated employees of other races. 
McRae v. Goddard College, supra. In McDonnell Douglas 
Corp., v. Green, supra, a case involving an alleged dis­
criminatory refusal to rehire, this Court had occasion to 
emphasize the importance of such evidence to a claim of 
racial discrimination:

Petitioner’s reason for rejection thus suffices to meet 
the prima facie case, but the inquiry must not end 
here. While Title YII does not, without more, com­
pel rehiring of respondent, neither does it permit 
petitioner to use respondent’s conduct as a pretext 
for the sort of discrimination prohibited by § 703(a) 
(1). On remand, respondent must, as the Court of 
Appeals recognized, be afforded a fair opportunity 
to show that petitioner’s stated reason for respond­
ent’s rejection was in fact a pretext. Especially rele­
vant to such a showing would be evidence that white 
employees involved in acts against petitioner of 
comparable seriousness to the “stall-in” were never­
theless retained or rehired. (Emphasis supplied)

411 U.S. at 804.

Like the Plaintiff in McDonnell Douglas Corp. v. 
Green, supra, Petitioners alleged that they were the vic­
tims of a racially motivated employment decision.11 The 
employer answered that Petitioners were justifiably dis­
charged for alleged unlawful activity against the company. 
The District Court, in its first Memorandum and Order 
dated January 4, 1974, showed concern over whether 
Petitioners had stated a claim upon which relief could

11. See, Plaintiff’s Second Amended Complaint, Appendix G.

8



9

be granted.12 However, since the District Court found 
this issue to be inadequately briefed, the Court felt 
constrained to deny defendants’ motion to dismiss. In 
a subsequent opinion, dated May 2, 1974, the District 
Court, upon reconsideration of its earlier opinion, con­
cluded:

Upon reconsideration, the court concludes that the 
dismissal of white employees charged with mis­
appropriating company property while not dismissing 
a similarly charged Negro employee does not raise 
a claim upon which relief can be granted.13

On appeal, the United States Court of Appeals for the 
Fifth Circuit joined in this determination:

We likewise agree with the district court’s conclusion 
that an employer’s dismissal of white employees 
charged with misappropriating company property 
while not dismissing a similarly charged black em­
ployee does not raise a claim upon which relief can 
be granted.14

513 F.2d at 90

In finding that Petitioners had failed to state a claim 
upon which relief can be granted both Courts relied 
heavily on this Court’s decision in McDonnell Douglas 
Corp. v. Green, supra. In particular, the lower federal 
courts apparently found the following language to be 
decisive:

12. See, Memorandum and Order, Appendix D. The first 
opinion of the District Court was issued pursuant to Motions to 
Dismiss filed by Defendants Santa Fe and International Brotherhood.

13. See, Memorandum and Order, Appendix C, p. 34.
14. See Appendix A, p. 23.

9



10

Nothing in Title VII compels an employer to ab­
solve and rehire one who has engaged in unlawful 
activity against it.

411 U.S. at 803

However, both Courts ignored this Court’s caveat in 
McDonnell Douglas, supra, that the defense of discharge 
for unlawful activity against the company is not a com­
plete defense in and of itself, but merely serves to rebut 
Petitioners’ allegation of disparate and discriminatory 
disciplinary treatment. Indeed, this Court commanded 
that the “inquiry must not end here” and directed that 
“On remand, . . . respondent must . . .  be afforded a 
fair opportunity to show that petitioner’s stated reason for 
respondent’s rejection was in fact a pretext.” Id., 411 
U.S. at 804.

The fact that Petitioners were discharged for alleged 
unlawful activities does not obviate the employer’s duty 
under Title VII, to maintain a neutral posture in making 
its employment decisions and to insure that their 
employment terms do not vary according to race for 
similarly situated employees. See, e.g., Long v. Ford 
Motor Company, supra.

As this Court astutely observed in McDonnell Douglas 
Corp. v. Green, supra:

Petitioner may justifiably refuse to rehire one who 
was engaged in unlawful, disruptive acts against it, 
but only if this criterion is applied alike to members 
of all races. (Emphasis supplied)

411 U.S. at 804.

10



11

In finding that Petitioners had failed to state a claim upon 
which relief can be granted, it was necessary for the District 
Court to find that Petitioners could prove “no set of the facts 
in support of his claim which would entitle him to relief”. 
Conley v. Gibson, 355 U.S. 41, 46, 2 L.Ed.2d 80, 78 S. 
Ct. 99 (1957). It is difficult if not impossible to imagine, 
in light of this Court’s clear holding in McDonnell Doug­
las Corp. v. Green, supra, that Petitioners could prove no 
set of facts which would entitle them to relief under Title 
VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. §§2000e, etseq.

If Petitioners had been afforded an opportunity to 
show, as their pleadings alleged, that their employment 
terms varied from similarly situated employees of other 
races and it was this variance which was fatal to their 
employment, then it is submitted that a prima facie case 
of racial discrimination would have been established. See 
e.g. McDonnell Douglas Corp. v. Green, supra; Long v. 
Ford Motor Company, supra; McRae v. Goddard College, 
supra. Likewise, if Defendant could have shown, as their 
pleadings alleged, that Petitioners were discharged solely 
for their alleged unlawful activity against the company, 
then the burden would have shifted back to Petitioners. 
McDonnell Douglas Corp., supra.

However, the District Court did not give Petitioners the 
opportunity to show by competent evidence that the stated 
reason for discharge was in fact a mere cover-up for a 
racially discriminatory employment decision. Instead, the 
Court decided, that even if Petitioners could have shown, 
as they alleged, that their race was the determinative 
factor in deciding to discharge them, and not the 
similarly charged black employee, they would not be 
entitled to relief under Title VII. One cannot help but

11



12

wonder if the result would have been the same if the dis­
charged Petitioners were black and the retained employee 
was white.15

The mandate of Title VII is clear in directing its thrust 
at eliminating employment decisions arising from a dis­
criminatory preference for either minority or majority 
employees. In failing to recognize this, the Courts below 
have committed a serious omission which has operated to 
deprive petitioners of those very rights which Title VII 
was enacted to secure. On this basis, the decisions of the 
courts below, in finding that white employees who were 
dismissed for alleged misappropriation of company prop­
erty while a similarly charged black employee was not 
dismissed, had failed to state a claim upon which relief 
could be granted under Title VII, is not justified and can­
not be allowed to stand.

THE LEGISLATIVE HISTORY OF THE CIVIL 
RIGHTS ACT OF 1866, 14 STAT. 27, COMPELS THE 
CONCLUSION THAT WHITE EMPLOYEES HAVE 
STANDING TO CHALLENGE RACIALLY DISCRIMI­
NATORY EMPLOYMENT POLICIES AND PRAC­

TICES UNDER 42 U.S.C. §1981
After the adoption of the Thirteenth Amendment, Con­

gress confronted the practical consequences of abolishing 
slavery by enacting enabling legislation pursuant to Sec­
tion 2 of the new Amendment. In its original form, 42 
U.S.C. §1981 was a part of this legislation designed to 
protect the rights secured to all Americans by the sweep­

15. The decisions of the Courts below, if left standing, could 
result in the perilous determination by future federal courts that 
Title VII does not protect whites from an employer’s discriminatory 
preference for similarly situated minority employees.

12



13

ing terms of the Thirteenth Amendment.16 Although 42 
U.S.C. §1981 provides that “all persons . . . shall have 
the same right to make and enforce contracts, . . . and to 
the full and equal benefit of all laws for the security of 
persons and property as is enjoyed by white citizens . . 
(Emphasis supplied) this does not mean that only non­
whites may sue under §1981. To the contrary, from a 
review of the relevant legislative history of § 1 of the Civil 
Rights Act of 1866, 14 Stat. 27, from which §1981 was 
ultimately derived, it is abundantly clear that the phrase— 
“as is enjoyed by white citizens”—was not intended to 
restrict the availability of this cause of action to non­
whites.

When construing §§1981 and 1982, this Court has re­
lied heavily upon legislative history to determine the intent 
and scope of the Civil War Statutes. See, Jones v. Alfred 
H. Mayer Co., 392 U.S. 409, 422-44, 20 L.Ed.2d 1189, 
1197-1200, 88 S.Ct. 2186, (1968) and Sullivan v. Little 
Hunting Park, Inc., 396 U.S. 229, T i l , 24 L.Ed. 386, 
392, 90 S.Ct. 400 (1969).

16. Act of April 9, 1866, c. 31, §1, 14 Stat. 27, re-enacted by 
§16 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, 
§16, 16 Stat. 140, 144, and codified in §§1977 and 1978 of the 
Revised Statutes of 1874, now 42 U.S.C. §§1981 and 1982.

Section 1 provided in relevant part:
“ [A] 11 . . . citizens of the United States . . .  of every race and 
color, without regard to any previous condition of slavery or 
involuntary servitude . . . shall have the same right . . .  to 
make and enforce contracts, to sue, be parties, and given evi­
dence, to inherit, purchase, lease, sell, hold, and convey real 
and personal property, and to full and equal benefit of all laws 
and proceedings for the security of person and property, as is 
enjoyed by white citizens, and shall be subject to like punish­
ment, pains, and penalties, and to none other, any law, statute, 
ordinance, regulation, or custom, to the contrary notwith­
standing.”

13



14

The congressional intent of the Civil Rights Act of 1866 
is best explained in the words of Senator Lyman Trumbull 
of Illinois, a principle draftsman of both the Thirteenth 
Amendment and the 1866 Act, and Chairman of the Sen­
ate Judiciary Committee. The civil rights bill, he ex­
plained, was “intended to give effect” to the Thirteenth 
Amendment by securing “to all persons within the United 
States practical freedom.” (Emphasis supplied) Cong. 
Globe, 39th Cong., 1st Sess. 366 (1866). The scope of 
the Civil Rights Act of 1866 is revealed in the comments 
of Senator Trumbull during floor debate on the bill. In 
response to a charge by one of the bill’s opponents that 
it was outrageous to provide federal protection for blacks 
that had never been accorded to whites, Senator Trumbull 
made it quite explicit that the bill was intended to protect 
the rights of whites, as well as blacks. The Senator stated:

“Sir, this bill applies to white men as well as black 
men. It declares that all persons in the United States 
shall be entitled to the same civil rights, the right to 
the fruit of their own labor, the right to make con­
tracts, the right to buy and sell, and enjoy liberty 
and happiness; and that is abominable and iniquitous 
and unconstitutional! Could anything be more mon­
strous or more abominable than for a member of the 
Senate to rise in his place and denounce with such 
epithets as these a bill, the only object of which is 
to secure equal rights to all the citizens of the coun­
try, a bill that protects a white man just as much as 
a black man? With what consistency and with what 
fact can a Senator in his place here say to the Senate 
and the country that this is a bill for the benefit of 
black men exclusively when there is no such distinc­
tion in it, and when the very object of the bill is to

14



15

break down all discrimination between black men 
and white men?”17 (emphasis supplied).

Cong. Globe, 39th Cong., 1st Sess. 599 (1866).

Nor is there anything in the debates in the House that 
would contradict the Senate’s understanding of the scope 
of the bill. See, the remarks of Congressman James F. 
Wilson of Iowa the bill’s floor manager, Cong., Globe, 
30th Cong., 1st Sess. 1115 (1866).

As stated above, 42 U.S.C. §1981 and §1982 were 
both derived and codified from §1 of the Civil Rights Act 
of 1866 which was intended to be permanent and inclusive 
of all races. Obviously then, these statutes should be con­
strued consistently. In Jones v. Alfred H. Mayer Co., supra, 
this Court breathed new life into the Civil War statutes, 
long neglected, by holding that §1982 prohibited the re­
spondent from refusing to sell a house to the petitioner, 
a negro, because of petitioner’s race. In so holding, this 
Court clearly stated that if §1982 was to be given the 
scope that its origins dictated, then §1982 was to be ac­
corded a sweep as broad as its language. See, Jones, supra, 
392 U.S. at 437, 20 L.Ed.2d at 1206.

Moreover, this Court in its decision of Sullivan v. Little 
Hunting Park, Inc., supra, referred to its discussion of 
the legislative history of §1982 contained in Jones and 
stated:

A narrow construction of the language of §1982 
would be quite inconsistent with the broad and

17. This Court has previously relied on the comments of Senator 
Trumbull when deriving the intent and scope of the 1866 Act, and 
quoted lengthy excerpts of the Senator’s floor debate concerning the 
Civil Rights Act of 1866. See, Jones v. Alfred H. Mayer Co., 392 
U.S. at 429-30, 431-32, 20 L.Ed.2d 1202-03 (1969).

15



16

sweeping nature of the protection meant to be 
afforded by §1 of the Civil Rights Act of 1866, 
14 stat. 27, from which §1982 was derived.

396 U.S. at 237.

Certainly this statement applies with equal force to the 
companion statute, §1981, since it too was derived from 
§1 of the Civil Rights Act of 1866.

In Sullivan, supra, this Court was squarely confronted 
with the question of whether a white person had standing 
to sue under 42 U.S.C. §§1981 and 1982. Sullivan, a 
white person, alleged that he had been expelled from a 
corporation which operated community recreational facili­
ties solely because he had leased his house and assigned 
his membership share in the corporation to a black person. 
He sued for injunctive relief and damages under 42 U.S.C. 
§§1981 and 1982. This Court held that “Sullivan has 
standing to maintain this action”. Although the Court 
referred explicitly to §1982 in setting forth the rationale 
for its opinion, see, 396 U.S. at 237, it did not limit its 
holding on the standing issue to §1982 alone. Thus, this 
Court has implicitly recognized that it is appropriate for 
a white person to sue under 42 U.S.C. §1981.

In light, then, of its legislative history, it is quite clear 
that §1981 should not be read as only providing a cause 
of action for non-whites. The phrase—“as is enjoyed by 
white citizens”—was apparently intended only “to em­
phasize the racial character of the rights being protected”, 
Georgia v. Rachel, 384 U.S. 780, 781, 16 L.Ed.2d 925, 
933, 86 S.Ct. 1783 (1966), and not to impose a 
limitation upon the scope of the protection afforded by 
§1981 to “all persons within the jurisdiction of the United

16



17

States”. 42 U.S.C. §1981. Although the rights enjoyed 
by whites are used as a measuring stick under §1981, 
whites themselves may be denied rights which are normally 
available to members of their race. When that occurs, 
within the scope of activities protected by §1981, it 
provides white persons with a cause of action.

Thus, it remains for this Court to restore the protection 
of 42 U.S.C. §1981 to all persons, white and non-white, 
who are the victims of racial discrimination in employ­
ment. Petitioners submit that this case provides an ideal 
opportunity for the Court to consider this pressing ques­
tion.

THIS COURT SHOULD FINALLY RESOLVE THE 
UNCERTAINTY AND CONFLICT IN THE LOWER 
COURTS AS TO WHETHER WHITE PERSONS HAVE 
STANDING TO CHALLENGE RACIALLY DISCRIMI­

NATORY EMPLOYMENT POLICIES

In May of 1975 this Court joined the federal courts of 
appeal in holding that §1981 affords a federal remedy 
against discrimination in employment on the basis of race. 
Johnson v. Railway Express Agency, 44 L.Ed.2d 295, 
301 (1975). This holding, considered in conjunction with 
the legislative history of the Civil War statutes, dictates 
that white persons be accorded protection against racial 
discrimination in employment under §1981. However, 
despite the clear mandate provided by Congress and the 
holdings of this Court, some lower courts have been re­
luctant to make the benefits of this statute available to all 
persons equally. Consequently, there is a division in lower 
court holdings as to whether white persons are entitled

17



18

under 42 U.S.C. §1981 to challenge discriminatory em­
ployment practices. Some courts have held that §1981 
does not grant a cause of action to white persons. See e.g. 
Perkins v. Banster, 190 F.Supp. 98 (D. Md.), aff’d 285 
F.2d 426 (4th Cir. 1960); Kurylas v. U. S. Department 
of Agriculture, 373 F.Supp. 1072 (D.C. D.C. 1974); and 
Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D. 
Cal. 1973). Other courts have held that §1981 does in­
deed protect white persons as well as non-whites. See e.g. 
Dematteis v. Eastman Kodak, 511 F.2d 306 (2nd Cir. 
1975); Cannon v. Action, 303 F.Supp. 1240 (E.D. Mo. 
1965), aff’d in part, remanded in part on other grounds, 
450 F.2d 1227 (8th Cir. 1971); WRMA Broadcasting 
Co. v. Hawthorne, 355 F.Supp. 577 (M.D. Ala. 1973); 
and Hollander v. Sears, Roebuck & Co., 392 F.Supp. 90, 
(D. Conn. 1975).

In view of the unsettled state of the law on this ques­
tion, and the split in the decisions of the Circuit courts, 
it is incumbent upon this Court to lay to rest any doubts 
that exist as to whether the protection of 42 U.S.C. 
§1981 is to be extended to white persons. Petitioners 
respectfully submit that this Court could find no finer 
vehicle for the consideration of this question that the 
fact situation presented in this case.

18



19

CONCLUSION
For these reasons, a writ of certiorari should issue to 

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

St u a r t  M. N e l k in  
4635 Southwest Freeway 
Suite 320 West 
Houston, Texas 77027

H e n r y  R o s e n b l u m  
4635 Southwest Freeway 
Suite 320 West 
Houston, Texas 77027

R o b e r t  B. O ’K e e f e  
4635 Southwest Freeway 
Suite 320 West 
Houston, Texas 77027
Counsel for Petitioners

APPENDICES

Appendix A—Opinion of Fifth Circuit Court of May 21, 1975
Appendix B—Modified Memorandum and Opinion of the Dis­

trict Court of June 13, 1974
Appendix C—Memorandum and Opinion of the District Court 

of May 2, 1974
Appendix D—Memorandum and Order of the District Court 

of January 4, 1974

19





APPENDIX E

IN THE
UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF TEXAS 
HOUSTON DIVISION

CIVIL ACTION NO. 71-H-891

L. N. McDo n a l d  and RAYMOND LAIRD, 
Plaintiffs

v.
THE SANTA FE TRAIL TRANSPORTATION 

COMPANY and INTERNATIONAL BROTHERHOOD 
OF TEAMSTERS LOCAL NO. 988 

Defendants

ANSWERS OF THE SANTA FE TRAIL 
TRANSPORTATION COMPANY TO 
PLAINTIFFS’ INTERROGATORIES

D. H. STRATTON, Houston Terminal Manager of 
The Santa Fe Trail Transportation Company, having 
been duly sworn, makes the following Answers to Inter­
rogatories propounded to The Santa Fe Trail Transporta­
tion Company by L. N. McDonald and Raymond Laird, 
plaintiffs in the above entitled cause, such Answers to 
Interrogatories bearing the same number as Plaintiffs’ 
Interrogatories.

I.(a) L. N. McDonald was discharged because of his 
dishonesty in the theft of company freight off of company 
equipment on company property and for violation of com­
pany rules.

21



(b) Raymond Lee Laird was discharged for failure to 
properly perform his duties, exercising poor judgment as 
General Dock Foreman and for violation of company 
rules.

II. This defendant objects to the form of the question, 
in that it is no question at all, but appears to be a demand 
for production of a document, which is neither authorized 
nor required by Rule 33; however, disciplinary action is 
that outlined in Article 46, Section I of Defendant’s Con­
tract with the International Brotherhood of Teamsters.

III. Copies of said Contract are delivered to each of 
defendant’s employees by the Union.

IV . (a) L. N. McDonald and Raymond Lee Laird were 
the only employees employed at defendant’s Houston 
Terminal by this defendant, who were discharged between 
January 1 and December 31, 1970.

(b) Date of their discharges was October 2, 1970.

(c) L. N. McDonald was initially employed on June' 
27, 1962, and Raymond Lee Laird was initially employed 
on July 27, 1961.

(d) McDonald’s position, prior to discharge, was that 
of driver, and Laird’s position or positions, prior to dis­
charge, were that of driver, General Dock Foreman and 
Transportation Supervisor.

(e) McDonald, according to this defendant’s latest in­
formation, resides at 301 Bryan Street, Houston, Texas, 
with Telephone Number 923-5453; Laird, according to 
this defendant’s information, resides at 702 Janisch, Hous­
ton, Texas, with Telephone Number 697-7810.

(f) Same Answer as the Answer to Interrogatory No. I.

22



(g) White.
(h) McDonald, at time of termination, was employed 

at a wage scale of $4.45 per hour; Laird was employed, 
at the time of termination, at the rate of $800.00 per 
month.

(i) Laird was replaced by Roger C. Lowery, at a 
starting salary of $895.00 per month; however, Mr. 
Lowery terminated his employment on August 18, 1971. 
No particular replacement was hired to fill the vacancy 
created by McDonald’s termination.

(j) This defendant objects to the form of questions, 
in that they are

(k) not questions at all, but appear to be a demand 
for production of

(l) documents, which is neither authorized nor re­
quired by Rule 33

(m) (This Answer applies to (j), (k), (1) and (m).
V. This defendant objects to the form of questions, in 

that they are
VI. not questions at all, but appear to be a demand 

for production of
VII. documents, which is neither authorized nor re­

quired by Rule 33.
VIII. This Answer applies to V, VI, VII, VIII and IX).

X.
X. No particular officer of the company initiated 

charges of misappropriating company property against 
the plaintiffs, L. N. McDonald and Raymond Laird, since 
the facts surrounding the events leading up to their termi­

23



nation were the result of a rather general investigation. 
D. H. Stratton, Terminal Manager at Houston, however, 
terminated their employ.

XI. Charles Jackson was not charged with mis-appro- 
priating company property.

XII. Plaintiffs were discharged for reasons other than 
race. The reasons are outlined in Answer to Interrogatory 
No. 1, and the company has written Statements of the 
plaintiffs in support thereof.

/ s /  D. H. STRATTON 
D. H. Stratton

SWORN TO AND SUBSCRIBED BEFORE ME by 
the said D. H. STRATTON, Terminal Manager for The 
Santa Fe Trail Transportation Company, this 7th day of 
April, 1972, to certify which witness my hand and seal 
of office.

/ s /  ETHEL M. MAIS
Notary Public in and for 
Galveston County, Texas

McLEOD, ALEXANDER, 
POWEL & APFFEL

By / s /  BENJAMIN R. POWEL 
Benjamin R. Powel 

808 Sealy & Smith Professional 
Building 

P. O. Box 629 
Galveston, Texas 77550 
Attorneys for Defendant, The 
Santa Fe Trail Transportation 
Company

24



CERTIFICATE OF SERVICE

I, BENJAMIN R. POWEL, hereby certify that service 
of the foregoing Answers to Interrogatories was made 
upon James Bullock, 4719 Dowling Street, Houston, 
Texas 77004; Isaac E. Henderson, P. O. Box 14061, 
Houston, Texas 77021, Attorneys for Plaintiff; and Dixie, 
Wolf & Hall, Suite 401, 609 Fannin Street Building, 
Houston, Texas 77002, Attorneys for Defendant, Inter­
national Brotherhood of Teamsters Local No. 988, on 
this 7th day of April, 1972, by placing the same in the 
United States Mail, postage prepaid, Certified, Return 
Receipt Requested.

/ s /  BENJAMIN R. POWEL 
Benjamin R. Powel

25



APPENDIX F

IN THE
UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF TEXAS 
HOUSTON DIVISION

CIVIL ACTION NO. 71-H-891

L. N. McDo n a l d  and RAYMOND LAIRD, 
Plaintiffs

v.
THE SANTA FE TRAIL TRANSPORTATION 

COMPANY and INTERNATIONAL BROTHERHOOD 
OF TEAMSTERS LOCAL NO. 988, 

Defendants

ORIGINAL ANSWER
COMES NOW Teamsters Freight and Tank Line Em­

ployees, Local Union No. 988, and files this Original 
Answer in response to the Complaint of L. N. McDonald 
and Raymond Laird, Plaintiffs herein, showing the Court 
as follows:

I.
FIRST DEFENSE

The Complaint fails to state a claim upon which relief 
can be granted as a class action because Plaintiffs will 
not fairly insure the adequate representation of the 
described said class, the rights sought to be enforced 
by this Complaint are not typical of the claims of the 
said class and the many questions of law and/or fact 
asserted in the Complaint as affecting the several rights 
of employees in the described class are not common.

26



SECOND DEFENSE
Except for conclusionary allegations claiming discrimi­

natory policies, practices, customs and usages which dis­
criminate against members in the described class, the 
Complaint renders down to an allegation that the two 
Plaintiffs were discharged on or about October 2, 1970 
by Defendant Company on charges that Plaintiffs had 
misappropriated Company property. The Complaint con­
cludes that Plaintiffs were discriminated against because 
they were white and discharged whereas a Negro em­
ployee was also charged with misappropriation of Com­
pany property was not discharged.

The Complaint identifies Plaintiff, Raymond L. Laird, 
as a dock foreman at the Company’s Houston terminal. 
As such, Plaintiff Laird differs from Plaintiff L. N. Mc­
Donald in that Foreman Laird is not within the con­
tractually established bargaining unit. Defendant Union 
is prohibited from requiring the Company to recognize 
it as representing foremen or supervisory personnel by the 
Labor Management Relations Act. 29 U.S.C. 157, et seq. 
This factor not only shows that a class action does not 
exist here but explains why a grievance concerning the 
discharge of Plaintiff McDonald was processed but one 
for Laird was not. A copy of this grievance marked Ex­
hibit A1 and A2 is attached to this answer. Plaintiff 
McDonald’s grievance complaining that his discharge was 
forbidden by the contract because it was not for just 
cause was taken to final and binding arbitration by the 
Union in acordance with the contract. The award denying 
Plaintiff’s grievance was final and binding on all parties.

The collective bargaining contract in effect between 
Defendant Union and Defendant Employer protects em-

II.

27



ployees against discharge or suspension except for just 
cause and also contains a clause against non-discrimina­
tion. It reads as follows:

“The Employer and the Union agree not to discrimi­
nate against any individual with respect to his hiring, 
compensation, terms or conditions of employment be­
cause of such individual’s race, color, religion, sex 
or national origin, nor will they limit, segregate or 
classify employees in any way to deprive any in­
dividual employee of employment opportunities be­
cause of his race, color, religion, sex or national 
origin.”

Plaintiff L. N. McDonald elected to pursue his con­
tractual remedies for his discharge and any alleged dis­
crimination on or about October 8, 1970. The main 
issue of whether Plaintiff was discriminated against un­
justly by discharge has been judicially and finally decided 
by an arbitration tribunal of competent and proper juris­
diction in accordance with the collective bargaining con­
tract. After full hearing his grievance was denied on or 
about October 21, 1970. The Court lacks jurisdiction 
over the Plaintiff’s claim for his discharge because he 
elected to have it determined through use of the grievance 
procedure in the collective bargaining agreement and is 
now estopped from asserting the same claim in a new 
form in this action.

III.
THIRD DEFENSE

Plaintiff failed to utilize or exhaust his internal Union 
remedies or his remedies under the Labor Management 
Relations Act before bringing this action.

28



Without waiver of the foregoing special defenses and 
subject thereto, Defendants respond to Plaintiffs’ plead­
ings as follows:

1. Defendant admits the alleged cause of action arises 
under Title VII of the Civil Rights Act of 1964 as alleged 
in paragraph I of the complaint.

Defendant denies that this is a proper procedure for 
a declaratory judgment.

2. Defendant denies that this is a class action pursuant 
to Rule 23(b )(2 ) of the Federal Rules of Civil Pro­
cedure. Plaintiffs allege that the class to be composed 
of white persons who are employed or might be employed 
at Defendant Company and who are members or who 
might become members of Local 988. As a matter of 
fact, one Plaintiff is a member of supervision and the 
other Plaintiff is a rank and file employee member of 
the appropriate bargaining unit. Congress has eliminated 
supervisory employees from the definition of employee 
in the Labor Management Relations Act. In the same 
Act unions are prohibited from requiring the employer 
to recognize them as representing supervisory employees 
or to bargain concerning their conditions of work, hire 
or tenure. Defendants deny that there are common ques­
tions of law and fact affecting the rights of the members 
of this class. Defendant further denies that it has caused 
members of the described class or any class to be limited 
or classified, and discriminated against in ways which 
deprived and intend to deprive them of equal employment 
opportunities and otherwise affect their status as em­
ployees because of race.

3. Defendant denies that it has maintained a policy, 
practice, custom or usage of discriminating against white

29



persons because of race with respect to compensation, 
terms, conditions and privileges of employment or that 
they have limited, segregated and classified employees of 
Defendant by race or in ways which deprive white persons 
of equal employment opportunities and adversely affect 
their status as employees.

4. Defendant Local Union No. 988 denies the allega­
tions of paragraph IV of the Complaint. Defendant denies 
that it has instituted or maintained any policies, practices, 
customs and usages made unlawful by Title VII of the 
Civil Rights Act of 1964. The alleged policies, practices, 
and so on described in paragraph IV of the Complaint 
all relate to actions of Defendant Employer and not of 
Defendant Union.

5. The allegations of paragraph V of the Complaint 
are admitted.

6. Defendant is without knowledge as to the exact 
operations of Defendant Santa Fe Trail Transportation 
Company. Defendant Union admits the allegations of 
paragraph VI-B.

7. Defendant Union admits that it has been the 
recognized bargaining agent of the appropriate unit for 
bargaining described in its collective bargaining contract. 
It admits that Plaintiff L. N. McDonald was a member 
of the bargaining unit but denies that Plaintiff Raymond 
Laird was a member of the bargaining unit.

8. Defendant denies that it has violated its duty of 
fair representation required by the Labor Management 
Relations Act, but to the contrary, Defendant alleges that 
it has treated all employees in the bargaining unit on a 
non-discriminatory basis and that it represented Plaintiff

30



L. N. McDonald on his grievance fully, fairly and 
vigorously.

Defendant further denies that it has acquiesced or 
joined in any unlawful and discriminatory practices com­
plained of in the Complaint or that it has failed to 
represent properly or to protect the white employees of 
the bargaining unit of Defendant Company from any 
discriminatory policies or practices. Defendant denies that 
it has engaged in a violation of the duty of fair representa­
tion or that the Company has knowingly colluded with 
the Union or participated in such alleged violations of 
the duty of fair representation.

9. Defendant specially denies that it has instituted, 
maintained and/or acquiesced in practices, policies, cus­
toms and usages which have denied Plaintiffs or other 
employees equal employment and opportunities because 
of their race or color, or that it has limited, segregated or 
classified persons because of their race or color. Defend­
ant has not acquiesced in any policy, practice, custom or 
usage which would circumvent its collective bargaining 
contract which strictly requires that all persons in the 
bargaining unit be treated equally and without discrimina­
tion. Defendant denies that it has conspired or acted in 
collusion with Defendant Employer to deprive these Plain­
tiffs or any employees of any right. Defendant also 
denies that it breached its duty of fair representation or 
acted arbitrarily, capriciously in bad faith or for any 
invidious motivation towards these Plaintiffs. To the 
contrary, in regard to Plaintiff L. N. McDonald who 
filed a grievance, the Union represented him fully, fairly 
and vigorously in his grievance to a final and binding

31



award. The final award denying the grievance denied 
Plaintiff’s claim that his discharge was unjust.

WHEREFORE, premises considered, Defendant Union 
prays that upon the final trial and hearing hereof Plain­
tiffs take nothing and that Defendant recover all costs 
of court incurred, and have such other and further relief, 
both general and special, legal and equitable, to which 
it may show itself justly entitled.

DIXIE, WOLF & HALL

By: / s /  JAMES P. WOLF 
James P. Wolf

Suite 401, 609 Fannin St. Bldg.
Houston, Texas 77002
223-4444
Attorneys for Defendant Union,
Teamsters Local No. 988

CERTIFICATE OF SERVICE

I, James P. Wolf, certify that a copy of the foregoing 
Defendant Union’s Original Answer was served on Mr. 
James Bullock, 711 Main Building, Houston, Texas 
77002, and Mr. Isaac E. Henderson, 2619 Blodgett 
Street, Houston, Texas 77004, Attorneys for the Plaintiffs, 
by Certified Mail, Return Receipt Requested, and on The 
Santa Fe Trail Transportation Co., 6002 Esperson, Hous­
ton, Texas 77011, by regular mail, on this the 6th day 
of December, 1971.

/ s /  JAMES P. WOLF 
James P. Wolf

32



TEAMSTER FREIGHT & TANK 4.IN1 EMPLOYEES 
LOCAL UNION NO. 988

HOUSTON, TEXAS

Assigned To:_

G R I E V A N C E  R E P O R T

* 4  f ? ? D a te : /9 € $ -

Company:
Employee's 3 3 /

V.
Did you contact Steward— -Stew ard’s Signature- ■ A & - '_____________
Explain as fully as possible nature of grievance. If necessary use reverse side:

Date grievance occurred------'  ^ —2------ -———------------------------------------——------------- ---------- ~

Time grievance occurred 4  )  ' f ' ^ /  ■■ 4

Ct - f -  C f  - A £ / -
TO THE JOINT SOUTHWEST AREA GRIEVANCE COMMITTEE: V ( )
This is to advise you that I hereby give authority to any Union Representative of Local Union No. 988 to represent 
me and ratify and confirm any and all things such Union representative may do in my behalf on this matter in the 
event that I do not make myself present at the Grievance Committee hearing for the above mentioned grievance.

----
'  ' {.(Cl'l'ry

Steward's Report J z 2 i £

<7 ^  J
Give full details as to disposition:—-----------------------------

1 / y

DATE COMPLETED. /o m ~)€> -Business Agent-

33



G-vl-C/’ / f ^ c£y " f O‘y /

^ C s C d iX Z 'l 3L , O  t / 3  f f C C C -fL c ^  & £ & —

^C'(.-'-(^< ~'f~ " i ^ c x J - S - C i _cu ^-c .T y f

34



APPENDIX G

IN THE
UNITED STATES DISTRICT COURT 

FOR THE
SOUTHERN DISTRICT OF TEXAS 

HOUSTON DIVISION

CIVIL ACTION NO. 71-H-891

L. N. McDONALD and 
RAYMOND LAIRD, Plaintiffs

v.
THE SANTE FE TRAIL TRANSPORTATION CO. 

and INTERNATIONAL BROTHERHOOD OF 
TEAMSTERS LOCAL NO. 988, Defendants

PLAINTIFFS SECOND AMENDED COMPLAINT

I.
Comes now the Plaintiff, and as of course in accord­

ance with Rule 15 (a), Federal Rules of Civil Procedure, 
amends the complaint in this action so that the same will 
read as follows:

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. sec. 1343 (4); 42 U.S.C., sec. 2000 e-S (f) and 
28 U.S.C. secs. 2201 and 2202. This is a suit in equity, 
authorized and instituted pursuant to Title VII of the 
Act of Congress known as “The Civil Rights Act of 1964,” 
42 U.S.C. secs. 2000e et seq. The jurisdiction of this 
Court is invoked to secure protection of and to redress 
deprivation of rights secured by (a) 42 U.S.C. secs. 
2000 e et seq., providing for injunctive and other relief

35



against racial discrimination in employment and (b) 42 
U.S.C. sec. 1981, providing for the equal rights of all 
persons in every state and territory within the jurisdic­
tion of the United States. Jurisdiction of this Court is also 
invoked pursuant to 29 U.S.C. secs. 151 et seq., based 
on violations of fair representation owed to plaintiffs and 
the class they represent.

II.
Plaintiffs brings this action on their own behalf and on 

behalf of other persons similarly situated pursuant to 
Rule 23 (b) (2) of the Federal Rules of Civil Procedure. 
The class which plaintiffs represents is composed of white 
persons who are employed or might be employed by the 
SANTA FE TRAIL TRANSPORTATION CO. at its 
Transportation Terminal located in Houston, Texas and 
who are members or might become members of the Local 
988, who have been and continue to be or might be ad­
versely affected by the practices complained herein. There 
are common questions of law and fact affecting the rights 
of the members of this class who are, and continue to be 
limited, classified, and discriminated against in ways 
which deprive and tend to deprive them of equal em­
ployment opportunities and otherwise adversely affect 
their status as employees because of race conditions of 
employment. These persons are so numerous that joinder 
of all members is impracticable. A common relief is 
sought. Defendants have acted or refused to act on 
grounds generally applicable to the class.

III.
This is a proceeding for a declaratory judgment as to 

plaintiffs rights and for a preliminary and permanent in­

36



junction, restraining defendants from maintaining a 
policy, practice, custom or usage of (a) discriminating 
against plaintiffs and other white persons in this class be­
cause of race with respect to compensation, terms, condi­
tions and privileges of employment and (b) limiting, 
segregating and classifying employees of defendant, 
SANTA FE TRAIL TRANSPORTATION CO. who are 
members of Local 988 in ways which deprive plaintiffs 
and other white persons in this class of equal employment 
opportunities and otherwise adversely affect their status 
as employees because of race.

IV.
The plaintiff, L. N. McDonald is a white citizen of 

the United States and a resident of the City of Houston 
in the State of Texas. Plaintiff, L. N. McDonald has 
been employed by Defendant as a truck driver at its trans­
portation terminal in Houston, Texas and is a member in 
good standing of Local 988 of the International Brother­
hood of Teamsters.

The Plaintiff, Raymond L. Laird is a white citizen of 
the United States and is a resident of the City of Houston 
and the State of Texas. Plaintiff, Raymond L. Laird has 
been employed by Defendant as a dock foreman at its 
transportation terminal in Houston, Texas for about nine 
and one-half years and is a member in good standing 
of Local 988.

V.
(A) Defendant, Santa Fe Trail Transportation Co. 

is a common carrier doing business in the State of Texas 
and the City of Houston. The Company operates and

37



maintains Ground Transportation and is an employer 
within the meaning of 42 U.S.C. sec. 2000e (b) in that 
the company is engaged in an industry affecting com­
merce and employ at least twenty-five persons.

(B) Defendant, International Brotherhood of Teams­
ters Local 988, is a labor organization within the meaning 
of 42 U.S.C. secs. 2000e (d) and (c) in that Inter­
national Brotherhood of Teamsters Local No. 988 is 
engaged in an industry affecting commerce and exists, in 
whole or in part, for the purpose of dealing with the 
Company concerning grievance, labor disputes, wages, 
rates of pay, hours, and other terms or conditions of 
employment of the employees of the Company at its 
plants and other facilities in and around the City of 
Houston in the State of Texas. The International Brother­
hood of Teamsters Local 988 has at least twenty-five 
members.

VI.
The following policies, practices, customs and usages 

made unlawful by Title VII of the Civil Rights Act of 
1964 and 42 U.S.C. sec. 1981, providing for the equal 
rights of all persons in every state and territory have been 
instituted and/or maintained by the defendants, as well as 
violations of the duty of fair representation owed to plain­
tiffs under 29 U.S.C. secs. 151 et seq.

(A) On or about October 2, 1970, the plaintiffs, 
L. N. McDonald and Raymond Laird were discharged 
from employment by Defendant, Santa Fe Trail Transpor­
tation Company without cause and on information and 
belief, Plaintiffs alleges that they were discharged of 
their race, Caucasian.

38



(B) On or about September 26, 1970, Plaintiffs, along 
with one negro employee, Charles Jackson were all 
charged jointly and severally charged with mis-appropria- 
ting company property, to-wit; ten cases of six one gallon 
cans of anti-freeze, all of which were part of a shipment 
of twenty-five cases being shipped to Defendants’ custo­
mers,

(C) On October 2, 1970, Defendant discharged 
Plaintiffs, L. N. McDonald and Raymond L. Laird while 
retaining the negro employee, Charles Jackson in its em­
ploy, Plaintiffs allege that Defendant imposed a more 
severe disciplinary sanction against them because of their 
race, Caucasian than against their negro counterpart.

(D) On or about October 2, 1970, Plaintiffs filed a 
grievance with the Local Union 988 pursuant to the Arti­
cle 44 of its collective bargaining agreement in accord­
ance with the Procedure outlined for settling such dis­
putes.

(E) On or about April 3, 1971, Plaintiffs were noti­
fied in writing by Local Union 988 that it would not 
pursue the claim or grievance any further and would not 
seek arbitration.

(F) On or about April 7, 1971, Plaintiffs filed a com­
plaint with the E.E.O.C. which was approximately six 
months and three days from the day the grievance was 
first filed with the Union. Plaintiffs allege that the delay 
in filing with the E.E.O.C. was consumed in grievance 
procedures under an existing collective bargaining agree­
ment and that the 90-day statute was tolled during such 
period.

39



VII.
On April 7, 1971, Plaintiffs filed a timely and proper 

complaint before the Equal Employment Opportunity 
Commission (E.E.O.C.) alleging denial by Defendant 
of their rights under Title VII of the Civil Rights Act of 
1964, 42 U.S.C., Section 2G00e et seq. On July 15, 1971, 
the Commission notified plaintiffs under the provisions 
of Section 706 (e) of Title VII of the Civil Rights Act of 
1964, the plaintiffs had the right to bring a civil action 
in a United States District Court.

Neither the State of Texas nor the City of Houston 
has a law prohibiting the unlawful employment practices 
alleged herein.

VIII.

Plaintiffs do hereby incorporate and adopt by refer­
ence all of the allegations set forth in Paragraph I through 
VII of this complaint.

IX.

At all times material herein Local 988 and the Inter­
national Brotherhood of Teamsters have been certified 
recognized representatives under the National Labor Re­
lations Act of the plaintiffs and the class they represent.

X.
Defendants, International Brotherhood of Teamsters 

and Local 988 have violated and continue to violate their 
duty of fair representation imposed on them by the Na­
tional Labor Relations Act in that they have acquiesced 
and/or joined in the unlawful and discriminatory practices

40



complained of in Paragraph VI and they have failed to 
protect the White members of the Company from said 
discriminatory policies and practices. The Company has 
knowingly participated in or acquiesced in said violation 
of the duty of fair representation.

XI.
Plaintiffs and the class they represent have no plain, 

adequate or complete remedy at law to redress the wrongs 
alleged herein and this suit for a preliminary and perma­
nent injunction is their only means of securing adequate 
relief. Plaintiffs and the class they represent are now suf­
fering and will continue to suffer irreparable injury from 
the defendant’s policies, practices, customs and usages as 
set herein.

WHEREFORE, Plaintiffs respectfully pray this Court 
to advance this case on the docket, order a speedy hearing 
at the earliest practicable date, cause this case to be in 
every way expedited and upon such hearing to:

1. Grant Plaintiffs and the class they represents a per­
manent injunction enjoining the defendant Santa Fe Trail 
Transportation Co. its agents, successors, employees, at­
torneys and those acting in concert with it at its direction 
from continuing to maintain discriminatory disciplinary 
policies that imposes more severe disciplinary sanctions 
against Plaintiffs because of their race, Caucasian than 
against their negro counter-part, denying Plaintiffs rights 
to equal treatment as secured by Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. Section 2QQ0e et seq.

2. Grant Plaintiffs a preliminary injunction ordering 
the Defendant, Santa Fe Trail Transportation Co. to re­

41



instate L. N. McDonald and Raymond L. Laird with all 
back pay wages lost, monetary losses and seniority lost 
as a result of the discriminatory discharge.

3. Grant Plaintiffs and the class they represent a per­
manent injunction enjoining the defendant, International 
Brotherhood of Teamsters Local 988, its agents, succes­
sors, employees, attorneys and those acting in concert with 
it and at its direction from continuing or maintaining the 
policy, practice, custom and usage of denying, abridging, 
withholding, conditioning, limiting, or otherwise interfer­
ing with the rights of plaintiffs to be impartially and fairly 
represented on the basis of merit rather that race, and the 
right to equal representation as secured by Title VII of 
the Civil Rights Act of 1964, 42 U.S.C., Sections 2000e 
et seq.

4. Grant Plaintiffs and the class they represent a per­
manent injunction enjoining the defendant International 
Brotherhood of Teamsters Local 988 its agents, succes­
sors, employees, and those acting in concert with it from 
refusing to properly and diligently represent plaintiffs and 
the class they represent.

5. Order the Defendants to take that affirmative action 
necessary to correct the practices, policies, customs and 
usages which discriminates against Plaintiffs and members 
of the class plaintiffs represents because of their race, 
Caucasian.

6. Plaintiffs further pray that this Court will allow 
them cost herein, reasonable attorney’s fees and grant such

42



further additional or alternative relief as may appear to 
the court to be equitable and just.

Respectfully submitted,

JAMES BULLOCK 
James Bullock 
Attorney at Law 
4719 Dowling Street 
Houston, Texas 77004 
713-529-4701

CERTIFICATE OF SERVICE
I, James Bullock, certify that a copy of the Plaintiff’s 

Second Amended Complaint was served upon the fol­
lowing by certified mail: Attorney Robert W. Alexander, 
Post Office Box 629, Galveston, Texas 77550 on this 17th 
day of July, 1973. Attorney for the Defendant, Santa Fe 
Trail Transportation Company. And Mr. James P. Wolf, 
Esquire, Dixie, Wolf & Hall. 609 Fannin St. Houston, 
Texas 77002.

/ s /  JAMES BULLOCK 
James Bullock

43





IN THE

j S u p r a i R  fflm ttfc u f  %
OCTOBER TERM, 1975

NO. 75-260

L. N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners 

v.
SANTA FE TRANSPORTATION COMPANY and 

TEAMSTERS FREIGHT, TANK LINE AND 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

BRIEF OF SANTA FE TRAIL TRANSPORTATION 
COMPANY IN OPPOSITION TO PETITION FOR 

A WRIT OR CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

McLeod, Alexander, Powel 
& A pffel, Inc.

Benjamin R. Powel 
808 Sealy & Smith Professional 

Building
200 University Boulevard 
P. O. Box 629 
Galveston, Texas 77550 
Tele. No. AC-713, 763-2481
Attorneys for Respondent, Santa Fe 
Trail Transportation Company

45





INDEX
Page

STATEMENT OF THE CASE ............................................  2
REASONS FOR DENYING THE WRIT ............................  3
CONCLUSION ........................................................................  8
CERTIFICATE OF SERVICE .................................   10
APPENDIX A (Docket Sheet) ............................   11

LIST OF AUTHORITIES
CASES Page

Action v. Gannon, 450 F.2d 1227 (1971) ............................... 8
DeMatteis v. Eastman Kodak Co., S ll F.2d 306 (2d Cir.

1975)   8
McDonald v. Santa Fe Trail Transportation Co., 513 F.2d

90 (1975) .....................................................    2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 3rd L.Ed.

2d 668 (1973) ...................................    5,6,7
Perkins v. Banster, 190 F.Supp. 98, affirmed 285 F.2d 426 8
Sullivan v. Little Hunting Park, Inc., 396 U.S. 235 (1969) 7,8

47





IN THE

j&tpmtxt (Slaved of %  Mnxhh JSiatps
OCTOBER TERM, 1975

NO. 75-260

L. N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners

v.
SANTA FE TRANSPORTATION COMPANY and 

TEAMSTERS FREIGHT, TANK LINE AND 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

BRIEF OF SANTA FE TRAIL TRANSPORTATION 
COMPANY IN OPPOSITION TO PETITION FOR 

A WRIT OR CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

This Brief in opposition to the granting of a Writ of 
Certiorari is filed on behalf of the Santa Fe Trail Trans­
portation Company (erroneously referred to in the 
Petition for a Writ of Certiorari as “Santa Fe Trans­
portation Company”).

49



2

STATEMENT OF THE CASE
This Respondent supplements and corrects Petitioners’ 

Statement of the Case as follows:
As evidenced by the Docket Sheet (App. ,___ __ ),

this action was dismissed after more than two and a half 
years of pretrial activity, including Motions to Dismiss, 
the taking and filing of Interrogatories and depositions, 
and pretrial.

The Trial Court found that the pleading of the plain­
tiffs did not allege that they were falsely charged with 
misappropriating company property and that the sub­
stance of plaintiffs’ allegations is that the plaintiffs take 
issue with the fact that they were discharged for mis­
appropriating company property while a similarly charged 
negro employee was not discharged (App to Petition, 
pg. 28).

In Petitioners’ Statement of the Case, they attempt to 
urge denial of McDonald to the charge of misappropri­
ating company property by pointing to an exhibit attached 
to the Original Answer of Defendant, National Brother­
hood of Teamsters Local No. 988 (App to Petition, 
pg. 49). This assertion was, however, not made by 
plaintiffs in their own pleadings before the Court, nor 
was any denial of misappropriating company property 
asserted to either the Trial Court or to the Court of 
Appeals in Petitioners’ Brief.

Both the Trial Court and the Court of Appeals found 
as fact that “there is no allegation that plaintiffs were 
falsely charged”. McDonald v. Santa Fe Trail Transpor­
tation Co., 513 F.2d 90 (1975).

In considering the pleadings, the Motions, the Brief, 
discovery, argument of counsel and the record as a whole,

50



3

the Trial Court properly concluded that the allegation of 
dismissal of white employees who had misappropriated 
company property without a dismissal of a negro em­
ployee similarly charged does not plead a claim, of racial 
discrimination under Title VII (App, to Petition, pg. 28). 
This finding was adopted by the Court of Appeals for 
the Fifth Circuit. McDonald v. Santa Fe Trail Trans­
portation Co., supra.

Petitioners’ statement that they were never afforded an 
opportunity by the District Court to offer evidence is 
just not true, in that the Court had before it the pleadings, 
Motions, Briefs, arguments of counsel (who is not 
Petitioners’ counsel on appeal) and the record as a whole, 
to make its factual determination.

Petitioners make no complaint of the District Court’s 
conclusion that the action could not be maintained as a 
class action, since the number of white persons who may 
be terminated upon charges of misappropriating company 
property does not satisfy the numerousity requirements 
of Rule 23 (App. to Petition, pg. 25). No such complaint 
was made to the Court of Appeals for the Fifth Circuit.

REASONS FOR DENYING THE WRIT
1. A WRIT SHOULD NOT ISSUE MERELY TO 

ACCORD PETITIONERS ANOTHER HEARING ON 
THEIR COMPLAINT OF THE PROCEDURAL HAN­
DLING AND FACTUAL FINDINGS OF THE TRIAL 
COURT.

Petitioners complain of the findings of fact of the Trial 
Court and urge that they were not afforded an opportunity 
to offer evidence. As pointed out in the Statement of the 
Case, Petitioners’ case was before the Trial Court for

51



4

more than two and a half years, with abundant pleadings, 
Motions, Briefs, discovery, argument of counsel and the 
record as a whole, which the Trial Court had for con­
sideration.

The Trial Court, under authority of FRCP Rule 12(b), 
was authorized to consider only the pleadings or, in the 
alternative, to consider matters outside of the pleadings, 
treating the Motion as one for Summary Judgment under 
FRCP 56, in arriving at its determination that the white 
plaintiffs had failed to present a claim under Title VII, 
wherein their dishonesty was not denied, and their basis 
of racial discrimination was in the comparative severity 
of disciplinary action.

Petitioners had ample and reasonable opportunities 
to present all materials pertaining to the various Motions 
to Dismiss considered by the Trial Court, which were 
numerous. In January, 1974, the Trial Court denied the 
Motions to Dismiss, without prejudice to their being 
reurged (Petitioners’ App, pg. 34). The employers sub­
mitted additional Motions to Dismiss on April 22, 1974, 
and Petitioners file absolutely no oppositions thereto prior 
to the Court’s hearing and considering the Motions
(App, pg .__,_). The matter was re-opened on May 22,
1974, in response to a Motion to Correct and Clarify 
the Memorandum and Order filed by the Union (App,
pg______ ), and Final Judgment was not entered by
the Trial Court until June 13, 1974 (App, p g .___).

2. THERE IS NO CONFLICT WITH THE DE­
CISIONS OF THIS COURT.

(a) Title VII. The holding of the Court of Civil Ap­
peals for the Fifth Circuit is not contrary to any of the 
decisions of this Honorable Court. The thrust of

52



5

Petitioners’ argument is directed toward the Court’s de­
cision in McDonnell Douglas Corp. v. Green, 411 U.S. 
792, 3rd L.Ed.2d 668 (1973).

This Honorable Court’s holding in the Green case, 
supra, is substantially distinguishable not only on the 
facts but on the application of the law to those facts. 
The Trial Court, in Green, supra, erroneously focused its 
attention on the retaliatory provision of Title VII (2000e- 
3 (a )) and refused to consider, and in fact allowed no 
evidence on, plaintiff’s claim under 2000e-2 (a) (1). 
Green involved a case where an employer allegedly dis­
criminated in refusing to rehire a former employee, 
admittedly qualified for an available job, by reason of 
his previous activities while not an employee, which 
consisted of obstructing roadways to the employer’s plant 
and participating in chaining shut doors of a building 
in which employees of McDonnell Douglas Corp. were 
employed. The activity of obstructing traffic was ap­
parently a misdemeanor, to which Green pled guilty.

In the instant case, McDonald, a driver, and Laird, 
a night supervisor, were charged with theft of property 
from the employer, while in the company’s employ, which 
action, after a general investigation, resulted in their 
dismissal by the company.

Theft of company property over a value of $200.00 
is a felony under the Texas Penal, Code. Article 31.03, 
Vernon’s Texas Codes Annotated - Penal.

The dismissal of these two (2) white employees on its 
face was a result of and immediately following the theft 
of company property and, on its face, was directly related 
to the ability of these two (2) employees to perform their 
jobs. These employees are respectively a truck driver

53



6

for a track transportation company entrusted with the 
goods and commodities of others for transportation and 
a dock foreman or superintendent having supervisory 
duties obviously including the safe transportation, ac­
counting for and handling of goods and commodities of 
his employer’s customers.

Green’s situation was entirely dissimilar. Green was a 
black man, a member of an obvious minority group, was 
obviously qualified for the job for which he applied and, 
under the facts of the Green case, supra, it was obvious 
that the employer may have seized upon Green’s previous 
civil rights activities as a pretext for refusing to hire him, 
though he was qualified.

This Honorable Court, in the Green case, supra, noted 
that the employee, to establish a prima facie case, must 
show (1) that he belongs to a minority race; (2) that he 
is qualified for the job in question; (3) that, despite his 
qualifications, he was rejected; and (4) that, after his 
rejection, the job remained open or that the employer 
continued to seek applications from persons of complain­
ant’s qualifications. While this Honorable Court, in its 
Opinion, pointed out that these facts may not necessarily 
apply to each Title VII case, the Court’s statements of the 
elements of a prima facie case are at least instructive.

These criterion applied to the case at hand show, first, 
that petitioners are not members of a minority race; and, 
secondly, how can petitioners argue that they are qualified 
to continue to be entrusted with the goods and commodi­
ties handled by the employer transportation company, 
when the facts of theft are apparent and not denied by 
the petitioners. Accordingly, the allegations of disparity 
in disciplinary action by the employer, involving a claim 
of equal complicity by three (3) employees in an episode

54



7

of theft from the employer’s property, isolated to com­
plain of disparity in discipline between two (2) white 
employees in comparison to a negro employee involved 
in the affair, not only fails to state a cause of action, but 
certainly cannot be construed to be contrary to the 
holding of this Honorable Court in McDonnell Douglas 
Corp. v. Green, supra.

(b) Section 1981. The decision of the Court of Ap­
peals is not contrary to any decisions of this Honorable 
Court on the question of whether or not a white employee 
has a cause of action for alleged racial discrimination in 
employment under 42 USC, Section 1981, and is consist­
ent with this Court’s decision on 42 USC, Section 1982, 
Sullivan v. Little Hunting Park, Inc., 396 U.S. 235 
(1969).

In Sullivan, the Court held that a white person, alleging 
punishment for vindicating the rights of minorities, has 
standing to sue under Section 1982. In the instant case, 
no claim is made that petitioners were dismissed for vin­
dicating the rights of others.

3. THERE IS NO CONFLICT IN THE DECISIONS 
AMONG THE CIRCUITS.

(a) Title VII. Petitioners have presented no cases in­
dicating any conflict in Com.s of Appeals’ decisions with 
the decision of the Court of Appeals for the Fifth Circuit 
below in the instant case.

(b) Section 1981. There are Circuit Courts’ Opinions 
involving claims of white litigants, alleging discrimination 
by reason of the white litigants’ activities in attempting to 
vindicate the rights of “non-Caucasians”, which have fol­
lowed this Honorable Court’s recognition of standing of

55



8

such white litigants under 42 USC Section 1982, in Sul­
livan v. Little Hunting Park, Inc., 396 U.S. 235 (1969). 
See DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d 
Cir. 1975). However, in the instant case, no claim is made 
that plaintiffs were dismissed for attempting to vindicate 
the rights of others.

Where white persons have sued under Section 1981 
solely on the grounds of racial discrimination in such 
white persons’ own employment, Section 1981 was con­
sidered by the 4th Circuit Court of Appeals, in Perkins v. 
Banster, 190 F.Supp. 98, affirmed 285 F.2d 426, to be 
unavailable to white litigants in such situation as the basis 
for relief.

The 8th Circuit, in Action v. Gannon, 450 F.2d 1227
(1971), in a conspiracy to discriminate case under 42 
USC Section 1895(3), specifically declined to affirm the 
lower Court’s finding of jurisdiction under 42 USC Section 
1981, 303 F.Supp. 1240 (E.D. Mo. 1969).

Accordingly, while the question of standing of white 
litigants to sue for redress, where alleging discrimination 
in their own employment, is still being developed in a 
myriad of conflicting fact situations in the District Courts, 
no differences in the Circuit Courts’ Opinions are pre­
sented.

CONCLUSION
Respondent submits that this case presents a poor ve­

hicle for consideration of the scope of statutory regulation 
of employment conditions. It involves the theft by the com­
plaining, disgruntled white employees of property in the 
care of employees charged with the responsibility for its 
care and protection. The white employees, disgruntled by

56



9

the stern application of discipline by the employer, have 
seized upon this isolated incident to complain because an 
involved black employee was less severely disciplined.

Civil rights activities by the petitioners is in no way 
involved. The discharge of culpable employees in con­
nection with the theft of property in the care and custody 
of the employer transportation company is a directly re­
sponsive job-related action. No hint of discriminatory 
practices or politics against whites is presented.

Petitioners have shown no conflict between the decision 
in this case and this Honorable Court’s decisions on the 
standing of whites seeking remedies private to them.

Petitioners also seek the granting of a Writ for the pur­
pose of having the Court extend the application of Section 
1981 relief to white persons who are members of the over­
whelming majority in this country, and provide yet an­
other judicial vehicle for actions by whites to pursue pri­
vate employment rights against employers.

This area of law is still developing in the District Courts 
below. While the time may come when the Circuits are 
in such disagreement that this Honorable Court should 
point the direction, such time has not come, especially in 
view of the factual posture of white employees charged 
with the crime of theft, which strikes at the employer 
transportation company’s very reason for being—the safe 
movement of goods for its customers.

Giving white employees the right to challenge the com­
parative severity of discipline assessed because of felonious 
crimes directed at the employer, completely unrelated to 
civil rights activities under Section 1981, would not serve 
to assure equal employment opportunities, but to make

57



10

every discipline assessed white employees subject to liti­
gation and review by the federal judiciary.

For these reasons, the Writ of Certiorari should be de­
nied.

Respectfully submitted,

McLeod, Alexander, Powel 
& Apffel, Inc.

Benjamin R. Powel 
808 Sealy & Smith Professional 

Building
200 University Boulevard 
P. O. Box 629 
Galveston, Texas 77550 
Tele. No. AC-713, 763-2481
Attorneys for Respondent, Santa Fe 
Trail Transportation Company

CERTIFICATE OF SERVICE
I hereby certify that on this . day of September,

1975, three (3) copies of the foregoing Brief of Santa Fe 
Trail Transportation Company in Opposition to Petition 
for Writ of Certiorari to the United States Court of Ap­
peals for the Fifth Circuit were mailed, postage prepaid, 
to Messrs. Stuart M. Nelkin, Henry M. Rosenblum and 
Robert B. O’Keefe, 4635 Southwest Freeway, Suite 320 
West, Houston, Teas 77027, and to Messrs. James P. Wolf 
and Chris Dixie, Suite 401, 609 Fannin Street, Houston, 
Texas 77002, who are all parties required to be served.

Benjamin R. Powel

58



11
APPENDIX A

CIVIL DOCKET

CLOSED 5 - 2 - 7 4  
J S  6 m ad e  p t

UNITED STATES DISTRICT COURT Ju ry  demand date: CARL ©* BUS* JR
SOUTHERN DISTRICT OF TEXAS

c. Form No. 106A Rev-HOUSt On D iv i s i o n

TITLE o r  CASK

L. N. MCDONALD & RAYMOND LAIRD 

VS

THE SANTA FE TRAIL TRANSPORTATION 
CO. AND INTERNATIONAL BROTHERHOOD 
OF TEAMSTERS LOCAL NO. 9 8 8

ATTORNEYS

For plaintiff:
“TS-AAtr-Er-tfSffDERSON 
-7-W -  -JW-iV -Jkv J  -d~' -ng—w®a4~
•86i-9-Btodgg Mr -  --52i-9556-
James Bullock 4719 DowlingHouston* Texas 77004 529-4701

For defendant: S a n t e  F e  T r a i l  T r a n s . -
M c L e o d ,A le x a n d e r ,P o w e l  & A p f f e l  
( R o b e r t  W. A l e x a n d e r )
P .O .B ox  629
G a l v e s t o n ,  T e x a s  7 7 5 5 0

I n t e r n a t i o n a l  U n io n  N o. 988-
J a m e s  P .  W o lf
D IX IE , WOLF & HALL
609 F a n n in  S t .  B l d g . ,  # 4 0 1
H o u s to n ,  T e x a s  7 7 0 0 2  2 2 3 - 4 4 4 4

STATISTICAL RECORD

. 6 mailed

;isof Action: C iv i l  R ig h ts
ju n c t iv e  R e l i e f , P r e l i  
Perm anent I n ju n c t io n

tion arose a t:

Marshal

Docket fee 
si n a r y  
Witness fees

Depositions

1/16/71.

>jsx>fr
5/24/+'Not

I E H
/-■

4 : J .B u l lo  of Appeal
C3 f-O t -  3 c.

$5.

/<5~i

£ c

59



12

;/l6/71 '■ /16/71 
9/15/71 
9 - 3 0 - 7 1

Original
Summons

PROCEEDINGS D tU O r
Jadgtner

Complaint filed in Duplicate issued on Santa Fe Transportation Company
l

Summons on Santa Fe Ret. & filed. Ex. 9/9/71 
Defendant the Santa Fe Trail Transportation Company.’s motion to 
dismiss filed in duplicate (M /D  1 0 - 1 1 - 7 1 )

2.

3  H
9-30-711l
10 / 14 / r i
1 1 / 16 / 7 :

1 2 / 6 /7 1

1 2 - 7 - 7 1
3 /7 /7 2
3 /7 /7 2
4/ 1 1 / 7 2

4 / 2 4 / 7 2

5-10-73
7 - 1 1 - 7 3
7-11-73
7/19/73
7/25/73
7/25/73
7/25/73
.1-28-73
.1-28-73
.1-28-73

2- 7-73

2-12-73

.2-26-73

Defendant the Santa Fe Trail Transportation Company's brief in 
support of its motion to dismiss filed in duplicate 
Plaintiff's Reply to Defendant's Motion to Dismiss, filed.
Summons issued on International Brotherhood of Teamsters L o c a l ,
N o . 9 3 8
Summons r e t u r n e d ,  e x e c u t e d  o n  1 1 - 1 7 - 7 1  o n  I n t e r n a t i o n a l  B r o th e r h o o c .  
o f  T e a m s t e r s  L o c a l  N o. 988,  f i l e d .  6 .

ANSWER o f  L o c a l  U n io n  N o . 988,  f i l e d .  7  7
P l a i n t i f f ’ s  M o tio n  f o r  L e a v e  t o  F i l e  A m ended C o m p la i n t ,  filed. 8 . 2
P l a i n t i f f s '  F i r s t  A m ended C o m p la in t  f i l e d  i n  D u p l i c a t e .  9*3

4 l<* 
5-ic\

Answers of the Santa Fe Trail Transportation Co. to Plaintiffs' 
Interrogatories, filed.
Plaintiff's Interrogatories to Deft. Santa Fe Trail Transportation 
Co., filed.
Motion (Isaac E. Henderson) to withdraw filed

1 0 .3

na
12 4

(COB) PRE-TRIAL held.
(COB) "The motion of Issac £. Henderson to withdraw as one of the 

counsel of record representing plaintiffs is GRANTED. . ."Plaintiff's Second'AMENDED COMPLAINT, filed.
Deft. Teamsters Local Union No. 988’s Combined Notice of and MOTION
to Dismiss, M/D 8/13/73.Deft.Teamsters Local'Union No. 988’s BRIEF in Support of its Motion
to Dismiss, filed. „ _  .Deft. Local Union No.988's FIRST AMENDED ANSWER, filed.
ORIGINAL ANSWER of Deft. The Santa Fe Trail Transportation Co., 

filed.
Deft. The Santa Fe Trail Transportation Co.’s MOTION TO DISMISS, 

filed. M/D: 12-24-73 by Cleric
Deft. The Santa Fe Trail Transportation Co.'s BRIEF in Support of 

Its Motion to Dismiss, filed.
Amended Certificate of Service to Deft.'s The Santa Fe Trail

Transportation Co.'s Motion to Dismiss, Brief in Support of Its 
Motion to Dismiss and Original Answer, filed.

13.H 
14 $ 7

v4 ,
177
is 1 ;
19 %)

20%'
(COB) MEMORANDUM & ORDER, signed & filed. Pltf. directed to submit 

opposition to deft. Teamsters’ Motion to Dismiss as well as 
Deft. Santa Fe's Motion to Dismiss no later than 12-24-73, or 
case will be dismissed for want of prosecution, (parties ntfd 
by c/c,rlo)

Deft. Santa Fe Trail Transportation Co.’s Supplemental BRIEF in 
Support of Its Motion to Dismiss, filed.

Pltf.’s Motion and MEMORANDUM in Opposition to Deft.’s Santa Fe 
Trail Transportation Co.’s Motion to Dismiss and Brief in Support, 
filed.

21*

60



13

CA 71-H-891

D. C. 110A 'Rtr. Civil Docket Continuation m t k
PROCEEDINGS

4-74 (COB) MEMORANDUM AND ORDER, signed & filed, Defts. Teamsters Local 
Union No. 988 and Santa Fe Trail Transportation Co.'s MOTIONS 
to Dismiss DENIED. Parties ntfd. by c/c. pt 

1- 4-74 Deft, Santa Fe Trail Trans. MOTION FOR CONTINUANCE, filed.X- 7-74 (COB) ORDER granting Motion of Santa Fe Trail Trsp. Co. for
Continuance and re-setting case for trial at 10;00 am.
May 3, 1974, signed & filed, (parties notified by c/c,rlo

4-22-74 Deft. Santa Fe Trail Transportation Co.'s SECOND MOTION TO DISMISS, 
filed. M/D: 4-29-74

4- 22-74 Deft. Santa Fe Trail Transportation Co.'s SECOND SUPPLEMENTAL BRIEF 
in Support of Its Motion to Dismiss, filed.

5- 2-74 (COB) MEMORANDUM AND OPINION, signed & filed. Deft. Santa Fe Trail 
Transportation Co.'s Motion to Dismiss for lack of 
jurisdiction GRANTED? Court concludes action may not be 
maintained as a class action; action dismissed as to Deft. 
International Brotherhood of Teamsters Local No. 988 for 
want of jurisdiction; Court dismissed action w/prej. Parties 
ntfd. pt

5- 2-74 (COB) FINAL JUDGMENT, signed & filed, cause dismissed w/prej.
Parties ntfd. by copy, pt 

5- 9J74 DEPOSITIONS of the following, filed?
Charles Adrian Jackson 
L. N. McDonald 
Donald Howard Stratton 
Fred Osburn, Jr.
Raymond Laird

5-22-74 Deft. Motion to Correct and Clarify Memorandum and Opinion 
accompanying Final Judgment herein of 5-2-74, filed.

5- 24-74 Plffs* Notice of Appeal, filed.
6- 13-74 (COB) MODIFIED MEMORANDUM & OPINION, filed. No proper basis for 

Title VII relief found and action against Deft. IBT # 988 
dismissed for want of jurisdiction? further consideration 
as to deft. Santa Fe Trail Trsp. Co.-no claim upon which 
Title VII relief can be granted. This case dismissed 
with prejudice. Parties notified by copy.

6-13-74sj(COB) FINAL JUDGMENT, filed. Case dismissed w/prejudice in line
with its Memorandum & Opinion of even date. Parties notified 
by copy, rlo

/«'■
ifl
ft
27HH
28 /r,

29
U- /.
30/2<-i
31
32
33
34
35

33
13.1

39
UL1

61





JBuprrme Court of ifjo ptmiefr jStetrs
October Term, 1975

IN THE

NO. 75-260

L. N. MCDONALD and RAYMOND L. LAIRD, 
Petitioners

v.
SANTA FE TRANSPORTATION COMPANY and 

TEAMSTERS FREIGHT, TANK LINE AND 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

BRIEF OF LOCAL UNION NO. 988 IN OPPOSITION 
TO PETITION FOR A WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

Chris Dixie
Suite 401, 609 Fannin Street 
Houston, Texas 77002 

713/223-4444
James P. Wolf 
Suite 401, 609 Fannin Street 
Houston, Texas 77002 

713/223-4444
Counsel for Respondent Union

63





INDEX
Page

QUESTIONS PRESENTED ................................................  2
STATEMENT OF THE CASE ..........................   2
REASONS FOR DENYING THE W R IT ..........................  5

CONCLUSION ........................................................................  10
CERTIFICATE OF SERVICE ............................................  11

LIST OF AUTHORITIES
CASES Page

Alexander v. Gardner-Denver Company, 415 U.S. 36 (1974) 6
Barrow v. Jackson, 346 U.S. 249, 259 (1953) ....................  8
De Matteis v. Eastman Kodak Co., 511 F.2d 206, 311-312

(2nd Cir. 1975) .................................................................  8,9
Gannon v. Action, 450 F.2d 1227 (8th Cir. 1971), affirming 

in part and remanding in part, 303 F.Supp. 1240 (E.D.
Mo. 1969) ..............................................................................  9

Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)........  6
McDonnell Douglas Corporation v. Green, 411 U.S, 792,

806 (1973) ............................................................................  6,7
N.L.R.B. v. Fansteel Corp., 306 U.S. 240 (1939)..............  7
Perkins v. Banster, 190 F.Supp. 98 (D. Md.), aff’d, 285

F.2d 426 (4th Cir. 1960) ...................     9
Sullivan v. Little Hunting Park, Inc., 396 U.S. 235, 237

(1969)   8
Trafficante v. Metropolitan Life Insurance Company, 409

U.S. 205, 209 n. 8 (1973) ..............    8

65





jlujrreme (Kmtrt xd t\\t ptwiefr
O c t o b e r  T e r m , 1975

IN THE

NO. 75-260

L. N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners

SANTA FE TRANSPORTATION COMPANY and 
TEAMSTERS FREIGHT, TANK LINE AND 

AUTOMOBILE INDUSTRY EMPLOYEES, 
LOCAL UNION NO. 988,

Respondents

BRIEF OF LOCAL UNION NO. 988 IN OPPOSITION 
TO PETITION FOR A WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

This brief in opposition to the granting of a writ of 
certiorari is filed on behalf of Respondent, Teamsters 
Freight, Tank Line and Automobile Industry Employees, 
Local Union No. 988. The other Respondent, Santa Fe 
Transportation Company, will file its own separate re­
sponse.

67



2

QUESTIONS PRESENTED

1. Whether in administering punishment in a specific 
episode of theft of an employer’s property by three em­
ployees, the employer’s dismissal of two white employees 
while not dismissing a similarly charged black employee 
raises a claim under Title VII of the Civil Rights Act of 
1974, as amended, 42 U.S.C. §§ 2000e, et seq.

2. Whether white employees who were discharged for 
alleged misappropriation of company property when a 
similarly charged black employee was not discharged, 
have standing to sue under the Civil Rights Act of 1866, 
42 U.S.C. § 1981.

However, even accepting Petitioner’s articulation of the 
“Questions Presented”, Respondent Union advises the 
Court that the judgment in its favor against Petitioner 
Laird is adequately based upon other alternative grounds. 
As a foreman, Petitioner Laird was neither a member 
of the bargaining unit covered by the collective bargain­
ing contract nor a member of the Union; therefore, no 
question is raised by him against the Union under either 
Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, 
et seq., or the Civil Rights Act of 1866, 42 U.S.C. 
§ 1981.

STATEMENT OF THE CASE

This Respondent supplements and corrects Petitioners’ 
Statement of the Case as follows:

Following more than two and one-half years of pretrial 
activity, including motions to dismiss, pretrial conferences, 
and discovery proceedings, the District Court concluded 
that the action could not be maintained as a class action

68



3

since the number of white persons who may be terminated 
upon charges of misappropriating company property does 
not satisfy the numerosity requirement of Rule 23. (Ap­
pendix to Petition, p. 25) This factual determination and 
consequent legal conclusion was not challenged below.

During this period, the District Court filed three memo­
randum opinions, on January 4, 1974, May 2, 1974 and 
June 13, 1974, in which it interpreted Petitioners’ plead­
ings and contentions to be that Petitioners were “equally 
guilty” of theft of the employer’s property in comparison 
with a Negro employee who was not discharged (Ap­
pendix to Petition, p. 36) and that

“[t]he pleadings of plaintiffs do not allege that they 
were falsely charged with misappropriating com­
pany property; the substance of the allegations is 
that plaintiffs take issue with the fact that they were 
discharged for such conduct while a similarly 
charged Negro employee was not discharged”. Ap­
pendix to Petition, pp. 33 and 28.

The District Court was also advised by the parties 
that Petitioner McDonald’s discharge was taken to arbi­
tration by the Union where the discharge was upheld, 
although the Court property declined to accord finality 
to the arbitration award for Title VII purposes. (Ap­
pendix to Petition, pp. 27 and 32; See also Petitioners’ 
Brief in the Court of Appeals, p. 4 )1

1. Petitioners’ Brief in the Court of Appeals states at page 4: 
“On October 2, 1970, L. N. McDonald filed a grievance with Local 
Union No. 988, and a hearing on the grievance was held before the 
Southern Area Multi-State Grievance Committee commencing at 
9:00 A.M., Monday, October 10, 1970, at the Ramada Inn, West 
Beach, Biloxi, Mississippi, Case No. 58.”

69



4

The posture of the case below does not, in this Re­
spondent’s view, accommodate the claim of Petitioners 
that they were not afforded an opportunity by the District 
Court to offer evidence that they were innocent of the 
accusations. Petitioners did not by requesting leave to 
sharpen their pleadings or by any other means advise 
the District Court or the Court of Appeals that the 
gravamen of their claim was innocence or that the Dis­
trict Court misunderstood their posture. If they had 
done so, the Title VII aspect of the case might well have 
faded away, and the arbitration award would likely have 
been elevated to a final and binding disposition under the 
collective bargaining contract, adjudicating as it did the 
simple question of Petitioner McDonald’s guilt or inno­
cence of theft.

In the view of this Respondent, therefore, this appeal 
comes to the Supreme Court as a case involving a claim 
of equal complicity by three employees in an episode of 
theft of an employer’s property followed by the employer’s 
imposition of disparate discipline against two white em­
ployees in comparison to a Negro employee involved in 
the affair.

Theft of company property of over $200 is a felony 
under the Texas Penal Code.2

_ 2. The theft charge involved 10 cases of anti-freeze which Peti­
tioner McDonald was accused of stealing from trailer 20438. Mc­
Donald stated in his grievance that a shipping clerk at “S.M.S.” 
told him to do what he like with “some anti-freeze over on trailer 
20438,” that he so informed Petitioner Laird, “my supervisor,” and 
that Laird told him “what to do with this anti-freeze.” See Appendix 
to Petition, pp. 50-51.

Texas Penal Code Article 31.03, Vernon’s Texas Codes Annotated- 
Penal, provides that theft of property valued at $200 or more is 
“a felony of the third degree” which is punishable by confinement 
in the State penitentiary for not less than 2 nor more than 10 years 
under Article 12.34 of the Penal Code.

70



5

REASONS FOR DENYING THE WRIT
1. This case involves an ad hoc decision by an 

employer in dealing with an isolated episode of felony 
theft by three employees. An employer’s sifting of the 
facts and circumstances surrounding each of the employ­
ees and its assessment of the relative culpability and ap­
propriate punishment of each is normally a unique judg­
ment that would rarely be decisive of other cases. This 
case does not involve any general policy of the employer 
or the Union. There is no claim that the administration 
of this case by Respondents is part of a pattern or policy 
of discharge for theft, either in this company or in 
industry generally. Fortunately, there could be no serious 
claim of significant frequency or recurrence of theft on 
the job in industry generally. Thus, this holding below is 
of limited significance which does not merit review by 
this Court.

2. Another peculiarity of the case is the circumstance 
that Petitioner Laird was a supervisor while the undis­
charged Negro employee was a nonsupervisory workman 
and member of the bargaining unit. To what extent is 
an employer required by Title VII to administer equal 
discipline for felony theft as between employees of en­
tirely different status, responsibility and trust in the com­
pany’s administrative organization? At most, the Title 
VII problem which Petitioner Laird seeks to kindle is 
highly unusual.

3. Insofar as Petitioner McDonald seeks to emphasize 
initially in this Court an assertion of innocence, we have 
here an additional twist that the Union did take the case 
to arbitration before the contractual Multi-State Grievance 
Committee which sustained the employer’s discharge of

71



6

this employee. The federal policy favoring the settlement 
of labor disputes through arbitration and the federal policy 
against employment discrimination combine to permit an 
employee to pursue fully both arbitration and his cause 
of action under Title VII, Alexander v. Gardner-Denver 
Company, 415 U.S. 36 (1974) but Respondent suggests 
that this option to pursue both remedies does not obtain 
if the employee’s claim is purely a matter of guilt or in­
nocence of theft and the arbitration decision has been 
adverse to him. In the latter case, the adverse arbitration 
award is binding. If the claim of innocence as distinguished 
from the claim of discriminatory discipline had been 
seriously urged in the District Court, Petitioner McDonald 
might well have found himself barred by the finality of 
the arbitration award.

4. The imposition of equal punishment to all partici­
pants in a particular episode of felony theft of an em­
ployer’s property is not a requirement of Title VII. The 
intention of Congress was to remove “artificial, arbitrary 
and unreasonable barriers to employment”, McDonnell 
Douglas Corporation v. Green, 411 U.S. 792, 806 (1973); 
Griggs v. Duke Power Co., 401 U.S. 424, 431. Selective 
punishment of employees involved in a particular episode 
of felony theft of company property is not part and parcel 
of “discriminatory practices or devices which have fostered 
racially stratified job environments to the disadvantage of 
minority citizens.” Griggs v. Duke Power Co., supra, 401 
U.S. at 429. In McDonnell Douglas Corporation v. Green, 
supra, this Court declared that

“Nothing in Title VII compels an employer to absolve 
and rehire one who has engaged in . . . deliberate 
unlawful activity against it”, 401 U.S. at 803.

72



7

The Court also made clear that the principles of N.L.R.B. 
v. Fansteel Corp,, 306 U.S. 240 (1939), are pertinent 
to a Title VII action. In Fansteel, the Court set aside an 
N.L.R.B. reinstatement of sit-down strikers even though 
the strike was an unfair labor practice strike which had 
resulted from “reprehensible” illegal employer conduct 
and even though the employer there did not discharge 
other sit-down strikers of equal guilt. Because of the 
severe misconduct involved in Fansteel, the Court honored 
the right of the employer to discharge some while retain­
ing others. 306 U.S. at 259.

In this case, the Court of Appeals, noting that there 
was no allegation that Petitioners were “falsely” charged 
with misappropriating company property, affirmed per 
curiam, holding that “disciplinary action for offenses not 
constituting crimes is not involved in this case.” (Appendix 
to Petition, pp. 22-23) It thus applied the McDonnell 
and Fansteel decisions by excluding from Title VII this 
very limited but very appropriate situation. It excluded 
only “disciplinary action” in a particular episode of the 
crime of theft committed against an employer.

In this connection, it should be noted that the case, 
as a theft case, is even more removed from the area of 
statutory regulation of employment conditions than Mc­
Donnell and Fansteel. In those cases the employees’ un­
lawful conduct was motivated by high principle and 
unselfish objective, related to hire and conditions of em­
ployment, although it was excessively militant. Here, the 
case is ugly, serious theft. It would not promote the 
valued purposes of Title VII to put federal courts into 
factual re-examination of the discipline imposed in each 
particular episode of theft. On the other hand, if disparity 
should later arise from the development of widespread

73



8

practices or rules concerning the administration of dis­
cipline in theft cases, which practices or rules seem to 
work disproportionately or unfairly against any race, then 
this Court will, no doubt, grant appropriate review to 
consider the competing social values in the situation.

5. As to 42 U.S.C. § 1981, derived from the Civil 
Rights Act of 1866, there has been no deviation from the 
principles already established by this Court under the 
companion 42 U.S.C. § 1982.

In Sullivan v. Little Hunting Park, Inc., 396 U.S. 235, 
237 (1969), a white property owner was held to have 
standing under 42 U.S.C. § 1982 to sue for the redress 
of damages inflicted upon him because of his effort to 
uphold the right of a Negro to rent and enjoy the white 
person’s property in an all-white neighborhood. The same 
holding was made earlier in a restrictive covenant case 
under the Fourteenth Amendment in Barrow v. Jackson, 
346 U.S. 249, 259 (1953). In both cases this Court 
upheld the standing of white litigants to vindicate the 
rights of others—“non-Caucasians” in Barrow v. Jackson, 
supra, 346 U.S. at 259-260, and “minorities protected 
by § 1982” in Sullivan v. Little Hunting Park, supra, 396 
U.S. at 237.3

These contours of standing under 42 U.S.C. § 1982 
were followed by the Second Circuit in De Matteis v.

3. In a § 1982 case somewhat more removed from direct vindica­
tion of the rights of black persons by a white, this Court expressly 
reserved ruling. Trafficante v. Metropolitan Life Insurance Company, 
409 U.S. 205, 209 n. 8 (1973). There the Ninth Circuit held a 
white and a black person who were not themselves deprived of the 
right to rent or purchase property had no standing under § 1982 to 
sue on account of a landlord’s policy of excluding black persons 
from a housing project thereby depriving plaintiffs of the benefit 
of living in an integrated community. 466 F.2d 1158 (9th Cir. 1972)

74



9

Eastman Kodak Co., 511 F.2d 206, 311-312 (2nd Cir. 
1975) and the cause of action was upheld under § 1981 
where plaintiff was forced into premature retirement by 
his employer, Kodak, because he sold his house, located 
in a neighborhood inhabited primarily by white Kodak 
employees, to a black fellow-employee.

But where white persons have sued under § 1981 solely 
for the vindication of their own rights, the statute has 
been held unavailable. Perkins v. Banster, 190 F.Supp. 
98 (D. Md.), aff’d, 285 F.2d 426 (4th Cir. 1960). The 
Eighth Circuit pointedly declined to affirm a contrary 
holding in Gannon v. Action, 450 F.2d 1227 (8th Cir. 
1971) affirming in part and remanding in part, 303 F. 
Supp. 1240 (E.D. Mo. 1969).

The opinion below is in accord with this Court’s hold­
ings under § 1982 and with the holdings of the Second, 
Fourth and Eighth Circuits under § 1981. There is no 
lack of unanimity in the Courts of Appeals.

Petitioner’s plea for parallel liberal treatment of §§ 1981 
and 1982 is not apropos. Petitioner’s real objective is to 
obtain new and enlarged application of § 1981 (and 
presumably § 1982) to protect the rights of white persons 
against black persons, a difficult feat since both sections 
assure the right of all persons to have the same rights as 
“white citizens.”

The need to strain for this result, if it ever existed in 
a predominantly white nation, has abated since the passage 
of Title VII which admittedly does assure equal employ­
ment opportunities of all races and ethnic groups and 
which is available to white persons who deem themselves 
aggrieved by discriminatory preferences for blacks. Title 
VII has the advantage of channeling such competing

75



10

claims through the Equal Employment Opportunity Com­
mission where, at least, an initial and informed judgment 
can be made by a qualified agency to establish a proper 
balance between competing claims of diverse races and 
ethnic groups. On the other hand, the enlargement of 
§1981 as Petitioners suggest, might have the result of 
encouraging obstructive or dilatory litigation under § 1981 
by persons disgruntled by the adverse effect of some of 
the Title VII remedies now being implemented. At least 
this prospect deserves consideration before Petitioners’ 
suggestions are accepted.

CONCLUSION

For these reasons, the writ of certiorari should be 
denied.

Respectfully submitted,

Chris Dixie
Suite 401, 609 Fannin Street 
Houston, Texas 77002

James P. Wolf
Suite 401, 609 Fannin Street
Houston, Texas 77002
Counsel for Respondent Union

76



IN THE

ImpcztM (ttmtrt cf %  ffinitzb
October Term, 1975

NO. 75-260

L. N. MCDONALD and RAYMOND L. LAIRD, 
Petitioners

v.
SANTA FE TRANSPORTATION COMPANY and 

TEAMSTERS FREIGHT, TANK LINE and 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

BRIEF ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Henry M. Rosenblum 
Robert B. O’Keefe 
4635 Southwest Freeway 
Suite 320 West 
Houston, Texas 77027 
(713) 629-0650
Counsel for Petitioners

77





INDEX

Opinions Below ..............................    1

Jurisdiction ............................................................................ - • 2
Statutory Provisions Involved ..................................    2
Questions Presented ..........................................................  '3
Statement of the Case ..............................................   3
Summary of Argument ............................................................  6

Argument ....................................................................................... 7
I. DISMISSAL OF WHITE EMPLOYEES CHARGED 

WITH MISAPPROPRIATING COMPANY PROP­
ERTY WHILE NOT DISMISSING A SIMILARLY 
CHARGED BLACK EMPLOYEE RAISES A CLAIM 
UNDER TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, AS AMENDED, 42 U.S.C. §§2000e, ET SEQ. 7
A. The Courts Below Clearly Disregarded Congressional 

Intent and Decisions of This Court in Finding That 
Petitioners had Failed to State a Claim Under Title 
VII of the Civil Rights Act of 1964, as Amended,
42 U.S.C. §§2000e, et seq..........................................  8

B. An Employer Allegation of Unlawful Conduct Does
Not Obviate the Prescribed Neutrality Which Must 
Govern Every Employment Decision.......................... 17

II. WHITE EMPLOYEES WHO WERE DISCHARGED
FOR ALLEGED MISAPPROPRIATION OF COM­
PANY PROPERTY WHEN A SIMILARLY CHAR­
GED BLACK EMPLOYEE WAS NOT DISCHARGED 
HAVE STANDING TO SUE UNDER THE CIVIL 
RIGHTS ACT OF 1866, 42 U.S.C. §1981.................... 22
A. The Language of the Statute Compels the Conclu­

sion That White Persons Have Standing to Sue
Under 42 U.S.C. §1981............................................... 23

B. The Legislative History of the Civil Rights Act of 
1866, Reveals That 42 U.S.C. §1981 was Intended
to Protect White Persons as well as Non-Whites. 25

C. 42 U.S.C. §1981 Should be Construed as Broadly
as 42 U.S.C. §1982. .................................................. .. 33

D. The Better Reasoned Lower Federal Court Opinions
Have Consistently Recognized that §1981 Covers 
Whites as well as Non-Whites.................................... 36

Page

79



II

III. ALLOWING WHITES STANDING TO REDRESS 
INVIDIOUS NON-REMEDIATING DISCRIMINA­
TION UNDER TITLE VII, AND 42 U.S.C. §1981 
WILL NOT INTERFERE WITH THE SALUTORY 
PURPOSES OF AFFIRMATIVE ACTION................  42

Conclusion ............ ..................................................... ...............  44
Appendix A—“Suggestion of Remand” Filed by the Depart­

ment of Justice in Haber v. Klassen, C.A. 7S-21S8 (6th 
Cir.), appeal pending............................ ..................... .. 45

Page

TABLE OF AUTHORITIES

CASES Page
A. H. I. Machine Tool & Die, Inc. v. NLRB, 432 F.2d 190

(6th Cir. 1970) .................................................................  19
Agnew v. City of Compton, 229 F.2d 226, 230 (9th Cir.

1956) Cert, denied 353 U.S. 959 (1957) ......................  25
Albemarle Paper Company v. Moody, ____ U.S.____  45

L.Ed.2d 280 (1975) ........ ..................... .............................. 8
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . .  8, 17
Alexander v. Gardner-Denver Co., on remand, 8 FEP 1153,

aff’d 519 F.2d 503 (10th Cir. 1975) ................................... 18
Anderson v. San Francisco Unified School District, 357 F.

Supp. 248 (N.D. Cal. 1972) ........................................... 10,12
Baca v. Butz, 394 F. Supp. 888 (D.C. N. Mex. 1975) . . . .  24
Bellamy v. Mason Stores, Inc., 368 F. Supp. 1025 (D.C. Va.

1973)      10
Brown v. Board of Education, 347 U.S. 483 (1954) ........  7
Burns v. Rohr Corp., 346 F. Supp. 994 (S.D. Cal. 1972) 16
Central Presbyterian Church v. Black Libertarian Front,

303 F. Supp. 894 (E.D. Mo. 1969) ................................  37
Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d

159 (3rd Cir.), cert, denied, 404 U.S. 854 (1971) ........  43
David F. X . Smith v. lohn Gunther, F. Supp.____ ,

9 EPD 1J10015 (D.C. D.C., 1975) ....................................  10
Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 (5th

Cir. 1971), cert, denied, 404 U.S. 950 (1971) ..............  16
Emporium Capwell Co. v. Western Addition Community Or­

ganization, ____ U.S.____ , 43 L.Ed.2d 12, 29 (1975) . . 20
Espinoza v. Farah Manufacturing Company, Inc., 414 U.S.

86, 88 (1973) .............................................. ..................... 8,12

80



Freeman v. Xerox Corp., 49 A.D.2d 21 (S.Ct. N.Y. 1975) 18
Gannon v. Action, 303 F. Supp. 1240 (E.D. Mo. 1969), aff’d 

in part, remanded in part on other grounds, 450 F.2d 1227
(8th Cir. 1971) .......... .......................................................... 22,37

Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783 (1966) 25
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ........  passim
Haber v. Klassen, F. Supp. 10 FEP Cases, 1446

(N.D. Ohio, 1975) ................................ ............................. 10, 15
Hollander v. Sears, Roebuck & Co., 392 F. Supp. 90, (D.

Conn. 1975) ................................................................... 6,22,24,36,39
Johnson . v. Railway Express Agency, U.S, 44

L.Ed. 295, 301 (1975) .......................................................  17,23
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422 (1968) . .24,33,34 
Kentucky v. Powers, 139 F. 452, (Cir. Ct. E.D. Ky. 1905) 36
Kurylas v. U.S. Dept, of Agriculture, 373 F. Supp. 1072

(D. D.C. 1974) aff’d 514 F.2d 894 (D.C. Cir. 1975) . .  40
Long v. Ford Motor Company, 496 F.2d 500 (5th Cir. 1974) 18
Macklin v. Spector Freight System, Inc., 478 F.2d 979 (D.C.

Cir. 1973) ..............................................................................  34
Marquez v. Ford Motor Co., 440 F.2d 1157 (8th Cir., 1971) 9
Martin v. Chrysler Corporation,____ F. Supp. 10 FEP

Cases 329 (E.D. Mich. 1974) ................................................  18
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) . .  passim 
McRae v. Goddard College, F. Supp. 10 FEP

Cases 143 (D.C. Vt. 1975) .................... . ............................ 18
Mele v. United States Department of Justice, _____ F. Supp.

. 10 EPD IfllO, 258 (D.C. N.J. 1975) ..................  10
NLRB v. Fansteel Metallurgical Corp., 306 U.S. 290 (1939) 19
Nix v. NLRB, 418 F.2d 1001, 1006 (5th Cir. 1969) ........  19,20
Parks v. Brennan, 389 F. Supp. 790 (N.D. Ga. 1974), rev’d 

on other grounds sub nom., Parks v. Dunlop, 517 F.2d
785 (5th Cir. 1975) ..........................................................  9, 15

Perkins v. Banster, 190 F. Supp. 98 (D. Md. 1960) aff’d
285 F.2d 426 (4th Cir. 1960) ............................................  40,41

Phillips v. Columbia Gas of West Virginia, Inc., 347 F.
Supp. 533 (D.C. W. Va. 1972) aff’d 474 F.2d 1342 (4th
Cir. 1973) ..............................................................................  10

Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971) 8
Rios v. Enterprise Association Steamfitters, Local 638, 520

F.2d 352 (2nd Cir. 1975) ................................................  10,43
Ripp v. Dobbs House, Inc., 366 F. Supp. 205 (N.D. Ala.

1973) ................................................ ' .................. .................. 9,41
Robinson v. Larillard Corp., 444 F.2d 791, (7th Cir. 1971) 

cert, dismissed, 404 U.S. 1006 (1972) ............................  43

I l l

CASES Page

81



IV

Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971) cert.
denied 406 U.S. 957 (1972) ............................................. 17

Rowe v. General Motors Corp., 457 F.2d 348, 354 (5th
Cir. 1972) ............................................................................   17

Sanders v. Dobbs House, Inc., 431 F.2d 1097 (5th Cir.
1970) cert, denied, sub nom., Dobbs House, Inc. v. San­
ders, 401 U .S. 948 (1971) ........ ............. . .......................... 18

Southern Illinois Builders Association v. Ogilvie, 471 F.2d
680 (7th Cir. 1972) ......................................  43

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) 34
Swann v. Charlotte Meeklenberg Board of Education, 402

U.S. 25 (1971) ................................................................  42>43
Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S.

431, 439-40 (1973) ..............................................................  33,35
U. S. v. Bethlehem Steel Corporation, 446 F.2d 652 (2nd

Cir. 1971) ..........................................................   10
United States v. International Brotherhood of Electrical 

Workers, No. 38, 428 F.2d 144 (6th Cir. 1970), cert.
denied, 400 U.S. 943 (1970) ............................................  42

United States v. International Longshoreman’s Association,
334 F. Supp. 97, 979 (S.D. Tex. 1971) rev’d sub nom.,
EEOC v. International Longshoreman’s Association, 511 
F.2d 273 (5th Cir. 1975), cert denied, U.S.
No. 75-356 (December 2, 1975) ......................................  9

United States v. Ironworkers Local 86, 443 F.2d 544 (9th
Cir, cert, denied, 404 U.S. 984 (1971) ............................  43

United States v. Lathers Local 46, 471 F.2d 408 (2nd Cir.)
cert, denied, 412 U.S. 939 (1973) .........................................  42

United States v. Price, 383 U.S. 787, 801 (1965) ............  33
Van Hoomisen v. Xerox Corp., 368 F. Supp. 829 (N.D. Cal.

1973) ......................................................................................  39
WRMA Broadcasting Co., Inc. v. Hawthorne, 365 F. Supp.

577 (D.C. Ala. 1973) .......................................................... 37,38
Walker v. Pointer, 304 F. Supp. 56, 60 (N.D. Tex. 1969) 39
Windsor v. Bethesda General Hospital, 523 F,2d 891 (8th 

Cir. 1975) .......................................................................  18,23

CASES Page

82



V

Pa<re
UNITED STATES CONSTITUTION 

Thirteenth Amendment ............................................................  26

UNITED STATES STATUTES
28 U.S.C. §1254(1) ................................................................  2
29 U.S.C. §151, et seq., National Labor Relations Act . . . .  19
42 U.S.C. §1981, Civil Rights Act of 1866 ........................  passim
42 U.S.C. §1982, Civil Rights Act of 1866 ..................... 8,33,34,35
42 U.S.C. §2000d, et seq., Title VI of the Civil Rights Act

of 1964 ................................................................................  10
42 U.S.C. §§2000e, et seq., Title VII of the Civil Rights Act 

of 1964 ................................................................................. passim

MISCELLANEOUS
CCH EEOC Decision No. 74-10 1(6391 (1973) ....................  11
CCH EEOC Decision No. 74-26 1(6398 (1973) ....................  12
CCH EEOC Decision No. 74-31 1(6404 (1973) ....................  11
CCH EEOC Decision No. 74-95 1(6432 (1974) ....................  11
CCH EEOC Decision No. 74-106 K6427 (1974) .......... 12
CCH EEOC Decision No. 75-019 1(6465 (1975) .......... 11
CCH EEOC Decision No. 75-037 K6437 (1975) .......... 11
CCH EEOC Decision No. 75-040 1(6440 (1975) .......... 11
CCH EEOC Decision No. 75-215 ((6449 (1975) .........  11
CCH EEOC Decision No. 75-269 1(6453 (1975) ................... 11, 18
CCH EEOC Decision No. 75-274 1(6454 (1975) ..................  11
Cong. Globe, 39th Cong., 1st Session .......................................  passim

TEXTS
Legislative History of Titles VII and X I of the Civil Rights 

Act of 1964, United States Equal Employment Oppor­
tunity Commission, U.S. Government Printing Office
(1969) ................................................................................. passim

BNA Labor Relations Reporter, Fair Employment Practices 
Manuel, The Bureau of National Affairs, Inc., (1975) . .  18

Brock, W., An American Crisis, (1963) ................................... 33

LEGAL COMMENTARY
Buchanan, S., The Quest for Freedom: A Legal History of 

the Thirteenth Amendment, 12 Hous. L. Rev. 1 (1975) 26, 27
Karst, K., and Horowitz, H., Affirmative Action and Equal 

Protection, 60 U. Va. L. Rev. 955 (1974) ......................  42

83





IN THE

kxpxzmt (Kaurt of tip îTtittoh States
October Term, 1975

NO. 75-260

L. N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners

SANTA FE TRANSPORTATION COMPANY and 
TEAMSTERS FREIGHT, TANK LINE and 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

BRIEF ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONERS 

OPINION BELOW
The opinion of the Court of Appeals, a copy of which 

appears in the Appendix at pp. 120-122, is reported at 
513 F.2d 90. The opinions rendered by the United States 
District Court for the Southern District of Texas are 
unreported and appear in the Appendix at pp. 113-117 
and pp. 118-119.

85



2

JURISDICTION
The judgment of the United States Court of Appeals for 

the Fifth Circuit was entered on May 21, 1975, and this 
petition for certiorari was filed August 18, 1975, and
granted on November 3, 1975. __U.S__(1975) The
jurisdiction of this Court rests upon 28 U.S.C. § 1254( 1).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42

§2000e-2(a)(l) Unlawful employment practices— 
Employer practices

(a) It shall be an unlawful employment practice 
for an employer—

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against 
any individual with respect to his compensation, 
terms, conditions, or privileges of employment, 
because of such individual’s race, color, religion, 
sex, or national origin;

United States Code, Title 42

§1981 Equal Rights under the law—
All persons within the jurisdiction of the United 

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

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3

QUESTIONS PRESENTED

1. Whether dismissal of white employees charged with 
misappropriating company property while not dismissing 
a similarly charged black employee raises a claim under 
Title VII of the Civil Rights Act of 1964, as amended, 
42 U.S.C. §§2000e, et seq.

2. Whether white employees who were discharged for 
alleged misappropriation of company property when a 
similarly charged black employee was not discharged, 
have standing to sue under the Civil Rights Act of 1866, 
42 U.S.C. §1981.

STATEMENT OF THE CASE

On September 26, 1970, Petitioners, who are white, 
were accused by the Respondent The Santa Fe Trail 
Transportation Company of having misappropriated cer­
tain of the Respondent’s property. A black employee was 
similarly accused. On October 2, 1970, following an al­
leged investigation by the Respondent, the Petitioners 
were terminated but the black employee was not.

On October 8, 1970, Petitioner McDonald initiated a 
grievance in which the charges of misappropriation were 
emphatically denied.1 On April 3, 1971, Petitioner Mc­
Donald was notified that his discharge had been sustained 
and that his grievance would not be further pursued by 
the Union Respondent.

On April 26, 1971, Petitioner McDonald filed Charges 
of Discrimination with the Equal Employment Opportu­
nity Commission in which he charged that his race had 
been a factor in the employment decision of Respondents 
to discharge him.

1. App. pp. 19-20.

87



4

On August 16, 1971, Petitioners initiated this action in 
the United States District Court for the Southern District 
of Texas, Houston Division. Invoking the Court’s juris­
diction pursuant to 42 U.S.C. §2000e-5(f) and 42 U.S.C. 
§1981, Petitioners contended, inter alia; that they, along 
with a similarly situated black employee, had been charged 
by the Company with misappropriating company property; 
that subsequent to being so charged by the Company, 
Petitioners were discharged but the similarly situated black 
employee was not; that their discharge was without cause; 
and that they were discharged because of their race. In 
particular, Petitioners complained that the Company had 
imposed a more severe disciplinary sanction against them 
because of their race, Caucasian, and that this constituted 
a discriminatory preference in derogation those rights se­
cured to Petitioners by Title YII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. §§2000e, et seq., and 
the Civil Rights Act of 1866, 42 U.S.C. §1981. Addi­
tionally, Petitioners contended that Respondent Union had 
acquiesced in the company’s racially discriminatory em­
ployment decision. Following discovery and certain motion 
practice, Petitioners filed their Second Amended Complaint 
on July 19, 1973.2 3

On January 4, 1974, the district court finding that 
petitioners had “alleged that the discharges were for 
racially discriminatory reasons”, denied motions to dismiss. 
At issue in the motions were (1) the proposition of 
whether white persons may bring an action under 42 
U.S.C. § 1981,8 and (2) the proposition that Petitioners 
who were discharged following their apprehension for 
the alleged theft of their employer’s property, while an

2. App. pp. 4-11 and 35-42.
3. App. pp. 92-93.

88



5

equally charged black employee was retained because of 
his race had not stated a claim under Title VII.4

On May 2, 1974, the district court issued a second 
Memorandum and Opinion in which it held that “[42 
U.S.C.] §1981 is inapplicable to white persons”; addi­
tionally, the court held “[Tjhat the dismissal of white 
employees charged with misappropriating company prop­
erty while not dismissing a similarly charged Negro em­
ployee does not raise a claim upon which Title VII relief 
may be granted”.5

The district court apparently predicated its decision 
in part, on the finding that Petitioners had failed to allege 
that they were falsely charged with misappropriating 
company property. This finding was adopted by the 
United States Court of Appeals for the Fifth Circuit.6 7 
In fact, evidence of each Petitioner’s innocence of the 
charges of misappropriation had been squarely presented 
to the district court, see n. 37, infra.

On appeal to the United States Court of Appeals for 
the Fifth Circuit the panel held, per curiam, that 42 
U.S.C. §1981 “confers no actionable rights upon white 
persons,” and “that an employer’s dismissal of white em­
ployees charged with misappropriating company property 
while not dismissing a similarly charged Black employee 
does not raise a claim upon which relief may be granted 
under Title VII, 42 U.S.C. §§2000e et seq.”‘

4. App. p. 94.
5. App. pp. 103-108.
6. “There is no allegation that Plaintiffs were falsely charged.” 

App. p. 122.
7. App. pp. 121-122.

89



6

Petitioners were never afforded an opportunity by 
the district court to offer evidence that (1) they were 
innocent of the accusations, or that (2) the not-dis- 
charged black employee was equally culpable, and that 
(3) race was a factor considered by Respondent Company 
in its decision to discharge Petitioners while retaining the 
similarly charged black employee.

SUMMARY OF ARGUMENT

It was the intent of Congress by the Civil Rights 
Act of 1964, to provide equal employment opportunities 
for all persons regardless of race and to condemn dis­
criminatory preferences for either minority or majority 
employees. This Court has so held. Griggs v. Duke Power 
Company, 401 U.S. 424 (197 ). While an employer may 
justifiably discharge one who has engaged in unlawful 
conduct against it, Title VII requires that this criterion 
be applied alike to members of all races. This Court has 
so held. McDonnell-Douglas Corp. v. Green, 411 U.S. 
792, 804 (1973). When an employee alleges that he has 
been the victim of discriminatory disciplinary treatment, 
he must be afforded a fair opportunity to show that the 
employer’s action was pretextual or discriminatory in its 
application. This Court has so held. Id. at 807.

It was the clear intent of Congress by enacting the 
Civil Rights Act of 1866 to confer the rights, privileges 
and immunities contained therein upon whites as well as 
blacks. Hollander v. Sears, Roebuck & Company, 392 
F. Supp. 90 (D. Conn. 1975); Cong. Globe, 39th Cong. 
1st Sess. 599 (1866). A careful analysis of decisions of 
this Court and the better reasoned opinions of the lower 
courts supports this proposition.

90



7

Allowing whites standing to redress invidious, non­
remediating discrimination under Title VII and 42 U.S.C. 
§1981 will not interfere with the salutory purposes of 
affirmative action.

Reversal, with directions that a trial on the merits be 
conducted under both Title VII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. §2Q00e et seq. and 
Section 1 of the Civil Rights Act of 1866, 42 U.S.C. 
§1981 is required.

ARGUMENT

I.
DISMISSAL OF WHITE EMPLOYEES CHARGED 
WITH MISAPPROPRIATING COMPANY PROP­
ERTY WHILE NOT DISMISSING A SIMILARLY 
CHARGED BLACK EMPLOYEE RAISES A CLAIM 
UNDER TITLE VII OF THE CIVIL RIGHTS ACT 
OF 1964, AS AMENDED, 42 U.S.C. §§2000e, ET SEQ.

Prompted by this Court’s decision in Brown v. Board 
of Education, 347 U.S. 483 (1954), and the growing 
civil rights movement, Congress began to enact compre­
hensive legislation designed to promote practical racial 
equality. In particular, Congress enacted Title VII of the 
Civil Rights Act of 1964,8 to assure equality of employ­
ment opportunities for all persons. This coalescence of 
congressional, judicial and social pressure has in turn pro­
pelled our society into a social transformation, the end result 
of which must be true racial equality, not merely the hollow 
promise of equality in law, but racial equality in fact.

8. Pub.L. 88-352, Title VII, §701, July 2, 1964, 78 Stat. 253; 
Pub.L. 89-554, § 8(a), Sept. 6, 1966, 80 Stat. 662; Pub.L. 92-261, 
§ 2, Mar. 24, 1972, 86 Stat. 103, now 42 U.S.C. § 2000e, et seq.

91



8

Yet, as might be expected in any rapid social change, this 
metamorphasis has not been without unintended con­
sequences.

Now, for the first time, this Court is being confronted 
with white persons seeking to invoke the protection of 
Title VII of the Civil Rights Act of 1964 and the Civil 
Rights Act of 1866,9 alleging that they were the victims of 
a racially discriminatory employment decision; to date 
their efforts have been thwarted.10 Congress did not in­
tend such a result.

A. The Courts Below Clearly Disregarded Con­
gressional In ten t and Decisions of This Court 
in Finding That Petitioners had Failed to State 
a Claim Under Title VIF <4 the Civil Rights Act 
of 1964, as Amended, 42 U.S.C. §§2000e, et seq.

Meager specific Congressional guidance11 is available 
to assist this Court in resolving precisely who is covered 
by the Civil Rights Act of 1964. It is well settled that 
blacks,12 13 chicanos,18 and women14 are embraced by its

9. Act of April 9, 1866, Ch. 31, f[l, 14 Stat. 27, re-enacted by 
§ 17 of the Enforcement Act of 1870, Act of May 31, 1870, Ch. 114, 
§ 18, 16 Stat. 140, 144 and codified in §§ 1977, 1978 of the Revised 
Statutes of 1874, now 42 U.S.C. §§ 1981, 1982.

10. See, Memorandum and Opinion of the District Court, May 2, 
1974, App. pp. 103-107; and the Opinion of the United States Court 
of Appeals for the Fifth Circuit, App. pp. 120-122.

11. Espinoza v. Farah Manujacturing Company, Inc., 414 U.S. 
86, 88 (1973).

12. Albemarle Paper Company v. Moody, U.S. 45
L.Ed.2d 280 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36 
(1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

13. Espinoza, supra n. 11.
14. Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971).

92



9

terms. Apparently unresolved to this day is whether Title 
VII protects not only those who for decades have suffered 
employment discrimination but also those who are nomi­
nally well ensconced in the American economy, the white 
male.

While few courts have addressed the issue, Petitioners 
submit that this Court laid to rest all such ambiguity 
when it announced:

Discriminatory preference for any group, minority 
or majority, is precisely and only what Congress has 
proscribed, (emphasis supplied)

Griggs v. Duke Power, 401 U.S. 424, 431 (1971). Accord, 
Marquez v. Ford Motor Co., 440 F.2d 1157, 1163 (8th 
Cir. 1971).

The paucity of decisions addressing the issue of the 
standing of white persons qua white persons under Title 
VII is attributable to the fact that whites have not here­
tofore suffered,15 nor are- they presently emerging from, 
decades of employment discrimination. There exist few 
reported opinions where whites have successfully asserted 
violations of Title VII.16 However, most decisions do not

15. One District Court, in dicta has found that whites are covered 
by Title VII and predicted that they will seek its protection.

“. • • it was passed to help whites as much as blacks if their 
civil rights are being violated, and this court can foresee where 
in many situations, now and in the future, that whites will be 
asking for protection of Title VII of the Civil Rights Act of 
1964.”

United States v. International Longshoremen’s Assoc., 334 F. Supp. 
97, 979 (S.D. Tex. 1971) rev’d on other grounds sub nom., EEOC 
v. International Longshoremen’s Assoc., S ll F.2d 273 (Sth Cir. 1975),
cert, denied U.S.____  (No. 75-356, Dec. 2, 1975). Accord,
Ripp v. Dobbs House, Inc., 366 F. Supp. 205 (N.D. Ala. 1973).

16. See, e.g., Parks v. Brennan, 389 F. Supp. 790 (N.D. Ga. 
1974) rev’d on other grounds sub nom. Parks v. Dunlop, 517 F.2d 
785 (5th Cir. 1975).

93



10

turn on the question of standing but rather on general 
findings that the plaintiffs have not been discriminated 
against because of their race.17 Implied in each case is 
that on a showing of racial discrimination relief would 
have been considered. White plaintiffs have successfully 
asserted rights paralleling those of Title VII under other 
provisions of the Civil Rights Act of 1964.18

Curiously, the courts below19 and two other district 
courts20 have chosen to ignore this Court’s finding in 
Griggs, supra, and have erroneously concluded that white 
persons lack standing to assert violations of Title VII.

Mr. Justice Douglas had no reservations as to the 
scope of this Court’s holding in Griggs; in his dissent from 
this Court’s ruling in Espinoza, supra, he stated:

But whether brown, yellow, black or white, the 
thrust of the act is clear . . . Griggs . . . extends its

17. David F.X. Smith v. John Gunther, .__ ___F. Supp,__ ___, 9
EPD f[99l5 (D.C. D.C. 1975); Bellamy v. Mason Stores, Inc., 368 
F. Supp. 1025 (D.C. Va. 1973). Cf. Rios v. Enterprise Association of 
Steamfitters, Local 638, 520 F.2d 352 (2nd Cir. 1975). The Court 
indicated that had the whites suffered “reverse discrimination” they 
would be on sounder footing; U.S. v. Bethlehem Steel Corporation, 
446 F.2d 652, (2nd Cir. 1971). “. . . there was no proof that Bethle­
hem rejected any white applicants . . .  on the basis of . . . national 
origin” 446 F.2d at 665; Phillips v. Columbia Gas of West Virginia, 
Inc., 347 F. Supp. 533 (D.C. W. Va. 1972) aff’d 474 F.2d 342 (4th 
Cir. 1973).

18. E.g., Anderson v. San Francisco Unified School District, 357 
F. Supp. 248 (N.D. Cal. 1972). White plaintiffs successfully prose­
cuted racial discrimination charge pursuant to Title VI, 42 U.S.C. 
2000d.

19. See, n. 10, supra.
20. Haber v. Klassen, _____ F. Supp.__ ___, 10 FEP Cases 1446

(N D  Ohio 1975); Mele v. United States Department of Justice, 
__ _ F .  Supp. 10 EPD pO,258 (D.C. N.J. 1975).

94



11

protective principles to all, not to blacks alone, (em­
phasis supplied).

414 U.S. at 97.

Moreover, the Equal Employment Opportunity Com­
mission has expressly recognized the standing of whites 
to complain of racially motivated job discrimination.21 
Citing Griggs, the Commission has held:

To find that [similar] recruiting methods are violative 
of Title VII only where Caucasians occupy the 
favored position (footnote omitted) would constitute 
a derilection of the Congressional mandate to elimi­
nate all practices which operate to disadvantage the 
employment opportunities of any group protected by 
Title VII, including Caucasians,22 23 * * * * (Emphasis sup­
plied).

CCH EEOC Decision No. 74-31 f6404 (1973).

While in the majority of instances the Commission has 
found that there was “no probable cause” to believe that 
Title VII had been violated,28 it has never quailed from 
its duty to condemn racial discrimination directed at

21. As the federal agency charged with enforcing the provisions 
of Title VII this Court has recognized that their interpretations of 
the Act are entitled to great deference. Griggs v. Duke Power Co., 
supra at 433.

22. See, CCH EEOC Decision No. 74-95 fl6432 (1974) n. 4.
23. CCH EEOC Decision No. 75-019 fl6465 (1975);

CCH EEOC Decision No. 75-274 116454 (1975);
CCH EEOC Decision No. 75-269 [[6453 (1975);
CCH EEOC Decision No. 75-215 jf6449 (1975);
CCH EEOC Decision No. 75-040 jf6440 (1974);
CCH EEOC Decision No. 75-037 [[6437 (1974);
CCH EEOC Decision No. 74-10 1f6391 (1973).

95



12

whites even when such discrimination is in the name 
of “affirmative action”.24

While the Commission’s interpretation of the statute 
is entitled to great deference, that deference is limited if 
the Commission’s interpretation does not conform with 
clear congressional intent. Espinoza, supra, 414 U.S. at 
94. However, regarding the applicability of Title VII to 
white persons, the EEOC’s interpretation perfectly mirrors 
the intent manifested by Congress during its long and 
arduous debates of the early 1960’s.

While Congress did not dwell at length on the matter 
of the applicability of Title VII to white persons, virtually 
every time the question was raised, the answer emphasized 
that the Act prohibits all racial discrimination. Respond­
ing to the charge that the Act seemed to compel an em­
ployer to grant preferential treatment to minorities, Senator 
Williams remarked:

Those opposed to H.R. 7152 should realize that to 
hire a Negro solely because he is a Negro is racial 
discrimination, just as much as a “white only” em­
ployment policy. Both forms of discrimination are 
prohibited by Title VII of this Act. The language 
of that title simply states that race is not a qualifica­
tion for employment. Every man must be judged 
according to his ability. In that respect, all men are 
to have an equal opportunity to be considered for 
a particular job. Some people charge that H.R. 
7152 favors the Negro, at the expense of the white 
majority. But how can the language of equality favor 
one race over another? Equality can have only one

24. CCH EEOC Decision No. 75-268 f6452 (1975);
CCH EEOC Decision No. 74-106 jf6427 (1974);
CCH EEOC Decision No. 74-26 tf6398 (1973);
See also, Anderson, supra n. 18.

96



13

meaning, and that meaning is self-evident to reason­
able men.

Legislative History of Titles VII and X I of the Civil 
Rights Act of 1964, United States Equal Employment 
Opportunity Commission, U.S. Government Printing Of­
fice. 1969 p. 3189.

Again, during floor debate, Congressman Celler,25 26 27 ob­
served with considerable acuity, that the Act applied to 
whites as well as blacks:26

Mrs. Griffiths: Before I begin my argument, how­
ever, I would like to ask the chairman of the 
Committee on the Judiciary, the gentleman from 
New York a question.
Mr. Chairman, is it your judgment that this bill 
will protect colored men and colored women at 
the hiring gate equally?

Mr. Celler: This bill is all-embracing and will cover 
everybody in the United States.

Mrs. Griffiths: It will cover every colored man and 
colored woman?

Mr. Celler: Yes, it will cover white men and white 
women and all Americans.2,1 (Emphasis supplied)

Id. at 3217

25. Chairman of the House Committee on the Judiciary.
26. The colloquy developed during House debate on an amend­

ment proposed by Congressman Smith of Virginia to prohibit dis­
crimination based on sex.

27. In further discussions with Mrs. Griffiths, the Congressman 
refused to waiver:

Mrs. Griffiths: Could a white woman, turned away from the 
college or from the restaurant where all the employers were 
white invoke the act? Would a white woman have any 
recourse under the Act?

Mr. Celler: I think we covered that in colloquies we had in 
the earlier part of the afternoon. There could be discrimina­

97



14

Significantly, Congressman Celler’s interpretations were 
confirmed by Senators Clark and Case in their interpreta­
tive memorandum:28

There is no requirement that an employer maintain 
a racial balance in his work force. On the contrary, 
any deliberate attempt to maintain a racial balance, 
whatever such a balance may be, would involve a 
violation of Title VII because maintaining such a 
balance would require an employer to hire or refuse 
to hire on the basis of race. It must be emphasized 
that discrimination is prohibited as to any individual,29

Id. at 3040.

tion against white people and there could be against colored 
people.

Mrs. Griffiths: Mr. Chairman, you know well and good if every 
employee of that restaurant were white, that that woman 
cannot go to the FEPC or to a district attorney and say 
“I was turned away from there because I was white” because 
every employee is white there.

Mr. Celler: That is speculation. Of course, that may be due to 
the derelictions of the particular Government agency; and 
if there are such cases, there is discrimination, and 1 think 
we, as members of Congress, should all complain if it hap­
pens. Legislative History of Titles VII and X I  of the Civil 
Rights Act of 1964, supra, at 3218. (emphasis supplied)

28. Senators Clark and Case were the floor managers for the House 
bill in the Senate. Their memorandum was introduced into the 
Congressional record on April 8, 1964.

29. Early in the Senate debate on the House bill, Senator Clark 
received a number of objections to the bill, one of which is germane 
to the issue:

Objection: Many employers will lean over backwards to avoid 
discrimination against other employees, increasing the case 
volume.

to which Senator Clark replied, in part:
In addition, the Commission has a clear mandate to engage 
in widespread educational and promotional activities to en­
courage understanding of the policy of the Act, including the 
obligation not to discriminate against whites.

Id. at 301S

98



15

In light of this clear Congressional intent, it cannot be 
gain-said that the EEOC has given practical effect to Con­
gressional mandate by giving even-handed consideration 
to the complaints of the majority as well as the minority. 
The forged intent of Congress and the decisions of the 
Commission founded on that intent, demand that this 
Court lay to rest any remaining conflict among the lower 
courts. Only a compounding of already hopeless confusion 
can result if this Court fails to squarely address the 
issue.30 31

Inconsistent notions of the meaning of Tide VII among 
the Judiciary and the Executive will doubtless recur if 
the case sub judice is not remanded. It appears that two 
different panels of the same Circuit Court of Appeals 
have arrived at different conclusions regarding the stand­
ing of white persons under Title VII.81

A number of wrongs have been righted in the decade 
since Title VII became law. To deny the salubrious aspects

30. This confusion in the lower courts is best illustrated by 
Haber v. Klassen, supra, n. 20. In Haber the District Court errone­
ously relied on the first of the four “prima facie case” criteria (e.g. 
that he belongs to a racial minority) in McDonnell Douglas Corp. v. 
Green, supra, and held that,

“Members of the white race may not seek relief for racial dis­
crimination, under Title VII . . .”. Haber, supra, 10 FEP Cases 
at 1447

Haber, the unsuccessful white Title VII plaintiff has Appealed to the 
United States Court of Appeals for the Sixth Circuit. Haber v. 
Klassen, No. 75-2158. The defendant-appellee, represented by the 
United States Department of Justice, on October 8, 1975, filed a 
“Suggestion of Remand” in which it urges that the district court 
has misconstrued Title VII.

The “Suggestion of Remand” is instructive and is included as 
Appendix A.

31. Compare, McDonald v. Santa Fe Trail Transportation Co., 
513 F.2d 90 (5th Cir. 1975) with Parks v. Dunlap, 517 F.2d 785 
(5th Cir. 1975).

99



16

of the Act to a generation of persons — and their progeny 
— whose prejudices have only recently been overcome, 
is not only inconsistent with prior judicial pronounce­
ments of this Court and Congressional intent, it is 
morally wrong. This Court must unequivocally give Title 
VII its intended breadth32— equality to all people.

32. While there remains a dearth of case authority dealing with 
the definitional parameters of the term “race” as used in the Act, 
the courts below have examined the issue of whether Congress in­
tended to provide males with a cause of action for sex discrimination. 
See, e.g., Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 (Sth 
Cir. 1971), cert, denied, U.S. 950; Burns v. Rohr Corp., 346 F. Supp. 
994 (S.D. Cal. 1972). The analogy is useful. In Diaz, supra, the 
Fifth Circuit was faced with the claim of males who were admittedly 
“locked-out” of certain job classifications because of their sex. In 
considering whether the job required a female and thus was a bona 
fide occupational qualification within the meaning of the Title VII, 
the Court pointed out the underlying basis for finding that both men 
and women are protected by the Act:

The Amendment adding the word “sex” to “race, color, religion 
and national origin” was adopted one day before House passage 
of the Civil Rights Act. It was added on the floor and en­
gendered little relevant debate. In attempting to read Congress’ 
intent in these circumstances, however, it is reasonable to assume, 
from a reading of the statute itself, that one of Congress’ main 
goals was to provide equal access to the job market for both 
men and women. Indeed as this Court in Weeks v. Southern 
Bell Telephone and Telegraph Co., 5 Cir., 408 F.2d 228 at 235 
clearly stated, the purpose of the Act was to provide a foundation 
in law for the principle of nondiscrimination. Construing the 
statute as embodying such a principle is based on the assumption 
that Congress sought a formula that would not only achieve the 
optimum use of our labor resources but, and more importantly, 
would enable individuals to develop as individuals.

Diaz, supra at 386-387.
As the Fifth Circuit properly construed the term “sex” to encompass 

both men and women, so this Court must construe “race” to include 
whites as well as blacks; anything less would mock the concept of 
racial equality.

100



17

B. An Employer’s Allegation of Unlawful Conduct 
does not Obviate the Prescribed Neutrality 
which m ust Govern Every Employment Deci­
sion.

The touchstone in all Title VII33 litigation brought 
pursuant to § 703(a)(1) of the Act is “whether 
for any reason, a racially discriminatory employment 
decision has been made”. McDonnell-Douglas Corp., 
supra at 800. Defining discrimination in its broadest pos­
sible terms,34 “Congress chose neither to enumerate speci­
fic discriminatory practices, nor to elucidate in extenso the 
parameter of such nefarious activities”. Rogers v. EEOC, 
454 F.2d 234, 238 (5th Cir. 1971), cert, denied 406 
U.S. 957. (1972)

Enacted “to assure equality of employment opportuni­
ties by eliminating those practices and devices that dis­
criminate on the basis of race, . . .” Alexander v. Gardner- 
Denver Co., supra, 415 U.S. at 41, Title VII prohibits 
all racial discrimination in every aspect of employment 
regardless of degree or form. Rowe v. General Motors 
Corp., 457 F.2d 348, 354 (5th Cir. 1972). It operates 
to negate an employers prerogative to make any rules or 
decisions which are predicated, in whole or in part, on race.

33. And, apparently in all 42 U.S.C. § 1981 litigation seeking to
redress employment discrimination. Johnson v. Railway Express 
Agency,____ U.S. 144 L.Ed.2d 29S (1975).

34. Senators Clark and Case in their interprative memorandum 
analyzed the concept of discrimination:

To discriminate is to make a distinction, to make a difference 
in treatment or favor, and those distinctions or differences in 
treatment or favor which are prohibited by § 704 are those 
which are based on . . . race . . .

Legislative History of Titles VII and X I of the Civil Rights Act of 
1964, supra, at 3040.

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18

See, McDonnell-Douglas Corp., supra at 804; accord, Wind­
sor v. Bethesda General Hospital, 523 F.2d 891 (8th Cir. 
1975); Sanders v. Dobbs House, Inc., 431 F.2d 1097 
(5th Cir. 1970) cert, denied, sub nom, Dobbs Houses, 
Inc., v. Sanders, 401 U.S. 948 (1971).

EEOC Guidelines require an investigation to deter­
mine whether similarly situated employees of different 
races have received dissimilar treatment because of their 
race. Critical to the investigation is whether the charged 
employer has been fair and evenhanded in meting out 
discipline.35 See, CCH EEOC Decision No. 75-269 
^|6453 (1975. Federal courts facing claims of racially 
disparate disciplinary treatment have adopted this cri­
teria, McRae v. Goddard College _____ F. Supp. _____ 10 
FEP Cases 143, 149 (D.C. Vt. 1975); and the em­
ployer’s decision to terminate an employee whether for 
inefficiency, Long v. Ford Motor Company, 496 F.2d 500 
(6th Cir. 1974); Alexander v. Gardner-Denver Co., on 
remand, 8 FEP 1153, aff’d 519 F.2d 503 (10th Cir., 
1975), or for violating company rules, Martin v. Chrysler
Corporation,_._F. Supp.___  10 FEP Cases 329 (E.D.
Mich. 1974), becomes limited by the “dissimilar treat­
ment” test.36

In finding that Petitioners had failed to state a claim 
the lower courts relied heavily on the erroneous finding 
that Petitioners had not denied the allegations of theft.37

35. BNA Labor Relations Reporter, Fair Employment Practices 
Manual, The Bureau of National Affairs, Inc., §421:102 (1975).

36. See, e.g., Freeman v. Xerox Corp., 49 A.D. 2d 21 (S.Ct. N.Y. 
1975); Accord, Windsor v. Bethesda General Hospital, 523 F.2d 891 
(8th Cir. 1975).

37. Both the court of appeals and the district court found , that

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19

Assuming arguendo that Petitioners had not denied the 
allegations of theft as the lower courts concluded, they 
were nonetheless entitled to make out their prima facie 
case of discrimination by showing at trial, inter alia,3i 
that a similarly charged black employee had not been 
discharged.38 39 40 “Petitioner may justifiably refuse to [rehire] 
one who was engaged in unlawful, disruptive acts against 
it, but only if this criterion is applied alike to members 
of all races”, McDonnell-Douglas, supra, at 804.

The reasoning of the court below is fallacious insofar 
as it relies on this Court’s holding in McDonnell-Douglas 
Corp., supra.Vl to support its decision. There, the Court

Petitioners’ pleadings did not allege that they were falsely charged. 
See, App. p. 122 and p. 117.

While admittedly inartfully drawn, Petitioners’ Complaint charged 
that they “were discharged by Defendant Santa Fe Trail Transport 
Company without cause . . .”. See, App. p. 38. The Complaint 
was a verified pleading, thus any reasons advanced by the Respondent 
for Petitioners discharges were necessarily refuted ab initio.

Petitioners McDonald expressly denied the charges in a grievance 
submitted to the district court by Respondent Local 988.

“These [Cjharges are wrong and are unjust, because I did not 
steel [sic] anything . . .”

App. p. 19.
It is not even clear that Petitioner Laird was discharged for 

allegedly unlawful conduct. In its verified answers to interrogatories, 
Respondent Santa Fe submitted:

“Raymond Lee Laird was discharged for failure to properly 
perform his duties, exercising poor judgment as General Dock 
Foreman and for violation of company rules.” App. p. 32.

38. Petitioners were not afforded an opportunity to demonstrate 
their innocence. The action was dismissed pursuant to Rule 12(b) 
of the Federal Rules of Civil Procedure.

39. No criminal charges were ever filed against Petitioners.
40. The court below also relied on certain cases arising under the 

National Labor Relations Act. 29 U.S.C. § 1 SI, et seq. NLRB v. 
Fansteel Metalurgical Corp., 306 U.S. 290 (1939); Nix v. NLRB, 
418 F.2d 1001, 1006 (5th Cir. 1969); AH I  Machine Tool & Die,

103



20

stated: “Disciplinary action for offenses not constituting 
crimes is not involved in this case.” App. p. 122. The 
court’s reliance was misplaced. In McDonnell-Douglas, 
the complaining party was a confessed misdemeanant. 
411 at 795. He alleged that his failure to be rehired 
was discriminatory; the Company, as the Respondents 
here, alleged that the failure to rehire was justified by 
petitioners unlawful conduct. In McDonnell-Douglas, 
the former employee alleged that Title VII was violated 
because the Company’s refusal to rehire him was pre- 
textual to a discriminatory intent. Here, Petitioners allege 
that a similarly charged black employee was not dis­
charged41 in violation of Title VII. A prima facie case 
of discriminatory application of an employment policy

Inc. v. NLRB, 432 F.2d 190 (6th Cir. 1970). These cases are 
inapposite.

In Nix, supra, and AHI Machine Tool & Die, Inc., supra, the 
Courts of Appeals had before them complete records, including 
witness testimony and Findings of the Trial Examiner; and in both 
cases relied heavily on the well-developed records in finding that the 
complained of discharges were not pretextual. Furthermore, and 
perhaps more importantly, the National Labor Relations Act, grants 
employees rights to organize and engage in certain concerted activities 
in order to improve the terms and conditions of their employment; 
Title VII, on the other hand, is prophylactic in its effect. It neither 
grants rights to employees nor proscribes their activities; its only 
function is to require employers to conform their employment prac­
tices to the mandates of the Constitution of the United States. See, 
Legislative History of Titles VII and XI, supra at 2009 and 2026. 
§ 703(a)(1) of Title VII is silent as to “protected activities”. This 
Court should not now engraft on to the face of Title VII those re­
strictions peculiar to the National Labor Relations Act. For, while it 
is clear that “. . . conduct which is not protected concerted activity 
may lawfully form the basis for the participants discharge. \T}hat 
does not mean that the discharge is immune from attack on other 
statutory grounds in the appropriate case.’’ (Emphasis supplied). 
Emporium Capwell Co. v. Western Addition Community Organization. 
____ U.S.____ , 43 L.Ed.2d 12, 29 (1975).

41. See Brief, supra, p. 4.

104



21

has been alleged; “Especially relevant to such a showing 
would be evidence that [white] employees involved in acts 
against petitioner of comparable seriousness. . . were 
nevertheless retained. . 411 at 804.

Here, as in McDonnell-Douglas, Petitioners were not 
afforded the opportunity to demonstrate that Title VII 
had been violated. In the case sub judice, the absence of 
any plenary hearing requires a reversal and a remand, 
since:

[Respondent] must be afforded a fair opportunity 
to demonstrate that [petitioner’s] assigned reason for 
refusing to re-employ was a pretext or discriminatory 
in its application. (Emphasis supplied)

Id. 411 at 807.

In McDonnell-Douglas this Court resolved the question 
of whether a mere allegation by the employer of “unlawful 
activity” is not conduct that is protected by §703 of Title 
VII in the negative; the Fifth Circuit’s Opinion here draws 
distinction without a difference. The language of §703 
(a)(1 ) is broad, and embraces every employment deci­
sion, Petitioners “should have been accorded the right to 
prepare [their] case with the knowledge that the §703 
(a )(1 ) cause of action was properly before the District 
Court.” McDonnell-Douglas, supra at 800.

The facts present here stand foresquare with those in 
McDonnell-Douglas.*2 For this Court to hold, on these 
facts, that the mere allegation of criminality by the Re­
spondents would place Petitioners without the zone of 42

42. Bearing in mind however that Petitioners have never admitted 
guilt, nor have criminal charges ever been filed against them. See 
n. 37, supra.

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2 2

“protected activities” would assuredly cause Title VII 
to collapse into the very evil it seeks to cure. 43

n.
WHITE EMPLOYEES WHO WERE DISCHARGED 
FOR ALLEGED MISAPPROPRIATION OF COM­
PANY PROPERTY WHEN A SIMILARLY CHAR­
GED BLACK EMPLOYEE WAS NOT DISCHARGED 
HAVE STANDING TO SUE UNDER THE CIVIL 
RIGHTS ACT OF 1866, 42 U.S.C. §1981.
This Court is becoming increasingly confronted with 

scattered occurrences of invidious racial discrimination 
directed against white persons. This relatively new form 
of racial discrimination has been manifested in a variety 
of situations. For instance, in some cases, blacks have 
been found to have interferred with the rights of white 
persons to hold and use property. E.g., Gannon v. Ac­
tion, 303 F.Supp. 1240 (E.D. Mo. 1969), aff’d in part, 
remanded in part on other grounds, 450 F.2d 1227 (8th 
Cir. 1971).

Situations have also arisen where white persons, be­
cause of their race, have had their rights to contract for 
employment infringed. E.g., Hollander v. Sears, Roebuck 
& Company, 392 F.Supp. 90 (D. Conn. 1975); and, of 
course, the fact situation now before the Court is another

43. If the employer is able to avoid the sanctions of Title VII 
by merely asserting “crime” this would deliver him Carte Blanche 
authority to engage in wholesale discrimination without fear of ad­
ministrative or judicial reprisal. Thus, under circumstances where, 
for example, five blacks and five whites, all involved in the same 
crime, pleaded guilty to theft from their employer, he could exercise 
his new license to discriminate by freely discharging all five blacks 
while retaining all five whites. Clearly, Congress did not intend such 
a result.

106



23

example of racial discrimination against white persons in 
employment. Racially disparate discipline by an employer 
for similar or identical alleged employee misconduct gives 
rise to a cause of action under 42 U.S.C. §1981.44

Obviously, there exists a clear need to accord white 
persons protection against racial discrimination. The legis­
lation necessary to protect white persons when they are 
the victims of invidious racial discrimination in employ­
ment is already in force; all that is needed is an even- 
handed application of the Civil Rights Act of 1866, 42 
U.S.C. §1981. This Court has already held that §1981 
provides a cause of action against private racial dis­
crimination. Johnson v. Railway Express Agency, -----
U.S 44 L.Ed. 295, 301 (1975). Thus, all that re­
mains is for this Court to fulfill the promise of the Act 
that all men shall be protected from invidious racial dis­
crimination in their exercise of It’s enumerated rights.

A. The Language of the Statute Compels the Con­
clusion that White Persons Have Standing to 
Sue Under 42 U.S.C. §1981.

The clearest indication that 42 U.S.C. §1981 was in­
tended to protect white persons as well as non-whites is 
found on the face of the statute itself:

§1981. Equal rights under the law.
All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­
fit of all laws and proceedings for the security of

44. Windsor v. Bethesda General Hospital, 523 F.2d 891 (8th 
Cir. 197S).

107



24

persons and property as is enjoyed by white persons, 
and shall be subject to like punishment, pains, penal­
ties, taxes, licenses, and exactions of every kind, and 
to no other.45

The terms of the statute fairly defy a narrow “blacks only” 
construction, for with its opening words §1981 declares 
its protection to “All persons within the jurisdiction of the 
United States”. This broad sweeping language necessarily 
embraces white persons. Baca v. Butz, 394 F. Supp. 888, 
890 n. 4 (D.C. N. Mex. 1975) Nor is the protection ac­
corded by §1981 restricted to non-whites by the later ap­
pearing phrase, “as is enjoyed by white citizens”. The 
phrase is simply an effort to quantify the rights to be en­
joyed by “all persons”. It is merely a convenient measur­
ing stick against which the rights of “all persons” are 
compared, and does not preclude whites from coverage 
under §1981 since whites themselves may be denied 
rights which are normally available to members of their 
race, Hollander v. Sears Roebuck & Co., 392 F. Supp. 
90, 94 (D. Conn. 1975); see, Baca v. Butz, supra at 890

45. In its original form, 42 U.S.C. § 1981 was part of § 1 of the 
Civil Rights Act of 1866, Jones v. Alfred H. Mayer Co., 392 U.S. 
409, 422 (1968). That section provided:

Be it enacted by the Senate House of Representatives of the 
United States of America and Congress assembled, that all per­
sons born in the United States and not subject to any foreign 
power, * * * * are hereby declared to be citizens of the United 
States; and such citizens, of every race and color, without regard 
to any previous condition of slavery or involuntary servitude,
* * * shall have the same right, in every State and Territory in 
the United States, to make and enforce contracts, to sue, to be 
parties, and give evidence to inherit, purchase, lease, sell, hold, 
and convey real and personal property, and to full and equal 
benefit of all laws and proceedings for the security of person 
and property, as if enjoyed by white citizens, and shall be subject 
to like punishment, pains, and penalties, and to note other, any 
law, statute, ordinance, regulation, or custom, to the contrary 
notwithstanding.

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25

n. 3. This is demonstrated by the racially discriminatory 
discharge to which your Petitioners were subjected by a 
fellow Caucasian. See Plaintiff’s [sic] Second Amended 
Complaint, App. pp. 35-42.

The plain purpose of §1981 is to provide for equality 
of rights as between persons of different races, Georgia 
v. Rachel, 384 U.S. 780, 791 (1966); Agnew v. City of 
Compton, 239 F.2d 226, 230 (9th Cir. 1956), cert, 
denied, 353 U.S. 959 (1957). To construe this phrase so 
as to deny white persons the protection of §1981 would be 
to give the statute a construction in contravention of the 
clear intent of the statute to end invidious racial distinc­
tions.

In fact, the phrase “as is enjoyed by white citizens”, 
far from being of substantive importance, was regarded 
by Congress as superfulous language, the omission of 
which would in no way alter the substance of the statute. 
See, Cong. Globe, 39th Cong., 1st Sess. 1412 (1866), 
(Remarks of Senator Trumbull). The phrase was added 
by the House only “to emphasize the racial character of 
the rights being protected” Georgia v. Rachel, supra at 
791; and as such was merely cosmetic. Clearly, therefore, 
the protection extended to all persons, and thus to all 
races, in the first nine words of the statute remains un­
qualified by the phrase “as is enjoyed by white citizens .

B. The Legislative History of the Civil Rights Act 
of 1866, Reveals That 42 U.S.C. §1981 was In ­
tended to Protect White Persons as Well as 
Non-WTiites.

Looking beyond the face of the statute, to the legislative 
history of the Civil Rights Act of 1866, only confirms

109



26

that Petitioners have standing to sue under §1981. Granted 
that the act was passed primarily to aid recently freed 
slaves, it is nevertheless clear that from its inception the 
Act was intended by contemporaries to protect white 
persons as well as blacks. This is initially evident from 
the fact that the Act was passed to implement the Thir­
teenth Amendment which itself was intended to benefit 
whites as well as the Negro. See, Buchanan, The Quest 
for Freedom: A Legal History of the Thirteenth Amend­
ment, 12 Hous. L. Rev. 1, 7-14 (1975) (hereinafter 
cited as Buchanan).

The Act was introduced on January 5, 1866, as a bill 
“to protect all persons in the United States in their civil 
rights and furnish the means of their vindication” by 
Senator Lyman Trumbull of Illinois, Chairman of the 
Senate Judiciary Committee and a principal draftsman of 
the Thirteenth Amendment, (emphasis supplied). Cong. 
Globe, 39th Cong., 1st Sess. 129 (1866). Designated as 
Senate Bill Number 61, the bill was the measure which 
gained Republican support after several previous attempts 
at comprehensive civil rights legislation had failed. These 
unsuccessful proposals are significant inasmuch as they 
manifest a common concern for securing to all persons 
equal protection of the law and protecting every person’s 
natural or inalienable rights. They failed, not because of 
their objectives, but because their scope was too narrow 
to suit the majority of Republicans who felt the bill did 
little more than annul bad laws. Buchanan, at 15. What 
the Republicans sought, and eventually found in S. No. 
61, was a bill that affirmatively protected for all persons 
certain enumerated rights. The rights Congress chose to 
enumerate are enlightening— i.e., the rights to make and 
enforce contracts, to inherit, purchase, and lease, and,

110



27

finally, the right to the full and equal benefit of all laws 
and proceedings for the security of persons and property. 
This enumeration reveals that a major thrust of the 1866 
Act was equal protection under the law and equality 
of economic opportunity for black and white persons 
alike, Buchanan at 16.

On January 12, 1866, the Senate began consideration 
of S. No. 61 as a Committee of the Whole. At that time, 
Senator Trumbull explained that the bill declared that:

[TJhere shall be no discrimination in civil rights or 
immunities among inhabitants of any State or Terri­
tory of the United States on account of race, color, 
or previous condition of slavery; but the inhabitants 
of every race and color [shall have the same enu­
merated rights]. (Emphasis supplied)

Cong. Globe, 39th Cong. 1st Sess. 211 (1866).

Again, on January 30, 1966, another proponent of the 
bill, Senator Jacob M. Howard of Michigan, succinctly 
stated the purpose of the bill:

Mr. President, I do not understand the bill which is 
now before us to contemplate anything else but this, 
that in respect to all civil rights . . . there is to be 
hereafter no distinction between the white race and 
the black race.

Cong. Globe, 39th Cong. 1st Sess. 504 (1866).

Quite obviously, to achieve the practical equality en­
visioned by the supporters of the bill, §1981 must be 
construed to protect white victims of invidious racial 
discrimination.

Even the opponents of the bill recognized the color 
blind nature of S. No. 61. For instance, in the course

111



28

of expressing concern over the incursion of the bill into 
the rights of the states, Senator Reverdy Johnson of 
Maryland explained the scope of the bill:

Now, if I understand this bill, it is not confined to 
persons of African descent. The language of the first 
section is: [quoting]

That is to say, that no state shall discriminate at 
all between any inhabitants within her limits on 
account of any race to which they may belong, 
whether white or black, on account of color, if they 
are not white, or on account of their having been 
previously in a state of slavery, so that the white 
as well as the black is included in this first section. 
. . . (Emphasis supplied)

Cong. Globe, 39th Cong. 1st Sess. 505 (1866).

A clearer pronouncement that the bill was intended to 
protect white persons is difficult to imagine, unless it 
can be found in the remarks of Senator Lyman Trumbull, 
the author of the bill. In response to a “long harangue” 
from Senator Davis of Kentucky, Senator Trumbull rose 
to declare unequivocably that white persons were indeed 
covered by the bill:

Sir, this bill applies to white men as well as black 
men. It declares that all persons in the United States 
shall be entitled to the same civil rights, the right to 
the fruit of their own labor, the right to make con­
tracts, the right to buy and sell, and enjoy liberty 
and happiness; and that is abominable and iniquitous 
and unconstitutional! Could anything be more mon­
strous or more abominable than for a member of the 
Senate to rise in his place and denounce with such 
epithets as these a bill, the only object of which is 
to secure equal rights to all citizens of the country, 
a bill that protects a white man just as much as a

112



29

black man? With what consistency and with what 
face can a Senator in his place here say to the Senate 
and the country that this is a bill for the benefit of 
black men exclusively when there is no such distinc­
tion in it and when the very object of the bill is to 
breakdown all discrimination between black men and 
white men? (Emphasis supplied)

Cong. Globe, 39th Cong. 1st Sess. 599 (1866).

Without a doubt then, both sides understood that 
S. No. 61 was intended to protect both white and non­
white victims of invidious racial discrimination, and with 
that understanding, the bill passed the Senate on February 
2, 1866 by the substantial margin of 33 yeas to 12 nays. 
Of course, the above quoted remarks were made before 
the House added the words “as is enjoyed by white 
citizens” but an examination of the debates in the House 
after the phrase was added discloses that the House of 
Representatives, likewise, thoroughly intended white per­
sons to be protected by the bill.

On May 2, 1866, Senate Bill 61 was introduced to the 
House by Representative James F. Wilson of Iowa, Chair­
man of the House Judiciary Committee. After offering 
several committee amendments which were adopted with­
out debate, Mr. Wilson personally offered the amendment 
which contained the phrase “as is enjoyed by white 
citizens”. In support of the amendment, which was again 
adopted without discussion, Mr. Wilson simply stated that 
the change was necessary to perfect the amendment as 
already offered, Cong. Globe, 39th Cong. 1st Sess. 1115 
(1866). During his remarks on the bill immediately fol­
lowing the amendments, Mr. Wilson reaffirmed the theme 
established in the Senate that the bill was intended to 
protect the fundamental rights of all men:

113



30

Mr. Speaker, if all our citizens were of one race and 
one color, we would be relieved of most of the 
difficulties which surround us. This bill would be 
almost, if not entirely, unnecessary, and if the State, 
seeing that we have citizens of different races and 
colors, would but shut their eyes to these differences 
and legislate so far at least as regards civil rights 
and immunities, as though all citizens were of one 
race and color, our troubles as a nation would be 
well-nigh over. But such is not the case, and we 
must do as best we can to protect our citizens, from 
the highest to the lowest, from the whitest to the 
blackest, in the enjoyment of the great fundamental 
rights which belong to all men. (Emphasis supplied)

Cong. Globe, 39th Cong. 1st Sess. 1118 (1866).

Just over a week after Chairman Wilson made this 
statement, he yielded some of his floor time to Represen­
tative Samuel Shellabarger of Ohio, who said of the bill:

It secures—not to all citizens, but to all races who 
are citizens—equality of protection in those enu­
merated civil rights which the states may deem 
proper to confer upon any races. (Emphasis sup­
plied)

Cong. Globe, 39th Cong. 1st Sess. 1293.

Once again, the protection of white persons being 
firmly established, the bill was passed—again by an over­
whelming vote— 211 yeas and 38 nays. Id. at 1367. When 
the civil rights bill was returned for the concurrence of 
the Senate, the additional, “as is enjoyed by white citizens” 
verbage was completely discounted as making any change 
in the classes of persons protected by the bill. The ques­
tion was raised by Senator Van Winkle of West Virginia-

114



31

MR. VAN WINKLE. There seems to be an in­
congruity in this language to which I wish to call the 
attention of the chairman of the committee. The 
clause commences with the words “and such citizens”. 
As I understand those words, they include all persons 
who are or can be citizens, white persons and all 
others. The clause then goes on to provide that “such 
citizens of every race and color, without regard to 
any previous condition of slavery or involuntary 
servitude, shall have the same right to make and 
enforce contracts,” & etc., “as is enjoyed by white 
citizens”. It seems to me these words are superflous. 
The idea is that the rights of all persons shall be 
equal; I think the clause leaving out these words, 
would obtain the object. This is merely a verbal 
criticism. I think the bill is incongruous in expression 
as it stands.

MR. TRUMBULL. I quite agree with the Senator 
from West Virginia that these words are superflous. 
I do not think that they alter the bill. I think the bill 
would have been better without them, but they have 
been adopted by the House of Representatives. We 
did not think they altered the meaning of the bill; 
and we did not think it worth while to send the bill 
back just because these words were inserted by the 
House. They thought there was some importance in 
them and inserted them; and as in the opinion of the 
committee which examined this matter, they did not 
alter the meaning of the bill, the committee thought 
proper to recommend the concurrence, and I hope 
that the Senate will concur in it.

MR. VAN WINKLE. It is a mere verbal correc­
tion that I suggested, and I am not at all strenuous 
about it; nor perhaps should I have made it had I 
been more aware that the attention of the committee 
had been called to it. (Emphasis supplied)

Cong. Globe, 39th Cong. IstSess. 1413 (1866).

115



32

With no other discussion, the Senate concurred in the 
House’s “as is enjoyed by white citizens” amendment. 
Thus, the clear intendment of the bill, to protect whites 
as well as non-whites, remained unaltered through the 
amendatory process of both Houses.

While the civil rights bill enjoyed overwhelming 
support in Congress, it was not as well received by 
President Andrew Johnson. The bill was vetoed on May 
27, 1866. When the bill was returned to Congress fol­
lowing the veto, proponents of the bill again had occasion 
to stress the importance and scope of the bill. In the 
House, Representative William Lawrence of Ohio, who 
had theretofore refrained from comment on S. No. 61, 
rose on April 7, 1866, to summarize the bill:

I will not therefore attempt a full discussion of it 
now, but content myself with briefly presenting some 
of the grounds upon which I will again perform the 
proudest fact of my political life in voting to make 
this bill the law of the land.

This bill, in that broad and comprehensive philan­
thropy which regards all men in their civil rights as 
equal before the law, is not made for any class or 
creed, or race or color, but in the great future that 
awaits us will, if it becomes a law, protect every 
citizen, including the millions of people of foreign 
birth who will flock to our shores to become citizens 
and to find here a land of liberty and law. (Emphasis 
supplied)

Cong. Globe, 39th Cong. IstSess. 1833 (1866).

116

Thus, tracing the bill through both Houses conclusively 
demonstrates the surprising unanimity with which both 
Houses agreed that the 1866 Act protected white persons



33

if they were the victims of invidious racial discrimination. 
Congressman Lawrence’s remarks accurately reflected the 
sentiment of the vast majority of both Houses, for two 
days later, on April 9, 1866, the House followed the lead 
of the Senate and overrode the President’s veto. Never 
before had Congress overriden the veto on a major politi­
cal issue, W. Brock, An American Crisis, 115 (1963).

C. 42 U.S.C. §1981, Should be Construed as Broad­
ly as 42 U.S.C. §1982.

As noted above in Note 2, both 42 U.S.C. §1981 and 
1982 were derived from §1 of the Civil Rights Act of 
1866. By their terms, both statutes undoubtedly cover 
white persons in that § 1982 applies to all citizens46 while 
§1981 protects a still broader class of all persons.

In light of the historical relationship between §§ 1981 
and 1982, this Court has recognized that they should be 
construed consistently. Tillman v. Wheaton-Haven Recre­
ation Ass’n., Inc., 410 U.S. 431, 439-40 (1973). When 
construing the language of § 1982, this Court noted that 
the statute was written in “plain and unambiguous terms”, 
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420 (1968), 
and refused to believe that the broad language of the 
1866 Act “was a mere slip of the legislative pen”, Id. at 
427. Rather the Court quoted with approval United States 
v. Price, 383 U.S. 787, 801 (1965) wherein it was stated:

We think that history leaves no doubt that, if we are 
to give [the law] the scope that its origins dictate, 
we must accord it at a sweep as broad as its language.

Jones v. Alfred H. Mayer, Co., 392 U.S. at 437.

46. § 1982. Property rights of citizens.
All citizens of the United States shall have the same right, in every 

State and Territory, as is enjoyed by white citizens thereof to inherit, 
purchase, lease, sell, hold and convey real and personal property.

117



34

After an extensive examination of the legislative history 
of the Civil Rights Act of 1866, this Court in Jones 
recognized the sweeping nature of the protection afforded 
by the Civil Rights Statute by holding that:

§1982 bars all racial discrimination, private as well 
as public, in the sale or rental of property, and that 
the statute, thus construed, is a valid exercise of the 
power of Congress to enforce the Thirteenth Amend­
ment. (Emphasis in original).

492 U.S. at 413.

Based on its holding in Jones, this Court again dealt 
with the 1866 Act in Sullivan v. Little Hunting Park, Inc., 
396 U.S. 229 (1969). In that case, Sullivan, a white, 
leased his home to Freeman, a black. In conjunction with 
the lease, Sullivan also assigned to Freeman his member­
ship shares in the respondent corporation which ran 
community recreation facilities. A membership share en­
titled the immediate family of the shareholder to use the 
corporation’s recreation facilities. Because of Freeman’s 
race, the corporation refused to approve Sullivan’s transfer 
of membership. When Sullivan protested the refusal, he 
was accorded a hearing of the corporation’s board and 
was expelled from the corporation. Sullivan and Freeman 
brought suit under 42 U.S.C. §§ 1981 and 1982 for 
injunctions and monetary damages. On these facts, this 
Court held that Sullivan, the white, had standing to sue. 
392 U.S. at 237. While the rationale of the Court was 
expressed in terms of § 1982, there is nothing in the 
opinion that limits Sullivan’s standing to sue to § 1982 
alone; and since § 1981 is the “statutory twin” of § 1982, 
Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 
994 (D.C. Cir. 1973), the holding in Sullivan must be

118



35

deemed to be a recognition that white persons have stand­
ing to sue under § 1981 as well.

In Tillman v. Wheaton-Haven Recreation Assoc. Inc., 
supra, this Court confirmed the standing of a white person 
to sue under §§ 1981 and 1982 when that person has 
suffered the consequences of racial discrimination directed 
against blacks. There, a white husband and wife, the 
Tillmans, invited a black guest, Mrs. Rosner, to a com­
munity swimming pool operated by the respondent cor­
poration. After admitting Mrs. Rosner on one occasion, 
the association promptly changed its policy to limit guests 
to relatives of members. Based on the subsequent refusal 
of the association to admit Mrs. Rosner to the pool, the 
Tillmans and Mrs. Rosner sought damages and declaratory 
and injunctive relief under 42 U.S.C. §§ 1981 and 1982. 
It bears emphasis, that even more strongly than in Sullivan, 
the white petitioners in Tillman were asserting their own 
property rights under § 1982 as well as their contract 
rights under § 1981, since when it refused to admit Mrs. 
Rosner, Wheaton-Haven substantially reduced the value 
of the Tillmans’ membership rights. In remanding on the 
question of relief, the Court left untouched the white 
petitioners’ claim under § 1981 stating that the reasoning 
supporting the court’s rejection of Wheaton-Haven’s de­
fense, that it was exempt from § 1982 as a private club, 
applied equally to § 1981. Viewed realistically, Sullivan 
and Tillman firmly establish a white plaintiff’s standing 
to sue under § 1981 when that person’s contract rights 
are impaired by racial discrimination directed at blacks, 
see Buchanan at 858-59.

Even though this Court has never directly held that 
white plaintiffs have standing to sue under §1981 when 
they are the object of racial discrimination, it has gone to

119



36

the very brink of such a holding in Sullivan and Tillman. 
A  refusal to take the logical step now would create the 
anomalous situation where one white person, econom­
ically damaged by racial discrimination directed at blacks 
may recover for those damages, while another white per­
son who endures both the humiliation of discrimination 
and resulting economic damage is left without remedy. 
Most assuredly the one thing a white victim of discrim­
ination will be left with is the bitter realization that were 
his skin darker, he would have been made whole. To say 
the least, this unseemly result taxes one’s sense of justice.

D. The Better Reasoned Lower Federal Court 
Opinions Have Consistently Recognized that 
§1981 Covers Whites as well as Non-Whites.

As early as 1905, lower Courts recognized that stat­
utes derived from the 1866 Act are to be interpreted to 
apply to white persons as well as non-whites. See, Ken­
tucky v. Powers, 139 F. 452, 494-95. (Cir. Ct. E.D. Ky. 
1905). But of the lower court decisions addressing the 
question of whether a white plaintiff can sue under §1981 
when subjected to invidious racial discrimination,, Hol­
lander v. Sears, Roebuck & Co., supra, stands out as a 
singularly well studied opinion. In that case, the defendant 
was conducting interviews for its summer internship but 
denied the plaintiff an interview solely because he was 
white and not a member of a minority group. Finding the 
legislative history of the 1866 Act to be of prime import­
ance in determining the scope of §1981, the court in Hol­
lander conducted an extensive examination and found 
that, “In light, then, of this legislative history, it is quite 
clear that §1981 should not be read as only providing 
a cause of action for non-whites”. 392 F. Supp. at 94.

120



37

The court then squarely held that white plaintiffs may 
have a cause of action under §1981 when they are the 
object of racial discrimination within the scope of activities 
protected by §1981. Id.

Two other cases holding that white persons had stated 
a cause of action under §1981, Gannon v. Action, 303 
F. Supp. 1240 (E.D. Mo. 1969); and Central Presby­
terian Church v. Black Liberation Front, 303 F.Supp. 
894 (E.D. Mo. 1969), involved essentially identical facts. 
In these cases, black activists conducted on-going disrup­
tions of predominantly white churches in order to press 
their demands for financial and other aid to blacks. In 
both cases, the court found that the white plaintiffs had 
stated a cause of action under §1981 since the black 
protesters had violated the right of the plaintiff Church 
and its members to equal benefit of laws for the security 
of property as guaranteed by §1981. See, Gannon at 
1244-45 and Central Presbyterian Church at 901. In so 
holding, the court in Central Presbyterian Church noted 
that:

While the Court recognizes the fact that these stat­
utes [§§1981 and 1982] were passed primarily to 
insure the rights of non-white Americans, nothing in 
the statutes limit their application to cases where the 
civil rights of non-whites are being violated. Indeed, 
it would be unfair to deprive white Americans of 
the benefit of these sections when their constitu­
tionally protected rights are being violated.

303 F. Supp. at 899.

In WRMA Broadcasting Co., Inc. v. Hawthorne, 365 
F. Supp. 577 (D.C. Ala. 1973), the plaintiffs charged 
that the defendants, motivated by racial prejudice, were

121



38

conspiring to force the discharge of the white manager 
of radio station WRMA. Charging that the defendants, 
black employees of WRMA, were violating 42 U.S.C. 
§§1981 and 1985(3), the plaintiffs sought a preliminary 
injunction to enjoin defendants from threatening com­
mercial advertisers on WRMA with a boycott and picket­
ing of their stores unless they agreed to cease advertising 
on WRMA. In the course of deciding whether plaintiffs 
had established a probable right to relief, the court ad­
dressed the question of whether a white plaintiff may sue 
under §1981. Id. at 365 F. Supp. 580. Examining the 
constitutional basis of §1981, the court held that whites 
do indeed have standing to sue under §1981 stating:

While in the past it might have been thought, as a 
conceptual matter, that the Thirteenth Amendment 
granted power to Congress to provide for the civil 
rights of blacks only, and not of whites, this con­
clusion is not necessary and is not even logical. Con­
gress, pursuant to the Thirteenth Amendment, could 
and did provide in the reconstruction civil rights 
statutes that the rights of blacks should be the same 
as the rights of whites. It is reasonable to assume 
that Congress, in acting to secure the rights of all 
persons against racial discrimination, could pass 
general laws providing that all races shall be treated 
equally in certain respects. Under such a general 
statute, it is entirely proper that a white citizen 
could benefit incidentally from the elimination of 
badges and incidents of slavery. Obviously most 
racially-motivated deprivations of civil rights are 
and have always been aimed at blacks. However, in 
those rare instances when a white alleges racial dis­
crimination under Section 1981, it is entirely con­
sonant with the purpose of Section 1981, that whites 
discriminated against for racial reasons should have 
standing under Section 1981, and the power of Con­

122



3 9

gress so to provide is a power ancillary to the enabl­
ing clause of the Thirteenth Amendment.

365 F. Supp. at 581, Cf. Walker v. Pointer, 304 F. Supp. 
56, 60 (N.D. Tex. 1969).

Upon examining the above decisions, it is readily ap­
parent that those courts holding that whites have a cause 
of action under §1981 when they are subjected to racial 
discrimination have done so only after a careful analy­
sis of the Thirteenth Amendment basis of the statute, a 
thoughtful reading of statute and, most recently in Hol­
lander v. Sears, Roebuck & Co., supra, a detailed exam­
ination of the legislative history of the 1866 Act. On the 
other hand, those cases cited for the opposite proposi­
tion, have not been so carefully reasoned. Even a cursory 
examination of those cases cited by the Fifth Circuit in 
support of its denial of petitioner’s standing to sue under 
§1981 reveals that those holdings were founded upon 
superficial analysis, or are obviously distinguishable from 
the case at bar.

For instance, the court in Van Hoomissen v. Xerox 
Corp., 369 F. Supp. 829 (N.D. Cal. 1973), denied the 
white plaintiff standing to sue under §1981, not because 
it felt that the statute did not protect whites, but rather 
because the detriment suffered by the plaintiff was not 
due to his race. In that case, the plaintiff merely alleged 
that he was fired in retaliation for attempting to change 
the hiring policy of Xerox which the plaintiff felt dis­
criminated against Mexican-Americans. Clearly, the mo­
tivation for the discharge was not the plaintiff’s race but 
his advocacy of a clause. See, 368 F. Supp. at 838-39. 
And just as clearly, Van Hoomissen cannot therefore, be 
regarded as a refusal to grant white persons, as a class,

123



40

standing to sue under §1981 when they are the object of 
racial discrimination.

Likewise, the case of Kurylas v. U.S. Dept, of Agri­
culture, 373 F. Supp. 1072 (D. D.C. 1974) aff’d., 514 
F.2d 894 (D.C. Cir., 1975)47 is readily distinguishable. 
There, the white plaintiff sued under §1981 alleging dis­
crimination based on his national origin—not his race. 
The dispute in that case centered around a low job-per­
formance rating given Dr. Kurylas, a veterinarian, be­
cause of his low score on a segment of the evaluation ad­
dressed to oral communication ability. The court’s hold­
ing in Kurylas leaves no doubt that the plaintiff’s claim 
under §1981 was denied because it was predicated upon 
a charge of discrimination based on national origin. In­
deed, the court noted that white persons had been permit­
ted to bring an action under §1981 where the complaints 
alleged a racially motivated infringment of their rights, 
Id. at 1074-75.

Perkins v. Banster, 190 F. Supp. 98 (D. Md. 1960), 
aff’d, 285 F.2d 426 (4th Cir. 1960) was a pro se action 
under 42 U.S.C. §§1981 and 1983 where a white plain­
tiff indicated that his claim was for “false arrest or false 
indictment or malicious prosecution or denial of due 
process and also for slander”. Id. at 99. Ruling orally on 
what it obviously considered a vexatious suit, one in 
which the court expressed fear that the plaintiff might per­
jure himself, the court dismissed the action under §1981 
in two sentences of the opinion stating that the court read

47. The district court’s decision was affirmed without opinion. 
An explanatory memorandum accompanied the judgment of the 
circuit court, however the memorandum was not published inasmuch 
as it should not be cited in briefs of counsel as precedent. See, 514 
F.2d 894.

124



41

§1981 to apply only to non-whites. Id. at 99. The Fourth 
Circuit affirmed per curiam based on the district court’s 
opinion. From an honest reading of the district court’s 
opinion, it is apparent that the court’s ruling was guided 
more by the frivolous nature of the suit than upon care­
ful analysis of the point of law involved. Plainly, the true 
deficiency of the plaintiff’s cause of action in Perkins was 
not that the plaintiff was white, but that no allegation of 
racial discrimination was made. Viewed in the proper 
light, the rationale of Perkins must be regarded as an un­
fortunate concession to a crowded docket.

Another case cited by the court below for the propo­
sition that white persons do not have standing to sue 
under § 1981 is Ripp. v. Dobbs Houses, Inc., 366 F. 
Supp. 205 (N.D. Ala. 1973). Inasmuch as Ripp relies on 
Perkins, it too must be deemed to be unsound in reason­
ing-

As demonstrated above, § 1981 was undeniably in­
tended by Congress to protect white plaintiffs. Yet, guided 
by an incautious examination of the above cited cases 
and without the benefit of the legislative history of §1981, 
the courts below rendered § 1981 ’s promise of racial 
equality of all persons empty and meaningless.

As our American society continues its movement to­
wards racial equality it seems inevitable that more in­
stances of racial discrimination directed at white persons 
will appear. To give § 1981 a “blacks only” construction 
in the face of this reality would be peculiarly unjust, 
and would almost certainly intensify existing racial ten­
sion. Moreover, such a construction would result in the 
absurd situation where § 1981, the very purpose of which 
was to end racial discrimination, itself becomes a vehicle 
whereby racial discrimination is perpetuated.

125



42

On the other hand, a construction of § 1981 giving 
white persons standing to sue would not only be con­
sonant with the intent of the Congress that passed the 
Civil Rights Act of 1866, but would be a progressive 
recognition of the needs of this Country in the years ahead. 
For the foregoing reasons, Petitioners respectfully submit 
that the decision of the court below should be reversed 
and remanded for a trial on the merits.

III.
ALLOWING WHITES STANDING TO REDRESS 
INVIDIOUS NON-REMEDIATING DISCRIMINA­
TION UNDER TITLE VII, AND 42 U.S.C. §1981 
WILL NOT INTERFERE WITH THE SALUTORY 
PURPOSES OF AFFIRMATIVE ACTION.
Many persons fear that a holding that white persons 

have standing to sue under Title VII and § 1981 will spell 
the demise of “Affirmative Action”. This simply is not 
true. Indeed, Petitioners recognize the importance of 
affirmative action in the achievement of social justice and 
to the development of a racially harmonious industrial 
society.

Affirmative action is the remedial relief necessary to 
redress the present effects of past discrimination.48 Swann 
v. Charlotte-Meeklenberg Board of Education, 402 U.S. 
25 (1971); United States v. International Brotherhood 
of Electrical Workers, No. 38, 428 F.2d 144 (6th Cir. 
1970), cert, denied, 400 U.S. 943 (1970). Accordingly, 
once a violation of Title VII or § 1981 is established, a 
District Court may impose hiring goals as a remedy. 
United States v. Lathers Local 46, 471 F.2d 408 (2d

48. Cf. Karst and Horowitz, Affirmative Action and Equal Pro­
tection, 60 U. Va. L. Rev. 9S5, 964 (1974).

126



43

Cir.), cert, denied, 412 U.S. 939 (1973); United States 
v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.) cert, 
denied, 404 U.S. 984 (1971); Contractors Assn of E. 
Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert 
denied, 404 U.S. 854 (1971). See also, Rios v. Enter­
prise Association Steamfitters Local 638, 520 F.2d 352 
(2d Cir. 1975). Whether called quotas, numerical ob­
jectives49, freezing50 or mathematical ratios51, their lauda­
tory purposes remain the same and have been recognized 
by this Court as mere starting points in the process of 
shaping remedies, rather than inflexible requirements. 
Swann, supra.

But such is not the case here. The racial discrimination 
to which Petitioners were subjected has never been justified 
by Respondent as a measure to improve the status of 
minorities within the Santa Fe Transportation Company. 
It simply constitutes invidious racial discrimination; that 
is, discrimination not justified by a compelling need to 
remedy past wrongs.

The question presented then becomes whether a white 
victim of invidious, non-remediating discrimination, is to 
be left defenseless in a situation where a black person 
would clearly have a cause of action. Petitioners submit 
that to answer this question in the affirmative would only 
serve to further polarize black and white America. A 
racially polarized Country will be incapable of delivering 
one of the great promises of America’s third century— 
equal employment opportunities for all.

49. Southern Illinois Builders Association v. Ogilvie, 471 F.2d 680 
(7th Cir. 1972).

50. Robinson v. Lorillard Corp., 444 F.2d 791 (7th Cir. 1971) 
cert, dismissed 404 U.S. 1006 (1972).

51. Swann v. Charlotte Meeklenberg Board of Education, supra.

127



44

CONCLUSION
In finding that Petitioners had failed to state a claim 

upon which relief could be granted, the court below 
committed a serious omission which has operated to 
deprive Petitioners of those very rights which Title VII 
and 42 U.S.C. § 1981 were enacted to secure. For this 
reason, and the reasons stated in this brief, this Court 
should reverse the lower court’s decision and remand 
with instructions that the matter proceed to trial on the 
merits.

Respectfully submitted,

Henry M. Rosenblum 
Robert B. O’Keefe 
4635 Southwest Freeway 
Suite 320 West 
Houston, Texas 77027 
(713) 629-0650
Counsel for Petitioners

128



1ST T H E

SUPREME COURT O F THE UNITED STATES
October Term, 1975

No. 75-260

L. N. MCDONALD and RAYMOND L. LAIRD,
Petitioners,

v.
SANTA FE TRAIL TRANSPORTATION COMPANY and 
TEAMSTERS FREIGHT, TANK LINE and 
AUTOMOBILE INDUSTRY EMPLOYEES, LOCAL 
UNION NO. 988,

Respondents.

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

BRIEF FOR RESPONDENT SANTA FE TRAIL 
TRANSPORTATION COMPANY

Ronald A. Lane 
Shelley J. Venice 
C. George Niebank, Jr.

80 East Jackson Boulevard 
Chicago, Illinois 60604 
(312) 427-4900
Attorneys for Respondent 
Santa Fe Trail 

Transportation Company
Benjamin R. Powbl 
McLeod, Alexander, Powel 

& A peebl, Inc.
808 Sealy & Smith Professional 

Building
200 University Boulevard 
Galveston, Texas 77550

Of Counsel

129





INDEX

Questions Presented .
Statement of the Case 
Summary of Argument 
Argum ent..................

I. DISMISSAL OF WHITE EMPLOYEES 
WHO DO NOT DENY CHARGES OF MIS­
APPROPRIATING COMPANY PROPERTY 
WHILE NOT DISMISSING A SIMILARLY 
CHARGED BLACK DOES NOT, STANDING 
ALONE, RAISE A JUSTICIABLE CLAIM 
UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 .....................................................  5
A. On the Record as a Whole, Petitioners

Plainly Failed to State a Cause of Action 
Under Title V I I ............................................  6

B. Even if Review is Limited to the Pleadings
in Their Present Posture, Petitioners Have 
Plainly Failed to State a Cause of Action 
Under Title V I I ............................................  10
1. Absolute racial neutrality in all employ­

ment decisions would retard rather than 
advance the primary purpose of Title VII 15

2. Absolute racial neutrality in all employ­
ment decisions would be inconsistent with 
federal policy as reflected in “affirmative 
action” program s..................................... 16

II. A DISMISSED WHITE EMPLOYEE 
CHARGED WITH MISAPPROPRIATION 
OF COMPANY PROPERTY LACKS STAND­
ING TO SUE ON GROUNDS OF RACIAL 
DISCRIMINATION UNDER THE CIVIL
RIGHTS ACT OF 1866, 42 U.S.C. § 1981 . . . .  22
A. White Persons Have No Standing to Main­

tain an Action Under § 1981........................ 23

PAGE

1
2
3
5

131



11

1. The language of § 1981 directly supports
the proposition that only blacks are pro­
tected against racial discrimination . . . .  23

2. The historical setting and legislative his­
tory of the Civil Rights Act of 1866 indi­
cate that § 1981 was intended to protect 
only blacks...............................................  24

3. The better view developed in a number
of lower court decisions is that § 1981 
does not provide a cause of action for 
whites to redress alleged racial discrimi­
nation .....................................................  27

B. Even if the Court Determines White Persons
Have Standing to Invoke the Protection of
§ 1981, These Petitioners Have Failed to
State a Cause of Action Under This Section 30

Conclusion .....................................................................  33

TABLE OF AUTHORITIES 

CASES
Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th 

Cir., 1973), cert, den., 414 U.S. 866 (1975)............... 9
Action v. Garmon, 450 F.2d 1227 (8th Cir., 1971).......  30
Adickes v. S. H. Kress <& Co., 398 U.S. 144 (1970) . . . .  9
Associated Press v. NLRB, 301 U.S. 103 (1937)........  11
Bale v. United Steelworkers of America, 6 EPD f  8948, 

p. 6036 (W.D. Pa., 1973), aff’d, 503 F.2d 1398 (3rd 
Cir., 1974) .................................................................  23,28

Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 
1017 (1st Cir., 1974), cert, den., 421 U.S. 910 (1975) . 17

Carter v. Gallagher, 452 F.2d 315 (8th Cir., 1972) . . . .  17
Central Presbyterian Church v. Black Liberation 

Front, 303 F. Supp. 894 (E.D. Mo., 1969) ............... 23,29

PAGE

131 a



I l l

PAGE

Conley v. Gibson, 355 U.S. 41 (1957)...........................  6
Contractor’s Ass’n. of Eastern Pa., v. Secretary of 

Labor, 442 F.2d 159 (3rd Cir., 1971), cert, den., 404 
U.S. 854 .....................................................................  17

Commissioner of Immigration of Port of New York v. 
Gottlieb, 265 U.S. 310 (1924) ....................................

Crus v. Beto, 405 U.S. 319 (1972) ...........................
DeFunis y . Odegaard, 416 U.S. 312 (1974)..................
EEOC v. American Tel. & Tel. Co., 8 FEP 431:73 

(1973) .........................................................................
First Nat’l. Bank of Ariz. v. Cities Service Co., 391 

U.S. 253 (1968) ..........................................................
Gannon v. Action, 303 F. Supp. 1240 (E.D. Mo., 1969), 

aff’d on other grownds, 450 F.2d 1227 (8th Cir., 1971)
Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 

(1967) .........................................................................
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .........
Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974)
Hollander v. Sears, Roebuck & Co., 392 F. Supp. 90 

(D. Conn., 1975) ........................................................
Johnson v. Railway Express Agency, Inc., 421 U.S. 

454 (1975) .................................................................
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . . . .
Kurylas v. Department of Agriculture, 373 F. Supp. 

1072 (D.D.C., 1974), aff’d, 514 F.2d 894 (D.C.Cir., 
1975) ..........................................................................

Land v. Dollar, 330 U.S. 731 (1947).............................
League of Academic Women v. Regents of the Univer­

sity of California, 343 F. Supp. 636 (N.D. Calif., 
1972) .......................................................... ...............

Loving v. Virginia, 388 U.S. 1 (1967)...........................

23
6

19, 20 

17 

9

23, 29 

6
18,19 
6

21,23, 30

19
26

23, 27 
6-7

23, 27 
19

131b



Malone v. Hall and Shippers Dispatch, Inc., No. C75- 
1084 (N.D. Ohio, E.D.) .............................................. 18

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 11,12,13,14,15
Modern Home Institute, Inc. v. Hartford Accid. &

Indemnity Co., 513 F.2d 102 (2nd Cir., 1975) . . . . . . .  9
Montana-Dakota Utilities Co. v. Northwestern Publ.

Serv. Co., 341 U.S. 246 (1951)................................... 6
Morrow v. Crisler, 491 F.2d 1053 (5th Cir., 1974), cert, 

den., 419 U.S. 895 (1975) ..........................................  17
NLRB v. Jones <& Laughlin Steel Corp., 301 U.S. 1 

(1937) ...........................................................................  11
NLRB v. Ogle Protection Service, Ina., 375 F.2d 497,

(6th Cir., 1967), cert, den., 389 U.S. 843 ..................  11
Perkins v. Banster, 190 F. Supp. 98 (D. Md., 1960) 

aff’d, 285 F.2d 426 (4th Cir., 1960) ...........................  23, 27
Pintozzi v. Scott, 436 F.2d 375 (7th Cir., 1970)...........   7
Ripp v. Dobbs Houses, Inc., 366 F. Supp. 205 (N.D.

Ala., 1973) ....................................................................  23, 27-28
Satty v. Nashville Gas Co., 522 F.2d 850 (6th Cir., 1975) 20
Scheuer v. Rhodes, 416 U.S. 232 (1974) ......................  6
Schoonfeld v. Mayor and City Council, 399 F. Supp.

1068 (D. Md., 1975) .....................................................  31, 32
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 

(1969) ...........................................................................  28
Tillman v. Wheatow-Haven Recreation Ass’n, Inc., 410 

U.S. 431 (1973) ............................................    29
Troup v. McCart, 238 F.2d 289 (5th Cir., 1956)...........  7
Tyler v. Vickery, 517 F.2d 1089 (5th Cir., 1975) . . . . . .  10, 20
United States v. Allegheny-Ludlum Industries, 517 

F.2d 826 (5th Cir., 1975) ............................................  17

i v

PAGE

132



V

United, States v. American Trucking Ass’n, 310 U.S.
534 (1940) ................................................................. 24

United States v. Central Motor Lines, Inc., 325 F. Supp 
478 (W.D. N.C., 1970) ...............................................  17

United States v. Chesterfield County School Dist., 484 
F.2d 70 (4th Cir., 1973).............................................. 20

United States v. Ironworkers, Local 86, 443 F.2d 544,
(9th Cir., 1971), cert, den., 404 U.S. 984 ..................  17

United States v. Oregon, 366 U.S. 643 (1961)  .......  23
Van Hoomissenv. Xerox Corp., 368 F. Supp. 829 (N.D.

Calif., 1973) ................................................................ 27
WRMA Broadcasting Co. v. Hawthorne, 365 F. Supr>.

577 (M.D. Ala., 1973).................................................  14, 23,29

STATUTES, RULE0' AND REGULATIONS
Civil Rights Act of 1866, 42 U.S.C. § 1981....................  passim
Civil Rights Act of 1866, 42 U.S.C. § 1982 ....................  28, 29
Civil Rights Act of 1871, 42 U.S.C. § 1985(3) ............. 31
Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e,

se2.......................................................     passim
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l) .. 11
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).........  11
Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) .........  22
Article 31.03, Vernon’s Texas Codes Annotated—Penal 2-3
Executive Order 11246, as amended, 3 C.F.R. 169 . . . .  16,17
Executive Order 11246, §§209(5), (6) ........................ 16
29 C.F.R. § 1602.7 ..........................................................  17
41 C.F.R. Chapter 6 0 ..................................................... 16

PAGE

133



V I

PAGE

41 C.F.R. § 60-1,30 ......................................................... 16
41 C.F.R. § 60-2.12........................................................  17
Fed. Rule Civ. Proe. 12 (b )................ ..........................  5, 6
Fed. Rule Civ. Proc. 5 6 .................... ............................ 6, 9,10
Advisory Committee’s Note to the 1963 Amendments,

Fed. Rule Civ. Proc. 56, 28 U.S.C.A. 416 ................  9

MISCELLANEOUS
Affirmative Action and Equal Employment, A Guide­

book for Employers, Volume 1 , U.S. Government 
Printing Office: 1974-559-400 ......... ........................... 17,18

Cong. Globe, 39th Cong., 1st Sess. (1866) ....................  25, 26
Dun’s Review, June 1974, p. 8 5 ....................................  21

134



IN  THE

SUPREME COURT OF THE UNITED STATES
Octobee Teem, 1975

No. 75-260

L. N. MCDONALD and RAYMOND L. LAIRD,

vs.
Petitioners,

SANTA FE TRAIL TRANSPORTATION COMPANY and 
TEAMSTERS FREIGHT, TANK LINE and 
AUTOMOBILE INDUSTRY EMPLOYEES, LOCAL 
UNION NO. 988,

Respondents. * 1

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

BRIEF FOR RESPONDENT SANTA FE TRAIL 
TRANSPORTATION COMPANY

QUESTIONS PRESENTED
The questions presented are as stated by Petitioners:
1. "Whether dismissal of white employees charged with 

misappropriating company property while not dismissing a 
similarly charged black employee raises a claim under Title 
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
§§ 2000e, et seq.

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2. Whether white employees who were discharged for 
alleged misappropriation of company property when a 
similarly charged black employee was not discharged, have 
standing to sue under the Civil Eights Act of 1866 42 
TJ.S.C. § 1981.

STATEMENT OF THE CASE
Petitioners have glossed over or neglected to mention 

several matters which we regard as of considerable im­
portance.

They pleaded their case in the District Court as a class ac­
tion not only for themselves but also “on behalf of other 
persons similarly situated.” (App. p. 35.) They sought 
declaratory and injunctive relief from an allegedly discrimi­
natory “policy, practice, custom or usage” of imposing more 
severe discipline upon white employees than that imposed 
on black employees. (App. pp. 36, 41.)

Their effort to present a “class action” was rejected by 
the District Court. (App. p. 104.) There has since been no 
move to revive it. No attempt was ever made to press the 
pattern and practice” charge of imposing disparate dis­

cipline on the basis of race.

So Petitioners stand before this Court by themselves. For 
the purpose of decision here, they were dismissed from our 
employ for “misappropriating company property”—that is 
to say, stealing.1 No criminal charges were ever lodged, al­
though it should be noted that theft of company property 
with a value in excess of $200.00 is a felony under Texas 
law. Article 31.03, Vernon’s Texas Codes Annotated—

1 Technically, it was not “misappropriation of company prop­
erty” which was involved but rather misappropriation from a ship­
ment being handled by Respondent Santa Fe Trail Transportation 
Company. (App. p. 65.)

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3

Penal. Both courts below noted that neither Petitioner 
contended he had been wrongfully charged. (App. pp. 107, 
122.) At this late date they do attempt a rather weak protest 
to the contrary at pp. 18-19, n. 37, of their Brief, but we be­
lieve the findings of the courts below must be accepted.

Although not a party to these proceedings, a very inter­
ested bystander is one Charles Jackson, a black employee 
of Respondent Santa Fe Trail Transportation Company 
(“Santa Fe”) at the time the events underlying this case 
transpired. Petitioners alleged in their complaint that Jack- 
son had also been charged with theft of company property 
along with them but they were fired and he was not, the ap­
parent disparity in discipline due, they say, to their white 
and his black skin. (App. p. 38.) There is nothing in the 
record to indicate, however, that Jackson had failed to dis­
pute the alleged charge of participation in a theft of com­
pany property.

Finally, we should like to point out that no one argued in 
the courts below that whites do not have standing to sue 
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§§ 2000e, et seq., and neither the District Court nor the Court 
of Appeals ruled that whites have no rights under Title VII. 
The courts did rule that these particular white Petitioners 
had failed to state a claim upon which Title VII relief could 
be granted.

SUMMARY OF ARGUMENT
On the basis of the entire record, Petitioners failed to 

advance any support whatever for their allegations that 
they had been disciplined more severely because they are 
white than was a black co-worker. The record convincingly 
demonstrates that Petitioners could not sustain a claim on 
which relief could be granted under Title VII of the Civil 
Rights Act of 1964.

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If review must be restricted to the pleadings, Petitioners 
still fell short of presenting a case under Title VII. They 
themselves alleged that they had been discharged from em­
ployment for theft of company property, and they have not 
denied the truth of the charge against them. Under such 
circumstances, we submit that in order to plead a prima 
facie case Petitioners must, considering the wide discretion 
of management in disciplining its employees, go further 
than merely allege that a black co-worker was similarly 
charged with theft of company property and was not 
discharged. In substance, Petitioners are not complaining 
about what happened to them but about what did not happen 
to someone else.

Even if race may have been one of a number of factors 
in our determination that, all things considered and exer­
cising our discretionary disciplinary authorityr, we would 
not discharge a black employee who allegedly was involved 
with Petitioners in a theft of company property, there was 
still no violation of Title VII. If such be regarded as “re­
verse discrimination,” it is nevertheless not “invidious” 
under the circumstances of this particular case and not con­
trary to Title VII.

Absolute racial neutrality in all employment decisions 
may be a desirable theoretical objective but it is not only 
impractical it would be inconsistent with and counterpro­
ductive to the goals of Title VII. “Affirmative action” is 
presently an accepted aspect of the on-going civil rights 
program of the United States. By definition it involves at 
least some measure of preference of or advantage for blacks 
and other racial minorities in connection with employment 
decisions. An interpretation of Title VII which would re­
quire all employment decisions to be made on the basis of 
competence alone would mean the end of “affirmative action”

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and a marked slowing of tlie pace of progress of blacks and 
other racial minorities. Congress never intended Title VII 
to have such a result.

The wording of the pertinent part of the Civil Rights Act 
of 1866, 42 U.S.C. § 1981, together with its historical con­
text and purpose, indicate that Congress did not intend to 
extend its protection to whites. Its purpose was only to 
protect blacks. Accordingly, whites cannot maintain a cause 
of action under § 1981. The lower court decisions which have 
so held are correct. Those to the contrary either involve 
especially unique facts and are, therefore, distinguishable, 
or they were incorrectly decided.

ARGUMENT
I. DISMISSAL OF WHITE EMPLOYEES WHO DO 

NOT DENY CHARGES OF MISAPPROPRIATING 
COMPANY PROPERTY WHILE NOT DISMISSING 
A SIMILARLY CHARGED BLACK DOES NOT, 
STANDING ALONE, RAISE A JUSTICIABLE CLAIM 
UNDER TITLE VII OF THE CIVIL RIGHTS ACT 
OF 1964

In a very real sense, Petitioners are complaining less 
about what happened to them than about what did not 
happen to Jackson. If he had been fired when they were, 
this case would never have been filed. Although Petitioners 
seek reinstatement with lost wages (App. p. 41.), presum­
ably the basic wrong of which they complain could be rem­
edied not by reinstating them but by firing Jackson. Viewed 
in this light, we have difficulty seeing this case as one 
worthy of this Court’s attention.

That difficulty becomes more acute when we consider that 
this ease has come to the Court on the basis of a successful 
Motion to Dismiss under Rule 12(b) of the Federal Rules 
of Civil Procedure, as a result of which we may be corn-

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pelled to accept that view of the facts most favorable to 
Petitioners as stated in their Complaint. The District Court, 
however, had a good deal more to consider than the skeletal 
allegations of the Complaint—as we will shortly demon­
strate. When these are considered, it is apparent that the 
case which Petitioners would have this Court review is a 
purely hypothetical one. The real case is quite different.

A. On the Record as a Whole, Petitioners Plainly 
Failed to State a Cause of Action Under Title VII

Our successful motion in the District Court was styled 
a Motion to Dismiss. Insofar as the Complaint was based 
on § 1981, it was dismissed for want of jurisdiction under 
Rule 12b (1). (App. p. 114.)2 The Title VII count was dis­
missed for failure to state a claim upon which relief could 
be granted. (App. p. 117.) In this connection, the District 
Court was required to accept as true the well-pleaded mate­
rial facts alleged in the Complaint, taking that view of the 
case most favorable to Petitioners. Scheu er  v. R hodes, 416 
U.S. 232, 236-37 (1974); C ruz v. B eto , 405 U.S. 319, 322
(1972); G ardner v. T o ile t Goods A s s ’n, Inc ., 387 U.S. 167, 
172 (1967); C onley  v. G ibson, 355 U.S. 41, 45-46 (1957). 
However, Rule 12(b) allowed the court to treat the motion 
as one for Summary Judgment under Rule 56, Fed. Rules 
Civ. Proc., and in connection therewith to consider all the 
depositions, answers to interrogatories or affidavits in the 
file in addition to the naked allegations of the Complaint. 
Rule 56(e). Even if the §1981 motion is to be viewed as 
raising jurisdictional issues, the District Judge was free 
to resort to matters beyond the pleadings. L a n d  v. D ollar,

2 I f  dismissal was appropriate, it should have been for failure to 
state a claim upon which relief could be granted rather than for 
want of jurisdiction. Montana-Dakota Utilities Co. v. Northwestern 
Publ. Serv. Co., 341 U.S. 246, 249-50 (1951); see Gulf Oil Cory 
v. Copp Paving Co., 419 U.S. 186, 213, n. 9 (1974) (Douglas, J., 
dissenting).

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330 U.S. 731, 735, n. 4 (1947); P in to zz i v. S c o tt, 436 F.2d 
375, 378 (7th Cir., 1970); T ro u p  v. M cC art, 238 F.2d 289, 
292 (5th Cir., 1956).

There was quite a bit more to consider than the bare 
bones of the complaint. There had been more than two and 
a half years of pre-trial activity, and the file contained not 
only the Complaint and Answer, but also Motions, Memo­
randa, Briefs, Interrogatories, Answers to Interrogatories, 
and Depositions. All this material was provided the Court 
of Appeals and much of it is contained in the printed Ap­
pendix which comprises the record furnished this Court.

We believe that District Judge Bue did, in fact, review 
the entire record and dispose of this case as a summary 
judgment. At one point in his Modified Memorandum and 
Opinion of June 13, 1974, he stated:

“With regard to plaintiff’s class action allegations, 
the C ourt has considered  the  en tire record  and particu­
larly plaintiffs’ allegations and concludes that the class 
of white persons who are employed or might be em­
ployed by The Santa Fe Trail Transportation Com­
pany in Houston, Texas, who are members or might 
become members of the Local 988, who have been dis­
charged upon charges of misappropriating company 
property is not so numerous as to make joinder of all 
such members impracticable. Therefore, the Court con­
cludes that this action may not be maintained as a 
class action. Fed. R. Civ. P. 23 (c) (1).” (App. p. 114, 
emphasis supplied.)

Petitioners themselves go beyond the narrow limits of 
the pleadings at notes 37, 38, and 39, pp. 18-19, of their 
Brief.

Viewing the record as a whole, we submit that the courts 
below did—and this Court should—take into account the 
following:

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1. Our Answer to the “Second Amended Complaint” 
specifically denied that Petitioners were discharged 
“by reason of their Caucasian race.” (App. p. 65.)

2. Furthermore, we answered that:
“ This defendant denies that plaintiffs, along with 

one negro employee, Charles Jackson, were all 
charged jointly and severally with misappropri­
ating company property, but admits that a general 
investigation of misappropriated cargo and car­
goes, including ten (10) cases of six (6) one-gallon 
cans of anti-freeze, was instituted and conducted, 
along with an investigation of possible violation of 
company rules, which investigation did include 
plaintiffs, Laird and McDonald, and employee, 
Charles Jackson, and others.” (App. p. 65.)

3. And additionally stated that:
“ This defendant admits that on or about Octo­

ber 2, 1970, plaintiffs, L. N. McDonald and Ray­
mond Laird, were discharged, and admits that 
negro employee, Charles Jackson, was not dis­
charged, but denies any discrepancy in disciplinary 
sanctions among or between these employees by 
reason of their race.” (App. p. 66.)

These answers are consistent with those pleaded by 
the defendant Union. (App. p. 59-60.)

4. In sworn Answers to Interrogatories (App. pp. 
32-34.) we informed Petitioners and the courts:

“I. (a) L.N. McDonald was discharged because of 
his dishonesty in the theft of company freight off 
of company equipment on company property and 
for violation of company rules.

“ (b) Raymond Lee Laird was discharged for 
failure to properly perform his duties, exercising 
poor judgment as General Dock Foreman and for 
violation of company rules.

*  #  #  *  #

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“XI. Charles Jackson was not charged with mis­
appropriating company property.

“XII. Plaintiffs were discharged for reasons 
other than race. The reasons are outlined in 
Answer to Interrogatory No. 1, and the company 
has written Statements of the plaintiffs in support 
thereof.”

Despite two and a half years of pre-trial activity, Peti­
tioners never came forward with any facts to support their 
claim of racially disparate treatment. Reviewing this one­
sided record, Judge Bue could properly have rendered 
summary judgment for Santa Pe. Rule 56(e) allows the 
court, in a case such as this, to pierce the pleadings and 
determine that a party cannot possibly support his un­
founded allegations. F ir s t  N a t’l B a n k  o f A r iz . v. C ities  
Serv ice  Co., 391 U.S. 253, 288-90 (1968); Advisory Com­
mittee Notes to 1963 Amendments, Fed. Rules Civ. Proc., 
Rule 56, 28 U.S.C.A. 416; M odern  H om e In s ti tu te , Inc. v. 
H a r tfo rd  A ccid . & In d e m n ity  Co., 513 F.2d 102, 109, 114 
(2nd Cir., 1975); A b io d u n  v. M a rtin  Oil Serv ice , Inc., 
475 F.2d 142, 144 (7th Cir., 1973), cert, den., 414 U.S. 
866 (1975). C f., A d ickes  v. S . H . K re s s  & Co., 398 U.S. 144, 
160 (1970).

The court indicated in its Memorandum and Order of 
January 4, 1975, that it was only assuming, arguendo, that 
Jackson was equally culpable with Petitioners and that their 
discharge was racially motivated; it invited the parties to 
explore that question. (App. p. 94.) Nonetheless, Petitioners 
produced no evidence to back up their charges.

Since there was no genuine issue as to either the cause of 
the disparate treatment accorded Messrs. Laird, McDonald 
and Jackson or as to racial motivation, Santa Fe was en~

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titled to summary judgment as a matter of law. Rule 56(c), 
Fed. Rules Civ. Proc.; T y le r  v. V ickery , 517 F.2d 1089,1094- 
95 (5th Cir., 1975).

B. Even if Review is Limited to the Pleadings in 
Their Present Posture, Petitioners Have Plainly 
Failed to State a Cause of Action Under Title VII

Most of Petitioners’ Brief on the Civil Rights Act of 1964 
question is misdirected to the broad question of whether 
whites as well as minorities are entitled to Title VIPs pro­
tection. This case presents a much narrower question.

To simplify matters as best we can, we concede that as a 
general proposition whites are, under appropriate circum­
stances, protected against racially discriminatory employ­
ment decisions by Title VII.

However, that general proposition means little or noth­
ing in the context of the case at bar. Petitioners are not 
hapless whites discharged at an employer’s whim—they are 
whites charged with stealing property entrusted to the cus­
tody of their common carrier employer, and in the courts 
below they did not deny the truth of these charges. They 
have abandoned their fruitless allegation that we engaged 
in a pattern and practice of discriminatory discipline favor­
ing blacks at the expense of whites. And they have never 
claimed that their discharges were somehow a subterfuge 
or pretext on our part to cover up a racially discriminatory 
employment decision.

Petitioners are white and Jackson is black. We fired them 
for stealing but did not fire him. We admit that our action 
may superficially smack of discrimination. But we submit 
that white men fired under these circumstances must plead 
and prove more than a superficial case if they are to state

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a claim upon which Title VII relief might be granted. We 
think that is the import of the decisions of the courts below 
and we think they were correct.

The critical factor is that our decision was reached in 
exercise of our unquestionable right to discipline dishonest 
employees. Management must be and is vested with wide 
discretion in administration of discipline. N L R B  v. Jones  
& L a u g h lin  S te e l Corp., 301 U.S. 1, 45-46 (1937); A ssocia ted  
P ress  v. N L R B ,  301 U.S. 103, 132 (1937); N L R B  v. Ogle 
P ro tec tio n  S erv ice , Inc ., 375 F.2d 497, 505 (6th Cir., 1967), 
cert, den., 389 U.S. 843.

Standing alone, our decision to fire Petitioners for steal­
ing is unassailable. In exercise of our disciplinary dis­
cretion, however, we did not discharge Jackson. There may 
have been any number of reasons having nothing whatever 
to do with race for the apparent leniency extended to him. 
But it is this apparent leniency in favor of a third man 
upon which Petitioners base their entire case.

Surely Congress did not intend to afford Title VII relief 
on such a flimsy basis. This Court’s comparatively recent 
decision in M cD onnell D ouglas Corp. v. Green, 411 U.S. 792
(1973), is instructive. There the company refused to re­
employ a black on the basis of unlawful conduct directed 
against it while he had been laid off during a general reduc­
tion in work force. He claimed that refusal to rehire was 
racially motivated in violation of § 703(a)(1) of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), and was in 
retribution for his civil rights activities in violation of 
% 704(a) of the Act, 42 U.S.C. §2Q00e-3(a). The Court 
enunciated a specific test which one must satisfy in order 
to make out a prima facie case of discrimination, a test 
which the respondent, Green, had met. For its part, the

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company contended that it had refused to rehire Green be­
cause of his unlawful conduct against it while he was laid 
off. This the Court ruled was sufficient to meet the com­
pany’s burden of proof at the opening of the case and met 
Green’s prima facie discrimination case. 411 U.S. at 803. 
With respect to the weight to be accorded the company’s 
reason for refusing to rehire Green, the Court said:

“ . . . [W]e think the court below seriously underesti­
mated the rebuttal weight to which petitioner’s reasons 
were entitled. Respondent admittedly had taken part in 
a carefully planned ‘stall-in’ designed to tie up access 
to and egress from petitioner’s plant at a peak traffic 
hour. [Footnote omitted.] Nothing in Title VII compels 
an employer to absolve and rehire one who has engaged 
in such deliberate, unlawful activity against it.” 411 
U.S. at 803.

On the same point, the Court said:
“Petitioner’s reason for rejection thus suffices to 

meet the prima facie case, but the inquiry must not 
end here. While Title VII does not, without more, 
compel rehiring of respondent, neither does it permit 
petitioner to use respondent’s conduct as a pretext for 
the sort of discrimination prohibited by § 703(a)(1). 
On remand, respondent must . . .  be afforded a fair 
opportunity to show that petitioner’s stated reason for 
respondent’s rejection was in fact pretext. Especially 
relevant to such a showing would be evidence that 
white employees involved in acts against petitioner of 
comparable seriousness to the ‘stall-in’ were neverthe­
less retained or rehired. Petitioner may justifiably re­
fuse to rehire one who was engaged in unlawful, dis­
ruptive acts against it, but only if this criterion is 
applied alike to members of all races.” 411 U.S. at 804.

Finally, by way of summary, the Court directed:
“ . . . In short, on the retrial respondent must be given 
a full and fair opportunity to demonstrate by com­
petent evidence that the presumptively valid reasons

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for his rejection were in fact a coverup for a racially 
discriminatory decision.” 411 U.S. at 805.

In the case at bar, Petitioners did not cause a traffic jam. 
They stole property entrusted to the custody of their com­
mon carrier employer. One, Laird, occupied a supervisory 
position as a Dock Foreman; the other, McDonald, was a 
truck driver. Both therefore had been entrusted with a good 
deal of responsibility with respect to the security of ship­
ments handled by Santa Fe. The pleadings are silent as to 
the position of Jackson, the black who was not discharged.

Petitioners, in the course of filing three successive com­
plaints (App. pp. 4, 21, 35.), had more than enough oppor­
tunity to plead a case which would have more to it than a 
bare allegation that they are white and were disciplined 
differently than a black co-worker. They have not alleged 
with any particularity the degree of similarity, if any, 
between their roles in the theft involved in their discharges 
and the part played by Jackson.

Petitioners themselves pleaded that they had been dis­
charged for theft, and when they failed to deny the validity 
of the charges against them they refuted what otherwise 
might have been the first block in the foundation of a prima 
facie case. Accepting the premise, which for present pur­
poses we assume we must, that Petitioners were discharged 
for stealing, our reason for discharging them must be ac­
corded great weight—it is “presumptively valid” and, in 
the absence of something more, will serve to rebut what 
might otherwise appear to be a prima facie case. M cD onnell 
D ouglas Corp. v. G reen, supra , at 803, 804, 805.

We cannot fairly say what “more” one in the position 
of Petitioners must allege in order to plead a prima facie 
case because no one—not even this Court—can foresee the 
factual variations which future litigation may produce. But

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whatever “more” might he in any other case, these par­
ticular Petitioners have failed the test. The courts below 
properly ruled that they failed to state a claim which would 
entitle them to relief under Title VII of the Civil Eights 
Act.

There is another but related aspect of this Court’s de­
cision in M cD onnell D ouglas C orp. v. G reen, supra , which 
should also he recalled. The Court there spelled out very 
carefully the essentials of a prima facie case under 
Title VII:

“ The complainant in a Title VII trial must carry the 
initial burden under the statute of establishing a prima 
facie case of racial discrimination. This may he done 
by showing (i) that he belongs to a racial minority; 
(ii) that he applied and was qualified for a job for 
which the employer was seeking applicants; (iii) that, 
despite his qualifications, he was rejected; and (iv) 
that, after his rejection, the position remained open 
and the employer continued to seek applicants from 
persons of complainant’s qualifications.” 411 U.S. at 
802.

The Court was careful to warn that this specification “ is 
not necessarily applicable in every respect to differing 
factual situations.” Id . n. 13.

Taken literally, a white would usually be hard put to 
meet the first requirement that he show he was a member 
of a racial minority, although there have been cases of 
whites in black-dominated or controlled enterprises who 
could plead such a case. W R M A  B roadcasting  Co. v. H a w ­
thorne, 365 F.Supp. 577 (M. D. Ala., 1973). So, if applied 
literally and uniformly, this requirement would almost 
automatically preclude whites from any Title VII relief on 
the basis of race. Accordingly, we do not believe this Court 
intended this hurdle to be surmounted in a case such as that 
at bar.

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The second requirement would appear to be one which 
would be applicable in most every case, certainly including 
this one—that a complainant must be qualified for the job 
he wants to get or keep. Our judgment that Petitioners were 
no longer qualified on this score can hardly be faulted, for 
they demonstrated that they could not be reliably entrusted 
with the property of others in possession of their common 
carrier employer. They are compelled to try to implicate a 
fellow employee in their own unlawful conduct in an effort 
to establish that he is equally untrustworthy but was not 
penalized as severely as they because of his race. We cannot 
imagine that Congress was much concerned with the plight 
of men in their position and intended to accord them Title 
VII protection. They fail the prima facie test prescribed in 
M cD onnell D ouglas.

1. Absolute racial neutrality in all employment 
decisions would retard rather than advance the 
primary purpose of Title VII

On a number of occasions this Court has spoken in sweep­
ing terms of the basic objective of Title VII. Turning again 
to M cD onnell D ouglas, we see that the Court said:

“ There are societal as well as personal interests on 
both sides of this [racial equality in employment] 
equation. The broad, overriding interest, shared by 
employer, employee, and consumer, is efficient and 
trustworthy workmanship assured through fair and 
racially neutral employment and personnel decisions. 
In the implementation of such decisions, it is abun­
dantly clear that T itle  V I I  to lera tes no racial d iscrim ­
ination , sub tle  or o therw ise.” 411 TJ.S. at 801. (Emphasis 
supplied.)

As an abstract ideal, perhaps every  employment or per­
sonnel decision should be absolutely color-blind. But this is 
a practical world, and few parts of it are more practical 
than where employment or personnel decisions are made.

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16

We submit that absolute racial equality under every con­
ceivable circumstance might very well be counter-produc­
tive. Mr. Jackson would certainly have thought it so if we 
had concluded that the law compelled us to fire him as well 
as Petitioners—all under the banner of racial equality.

Assuming for the moment that our local manager who 
made the decision to fire Petitioners but retain Jackson had 
been influenced to some slight degree by Jackson’s race, 
perhaps thinking to himself, “Jackson’s black, all things 
considered, we’ll give him a break,” we cannot believe that 
we thus ran afoul of the intent of Congress expressed in 
Title VII. We are a government contractor subject to 
Executive Order 11246, as amended, 3 C.P.E. 169, which is 
the basis of an extensive civil rights program apart from 
the Civil Rights Acts of 1866 and 1964, 41 C.F.R. Chapter 
60. The sanctions prescribed in that Order include can­
cellation of the underlying government contracts and in­
eligibility for future contracts. E .0 .11246, supra , §§ 209(5), 
(6); 41 C.F.R. § 60-1.30. If, in the action of which Petitioners 
complain, we violated Title VII, is it possible that under 
Executive Order 11246 we might lose our government con­
tracts because we may have decided, all things considered, 
to give Jackson a “break?”

2. Absolute racial neutrality in all employment 
decisions would be inconsistent with federal 
policy as reflected in “ affirmative action” 
programs

In determining whether Congress intended in Title VII 
that each and every employment decision must be abso­
lutely color-blind, this Court should consider the impact 
of such a ruling on the various forms of “affirmative action” 
programs being promoted or approved across the country 
by the Department of Justice, Department of Labor, the 
federal courts, and especially the Equal Employment Op-

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17

port-unity Commission.3 The very heart of each of these 
programs is to encourage or even require employment de­
cisions which, insofar as they relate to race, are anything 
but color-blind. They customarily call for employers to 
favor minorities to a greater or lesser degree, usually until 
some specific minority employment “profile” has been se­
cured. An excellent pamphlet has been published by the 
EEOC— A ffirm a tive  A c tio n  and  E q u a l E m p lo ym en t, A  
G uidebook fo r  E m p lo ye rs , V o lum e 1, U.S. Government 
Printing Office: 1974-559-400. In its Foreword, at page 1, 
EEOC states in part:

“Equal Employment opportunity is the law. It is man­
dated by Federal, State and local legislation, Presiden­
tial Executive Orders and definitive court decisions.
“However, there remains a need to communicate to 
employers why and how equal employment opportunity

3 Affirmative action plans which, in one way or another, require 
or promote hiring and promotion of minorities, especially blacks, 
are common. Employers doing more than a minimum amount of 
business with the federal government are required by the Depart­
ment of Labor to establish minority hiring goals and timetables, 
Executive Order No. 11246, 3 C.P.E. 169; 41 C.F.B. §60-2.12; 
see Contractor’s Ass’n of Eastern Pa. v. Secretary of Labor, 442 
F.2d 159 (3rd Cir., 1971), cert, den., 404 U.S. 854. The Equal 
Employment Opportunity Commission requires employers to re­
port the number of minority and white employees, 29 C.F.B. 
§ 1602.7, and, along with the Justice Department, views specific 
hiring and utilization goals as a proper basis for settling dis­
crimination claims by consent decree. United States v. Allegheny- 
Ludlurn Industries, 517 F.2d 826, 835 (5th Cir., 1975); EEOC  v. 
American Tel. & Tel. Co., 8 F E P  431:73, 74 (1973).

Numerous federal courts have imposed hiring quotas favoring 
minorities as relief for past patterns and practices of racial dis­
crimination. Boston Chapter, NAACP, Inc. v. Beecher, 504 F  2d 
1017, 1026-28 (1st Cir., 1974), cert, den., 421 U.S. 910 (1975); 
Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir., 1972); United 
States v. Ironworkers, Local 86, 443 F.2d 544, 553-54 (9th Cir., 
1971), cert, den., 404 U.S. 984; United States v. Central Motor 
Lines, Inc., 325 F. Supp. 478, 479 (W.D. N.O., 1970). See Morrow 
v. Crisler, 491 F.2d 1053, 1056 (5th Cir., 1974), cert, den., 419 
U.S. 895 (1975).

151



18

usually requires positive, affirm ative action  beyond 
establishment of neutral ‘nondiscriminatory’ and ‘merit- 
hiring’ policies.”

The obvious purpose of these “affirmative action” pro­
grams—in whatever form they may be cast—is to quicken 
the pace at which previously disadvantaged minorities may 
achieve their rightful place in the nation’s economic life. 
E E O C  A ffirm a tive  A c tio n  G uidebook, supra , at 3. Without 
them, the rate of progress to racial equality in employment 
would be painfully slow. If hiring, promotion, or discharge 
decisions cannot lawfully be affected to even the slightest 
degree by racial considerations, if these decisions must be 
made in all cases on the basis of merit alone, those his­
torically disadvantaged by the shackles of racial discrimi­
nation will for years to come still have steeper hills to 
climb than whites. The EEOC, in its A ffirm a tive  A c tio n  
G uidebook, and elsewhere, has made it clear that it does 
not understand Title VII to require strict racial neutrality 
in all employment decisions, and its role in the administra­
tion of the Act entitles its interpretation to “great defer­
ence.” G riggs v. D uke P o w er Co., 401 U.S. 424, 433-34 
(1971).

“Affirmative action” is not universally acclaimed. Like 
most if not all social programs which rock the status quo, 
it can be, and no doubt some have been, more abusive 
and destructive than constructive.4 We are not suggesting 
that all forms of “ reverse discrimination” would be saved 
if promoted under the banner of “affirmative action.” Not 
at all! The essence of workable and acceptable programs

4 A case recently filed in the United States District Court for the 
Northern District of Ohio, Eastern Division, may illustrate this 
dramatically. Malone v. Hall and Shippers Dispatch, Inc., No. 
C75-1084. There a motor carrier is seeking to recover substantial 
money damages from the United States, alleging that a serious 
accident was caused by an incompetent driver the company was 
compelled to hire by the EEOC.

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19

must be reasonableness, fundamental fairness, and com­
mon sense.5

Perhaps the key may be the word “invidious.” It is not 
to be found in the text of the Civil Rights Act of 1964, but 
it appears regularly in the opinions of this and other courts. 
G riggs v. D uke P o w er Go., supra , at 431; L o v in g  v. V ir ­
ginia , 388 U.S. 1, 10 (1967); Jo h n so n  v. R a ilw a y  E x p re ss  
A gen cy , Inc ., 421 U.S. 454, 457-58, 459, 461 (1975).

The customary context in which it appears is a statement 
to the effect that Title YII “creates statutory rights against 
invidious discrimination in employment and establishes a 
comprehensive scheme for the vindication of those rights.” 
Jo h n so n  v. R a ilw a y  E x p re ss  A g en cy , Inc ., supra , at 457-58.

Perhaps “ invidious” has no significant meaning of its 
own. It may be that it has become a phrase of art with no 
real substance except to imply that all racial discrimination 
is “invidious.” But the manner and context in which the 
word has been used convince us otherwise. We believe it 
does mean something. Mr. Justice Douglas seemed to be 
saying as much in his opinion in D eF un is  v. O degaard, 416 
U.S. 312, 344 (1974):

“. . . [0]ur task ends with the inquiry whether, judged 
by the main purpose of the Equal Protection Clause— 
the protection against racial discrimination—there has 
been an ‘invidious’ discrimination.”

Although the majority thought D eF u n is  moot by the 
time it reached the Court, Mr. Justice Douglas’ views are 
instructive even though stated by way of dissent. We also

5 Nor are we to be understood as suggesting that “affirmative 
action” as such has any place in the discipline area. I t  does not. 
We refer to it only to illustrate the ultimate weakness of the posi­
tion that all employment decisions must as a m atter of law be 
absolutely racially neutral.

153



20

recognize that his position was expressed in terms of 14th 
Amendment rather than Title YII considerations, but this 
is a distinction without a difference in the context of the 
instant case. United States v. Chesterfield County School 
List., 484 F.2d 70, 73 (4th Cir., 1973), and cases there cited; 
hut see Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th 
Cir., 1975); Tyler v. Vickery, 517 F.2d 1089, 1097-99 (5th 
Cir., 1975). In effect, he said that although the admissions 
procedures adopted by the University of Washington Law 
School did accord minorities an advantage not enjoyed by 
whites, they were not unlawful because DeFunis was not 
“ invidiously discriminated against because of his race.” 
416 U.S. at 344.

This view, we know, opens the door to a host of difficult 
problems. What is “invidious” and what is not? A compre­
hensive definition which might resolve all the problems 
which will surely arise in this area in the years and decades 
ahead is not possible. As various factual situations may be 
presented to the courts, a workable standard will gradually 
evolve.

Certain basic guidelines are possible now. Only extraor­
dinary circumstances could take discrimination against a 
minority out of the “ invidious” class. On the other hand, 
while across-the-board discrimination in favor of minorities 
could never be condoned consistent with Title YII and the 
evident intent of Congress, such discrimination under 
special circumstances or in isolated cases which cannot 
reasonably be said to burden whites as a class unduly, may 
not be “ invidious” and may be acceptable at this time in 
our history. Thus, reasonable “affirmative action” programs 
would be preserved in order to remedy the wrongs of the 
past, and isolated cases like that at bar, in which a black

154



21

man may have been given a “break”, would not run afoul 
of Title VII.

Troublesome as this might appear to be in terms of ad­
ministration, it would be preferable, we suggest, to that 
view of Title VII which would demand absolute racial 
neutrality in every conceivable situation. If demonstrated 
competence alone is to be the standard, how fast will minor­
ities make their way into the work force, what will be the 
pace of their advancement, and how many will be admitted 
in the next decade to our colleges, universities, and graduate 
schools f

Absolute neutrality will surely also generate a whole new 
wave of litigation. For example, consider the experience 
of Sears, Roebuck. In 1974, it was one of the primary tar­
gets of the Equal Employment Opportunity Commission. 
D im ’s R ev iew , June 1974, p. 85. Presumably to facilitate 
the entry of blacks and other minorities into its employ­
ment ranks it instituted “ Sears Summer Internship Pro­
gram for Minority Students.” One Alan Roy Hollander, a 
white, applied for participation in the program. His appli­
cation was, of course, rejected. It seems that he first sought 
Title VII relief from the EEOC but gave up on that avenue 
for some reason.6 Instead he chose to sue pro  se under the 
Civil Rights Act of 1866, 42 U.S.C. § 1981. And he “won” 
—that is to say his action survived a motion to dismiss by 
Sears in which it urged that § 1981 confers no right to sue 
on white persons. The United States District Court for the 
District of Connecticut ruled to the contrary. H ollander  v. 
Sears, R oebuck & Co., 392 F.Supp. 90 (March 27, 1975). 
The case is presently awaiting trial.

6 An effort to secure relief from the Connecticut Commission on 
Human Rights and Opportunities was unsuccessful.

155



22

What is one in Sears’ position—and that actually means 
almost every employer in the country—to do? If it promotes 
a program designed to assist minorities, it may get a pat on 
the head from the EEOC, but it may also be sued. With 
successful litigants reasonably confident that their attor­
ney’s fees will be paid, 42 TT.S.C. § 2000e-5(k), suits will be 
filed in every conceivable situation. An alternative course 
would be to decline to have anything to do with “affirmative 
action,” but that would provoke the wrath of the EEOC. 
The only sensible answer to this dilemma is for this Court 
to construe Title VII along the lines we have suggested. 
Meaningful “ equality” for disadvantaged minorities today 
may require some fair and reasonable measure of ad­
vantage over the majority who enjoyed an overwhelming 
advantage for two centuries or more. If we accorded some 
slight advantage to Mr. Jackson, the Petitioners in this case 
were not unfairly or unreasonably disadvantaged thereby 
and we did not violate Title VII.

II. A DISMISSED WHITE EMPLOYEE CHARGED 
WITH MISAPPROPRIATION OF COMPANY PROP­
ERTY LACKS STANDING TO SUE ON GROUNDS 
OF RACIAL DISCRIMINATION UNDER THE CIVIL 
RIGHTS ACT OF 1866, 42 U.S.C. § 1981

While the broad question of a white employee’s standing 
to sue under Title VII is not presented in this case, the 
question of whether the protection from racial discrimina­
tion of 42 U.S.C. § 1981 extends to white persons is squarely 
presented. The use of § 1981 as a means of vindicating em­
ployment rights of whites is novel to this Court for this 
application was not altogether apparent in 1866 and it is 
only recently that attempts to extend § 1981 in this fashion 
have been made. Of courts considering this question, at 
least five have indicated whites have no standing to sue 
under § 1981 while we are aware of only three courts which

156



23

have held to the contrary.7 The Civil Rights Act of 1866 
which was the basis for § 1981, was enacted to implement the 
Thirteenth Amendment, the purpose of which was to elimi­
nate slavery and the vestiges of that condition previously 
imposed upon the black. An examination of the statute itself 
and the pertinent decisions reveals that the import of § 1981 
was not to protect whites from racial discrimination but to 
protect blacks, and to afford blacks, not whites, with an 
appropriate remedy.

A. White Persons Have No Standing to Maintain an 
Action Under § 1981
1. The language of § 1981 directly supports the 

proposition that only blacks are protected 
against racial discrimination

It is well established that where the language of a statute 
is plain and unambiguous, it is the duty of the courts to 
enforce it as written. United, States v. Oregon, 366 U.S. 643, 
648 (1961); Commissioner of Immigration of Port of New 
I ork v. Gottlieb, 265 U.S. 310, 314 (1924). The language of 
§ 1981 is clear and obvious in its prescription of a remedy 
for blacks against racial discrimination. It is equally clear

7 The following cases support the view that whites do not have 
standing under § 1981: Perkins v. Banster, 190 F. Supp. 98 (D. M d, 
1960) aff’d, 285 F.2d 426 (4th Cir., 1960); Ripp  v. Dobbs Houses, 
Inc., 366 F. Supp. 205 (N.D. Ala., 1973); Bale v. United Steel­
workers of America, 6 EPD (I 8948, p. 6036, 6038 (W.D. Pa., 1973), 
aff’d, 503 F.2d 1398 (3rd Cir., 1974); League of Academic Women 
v. Regents of the University of California, 343 F. Supp. 636, 638- 
39 (N.D. Calif., 1972); Kurylas v. Department of Agriculture, 373 
F. Supp. 1072, 1075-76 (D.D.C., 1974), aff’d, 514 F.2d 894 (D.C. 
Cir., 1975). Others holding to the contrary are: Hollander v. Sears, 
Roebuck & Co., 392 F. Supp. 90 (D. Conn., 1975); Central Pres­
byterian Church v. Black Liberation Front, 303 F. Supp. 894 (E.D 
Mo., 1969); Gannon v. Action, 303 F. Supp. 1240 (E.D. Mo., 1969), 
aff’d on other grounds, 450 F.2d 1227 (8th Cir., 1971) ; WRMA  
Broadcasting Go. v. Hawthorne, 365 F. Supp. 577 (M.D, Ala,., 
1973). Both Gannon and Central Presbyterian Church were de­
cided in the same court by Judge Meredith.

157



24

and obvious that similar protection for whites was not 
within the contemplation of Congress.

§ 1981 reads as follows:
“All persons within the jurisdiction of the United 
States shall have the same right in every State and Ter­
ritory to make and enforce contracts, to sue, be parties, 
give evidence, and to the full and equal benefit of all 
laws and proceedings for the security of persons and 
property as is  en joyed  by w h ite  citizens, and shall be 
subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.” 
(Emphasis supplied.)

Thus, it explicitly confirms that “ all persons” shall have 
the same rights as those “ enjoyed by white citizens.” To 
read the word “persons” to include whites would confirm 
for them the enjoyment of rights they already possessed. 
This doesn’t make any sense and a reading of the statute 
that reaches such a result should be avoided. U nited  S ta te s  
v. A m erica n  T ru ck in g  A s s ’n, 310 U.S. 534, 543 (1940).

2. The historical setting and legislative history of 
the Civil Rights Act of 1866 indicate that § 1981 
was intended to protect only blacks.

In view of the clarity of language of § 1981, there is no 
need to resort to legislative history to determine its mean­
ing. But if its background is examined, we think it is quite 
clear that Congress intended to protect only blacks.

The passage of the Civil Bights Act of 1866 in the after- 
math of the Civil War was intended to secure more than 
physical freedom for the black inhabitants of this country. 
It was enacted pursuant to the authority of Section 2 of 
the Thirteenth Amendment which empowered Congress to 
pass appropriate legislation to eliminate slavery, involun­
tary servitude and the badges and incidences of those condi-

158



25

tions throughout the United States. The fundamental pur­
pose was to eliminate all possible remaining vestiges of 
black slavery .

There is, we know, language in the legislative history that 
tends to support the view that whites were accorded pro­
tection against racial discrimination. But there is also sig­
nificant language in the same legislative history to demon­
strate the sole purpose of the Civil Bights Act was to assist 
the newly freed black.

The oft-cited Senator Trumbull, one of the sponsors of 
the measure, made the point that the legislation was in­
tended to benefit blacks. Just prior to his introduction of the 
bill (S. 61), Trumbull urged its early enactment—

“for the purpose of quieting apprehensions in the 
minds of many friends of freedom lest by local legis­
lation or a prevailing public sentiment in some of the 
States persons of the African race should continue to 
be oppressed and in fact deprived of their freedom 
. .. .” Cong. Globe, 39th Cong., 1st Sess. 77 (1866).

Further, in reviewing the abuses that had been heaped upon 
the black, Senator Trumbull declared:

“The purpose of the bill [S. 61] under consideration is 
to destroy all those  discriminations, and to carry into 
effect the constitutional amendment.” Id . at 474. (Em­
phasis added.)

That the protection of blacks was foremost in the minds 
of the draftsmen of this legislation is reflected elsewhere in 
the Congressional record. Senator Lane of Indiana felt 
called upon to defend the bill and the propriety of using 
federal authority to deal with the white man who would 
invoke local prejudice against the black. In doing so he 
commented upon the purpose of Senate Bill No. 61:

159



26

“I think then, that the provisions of this bill are ad­
mirably calculated to secure to these colored persons 
their rights under the constitutional amendment.” Id . 
at 603.

Representative Thayer of Pennsylvania was specifically 
concerned with the condition of the black, and advocated 
the passage of the bill for that reason:

“The bill which now engages the attention of the House 
has for its object to carry out and guaranty the reality 
of that great measure [the Thirteenth Amendment]. 
It is to give to it practical effect and force. It is to 
prevent that great measure from remaining a dead 
letter upon the constitutional page of this country . . . .  
The events of the last four years . . . have changed [a] 
large class of people . . . from a condition of slavery to 
that of freedom. The practical question now to be 
decided is whether they shall be in fact freemen. It is 
whether they shall have the benefit of this great charter 
of liberty given to them by the American people.” Id . 
at 1151.

Senator Howard of Michigan declared the object of the 
bill before the Senate:

“It is to secure to these men whom we have made free 
the ordinary rights of a freeman and nothing else.” 
M a t  504.

There are many other references to the conditions of the 
blacks at that time. See  Jo n es  v. A lfr e d  H . M ayer Go., 392 
U.S. 409, 427-28 (1968). The concern was for them, not fox- 
white men! The context of the Act and the primary con­
cern of Congress for blacks by far overshadow any in­
cidental comments about protecting whites one may find. 
At best, the legislative history of this Act on this point is 
ambiguous and should not be relied upon in the face of its 
plain wording.

160



27

3. The better view developed in a number of lower 
court decisions is that § 1981 does not provide 
a cause of action for whites to redress alleged 
racial discrimination

Upon a careful consideration of the wording of the statute 
and pertinent decisions, the court below concluded that a 
white person cannot sue under § 1981. We think it was 
correct.

A number of courts in addition to the Fifth Circuit have 
agreed that it would be contrary to the plain meaning of 
§ 1981 to extend its coverage to whites. Ripp v. Dobbs 
Houses, Inc., 366 F. Supp. 205, 211 (N.D. Ala., 1973); 
Perkins v. Banster, 190 F. Supp. 98, 99 (D. Md., 1960), 
aiff’d, 285 F.2d 426 (4th Cir., I960).8

In Ripp v. Dobbs Houses, Inc., supra, an action wras filed 
by a white complaining of an allegedly illegal discharge by 
his employer because of his association with fellow em­
ployees of the black race. The court turned him away:

“Plaintiff seeks to utilize this statute, which is not 
available to ‘white citizens,’ to support this Court’s 
jurisdiction to hear his freedom of association claims. 
The Court will decline plaintiff’s invitation to extend 
this statute beyond its reach.

“Even in its resurrected state, Civil Eights Act of 
1866 has been generally limited to its unequivocal 
terms, [citing Perkins v. Banster, supra] Attempts 
to expand Section 1981 beyond its terms have gener­
ally met with failure. . . .

“In summary, the Court concludes that a white plain­
tiff cannot rely upon 42 U.S.C. § 1981 to press claims

8 See Kurylas v. Department of Agriculture, 373 F. Supp. 1072, 
1075-76 (D.D.C., 1974), aff’d, 514 F.2d 894 (D.C. Cir., 1975); Van 
Hoomissen v. Xerox Corp., 368 F. Supp. 829, 838, 840 (N.D. Calif., 
1973); League of Academic Women v. Regents of the Univer­
sity of California, 343 F. Supp. 636, 638-39 (N.D. Calif., 1972).

161



28

with respect to his private employment.” 366 F. Supp. 
at 211.

In Bale v. United Steelworkers of America, 6 EPD ft 8948, 
p. 6036 (W.D. Pa., 1973), aff’d, 503 F.2d 1398 (3rd Cir., 
1974), the question of § 1981 protection of whites was raised 
again. A white worker complaining of racial discrimination 
by his employer and Ms union, was held not to have 
presented a cause of action, with the court specifically 
finding:

“There is no jurisdiction to maintain this suit under 
the Civil Rights Act of 1866, 42 U.S.C. 1981, there 
being no allegation of racial discrimination against 
one who is not a white citizen.” 6 EPD at 6038.

Petitioners mistakenly rely on Sullivan v. Little Hunting 
Park, Inc., 396 U.S. 229 (1969), in which Sullivan, a white, 
alleged he was wrongfully deprived of his membership in 
a local community organization because of his activities in 
leasing his property and transferring a community organi­
zation membership to one, T. R. Freeman, a black. The two 
of them sued under 42 U.S.C. § 1982, a sister statute of 
§ 1981. The Court permitted Sullivan to maintain an action 
under § 1982 because he wus attempting to vindicate the 
rights of minorities, not the rights of whites:

“We turn to Sullivan’s expulsion for the advocacy of 
Freeman’s cause. If that sanction, backed by a state 
court judgment, can be imposed, then Sullivan is pun­
ished for trying to vindicate the rights of minorities 
protected by § 1982. Such a sanction would give im­
petus to the perpetuation of racial restrictions on 
property. That is why we said in Barrows v. Jackson, 
346 U.S. 249, 259, that the white owner is at times 
‘the only effective adversary’ of the unlawful restric­
tive covenant.” 396 U.S. at 237. (Emphasis supplied.)

The intention of this Court was thus clearly expressed—- 
whites had standing in this case because they were the only

162



29

“effective adversary” to contest racial discrimination 
against black persons.

In Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 
U.S. 431 (1973), as stated by Petitioners, this Court af­
firmed the standing of a white person to sue pursuant to 
§ 1981 and ■§ 1982 where the claim was based upon racial 
discrimination against black persons. There, a white plain­
tiff brought suit to vindicate the rights of a black 
acquaintance who had been barred by the defendant Asso­
ciation from use of the local swimming pool.

This Court should focus upon the nature of the under­
lying discrimination in those cases—discrimination against 
blacks. They do not support an expansion of § 1981 to pro­
tect whites in Petitioners’ situation. On the contrary, they 
strongly imply that § 1981 applies only to discrimination 
against blacks.

In the present case, whites are claiming other whites 
have discriminated against them on the basis of their race. 
That was not the situation in the cases cited by Petitioners. 
For a white to bring a claim pursuant to § 1981 under those 
cases, standing would depend upon his demonstration that 
his claim was actually based upon racial discrimination 
against blacks or that his action under § 1981 was an effort 
to vindicate the rights of the blacks, and that no other 
means to vindicate those rights were available.

Petitioners also rely upon a few unique cases that have 
permitted whites to maintain a § 1981 action. Gannon v. 
Action, 303 F. Supp. 1240 (E.D. Mo., 1969), aff’d on other 
grounds, 450 F.2d 1227 (8th Cir., 1971); Central Presby­
terian Church v. Black Liberation Front, 303 F. Supp. 894 
(E.D. Mo., 1969); and WRMA Broadcasting Co. v. Haw­
thorne, 365 F. Supp. 577 (M.D. Ala., 1973). It is our view 
that these cases are incorrect and aberrations from the

163



30

longer line of authority refusing to permit such actions. 
It should also be called to this Court’s attention that while 
the Eighth Circuit had an opportunity to decide the ques­
tion of § 1981 jurisdiction in A c tio n  v. G annon, 450 F.2d 
1227 (8th Cir., 1971), it declined to affirm or deny the de­
cision of the lower court and decided the case on other 
grounds.

Petitioners place primary reliance upon H ollander  v. 
S ea rs , R oebuck & Co., 392 F. Supp. 90 (D. Conn., 1975). In 
that case, § 1981 was read as providing a cause of action 
for whites as well as non-whites. The court recognized 
there was support for the view that $ 1981 did not provide 
a cause of action for whites, but chose to disagree with 
case law to that effect, on the basis that the statute was 
ambiguous and subject to interpretation. In H ollander, the 
court ignored the mandates of statutory construction in 
interpreting § 1981 by resorting to judicial interpretation 
of a statute clear on its face. The court’s use of legislative 
history was inappropriate and moreover incorrect for the 
history of the statute as discussed in Section II(A )2 of this 
Brief is at best ambiguous.

Section 1981 does not afford whites any protection from 
racial discrimination. Nor is there any compelling reason 
to extend it to white persons. The availability of remedies 
for discrimination in employment existing under Title VII 
of the Civil Bights Act of 1964, 42 U.S.C. §§ 2000e, et seq., 
and the vast array of state laws adequately protect white 
persons.

B. Even If the Court Determines White Persons Have 
Standing to Invoke the Protection of § 1981, These 
Petitioners Have Failed to State a Cause of Action 
Under This Section

We submit that if this Court decides to permit whites to 
bring an action under § 1981, the dismissal of Petitioners’

164



31

action was proper for they failed to state a claim there­
under. As pointed out in our discussion of Title VII, a 
complaint must state more than superficial allegations of 
racial discrimination, but most allege specific, concrete facts 
to support a claim whether under Title VII or under § 1981. 
In this case, the Court is presented with the situation where 
the Petitioners were dismissed for a theft which they did 
not deny. Their complaint merely alleges that a black em­
ployee who was charged with theft, was not discharged. For 
the Court to allow whites to maintain a § 1981 action without 
pleading more, the Court would throw wide the door to 
innumerable and frequently unmeritorious lawsuits.

In determining what is needed to state a cause of action 
under § 1981, it may be instructive for this Court to examine 
the decision of the court in S ch o o n fe ld  v. M a yo r and C ity  
Council, 399 F. Supp. 1068 (D. Md., 1975), when faced with 
a problem similar to the case at bar.

In Schoon feld , a white former city jail warden, Schoon­
feld, claimed he was discharged by his employers because 
he was white and because defendants wished to replace him 
with a black. Schoonfeld thereafter attempted to maintain 
an action under 42 U.S.C. §1985(3), a statute similar in 
purpose to 42 U.S.C. § 1981. In that case, the court con­
sidered the standards necessary for a w h ite  plaintiff to 
maintain an action. It noted that mere allegations of dis­
crimination are insufficient, and enumerated the complaint’s 
deficiencies:

“In the instant case the facts alleged do not show any 
class-based discrimination. Unlike A c tio n  v. Gannon, 
supra , there is no allegation of any ongoing discrimina­
tory activity, nor is there any allegation of a systematic 
pattern of discrimination . . .

“This is not a case of discharge of a white public 
official by an all-black board. . . .” Id . at 1086.

165



32

The factors isolated by the court as necessary to a com­
plaint of racial discrimination were lacking in Schoon fe ld  
and are lacking in the case of the Petitioners. They do not 
claim that the charge of misappropriation was in any sense 
a pretext by us in order to discharge and punish them 
for their status as white men. Rather, the only allegation is 
that a black was treated differently from themselves.

The Maryland District Court recognized that there was 
no merit in allowing a white to advance a claim based upon 
his dismissal by a basically white group of public officials, 
where the replacement was a white selected by racially 
neutral procedures. In order to avoid such frivolous claims, 
this Court should similarly recognize conclusory allegations 
are not enough and that specific facts to support an allega­
tion of discrimination are necessary to set forth a claim 
under § 1981.

This Court may establish different criteria for an action 
by a white person as opposed to a black under § 1981. If this 
Court wishes to extend § 1981, it should do so only insofar 
as any benefits of such extension outweigh the significant 
detriment to an employer’s affirmative action efforts as 
previously discussed in this Brief regarding Title VII. 
There is little reason for an extension of § 1981 to protect 
the white Petitioners in the circumstances of this case.

166



33

Conclusion
For the foregoing reasons, the decision of the Court of 

Appeals under review was correct. Accordingly, this Court 
should affirm that decision. If it is determined that white 
persons have standing to invoke 42 U.S.C. § 1981, we sug­
gest that this Court affirm the result reached in the court 
below on the ground that Petitioners failed to state a claim 
upon which relief could be granted.

Respectfully submitted,

R onald A. L ane 
S helley  J. V e n ic e  
C. George N iebank , J r .

80 East Jackson Boulevard 
Chicago, Illinois 60604 
(312) 427-4900
Attorneys for Respondent 
Santa Fe Trail 

Transportation Company
B en ja m in  R . P owel 
M cL eod, A lexander, P owel 

& Apf f e l , I nc .
808 Sealy & Smith Professional 

Building
200 University Boulevard
Galveston, Texas 77550

Of Cownsel 

February 2,1976

167





NO. 75-260

IN THE

jiuprane (Emtri #i %  Pmtpft
October Term, 1975

L. N. MCDONALD and RAYMOND L. LAIRD, 
P etitioners

v.
SANTA FE TRAIL TRANSPORTATION 

COMPANY ET AL., R esp o n d en ts

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

BRIEF OF RESPONDENT, LOCAL NO. 988, 
TEAMSTERS, FREIGHT, TANK LINE AND 

AUTOMOBILE INDUSTRY EMPLOYEES

Chris Dixie
James P. Wolf
Suite 401, 609 Fannin Street
Houston, Texas 77002
713/223-4444
A tto rn e y s  fo r  R esp o n d en t

169





SUBJECT INDEX
Page

QUESTIONS PRESENTED ..................................................  1
STATEMENT OF THE CASE ............................................  2

District Court Rulings ........................................................  3
Court of Appeals Rulings ...............................................   4

SUMMARY OF ARGUMENT ..............................................  6
ARGUMENT ....................     7

I. AN EMPLOYEE WHO IS GUILTY OF SERIOUS 
THEFT OF COMPANY PROPERTY ON THE JOB 
DOES NOT PRESENT A CLAIM UNDER TITLE 
VII BY OBJECTING TO HIS DISCHARGE ON 
THE GROUND THAT ANOTHER EMPLOYEE OF 
ANOTHER RACE WHO WAS EQUALLY CULP­
ABLE WAS NOT DISCHARGED.................................. 7

ARGUMENT ............................................................................  12
II. 42 U.S.C. § 1981 DOES NOT AFFORD TO WHITE 

PERSONS A CAUSE OF ACTION FOR ALLEGED 
FAILURE TO ACCORD EQUALITY WITH BLACK 
PERSONS............................................................................. 12

CONCLUSION ..........................................................................  40

LIST OF AUTHORITIES

CASES Page
Barrow v. Jackson, 346 U.S. 249, 2S9 (1953) ....................  39
Civil Rights Cases, 109 U.S. 3 ..............................................  14
DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (C.A. 2,

1975) ......................................................................................  39
Dred Scott, 19 How. 393 (1857) ..................................... 35
Emporium Capwell v. Western Addition Community Organi­

zation; NLRB v. Western Addition Community Organi­
zation, 95 S.Ct. 977 (1975) ................................................  9

Guerra v. Manchester Terminal, 350 F. Supp. 529 (S.D.
Tex. 1972) affd. on this point 498 F.2d 641 (C.A. 5,
1974) ......................................................................................  39

171



IT

Jones v. Alfred H. Mayer, 392 U.S. 409, 439, 441 (1968) 14
League of Academic Women v. Regents, 343 F. Supp. 636

(N.C. Cal. 1972) ........................     38
Louisiana v. United States, 380 U.S. 14S (1965) ................  15
McDonald Douglas Corp. v. Green, 411 U.S. 792 .. .6 , 8, 9, 10, 11,12 
NLRB v. Fansteel Metallurigical Corp., 306 U.S. 240 (1939) 11
San Diego Building Trades Council v. Garmon, 359 U.S.

236, 247-48 (1959) ..............................................................  9
Southern Steamship Co. v. N.L.R.B., 316 U.S. 31 (1942) 9
Sullivan v. Little Hunting Park, Inc., 396 U.S. 235, 237

1969) ......................................................................................  39,40
Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1,

19-20 (1971) ......................................................................  IS
U. S. v. Wong Kim Ark, 169 U.S. 649 (1898) ....................  35

CASES Page

UNITED STATES CONSTITUTION
Thirteenth Amendment ...........................................14, 24, 25, 26, 36, 37
Fourteenth Amendment ...................................................... 35, 36, 38, 39

UNITED STATES STATUTES
Title VII of the Civil Rights Act of 1964 ..........1, 5, 6, 7, 8, 9, 10,12
18 U.S.C. §659 ..........................    8
42 U.S.C. §1981 .................................................... 1,6,12,13,38,39,40
42 U.S.C. §1982 .......................................................................  39

TEXAS PENAL CODE
Article 12.34 .......... ............................................................... 3
Article 31.03 ..............................................................................  3

172



I l l

MISCELLANEOUS Page
32

71 Cong. Globe 183 ........ ............................... 33
16, 22

21
71 Cong. Globe 474 ......................................... . • •
71 Cong. Globe 475 ..................................................

........ 15,23, 24, 35 
23 
25
35
25
35
35

18, 19.
26

.................26, 27,30
27,28

28
28
29
17

30,31
1771 C arter  filohp 1143 ......... .....................

71 C a r ta  O l n h p  1 ?Q2 ........................................ 31
71 Cong. Globe 1679-1680 .......................
7 1  C a n a  f O n h p  17^R ..........................................

20
21,31

71 C a r ta  filnhp 1760 .................................... .......... .21 ,31,32
71 Cong. Globe 1777 ............................................ 34

173





IN THE

j§itprettt£ (ttmtri of %  JSfatps
O c t o b e r  T e r m , 1975

NO. 75-260

L. N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners

v.
SANTA FE TRAIL TRANSPORTATION 

COMPANY ET AL., Respondents

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

BRIEF OF RESPONDENT, LOCAL NO. 988, 
TEAMSTERS, FREIGHT, TANK LINE AND 

AUTOMOBILE INDUSTRY EMPLOYEES

QUESTIONS PRESENTED
1. Whether an employer’s dismissal of two white em­

ployees for serious theft of company property on the job 
without dismissing a similiarly charged black employee 
raises a claim under Title VII of the Civil Rights Act of 
1964 against their union for acquiescing therein.

2. Whether two white employees who were dismissed 
for theft of company property on the job have standing 
to sue under 42 U.S.C. §1981 because they were not 
accorded the same rights as a black employee who was 
similarly charged but not dismissed.

175



2

STATEMENT OF THE CASE
The District Court dismissed this case after more than 

two and one-half years of pretrial activity, including mo­
tions to dismiss, pretrial conferences, and discovery pro­
ceedings. During this period, the District Court filed three 
memorandum opinions, on January 4, 1974, May 2, 1974, 
and June 13, 1974, in which it interpreted Petitioners’ 
pleadings and contentions to be that Petitioners were 
“equally guilty” of theft of the employer’s property in 
comparison with a Negro employee who was not dis­
charged (Appendix to Petition, p. 36) and that

“[t]he pleadings of plaintiffs do not allege that they 
were falsely charged with misappropriating company 
property; the substance of the allegations is that 
plaintiffs take issue with the fact that they were dis­
charged for such conduct while a similarly charged 
Negro employee was not discharged”. Appendix to 
Petition, pp. 33 and 28.

The district Court was also advised by the parties that 
Petitioner McDonald’s discharge was . taken to arbitration 
by the Union where the discharge was upheld, although 
the Court properly declined to accord finality to the 
arbitration award for Title VII purposes. (Appendix to 
Petition, pp. 27 and 32; see also Petitioners’ Brief in the 
Court of Appeals, p. 4 )1

The posture of the case below does not, in this Re­
spondent’s view, accommodate the claim of Petitioners 
that they were not afforded an opportunity by the District

1. Petitioners’ Brief in the Court of Appeals states at page 4: 
“On October 2, 1970, L. N. McDonald filed a grievance with Local 
Union No. 988, and a hearing on the grievance was held before the 
Southern Area Multi-State Grievance Committee commencing at 
9:00 A.M., Monday, October 10, 1970, at the Ramada Inn, West 
Beach, Biloxi, Mississippi, Case No. 58.”

176



3

Court to offer evidence that they were innocent of the 
acusations. Petitioners did not by requesting leave to 
sharpen their pleadings or by any other means advise 
the District Court or the Court of Appeals that the 
gravamen of their claim was innocence or that the District 
Court misunderstood their posture.

In the view of this Respondent, therefore, this appeal 
comes to the Supreme Court as a case involving a claim 
by two white persons that they and a Negro employee 
were “charged” with theft of the employer’s property, that 
all three were guilty, but the employer imposed disparate 
discipline against the two white employees in comparison 
to the Negro employee involved in the affair.2 3 * * * *

Theft of company property of over $200 is a felony 
under the Texas Penal Code.8

As to this Union Respondent, the allegation was that 
it “acquiesced” in the “more severe disciplinary action 
against [plaintiffs] because of their race, Caucasian, than 
against their negro counterpart.” App. 38-39; 40.

District Court Rulings
In the Court’s Memorandum Opinion of January 4, 

1974 the Court said:

2. The theft charge involved 10 cases of anti-freeze which Peti­
tioner McDonald was accused of stealing from trailer 20438. Mc­
Donald stated in his grievance that a shipping clerk at “S.M.S.” 
told him to do what he like with “some anti-freeze over on trailer 
20438,” that he so informed Petitioner Laird, “my supervisor,” and 
that Laird told him “what to do with this anti-freeze.” See Appendix 
to Petition, pp. 50-51.

3. Texas Penal Code Article 31.03, Vernon’s Texas Codes
Annoted-Penal, provides that theft of property valued at $200 or
more is “a felony of the third degree” which is punishable by
confinement in the State penitentiary for not less than 2 nor more
than 10 years under Article 12.34 of the Penal Code.

177



4

“This Court is also concerned with whether the 
complaint states a claim upon which relief can be 
granted. Assuming, but not deciding, that the plain­
tiffs were discharged following their apprehension 
for the theft of their employer’s property, this Court 
questions the validity of any challenge to a discharge 
properly brought. See McDonnell Douglas Corp. v. 
Green, 411 U.S. 792, 36 L.Ed.2d 688, 93 S.Ct. 
1817 (1973). Assuming, arguendo, that the plaintiffs 
were discharged because they were white while an 
equally guilty Negro employee was retained because 
of his race, this Court still questions whether the 
plaintiffs have stated a claim. (This Court assumes 
for present purposes that the Negro employee had a 
similar work record and similar degree of culpability 
in the offense.) This point has received inadequate 
attention in the pleadings filed by the parties and 
has not been briefed. App. 94

Later, in the Memorandum Opinions of May 2, 1974 
and June 13, 1974 the Court said:

“Finally, the Court has reconsidered its Memo­
randum and Opinion of January 4, 1974, wherein 
it stated:

‘Assuming, but not deciding that the plaintiffs were 
discharged following their apprehension for the 
theft of their employer’s property, this Court ques­
tions the validity of any challenge to a discharge 
properly brought. See McDonnell Douglas Corp. 
v. Green, 411 U.S. 792, 36 L.Ed.2d 688, 678, 
93 S.Ct. 1817 (1973).’

“The pleadings of the plaintiffs do not allege that 
they were falsely charged with misappropriating 
company property; the substance of the allegations 
is that plaintiffs take issue with the fact that they 
were discharged for such conduct while a similarly

178



5

charged Negro employee was not discharged. Upon 
reconsideration, the Court concludes that the dis­
missal of white employees charged with misappro­
priating company property while not dismissing a 
similarly charged Negro employee does not raise a 
claim upon which Title VII relief may be granted. 
For these reasons,

“IT IS THE OPINION OF THIS COURT that 
this cause of action should be and hereby is dis­
missed with prejudice.” App. 107; App. 117

The District Court properly dismissed Petitioner Laird’s 
Title VII action against the union because Laird filed no 
charges against the union before the E.E.O.C. App. 114- 
115. (Laird was a foreman not covered by the labor 
contract.)

Court of Appeals Rulings
The Court of Appeals affirmed in these words:

“[2] We likewise agree with the district court’s 
conclusion that an employer’s dismissal of white 
employees charged with misappropriating company 
property while not dismissing a similarly charged 
black employee does not raise a claim upon which 
relief may be granted under Title VII, 42 U.S.C.A. 
§2000e et seq. There is no allegation that the plain­
tiffs were falsely charged. Disciplinary action for 
offenses not constituting crimes is not involved in 
this case. See McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 
(1973). Cf. NLRB v. Fansteel Metallurgical Corp., 
306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); 
Nix v. NLRB, 418 F.2d 1001, 1006 (5th Cir. 1969); 
AHI Machine Tool & Die, Inc. v. NLRB, 432 F.2d 
190 (6th Cir. 1970). App. 121-122

179



6

SUMMARY OF ARGUMENT

1. The courts below properly construed McDonald 
Douglas Corp. v. Green, 411 U.S. 792, to be inapplicable 
to punishment for a serious theft of substantial company 
property on the job. As a matter of public policy as well 
as common sense it should not be concluded absent clear 
evidence that Congress intended to grant to an employee 
who is established to be guilty of such serious theft the 
right to demand of a union or a company that the punish­
ment be so administered that the employer must discharge 
no one or every one involved in the theft episode. Such 
a rule would not advance the purposes of Title VII and 
would be counterproductive.

2. As to the claim under 42 U.S.C. § 1981 the statute 
does not apply to a claim by a white person that he be 
treated equally with a black person. Contrary to the 
analysis of the legislative history of the Civil Rights Act 
of 1866 submitted by Petitioners and their supporting 
amici curiae, the legislative history shows that Congress 
intended to legislate in favor of freedmen, and in the 
process for other non-whites, to secure to them certain 
rights to whatever extent those rights were “enjoyed by 
white citizens.” There is no constitutional problem. It was 
not incumbent upon Congress to legislate on behalf of 
white persons in the process of implementing the Thir­
teenth Amendment. A remedial statute may aim at the 
evil to be corrected.

180



7

ARGUMENT

I.

AN EMPLOYEE WHO IS GUILTY OF SERIOUS 
THEFT OF COMPANY PROPERTY ON THE JOB 
DOES NOT PRESENT A CLAIM UNDER TITLE 
VII BY OBJECTING TO HIS DISCHARGE ON 
THE GROUND THAT ANOTHER EMPLOYEE OF 
ANOTHER RACE WHO WAS EQUALLY CULPABLE 
WAS NOT DISCHARGED.

There is no doubt that white employees under Title VII 
have rights identical to those of black employees to be 
free of discrimination. The statute is couched in terms of 
hiring, discharging, or otherwise discriminating against 
any individual because of his race. No one contended 
otherwise and neither court below was confused on this 
point. Nevertheless, it is entirely appropriate for this 
Court to articulate the identical right of access to the 
statute which is available to white citizens. Union Re­
spondent is in accord with the discussion of this subject 
in Petitioners’ Brief pp. 8-16.

Respondent Union requests affirmance of the judgment 
under Title VII on the limited grounds stated below. 
This limited position relates to the claimed right of an 
employee who is guilty of serious theft of company prop­
erty on the job to receive only that punishment which 
is equal to that of an employee of another race. More 
specifically, this respondent requests affirmance on the 
ground that a union’s duty under Title VII does not obli­
gate it to achieve or demand that an employer either 
discharge no employee or discharge all employees similarly 
situated.

181



8

The District Judge, Carl O. Bue, Jr., one of the best 
in the country, dismissed this case without motion or 
pleading by either defendant related to this point. We 
suggest that the District Court’s reaction to the case was 
entirely appropriate.

Respondent suggests that serious crime in the form of 
substantial theft is an unworthy predicate for compulsory 
egalitarian punishment under Title VII.

A union is not in position to insist that an employer 
retain in its employ every person found to be guilty of 
serious theft especially in the transportation industry 
where employees must be entrusted with possession of or 
access to goods in transit. (Theft of interstate shipments 
by common carrier are punishable by fine up to $5,000 
or imprisonment up to 10 years if the value of the goods 
exceeds $100. 18 U.S.C. §659). Rather, a union’s prin­
cipal legitimate function is to establish innocence or lack 
of proof or to seek mitigation of punishment. But, also, 
a union is not in the business of causing employees to be 
fired. If in this and similar cases a union is given the duty 
to demand that the employer discharge all or none in 
obedience to Title VII the inevitable result will be to 
cause the employer to discharge everyone arguably in 
similar circumstances in order to avoid the burden of 
Title VII litigation or financial exposure under it.

The purpose of Title VII is “to assure equality of job 
opportunities and to eliminate those practices and devices 
which have fostered racially stratified job environments 
to the disadvantage of minority citizens”. McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). 
But discipline for established serious theft of an employer’s 
property is not a proper occasion for the offending em­

182



9

ployee to demand absolute equality in punishment. For 
public policy reasons, equal punishment for serious theft 
on the job should not be held a requirement of Title VII 
unless the improbable is positively clear, namely, that 
Congress intended to confer equal rights upon all races 
to participate in stealing. Selective punishment of an 
employee for a particular offense of serious theft is not 
really an “artificial, arbitrary or unreasonable barrier to 
employment” at least if no pattern of employer discrimi­
nation is present.

Title VII like any other statute should be applied with 
due regard to other public policy. Thus, the statutory 
right under §704(a) of Title VII to be free of reprisal 
for efforts to oppose unlawful discrimination must yield 
to the orderly bargaining processes of the National Labor 
Relations Act. Emporium Capwell v. Western Addition 
Community Organization; NLRB v. Western Addition 
Community Organization, 95 S.Ct. 977 (1975).

In other areas: the normal right to strike under the 
National Labor Relations Act must yield in the case of 
seamen aboard ship to the law of mutiny. Southern Steam­
ship Co. v. N.L.R.B., 316 U.S. 31 (1942). The normal 
operation of the preemption doctrine under the National 
Labor Relations Act must yield, for policy reasons, to 
the rights of states to prevent or redress violence or 
breaches of the peace. San Diego Building Trades Council 
v. Garmon, 359 U.S. 236, 247-48 (1959).

Undoubtedly, McDonnel Douglas Corp. v. Green, supra, 
establishes that even unlawful conduct such as a “stall in” 
—a misdemeanor—may not be used by an employer as 
a discriminatory pretext to refuse rehire to a minority 
employee, but a main thrust of the case was to make clear

183



10

that such unlawful activity against an employer is adequate 
basis for refusal to rehire:

“Nothing in Title VII compels an employer to ab­
solve and rehire one who has engaged in . . . de­
liberate unlawful activity against it.” 401 U.S. at 803

The present case is a long step further removed from 
Title VII because an employee’s crime of serious theft 
against an employer is totally indefensible and inconsistent 
with continuation of employment absent employer consent. 
The “stall-in” in McDonnell, while illegal, did not directly 
relate to fitness for employment and was an excess in, 
but closely related to, protected protest activity. There 
is a marked difference in the ethics and morality of the 
“stall in” there compared to the serious theft on the job 
here. McDonnell is primarily an exposition of the order 
and allocation of proof in a private, non-class action case. 
The opinion specifies in footnote 13 that its specifications 
are not necessarily applicable in every respect to differing 
factual situations.

The portion of the opinion which seems to the Re­
spondent to be inapplicable to this case is the following:

“Petitioner may justifiably refuse to rehire one who 
has engaged in unlawful disruptive acts, but only if 
this criterion is applied alike to members of all races.” 
411 U.S. 804

If this passage applies to a single case of serious theft 
so that an employer must discharge either no one or 
everyone involved, it imposes a burden on the employer 
which is irrelevant to Title VII as well as an irrational 
duty upon the union. The union, instead of directing

184



11

its efforts to do the best it properly can do for all em­
ployees is put to it to risk of forcing the employer to 
refuse leniency for anyone. As in this case, the result 
would truly turn the blade backward. It bears repeating 
that employers would be induced to apply maximum 
punishment to everyone arguably involved in an episode 
of theft in order to reach some employee who, it feels, 
must be given maximum punishment.

Evidently, the Court of Appeals felt that NLRB v. 
Fansteel Metallurigcal Corp., 306 U.S. 240 (1939) which 
was seemingly followed by the Court in McDonnell, supra, 
pointed in a different direction involving as it did serious 
misconduct facts. In Fansteel, some, but not all, of the 
sit-down strikers were discharged while the others were 
taken back into employment. 306 U.S. at 249. The Court 
set aside an NLRB order directing reinstatement of the 
discharged sit-down strikers, saying:

“The important point is that respondent stood 
absolved by the conduct of those engaged in the 
‘sit-down’ from any duty to reemploy them, but 
respondent was nevertheless free to consider the 
exigencies of its business and to offer reemployment 
if it chose. In so doing it was simply exercising its 
normal right to select its employees.” 306 U.S. 259

The NLRB in Fansteel had ruled that the employer’s 
argument that sit-down strikers could not be reinstated 
by the Board was undermined by the fact of the em­
ployer’s acceptance of many sit-down strikers for return 
to work:

“Furthermore, in view of the fact that the respondent 
did take back a large number of the sit-down strikers,

185



12

we find it difficult to believe that respondent’s objec­
tion on that score is put forward in good faith.” 
5 N.L.R.B. 930, 2 L.R.R.M. 85, 91.

In conclusion, Respondent union presents a very limited 
contention in support of the judgment below. It is limited 
to the isolated case of serious theft of company property 
on the job, a situation which fortunately does not arise 
with sufficient frequency to disturb seriously the operation 
of Title VII. The main concern of Respondent is the 
exposure to litigation or liability which it may encounter 
under Title VII when it fails to achieve absolute equality 
of treatment in this type of case. It is commonplace for 
uions to compromise or abandon grievances of this par­
ticular kind on terms which may differ for various em­
ployees. This is true especially where it is obvious that 
an arbitrator will have very little appetite to reinstate 
perpetrators of serious theft of company property on the 
job. If a union can settle such a hard case on terms less 
than discharge should it be liable because it “acquiesced” 
in another employee’s discharge? The quoted passage from 
McDonnell, supra, unfortunately suggests an affirmative 
answer. For this reason we submit that the passage is not 
applicable to this case.

ARGUMENT

II.
42 U.S.C. § 1981 DOES NOT AFFORD TO WHITE 

PERSONS A CAUSE OF ACTION FOR ALLEGED 
FAILURE TO ACCORD EQUALITY WITH BLACK 
PERSONS.

Petitioners and their supporting amici curiae have in­
vited the Court to perform plastic surgery upon the statute.

186



13

Frankly, this Respondent and its undersigned counsel 
have no serious objections. Nevertheless, in the discharge 
of our duty to the Court we have reviewed the legislative 
history of the Civil Rights Act of 1866, predecessor of 
§1981, and have collated relevant items of legislative 
history which we believe satisfactorily explain the matters 
relied upon by all adverse parties and which overcome 
their effect. We submit these for the consideration of the 
Supreme Court as a part of our professional responsibility 
to present concrete adversary considerations. We have also 
come to the firm conclusion that the items presented in 
support of Petitioner’s position do not justify the emascula­
tion of the statute which is requested.

The legislative history of the 1866 Act demonstrates, 
we believe, that the Reconstruction Congress of 1866 
intended to achieve equality for freedmen by securing to 
them the same rights as are enjoyed by white citizens 
and by protecting them against pains, penalties or punish­
ments greater than those prescribed for the punishment 
of white citizens. In the process Congress also provided 
parity of other non-white citizens with white citizens. 
The standard against which the rights of non-whites were 
to be measured was the rights of white citizens. The net 
result was equality for all, as Congress desired.

The few statements by speakers referred to by Peti­
tioners and their supporters to the effect that the bill pro­
vided for the equal rights of all citizens are consistent with 
the above analysis. On inspection, they are found to be 
the products of a syllogism that ran like this: The bill 
makes citizens of freedmen and others who are not citizens; 
the bill provides that the new citizens will have the same 
rights and immunities as are enjoyed by whites and pro­
vides legal sanctions to protect freedmen in these newly

187



14

bestowed rights; therefore, the bill provides equality of 
rights for all citizens. The syllogism is sound but it is also 
consistent with all the words of the Act as finally passed 
and with Respondent’s view that the Act confers action­
able rights only upon non-whites and not upon whites.

First, it should be noted that there is no constitutional 
problem. The Thirteenth Amendment, in Section 1, pro 
vides that neither slavery nor involuntary servitute shall 
exist within this nation. Section 2 provides:

“Congress shall have power to enforce this article
by appropriate legislation.”

In the Civil Rights Cases, 109 U.S. 3, majority and minor­
ity opinions agreed that Section 2 clothed Congress with 
the power to pass all laws necessary and proper for abol­
ishing “all badges and incidents” of slavery and to eradi­
cate “the last vestiges . . .  of a society half slave and 
half free.” Jones v. Alfred H. Mayer, 392 U.S. 409, 439, 
441 (1968).

It was not incumbent upon Congress to legislate on be 
half of the dominant white majority as a condition of ad­
dresing itself to the vestigial legal and social “burdens 
and disabilities” of slavery which persisted. The Thir­
teenth Amendment had converted the slaves into freedmen, 
but freedmen had been denied the practical ralization of 
freedom and their legal position had been rendered am­
biguous by the recalcitrance of the white majority in the 
South. It was within the power of Congress to select the 
specific means of relieving the freedmen of the burdens, 
disabilities and vestiges of slavery and to assist them to 
attain and retain equality with other Americans. Id. 392 
U.S. at 440, 443-44.

188



15

Remedies which utilize racial classification for the cure 
of de jure discrimination are appropriate if they are 
rationally related to the evils to be corrected. Swann v. 
Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 19-20
(1971); Louisiana v. United States, 380 U.S. 145 (1965).

At least so long as the adopted solution resulted in 
equality for whites and non-whites it was not constitution­
ally infirm or suspect because it did not also also provide 
a converse cause of action for white citizens.

Section 1 of Senate Bill 61, as introduced was as fol­
lows:

“There shall be no discrimination in civil rights 
or immunities among the inhabitants of any State or 
Territory of the United States on account of race, 
color, or previous condition of slavery; but the in­
habitants of every race and color, without regard to 
any previous condition of slavery or involuntary ser 
vitude, except as a punishment for crime whereof 
the party shall have been duly convicted, shall have 
the same right to make and enforce contracts, to sue, 
be parties, and give evidence, to inherit, purchase, 
lease, sell, hold and convey real and personal prop­
erty, and to full and equal benefit of all laws and 
proceedings for the security of person and property, 
and shall be subject to like punishment, pains, and 
penalties, and to none other, any law, statute, ordin­
ance, regulation, or custom to tie  contrary notwith­
standing.” 71 Cong. Globe 474; see also id. at 211.

The original Section 1 did not contain what later be­
came its first clause which declared citizenship in all na­
tive born Americans. It also did not contain the “same 
right” for every inhabitant “as is enjoyed by white citi­
zens.” However, Section 2, introduced at the same time

189



1 6

did establish the standard of white citizens’ rights. It pro­
vided:

“Any person who under cover of any law, statute, 
ordinance, regulation, or custom, shall subject or 
cause to be subjected any inhabitant of any State 
or Territory to the deprivation of any right secured 
or protected by the Act, or to different punish­
ment, pains, or penalties on account of such person 
having at any time been held in a condition of sla­
very or involuntary servitute, except as a punishment 
from crime whereof the party shall have been duly 
convicted, or by reason of his color or race, than is 
prescribed for the punishment of white persons, is 
to be deemed guilty of a misdemeanor, and on con­
viction to be punished by a fine not exceeding $1,000, 
or imprisonment not exceeding one year, or both, in 
the discretion of the court. (71 Cong. Globe 211)

It is to be noted that Section 2, inartfully drawn, provided 
criminal penalty for the deprivation of any right secured 
or protected by the act by any person under color of law, 
etc., “on account of [the victim’s] having at any time been 
held in condition of slavery or involuntary servitude” or 
“by reason of his color or race.” It also punished criminally 
the imposition of different punishment, pain or penalty 
“than is prescribed for white persons.” From the very be 
ginning, therefore, the bill established a standard equal to 
the legal privileges of white persons at least in some meas­
ure. An incongruity was present, however, that Section 2 
seemed not to adopt the standard of white citizens’ rights 
in its first phase (/.<?., interference with the bestowed af 
firmative rights of all inhabitants) but it did do so in 
regulating punishments, pains and penalties. This dispar­
ity was corrected in the House which inserted in Section 1

190



17

the phrase “as is enjoyed by white citizens.” 71 Cong. 
Globe 1115. This particular change was accepted by the 
Senate without discussion beyond the exchange between 
Senators Van Winkle and Trumbull in which the latter 
stated that the House thought the change was of some im­
portance and that in the opinion of the Senate Judiciary 
Committee the change did not alter the meaning of the 
bill. (71 Cong. Globe 1143) But the change did serve to 
eliminate the incongruity between Sections 1 and 2. As 
changed, both sections adopted the standard of the legal 
rights and privileges of white citizens in bestowing and 
protecting affirmative rights upon all citizens and likewise 
in regulating the punishments, pains and penalties which 
may be imposed. In this respect, Sections 1 and 2 were 
made symmetrical.

All of the amici curiae as well as Petitioners attach 
critical importance to the cited, rather casual exchange be­
tween Senators Van Winkle and Trumbull as a means of 
obliterating from the statute the vital phrase “as is enjoyed 
by white citizens” but the colloque is more reasonably in­
terpreted the other way. The House did attach “some im­
portance” to its inserted language according to Senator 
Trumbull and Sections 1 and 2 were synchronized thereby. 
Since the standard of white citizens’ rights and privileges 
had been a part of the Senate’s Section 2 from the begin­
ning, the statement that the phrase did not alter the mean­
ing of the bill can be just as reasonably interpreted to 
mean that the standard had been understood all along. We 
will show that several members of Congress did so under­
stand it.

Likewise, a fragile reed are the remarks of Senator 
Trumbull on February 2, 1866, the date of first passage

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18

in the Senate (71 Cong. Globe 599), to the effect that the 
bill applies to and protects white men as well as black 
men and is not for the benefits of black men exclusively. 
Here again all briefs supporting Petitioners’ position rely 
heavily upon this item.

We find, however, that these remarks were a part of 
extemporaneous, impassioned rebuttal at the 11th hour 
provoked by an equally histrionic performance by Senator 
Davis in the last hours of debate. Senator Davis had said 
in part:

“Yes, sir, here is a law almost eo nomine, made 
unquestionably for the benefit of the free negro and 
in violation of the Constitution, and the marshals 
are required, under the penalty of $1,000 for every 
instance of defalcation, to execute the process under 
this void and unconstitutional law, and if they fail 
to do so the commissioner is authorized by this 
monstrous and abominable bill to summon every by­
stander to aid the marshal in the execution of this 
unconstitutional law, to summon the posse comitatus 
of the county in which the process is to be executed 
to aid in it, and, if necessary, to summon the entire 
Army and Navy of the United States to execute such 
void process.

“When, sir, was such partiality ever shown for the 
white man, the sovereign, citizen, and lord of this 
land—him who made the Government, who won its 
independence, who established, as he thought, the 
deep and firm foundations of a free Government in 
a written Constitution, and whose mission it is to 
uphold and to defend that Government for himself 
and for his latest posterity? When was such partial, 
unjust, and iniquitous legislation devised for the 
white man who achieved all this good for his country

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t9

and for the world? Never, never. But the negro and 
his insane friends bring up now for the first time 
such monstrous legislation.” (71 Cong. Globe 599)

Beyond doubt both gentlemen were agitated and 
plunged into exaggeration in discharging these oratorical 
fireworks at the hour of final passage by the Senate on 
February 2, 1866. But earlier, in formal presentations 
Senator Trumbull and others, proponents and opponents, 
had stated and repeated the theme many times that the 
bill achieved equality by elevating freedmen to the position 
of white citizens. So far as we can determine, no one 
said or implied that the bill conferred rights of action 
upon white citizens.

Indeed, these oratorical fireworks, discharged before 
the House injected the phrase “as is enjoyed by white 
citizens” should be compared to Senator Trumbull’s sub­
sequent formal reply to President Johnson’s veto message.

President Johnson’s veto message was unambiguous in 
attributing to both Section 1 and Section 2 the creation 
of rights for new citizens, not white citizens, and the 
provision of special protection for the former, not the 
latter:

“The first section of the bill also contains an 
enumeration of the rights to be enjoyed by these 
classes, so made citizens, ‘in every State and Territory 
in the United States.’ These rights are, ‘To make and 
enforce contracts, to sue, be parties, and give evi­
dence; to inherit, purchase, lease, sell, hold, and 
convey real and personal property,’ and to have ‘full 
and equal benefit of all laws and proceedings for 
the security of person and property as is enjoyed 
by white citizens.’ So, too, they are made subject to 
the same punishment, pains, and penalties in common

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2 0

with white citizens, and to none others. Thus a 
perfect equality of the white and black races is at­
tempted to be fixed by Federal law, in every State 
of the Union, over the vast field of State jurisdiction 
covered by these enumerated rights. In no one of 
these can any State ever exercise any power of dis­
crimination between the different races.

 ̂ jfc

“The object of the second section of the bill is to 
afford discriminating protection to colored persons 
in the full enjoyment of all the rights secured to 
them by the preceding section.” (71 Cong. Globe 
1679-1680).

President Johnson objected that the bill enumerated the 
rights of “these classes—so made citizens” to be the same 
as those “enjoyed by white citizens,” thus attempting to 
fix “perfect equality” by federal law. As to Section 2, 
he complained of the discriminating protection to colored 
persons.” In reply, Senator Trumbull demurred. He dis­
cussed Section 2 thus:

“Can human ingenuity point out wherein that 
section discriminates in favor of colored persons? 
It says, in effect, that no one shall subject a colored 
person to a different punishment than that inflicted 
on a white person for the same offense. Does that 
discriminate in favor of the colored person? Why, sir, 
the very object and effect of the section is to prevent 
discrimination, and language, it seems to me, could 
not more plainly express that object and effect. It 
may be said that it is for the benefit of the black man 
because he is now in some instances discriminated 
against by State laws; but that is the case with all 
remedial statutes. They are for the relief of the 
persons who need the relief, not for the relief of 
those who have the right already; and when those

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21

needing the relief obtain it, they stand upon the 
precise footing of those who do not need the benefit 
of the law.” (71 Cong. Globe 1758).

Further in reply, Senator Trumbull relied upon the 
phrase “as is enjoyed by white persons”:

“ ‘The details of the bill,’ says the President, ‘estab­
lish for the security of the colored race safeguards 
which go infinitely beyond any that the General Gov­
ernment has ever provided for the white race.’

“With what truth this can be said of a bill which 
declares that the civil rights and the punishment of 
all races, including, of course, the colored, shall be 
the same as those ‘of white persons,’ let an intelligent 
public judge.” (71 Cong. Globe 1760).

Respondent suggests that these formal pronouncements of 
Senator Trumbull after the bill was in final form are more 
reliable than the extemporaneous item relied upon by 
Petitioners and their supporters.

The bill also authorized the President of the United 
States to employ the army or navy to prevent violations.

“And the President of the United States, or such 
person as he may empower for that purpose, is to 
have authority to employ such part of the land or 
naval forces of the United States, or of the militia*, 
as shall be necessary, to prevent the violation and 
enforce the due execution of the act.” (71 Cong. 
Globe 212)

Senator Trumbull explained these extraordinary provisions 
as necessary to the effectuation of Section 1, but as we 
know, Section 2 and the other provisions related expressly

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2 2

or impliedly only to oppression of freedmen by white 
persons.

Returning to the original form of the bill, we point out 
that the bill as introduced also provided a right of removal 
to federal court for any person or officer sued or prose­
cuted in state court on account of acts committed under 
its authority. (71 Cong. Globe 211):

“and if any suit or prosecution, civil or criminal, 
has been or shall be commenced in any State court 
against any such person, or against any officer, civil 
or military, or other person, for any arrest or im­
prisonment, trespasses, or wrongs done or committed, 
by virtue or under color of authority derived from 
this act, or the act to ‘enlarge the powers of the 
Freedmen’s Bureau, such defendant is to have the 
right to remove such cause for trial to the proper 
district or circuit court in the manner prescribed by1 
the ‘Act relating to habeas corpus and regulating 
judicial proceedings in certain cases,’ approved March 
3, 1863.” (71 Cong. Globe 211)

Senator Trumbull’s opening and formal remarks on 
January 29th, immediately after presenting the amendment 
to declare native born persons of African descent to be 
“citizens of the United States,” stated the purpose of the 
bill:

“When the constitutional amendment was adopted 
and slavery abolished, all these statutes became null 
and void, because they were all passed in aid of 
slavery, for the purpose of maintaining and support­
ing it. Since the abolition of slavery, the Legislatures 
which have assembled in the insurrectionary States 
have passed laws relating to the freedmen, and in 
nearly all the States they have discriminated against 
them. They deny them certain rights, subject them

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23

to severe penalties, and still impose upon them the 
very restrictions which were imposed upon them in 
consequence of the existence of slavery, and before 
it was abolished. The purpose of the bill under con­
sideration is to destroy all these discriminations, and 
to carry into effect the constitutional amendment. 
(71 Cong. Globe 474)

Thus, the purpose of the bill was to protect freedmen from 
the oppressions of their white oppressors.

Section 2 was described by Senator Trumbull as a pro­
tection for freedmen only:

“This is the valuable section of the bill so far as 
protecting the rights of freedmen is concerned. That 
they are entitled to be free we know. Being entitled 
to be free under the Constitution, that we have a right 
to enact such legislation as will make them free, 
we believe; and that can only be done by punishing 
those who undertake to deny them their freedom. 
When it comes to be understood in all parts of the 
United States that any person who shall deprive 
another of any right or subject him to any punishment 
in consequence of his color or race will expose him­
self to fine and imprisonment, I think such acts will 
soon cease.” (71 Cong. Globe 475). (Emphasis 
added).

The last sentence of this passage speaks generally of 
equality for “any person” but the context as well as the 
wording of Section 2 as passed confines the sanctions of 
Section 2 to those who deprive freedmen of their rights 
under the bill.

After reading Section 1, Senator Trumbull declared 
the following relationship between it and the other sec­
tions:

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24

“This section is the basis of the whole bill. The 
other provisions of the bill contain the necessary 
machinery to give effect to what are declared to be 
the rights of all persons in the first section, and the 
question will arise, has Congress authority to pass 
such a bill? Has Congress authority to give practical 
effect to the great declaration that slavery shall not 
exist in the United States? If it has not, then nothing 
has been accomplished by the adoption of the con­
stitutional amendment. In my judgment, Congress 
has this authority.” (71 Cong. Globe 474).

The “other provisions of the bill” were designed to punish 
or overcome white persons’ opposition to the implementa­
tion of freedmen’s equal rights established by the bill. 
There was no provision in the Act as passed for any 
vindication of the rights of white persons in relation to 
those of other persons.

Senator Howard spelled out the proponents’ logic that 
the Thirteenth Amendment made Negroes free and thus 
entitled them to the rights and the attributes of freedom 
according to universal understanding of the American 
people. The bill, he said, was designed to secure to the 
freedmen the ordinary rights of other freemen, thus:

“The once slave is no longer a slave; he has be­
come, by means of emancipation, a free man. If 
such be the case, then in all common sense is he not 
entitled to those rights which we concede to a man 
who is free?

“Mr. President, I do not understand the bill which 
is now before us to contemplate anything else but 
this, that in respect to all civil rights—and those are 
some of the civil rights which I have just enumerated 
—there is to be hereafter no distinction between the 
white race and the black race. It is to secure to these

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25

men whom we have made free the ordinary rights 
of a freeman and nothing else.” (71 Cong. Globe 
504).

This discussion by Senator Howard repeats the syllogism.

Senator Davis, a principal opponent, summarized Sec­
tions land 2 of the bill thus:

“The amendment now before the Senate proposes 
to declare all the negroes in the United States citizens 
of the United States. The honorable Senator from 
Illinois plays for three pockets in this bill. The first 
is, the bill itself, and the first and second sections, 
essentially, upon which he relies to confer upon the 
free negroes all the civil rights that under our Gov­
ernment appertain and belong to white citizens.” (71 
Cong. Globe 523)

No one disputed Davis’ statement that that bill merely 
conferred upon Negroes the rights that “appertain and be 
long to white citizens” or claimed that it also conferred 
upon white persons the rights which belonged to blacks.

Senator Guthrie, an opponent, stated that the Thir­
teenth Amendment had already put Africans on the same 
footing as whites in relation to civil rights and he argued 
that the bill did do, and could do, no more:

“My doctrine is that slavery exists no longer in 
this country; that it is impossible to exist in the face 
of that provision; and with slavery fell the laws of 
all the States providing for slavery—every one of 
them. I do not see what benefit can arise from re­
pealing them by this bill, because if they are not re­
pealed by the Constitution as amended, this bill could 
not repeal them. I hope that all the States in which 
slavery formerly existed will accept that constitu­

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26

tional provision in good faith. I myself accept it in 
good faith. Believing that all the laws authorizing 
slavery have fallen, I have advised the people of 
Kentucky, and I would advise all the States, to put 
these Africans upon the same footing that the whites 
are in relation to civil rights. They have all the rights 
that were formerly accorded to the free colored popu­
lation in all the States just as fully this day as they 
will have after this bill has passed, and they will con­
tinue to have them.” (71 Cong. Globe 600).

No one would argue that the Thirteenth Amendment con­
ferred rights upon whites.

Senator Guthrie thus interpreted the bill’s coverage:

“Now what is the result of this bill? It enforces 
through its own officers and through its own agents a 
prosecution of the citizens who infract it, or commit 
what they suppose is an infraction of it, in favor of 
the black population and in favor of the black popu­
lation only; taking it for granted throughout that the 
wrong is on the side of the white man alone; making 
no provision for prosecuting a black man for any 
crime that he may commit against a white man.

Hs ^  H*

“The time will not always be that the citizens will 
be content that the State governments should be in­
terfered with, and that there should be in each State 
two sets of police officers, one to punish those who 
commit what they presume to be offenses against the 
Africans, and another to punish the African for his 
crimes under the State laws, and that punishment 
should be made the pretense of prosecuting the white 
man in your courts. The thing will not work; it ought 
not to work; and it never should have been intro­
duced here. It is not necessary to secure the freedom 
of the African.” (71 Cong. Globe 601).

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27

The President’s authority to utilize the armed forces 
to prevent violations of the bill was understood thus by 
Senator Hendricks:

“The denial of equality to the colored people. 
Some man disputes the proposition; some judge pro 
poses in his adjudication not to recognize the civil 
equality of the colored people. Now the military may 
be called in to prevent the violation of this law.” (71 
Cong. Globe 601-602).

Senator Lane of Indiana, a proponent of the bill, an­
swered Senator Guthrie with the argument that the admit­
tedly special enumeration and protection of freedmen were 
necessary because of their special needs:

“What are the objects sought to be accomplished 
by this bill? That these freedmen shall be secured in 
the possession of all the rights, privileges, and im­
munities of freemen; in other words, that we shall 
give effect to the proclamation of emancipation and 
to the constitutional amendment. How else, I ask 
you, can we give them effect than by doing away with 
the slave codes of the respective States where slavery 
was lately tolerated? One of the distinguished Sen­
ators from Kentucky [Mr. Guthrie] says that all these 
slave laws have fallen with the emancipation of the 
slave. That, I doubt not, is true, and by a court 
honestly constituted of able and upright lawyers, that 
exposition of the constitutional amendment would ob­
tain.

“But why do we legislate upon this subject now? 
Simply because we fear and have reason to fear that 
the emancipated slaves would not have their rights 
in the courts of the slave States. The State courts 
already have jurisdiction of every single question 
that we propose to give the courts of the United

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28

States. Why then the necessity of passing the law? 
Simply because we fear the execution of these laws 
if left to the State courts? That is the necessity for 
this provision.” (71 Cong. Globe 602)

$ Jfc ifc

“I think, then, that the provisions of this bill ad­
mirably calculated to secure to these colored per­
sons their rights under the constitutional amendment, 
and I think the provision contained in the last sec­
tion of the bill more important than any other.” (71 
Cong. Globe 603)

Senator Wilson, a proponent of the bill, stated its pur­
pose to be the security of “new born rights” of freedmen:

“By the will of the nation freedom and free insti­
tutions for all chains and fetters for none, are for­
ever incorporated in the fundamental law of regen­
erated and united America. Slave codes and auction 
blocks, chains and fetters and bloodhounds are things 
of the past, and the chattel stands forth a man with 
the rights and powers of the freemen. For the better 
security of these newborn civil rights we are now 
about to pass the greatest and the grandest act in 
this series of acts that have enancipated a race and 
disenthralled a nation.” (71 Cong. Globe 603).

Senator Cowan, an opponent, interpreted the bill thus:

“here is an act of Congress which declares that, 
as to all civil rights and immunities, the negro is to 
be put upon precisely the same footing as the white 
man.” (71 Cong. Globe 604).

In further reply to Senator Guthrie, Senator Trumbull 
explained that Section 1 of the bill provided no more than 
the same rights to the black population which were enjoyed

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2 9

by the white population and Section 2 would secure 
Negroes in their rights:

“He says that when slavery was abolished the slave 
codes in connection with it were abolished, and that 
he will advise the people of Kentucky to extend the 
same civil rights to the black population that the 
white population have. He believes that they are 
entitled to them. Now, sir, that is all that is provided 
for by the first section of this bill; he then can have 
no objection to the first section of the bill, for it 
simply provides that all the inhabitants of the United 
States shall be entitled to the same civil rights.”

* * * *

“The second section of this bill merely punishes 
persons who violate what it is admitted they ought 
not to violate. It does seem to me that there can be 
no objection to the passage of such a law by Con­
gress on the part of any one who admits that negroes 
are now entitled to the same rights as white people; 
and not only that there can be no objection to it 
but that there is a positive duty upon us to pass such 
a law if we find discrimination still adhered to in 
the States where slavery has recently existed.” (71 
Cong. Globe 605).

Senator Hendricks interpreted the thrust of Section 1 
and 2 to be recognition of the rights of blacks to be equal 
to those of whites:

“This bill is a wasp; its sting is in its tail. Sir, what 
is the bill? It provides, in the first place, that the 
civil rights of all men, without regard to color, shall 
be equal; and, in the second place, that if any man 
shall violate that principle by his conduct, he may 
be responsible to the court; that he may be prosecuted 
criminally and punished for the crime, or be sued in

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30

a civil action and damages recovered by the party 
wronged. Is not that broad enough? Do Senators 
want to go further than this? To recognize the civil 
rights of the colored people as equal to the civil rights 
of the white people, I understand to be as far as 
Senators desire to go; in the language of the Senator 
from Massachusetts [Mr. Sumner] to place all men 
upon an equality before the law; and that is proposed 
in regard to their civil rights.” (71 Cong. Globe 601).

All briefs on Petitioners’ side rely heavily on Congress­
man Wilson’s statement to the House (71 Cong. Globe 
1118) that the government must protect citizens “from 
the highest to the lowest, from the whitest to the blackest. 
. . .” The next following comments of Mr. Wilson, how­
ever, made clear that the provisions of the bill were in­
tended to deal to the oppression of blacks by whites:

“It will be observed that the entire structure of 
this bill rests on the discrimination relative to civil 
rights and immunities made by the States on ‘account 
of race, color, or previous condition of slavery.’ 
That these things should not be is no answer to the 
fact of their existence. That the result of the recent 
war, and the enactment of the measures to which 
the events of the war naturally led us, have intensified 
the hate of the controlling class in the insurgent States 
toward our colored citizens is a fact against which 
we can neither shut our ears nor close our eyes. 
Laws barbaric and treatment inhuman are the re­
wards meted out by our white enemies to our colored 
friends. We should put a stop to this at once and 
forever. And yet I would not do this in a way which 
would deprive a white man of a single right to which 
he is entitled. I would merely enforce justice for all 
men; and this is lawful, it is right, and it is our 
bounden duty.

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31

“In order to accomplish this end it is necessary to 
fortify the declaratory portions of this bill with such 
sanctions as will render it effective. The first of these 
is found in the second section, . (71 Cong.
Globe 1118)

Congressman Shellabarger after reading to the House 
Section 1 as amended by the insertion of the phrase “as 
is enjoyed by white citizens” explained:

“But, sir, on yesterday, the honorable gentleman 
from Pennsylvania [Mr. Broomall]—than whom there 
is no more candid or just gentleman in the House— 
treated this measure as though it was a bill simply 
for the protection of freedmen in their rights for the 
time being in the late insurrectionary States. That 
is a great mistake. It applies to every State in the 
Union, to States which have never been in insurrec­
tion, and is to be enforced in every State of the 
Union, not only for the present but for all future 
time, or until it shall be repealed by some subsequent 
act of Congress. It does not expire by virtue of its 
own limitation; it is intended to be permanent,” (71 
Cong. Globe 1292).

Thus, the bill was for the protection of freedmen and 
was to be permanent.

Reference has been made at pages 20-21, supra, to the 
post-veto formal rebuttal by Senator Trumbull to the 
president’s veto message (71 Cong. Globe 1758; 1760). 
There Senator Trumbull admitted that Section 2 was for 
the benefit of black persons only and retorted: “That is 
the case with all remedial statutes. They are for the relief 
of persons who need the relief, not for the relief of those 
who have the right already.” And further he said “With 
what truth can this be said (i.e. that the bill provided

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32

for the security of the colored race more than was ever 
provided for the white) of a bill which declares that the 
rights and punishment of all races, including, of course, 
the colored shall be the same as those ‘of white persons’ 
let an intelligent public judge.” Id. 1760.

In the same post-veto discussion Senator Trumbull was 
not alone in making analysis to this effect. Senator Davis, 
in opposition, stated without denial from any one as to 
the effect of the bill, the following:

“If I, after the best examination which I can give 
to this act, was asked for an appropriate title, I 
would propose to the Senator from Illinois, ‘An act 
to abolish and modify all laws, statutes, ordinances, 
regulations, and customs throughout the United 
States, so far as they make any discriminations for 
the white against the black or colored population 
thereof; to punish by fine and imprisonment all 
persons who may enforce such discriminations; and 
requiring certain officers to institute criminal and 
civil proceedings against them, at the cost of the 
United States.’ ” (71 Cong. Globe 182)

* H= * *

“In the simulation of imperial will and power in 
relation to all those most interesting concerns, ap­
pertaining to every human being in America, it 
declares there shall be no discrimination as to persons 
on account of race, color, or previous condition of 
slavery. This general and sweeping language is used 
for a purpose; it is a sort of mask to cover partially 
the true beneficiaries and objects of the measure, 
the negro race and their aggrandizement.” (Ibid)

H: He He H«

“I wonder if the legislators who might pass such 
laws would not cause the negroes, who would be

206



33

by them deprived of civil rights assured to white 
persons, or have different punishments inflicted upon 
them from white people who had committed the 
same offenses, would not have caused those dis­
criminations against negroes; and would not, there­
fore, come within the purview of the penal section 
of this bill. The Senator’s triumph over the President 
is but his own self-delusion.

* ❖  * *

“But this measure proscribes all discriminations 
against negroes in favor of white persons that may 
be made anywhere in the United States by any 
‘ordinance, regulation, or custom,’ as well as by ‘law 
or statute.’ ” (71 Cong. Globe 183)

 ̂ sfc

“But there are civil rights, immunities, and privi­
leges ‘which ordinances, regulations, and customs’ 
confer upon white persons everywhere in the United 
States, and withhold from negroes. On ships and 
steamboats the most comfortable and handsomely 
furnished cabins and state-rooms, the first tables, and 
other privileges; in public hotels the most luxuriously 
appointed parlors, chambers, and saloons, the most 
sumptuous tables, and baths; in churches not only 
the most softly cushioned pews, but the most eligible 
sections of the edifices; on railroads, national, local, 
and street, not only seats, but whole cars are assigned 
to white persons to the exclusion of negroes and 
mullatoes. All these discriminations in the entire 
society of the United States are established by 
ordinances, regulations, and customs. This bill pro­
poses to break down and sweep them all away, and 
to consummate their destruction, and bring the two 
races upon the same great plane of perfect equality, 
declares all persons who enforce those distinctions 
to be criminals against the United States, and sub­
jects them to punishment by fine and imprisonment,

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34

and directs the appointment of legions of officers 
to prosecute, both penally and civilly, for the benefit 
of the favored negro race, at the cost of the United 
States, and puts at the disposal of these officers the 
posse comitatus, the militia, and the Army and Navy 
of the United States, to enable them to execute this 
bold and iniquitous device to revolutionalize the 
Government and to humiliate and degrade the white 
population, and especially of the late slave States, 
to the level of the negro race.” (Ibid).

To the same effect were the never denied comments 
of Senator Johnson in opposition:

“This first section has another provision. Not satis­
fied with making the parties citizens and clothing 
them with all the rights belonging to white citizens 
by the laws of the States, it says that they ‘shall be 
subject to like punishment, pains, and penalties, and 
to none other.” (71 Cong. Globe 1777).

Another line of discussion that ran through the debate 
concerned the first sentence of Section 1 of the bill which, 
in its final form, vested citizenship in all persons born in 
the United States “not subject to any foreign power, 
including Indians not taxes.” The original form of this 
first sentence was quite different.

On January 29, 1866, before debate started, Senator 
Trumbull presented an amendment which ultimately 
evolved into the first sentence of Section 1. The original 
form of the proposal was:

“That all persons of African descent bom in the 
United States are hereby declared to be citizens of 
the United States, and there shall be no discrimina­
tion in civil rights or immunities among the in­

208



35

habitants of any State or Territory of the United 
States on account of race, color, or previous condi­
tion of slavery, etc.” (71 Cong. Globe 474)

Senator Trumbull’s first proposal was aimed directly 
to benefit only persons of African descent and discloses 
further the legislative intention behind Section 1 of the 
bill as well as its other provisions.

Until the passage of the Civil Rights Act of 1866 only 
the children of white persons became citizens by virtue 
of birth in the United States. U, S. v. Wong Kim Ark, 
169 U.S. 649 (1898). Of course, citizenship of Negroes 
was not possible under the Dred Scott decision, 19 How. 
393 (1857), as well as other provisions of the original 
Constitution such as that which counted the Negro popu­
lation on a three-fifths fractional basis.

The status of other persons of color such as Indians 
and Chinese was the subject of dispute but, no doubt, 
the prevalent opinion held that only white children born 
in the United States were citizens thereof.

Senator Trumbull’s proposal for a new first sentence 
went through several proposed changes to deal with 
Indians. (71 Cong. Globe 522, 527 and 569) The final 
form of the first sentence was:

“Sec. 1. That all persons bom in the United States, 
and not subject to any foreign Power, excluding 
Indians not taxed, are hereby declared to be citizens 
of the United States; and such citizens of every race 
and color shall have the same right . . .  as enjoyed 
by white citizens . . ., etc.”

In subject re-enactments of the statute, the first sentence 
was supplanted by the Fourteenth Amendment which in 
Section 1 reads as follows:

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36

“Section 1. All persons born or naturalized in the 
United States, subject to the jurisdiction thereof, are 
citizens of the United States and of the state wherein 
they reside . . .

The legislative discussion leading to the passage of the 
1866 Act reveals a common opinion of the members of 
Congress that white children were citizens of the United 
States upon birth. Beyond this there was dispute. Pro­
ponents of freedmen’s rights seemed to believe that the 
Thirteenth Amendment itself made citizens of former 
slaves or at least entitled them to the same rights enjoyed 
by other free men. However, this view was vehemently 
denied by opponents of the legislation who held to the 
view that the abolition of slavery did not make citizens 
of former slaves. These opponents also argued that there 
was a difference between citizenship in the United States 
and citizenship of a state. The latter, they claimed, was 
the exclusive province of the respective states. They went 
so far as to argue that the bill was unconstitutional in 
attempting to confer citizenship by general statute and 
in intruding into state control of state citizenship. All 
these disputes were settled by the Fourteenth Amendment, 
obviously, which not only vested citizenship in all persons 
born in the United States but also vested them with state 
citizenship.

At the time of the legislative debates, however, it was 
understood by proponents and opponents alike that white 
persons already enjoyed citizenship by birth and that the 
office of the first clause of Section 1 was to confer citizen­
ship by birth upon persons other than white persons, 
mainly upon freedmen. This was the understanding behind 
President Johnson’s remarks in his veto message that the 
bill provided citizenship for new classes of persons who

210



37

were then vested with rights equal to those enjoyed by 
white citizens, all of which the President considered im­
provident. No one so far as we have discovered expressed 
the thought that the first clause of Section 1 provided 
anything new for the benefit of white persons born in the 
United States.

Thus the office of the first clause of Section 1 coincided 
with the function of the balance of the bill. The entire 
enactment was structured to alter the status of non-whites 
by providing them with citizenship by birth, by enumera­
ting the classes of rights which they would enjoy to what­
ever extent that white persons enjoyed them, and by 
providing legal sanctions for those who prevented these 
persons from enjoying the same rights as white persons.

Another factor which somewhat contradicts the con­
struction of the Act sought by Petitioners is the fact that 
the Act is confined to certain enumerated civil rights but 
does not include all civil rights or political rights. If 
Congress really intended the bill to confer rights upon 
white persons, it was somewhat anomalous to confer upon 
them fewer rights than they already enjoyed.

Finally, a good argument can be made that the intention 
of Congress can be divined from the fact that it was pro­
ceeding under the second section of the Thirteenth Amend­
ment. Since the Thirteenth Amendment did nothing more 
than to abolish slavery and involuntary servitude in the 
United States, it is very doubtful that the Reconstruction 
Congress of 1866 considered that it had the authority to 
legislate for the enumeration and protection of rights of 
white citizens.

Our review of the legislative history of the 1866 Act 
is necessarily incomplete but it demonstrates that the items

211



38

relied upon by Petitioners and their supporters are not 
significant in light of the whole legislative record and 
much too fragile to support the striking revision of the 
language of the statute which is requested. With respect 
to Petitioners and their supporters, we must say that this 
Court is being requested to legislate.

District Judge Renfrew correctly capsulated the present 
situation of §1981 in League of Academic Women v. 
Regents, 343 F. Supp. 636 (N.C. Cal. 1972) thus:

“Section 1981 was enacted to protect the rights 
of two groups of people—non-whites and non-citizens 
who were not afforded equal treatment to white 
citizens. The standard against which the rights of 
these individuals must be measured is the rights of 
white citizens. The change in language to include 
‘all people’ was designed to include non-citizens and 
persons not bom in the United States within the 
coverage of the Act. The amendment was not so 
broad as to extend coverage to all rights of all people. 
The ‘all persons’ language of the statute speaks only 
to the issue of to which persons the Act applies. 
It does not purport to delineate the rights accorded 
those individuals. The standard against which the 
rights of the protected individuals must be matched 
remains the rights of white citizens.”

* * * *

“Where new forms of discrimination becomes ap­
parent and the existing laws are not appropriate to 
deal with them, the legislature and not the courts 
has the responsibility and the power to fashion new 
laws to combat the discrimination.”

Of course, the coverage of aliens was provided by amend­
ment later in 1870 after passage of the Fourteenth Amend­

212



3 9

ment eliminated doubts that Congress had power to go 
beyond citizens in granting protection. Guerra v. Man­
chester Terminal, 350 F. Supp. 529 (S.D. Tex. 1972) 
afld. on this point 498 F.2d 641 (C.A. 5, 1974).

Decisions of this Court so far have not moved in the 
direction which Petitioners suggest, as is evident from 
holdings under §1982 which also derives from Section 1 
of the Civil Rights Act of 1866 and also contains the 
same language “as is enjoyed by white citizens.”

In Sullivan v. Little Hunting Park, Inc., 396 U.S. 235, 
237 (1969), a white property owner was held to have 
standing under 42 U.S.C. §1982 to sue for the redress 
of damages inflicted upon him because of his effort to 
uphold the right of a Negro to rent and enjoy the white 
person’s property in an all-white neighborhood. The same 
holding was made earlier in a restrictive covenant case 
under the Fourteenth Amendment in Barrow v. Jackson, 
346 U.S. 249, 259 (1953). In both cases this Court up­
held the standing of white litigants to vindicate the rights 
of others—“non-Caucasians” in Barrow v. Jackson, supra, 
348 U.S. at 259-60, and “minorities protected by §1982” 
in Sullivan v. Little Hunting Park, supra, 396 U.S. at 231.

In Sullivan the white property owner sustained direct 
injury to himself because of interference with his right 
to rent his own property to a negro, yet the Court found 
it necessary to determine the white person’s standing to 
enforce the right of “minorities protected by §1982” 
to become renters of property in order to grant him relief.

Sullivan was applied by the Second Circuit in a §1981 
case DeMatteis v. Eastman Kodak Co., 511 F.2d 306 
(C.A. 2, 1975). There a white plaintiff was held to have

213



40

a §1981 cause of action against his employer who forced 
him into premature retirement because he sold his house 
in a white neighborhood to a black fellow-employee. The 
court, citing Sullivan, held “a white person . . . who has 
been ‘punished for trying to vindicate rights of [non­
white] minorities . . . has standing to sue under §1981.”

CONCLUSION

Respondent Union prays that the judgment be affirmed. 

Respectfully submitted,

Chris Dixie 
James P. Wolf 
609 Fannin Street Bldg. 
Suite 401
Houston, Texas 77002 
Attorneys for Respondent

214



N o. 75-260

lit i t  lupins fljmtrf «f tftt W\M pistes
October Term, 1975

L. N. McDonald and R aymond L. Laird,
PETITIONERS

V .

Santa F e Trail Transportation Company, et at,.

ON W R IT  OF C E R T IO R A R I TO TH E  UNITED STA TE R  COURT OF 
A PP E ALS FOR TH E F IF T H  C IRC U IT

BRIEF POE THE UNITED STATES AS AMICUS CURIAE

R O B E R T  H . BORN,
Solicitor General,

J .  S T A N L E Y  P O T T IN G E R ,
A ssistant A ttorney General, 

W IL L IA M  F . S H E E H A N , I I I ,
Assistant to the Solicitor General, 

W A L T E R  W . B A R N E T T ,
C Y N T H IA  L. A TTW O O D ,

Attorneys,
Department of Justice, 

W ashington, D.C. 20530.

215



__
_;_



IN D E X
Page

Questions presented_________________________________  1
Interest of the United States.
Statement________________
Argument:

Introduction and sumary_________________________  5
I. Title V II encompasses a claim that white employ­

ees were fired for misappropriating company prop­
erty while a similarly situated black employee was
not ________________________________________ 8

II. White persons have standing under 42 U.S.C. 1981
to complain of racial discrimination in employment_ 14

Conclusion_________________________________________ 25

CITATION'S
Cases:

Agnew v. City of Compton, 239 F. 2d 226, certiorari
denied, 353 U.S. 959___________________________  24

Alexander v. Gardner-Denver Co., 415 U.S. 36_____  20
Association of Data Processing Service Organizations,

Inc. v. Camp, 397 U.S. 150______________________  24
Clif ton v. Grisham, .391 F. Supp. 324_______________ 24
Conley v. Gibson, 355 U.S. 41____________________  12
Culpepper v. Reynolds Metals Company, 421 F. 2d

888 ______________________________ 1________ _ 4
DeMatteis v. Eastman Kodak Co., 511 F. 2d 306_____  20
Georgia v. Rachel, 384 U.S. 780___________________  7, 24
Graham v. Richardson, 403 U.S. 365________________ 17
Griggs v. Duke Forcer Company, 401 U.S. 424_______  9
Guerra v. Manchester Terminal Corporation, 498 F. 2d

641_________________________________________  47
Hollander v. Sears, Roebuck and Company, 392 F.

Supp. 90-------------------------------------------------------- 17
Hurd v. Hodge,, 334 U.S. 24______________________  18
Hutchings v. United States Industries, Inc., 428 F. 2d 

303 ___________________________ I _____________  4
(I)

217

C3



I I

Oases—Continued page
Inada x. Sullivan, 523 F. 2d 485---------------------------- IT
Johnson x. Railway Express Agency, Inc., 421 U.S.

454 _______________________________________2,7,M ,20
Jones v. Alfred H. Mayer Co., 392 U.S. 409---------------  16
Kurylas x. Department of Agriculture, 373 F. Supp.

1972, affirmed per curiam, 514 F. 2d 894----------------- 24
McDonnell Douglas Corporation v. Green, 411 U.S.

792 _____________________________________6, 10, 11,12
Roberto x. Hartford Fire Insurance Company, 117

F. 2d 811_____________________________________ IT
State of Louisiana ex rel. Purkey x. Ciolino, 393 F.

Supp. 102-------------------------------------------------------- 24
Sullivan, x. Little Hunting Park, 396 U.S. 229----------- 17,20
TakahasM x. Fish and Game Commission, 334 U.S.

410_________________________________________  IT
Tillman v. Wheaton-Haven Recreation Assn, 410

U.S. 431______________________________________ 20
United States x. Wong Kim Ark, 169 U.S. 649------------ 16.17
Valle x. Stengle, 176 F. 2d 697____________________  20
Van. Hoomdssen v. Xerox Corporation, 368 F. Supp.

829 _________________________________________  24
Tick Wo x. Hopkins, 118 U.S. 356--------------------------- IT

Constitution and statutes r
Constitution of the United States:

Thirteenth Amendment------------------------------ 17
Fourteenth Amendment---------------------------- 16,17,18

Civil Eights Act of 1866, 14 Stat. 27, Sec­
tion 1 ________________________________ 6,14,16,18,19

Civil Eights Act of 1964, Title V II, 78 Stat. 253, as
amended, 42 U.S.C. 2000e et seq---------------------------passim

Section 20Q0e-2(a)-----------------------------------  5
Section 20Q0e-2(a)(1)-------------------------------  8,9
Section 2000e-5 (d )_______________________  3,4
Section 2000e-5(e) (Supp. IV ), 86 Stat. 104---  3,4

Enforcement Act of 1870, 16 Stat. 140, Section 18___  17
E.S. § 1977_____________________________________ 18
42 U.S.C. 1981_______________________________ passim
42 U.S.C. 1982 __________________________________17,20

218



Ill

Miscellaneous:
Cong. Globe, 39th Cong., 1st Sess. (1866) : Page

p. 599---------------------------------------------------------  21
p. 1115-------------------------------------------------------- 21
p. 1118-------------------------------------------------------- 22
p. 1413--------------------------------------------------------  22

House App. p. 157_______________________________  22

219





jtt I k  j& tpnte fltatrt »f i k  K n M  States
October Term, 1975

No. 75-260

L. N. McD onald and R aymond L. Laird,
PETITIONERS

V .

Santa F e Trail Transportation Company, et al.

ON W R I T  OF C E R T IO R A R I TO T H E  UNITED S T A T E S  COURT OF 
A P P E A L S  FOR TH E  F IF T H  CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Q U E STIO N S P R E S E N T E D

1. W hether a complaint by white employees that 
their employer discriminated against them on the 
basis of race in firing them for theft of company 
property while retaining a similarly situated black 
employee states a claim under Title V II  of the Civil 
Rights Act of 1964.

2. W hether a white person has standing under 42 
U.S.C. 1981 to sue for alleged racial discrimination 
in emplojmient.

(i)

221



2

IN T E R E S T  OE T H E  U N IT E D  S T A T E S

Pursuant to Title Y II  of the Civil Rights Act of 
1964, 78 S tab  266, as amended, 42 U.S.C. 2QQ0e et seq., 
the Attorney General, as well as the Equal Em ­
ployment Opportunity Commission, has responsibility 
fo r enforcement of federal laws providing for equal 
employment opportunity. This case, although brought 
by private plaintiffs, presents questions concerning 
Title V I I ’s prohibition of discrimination on account 
of race, color, religion, sex, or national origin in cases 
where offenses constituting crimes against the com­
pany are involved. Similar issues arise in cases 
brought by the government, and the outcome here will 
accordingly affect the government’s enforcement re­
sponsibilities under the Act.

Resolution of the Section 1981 issue presented in 
this case will also have an impact on the government’s 
responsibilities under Title Y II. In  the context of a 
suit by an aggrieved black employee, Section 1981 has 
been held to provide a private remedy independent of 
those authorized under Title V II  for redress of em­
ployment discrimination claims. Johnson v. Railway 
Express Agency, Inc., 421 U.S. 454. W hether whites 
have standing to sue under Section 1981, or must rely 
exclusively on the procedures and remedies under 
Title Y II, will thus affect the government’s enforce­
ment responsibilities.

S T A T E M E N T

On October 2, 1970, petitioner McDonald was a 
truck driver employed by respondent Sante Ee Trail

222



3

Transportation Company in  Houston, Texas. P e ti­
tioner Laird  was a dock foreman a t the company’s 
Houston term inal (Pet. App. G, p. 53). On that date 
both were fired, having been charged by the company 
six days earlier with theft of ten cases of antifreeze 
from a customer’s shipment (P et. 3; Pet. App. P , pp. 
49-50). A black employee, also charged with the 
theft, was retained (Pet. App. G, p. 55).’

Petitioner McDonald immediately filed a grievance 
with respondent Local Union No. 988, denying the 
theft and complaining of wrongful discharge (Pet. 
App. P , p. 49-50).1 2 The grievance was denied and on 
April 7, 1971, petitioners filed a charge with the Equal 
Employment Opportunity Commission alleging that 
the company had engaged in unlawful discrimination 
in employment.3 The Commission issued a right-to-sue

1 There is no indication that any of the three employees have 
been charged criminally, and petitioners state (Br. 21, n. 42) that 
criminal charges have not been filed against them.

2 The Grievance Report was dated October 8,1970 (Pet. App. F, 
p. 49), but petitioners alleged and the company agreed that the 
grievance was commenced “ [o]n or about October 2,” the date of 
discharge (Pet. App. G, p. 55; Pet. App. B, p. 26).

3 In  the district court, Santa Fe alleged that the grievance pro­
ceeding had terminated on October 29,1970 (Pet. App. B, p. 26 J", 
and that therefore the then-applicable 90-day period for filing a 
charge with the EEOC had run prior to petitioners’ filing on April 
7,1971. (See 42 U.S.C. 2000e-5(d) (1970), since amended to allow 
for 180 days, 86 Stat. 104, 42 U.S.C. (Supp. IV ) 2000e-5(e).) 
Petitioners alleged that notice of the termination of the grievance 
procedures was not received until April 3, 1971 (Pet. App. G, 
p. 55). The district court did not rule on the timeliness of peti­
tioners’ filing since “the nature of the notice given upon termina­
tion of grievance proceedings” would be dispositive and “that is

223



4

letter on Ju ly  15, 1971, and on August 16, 1971, peti­
tioners commenced this action against Sante Fe and 
the Union in the United States D istrict Court for the 
Southern District of Texas. Petitioners charged that, 
in violation of Title Y II  and Section 1981, Sante Fe 
had discriminated against them on the basis of race in 
discharging them while retaining the black employee 
who was also charged with theft, and that the Union 
had “acquiesced and/or joined in ” the unlawful dis­
crimination (Pet. App. G> pp. 55-57). Petitioners 
sought a declaratory judgment, preliminary and per- 
mament injunctions, reinstatement, and back pay (id. 
at 57-58).

The district court dismissed the complaint, ruling 
tha t white persons lack standing to sue under Section 
1981, and that the facts alleged by petitioners failed 
to state a claim under Title V II  (Pet. App. B, pp. 
24-28).4

a. matter which would require an evidentiary hearing” (Pet. App. 
B, pp. 26-27). From this it appears that the district court, assumed 
that the filing of the grievance with the Union -would toll the 90- 
day period, which runs from the date when “the alleged unlaw­
ful employment practice occurred” (42 U.S.C. 2000e-5(d) (1970), 
as amended, 42 U.S.C. (Supp. IV) 2000e-5(e)). Neither the valid­
ity of this assumption (which is supported by controlling prece­
dent in the F ifth  Circuit, Culpepper v. Reynolds Metals Company, 
421 F. 2d 888, Hutchings v. United States Industries. Inc., 428 F. 
2d 303) nor the timeliness of petitioners’ filing with the EEOC is 
presented to this Court; both are matters that, if petitioners pre­
vail here, should be determined on remand.

4 The court also ruled that it had no Title V II jurisdiction over 
the Union because it had not been named by petitioners in their 
EEOC charge. Petitioners have not contested this determination 
and thus the Union’s liability, if any, can be based only on Section 
1981.

224



5

The court of appeals affirmed per curiam (Pet. 
App. A, pp. 21-23). I t  held that “ an employer’s dis­
missal of white employees charged with misappro­
priating company property while not dismissing a 
similarly charged black employee does not raise a 
claim upon which relief may be granted under Title 
V II ,” and tha t Section 1981 “confers no actionable 
rights upon white persons” (Pet. App. A, p. 22).

A R G U M E N T

INTRODUCTION AND SUMMARY

1. Much of the impetus behind the Civil Rights Act 
of 1964 came from Congress’ desire to rid  this Nation 
of discrimination against blacks. The Act in its en­
tirety, however, and Title V II  in particular, go far 
beyond assuring equal civil rights to blacks alone: 
Title V II, for example, prohibits employment dis­
crimination against “ any individual” because of such 
individual’s “race, color, religion, sex, or national 
origin.” 42 IJ.S.C. 2000e-2(a). I t  follows that the 
claim of employment discrimination raised in this 
ease is not barred under Title V II simply because 
those asserting it happen to be white.

Nor have petitioners lost the protections of Title 
V II by allegedly engaging in conduct amounting to a 
crime against their employer. I t  is true that em­
ployers are not forbidden by Title V II  from firing 
individuals for theft, but such employee conduct does 
not relieve employers of their obligation to refrain 
from discriminating on the basis of race. Under Title

225



6

V II, an employer may not fire an individual for race- 
related reasons, even if other, racially neutral justifi­
cations for the discharge exist. McDonnell Douglas 
Corporation v. Green, 411 U.S. 792.

McDonnell holds that, although an employer may 
meet an employee’s pri-ma facie showing of unlawful 
discrimination by articulating a legitimate, nondis- 
eriminatory reason for the employment action taken, 
the employee must be given a fa ir  opportunity to 
demonstrate that the employer’s asserted justification 
is merely a pretext for a racially motivated employ­
ment decision. This means, in the context of this case, 
that petitioners’ complaint should not have been dis­
missed without their first having been “ given a full 
and fa ir opportunity to demonstrate by competent 
evidence that whatever the stated reasons fo r [their 
discharge], the decision was in reality racially pre­
mised” (411 U.S. a t 805, n. 18).

2. Section 1981, perhaps even more than the Civil 
Rights Act of 1964, resulted from congressional con­
cern for the rights of black persons. I ts  origins lie in 
Section 1 of the Civil Rights Act of 1866, 14 Stat. 27, 
and it grants to all persons the same several rights 
therein enumerated “as [are] enjoyed by white citi­
zens.” Yet neither this phrase nor the statute’s source 
denies whites standing to enforce its terms. The legisla­
tive history of the 1866 Act shows that it was intended 
to secure the rights of whites as well as blacks, and that 
the reference to “ white citizens” was meant, not to 
restrict the benefits of the legislation to blacks, but “ to 
emphasize the racial character of the rights being

226



7

protected.” Georgia v. Rachel, 384 U.S. 780, 791. In  
any event, if there is to be force behind the statute’s 
command that “all persons” shall have the same right 
to contract for their employment services “ as is en­
joyed by white citizens,” then white citizens themselves, 
must be able to exercise such rights free of racial dis­
crimination, for as their rights are abridged so are ‘ ‘ all 
persons [ ’].” There is no reason to believe that Con­
gress meant to insist upon racially neutral treatm ent 
of non-whites alone; the denial of employment oppor­
tunity, based upon what ought to be the irrelevant 
consideration of race, is no less unfair when aimed at 
whites.5 In  either case racial prejudice causes an 
immediate injustice, contributes to overall racial dis­
cord, and defeats the congressional goal of assuring 
all persons equal rights under the law regardless of 
race.

Although whites faced with racial discrimination 
in employment may invoke the protections afforded by 
Title V II, the availability of redress under Section 
1981 remains important. Section 1981 reaches em­
ployers not subject to Title V II, and authorizes 
remedies not available under that statute. “ Congress 
has made available * * * independent administra­
tive and judicial remedies. The choice is a valuable 
one.” Johnson v. Railway Express Agency, Inc., 421 
U.S. 454, 461. Congress meant it to be available to 
whites as well as non-whites.

5 This case does not present, and we do not address, questions 
presented in the context of actions undertaken, in judicial pro­
ceedings or otherwise, to remedy the effects of past discrimination.

227



8

I
TITLE VII ENCOMPASSES A CLAIM THAT W HITE EMPLOYEES 

WERE FIRED FOE MISAPPROPRIATING COMPANY PROPERTY 

WHILE A SIMILARLY SITUATED BLACK EMPLOYEE WAS 

NOT

Title V II  of the Civil Rights Act of 1964 makes it 
unlawful for an employer “to fail or refuse to hire 
or to discharge any individual, or otherwise to dis­
criminate against any individual with respect to his 
compensation, terms, conditions, or privileges of em­
ployment, because of such individual’s race, color, re­
ligion, sex, or national origin” (42 U.S.C. 2000e-2 
(a )(1 ) ) . The protection against unlawful discrimina­
tion thus afforded is sweeping: racial and other im­
permissible considerations under the statute are to 
play no part in employment decisions. Otherwise 
Title V II  does not interfere with an employer’s con­
duct of his business. The decision whom to employ, 
what wage to pay, what promotion and retirement 
policy to follow, and whom to fire—all of these an 
employer is free to make under Title V II  for any 
reason or no reason at all, so long as race and the 
other listed characteristics remain neutral factors.

Petitioners, both white, are form er employees of 
respondent Sante Fe. They and a black employee of 
Saute Fe were charged by the company with theft of 
company property. They were fired; the black was 
not. In  their complaint petitioners alleged (Pet. App. 
G, p. 55) that Sante Fe “ imposed a more severe dis­

228



9

ciplinary sanction against them because of their race, 
Caucasian[,] than against their [N]egro counter­
part.” This states a cause of action under Title Y II  
and the courts below erred in denying petitioners an 
opportunity to prove their allegations.

The judgment below apparently was not based on a 
holding that whites lack standing under Title V II  to 
complain of racial discrimination in employment. 
Such a ruling, in any event, would be unsupportable. 
Title V II applies broadly to prohibit discrimination 
in employment against “any individual,” not only on 
account of race, but also because of such individual’s 
“color, religion, sex, or national origin.” 42 U.S.C. 
2000e-2(a) (1). Nothing in the language of the statute 
or its legislative history indicates that Congress in­
tended these protections to apply selectively. On the 
contrary, as this Court observed in Griggs v. Duke 
Power Company, 401 U.S. 424, 431:

Discriminatory preference for any group, 
minority or majority, is precisely and only 
what Congress has proscribed. W hat is re­
quired by Congress is the removal of artificial, 
arbitrary, and unnecessary barriers to em­
ployment when the barriers operate invidiously 
to discriminate on the basis of racial or other 
impermissible classifications.

Instead the courts below appear to have believed 
that an employee loses the protection of Title V II  if  
be engages in conduct amounting to a crime against 
bis employer. Thus, the court of appeals ruled (Pet. 
App. A, pp. 22-23), in language very similar to the 
district court’s (Pet. App. B, p. 28), that “ an em-

229



10

plover’s dismissal of white employees charged with 
m isappropriating company property while not dis­
missing a similarly charged black employee does not 
raise a claim upon which relief may be granted under 
Title V II * * *. There is no allegation that plaintiffs 
were falsely charged. Disciplinary action for offenses 
not constituting crimes is not involved in this case. 
See McDonnell Douglas Corp. v. Green, 411 U.S. 
792 * * * 7?

McDonnell Douglas does indeed control this case, 
but it requires a different result than that reached 
below. In  that case plaintiff Green, a black employee, 
was discharged for what he considered to be racial 
reasons, and in protest he interfered with access to his 
employer’s plant. He was charged with and pleaded 
guilty to obstruction of traffic. When the employer 
began to recall other laid off employees it refused to 
rehire Green, citing his illegal conduct. Green’s Title 
V II suit alleged that the employer’s asserted reason 
was mere pretext for another racially motivated em­
ployment decision.

This Court took the occasion to clarify the rules 
concerning the order and allocation of proof in priv­
ate, nonclass-action Title V II cases. I t  ruled that the 
complainant must first make out a prima facie case, 
and it gave an example of how such a showing might 
be made (411 U.S. at 802; footnote omitted) :

This may be done by showing (i) that he 
belongs to a racial minority; (ii) that he 
applied and was qualified for a job for which

230



11

the employer was seeking applicants; (iii) 
that, despite his qualifications, he was rejected; 
and (iv) that, after his rejection, the position 
remained open and the employer continued to 
seek applicants from persons of complainant’s 
qualifications.

In  giving this example, the Court was not setting 
out an immutable catalogue of the elements necessary 
to a prima facie case in every Title Y II  action. The 
Court expressly noted (411 U.S. at 802, n. 13) that 
different factual situations will call for different show­
ings. I f  the complainant in McDonnell Douglas had 
been white, for example, and thus unable to satisfy 
the first of the four elements above, then presumably 
he would have to supplement the other three, assum­
ing they could be established, with some other fact 
tending to show that he had been the victim of racial 
discrimination. A showing, for example, that the em­
ployer had hired only blacks over a long period, not­
withstanding applications from qualified whites, 
might be sufficient in such a case.

Where a black complainant alleges that he has been 
discharged for racial reasons, then under McDonnell 
Douglas he presumably could make out a prima facie 
case by showing (1) that he belonged to a minority, 
(2) that he was qualified for and satisfactorily per­
forming his job, (3) that he was fired nonetheless, 
and (4) that the employer sought to or did replace 
him with someone else of similar qualifications. A 
white complainant in a similar case, unable to show

231



12

membership in a minority, would have to supply an 
appropriate substitute for the first element in order 
to establish a presumption of racial discrimination. 
This he might do, we suggest, by showing that the 
supposed reason for which he was fired applied 
equally to a black employee, who was not fired.

This, of course, is essentially what petitioners have 
alleged they can prove, and nothing in the pleadings 
demonstrates their inability to do so. I f  they succeed 
“ [t]he burden then must shift to the employer to 
articulate some legitimate, nondiscriminatory rea­
son for [petitioners’] rejection” (411 U.S. at 802).6 
Dismissal of petitioners’ complaint for failure to state 
a claim under Title Y II  was therefore erroneous. 
Conley v. Gibson, 355 U.S. 41.

The Court' in McDonnell Douglas noted that the 
employer had met Green’s prima facie showing of 
discrimination by assigning his criminal conduct as 
the reason for refusing to rehire him. “Nothing in 
Title Y II ,” said the Court, “compels an employer 
to absolve and rehire one wTho has engaged in such 
deliberate, unlawful activity against i t” (411 U.S. at 
803; footnote omitted). Presumably the judgment be­

6 If , as petitioners claim, the black employee was similarly situ­
ated to petitioners in regard to  the alleged theft, then Santa Fe 
will not be able to claim tha t alleged theft is an absolute disquali­
fication to continued employment. I t  may be, however, th a t the 
black employee was not similarly situated to petitioners in other 
respects, and th a t he was treated differently fo r legitimate,- non­
discriminatory reasons, but dismissal of petitioners’ complaint pre­
cluded inquiry into these matters.

232



13

low rests on this ruling, but the Court’s analysis did 
not stop so abruptly ( id at 804) :

[T]he inquiry must not end here. While Title 
V II  does not, without more, compel rehiring 
of respondent, neither does it permit peti­
tioner to use respondent’s conduct as a pretext 
for the sort of discrimination prohibited by 
§ 703(a)(1). On remand, respondent must, as 
the Court of Appeals recognized, be afforded a 
fa ir opportunity to show that petitioner’s 
stated reason for respondent’s rejection was in 
fact pretext. Especially relevant to such a 
showing would be evidence that white em­
ployees involved in acts against petitioner of 
comparable seriousness to the “ stall-in” were 
nevertheless retained or rehired. Petitioner 
may justifiably refuse to rehire one who has 
engaged in unlawful, disruptive acts against it, 
but only if this criterion is applied alike to 
members of all races.

In  short, nothing in Title V II prevents Santa Ee 
from following a pattern of firing all employees who 
steal from the company. Indeed, that statute does not 
prevent Santa Fe from firing some but not all such 
employees. I t  forbids Santa Fe absolutely, however, 
from treating employees differently on the basis of 
race, and this prohibition applies with equal force to 
all employment decisions, even those made in the 
wake of criminal conduct by the employee against 
the company. Accordingly, the judgment below should 
be reversed so that petitioners may have “a full and 
fair opportunity to demonstrate by competent evi-

233



14

deuce that whatever the stated reason for [their dis­
charge]” (411 U.S. 805, n. 18), Santa Fe “imposed 
a more severe disciplinary sanction against them be­
cause of their race” (Pet. App. Gr, p. 55).

I I

W HITE PERSONS HAVE STANDING UNDER 42 U.S.C. 1981

TO COMPLAIN OP RACIAL DISCRIMINATION IN  EMPLOY­

MENT

Section 1981 guarantees that “ [a]ll persons” shall 
enjoy equally the several rights therein enumerated, 
including the right to contract for one’s employment 
services. Johnson v. Railway Express Agency, Inc., 
421 U.S. 454. Previous rulings of this Court establish 
that both aliens and blacks have standing to enforce 
the provisions of Section 1981, and indicate that whites 
have standing thereunder to vindicate the civil rights 
of blacks. The anomalous result reached by the court 
below, that Congress meant to grant standing in those 
circumstances yet deny the sweeping protection of 
Section 1981 to white persons as a class, is refuted 
by the statute on its face and its legislative history. 
W ith its origins in the Civil Rights Act of 1866, 14 
Stat. 27, the underlying purpose of which was to assure 
equal civil rights to all persons in the United States, 
Section 1981 was meant equally to protect whites and 
non-whites. The description of the rights therein pro­
tected as those “enjoyed by white citizens” was in­
tended to stress their racial character and their scope,

234



15

not to exclude white victims of racial discrimination 
from the statute’s ambit.

Section 1981 provides:
All persons within the jurisdiction of the 

United States shall have the same right in every 
State and Territory to make and enforce con­
tracts, to sue, be parties, give evidence, and to 
the full and equal benefit of all laws and pro­
ceedings for the security of persons and prop­
erty as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and 
to no other.

On its face this provision applies without excep­
tion to “ [a] 11 persons.” The suggestion implicit in the 
judgment below, tha t the phrase “as is enjoyed by 
white citizens” was meant to deny whites the pro­
tections of the statute, is without support in logic 
or legislative history. P rio r to the remedial Civil W ar 
legislation, of which Section 1981 is a part, “white 
citizens” possessed rights denied to blacks, who were 
ineligible for citizenship because of their race. In  
conveying rights to the same extent as those enjoyed 
by “white citizens,” Congress in Section 1981 be­
stowed those rights upon “ [a] 11 persons” to the full 
extent enjoyed by the theretofore most favored seg­
ment of the population. Congress could not have 
meant that the specified rights of white citizens could 
be diminished in comparison with those of another 
racial group. For such diminution of the rights of 
white citizens would lead to a corresponding shrinkage

235



16

in the rights of “ [a] 11 persons,” a result Congress 
surely did not intend.

Section 1981 is derived from Section 1 of the Civil 
Rights Act of 1866, 14 Stat. 27 (Jones v. Alfred II. 
Mayer Co., 392 U.S. 409, 422, n. 28), which provided: 

That all persons born in the United States 
and not subject to any foreign power * * * are 
hereby declared to be citizens of the United 
States; and such citizens, of every race and 
color, without regard to any previous condition 
of slavery or involuntary servitude * * * shall 
have the same right, in every State and Terri­
tory in the United States, to make and enforce 
contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell, hold, and con­
vey real and personal property, and to full and 
equal benefit of all laws and proceedings for 
the security of person and property, as is en­
joyed by white citizens, and shall be subject 
to like punishment, pains, and penalties, and to 
none other, any law, statute, ordinance, regula­
tion, or custom, to the contrary notwith­
standing.

The broad purposes of the 1866 Act were to assure 
“ the fundamental principle of citizenship by birth 
within the dominion” ( United States v. Wong Kim  
Ark, 169 U.S. 649, 675) and to “ affirmatively secure 
for all men, whatever their race or color, * * * the 
‘great fundamental rights’ ” therein enumerated 
{Jones, supra, 392 U.S. at 432). When the 1866 Act 
was reenacted following passage of the Fourteenth 
Amendment, the rights to hold and convey property 
were codified in what is now 42 U.S.C. 1982, and are

236



17

conferred upon “ [a]ll citizens of the United States.” 7
The remaining rights, however, which now appear 

in Section 1981, are given equally to “ [a]U persons.” 
Thus the “broad and sweeping nature of the pro­
tection meant to be afforded by § 1 of the Civil 
Rights Act of 1866” (Sullivan v. Little Hunting Park, 
396 U.S. 229, 237) has been extended under Section 
1981 to aliens as well as to citizens. Graham v. 
Richardson, 403 U.S. 365, 377; Takahashi v. Fish and 
Game Commission, 334 U.S. 410, 419-420; United 
States v. Wong Kim Ark, 169 U.S. 649, 675, 688; 
Inada v. Sullivan, 523 F. 2d 485 (C.A. 7) ; Guerra v. 
Manchester Terminal Corporation, 498 F. 2d 641, 653- 
654 (C.A. 5) ; Roberto v. Hartford Fire Insurance 
Company, 177 F. 2d 811 (C.A. 7) ; Hollander v. Sears, 
Roebuck and Company, 392 F. Supp. 90, 94, n. 5 (D. 
Conn.); see also Yick Wo v. Hopkins, 118 U.S. 356, 
369. The standing thus conferred extends to aliens of 
all races, including Caucasians (see Roberto, supra).

In  Wong Kim Ark, supra, this Court extensively 
reviewed the Civil Rights Act of 1866 and its relation­
ship to the Fourteenth Amendment. In  that case the 
issue was whether an individual bom  of Chinese 
nationals domiciled in the United States is an Ameri­
can citizen if his birth  occurs in this country. The

7 The 1866 Act, passed pursuant to the authority granted Con­
gress by the Thirteenth Amendment, was reenacted upon passage 
of the Fourteenth Amendment by Section 18 of the Enforcement 
Act of 1870, 16 Stat. 140. Section 1982 provides: “All citizens of 
the United States shall have the same right, in every State and 
Territory, as is enjoyed by white citizens thereof to inherit, pur­
chase, lease, sell, hold, and convey real and personal property.”

237



18

Court, ruled that both the Civil Rights Act of 1866 
and the Fourteenth Amendment, whose origins and 
purposes were in many respects identical,8 were in­
tended unmistakably to affirm the common law’s posi­
tive answer to that question. 169 U.S. at 675-676. 
Although the main purpose of the Amendment was 
“to establish the citizenship of free [NJegroes * * * 
and to put it beyond doubt that all blacks, as well as 
whites, born or naturalized within the jurisdiction of 
the United States, are citizens,” the Court said that 
“ the opening words ‘All persons born,’ are general, 
not to say universal, restricted only by place and ju ­
risdiction, and not by color or race—as was clearly 
recognized in all the opinions delivered in The 
Slaughterhouse Cases * * * ” (169 U.S. at 676). Thus 
notwithstanding that the Fourteenth Amendment had 
as its principal design the amelioration of discrimina­
tion against blacks, it gave to them “ ‘no right supe­
rior to that granted to the white race’ ” and “ ‘[t]he 
same rule must be applied to both races’ ” (id. at 692).

Section 1981 (then Section 1977 of the Revised 
Statutes) was to the same effect. By Section 1 of the 
Civil Rights Act of 1866, the Court noted, “ ‘all per­
sons born in the United States, and not subject to any 
foreign power * * * are declared to be citizens of the 
United States. This provision comprehends the

8 See also Ilurcl v. Hodge, 334 U.S. 24, 32: “ [T]hat statute and 
the Amendment were closely related both in inception and in the 
objectives which Congress sought to achieve. * * * It is clear that 
in many significant respects the statute and the Amendment were 
expressions of the same general congressional policy.”

238



19

Chinese * * *, the people called Gypsies, as well as 
the entire race designated as blacks * * *. Every in­
dividual of these races, born in the United States, is, 
by the bill, made a citizen of the United States’ ” (169 
U.S. at 682). This view of the statute was based on 
unequivocal legislative h isto ry : during the Senate de­
bates it appeared clearly that the Act would confer 
citizenship on Germans, Chinese, Gypsies—indeed, 
“all persons, without any reference to race or color,” 
born in this country of alien parents domiciled here. 
Id. at 697-698.

The Court also explained that no constriction of the 
1866 Act was to be inferred from its changed appear­
ance when re-enacted in 1870. In  its earlier form the 
statute’s guarantees extended to citizens “of every 
race and color” ; in the re-enactment these words were 
deleted in favor of persons “within the jurisdiction 
of the United States,” the words now found in Sec­
tion 1981. The substitution, however, “was not con­
sidered as making the section, as it now stands, less 
applicable to persons of every race and color and na­
tionality, than it was in its original form * * *” (id. 
at 695-696).

I f  so much of Section 1 of the 1866 Act as defined 
citizenship applies equally to all races, despite its 
principal intendment to protect blacks, there can, we 
submit, be no justification for limiting the other 
guarantees of tha t statute to exclude whites. In  the 
context of a suit by a black plaintiff, this Court re­
cently ruled “that § 1981 affords a federal remedy

239



20

against discrimination in private employment on the 
basis of race” which supplements and under some 
circumstances “may be highly preferred over” the 
distinct avenue of relief afforded by Title V II of 
the Civil Rights Act of 1964. Johnson v. Railway Ex­
press Agency, Inc., 421 U.S. 454, 459-460, 461.° More­
over, this Court has held that in appropriate circum­
stances standing exists in white persons to sue under 
Section 1982 to vindicate the rights of blacks (Sulli­
van v. Little Hunting Park, 396 U.S. 229, 237) ; given 
“ the historical interrelationship between § 1981 and 
§ 1982” (Tillman v. Wheaton-Haven Recreation Ass’n, 
410 U.S. 431, 440), that is tantamount to a ruling that 
standing under Section 1981 exists in similar circum­
stances.9 10 Thus, the court of appeals’ ruling, if af­
firmed, would ascribe to Congress the intent to allow 
whites to sue under Section 1981 to redress racial dis­
crimination against non-whites and discrimination 
based on alienage against themselves, but not racial 
discrimination against themselves—notwithstanding 
that non-whites suffer no such disability.

The legislative history of the 1866 Act, however, 
demonstrates that, in granting to all persons the same 
rights therein enumerated “ as [are] enjoyed by white

9 See also Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 and 
n. 7 (Congress intended Title V II and Section 1081 as “parallel 
or overlapping remedies against discrimination”).

10 The Second Circuit so held in DeMatteis v. Eastman Kodak 
Co.. 511 F. 2d 306, 312, n. 9, and suggested as veil that the holding 
in ,Sullivan was intended to refer to both Sections 1981 and 1982, 
since that action was brought under both statutes (see 396 U.S. at 
235). See also Valle v. Stengel, 176 F. 2d 697 (C.A. 3).

240



21

citizens,” Congress did not intend to limit the class 
of persons for whose benefit the legislation was en­
acted. The phrase did not appear in the bill as it first, 
passed the Senate. A t that time Senator Lyman Trum­
bull, the floor manager, explained that the bill applied 
equally to blacks and whites (Cong, Globe, 39th Cong., 
1st Sess. 599 (1866)):

Sir, this bill applies to wddte men as well as 
black men. I t  declares that all persons in the 
United States shall be entitled to the same civil 
rights, the right to the fru it of their own labor, 
the right to make contracts, the right to buy 
and sell, and enjoy liberty and happiness; * * * 
Could anything be more monstrous or more 
abominable than for a member of the Senate 
to rise in his place and denounce * * * a bill, 
the only object of which is to secure equal 
rights to all the citizens of the country, a bill 
that protects a white man just as much as a 
black man? W ith what consistency and with 
what face can a Senator in his place here say 
to the Senate and the country that this is a 
bill for the benefit of black men exclusively 
when there is no such distinction in it, and 
when the very object of the bill is to break 
down all discrimination between black men and 
white men?

The reference to “white citizens7’ was subsequently 
added, without debate, on motion by the House man­
ager of the bill, Congressman James F. Wilson (Cong. 
Globe, 39th Cong,, 1st Sess. 1115 (1866)). W ilson 
himself appeared to believe. that the protections of

241



22

the bill were not limited to blacks,11 hut he was 
apparently concerned lest they be thought to extend 
to women and children as well.12 W hen the bill was re­
submitted to the Senate for approval of the House 
amendments, Senators Trumbull and Yan Winkle dis­
cussed the meaning of the Wilson amendment and 
demonstrated their understanding tha t it had not 
altered the bill’s reach as they had previously per­
ceived it (Cong. Globe, 39th Cong., 1st Sess. 1413 
(1866)) :

Mr. V an W inkle. There seems to be an 
incongruity in this language to which I  wish

11 “jf r .  Speaker, if all our citizens were of one race and one color 
-we would be relieved of most of the difficulties which surround us. 
This bill would be almost, if not entirely, unnecessary, and if the 
States, seeing that we have citizens of different races and colors, 
would but shut their eyes to these differences and legislate, so far 
a t least as regards civil rights and immunities, as though all citi­
zens were of one race and color, our troubles as a nation would be 
well-nigh over. But such is not the case, and we must do as best we 
can to protect our citizens, from the highest to the lowest, from 
the whitest to the blackest, in the enjoyment of the great funda­
mental rights which belong to all men.” Cong. Globe, 39th Cong., 
1st Sess. 1118 (1866).

12 The only explanation Congressman Wilson gave for the 
amendment came in response to an inquiry from Congressman 
Delano whether it would confer upon blacks the right to be jurors. 
Wilson said it would n o t: “The words to which the gentleman has 
directed attention were not in the original bill, but were placed 
there by an amendment offered by myself. And the reason for 
offering it was th is : it was thought by some persons that unless 
these qualifying words were incorporated in the bill, those rights 
might be extended to all citizens, whether male or female, majors 
or minors. So that the words are intended to operate as a limita­
tion and not as an extension; and I  think the very reason which 
was urged by those who desired the amendment to be incorporated 
in the bill, is an answer to the objection the gentleman makes.” 
Cong. Globe, 39th Cong., 1st Sess. (House App. p. 157) (1866)

242



23

to call the attention of the chairman of the 
committee. The clause commences with the 
words “ and such citizens.” As I  understand 
those words they include all persons who are 
or can be citizens, white persons and all others. 
The clause then goes on to provide that “such 
citizens of every race and color, without regard 
to any previous condition of slavery or in­
voluntary servitude, shall have the same right 
to make and enforce contracts,” &c., “ as is 
enjoyed by white citizens.” I t  seems to me these 
words are superfluous. The idea is that the 
rights of all persons shall be equal; and I  think 
the clause, leaving out these words, would 
attain the. object. This is merely a verbal criti­
cism. I  think the bill is incongruous in expres­
sion as it stands.

Mr. T r u m b u l l . I  quite agree with the Sena­
tor from W est V irginia that these words are 
superfluous. I  do not think they alter the bill. 
I  think the bill would be better without them, 
but they have been adopted by the House of 
Representatives. We did not think they altered 
the meaning of the bill; and we did not think 
it worth while to send the bill baek just because 
these words were inserted by the House. They 
thought there was some importance in them 
and have inserted them; and as in the opinion 
of the [conference] committee which examined 
this m atter they did not a lte r the meaning of 
the bill, the committee thought proper to recom­
mend a concurrence, and I  hope the Senate 
will concur in it.

In  short, the phrase, “as is enjoyed by white citi­
zens,” was not intended to lim it standing under Sec­

243



24

tion 1981 to non-whites. Instead, those words were ap­
parently intended to point up the limits on the kind 
of rights protected by the statute. As this Court noted 
in Georgia v. Rachel, 384 U.S. 780, 791:

The legislative history of the 1866 Act clearly 
indicates that Congress intended to protect a 
limited category of rights, specifically defined 
in terms of racial equality. As originally pro­
posed in the Senate, § 1 of the bill that became 
the 1866 Act did not contain the phrase “as 
is enjoyed by white citizens.” That phrase was 
later added in committee in the House, ap­
parently to emphasize the racial character of 
the rights being protected.18

Here petitioners, alleging “that they were dis­
charged [because] of their race, Caucasian” (Pet. 
App. G-, p. 54), seek to protect interests clearly 
“within the zone of interests to be protected” by the 
statute. Association of Da,ta Processing Service Orga­
nisations v. Camp, 397 U.S. 150, 153. As we have 
shown, Congress intended Section 1981 to protect 
“ [a]ll persons” from racial discrimination in employ­
ment, and accordingly the court of appeals erred in 
denying petitioners standing on the basis of their race. 13

13 The courts have, accordingly, dismissed complaints under Sec­
tion 1981, by both white and black plaintiffs, when racial dis­
crimination has not been alleged. E.g., Agne-w v. City of Compton, 
239 F. 2d 226 (C.A. 9), certiorari denied, 353 U.S. 959; State of 
Louisiana ex rel. Purkey v. Ciolino, 393 F. Supp. 102 (E.D. L a .); 
Clifton v. Grisham, 381 F. Supp. 324 (N.D. M iss.); Kurylas v. De­
partment of Agriculture, 373 F. Supp. 1072 (D.C.C.), affirmed 
per curiam, 514 F. 2d 894 (C.A.D.C.); Van Hoomissgn v. Xerox 
Corporation, 368, F. Supp. 829, 838-839 (N.D. Calif.).

244



25

C O N CLU SIO N

The judgment below should be reversed. 
Respectfully submitted.

J anuary 1976.

R obert H . B oric,
Solicitor General. 

J. S tanley P ottinger,
Assistant A ttorney General. 

W illiam P. Sheehan, I I I ,  
Assistant to the Solicitor General. 

W alter W. B arnett,
Cynthia L. A ttwood,

Attorneys.

245





No. 75-260

IN THE

mpxxmx ( t a r t  a t  %  Initrii B M xb

OCTOBER TERM, 1975

L. N. M cD onald and R aymond L. L aird,
Petitioners,

v.
Santa F e T ransportation Company and 

Teamsters F reight , T ank  L in e  and A utomobile I ndustry 
E mployees, L ocal U nion  N o. 988,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF 
AND

BRIEF FOR THE
AMERICAN FEDERATION OF LABOR AND 

CONGRESS OF INDUSTRIAL ORGANIZATIONS 
AS AMICUS CURIAE

J. A lbert W oll 
R obert C. Mayer 

736 Bowen Building 
815 Fifteenth Street, N.W. 
Washington, D.C. 20005

L aurence Gold 
815 Sixteenth Street, N.W. 
Washington, D.C. 20006

Attorneys for AFL-CIO

247





TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE A BRIEF AS AMI­
CUS CURIAE ............................................................. i

BRIEF FOR THE AMERICAN FEDERATION OF 
LABOR AND CONGRESS OF INDUSTRIAL

Page

ORGANIZATIONS AS AMICUS CURIAE .............. 5
SUMMARY OF ARGUMENT .......................................  5
ARGUMENT.................................................................... 6

I. THE SECTION 1981 CLAIM ............................  6
A. Such Protections Against Racial Discrimina­

tion as 42 U.S.C. § 1981 Affords Extend to 
Whites as well as Blacks ................................ 7

B. This Court Should Not Reach or Decide the 
Question Whether the Particular Act of 
Racial Discrimination Alleged Here Would,
If Proved, Constitute a Violation of § 1981 .... 19

II. THE TITLE VII CLAIM ...................................  22
CONCLUSION ................................................................  29

TABLE OF CITATIONS
Cases :

A lbem arle  P a p er  Co. v. M oody, 422 U.S, 405
(1975)....... ........................ .........................................  26

A m erican  S h ip  B u ild in g  Co. v. L a b o r B oard , 380 U.S.
300 (1965) .................................................................. 26

Bob Jones U n ivers ity  v. S im on , 416 U.S. 725 (1974) .... 19 
B oys M arkets , Inc. v. R eta il C lerks U nion, 398 U.S.

235 (1970) ..................................................................  22
F ranks  v. Bowman- T ra n sp o rta tio n  Co., No. 74-728,

argued November 3, 1975 ........................ ..........  2, 20
Georgia v. Rachel, 384 U.S. 780 (1966) ........................  13
Griggs v. D uke P ow er Co., 401 U.S. 424 (1971) ..........  22

i

249



G uerra  v. M anchester T erm in a l Corp., 350 F. Supp.
529 (S.D. Tex. 1972), affirmed in part, 498 F.2d
641 (5th Cir. 1974).....................................................  17

H ouston , E . £  W . T . R . Co. v. U nited  S ta te s , 234 U.S.
342 (1914) ................................................................  18

ITurd v. H odge, 334 U.S. 24 (1948) ...........................  17
Jo h n so n  v. R ailw ay E xp re ss  A gen cy , 421 U.S. 454

(1975).................... ....!................... '.....................  19, 20
Jones  v. M ayer Co., 392 U.S. 409 (1968) .............  18, 20
L abor B oard  v. F a n stee l Corp., 306 U.S. 240 (1939) .... 26 
Labor B oard  v. R ice M illing  Co., 341 U.S. 665 (1951) .. 27 
M cC rary  v. R im y  on, 515 F.2d 1082 (4th Cir. 1975),

cert. gr. 44 L.W. 3279 (1975) ................................ 20, 21
M cD onnell D ouglas Corp. v. G reen, 411 U.S. 792

(1973) ................................................................  6,24-26
N L R B  v. F in es ilve r  M fg . Co., 400 F.2d 644 (5th Cir.

1968) ...................................................................... 27-28
N ix  v. N L R B , 418 F.2d 1001 (5th Cir. 1969) .............  27
S tee lw o rkers  v. Labor B oard , 376 U.S. 492 (1964) ......  27
S u lliva n  v. L itt le  H u n tin g  P a rk , Inc., 396 U.S. 229

(1969) .................................................................... 8,20
T akahash i v. F ish  £  Game C om m ission, 334 U.S. 410

(1948) .......................................................................  17
T illm a n  v. W heaton-H aven  R ecrea tion  A ssocia tion ,

410 U.S. 431 (1973) .................................................... 22
Traffic-ante v. M etropolitan  L ife  Insurance Go., 409

U.S. 205 (1972) .......................................................  8
W R M A  B roadcasting  Co. v. H aw thorne, 365 F. Supp.

577 (M.D. Ala. 1973) .................................................. 18
W a lker  v. P o in ter, 304 F. Supp. 56 (N.D. Tex. 1969) .. 18 
W a ters  v. W isconsin  S tee l W o rks, 502 F.2d 1309 (7th 

Cir. 1974), pets, for eert. pending, Nos. 74-1064, 
74-1350 .......................................................................  21

Page

i i

250



Page
Constitution and Statutory Provisions 

Constitution of the United States
Amendment V ............      19
Amendment XIII ............................................  8, 17, 18
Amendment XIV ......................    17

Civil Bights Act of 1866 :
42 U.S.C. § 1981........................................... 2-3, 5, 6-21
42 U.S.C. § 1982 .................................................... 7,18

Civil Rig’hts Act of 1870, c. 144, 16 S tat. 140.............. 17
Civil Rights Act of 1964:

Title I I ........................................................................ 22
Title V I I .................................................. 2-3, 5-6, 20-29

National Labor Relations A ct ..........................  3,6, 26-28
Revised Statutes of 1874, §§ 1977, 1978 ..................... 18

Legislative Materials
71 Cong. Globe (39th Cong. 1st Sess.)—debates lead­

ing to Civil Rights Act of 1866 ..................... 8-11,18
72 Cong. Globe (39th Cong. 1st Sess.)—debates lead­

ing to Civil Rights Act of 1866 ........................  9-17,18
EEOC, Legislative History of Titles VII and XI of 

the Civil Rights Act of 1964 ........................  2, 22-24
Other Materials

Comment, Racial Discrimination in Employment un­
der the Civil Rights Act of 1866, 36 U. Chi. L. Rev.
615 (1969) ..................................................................  22

i i i

251





IN THE

i>uprm£ dmtrt a i  thp $mtR& States
OCTOBER TERM, 1975

No. 75-260

L. N. M cD onald and R aymond L . L aird,
Petitioners,

v.
Santa F e  T ransportation Company and 

Teamsters F reight, T ank  L ine  and A utomobile I ndustry 
E mployees, L ocal U nion No. 988,

Respondents.

MOTION FOR LEAVE TO 
FILE A BRIEF AS AMICUS CURIAE

The American Federation of Labor and Congress of In­
dustrial Organizations (hereinafter “ AFL-CIO” ) hereby 
moves for leave to file the attached brief as am icus curiae 
in support of the position of the petitioners in the above 
captioned case.

The AFL-CIO is a federation of 110 national and inter­
national unions having a total membership of 14 million 
working men and women of all races, creeds and colors. 
From its inception, AFL-CIO has championed the elimina­
tion of all vestig’es of racial discrimination from American 
life. It has endeavored to further this goal through the 
rule of law, and because of its commitment has sought no 
exemptions for unions from the sweep of federal statutes 
addressed to that end. Thus, as AFL-CIO President George 
Meany stated, when testifying in support of the passage of

253



2

Title VII of the Civil Rights Act of 1964:
“ The leadership of the AFL-CIO, and of the sep­

arate federations before merger, has been working 
ceaselessly to eliminate those prejudices. The leaders 
of every affiliated national and international union are 
enlisted in the same effort. We have come a long way 
in the last 20 years—a long way farther, I might say, 
than any comparable organization, including the re­
ligious organizations as a whole, and certainly we are 
a generation or more ahead of the employers as a 
whole.

“ But we have said repeatedly that to finish the job 
we need the help of the U.S. Government, * * * When 
the rank-and-file membership of a local union obsti­
nately exercises its right to be wrong, there is very
little we in the leadership can do about it, unaided. # * #

“ In short, I am not here to ask for special exemp­
tions for unions; quite the contrary. I hope the law you 
draft will cover the whole range we ourselves have 
written into our constitution * * *.” *

See also the Brief in which the AFL-CIO joined this Term 
in F ra n ks  v. B ow m an T ra n sp o rta tio n  Co., No. 74-728, 
argued November 3, 1975.

The decision below is troubling to the AFL-CIO and its 
affiliates in two respects: (1) it declares that a federal 
law—42 U.S.C. § 1981—extends protections against racial 
discrimination to members of one race but not members of 
another; and (2) it holds that the victims of racial dis­
crimination in employment may not invoke the protections

* EEOC, Legislative History of Titles VII and XI of the Civil 
Rights Act of 1964, pp. 2158-59.

254



3

of another federal law, Title VII, if they have engaged in 
conduct amounting to a crime under State law.

The Federation believes that the two conclusions reached 
below are wrong as a matter of statutory interpretation; 
but more, that they are unfortunate impediments to the 
national interest in eradicating racial discrimination. The 
first is inconsistent with the basic precept of “ equal justice 
under law”  which in our variegated society must be the 
touchstone of all legislation designed to cure discrimina­
tion. The second cuts into the protection against actions 
motivated by racial discrimination which Congress in­
tended to furnish in enacting Title VII.

With respect to the first of the issues presented herein— 
whether 42 U.S.C. § 1981 protects whites against racial dis­
crimination—the Federation believes that its extensive re­
search into the legislative history of the statute may be of 
assistance to the Court. Although the petition refers to 
portions of that history, we have tendered in the attached 
brief a more complete recitation of the materials disclosing 
that Congress intended in § 1981 to afford protection 
against racial discrimination to whites as well as blacks.

With respect to the second issue presented—the avail­
ability of Title VII protections to employees who have 
committed acts of misconduct against their employer 
amounting to crimes under State law—the court below 
purported to find support for its holding in decisions under 
the National Labor Relations Act. In the attached brief, 
we have drawn upon our extensive experience under the 
NLRA to show that, quite the contrary to what the court 
below believed, the NLRA cases support petitioners’ posi­
tion.

255



i

WHEREFORE, AFL-CIO respectfully prays that this 
motion be granted, and that the attached brief be filed.

Respectfully submitted,
J. A lbert W oll 
R obert C. Mayer 

736 Bowen Building- 
815 Fifteenth Street, N.W. 
Washington, D.C. 20005

L aurence Gold 
815 Sixteenth Street, N.W. 
Washington, D.C. 20006

Attorneys for AFL-CIO

256



IN THE

Smynmu' (Emtrt of tho Hutted States
OCTOBER TERM, 1975 

No. 75-260

L. N. M cD onald and R aymond L. L aird,
P etitio n ers ,v.

Santa F e T ransportation Company and 
Teamsters F reight, T ank L in e  and A utomobile I ndustry 

E mployees, L ocal U nion No. 988,
_____  Respondents.

BRIEF FOR THE
AMERICAN FEDERATION OF LABOR AND 

CONGRESS OF INDUSTRIAL ORGANIZATIONS 
AS AMICUS CURIAE

The American Federation of Labor and Congress of In­
dustrial Organizations (hereinafter “ AFL-CIO” ) files this 
brief contingent upon the granting of the foregoing motion.

SUMMARY OF ARGUMENT
I

The legislative history makes unmistakably clear that 
Congress intended 42 U.S.C. § 1981, which forbids racial 
discrimination with respect to certain enumerated matters, 
to protect whites as well as blacks against such discrimi­
nation. That history is detailed at pp. 8-18 in fra .

II
Title VII indisputably protects whites as well as blacks 

against racial discrimination. The court below, however,

257



6

held that employees of any race who engage in criminal 
conduct against their employer may not challenge the em­
ployer’s discipline as violative of Title VII. That holding 
contravenes well-established principles.

An employer of course may discipline his employees fo r  
m isconduct. But he cannot seize upon that misconduct as 
a pretext for imposing discipline for illegal reasons such 
as race. Disparate treatment is powerful evidence of illegal 
motivation, for the employer has shown by his more lenient 
treatment of others that his business interests do not dic­
tate the harsher treatment. These principles, which this 
Court fully embraced in M cD onell D ouglas Corp. v. Green, 
411 U.S. 792 (1973), have also been applied for decades 
under the National Labor Relations Act, which Congress 
used as a model in drafting Title VII. The principles are 
as applicable to misconduct which is “ criminal”  as to any 
other misconduct. State law may intervene to punish crimes, 
but the principles established by federal law do not . bend 
out of shape simply because conduct is a State law crime. 
Petitioners have stated a claim of violation of Title VII.

ARGUMENT
I. THE SECTION 1981 CLAIM

Petitioners, two white employees, were fired for mis­
appropriating their employer’s property. A black employee 
who participated with them in the theft was not fired. The 
petitioners contend that the black employee was equally 
culpable, that the employer imposed heavier discipline on 
them because of their race, and accordingly that their 
rights under 42 U.S.C. § 1981 were violated.

For petitioner’s allegations to state a claim under § 1981, 
two legal propositions must be resolved in their favor:

258



7

(1) That such protections against racial discrimination 
as §1981 affords extend to whites as well as blacks; and

(2) That §1981’s guarantee of equal rights to “ make 
and enforce contracts”  is transgressed by an employer’s 
imposition of disparate discipline, because of race, upon 
equally culpable employees.

The court below ruled against petitioners on the first 
proposition, and never addressed the second. As we show 
in Part A, the court was wrong on the issue it decided: 
§ 1981 protects whites equally with blacks. Then, in Part 
B, we suggest that this Court not decide the second prop­
osition now, but rather leave it for initial consideration 
below.

A. Such Protections Against Racial Discrimination As 42
U.S.C. § 1981 Affords Extend To Whites As Well As
Blacks

42 U.S.C. § 1981, a portion of Section 1 of the Civil Rights 
Act of 1866,1 provides:

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

The court below held that this statute forbids discrimi­
nation against blacks because of their race, but not dis­
crimination against whites because of th e ir  race. That was

1 The other portion is codified as 42 U.S.C. § 1982.

259



its reading of the words “ all persons . . . shall have the 
same right . . .  to make and enforce contracts . . .  as is en­
joyed by white citizens.”  But a statutory direction that 
blacks shall have “ the same right”  as whites can just as 
reasonably be understood to preclude according preferen­
tial rights to blacks. Moreover, § 1981 does not stop with 
the above-quoted language, but adds that “ all persons . . . 
shall be subject to like punishment, pains, penalties, . . . 
and exactions of every kind.”  Thus, in its entirety, the 
language of the statute suggests that Congress intended to 
forbid racial discrimination against whites as well as 
against blacks. And the legislative history confirms that 
this is so.2

The bill which eventuated in the Civil Rights Act of 
1866 was reported out by the Senate Judiciary Committee 
on January 12, 1866, a few days after the Thirteenth 
Amendment had been adopted. The bill’s title when intro­
duced—and the title which it retained upon enactment— 
was “ An act to protect all persons in the United States in

8

- The petitioners have east the question before this Court as one 
of standing': “ Whether white employees . . . have standing to sue 
under the Civil Rights Act of 1866, 12 U.S.C. § 1981.” Petition, 
p. 2. We believe the question is rather one of the substantive mean­
ing of the statute. If § 1981 prohibits racial discrimination against 
whites, petitioners of course have standing to assert that their 
rights under the statue have been violated. If, on the other hand, 
§ 1981 forbids only racial discrimination against blacks, petitioners 
have failed to state a claim of violation. This is not a case in which 
whites seek to predicate a claim upon alleged racial discrimination 
against blacks—the context in which standing becomes the critical 
question. Sullivan v. Little Hunting Park, Inc., 390 U.S. 229, 237 
(1909); Traffieunte v. Metropolitan Life Insurance Co., 409 U.S. 
205, 209, n. 8 (1972).

260



9

their civil rights and furnish the means of their vindica­
tion.” 3

As introduced, Section 1 of the bill declared that “ the 
inhabitants of every race or color . . . shall have the same 
right to make and enforce contracts, . . . and shall be sub­
ject to like punishment, pains, and penalties, and to none 
other . . . ” 4 It did not contain the additional phrase “ as is 
enjoyed by white citizens. ’ ’

Senator Trumbull, the Chairman of the Judiciary Com­
mittee, was the principal spokesman for the bill. When 
Senator Davis, an opponent of the bill, suggested that the 
bill was unfair to whites, Senator Trumbull issued an im­
passioned refutation.

“ He [Senator Davis] denounces this bill as ‘ outra­
geous,’ ‘most monstrous,’ ‘ abominable,’ ‘ oppressive,’

3 71 Cong. Globe (39th Congress, 1st Session) 211 (remarks of 
Senator Trumbull) ; 72 Cong. Globe 1861 (remarks of the Speaker).

4 The full text of Section 1, as introduced, was:
‘ ‘ There shall be no discrimination in civil rights or immuni­

ties among the inhabitants of any State or Territory of the 
United States on account of race, color, or previous condition 
of slavery; but the inhabitants of every race and color, with­
out regard to any previous condition of slavery or involuntary 
servitude, except as a punishment for crime whereof the party 
shall have been duly convicted, shall have the same right to 
make and enforce contracts, to sue, be parties, and give evi­
dence, to inherit, purchase, lease, sell, hold and convey real 
and personal property, and to full and equal benefit of all laws 
and proceedings for the security of person and property, and 
shall be subject to like punishment, pains, and penalties, and to 
none other, any lavr, statute, ordinance, regulation, or custom 
to the contrary notwithstanding.” 71 Cong. Globe 474; see 
also id. at 211.

261



1 0

‘ iniquitous,’ ‘ unconstitutional,’ and ‘ void.’

“ Now, what is this bill that is obnoxious to such 
terrible epithets? I t  is a bill p ro v id in g  tha t all people 
shall have equal righ ts. Is not that abominable ? Is not 
that iniquitous? Is not that most monstrous? Is not 
that terrible on white men? [Laughter.] When was 
such legislation as this ever thought of for white men!

“ S ir , th is  bill applies to w h ite  m en as w ell as black 
men. I t  declares tha t all persons in  the U nited  S ta tes  
shall be en titled  to the sam e civil r igh ts, the right to 
the fruit of their own labor, the right to make con­
tracts, the right to buy and sell, and enjoy liberty and 
happiness; and that is abominable and iniquitous and 
unconstitutional! Could anything be more monstrous 
or more abominable than for a member of the Senate 
to rise in his place and denounce with such epithets as 
these a bill, the only object o f w hich is to secure equal 
righ ts to all the citizens o f the coun try , a bill tha t pro­
tects a w h ite  m an  ju s t  as m uch as a black m a n t W ith  
w hat consistency and iv ith  w hat face can a S en a to r  in  
his place here say to the S en a te  and the co u n try  that 
th is is a bill fo r  the benefit o f black m en  exclusively  
w hen there is no such d istin c tio n  in  it , and w hen the 
v e ry  object o f the bill is to break doivn all d iscrim ina­
tion  between black m en and w h ite  m en ? ” 5

On February 2, 1866, the Senate passed the bill without

“ 71 Cong. Globe 599 (remarks of Senator Trumbull) (emphasis 
added). Opponents, too, understood that the bill protected whites. 
Id, at 500, 603 (remarks of Senator Cowan) ; Id, at 505 (remarks 
of Senator Johnson). Even Senator Davis, whose contrary under­
standing had provoked Senator Trumbull’s refutation, later indi­
cated his recognition that pursuant to the bill “ all the people of 
every State, black and white, shall have the same civil rights eo 
nomine.” 72 Cong. Globe 1415 (remarks of Senator Davis),

262



1 1

material change.6 The bill then went to the House,7 and on 
March 1, 1866, the debate on the bill commenced on the 
floor of the House. Representative Wilson, the Chairman 
of the House Judiciary Committee and the floor manager 
of the bill, explained that his Committee proposed that the 
bill be amended by changing the word “ inhabitants”  to 
“ citizens” :

“ This amendment is intended to confine the operation 
of this bill to citizens of the United States, instead of 
extending it to the inhabitants of the several States, 
as there seems to be some doubt concerning the power 
of Congress to extend this protection to such inhabi­
tants as are not citizens. ’ ’ 8

Representative Wilson then offered “ the following amend­
ment, not as coming from the committee, but because it is 
necessary to perfect the amendment already offered ’ ’ :

“ Insert after the word ‘property’ in line fifteen of the 
first section, the words ‘ as is enjoyed by white citi­
zens’ ; so that the clause will read: shall have the 
same right to make and enforce contracts, to sue, be 
parties, and give evidence, to inherit, purchase, lease, 
sell, hold, and convey real and personal property, as 
is enjoyed by white citizens.”  9

Representative Wilson’s description of the bill’s purpose, 
which followed immediately after he proposed this change, 
makes clear that he did not intend by adding these words

6 71 Cong. Globe 606-607.
7 71 Cong. Globe 646.
8 72 Cong. Globe (39th Congress, 1st Session) 1115 (remarks 

of Rep. Wilson).
9 Ibid,

263



1 2

to remove the bill’s prohibition of racial discrimination 
against whites:

“ It provides for the equality of citizens of the United 
States in the enjoyment of ‘ civil rights and immuni­
ties’ * * *
“ * * * [0 ]ivil rights are the natural rights of man; 
and these are the rights which this bill proposes to 
protect every citizen in the enjoyment of throughout 
the entire dominion of the Republic.
“ * * * W h a tev er  exem ptions there m a y  he shall apply  
to all citizens alike. One race shall not he m ore favored  
in  th is  respect than another. One class shall not he 
requ ired  to support alone the burdens w hich should  
rest on all classes alike. T h a t is the sp ir it  and scope of 
the bill, and it  goes not one s tep  b eyond .” 10

He added that if all citizens were of one race there would 
be no need for the bill:

“ But such is not the case, and we must do as best we 
can to protect our citizens, from the highest to the 
lowest, from the whitest to the blackest, in the enjoy­
ment of the great fundamental rights which belong to 
all men.”  11

Representative Shellabarger, a supporter, answered 
charges that the bill invaded States’ rights. He explained 
that Section 1:

“ neither confers nor defines nor regulates any right 
whatever. Its whole effect is not to confer or regulate 
rights, but to require that whatever of the enumerated 
rights and obligations are imposed by State laws shall

10 72 Cong. Globe 1117 (remarks of Rep. Wilson) (emphasis 
added).

11 72 Cong, Globe 1118 (remarks of Rep. Wilson).

264



be for and upon all citizens alike without distinctions 
based on race or former condition in slavery.

“ # * * Its whole effect is to require that whatever 
rights as to each of these civil . . . matters the States 
may confer upon one race or color of the citizens shall 
he held hy all races in  equality. Your State may deprive 
women of the right to sue or contract or testify, and 
children from doing the same. B u t i f  you  do so, or do 
no t do so as to one race, you  shall trea t the o ther  
likew ise .” 12 13

The bill was passed by the House,18 and was returned to 
the Senate. Because of the amendments which the House 
had made,14 the bill was referred to the Senate Judiciary 
Committee for consideration.15 On the following day, the 
Senate Committee unanimously recommended concurrence 
in the House amendments.16

12 72 Cong. Globe 1293 (remarks of Rep. Shellabarger) (emphasis 
added). Other supporters expressed like views. Id. a t 1124 (remarks 
of Rep. Cook) ; at 1159 (remarks of Rep. Windom). None expressed 
a contrary view.

13 72 Cong. Globe 1367.
14 In addition to the amendments discussed heretofore, the House 

amended the bill in one other important respect. As explained in 
Georgia v. Rachel, 384 U.S. 780, 791-792 (1966), the Senate bill had 
contained “ a general provision forbidding ‘discrimination in civil 
rights or immunities,’ preceding the specific enumeration of rights 
to be included in § 1. Objections were raised in the legislative 
debates to the breadth of the rights of racial equality that might be 
encompassed by a prohibition so general as one against ‘discrimina­
tion in civil rights or immunities.’ There was sharp controversy in 
the Senate, but the bill passed. After similar controversy in the 
House, however, an amendment was accepted striking the phrase 
from the bill.”

15 72 Cong. Globe 1365.
16 72 Cong. Globe 1376.

13

265



14

The House’s addition of the words “ as is enjoyed by 
white citizens”  sparked the following exchange on the 
Senate floor:

‘ ‘ MR. VAN WINKLE: There seems to he an incon­
gruity in this language. . . . The clause commences 
with the words ‘ and such citizens.’ As I understand 
those words they include all persons who are or can 
be citizens, white persons and all others. The clause 
then goes on to provide that ‘ such citizens of every 
race and color, without regard to any previous condi­
tion of slavery or involuntary servitude, shall have the 
same right to make and enforce contracts,’ &e., ‘ as is 
enjoyed by white citizens.’ It seems to me these words 
are superfluous. The idea is that the rights of all per­
sons shall be equal; and I think the clause, leaving out 
these words, would attain the object. This is merely a 
verbal criticism. I think the bill is incongruous in 
expression as it stands.

“ MR. TRUMBULL: I quite agree with the Senator 
from West Virginia that these words are superfluous. 
I do not think they alter the bill. I think the bill Would 
be better without them, but they have been adopted by 
the House of Representatives. We did not think they 
altered the meaning of the bill; and we did not think 
it worthwhile to send the bill back just because these 
words were inserted by the House. They thought there 
was some importance in them and have inserted them; 
and as in the opinion of the committee which examined 
this matter they did not alter the meaning of the bill, 
the committee thought proper to recommend a con­
currence, and I hope the Senate wall concur in it.

“ MR. VAN WINKLE : It is a mere verbal correction 
that I suggested, and I am not at all strenuous about 17

17 72 Cong. Globe 1413.

266



15

The Senate approved the bill with the House amendments,18 
and the bill was referred to the President.

President Johnson vetoed the bill. He stated that “ a 
perfect equality of the white and black races is attempted 
to be fixed by Federal law” ; that as to the matters enumer­
ated in the bill no State could “ ever exercise any power of 
discrimination between the different races ’ ’ ; that Congress 
was seeking to “ abrogate all State laws of discrimination 
between the two races in the matter of real estate, of suits, 
and of contracts generally” ; and that Congress was seek­
ing to “ repeal all State laws discriminating between whites 
and blacks in the subjects covered by this bill. ’ ’ 19

When the Senate took up reconsideration of the bill 
following the veto, Senator Trumbull confirmed the ac­
curacy of the President’s reading:

“ The bill neither confers nor abridges the rights of 
anyone, but simply declares that in civil rights there 
shall be an equality among all classes of citizens and 
that all alike shall be subject to the same punishment 
. . . Each state . . . may grant or withhold such civil 
rights as it pleases; all that is required is that, in this 
respect, its laws shall be impartial. ’ ’ 20

The Senate voted to override the veto, and the bill was 
referred to the House.21 In the House the principal speech 
urging that the veto be overridden was delivered by Repre­
sentative Lawrence, and it included the following obser­
vations :

18 72 Cong. Globe 1422.
19 72 Cong. Globe 1679-80 (veto message of President Johnson).
20 72 Cong'. Globe 1760 (remarks of Senator Trumbull).
21 72 Cong. Globe 1809.

267



16

“ [The bill] does not confer any civil right, but so far 
as there is any power in the States to limit, enlarge, 
or declare civil rights, all these are left to the States.

“ But it does provide that as to certain enumerated 
civil rights every citizen ‘ shall have the same rigid 
in every State and Territory.’ That is ivha tever of 
certa in  civil r ig h ts  m ay he en joyed  by any shall be 
shared by all c itizens in  each S ta te , and in  the T e r r i­
tories, and these are:

“ 1. To make and enforce contracts.
“ 2. To sue, to be sued, and to be parties.
“ 3. To give evidence.
“ 4. To inherit, purchase, lease, sell, hold and convey 

real and personal property.
“ 5. To be entitled to full and equal benefit of all laws 

and proceedings for the security of person and 
property. ” .. .

“ T h is  bill, in  tha t broad and com prehensive ph ilan­
th ro p y  w hich regards all m en in  the ir  c ivil r igh ts as 
equal before the law, is no t m ade fo r  any class or 
creed, or race or color, but in  the g rea t fu tu re  that 
aw aits us w ill, i f  it become a law, p ro tec t every  citi­
zen. . . . ” 22

In an eloquent closing, Representative Lawrence declared:

“ Mr. Speaker, this Nation must settle the question 
whether among her own citizens there may be a dis­
crimination in the enjoyment of civil rights . . .  If 
States may deny to any class of our citizens the right 
to make contracts, to own a homestead; may strip men 
of all that is valuable in life; if we shall sanctify this

22 7 2 Cong. Globe 1832, 1833 (remarks of Rep. Lawrence) (em­
phasis added).

268



17

as the mission of the American Government, some 
fr ien d less  class or race m ay su ffe r  today, but as sure  
as re tr ib u tive  ju stice  ex is ts  the terrib le  w rong w ill 
sooner or la ter ‘re tu rn  to p lague the in v e n to rs ,’ and  
u:c who have ‘sow n the w in d ’ m ay ‘reap the w h irlw in d .’

“ But if we shall [vindicate the Constitution by en­
acting this bill] then may we hope that the men of 
today and of all times will enjoy its benefits and bless­
ings forever.”  23

On April 9,1866, the House joined the Senate in overriding 
the veto, and the bill became law.24 25

Soon thereafter, in part because some Congressmen were 
concerned that the Thirteenth Amendment might be held 
to have been insufficient authority for enactment of the 
Civil Rights Act of 1866, Congress proposed the Four­
teenth Amendment.26 In 1870, following the ratification of 
the latter Amendment, Congress re-enacted the provisions 
of Section 1 of the 1866 Act,26 changing the words “ such 
citizens of every race or color”  to “ all persons within the 
jurisdiction of the United States”  in order to extend the 
Act’s protections to aliens.27 Subsequent codifications of

26 72 Cong. Globe 1837 (remarks of Rep. Lawrence) (emphasis 
added).

24 72 Cong. Globe 1861.
25 H u r d  v. H o d g e , 334 U.S. 24, 32-33 (1948).
26 Sections 16 and 18 of the Act of May 31, 1870, c. 144, §§ 16, 

18, 16 Stat. 140, 144.
27 The legislative history of this extension is described in G uerra  

v. M a n ch es ter  T e rm in a l Gorp., 350 F. Supp. 529, 533-536 (S.D. Tex. 
1972), affirmed on this issue, 498 F.2d 641, 653-654 (5th Cir. 1974). 
See also T a ku h a sh i v. F ish & Game Commission, 334 U.S. 410, 419- 
420 (1948).

269



18

tlie 1866 Act have split Section 1 into two parts, now ap­
pearing as 42 U.S.C. §§1981, 1982.28

The foregoing legislative history shows beyond question 
that Congress intended Section 1 of the 1866 Act to apply 
to racial discrimination against whites, as well as against 
blacks, and the court below erred in declaring otherwise.29

28 See, previously, Revised Statutes of 1874, §§ 1977, 1978.
29 The question of Congress’ constitutional authority to protect 

whites against private employment discrimination has been little 
discussed in the cases. Congress did not purport to be acting under 
the commerce clause when it enacted § 1981, and this Court did not, 
in Jones v. Mayer Co., 392 U.S. 409 (1968), suggest that the 1866 
A ct’s application to private discrimination was confined to instances 
of involvement of interstate commerce. Assuming that § 1981 
reaches private employment discrimination (see pp. 19-20, n.30, 
infra), two other constitutional predicates are available for its pro­
tection of whites:

(1) The Congress which enacted the 1866 Act thought that 
the enabling clause of the Thirteenth Amendment authorized it 
to protect persons of all races against racial discrimination 
regarding fundamental righ ts: any such racial discrimination 
was a “ badge or incident of slavery.” See, e.g., 71 Cong. Globe 
474 (remarks of Senator Trumbull) ; 72 Cong. Globe 118 (re­
marks of Representative Wilson) ; Icl. at 1124 (remarks of Sen­
ator Cook) ; Id. at 1159 (remarks of Representative Windom). 
See also Walker v. Pointer, 304 F. Supp. 56, 58 (N.D. Tex. 
1969).

(2) In any event, as the Thirteenth Amendment at least 
authorized Congress to protect blacks against private racial 
discrimination, Jones v. Mayer Co., supra, 392 U.S. at 437-444, 
Congress’ authority to assure that an enactment to that effect 
did not result in preferential treatment of blacks may be 
seen as “ a power ancillary to the enabling clause of the Thir­
teenth Amendment,” WRMA Broadcasting Co. v. Hawthorne, 
365 F. Supp. 577, 581 (M.D. Ala. 1973) (Johnson, J .) , Cf. 
Houston, E.d-W.T.R. Co. v. United States, 234 U.S. 342 (1914).

(Footnote continued on next page.)

270



19

B. This Court Should Not Reach or Decide the Question 
Whether the Particular Act of Racial Discrimination 
Alleged Here Would, if Proved, Constitute a Violation 
of § 1981

We have shown that whatever protections against racial 
discrimination are afforded to blacks by 42 U.S.C. § 1981 
are afforded to whites as well. A holding to that effect is 
sufficient to dispose of the lone § 1981 issue addressed by 
the courts below, and would warrant a remand of this case 
for further proceedings consistent with that holding. We 
respectfully urge that this Court not take the further step 
of deciding whether the particular act of racial discrimina­
tion alleged here—the imposition of disparate discipline, 
because of race, upon equally culpable employees—-would, 
if proved, constitute a violation of § 1981.30

Indeed, had Congress not extended § 1981’s protection to whites 
it might have run afoul of the F ifth  Amendment, by forbidding 
discrimination against one race while countenancing it against the 
other. The instant case highlights the constitutional issue. The 
petitioners here alleged that white and black employees had 1 ‘ equal 
complicity” in a jointly-perpetrated theft, and that the employer 
meted out disparate discipline solely because of their race. Could 
Congress, consistently with the F ifth  Amendment, forbid the em­
ployer’s visiting the heavier discipline upon the black because of 
his race, while leaving the employer free to visit the heavier disci­
pline upon the whites because of th e ir  race ?

30 This Court has declared that § 1981’s provision relating to 
■‘racial discrimination in the making and enforcement of contracts” 
affords “ a federal remedy against discrimination in private em­
ployment on the basis of race. ” J o h n so n  v. R a ilw a y  E x p re s s  A g e n c y , 
421 U.S. 454, 459-460 (1975). No party in J o h n so n  questioned the 
applicability of §1981 to private employment discrimination (cf. 
Bob J o n es  U n iv e rs ity  v. S im o n , 416 U.S. 725, 740 n. 11 (1974) ), 
and no party in the instant case has asked the Court to reconsider 
the correctness of Jo h n so n . Accordingly, our discussion in the text

(F o o tn o te  c o n tin u e d  on n e x t p a g e .)

271



20

This Court observed in Jo n es  v. M ayer Co., supra , 392 
U.S. at 413, that 11982 is “ not a comprehensive open hous­
ing law,”  and in that respect has a more limited substan­
tive scope than the recently-enacted civil rights laws reg­
ulating housing discrimination. In like manner, 1 1981 is 
not a comprehensive fair employment law. Unlike Title VII 
of the Civil Eights Act of 1964, which devotes hundreds of 
words to defining what is and is not discriminatory em­
ployment conduct, § 1981 merely prohibits racial discrimi­
nation with respect to the “ right . . .  to make and enforce 
contracts.”  Moreover, as noted above (p. 13, n. 14), the 
Congress which enacted the 1866 Act rejected a compre­
hensive anti-discrimination clause in favor of one confined 
to specifically enumerated subjects, thus suggesting cau­
tion in defining § 3981’s sweep.

assumes Johnson’s continued viability. In other pending cases, 
however, this Court has been asked to reconsider the correctness of 
its seminal holding- in Jones v. Mayer Co.—from which Johnson 
flowed—that Section 1 of the Civil Rights Act of 1866 applies to 
private discrimination. Runyon v. McCrary, No. 75-62, cert. gr. 
44 LAV. 3279 (1975) (Petition, pp. 6-9) ; see also Fairfax-Brewster 
School, Inc. v. Gonzales, No. 75-66, cert. gr. 44 LAV. 3279 (1975) 
(Petition, pp. 7-9). The correctness of Jones v. Mayer Co. has been 
much debated. See, e.g., Sullivan v. Little Hunting Park, 396 U.S. 
229, 241 (1969) (dissenting opinion of Mr. Justice Harlan, joined 
by the Chief Justice and Mr. Justice White) ; McCrary v. Runyon, 
515 F.2d 1082, 1086-87 (4th Cir. 1975) (en banc). As the issue is 
before the Court pursuant to the grant of certiorari in Runyon v. 
McCrary, and so that no implication may be drawn from our silence, 
we are constrained to observe that a reading of the legislative 
history of the 1866 Act in its entirety, which we undertook in prep­
aration of this brief and of the brief we joined in Franks v. Bow­
man Tpn. Co., No. 74-728, has left us with an indelible impression 
that the Congress of 1866 thought its bill applied only to State 
action.

272



21

The content to be imparted to the words “ make and en­
force contracts”  has been little explored by the lower 
courts, and has not been addressed by any court in the 
context of the particular behavior alleged here: disparate 
discipline. It is one thing to hold that an employer who 
discriminatorily refuses to hire the members of a particular 
race has violated § 1981: by his conduct he has engaged in 
racial discrimination in the making of employment con­
tracts. It is quite another to say that every discriminatory 
action taken by an employer against his employees consti­
tutes invasion of the “ equal right”  to “ make and enforce 
contracts” . Compare the widely divergent interpretations 
of that phrase in the majority and dissenting opinions in 
M cC rary  v. R u n yo n , 515 F.2d 1082 (4th Cir. 1975) ( en banc), 
cert. gr. 44 L.W. 3279 (1975).31

The substantive scope of § 1981 has not been considered 
by either of the lower courts in the instant case, was not 
discussed by the parties in the petition and briefs in oppo­
sition, and quite likely will not be addressed in the briefs 
on the merits. In these circumstances, we respectfully sug­
gest that the matter be left for initial exploration by the 
courts below.32

31 See also the cross-petition for certiorari in United Order of 
American Bricklayers v. Waters, No. 74-1350, pp. 2, 17.

32 There is an additional consideration which may arise in some 
§ 1981 employment cases, albeit not in this one. In enacting Title 
VII of the 1964 xlct, Congress determined that there were some 
practices which, although arguably discriminatory, should not be 
invalidated by Title VII. Section 703 (e )-(j), 42 U.S.C. § 2000e-2 
(e)-(j). There may conceivably develop instances where conduct 
specifically protected in Title V II is said to violate § 1981. The 
question of the interrelationship of the two laws would then be 
posed. As Congress focused specifically on private employment

(Footnote continued on next page.)

273



2 2

II. THE TITLE VII CLAIM
Title ArII of the Civil Rights Act of 1964, § 703(a), 42 

U.S.C. §2G00e-2(a), provides:

“ It shall be an unlawful employment practice for an 
employer—

“ (1) To fail or refuse to hire or to discharge any 
individual or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race.. . . ”

No party herein disputes that this provision forbids racial 
discrimination against whites as well as against blacks. 
“ Discriminatory preference for any group, minority or 
majority, is precisely and only what Congress has pro­
scribed.”  G riggs v. D uke P ow er Co., 401 U.S. 424, 431 
(1971). The legislative history of Title VII clearly evi­
dences Congress’ intention to forbid racial discrimination 
against whites.33

discrimination in shaping the 1964 Act, but did not do so at all 
when considering the 1866 Act, there are substantial arguments 
for harmonizing the substantive reach of the two statutes in such 
instances. Comment, R a cia l D isc r im in a tio n  in  E m p lo y m e n t u n d e r  
th e  C iv il R ig h ts  A c t  o f  1866, 36 U. Chi. L. Rev. 615, 632-633 (1969). 
See also W a te r s  v. W isco n sin  S te e l W o rk s , 502 F.2d 1309. 1320, n. 4 
(7th Cir. 1974), pets, for cert, pending, Nos. 74-1064, 74-1350. Cf. 
B o y s  M a rk e ts , P ic . v. R e ta il C lerks U n ion , 398 U.S. 235, 249-253 
(1970). This Court has recognized that a similar question exists with 
respect to the interrelationship between § 1982 and Title II  of the 
1964 Act. T illm a n  v. W h e a to n -R a v e n  R ecrea tio n  A sso c ia tio n , 410 
U.S. 431, 438-439 (1973).

83 The floor managers of Title V II in the Senate, Senators Clark 
and Case, introduced a series of materials designed to constitute a 
definitive interpretation of Title VII. One of these materials was a

(F o o tn o te  c o n tin u e d  on n e x t  page .)

274



23

In the instant case, petitioners allege that for reasons of 
race their employer has imposed more severe discipline 
upon them than upon an equally-culpabie black co-employee 
for a jointly perpetrated theft against the employer. The 
court below ruled that petitioners did not state a claim of 
violation of Title VII: having admitted the commission of 
a criminal act against their employer, the court below rea-
series of “ objections” and “ answers” . Among the “ objections” 
was the following:

“ Objection: Many employers will lean over backwards to 
avoid discrimination, and as a result will discriminate against 
other employees. . . .
“ Answer: . . . [T]he Commission has a clear mandate to 
engage in widespread educational and promotional activities 
to encourage understanding and acceptance of the policy of 
the Act, including the obligation not to discriminate against 
whites.” EEOC, Legislative History of Titles V II and XI of 
Civil Rights Act of 1964 (hereinafter “ Leg. H ist.” ) 3014-15. 

Yet another of the “ objections” was as follows:
“ Objection: The bill would require employers to establish 
quotas for non-whites in proportion to the percentage of non­
whites in the labor market area.
“ Answer: Quotas are themselves discriminatory”  (Leg. Hist. 
3015).

Another of the legislative materials introduced was an interpreta­
tive memorandum prepared by Senators Clark and Case. Insofar as 
relevant here, the memorandum stated :

“ There is no requirement in Title V II that an employer main­
tain a balance in his work force. On the contrary, any deliber­
ate attempt to maintain a racial balance, whatever such a 
balance may be, would involve a violation of Title V II because 
maintaining such a balance would require an employer to hire 
or to refuse to hire on the basis of race” . (Leg. Hist. 3040).

The memorandum also stated that employers would “ not be obliged 
— or in d eed , p e r m it te d —to fire whites in order to hire Negroes, 
or to prefer Negroes for future vacancies, or, once Negroes are

(F o o tn o te  c o n tin u e d  on next, p a g e .)

275



24

soned, Title \rII afforded them no protection against the 
consequences. This holding is wrong.

In M cD onnell D ouglas Corp. v. G reen, 411 U.S. 792, 803 
(1973), this Court recognized the self-evident proposition 
that an employee’s race or color cannot insulate him from 
the ordinary consequences of misconduct:

hired, to give them special seniority rights at the expense of the 
white workers hired earlier” ib id , (emphasis added).

Yet another of the materials introduced by Senators Clark and 
Case was a Department of Justice memorandum responding to 
certain objections which had been raised by Senator Hill. Explain­
ing that Title V II does not require racial quotas, this memorandum 
added:

“ On the contrary, any deliberate attempt to maintain a given 
balance would almost certainly run afoul of Title V II because 
it would involve a failure or refusal to hire some individual 
because of his race, color, religion, sex, or national origin. What 
Title V II seeks to accomplish, what the Civil Rights Bill seeks 
to accomplish is equal treatment for all.”  (Leg. Hist. 3245) 

Senator Williams, one of the leading supporters of the bill, ex­
plained during the debates that “ to hire a Negro solely because he 
is a Negro is racial discrimination, just as much as a ‘white only’ 
employment policy. Both forms of discrimination are prohibited by 
Title V II of this bill.” (Leg. Hist. 3189). Indeed, precisely because 
discrimination against whites was encompassed by Title VII, Con­
gress became intrigued with the question whether the Harlem 
Globetrotters could retain their identity as an all-black team. (Leg. 
Hist. 3013-14, 3191.) The conclusion was that they could, because 
they did not employ enough people to be covered by Title V II (Leg. 
Ilist. 30.13-14). In like manner, questions were raised as to the 
motion picture industry’s ability to depict black characters without 
discriminating in employment (Leg. Hist. 3013-14). The conclusion 
was that they could insist upon employees who resembled the 
characters they wished to be portrayed, but could not limit hiring 
by race (i.e., they could hire persons who “ looked” black, but 
could not insist that they be black) (ibid).

276



25

“ Nothing in Title VII compels an employer to absolve 
and reliire one who has engaged in . . . deliberate, un­
lawful activity against it. ’ ’

The court below cited M cD onnell D ouglas as supporting its 
conclusion, apparently deeming the foregoing statement 
dispositive. Manifestly, that court did not read far enough, 
for in M cD onnell D ouglas, Mr. Justice Powell went on to 
declare:

“ [B]ut the inquiry must not end here. While Title VII 
does not, without more, compel rehiring of respondent, 
neither does it permit petitioner to use respondent’s 
conduct as a pretext for the sort of discrimination pro­
hibited by § 703(a)(1). On remand, respondent must, 
as the Court of Appeals recognized, be afforded a fair 
opportunity to show that petitioner’s stated reason for 
respondent’s rejection was in fact pretext.”  Id . at 804.

In other words, an employer is free to fire employees for 
engaging in unlawful conduct, and if that is indeed its 
reason it has not violated Title VII. But the existence of 
valid grounds for discharge will not legitimatize a dis­
charge actually predicated upon race.

Of particular relevance here, in M cD onnell D ouglas this 
Court recognized that disparate treatment is powerful evi­
dence that an employment decision has been impermissibly 
tainted by racial motivation:

“ Especially relevant to such a showing would be evi­
dence that white employees involved in acts against 
petitioner of comparable seriousness to the ‘ stall-in’ 
were nevertheless retained or rehired. Petitioner may 
justifiably refuse to rehire one who was engaged in 
unlawful, disruptive acts against it, but only if this 
criterion is applied alike to members of all races.”  Id . 
at 804.

277



26

The court below purported to find support for its con­
trary holding in decisions under the National Labor Rela­
tions Act. Reference to the NLRA is, of course, appropri­
ate, for it too is an anti-discrimination statute, and Con­
gress used it as a model in drafting Title VII. A lbem arle  
P aper Co. v. M oody, 422 U.S. 405, 419-420 and n. 11 (1975). 
Indeed, in M cD onnell D ouglas, 411 U.S. at 803-804, this 
Court found “ pertinent”  the holding in L abor B oard  v. 
F a n stee l Corp., 306 U.S. 240, 255 (1939), that wrongdoers 
are not insulated from discharge fo r  th e ir  w rongs. But the 
court below erred in failing to perceive that under the 
NLRA, as under Title VII, that is not the end of the 
inquiry.

Section 8(a)(3) of the NLRA forbids discrimination on 
the basis of union allegiance or non-allegiance. As F anstee l 
recognized, this provision does not insulate a union ad­
herent from discipline for acts of misconduct. But con­
versely, an employee’s misconduct will not legitimatize 
discipline which in fact was imposed because of the em­
ployee’s union allegiance. And the strongest evidence of 
improper motivation is that other employees, who are not 
union adherents, were treated less harshly for the same 
offense. In that circumstance, the employer cannot contend 
that the discipline of the union adherent w’as necessary to 
achieve legitimate business interests—the more lenient 
treatment of others belies the claim. As this Court ex­
plained in A m erican  S h ip  B ldg . v. L abor B oard , 380 U.S. 
300, 312 (1965), “ where many have broken a shop rule, but 
only union leaders have been discharged, the Board need 
not listen too long to the plea that shop discipline was sim­
ply being enforced. ’ ’

Nor have the NLRA cases declined to apply these prin­

278



27

ciples where the particular employee misconduct consisted 
of criminal activity against the employer. Of course an em­
ployer may discipline employees for such misconduct, and 
the employees may be prosecuted by the State as well. But 
the NLRA is not an instrument of the criminal laws, and 
its principles do not bend out of shape because conduct 
amounts to a crime under State law.34 Thus, if an employer 
seizes upon an employee’s criminal conduct as a pretext 
to inflict an injury in fact motivated by the employee’s 
union allegiance, Section 8(a)(3) is violated.

The reference in the opinion below to N ix  v. N L R B , 418 
F.2d 1001 (5th Cir. 1969), appears to suggest that the Fifth 
Circuit has, in a case arising under the NLEA, taken a view 
of the scope of 18(a)(3) contrary to that just stated. In 
N ix, as here, the employee had engaged in theft against the 
employer, and the Fifth Circuit there declared that the 
theft “ furnished ample grounds for discharge.”  Id . at 
1006. But the court recognized in N ix  that there remained 
an issue as to “ whether or not the reason assigned for dis­
charge was pretextual, i.e., that the real motive for Nix’s 
discharge was his activities with the [union].”  Ib id . The 
court sustained the discharge only because it found that 
the discharge was indeed for theft, and not pretextual. Id . 
at 1006-08.

The Fifth Circuit captured the essence of the NLRA law 
in N L R B  v. F ine s ilver  Mf g.  Co., 400 F.2d 644 (5th Cir. 
1968). There three employees were involved in a fight. The 
two pro-union employees were fired; the one non-union em­
ployee was not. The court recognized, of course, that em­

See, eg., Steelworkers v. Labor Board, 370 U.S. 492, 501-502 
(1964); Labor Board v. Rice Milling Co., 341 U.S. 665, 672 (1951).

279



2 8

ployers may fire employees for fighting. But on the facts 
of the case, the court reasoned:

“ [T]he fight cannot withstand scrutiny as a reason 
for discharging [the two pro-union employees] be­
cause Gonzalez, who was friendly to management, was 
not fired. Since Gonzalez was not fired, it can reason­
ably be inferred that Palacios and Fabian would not 
have been treated differently but for their known al­
legiance to the union.”  Id . at 647.

In sum, an employer who has treated criminal conduct less 
severely when engaged in by non-union employees cannot 
be heard to say that he does not want “ criminals”  work­
ing for him: he has shown, by his retention of non-union 
“ criminals,”  that his plea is false.

For like reasons, an employer violates Title VII if, be­
cause o f race, he visits more severe discipline upon em­
ployees of one race who engage in criminal misconduct 
than upon those of another race who are equally culpable. 
That principle does no violence to the employer’s legitimate 
interests, but rather reflects his own evaluation of those 
interests. Since the employer has not deemed the miscon­
duct sufficient to merit discharge when engaged in by em­
ployees of one race, he may not be heard to assert “ busi­
ness justification”  as a shield for his racial discrimination.

Of course, in the instant case it remains for petitioners 
to prove their allegations. They have alleged, but have yet 
to prove, that in fact there was disparate treatment (i.e., 
that the black employee was indeed “ equally culpable” ), 
and that such disparate treatment was visited because of 
race, and not for other reasons.35 But petitioners’ allega­

35 For example, an employer might show that although all em-
(Footnote continued on next page.)

280



29

tions state a claim of violation of Title VII, and the court 
below erred in holding otherwise.

CONCLUSION
For the reasons set forth hereinabove, the decision below 

should be reversed.
Respectfully submitted,

J . Albert W oll 
R obert C. Mayer 

736 Bowen Building 
815 Fifteenth Street, N.W. 
Washington, D.C. 20005

L aurence G old 
815 Sixteenth Street, N.W. 
Washington, D.C. 20006

A tto rn e y s  fo r  A F L -C IO

ployees were equally culpable, their prior work records were 
greatly different and thus warranted mitigation in the case of one 
employee but not in the ease of others.

281





IN THE

Supreme Court of tje MnttelJ States
O c to b er  T e r m , 1975

No. 7 5 -2 6 0

l . n . McDo n a ld  and Ra y m o n d  l . l a ir d ,
Petitioners,

vs.

SANTA FE TRANSPORTATION COMPANY and  TEAM­
STERS FREIGHT, TANK LINE and  AUTOMOBILE 
INDUSTRY EMPLOYEES, LOCAL UNION NO. 988,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS 
CURIAE AND BRIEF OF THE CHAMBER OF 

COMMERCE OF THE UNITED STATES OF 
AMERICA AS AMICUS CURIAE

LAWRENCE B. KRAUS 
General Counsel

RICHARD B. BERMAN 
Labor Relations Counsel 
Chamber of Commerce of the 

United States of America 
1615 H Street, N. W. 
Washington, D. C. 20006

GERARD C. SMETANA 
JERRY KRONENBERG 
JULIAN D. SCHREIBER 
BOROVSKY, SMETANA, EHRLICH 

& KRONENBERG
2011 Eye Street, N. W.
Suite 800
Washington, D. C. 20006 

A ttorneys fo r  the A m icus Curiae

283





TABLE OF CONTENTS

PAGE

Summary of Argument...............................................  1
Argument.............     3

A. Caucasians Have an Actionable Right Under 42
U. S. C. Section 1981 to Challenge Racial Dis­
crimination Directed Against Them...................  4

B. Caucasians Have Actionable Rights Under Title
VII of the Civil Rights Act of 1964 to Challenge 
Racial Discrimination Directed Against Them.. 9

C. To Comport with the Constitution, Section 1981
and Title VII Must Be Read to Confer Action­
able Rights on Caucasians and Non-Caucasians 
Alike ...............................................................  13

Conclusion.......................................................................  18

285



T able of A uthorities C ited  

Cases
Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). .
Bolling v. Sharpe, 347 U. S. 497.....................................
Brady v. Bristol-Meyers, Inc., 459 F. 2d 621 (1972). . . 
Brown v. Board of Education, 347 U. S. 483 (1954). . . 
Carter v. Gallagher, 452 F. 2d 315 (CA 8, 1971), cert.

den. 406 U. S. 950 (1972).........................................
Central Presbyterian Church v. Black Liberation Front, 303

11

F. Supp. 894 (E. D. Mo. 1969)..................................9,
DeFunis v. Odegaard, 416 U. S. 312 (1974)..........13, 15,
Franks v. Bowman Transportation, Inc., et al., No. 74-728

(decision pending).......................................................
Gannon v. Action, 303 F. Supp. 1240 (E. D. Mo. 1969), 

affirmed on other grounds 450 F. 2d 1127 (CA 8,
1971)........................................ .............................

Griggs v. Duke Power Company, 401 U, S. 424 (1971) 
...............................................................................3, 11,

Hirabayashi v. United States, 320 U. S. 81......................
Hodges v. United States, 203 U. S. 1 (1906)..................5,
Hollander v. Sears, Roebuck and Co.,....... F. Supp...........

(D. Conn. 1975), 10 FEP Cases 473..........................
Hughes v. Superior Court, 339 U. S. 460 (1950)..........13,
Johnson v. Railway Express Agency, Inc., et al., 421 U. S.

454 (1975) ....................................................... 4, 5, 11,
Jones v. Alfred H. Mayer Co., 392 U. S. 409................
Korematsu v. United States, 323 U. S. 214......................
Loving v. Virginia, 388 U. S. 1 (1967). ........................
McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973)

9
13
9

17

9

15
16

16

9

12
13
13

9
16

14
8

13
13
11

286



Ill

McLaughlin v. Florida, 379 U. S. 184 (1964)........... 13
Roberts v. Boston, 59 Mass. (5 Cash.) 198 (1849)........  14
Waters v. Wisconsin Steelworkers of International Har­

vester, 472 F. 2d 476 (CA 7, 1974)............................  4
WRMA Broadcasting Co. v. Hawthorne, 365 F. Supp. 577 

(M. D. Ala. 1973). .....................................................9, 15

Statutes

Civil Rights Act of 1866..............................................passim
Section 1981, 42 U. S. C. § 1981 
Section 1982, 42 U. S. C. § 1982

Civil Rights Act of 1964................................................passim
Title VH

Enforcement Act of 1870, 16 Stat, 140, Section 18.......... 8
Executive Order 11246 ................................................passim
Executive Order 11375 .................   passim
United States Constitution, Thirteenth Amendment. . . .passim

Miscellaneous

Buchanan, The Quest for Freedom: A Legal History of the 
Thirteenth Am endm ent, 12 Hous. L. Rev. 1 (1975)... 5

Comment: Section 1981 and Private Groups, The R ight to 
Discriminate v. Freedom from Discrimination, 84 Yale
L. J. 1441 (1975).........     6

Cong. Globe, 38th Cong., 1st Sess. 2989-2990 (1964). . 4
Cong. Globe, 39th Cong., 1st Sess. (1866)

366 ............................................... .................... .. . 5
599 .........................................................................  6
1115 .......................................................................  6
1115, 1118 .............................................................  6
1832-33 ...................................................................  7

287



IV

EEOC Decision No. 75-268 (1974), 10 FEP Cases 1502 12
EEOC Decision No. 74-31 (1973), CCH EEOC Decisions

<H 6404 ........................................... .............................  12
EEOC Decision No. 74-106 (1974), CCH EEOC Deci­

sions f 6427 ...........................................................  I2
Frank and Munro, The Original Understamiing of Equal 

Protection of the Laws, 1972 Wash. U. L. Q. 421
(1972)   14

Kaplan, Equal Justice in an Unequal World, 61 Nw. U.
L. Rev. 363 (1966)...................................................... 13

2 Works of Charles Sumner, 341 (1974).........................  14
110 Cong. Rec. (1964) 6563-64..............................   10

7217 .................................... 10
6549 ...........     10

118 Cong. Rec. S. 161 (daily ed. January 20, 1972)... 10

288



IN  TH E

supreme Court of tfje Umteb States;
O c to b er  T e r m , 1975

No. 75-260

L. N. MCDONALD and  RAYMOND L. LAIRD,
Petitioners,

vs.

SANTA FE TRANSPORTATION COMPANY and  TEAM­
STERS FREIGHT, TANK LINE and  AUTOMOBILE 
INDUSTRY EMPLOYEES, LOCAL UNION NO, 988,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

The Chamber of Commerce of the United States of America 
respectfully moves, pursuant to Rule 42 of the Rules of this 
Court, for leave to file the attached brief amicus curiae on 
behalf of the Petitioner in this case. The Petitioner has con­
sented to the filing by letter to this Court.

The Chamber of Commerce of the United States of America 
is a federation consisting of a membership of over thirty-seven 
hundred (3,700) state and local chambers of commerce and 
professional and trade associations, a direct business member­
ship in excess of fifty-two thousand (52,000) and an underly­
ing membership of approximately five million (5,000,000)

289



2

business firms and individuals. It is the largest association of 
business and professional organizations in the United States.

In order to represent its members’ views on questions of 
importance to their vital interests and to render such assistance 
as it can to this Court’s deliberations in such areas, the Chamber 
has frequently participated as amicus curiae in a wide range of 
significant labor relations matters before this Court; e.g., Franks 
v. Bowman Transportation, Inc., et al., No. 74-728 (decision 
pending); Geduldig v. Aiello, et al., 417 U. S. 484 (1974); 
Griggs v. D uke Power Company> 401 U. S. 424 (1971); Con­
nell Construction Company, Inc. v. Plumbers and Steamfitters 
Local Union No. 100, etc., 43 L. W. 4657 (1975); Boy’s 
M arkets v. Retail Clerks Union, 398 U. S. 235 (1970); H. K. 
Porter Co. v. N. L . R . B., 397 U. S. 99 (1970); Sears, Roebuck  
and Co. v. Carpet Layers, Local 419, 397 U. S. 655 (1970); 
Super Tire Engineering Co., et al. v. McCorkle, et al, 416 U. S. 
115 (1974).

The issue of this case, whether Caucasians have actionable 
rights under 42 U. S. C. Section 1981, the Civil Act of 1866, 
and under Title VII to protest racial discrimination is of major 
interest to the Chamber’s membership. The Chamber’s mem­
bers are interested in employing those whose qualifications render 
them most fit for the work. The decision below impacts upon this 
interest. Thus, the effect of the decision below is not limited 
to denying only Caucasians the right to redress racial discrim­
ination directed against them. In a very real sense this deci­
sion denies Caucasians equal employment opportunities. That 
is, by construing the Civil Rights Acts to deny Caucasians pro­
tection against racial discrimination in employment, the court 
has invited agency administrators or private “affirmative action” 
groups to pressure employers in order to obtain preferences in 
employment for non-Caucasians. Insofar as such racial prefer­
ences would deny employment to qualified Caucasians, these 
preferences compel reverse discrimination and are attended, 
apart from constitutional and ethical problems, by increased 
production costs and reduced efficiency.

290



3

Thus, since this Court’s decision will exert a substantial 
impact upon the Chamber’s members, the Chamber requests 
this Court to grant its motion for leave to file the attached brief 
as amicus curiae.

Respectfully submitted,

LAWRENCE B. KRAUS 
General Counsel 

RICHARD B. BERMAN 
Labor Relations Counsel 
Chamber of Commerce of the 

United States of America 
1615 H Street, N. W. 
Washington, D. C. 20006

GERARD C. SMETANA 
JERRY KRONENBERG 
JULIAN D. SCHREIBER 
BOROVSKY, SMETANA, EHRLICH 

& KRONENBERG
2011 Eye Street, N. W.
Suite 800
Washington, D. C. 20006 

A ttorneys fo r  the A m icus Curiae

291





IN THE

Supreme Court of tfje ®ntteb fetatesr
O c to b er  T e r m , 1975

No. 75-260

l . n . McDo n a l d  and Ra y m o n d  l . l a ir d ,
Petitioners,

vs.

SANTA FE TRANSPORTATION COMPANY and  TEAM­
STERS FREIGHT, TANK LINE and  AUTOMOBILE 
INDUSTRY EMPLOYEES, LOCAL UNION NO. 988,

Respondents.

ON w r it  o f  c e r t io r a r i t o  t h e  u n it e d  sta tes  c o u r t
OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE OF THE 
UNITED STATES OF AMERICA AS AMICUS CURIAE

SUMMARY OF ARGUMENT*
This case brings into clear focus the question of whether all 

races are protected against racial discrimination in employment 
through the invocation of the Civil Rights Acts, or whether 
these Acts protect only non-Caucasians. The amicus contends 
that the Congressional commentaries relating to these Acts 
demonstrate that all races may invoke their protection, including 
Caucasians. Furthermore, the amicus contends that only this 
construction of these Acts comports with the Constitution and 
responds to the exigencies of society.

* The interest of the amicus is set forth in the accompanying 
Motion.

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Thus, the amicus contends that Caucasians, as well as non- 
Caucasians, have actionable rights under 42 U. S. C. § 1981 
to challenge racial discrimination in the employment area. The 
precursor of 42 U. S. C. § 1981 was Section 1 of the Civil 
Rights Act of 1866. This Act was designed to enforce the pro­
visions of the Thirteenth Amendment. The commentaries of the 
Congressional architects of Amendment Thirteen and the Civil 
Rights Act of 1866 evince a determination to extend the perim­
eters of these enactments to encompass the civil rights of all 
races and to shield these rights from those intrusive forces that 
would abridge them.

As with the Thirteenth Amendment and Section 1981, so 
Congress had fashioned Title VII to protect all races—including 
the Caucasian—from racial discrimination. The Congres­
sional explanations concerning the coverage of that Title, to­
gether with the introduction to Executive Order 11375 demon­
strate unequivocally that Title VII is underpinned by the concept 
of meritocracy whereby fitness for the job, rather than immutable 
personal characteristics, determines who will be employed.

Furthermore, in order to comport with the Constitution, Sec­
tion 1981 and Title VII must be read to confer actionable rights 
on Caucasians and non-Caucasians alike. It is submitted 
that under the Constitution, neither Caucasians nor non- 
Caucasians are entitled to any advantage in employment nor are 
subject to any disability because of race. The decision below has 
ignored this precept and instead has interpreted these Acts to 
classify persons according to their race and to deny only to 
Caucasians—because of their race—the right to protest discrim­
ination in employment. Accordingly, the statutory construction 
of the decision below cannot stand.

Moreover, the effect of the decision below is not limited to 
denying only Caucasians the right to redress racial discrimination 
directed against them. In a very real sense, this decision denies 
Caucasians equal employment opportunities. That is, by constru­
ing the Civil Rights Acts to deny Caucasians protection against

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3

racial discrimination in employment, the court permits govern­
mental agencies or private “affirmative action” groups to pressure 
employers in order to obtain preferences in employment for 
blacks or other non-Caucasians. Insofar as such racial prefer­
ences would deny employment to qualified Caucasians, these 
preferences compel reverse discrimination. It is submitted that 
any racial classification is constitutionally impermissible, that 
no Constitutional right exists for any race to be preferred, and 
that no governmental purpose—even that of eradicating past 
general minority discrimination—can justify the imposition of 
racially oriented hiring preferences that deny employment to 
qualified persons, Caucasians and others alike, on the basis of 
race. Yet the decision below attributes to the Civil Rights 
Acts just such a prohibited purpose and effect.

For all these reasons, the decision below must be reversed. 
In so doing, this Court should reaffirm its pronouncements of 
Griggs that the right to work depends upon fitness for the work 
and on an equal right of all, regardless of race to compete in an 
open market, and does not depend upon membership in a par­
ticular racial group; this Court should stress that the Civil Rights 
Acts command the elimination of racial barriers, not their crea­
tion, in order to satisfy a notion as to how society ought to be 
organized. In view of the decision below, such a restatement is 
necessary.

ARGUMENT
This case brings into clear focus the question whether all 

races are protected against racial discrimination in employment 
through the invocation of the Civil Rights Act, or whether these 
Acts protect only non-Caucasians. The amicus contends that the 
Congressional commentaries relating to these Acts demonstrate 
that all races may invoke their protection, including Caucasians. 
Furthermore, the amicus contends that only this construction of 
these Acts comports with the Constitution and responds to the 
exigencies of society.

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A. Caucasians Have an Actionable Right Under 42 U. S. C. 
Section 1981 to Challenge Racial Discrimination Directed 
Against Them.

The question here is whether Caucasians have an actionable 
right under 42 U. S. C, § 1981 to challenge their discharge for 
misappropriation of company property when a black employee, 
who was also charged with misappropriating this property, was 
not discharged.1 It is established that Section 1981 proscribes 
private racial discrimination in employment against blacks by 
employers and unions. Johnson v. Railway Express Agency, Inc., 
et al., 421 U. S. 454 (1975); Waters v. Wisconsin Steelworkers 
of International Harvester, 472 F. 2d 476 (CA 7, 1974). The 
determination of whether Caucasians enjoy similar protection re­
quires an examination of the Congressional commentaries sur­
rounding the origin of that statutory section.

This necessary historical odyssey begins with the adoption of 
the Thirteenth Amendment:

“Section 1. Neither slavery nor involuntary servitude, ex­
cept as a punishment for crime whereof the party shall have 
been duly convicted, shall exist within the United States, 
or in any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this Ar­
ticle by appropriate legislation.”

This Amendment was designed to establish that the “rights of 
mankind, without regard to color or race, are respected and 
protected!,]” and was intended to “make the future safe for 
the rights of each and every citizen.”2

1. 42 U. S. C. § 1981 states:
“All persons within the jurisdiction of the United States shall 
have the same right in every state and territory to make and 
enforce contracts, to sue, be parties, give evidence, and to 
the full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white persons, 
and shall be subject to like punishment, pains, penalties, taxes, 
licenses and exactions of every kind, and to no other.”

2. Cong. Globe, 38th Cong., 1st Sess. 2989-2990, 1202 (1864).

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This Court has recognized specifically that the perimeter of 
the Thirteenth Amendment extends to encompass the rights of 
all races:

“It reaches every race and every individual and if in any 
respect it commits one race to the nation it commits every 
race and individual thereof. Slavery or involuntary servi­
tude of the Chinese, or the Italian, or of the Anglo-Saxon are 
as much within its compass as slavery or involuntary servi­
tude of the African.” Hodges v. United States, 203 U. S. 
1 (1906).

The enforcing legislation of the Thirteenth Amendment was 
Section 1 of the Civil Rights Act of 1866, 14 Stat. 27, the 
precursor of Section 1981. Johnson v. Railway Express Agency, 
supra. That bill, the Civil Rights Act of 1866, was “intended 
to give effect to the Thirteenth Amendment by guaranteeing ‘to 
all persons within the United States practical freedom.’ ”3 In 
explicitly refuting a colleague’s assertion that the Civil Rights 
Bill protected only blacks and not Caucasians, Senator Trumbull 
positively stated:

“Sir, this bill applies to white men as well as black men. 
It declares that all persons in the United States shall be 
entitled to the same civil rights, the right to the fruit of 
their own labor, the right to make contracts, the right to 
buy and sell, and enjoy liberty and happiness; and that is 
abominable and iniquitous and unconstitutional! Could 
anything be more monstrous or more abominable than for 
a member of the Senate to rise in his palce and denounce 
with such epithets as these a bill, the only object of which 
is to secure equal rights to all the citizens of the country, 
a bill that protects a white man just as much as a black 
man? With what consistency and with what face can a 
Senator in his place here say to the Senate and the country 
that this is a bill for the benefit of black men exclusively 
when there is no such distinction in it, and when the very 1

3. Cong. Globe, 39th Cong., 1st Sess, 366 (1866), remarks 
of Senator Trumbull, a principal architect of both this Bill and the 
Thirteenth Amendment. Buchanan, The Quest for Freedom: A 
Legal History of the Thirteenth Amendment, 12 Hous. L. Rev.
1 at page 18 (1975).

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6

object of the bill is to break down all discrimination between 
black men and white men?” Cong, Globe, 39th Cong., 
1st Sess., 599 (1866).

With full awareness that the Civil Rights Bill secured the rights 
of Caucasians as well as of blacks, the Senate passed it in 
February, 1866.

The House then amended the bill to include—without de­
bate—the phrase “as enjoyed by white citizens.” (Cong. Globe 
39th Cong. 1st Sess. 1115 (1866)) These words, appearing as 
they do in Section 1981, have caused some courts, including the 
court below, to conclude that the 1866 Act as amended and 
Section 1981 offer nothing to a plaintiff who is himself a Cau­
casian.4 This Conclusion is unwarranted as the pertinent legis­
lative history demonstrates. Thus, the phrase, “as enjoyed by 
white citizens,” was introduced in the House by Representative 
Wilson, who then reaffirmed that the bill preserved the funda­
mental rights of all persons, regardless of color:

“Mr. Speaker, if all our citizens were of one race and one 
color, we would be relieved of most of the difficulties which 
surround us. This bill would be almost, if not entirely, 
unnecessary, and if the State, seeing that we have citizens 
of different races and colors, would but shut their eyes 
to these differences and legislate so far at least as regards 
civil rights and immunities, as though all citizens were of 
one race and color, our troubles as a nation would be well- 
nigh over. But such is not the case, and we must do as best 
we can to protect our citizens, from the highest to the 
lowest, from the whitest to the blackest, in the enjoyment 
of the great fundamental rights which belong to all men.” 
(Emphasis added) Cong. Globe, 39th Cong., 1st Sess., 
1115, 1118 (1866).6_______________________________

4. Comment: Section 1981 and Private Groups, The Right to 
Discriminate v. Freedom from Discrimination, 84 Yale L. J. 1441 
at 1448, note 40 (1975).

5. The natural rights philosophy underpinning the Civil Rights 
Bill was convincingly articulated by Representative Lawrence who 
joined this philosophical concept with that of equal protection of 
the laws:

“. . . Legislative powers exist in our system to protect, not 
destroy, the inalienable rights of man . . . there are two ways

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7

Thus, the bill’s sponsors in the House, just as those in the Senate, 
articulated that this bill secured the inalienable liberties of all.

When the bill passed the House and was returned to the 
Senate for concurrence, attention focused upon the added 
phrase. In the following colloquy between Senators Trumbull 
and VanWinkle it became apparent that these added words in 
no way altered congressional intent to protect the rights of all 
citizens:

“M r . V an W in k le . There seems to be an incongruity 
in this language to which I wish to call the attention of 
the chairman of the committee. The clause commences 
with the words ‘and such citizens.’ As I understand those 
words they include all persons who are or can be citizens, 
white persons and all others. The clause then goes on to 
provide that ‘such citizens of every race and color, without 
regard to any previous condition of slavery or involuntary 
servitude, shall have the same right to make and enforce 
contracts,’ &c., ‘as is enjoyed by white citizens.’ It seems 
to me these words are superfluous. The idea is that the 
rights of all persons shall be equal; and I think the clause, 
leaving out these words, would attain the object. This is 
merely a verbal criticism. I think the bill is incongruous in 
expression as it stands.

“M r . T ru m b u ll . I quite agree with the Senator from 
West Virginia that these words are superfluous. I  do not 
think they alter the bill. I think the bill would be better 
without them, but they have been adopted by the House 
of Representatives. We did not think they altered the 
meaning of the bill; and we did not think it worth while 
to send the bill back just because these words were inserted 
by the House. They thought there was some importance in 
them and have inserted them; and as in the opinion of the 
com m ittee which examined this matter they did not alter 
the meaning of the bill, the committee thought proper to

in which a State may undertake to deprive citizens of these 
absolute, inherent and inalienable rights: either by prohibitory 
laws, or by a failure to protect any one of them.” Cong. Globe, 
39th Cong., 1st Sess., 1832-1833 (1866).

299



recommend a concurrence, and I hope the Senate will con­
cur in it.” (Emphasis added.)0

The Senate then passed the Civil Rights Bill as amended.
This journey through the history encompassing the Civil 

Rights Act of 1866 unequivocally establishes Congressional ac­
ceptation of the principle that the Act was conceived to foster 
the civil rights of all, including Caucasians, and to shield these 
rights from those intrusive forces that would abridge them.6 7

Furthermore, 42 U. S. C. § 1982 just as § 1981 is derived 
from the Civil Rights Act of 1866 and like § 1981 is intended 
to enforce the Thirteenth Amendment. Jones v. Alfred H. Mayer 
Co., supra. Thus, not coincidentially, the language in these two 
statutory sections is similar, concerning racial discrimination. 
Section 1981 provides:

“All persons within the jurisdiction of the United States 
shall have the same rights . . .  to make and enforce con­
tracts . . .  as is enjoyed by white citizens.”

Section 1982 provides:
“All citizens of the United States shall have the same 
rights . . .  as is enjoyed by white citizens . . .  to inherit, 
purchase, lease, sell, hold and convey real and personal 
property.”

This Court in Jones v. A lfred H. Mayer Co., supra, previously 
has determined that Section 1982 interdicts all discrimination 
because of race. In the words of this Court:

“Section 1982 bars all racial discrimination, private as 
well as public, in the sale or rental of property, . . .” (em­
phasis in the original) 392 U. S. at 413.

6. Cong. Globe, 39th Cong., 1st Sess. 1413 (1866).
7. The Civil Rights Act of 1866 was reenacted by Section 18 

of the Enforcement Act of 1870, 16 Stat. 140, 144, and later 
codified in Section 1977 of the Revised Statutes of 1874 before be­
coming 42 U. S. C. § 1981. The reenactment in 1870, following 
ratification of the Fourteenth Amendment, was intended to eliminate 
any constitutional question concerning the Act’s applicability to the 
several states. Jones v. Alfred H. Mayer Co., 392 U. S. 409, 436.

8

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9

It follows, due to their common derivation and design, that 
just as Section 1982 proscribes all racial discrimination in the 
sale of property, so Section 1981 bans all racial discrimination 
in employment.8

B. Caucasians Have Actionable Rights Under Title VII of 
the Civil Rights Act of 1964 to Challenge Racial Dis­
crimination Directed Against Them.

Title VII as originally enacted, reflected the mainstream of 
social thought on remedying discriminatory practices. This 
Court has recognized that the purpose of that enactment was 
“to assure equality of employment opportunities by eliminating 
those practices and devises that discriminate on the basis of 
race, color, religion, sex or national origin.” Alexander v. 
Gardner-Denver Co., 415 U. S. 36, 44 (1974). However, Title 
VII was not intended to disadvantage Caucasians by preferring 
other groups on the employment scene. Thus, Senator Kuchel, 
commenting on the proposed bill in 1964, observed that a court 
“cannot order preferential hiring or promotional consideration 
for any particular race, religion, or other group.” (110 Cong.

8. Several lower courts have reached this conclusion. In Carter 
v. Gallagher, 452 F. 2d 315, 325 (CA 8, 1971), cert. den. 406 
U. S. 950 (1972), the court recognized that “. . . Section 1981 
and the Fourteenth Amendment proscribes any discrimination in 
employment based on race, whether the discrimination be against 
whites or blacks.” That court reaffirmed this position in Brady 
v. Bristol-Meyers, Inc., 459 F. 2d 621 (1972). Other courts to 
reach this conclusion include Hollander v. Sears, Roebuck and Co., 
. . . .  F. Supp. . . . .  (D. Conn. 1975), 10 FEP Cases 473 (Cau­
casian may maintain an action under Section 1981 against an 
employer who refused to consider him for employment, allegedly 
for racially discriminatory reasons); WRMA Broadcasting Co. v. 
Hawthorne, 365 F. Supp. 577 (M. D. Ala. 1973) (Caucasian em­
ployee may sue under Section 1981 to enjoin blacks from forcing 
his discharge because of his race); Central Presbyterian Church v. 
Black Liberation Front, 303 F. Supp. 894 (E. D. Mo. 1969) 
(Caucasians allowed to maintain Section 1981 action against black 
militants who disrupted church services); Gannon v. Action, 303 F. 
Supp. 1240 (E. D. Mo. 1969) affirmed on other grounds, 450 
F. 2d 1227 (CA 8, 1971) (facts similar to Central Presbyterian).

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10

Rec. 6563-64 (1964).) (emphasis added) Senators Clark and 
Case agreed with this observation:

“[An employer] would not be obliged—or indeed, per­
mitted—to fire whites in order to hire Negroes, or to pre­
fer Negroes for future vacancies, or, once Negroes are 
hired, to give them special seniority rights at the expense 
of the white workers hired earlier.” (110 Cong. Rec. 7217 
(1964))

An identical view is acknowledged by Senator Humphrey:
. . There is nothing in [Title VII] that will give any 

power to the commission or to any court to require hiring, 
firing, or promotion of employees, in order to meet a racial 
‘quota’ or to achieve a certain racial balance.” (110 Cong. 
Rec. 6549 (1964))

The original determination that Title VII unequivocally pro­
hibits all racial discrimination—whether against non-Caucasians 
or Caucasians—was reaffirmed by congressional commentaries 
surrounding the 1972 amendments to that Title. Thus, Senator 
Javits (who sponsored many bills which culminated in the 1972 
amendments) explicitly stated that Title VII was an “antidiscrim­
ination” measure. (118 Cong. Rec. S. 161 (daily ed., January 
20, 1972)). Senator Javits thereby acknowledged that color­
blindness was the keystone of Title VII and that the Act man­
dated that race, religion, sex and national origin be irrelevant to 
securing or retaining employment. Javits’ remarks, just as those 
reflected in the 1964 commentaries, demonstrate that Title VII 
is underpinned by the concept of meritocracy whereby immu­
table personal characteristics such as race are not relevant to an 
individual’s employment qualifications.

Congressional determination to attack all invidious class 
prejudice in employment by Title VII is also articulated 
in the preamble to Executive Order 11375 (amending Execu­
tive Order 11246, relating to equal employment opportunity):

“The Congress, by enacting Title VII of the Civil Rights 
Act of 1964, enunciated a national policy of equal em­
ployment opportunity in private employment, without dis­

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11

crimination because of race, color, religion, sex or national 
origin.
Executive Order No. 11246 of September 24, 1965, 
carried forward a program of equal employment oppor­
tunity in government employment, employment by federal 
contractors and subcontractors and employment under 
federally assisted construction contracts regardless of race, 
creed, color or national origin.”

Thus, as with the Thirteenth Amendment and Section 1981 of 
the Civil Rights Act, Congress has viewed the protection of 
Title VII as encompassing all races, including Caucasians.

Congressional intendment that the civil liberties of all be 
secured by Title VII has been recognized by this Court. In 
Griggs v. Duker Power Co., 401 U. S. 424, 430-431, 436 
(1971), this Court stated:

“[Title VII] does not command that any person be hired 
simply because he was formerly the subject of discrimina­
tion, or because he is a member of a minority group. 
Discriminatory preference for any group, minority or ma­
jority, is precisely and only what Congress has proscribed. 
What is required by Congress is the removal of artificial, 
arbitrary and unnecessary barriers to employment when 
the barriers operate invidiously to discriminate on the basis 
of racial or other impermissible classification. Congress 
has made [job] qualifications the controlling factor, so that 
race, religion, nationality and sex become irrelevant.”

This principle of meritocracy was emphasized in M cDonnell 
Douglas Corp. v. Green, 411 U. S. 792, 801 (1973), where 
this Court reaffirmed that the national goal is “fair and racially 
neutral employment . . . decisions.” Finally, dispelling any doubt 
of the scope of Title VII, this Court in Johnson v. Railway 
Express Agency, supra, stated that that enactment “creates sta­
tutory rights against invidious discrimination in employment and 
establishes a comprehensive scheme for the vindication of those 
rights. Anyone  aggrieved by employment discrimination may 
lodge a charge with the EEOC.” 421 U. S. at pages 457, 458 
(emphasis added).

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12

Guided by this Court and the scheme of Title VII, the EEOC 
has consistently recognized that the Act proscribes racial dis­
crimination against Caucasians, and that Caucasians have sub­
stantive rights under the Title to challenge this discrimination. 
Thus, in finding that an employer transgressed Title VII’s pro­
hibitions by refusing to hire a Caucasian because of her race, 
the Commission stated:

. . Title VII . . . proscribes preferential treatment . . . 
‘opening the doors long shut to minorities is imperative, 
but in so doing we must be careful not to close them in 
the face of others, lest we abandon the basic principle of 
nondiscrimination that sparked the effort to pry open these 
doors in the first place.’ ” (EEOC Decision No. 75-268,
(1974), 10 FEP Cases 1502, 1503.9

This decision reaffirmed an earlier opinion where the Commis­
sion stated:

. . the Commission’s congressional mandate [is] to 
eliminate all practices which operate to disadvantage the 
employment opportunities of any group protected by Title 
VII, including Caucasians. As the Supreme Court stated in 
Griggs v. D uke Power, 401 U.S. 424 (1971), ‘discrimina­
tory preference for any group, minority or majority, is 
precisely what Congress has proscribed.’ ” EEOC Decision 
No. 74-31 (1973), CCH EEOC Decisions H 6404.

The upshot is that this Court, the Congressional commen­
taries and the Commission have uniformly concluded that Cau­
casians may secure redress for racial discrimination against them 
by the invocation of Title VII which commands that no race 
should ever be accorded preferential treatment over another or 
granted privileges and prerogatives not given to other races.

9. To the same effect is EEOC decision No. 74-106, 1974 CCH 
EEOC Decisions H 6427, where the Commission determined that 
failure to rehire an otherwise qualified C a u c a s ia n  teacher was im­
permissible race bias where an evaluation based mainly upon the 
teacher’s race was used to disqualify her.

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13

C. To Comport with the Constitution, Section 1981 and Title 
VII Must Be Read to Confer Actionable Rights on Cau­
casians and Non-Caucasians Alike.

The constitutional prohibitions of the Fifth and Fourteenth 
Amendments, just as those of the Thirteenth, are directed against 
all manifestations of racial discrimination.10 The clear and 
preeminent purpose of these Amendments is to eliminate all 
sources of invidious racial discrimination.11 Consonant with 
this unequivocal proscription against all forms of racial dis­
crimination, the Constitution must be forever color-blind in the 
area of employment.12 “There is no constitutional right for any 
race to be preferred. . . . There is no superior person by con­
stitutional standards.” DeFunis v. Odegaard, 416 U. S. 312, at 
336-337 (1974), (dissenting opinion of Mr. Justice Douglas). 
Accordingly, it is submitted that neither Caucasians nor non- 
Caucasians are entitled to any advantage in employment or 
subject to any disability because of race.

This constitutional mandate eloquently demonstrates an 
awareness that society’s prejudice and intolerance will be ter­
minated only by the abolition of distinctions based upon race 
and other impermissible characteristics.13 Conversely, racial

10. “[W]e deal here with a classification based upon the race of 
the participants, which must be viewed in light of the historical 
fact that the central purpose of the Fourteenth Amendment 
was to eliminate racial discrimination emanating from official 
sources in the States. This strong policy renders racial classifica­
tion “constitutionally suspect,” Bolling v. Sharpe, 347 U. S. 
497, 499; and subject to the ‘most rigid scrutiny,’ Korematsu v. 
United States, 323 U. S. 214, 216; and ‘in most circumstances 
irrelevant’ to any constitutionally acceptable legislative purpose. 
Hirabayashi v. United States, 320 U. S. 81, 100.” McLaughlin 
v. Florida, 379 U. S. 184, 191, 192 (1964).

11. See Loving V. Virginia, 388 U. S. 1, 10 (1967); Hodges v. 
United States, supra.

12. Hughes v. Superior Court, 339 U. S. 460 (1950). See 
Kaplan, Equal Justice in an Unequal World, 61 Nw. U. L. Rev. 
363, 382 (1966).

13. Senator Charles Sumner of Massachusetts, the chief architect 
of the equal protection clause, defined his concept of equal protec­

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14

bigotry will be resurrected and perpetuated by legislative policy 
or judicial decisions whose effect is to classify persons according 
to race and inflict disabilities in the employment area upon a 
person solely because of his immutable and supposedly irrelevant 
racial characteristics.

The decision below has ignored these precepts and by its 
construction of the Civil Rights Acts of 1866 and 1964 has 
assumed that Congress would enact legislation that contravenes 
the Constitution. Thus, the decision below has interpreted these 
Acts to classify persons according to their race and to deny 
only to Caucasians—because of their race—actionable rights 
to protest employment discrimination. That is, the court below 
has held that Title VII and § 1981 confer no actionable rights 
on Caucasians if they seek to protest racial discrimination against 
them in the employment area. However, that court necessarily 
recognizes that these laws do confer substantive rights on sim­
ilarly circumstances blacks. Johnson v. Railway Express Agency, 
supra. Thus, according to the statutory construction of the court 
below, a qualified black who is denied a job that is then awarded 
to a Caucasian, has an actionable right under the Civil Rights 
Acts to protest discrimination; on the other hand, a qualified 
Caucasian similarly denied a job that is then awarded to a black 
has no actionable right under these Acts to protest discrimina­
tion in an argument before the Supreme Court of Massachusetts in 
Roberts v. Boston, 59 Mass. (5 Cash.) 198 (1849) in an effort 
to overturn the state’s segregated school law:

“He may be poor, weak, humble, or black—he may be of 
Caucasian, Jewish, Indian, or Ethiopian race—he may be of 
French, German, English, or Irish extraction, but before the 
Constitution of Massachusetts all these distinctions disappear. 
He is not poor, weak, humble, or black; nor is he Caucasian, 
Jew, Indian, or Ethiopian; nor is he French, German, English 
or Irish; he is a Man, the equal of all his fellow-men.” 2 Works 
of Charles Sumner, 341-342 (1974).

Though Sumner lost the case, the segregation law was immediately 
thereafter repealed, and Sumner’s concept became the basis of the 
equal protection clause. Frank and Munro, The Original Understand­
ing of Equal Protection of the Laws, 1972 Wash. U. L. Q. 421 
(1972).

306



15

tion. The decision below has thus construed the Civil Rights 
Acts so as to violate the Constitution by depriving only Cau­
casians of substantive rights to protest job discrimination and 
only because they are Caucasians. Accordingly, the statutory 
construction of the decision below should not be endorsed by 
the Court.

The effect of the decision below is not limited to denying only 
Caucasians the right to redress racial discrimination directed 
against them. In a very real sense this decision denies Cau­
casians equal employment opportunities. By construing the 
Civil Rights Acts to deny Caucasians protection against racial 
discrimination in employment, the court has invited the applica­
tion of coercive pressure against employers in order to obtain 
preferences in employment for blacks or other non-Cau­
casians.14 Given the finite number of available jobs, such 
a practice would perforce reduce the number of job op­
portunities for which Caucasians could compete—solely on 
account of their race.15 Insofar as such racial preferences 
would deny employment to qualified Caucasians, these prefer­
ences also compel reverse discrimination. It is submitted that

14. Cf., WMRA Broadcasting Co., et al. v. Hawthorne, et al., 
supra. In that case the defendants included black employees of 
WRMA and the president of the Alabama Action Committee, a 
group dedicated to secure employment for blacks and which had 
been long active in boycotting retail establishments to achieve its 
goal. These defendants sought to force plaintiff employer WRMA 
to discharge its station manager, who was also a plaintiff, only 
because he was a Caucasian. To obtain its objective, defendants 
engaged in mass picketing at the station’s premises and in addition, 
threatened advertisers on the station in order to coerce them to 
discontinue advertising. While the court in WMRA  found that plain­
tiffs had an actionable right under § 1981, a contrary holding— 
which would have been affirmed by the court below—would have 
permitted the defendants to continue their campaign with impunity 
and may well have resulted in the discharge of the Caucasian man­
ager who, having been discharged solely on the basis of race, would 
have no redress. Cf., Central Presbyterian Church v. Black Liberation 
Front, supra.

15. DeFunis v. Odegaard, supra. It is not difficult to believe that 
the practice discussed in DeFunis could be imported from the 
academic to the commercial scene in an attempt to eradicate past 
general discrimination.



16

any racial classification is constitutionally impermissible, that 
“[tjhere is no constitutional right for any race to be preferred,” 
and that no governmental purpose—even that of eradicating past 
general minority discrimination—can justify the imposition of 
racially oriented hiring preferences that deny employment to 
qualified Caucasians.

However, unless Caucasians have an actionable right under 
the Civil Rights Acts to protest reverse discrimination—and the 
decision below denies this right—either this right to be free 
from such discrimination does not exist after all, or, if it exists, 
it has been rendered nugatory.16 As stated, the amicus believes 
that the right to be protected from reverse discrimination does 
exist under the Constitution; accordingly, this right must be 
recognized by the Civil Rights Acts, the enforcing legislation 
of the applicable amendments.

For all these reasons, the decision below must be reversed. 
In so doing, this Court should reaffirm its pronouncements of 
Griggs that the right to work depends upon fitness for the work 
and on an equal right of all, regardless of race to compete on 
an open market, and does not depend upon membership in a 
particular racial group; this Court should strees that the Civil 
Rights Acts command “the elimination of racial barriers, not their 
creation in order to satisfy [a] theory as to how society ought 
to be organized.”17 In view of the decision below, such a restate­
ment is necessary.18

While this Court has recently determined to consider certain 
problems related to reverse discrimination, e.g., Franks v. 
Bowman Transportation, Inc., et al., supra, the “slate is not 
entirely clean.” Defunis, Mr. Justice Douglas, opinion at 337. 
In Hughes v. Superior Court, supra, this Court reviewed the 
contempt convictions of pickets who sought to compel an em­
ployer to prefer blacks to Caucasians in hiring clerks in order

16. See footnote 5.
17. DeFunis, opinion of Mr. Justice Douglas, at 342.
18. It is, of course, apparent that employers, conscious of 

productivity and efficiency, desire to hire the best qualified.
308



17

to ensure that fifty percent of his employees were black. This 
Court found that such picketing could be enjoined, since it was 
designed to “make the right to work for Lucky dependent not 
on fitness for the work nor on an equal right of all, regardless 
of race, to compete in an open market, but, rather, on member­
ship in a particular race.” This Court recognized that if the 
pickets were upheld in their demand, “then other races, white, 
yellow, brown, and red, would have equal rights to demand dis­
criminatory hiring on a racial basis, 339 U. S. at 463-464. 
This Court then noted:

“[t]o deny to California the right to ban picketing in the 
circumstances of this case would mean that there could 
be no prohibition of the pressure of picketing to secure 
proportional employment on ancestral grounds of Hun­
garians in Cleveland, of Poles in Buffalo, of Germans in 
Milwaukee, of Portugese in New Bedford, or Mexicans in 
San Antonio, of the numerous minority groups in New 
York, and so on through the whole gamut of racial and 
religious concentrations in various cities.” Ibid.

To permit employment opportunities to be parceled out, 
regardless of qualifications, according to some fixed notion on 
how society should be structured is to soon involve the courts 
in the business of resolving the competing claims of many 
separate groups, each clamoring for favored treatment and 
each asserting what it deems to be a plethora of past grievances 
to support its claims. A resurgence of the pre-Brown19 era “us” 
and “them” concepts will likely follow.20

19. Brown v. Board of Education, 347 U. S. 483 (1954). This 
decision emphasized that all racial discrimination is simply wrong 
and is thus proscribed.

20. Once minority preference quotas are approved in the em­
ployment field, preferences in the political arena may be sought. 
It may well be urged that the one-man one-vote principle should 
be no more durable than color-blindness in employment, and that 
the non-Caucasian needs two votes to “catch up”. Thus, sanction­
ing quotas in one area has lasting and far reaching ramifications in 
others, and all such preferences undermine the constitutional precepts 
of our government.

309



18

In sum, this Court should not sustain the racial classification 
and barrier to Caucasians imported into the Civil Rights Acts 
by the decision below. Such an interpretation of those Acts is 
neither compelled nor justified and could well invite reverse 
racial discrimination in employment, attended by a resurgence 
of racial antagonism, with the goal of equal opportunity an 
unfortunate casualty. Rather, in determining the meaning of 
these Acts, this Court should be guided by the mandate of 
the Constitution, the intent of the architects of these Acts and 
by the needs of the present, “the exigencies of social life”.21 
All point to one result: actionable rights under § 1981 and 
Title VII are to be accorded to all persons, Caucasian and non- 
Caucasian alike. This rule alone is the sensible rule for the 
governance of our nation, and the attainment of our goal of 
equal opportunity.

CONCLUSION
For all the foregoing reasons, the judgment below should be 

reversed.
Respectfully submitted,

LAWRENCE B. KRAUS 
General Counsel

RICHARD B. BERMAN 
Labor Relations Counsel 
Chamber of Commerce of the 

United States of America 
1615 H Street, N. W. 
Washington, D. C. 20006

GERARD C. SMETANA 
JERRY KRONENBERG 
JULIAN D. SCHREIBER 
BOROVSKY, SMETANA, EHRLICH 

& KRONENBERG
2011 Eye Street, N. W.
Suite 800
Washington, D. C. 20006 

A ttorneys fo r  the A m icus Curiae

21. “Consequences cannot alter statutes, but may help to fix 
their meanings.” Cardozo, The Growth of the Law, p. 75, 112.

310



m T H E

( t a r t  trf tip Unttrfc i^tatra
October Term, 1975

No. 75-260

L. N. M cD onald a n d  R aymond L. L aied ,

Petitioners,
v.

S anta F e  T bansportation  C om pany , et al.,
Respondents.

On W rit of C ertiorari to the United States 
Court of A ppeals for the  F ifth Circuit

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

The undersigned, as counsel for the Anti-Defamation 
League of B ’nai B ’rith, respectfully move this Court for 
leave to file the accompanying brief amicus curiae, in sup­
port of the position of Petitioners to the extent that they 
seek (1) a reversal of the judgment below dismissing for 
lack of jurisdiction their claim under 42 U.S.C. §1981 on 
the ground that the section confers no actionable rights on 
white persons, and (2) a determination that white claimants

311



2

are entitled to the same protection against racial discrimi­
nation under Title YII of the Civil Rights Act of 1964 as 
are Blacks.

Consent to file the attached brief has been sought 
from the parties. Petitioners and Respondent Teamsters 
Freight, Tank Line and Automobile Industry Employees, 
Local Union 988, have granted such permission; however, 
Respondent Santa Fe Transportation Company has refused 
to consent. It is therefore necessary to request permission 
of this Court under Rule 42.

B ’nai B ’rith, founded in 1843, is the oldest civic service 
organization of American Jews. The Anti-Defamation 
League was organized in 1913 as a section of B ’nai B ’rith 
to advance good will and mutual understanding among 
Americans of all creeds and races, and to combat racial and 
religious prejudice in the United States. The Anti-Defa­
mation League is vitally interested in protecting the nature 
and quality of the rights of all people, and in assuring that 
all people are treated equally, regardless of their religion 
or race.

Among its many other activities directed to these ends, 
the Anti-Defamation League has in the past filed amicus 
briefs in this and other courts urging the unconstitution­
ality or illegality of racially discriminatory laws and prac­
tices in such cases as, e.g., Shelley v. Kraemer, 334 U.S. 1 
(1947); Sweatt v. Painter, 339 U.S. 629 (1950); Brown v. 
Board of Education, 347 U.S. 483 (1954); Colorado Anti- 
Discrimination Commission v. Continental Airlines, Inc., 
372 U.S. 714 (1963); Jones v. Alfred II. Mayer Co., 392 U.S'. 
409 (1968); Sullivan v. Little Hunting Park, Inc., 396 U.S.

312



3

229 (1969); Scm Antonio Independent School District v. 
Rodriguez, 411 U.S. 1 (1973) and DeFwnis v. Odegmrd, 416 
U.S. 312 (1974).

As one of the nation’s oldest civil rights and human rela­
tions agencies, and one which has been concerned with the 
rights of all people, be they majority or minority, the Anti- 
Defamation League respectfully offers this Court its accu­
mulated experience on the issues raised by this case.

I t seeks to submit the accompanying brief because it 
believes that the decision below, which narrows the protec­
tion afforded white people against racial discrimination, 
does violence to the concept of equality -under law for all 
people.

Respectfully submitted,

L abby M . L avinsky  
300 Park Avenue 

New York, New York 10022
A bnold  F oestee 

315 Lexington Avenue 
New York, New York 10016

Attorneys for Anti-Defamation League 
of B ’nai B ’rith

A mos A ltee  
D onai,d A . D eb fn eb  
J u s t ix  J .  F ib g eb  
E dwabd N. L eavy 
J oy M eyees

Of Counsel

313





IN  TH E

£&tprem? (Emtrt of %  Itttftlt States
October Term, 1975

No. 75-260

L. N. MCDONALD and RAYMOND L. LAIRD,
P etitio n ers ,

v.

SANTA FE TRANSPORTATION COMPANY, et a l ,

R esp o n d en ts .

On W rit of Certiorari to the United States 
Court of A ppeals for the Fifth Circuit

BRIEF OF ANTI-DEFAMATION LEAGUE OF 
B’NAI B’RITH A M IC U S  C U R IA E

L arry M. L avinsky  
300 Park Avenue 

New York, New York 10022
A rnold F orster 

315 Lexington Avenue 
New York, New York 10016

A tto r n e y s  fo r  A n ti-D e fa m a tio n  L eague  
o f B ’nai B ’rith

A mos A lter  
D onald A . D er fn er  
J u s t in  J .  F in g er  
E d w ard N. L eavy 
J oy M eyers

Of Counsel
315





T A B L E  O F  C O N T E N T S

PAGE

Questions Presented .................................................... 2

Interest of the A m ic u s .................................................. 2

Statement of the Case .................................................. 3

A rgum ent

White victims of racial discrimination are en­
titled to the same rights and standing to sue under 
the Civil Rights Acts of 1866 and 1964 as are 
members of a minority race .................................  4

§1981 is applicable to white victims of racial
discrimination ......................................... 6

White claimants are entitled to the same pro­
tection against racial discrimination un­
der Title VII as are Blacks..................... 10

Conclusion .................................................................... 12

317



PAGE

Cases:

Bailey v. State of Alabama, 219 U.S. 219 (1910) ......  9
Brown v. Board of Education, 347 U.S. 483 (1954) .... 2

Civil Rights Cases, 109 U.S. 3 (1883) ........................  9
Colorado Anti-Discrimination Commission v. Con­

tinental Airlines, 372 U.S. 714 (1963) .............  2

DePunis v. Odegaard, 416 U.S. 312 (1974) .................  3

Griffin v. Breckenridge, 403 U.S. 88 (1971) .................  9
Griggs v. Duke Power Company, 401 U.S. 424 (1971) 11

Hodges v. United States, 203 U.S. 1 (1906) .................  9

Johnson v. Railway Express Agency, Inc., 421 U.S.
454 (1975) .............................................................  9

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) ....2, 4, 7, 9

McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973) 11
McLaughlin v. Florida, 379 U.S. 184 (1964) .............  10

San Antonio Independent School District v. Rod­
riguez, 411 U.S. 1 (1973) .........................................  3

Shelley v. Kraemer, 334 U.S. 1 (1947) ........................  2
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) ....................................................................  3
Sweatt v. Painter, 339 U.S. 629 (1950) ........................  2

Tillman v. Wheaton-Haven Recreation Ass’n, Inc.,
410 U.S. 431 (1973) ................................................  9

United States v. Wong Earn Ark, 169 U.S. 649 (1898) .... 7, 9

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .......... 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..................... 9

T A B L E  O F  A U T H O R IT IE S



I l l

PAGE
S ta tu tes:

Constitution of the United States:
5th Amendment ................................................. 10

13th Amendment ................................................. 9
14th Amendment ................................................. 9,10

42 U.S.C. §1981 ............................................................. 6
42U.S.C. §2000e-2(a)(1) .............................................  11

O ther A u th o r ity :

Cong. Globe, 39th Cong., 1st Sess. (1866) .................  7,8

319





IN' T H E

Ihtpmtt? (Emirt a t %  Initio States
October Term, 1975

No. 75-260

L. N . M cD onald a n d  R aymond L. L aird,

P etitio n ers ,
v.

S anta  F e  T ransportation  C om pany , et a l.,
R esp o n d en ts .

On W rit of Certiorari to the United States 
Court of A ppeals for the Fifth Circuit

BRIEF OF ANTI-DEFAM ATION LEAGUE OF 
B’NAI B’RITH AM ICUS CURIAE

This brief is submitted on behalf of the Anti-Defama­
tion League of B ’nai B ’rith, am icus curiae, in support of 
the position of petitioners to the extent that they seek (1) 
a reversal of the judgment below dismissing for lack of 
jurisdiction their claim under 42 U.S.C. §1981 on the ground 
that the section confers no actionable rights on white per­
sons, and (2) a determination that white claimants are en­
titled to the same protection against racial discrimination 
in employment under Title VII of the Civil Rights Act of 
1964 as are Blacks.

321



2

Questions Presented

(1) Whether 42 U.S.C. §1981 accords rights and stand­
ing to sue to white persons alleging discrimination on the 
basis of their race.

(2) Whether white claimants are entitled to the same 
protection against racial discrimination under Title VII 
of the Civil Eights Act of 1964 are Blacks.

Interest of the Amicus

B ’nai B ’rith, founded in 1843, is the oldest civic service 
organization of American Jews. The Anti-Defamation 
League was organized in 1913 as a section of B ’nai B ’rith 
to advance good will and mutual understanding among 
Americans of all creeds and races, and to combat racial 
and religious prejudice in the United States. The Anti- 
Defamation League is vitally interested in protecting the 
nature and quality of the rights of all people, and in assur­
ing that all people are treated equally, regardless of their 
religion or race.

Among its many other activities directed to these ends, 
the Anti-Defamation League has in the past filed am icus 
briefs in this and other courts urging the unconstitution­
ality or illegality of racially discriminatory laws and prac­
tices in such cases as, e.g., S h e lle y  v. K ra em e r, 334 U.S. 1 
(1947); S w e a tt v. P a in ter , 339 U.S. 629 (1950); B ro w n  v. 
B o a rd  o f E du ca tio n , 347 U.S. 483 (1954); Colorado A n ti-  
D iscrvm ination  C om m ission  v. C ontinen ta l A ir lin e s , Inc., 
372 U.S. 714 (1963); Jo n e s  v. A lfr e d  H . M a yer  Co., 392 U.S.

322



3

409 (1968); S u lliv a n  v. L it t le  H u n tin g  Parti, Inc., 396 U.S. 
229 (1969); S a n  A n to n io  In d ep en d en t School D is tr ic t v. 
R o d rig u ez, 411 U.S. 1 (1973) and D eF un is  v. O degaard, 416 
U.S. 312 (1974).

It submits this brief because it believes that the decision 
below, which narrows the protection afforded white people 
against racial discrimination, does violence to the concept 
of equality under law for all people regardless of race.

Statement of the Case

The two petitioners, both whites, and a third individual, 
a Black, were employees of the respondent, Santa Fe Trans­
portation Company (“ Santa Fe”). On September 26, 1970, 
respondent charged them all with misappropriation of cer­
tain company property. (App. p. 6) On October 2, 1970, 
petitioners were discharged by Santa Fe, while the Black 
employee was not discharged. (App. pp. 6-7) Petitioners 
thereafter initiated these proceedings in the United States 
District Court for the Southern District of Texas, claiming 
in their second amended complaint that the “ Defendant im­
posed a more severe disciplinary sanction against them be­
cause of their race.”  (App. p. 38) They sought relief 
under Title VII of the Civil Rights Act of 1964, as amended, 
and under 42 U.S.C. §1981.

The district court dismissed the second amended com­
plaint, with prejudice (App. pp. 103-107), holding that “ the 
dismissal of white employees charged with misappropriat­
ing company property while not dismissing a similarly 
charged Negro employee does not raise a claim upon which

323



4

Title YII relief may be granted. ’ ’ (App. p. 107) The court 
also held that “ §1981 is inapplicable to white persons.”  
(App. p. 104)

The Court of Appeals for the Fifth Circuit affirmed in 
a p e r  curiam  opinion (513 F.2d 90 [5th Cir. 1975]) express­
ly agreeing with the contention that §1981 “ confers no ac­
tionable rights on white persons ’ ’ and that ‘ ‘ an employer’s 
dismissal of white employees charged with misappropriat­
ing company property while not dismissing a similarly 
charged Black employee does not raise a claim upon which 
relief may be granted under Title YII. ’ ’

A  petition for writ of certiorari to review the judgment 
of the Court of Appeals was granted by this Court on 
November 3, 1975.

A R G U M E N T

White victims of racial discrimination are entitled 
to the same rights and standing to sue under the Civil 
Rights Acts of 1866 and 1964 as are members of a 
minority race.

In the last quarter century, our nation, spearheaded by 
this Court, has been engaged in an effort to make the twin 
ideals of equality under law and equality of opportunity a 
living reality by eliminating once and for all the blight of 
racial discrimination. The Civil Bights Act of 1866, resur­
rected by this Court in Jo n e s  v. A lfr e d  H . M a yer Co., 392 
U.S. 409 (1968), and the Civil Rights Act of 1964 provide 
a formidable arsenal of weapons against such discrimina­
tion, particularly in the employment area.

324



5

Through these statutes and court decisions interpreting 
them, much has been accomplished in sensitizing the busi­
ness community to the many, often subtle, forms of dis­
crimination which have in the past barred the way to the 
employment and advancement of minority group members. 
As a result of the activities of various governmental agen­
cies such as the Office of Contract Compliance and the Equal 
Employment Opportunity Commission, affirmative action 
programs containing goals and timetables for the hiring 
and promotion of minority group members are now 
common.

In the process of remedying the effects of past evils, 
however, we have seen the development of a new form of 
racial discrimination in which white people are now the 
victims. This distinctly modern form of discrimination, if 
more subtle and less pervasive, is no less destructive of 
individual aspirations, no less a divider of society and no 
less a moral wrong than the racism of the past.

In the case at bar and others to be decided this term, 
this Court will determine whether equality under law is 
indeed to be the rule for all people. At a time of declining 
job opportunities the choices are not easy ones. But any­
thing less than a reaffirmation of the right of the individual 
to equal treatment under law, whatever his or her race, 
can only lead to increased racial tensions and to a loss of 
faith in the rule of law itself, with untold damage to the 
fabric of our society.

325



§1981 is applicable to  white victims 
of racial discrimination.

The decision below, excluding white victims of racial 
discrimination from the protection of §1981, is required 
neither by the plain wording of the statute nor its legisla­
tive history. That section, derived from §1 of the Civil 
Eights Act of 1866, provides:

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

§1981 sets forth at its very outset who shall be the bene­
ficiaries of its provisions: “ All persons within the juris­
diction of the United States” . There follows a specifica­
tion of the rights conferred upon “ all persons”, namely, 
the right to make and enforce contracts, to sue, be parties, 
give evidence, etc. The phrase “ as is enjoyed by white 
citizens” sets forth the standards for determining the 
quality and extent of the enumerated rights conferred by 
the statute. That standard was framed in terms of the 
most favored group in 1866, i.e., white citizens. Thence­
forth, these rights were to be enjoyed to the same extent 
by “ all persons”.

The legislative history of §1981 supports this interpre­
tation. Indeed, §1 of the Civil Rights Act of 1866 expressly

6

326



7

referred to “ citizens of every race and color” .1 Lyman 
Trumbull,2 Chairman of the Senate Judiciary Committee, 
who was the manager and principal author of the Civil 
Eights Act of 1866, made undisputably clear that the stat­
ute was to apply to white persons as well as Black:

“ Sir, this bill applies to white men as well as black 
men. It declares that all persons in the United States 
shall be entitled to the same civil rights, the right to 
the fruit of their own labor, the right to make con­
tracts, the right to buy and sell, and enjoy liberty and 
happiness; and that is abominable and iniquitous and 
unconstitutional! Could anything be more monstrous 
or more abominable than for a member of the Senate 
to rise in his place and denounce with such epithets as 
these a bill, the only object of which is to secure equal 
rights to all the citizens of the country, a bill that pro­
tects a white man just as much as a black man? With 
what consistency and with what fact can a Senator in 
his place here say to the Senate and the country that 
this is a, bill for the benefit of black men exclusively 
when there is no such distinction in it, and when the 
very object of the bill is to break down all discrimina­
tion between black men and white men?” (Cong. 
Globe, 39th Cong., 1st Sess. 599 [1866].)

While this statement predated the House of Representa­
tives’ addition of the words “ as is enjoyed by white citi­
zens” to the bill, this addition did not constrict its scope.

1. In 1870, the 1866 statute was reenacted with revised wording 
which substituted for the words “of every race and color” the present 
words “within the jurisdiction of the United States.” See U nited  
S ta te s  v. W o n g  K im  A r k ,  169 U.S. 649, 695-6 (1898). This Court 
there stated that the change in wording “was not considered as mak­
ing the section, as it now stands, less applicable to persons of every 
race and color and nationality, than it was in its original form . . .”

2. This Court has heretofore given Senator Trumbull’s remarks 
substantial weight in construing the Civil Rights Act of 1866. ( Jones  
v. A lfr e d  H . M a y e r  Co., supra , at 429-30.)

327



8

As Senator Trumbull observed upon the bill’s return to the 
Senate:

“ I quite agree with the Senator from West Vir­
ginia that these words [‘as is enjoyed by white citi­
zens’] are superfluous. I do not think they alter the 
bill . . . We did not think it worthwhile to send the bill 
back just because these words were inserted by the 
House . . . [A] s in the opinion of the committee which 
examined this matter, they did not alter the meaning 
of the bill, the committee thought it proper to recom­
mend a concurrence, and I hope the Senate will concur 
in it.” (Cong. Globe, 39th Cong. 1st Sess. 1413 [1866].)

The debates in the House of Representatives do not sug­
gest a different interpretation. On the contrary, the fol­
lowing statement by James F. Wilson, the bill’s floor man­
ager, makes clear his understanding that the words “ as is 
enjoyed by white citizens”, which were added on his mo­
tion, were not intended to restrict the bill’s coverage to 
Black people alone:

“ Mr. Speaker, if all our citizens were of one race 
and one color we would be relieved of most of the dif­
ficulties that surround us. This bill would be almost, 
if not entirely, unnecessaiy, and if the States, seeing 
that we have citizens of different races and colors, 
would but shut their eyes to these differences and leg­
islate, so far at least as regards civil rights and im­
munities, as though all citizens were of one race and 
color, our troubles as a nation would be well-nigh over. 
But such is not the case, and we must do as best we 
can to protect our citizens, from the highest to the 
lowest, from the whitest to the blackest, in the enjoy­
ment of the great fundamental rights which belong to 
all men.”  (Cong. Globe, 39th Cong., 1st Sess. 1118 
[1866].)

328



9

While the Civil Bights Act of 1866 was enacted pursuant 
to the power invested in Congress by the 13th Amendment, 
that source of authority does not establish a Congressional 
intent to limit the statute’s applicability only to persons of 
the Black race. Though born out of the slavery of Black 
people, the 13th Amendment itself is universal in its lan­
guage and applicability. See Civil Rights Cases, 109 U.S. 
3, 22, 35 (1883); Hodges v. United States, 203 U.S. 1, 16-17 
(1906); Bailey v. State of Alabama, 219 U.S. 219, 240-241 
(1910).3

In any event, the 1870 reenactment of the statute was 
passed pursuant to the provisions of the 14th Amendment 
which this Court in Yick W o y . Hopkins, 118 U.S. 356 (1886) 
and United States v. Wong Kim Ark, 169 U.S. 649, 695 
(1898) characterized as “ universal in their application to 
all persons within the territorial jurisdiction, without re­
gard to any differences of race, of color or of nationality.” 
Indeed, as this Court observed in Tillmam v. Wkeaton- 
Haven Recreation Ass’n, Inc., 410 U.S. 431, n. 11 at 439
(1973) the “ changes in wording” in the 1870 Act “ may 
have reflected the language of the 14th Amendment” .4

3. In H o d g es , the 13th Amendment was characterized as “. . .
the denunciation of a condition, and not a declaration in favor of a 
particular people. It reaches every race and every individual.” Like­
wise, in B ailey , Mr. Justice Hughes described the Amendment as “a 
charter of universal civil freedom for all persons of whatever race, 
color, or estate While Jo n es  v. A lfr e d  H . M a y e r  Co., supra,
overruled H o d g e s  to the extent its holding rested upon an overly 
restrictive “concept of Congressional power under the Thirteenth 
Amendment” (392 U.S. n. 78 at 441), Jo n es  did not denigrate the 
Amendment’s universal applicability.

4. While the 14th Amendment speaks in terms of state action, 
statutes enacted pursuant to the authority of that Amendment are not 
necessarily so limited. G riffin  v. B recken rid g e , 403 U.S. 88 (1971). 
In Jo h n so n  v. R a ilw a y  E x p re s s  A g e n c y , In c ., 421 U.S. 454, 459-460 
(1975), this Court expressly held that “§1981 affords a federal rem­
edy against discrimination in private employment on the basis of race.”

329



10

The decision below which deprives §1981 of its appli­
cability to “ all persons” regardless of race, not only runs 
counter to the plain language of the statute, it needlessly 
creates a constitutionally suspect racial classification under 
the due process clause of the 5th Amendment.5 No such 
interpretation was intended by Congress in 1866. No such 
interpretation is legally appropriate or socially permissible 
in our time.

W hite claim ants are entitled to the sam e 
protection against racial discrimination 
under T itle VII as are Blacks.

The District Court dismissed petitioners’ claim under 
Title VII for failure to ‘ ‘ raise a claim upon which Title VII 
relief may be granted.” The Court of Appeals affirmed on 
the same basis. It is not clear whether this holding was 
predicated upon the fact that petitioners failed to allege 
their innocence of the felony charged, or whether the courts 
below held that because petitioners are members of the 
white race they somehow have a lesser degree of protection 
under Title VII.

5. In W e in b erg er  v. W iesen fe ld , 420 U. S. 636 (1975), it was 
observed:

“This Court’s approach to Fifth Amendment equal protection 
claims has always been precisely the same as to equal protection 
claims under the Fourteenth Amendment.”

Accordingly, under the 5th Amendment, as under the 14th, classi­
fications on the basis of race are “constitutionally suspect . . . 
subject to the most rigid scrutiny . . . and in most circumstances ir­
relevant to any constitutionally acceptable legislative purpose.” M c ­
L a u g h lin  v. F lorida , 379 U.S. 184, 191-92 (1964). While provid­
ing protection against discrimination to newly freed Black slaves un­
questionably constituted a compelling legislative purpose, there would 
have been no justification even in 1866 for excluding members of other 
races from the same protection.

330



11

This amicus does not take a position with respect to the 
rights, if any, of alleged felons to make claims of discrimi­
nation under Title VII. It asks only that this Court make 
clear that whatever protection is afforded such persons is 
available without regard to the race of the claimant.

Any disparity in the protection afforded by Title VII, 
based upon the claimant’s race—even where he or she hap­
pens to be accused of a felony—would do violence to the 
Congressional mandate prohibiting discrimination against 
“ any individual . . . because of such individual’s race . . .” 
42 U.S.C. 2000e-2(a)(1).6

As this Court stated in discussing Title VII, both in 
Griggs v. Duke Power Go., 401 U.S. 424, 431 (1971) and in 
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 800 
(1973):

“ Discriminatory preference for any group, minority 
or majority, is precisely and only what Congress has 
proscribed. ’ ’

6. §2000e-2. (a) It shall be an unlawful employment practice
for an employer—

(1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with respect 
to his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or 
national origin; . . .

331



12

Conclusion

For the foregoing reasons, this amicus respectfully 
urges this Court to hold that the rights afforded victims 
of racial discrimination under the Civil Rights Acts of 
1866 and 1964 are the same regardless of their race.

Respectfully submitted,

L abky M. L avinsky 
300 Park Avenue 

New York, New York 10022
A rnold F orsteb 

315 Lexington Avenue 
New York, New York 10016

Attorneys for Anti-Defamation League 
of B ’nai B ’rith

A mos A lter 
D onald A. D erfner 
J ustin  J .  F inger 
E dward N . L eavy 
J oy M eyers

Of Counsel

332



IN THE

Supreme (Eourt of %  United States
October Term, 1975 

No,75-260

L.N. McDo n a l d  and RAYMOND L. LAIRD, 
Petitioners

v.

SANTA FE TRAIL TRANSPORTATION COMPANY and 
TEAMSTERS FREIGHT TANK LINE AND 
AUTOMOBILE INDUSTRY EMPLOYEES, 

LOCAL UNION NO. 988,
Respondents

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

Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE AND ANNEXED BRIEF OF 

THE AMERICAN JEWISH COMMITTEE

SAMUEL RABINOVE
Attorney for the 

American Jewish Committee 
165 East 56th Street 

New York, New York 10022

ALAN ROY HOLLANDER
Of Counsel

333





I

INDEX

Motion .

Page 

. 1

Brief Amicus Curiae

Interests of the Amicus Curiae ................................   5

Opinion Below .........................................................................  5

Statement of the Case...............................................................  6

Summary of A rg u m e n t............................................................  6

A rgum ent...................................................................................... 8

Point I :

The phrase "as is enjoyed by white citizens," as part of 42 U.S.C. 
§1981 does not function to exclude white persons from the 
protection of the statute, but to assure that protection under the 
statute extends only to persons denied the rights conferred on the 
basis of race ....................................................................................8

Point II:

Although 42 U.S.C. §§2000 e et seq. was passed in response to the 
denial of equal opportunity to non-whites, the Congress intended 
that the act would protect whites, as well as non-whites, from racial 
discrimination in the areas covered under the act. . . . ...............13
Point III:

Enforcement of a statute that prohibits racial discrimination against 
non-whites, but not against whites would unjustifiably discriminate
against whites so as to be violative of due processs.......................15

C onclusion........................................ ....................................... 17

335



II

TABLE OF AUTHORITIES

Cases cited Page

Bolling v. Sharpe, 347 U.S. 497 (1954) ...................................16
EEOC Decision 74-106, 10 FEP Cases 269 (1974)  ...............15
EEOC Decision 75-268, 10 FEP Cases 1502 (1975 )...............15
Frontiero v. Richardson, 411 U.S. 677 (1973 )........................16
Georgia v. Rachel, 384 U.S. 780 (1966 )............................ 10, 13
Griggs v. Duke Power Co., 401 U.S. 424 (1971)......................14
Haber v. Klassen, 10 FEP Cases 1446

(N.D. Ohio 1975 )........................................................ 14, 15
Hollander v. Sears Roebuck and Co., 392 F.Supp. 90

(D. Conn. 1 975 )........................................................ 2, 10, 12
Kentucky v. Powers, 139 F. 452

(Cir.Ct.E.D.Ky. 1905) rev'd 201 U.S. 1 (1906) ............... 13
Kurylas v. U.S. Department of Agriculture,

373 F.Supp.1072 (D.D.C. 1 974 )......................................... 8
Lau v. Nichols, 414 U.S. 563 (1974) ......................................... 2
N.O.W. v. Bank of California, 5 E.P.D. ^8510

(N.D. Cal. 1973).................................................................... 8
Perkins v. Banster, 190 F.Supp. 98 (D. Md. 1960),

aff'd 285 F.2d 426 (4th Cir. 1960) ..................................... 8
Ripp v. Dobbs House, Inc., 366 F.Supp. 205

(N.D. Ala. 1973) ..............    9
Schneider v. Rusk, 377 U.S. 163 (1964) ................................ 15
Van Hoomissen v. Xerox Corp., 368 F.Supp. 829

(N.D. Cal. 1973) ............ ................   8 ,9

Statutes Cited

42 U.S.C. §1981 .................................................... 2 ,3 ,6 -10 ,13
42 U.S.C. § §2000e et seq..........................................2, 3, 6, 7, 9,

.................................................................................... 13-15, 17

Other Authorities

Cong. Globe, 39th Cong., 1st Sess. 599 (1866) ..................... 11
Cong. Globe, 39th Cong., 1st Sess. 1413 (1866) ...................12
App. to Cong. Globe, 39th Cong., 1st Sess. 157 (1 8 6 6 )........ 12
110 Cong. Rec. 7017 (April 6, 1964)...................................... 14
110 Cong. Rec. 7218 (April 8, 1964 )...................................... 15

836



IN THE

Supreme (Kourt of ttje ISniteii States

October Term, 1975 
No.75-260

L.N. MCDONALD, etal.,
Petitioners

v.

SANTA FE TRAIL TRANSPORTATION Co., et at., 
Respondents

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

Fifth Circuit

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

The American Jewish Committee hereby respectfully 
moves this Court for leave to file the accompanying brief 
amicus curiae. The consent of counsel for the petitioners and 
for the respondent union has been obtained. Consent of counsel 
for the respondent company was requested, but denied.

The American Jewish Committee is a national organization 
of approximately 40,000 members which was founded in 1906 
for the purpose of protecting the civil and religious rights of 
Jews. It has always been the conviction of this organization, 
however, that the security and the constitutional rights of 
American Jews can best be protected by helping to preserve the 
security and the constitutional rights of all Americans, 
irrespective of race, creed, or national origin. For this reason, 
the American Jewish Committee has vigorously supported the 
extension of equal opportunity to all individuals. Specifically, 337

[1]



2

we have filed numerous briefs as amicus curiae in cases before 
this Court, as well as courts below, in opposition to 
discrimination based on race in education, housing, 
employment, public accommodations, and private clubs. While 
most of these cases have dealt with discrimination against black 
citizens, not all of them have, e.g., Lau v. Nichols, 414 U.S. 563 
(1974), which addressed discrimination in educational 
opportunity against Chinese-American public school students.

Petitioners will necessarily concentrate on demonstrating 
that they have made a claim of racial discrimination as this 
demonstration will have to be successful before this Court 
considers the question of whether or not a white person can 
seek judicial relief from such discrimination. The accompanying 
brief amicus curiae deals generally with this question and leaves 
to counsel for the parties the argument concerning the 
particulars of the instant case.

The lower courts in the instant case, in concluding that 42 
U.S.C. § 1981 is inapplicable to whites, relied upon cases which 
support such a conclusion only by way of dicta. The recent case 
of Hollander v. Sears, Roebuck and Co., 392 F. Supp 90 (D. 
Conn. 1975) which was decided two months before the 
appellate decision in the instant case was not considered. The 
Hollander court was the first court to review the legislative 
history of 42 U.S.C. § 1981 and found adequate support in the 
Congressional debates to conclude that white persons have 
standing to sue under the statute. In order to ensure that the 
reasoning and analysis of this case is considered by this Court, 
the American Jewish Committee has presented in its brief a 
lengthy excerpt from this case within the framework of the 
arguments presented to the Hollander court.

In addition, the American Jewish Committee finds it 
appropriate to bring to this Court's attention a district court 
holding that a white person does not have standing to sue under 
42 U.S.C. § § 2000e et seq. This issue of a white person's 
standing to sue under this statute was properly not reached by 
the lower courts in the instant case but will be before this Court 
for consideration if this Court finds a claim of racial 
discrimination has been made. The accompanying brief presents

338



3

portions of the Congressional debates which clearly 
demonstrate that a white person has standing to sue under 42 
U.S.C. § § 2000 e et seq. for consideration by this Court in the 
event this Court reaches this issue.

The underlying concern of the American Jewish 
Committee is that under the law there should be no 
differentiation based on race and that the law should not be 
construed to apply to one race and not another. This concern 
has a constitutional dimension. The accompanying brief 
therefore presents the argument that it would be violative of 
due process to construe either 42 U.S.C. § 1981 or 42 U.S.C. 
§ § 2000 e et. seq. as providing only a cause of action for 
non-whites.

The instant case may be decided upon a finding that the 
petitioners have not made a claim of racial discrimination. An 
adequate presentation of the arguments concerning this facet of 
the case can be made by counsel for the parties. The amicus 
curiae brief presents the full scope of the issues which the 
American Jewish Committee feels may not be presented or may 
be inadequately presented by counsel for the parties and which 
will be reached by this Court if it finds a claim of racial 
discrimination in the instant case.

For the foregoing reasons, the American Jewish 
Committee respectfully requests that this motion be granted.

December 15, 1975
Respectfully Submitted,

SAMUEL RABINOVE
A ttorney for the 

American Jewish Committee 
165 East 56th Street 

New York, New York 10022

339





IN THE

Supreme (Eourt of the liniteh States

October Term, 1975 
No.75-260

L.N. McDo n a l d , eta/.,
Petitioners

v.

SANTA FE TRAIL TRANSPORTATION CO., eta!., 
Respondents

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

Fifth Circuit

BRIEF OF
THE AMERICAN JEWISH COMMTTEE 

AS AMICUS CURIAE

This brief is submitted by the undersigned amicus curiae 
conditionally upon the granting of the motion for leave to file 
to which it is attached.

INTERESTS OF THE AMICUS CURIAE

The interest of the amicus is set forth in the attached 
motion for leave to file.

OPINION BELOW

The opinion of the Court of Appeals is reported at 513 
F.2d 90.

341

[5]



6

STATEMENT OF THE CASE

Petitioners, discharged from employment after being 
accused by respondent company of having misappropriated 
certain of respondent company's property, initiated an action 
under 42 U.S.C. §2000e-5(f) and 42 U.S.C. §1981 in the 
United States District Court for the Southern District of Texas, 
claiming that they were discharged on account of their race, 
which is white, because a similarly accused black employee was 
not discharged. Judgment was entered against the discharged 
employees who appealed.

The Court of Appeals held that 42 U.S.C. § 1981 "confers 
no actionable rights upon white persons," and finding that 
petitioners had failed to allege that they were falsely charged, 
held "that an employer's dismissal of white employees charged 
with misappropriating company property while not dismissing a 
similarly charged black employee does not raise a claim upon 
which relief may be granted under Title V II, 42 U.S.C. 
§ § 2000e et seq."

SUMMARY OF ARGUMENT

The Court of Appeals held that the plaintiffs (the 
petitioners here) could not claim that they were discriminated 
against on account of their race based upon the allegations in 
their complaint. Although the court also held that white 
persons cannot sue under 42 U.S.C. §1981, this holding is 
merely dictum. Even if the plaintiffs were not white, their claim 
under 42 U.S.C. § 1981 would have been dismissed because, in 
order to maintain an action under the statute, it is necessary to 
make a claim of racial discrimination.

If this Court finds that a claim of racial discrimination 
cannot be based upon the allegations in the complaint, there 
will be no basis upon which to decide whether or not a white 
person can sue under 42 U.S.C. § 1981. On the other hand, if 
this Court were to find that a valid claim of racial 
discrimination has been made, the question of whether or not a

342



7

white person can sue under the statute would be properly 
before this Court.

The courts that have stated that whites cannot sue under 
42 U.S.C. § 1981 seem to have assumed that the phrase "as is 
enjoyed by white citizens" contained in the statute indicates 
that only non-whites were to be protected under the statute. 
The legislative history of the statute demonstrates, though, that 
the phrase does not function to exclude white persons from the 
protection of the statute, but to ensure that protection under 
the statute extends only to persons denied the rights conferred 
on the basis of race.

Although the lower courts in the instant case did not need 
to consider the question of whether or not a white person can 
sue under 42 U.S.C. § § 2G00e et seq. since the courts found no 
claim of racial discrimination, the question ought to be 
considered by this Court if a claim of racial discrimination is 
found since a district court has held that a white person cannot 
sue under this act. This holding should be expressly overruled 
since the legislative history of the act demonstrates that 
although the act was passed in response to the denial of equal 
opportunity to non-whites, the Congress intended that the act 
would protect whites, as well as non-whites, from racial 
discrimination in the areas covered under the act.

If this Court were to find that either 42 U.S.C. § 1981 or 
42 U.S.C. §§2000 e et seq., or both prohibit racial 
discrimination against non-whites, but not against whites, 
enforcement of either statute would unjustifiably discriminate 
against whites so as to be violative of due process. The proper 
course for this Court to follow would be to interpret the 
statutes so as to provide standing for whites, and thereby, avoid 
having to render the statutes invalid.

343



8

ARGUMENT 

POINT I

THE PHRASE “ AS IS ENJOYED BY WHITE CITIZENS," 
AS PART OF 42 U.S.C. § 1981, DOES NOT FUNCTION TO 
EXCLUDE WHITE PERSONS FROM THE PROTECTION OF 
THE STATUTE, BUT TO ENSURE THAT PROTECTION 
UNDER THE STATUTE EXTENDS ONLY TO PERSONS 
DENIED THE RIGHTS CONFERRED ON THE BASIS OF 
RACE.

The Court of Appeals in this case affirmed the District 
Court's holding that 42 U.S.C. § 1981 (hereinafter "Section 
1981") confers no actionable right upon white persons. The 
appellate court based its affirmance on four cases which, 
actually, provide no support for such a conclusion, except, 
perhaps, by way of dicta. These cases do not involve claims of 
racial discrimination, as is involved in the instant case, and 
therefore, support only the conclusion that a white person who 
suffers no detriment due to his race does not have standing to 
sue under Section 1981.

In Perkins v. Banster, 190 F.Supp. 98 (D. Md. 1960), aff'd 
285 F.2d 426 (4th Cir. 1960) the court states: "Perkins has 
explained the rather unclear provisions of the complaint and has 
indicated that his claims are for false arrest or false indictment 
or malicious prosecution or denial of due process, and also for 
slander." 190 F.Supp. at 99. The case was dismissed because the 
court found the action to be "frivolous." 190 F.Supp. at 100. 
In Kurylas v. U.S. Department o f Agriculture, 373 F.Supp. 
1072 (D. D.C. 1974), " [ t] he Court concludes that the 
plaintiff's allegations of discrimination due to his national origin 
is insufficient to sustain a cause of action under §1981 . . ." 
373 F.Supp. at 1076. The court in Van Hoomissen v. Xerox 
Corp., 368 F.Supp. 829 (N.D. Cal. 1973) followed the 
reasoning in N.O.W. v. Bank o f California, 5 E.P.D., 8510
(N.D. Cal. 1973) that " . . .  the Court cannot allow a white 
plaintiff standing under Section 1981 when he has suffered a

344



9

deprivation which was not the result of his race." 368 F.Supp. 
at 839. The pla intiff in Van Hoomissen, supra, was only " . . .  
suing defendants for various alleged acts of retaliation . . . The 
alleged retaliation was in response to plaintiff's asserted 
attempts to change the hiring policy of Xerox, which he 
believe[d] discriminate[d] against Mexican Americans . . ." 368 
F.Supp. at 831. In Ripp v. Dobbs Houses, Inc., 366 F.Supp. 
205 (N.D. Ala. 1973), the court does state that " . . .  a white 
plaintiff cannot rely on 42 U.S.C. § 1981 . . ."  366 F. Supp. at 
211, but this is merely dictum. Even if the pla intiff in Ripp had 
been non white, the case would have been dismissed because, as 
the court found, the " . . .  p la intiff makes no complaint that he 
has suffered any detriment on account of his race." 366 
F.Supp. at 208. The plaintiff was attempting to represent other 
employees who were, allegedly, subjected to discrimination.

The same analysis can be applied to the other three cases 
relied upon by the appellate court in the instant case. Even if 
the plaintiffs in those cases were non-white, those cases would 
have been dismissed because the necessary claim of racial 
discrimination had not been made. The plaintiffs in the instant 
case have alleged that they were discriminated against because 
of their race.

The appellate court, though, did not find the allegation of 
racial discrimination sufficient. In its discussion of the 
applicability of Title VII of the Civil Rights Act of 1964, 42 
U.S.C. §§2000e et seq. (hereinafter "T itle  V II") to the 
plaintiffs' claim, the court found that the plaintiffs could not 
claim that they were discriminated against on account of their 
race based upon the allegations made in their complaint. If this 
legal finding is correct, then even if the plaintiffs were 
non-white, the court would have dismissed their claims under 
Section 1981. Therefore, the court's statement that whites 
cannot sue under Section 1981 is merely dictum. If this court 
finds that a claim of racial discrimination cannot be based upon 
the allegations in the complaint, there will be no basis upon 
which to decide whether or not a white person can sue under 
Section 1981. On the other hand, if this Court were to find that 
a valid claim of racial discrimination has been made, the

345



10

question of whether or not a white person can sue under 
Section 1981 would be properly before this Court.

The courts that have stated that whites cannot sue under 
Section 1981 seem to have assumed that the phrase "as is 
enjoyed by white citizens" contained in the statute indicates 
that only non-whites were to be protected under the statute. 
This assumption was demonstrated to be incorrect in Hollander 
v. Sears, Roebuck and Co., 392 F.Supp. 90 (D. Conn. 1975) 
where the court found that the legislative history of § 1 o f the 
Civil Rights Act of 1866,1 from which Section 1981 was 
ultimately derived makes it "  . . . quite clear that § 1981 should 
not be read as only providing a cause of action for non-whites." 
392 F.Supp. at 94. The Hollander court reached this conclusion 
through the following analysis:

As originally passed by the Senate, the bill which 
eventually became § 1 of the 1866 Act did not contain the 
questioned phrase. It was added by amendment in the 
House. See Georgia v. Rachel, 384 U.S. 780, 791 
(1966). During the Senate debates on that original bill, 
Senator Lyman Trumbull of Illinois, the floor manager, 
made it quite explicit that the bill was intended to protect 
the rights of whites, as well as blacks. In response to a 
charge by one of the bill's opponents that it was

1 Act of April 9, 1866, c. 31, § 1, 14 Stat. 27, re-enacted by § 16 of 
the Enforcement Act of 1870, Act of May 31,1870, c. 114, § 16, 16 Stat. 
140, 144, and codified in §§1977 and 1978 of the Revised Statutes of 
1874, now 42 U.S.C. §§1981 and 1982.
Section 1 provided in relevant part:

" [A ] II . . . citizens of the United States . . .  of every race and color, 
without regard to any previous condition of slavery or involuntary 
servitude . . . shall have the same right . . .  to make and enforce 
contracts, to sue, be parties, and give evidence, to inherit, purchase, 
lease, sell, hold, and convey real and personal property, and to full 
and equal benefit of all laws and proceedings for the security of 
person and property, as is enjoyed by white citizens, and shall be 
subject to like punishment, pains, and penalties, and to none other, 
any law, statute, ordinance, regulation, or custom, to the contrary 
notwithstanding.''

346



11

outrageous to provide federal protection for blacks that 
had never been accorded whites, Senator Trumbull stated:

Sir, this bill applies to white men as well as black 
men. It declares that all persons in the United States 
shall be entitled to the same civil rights, the right to the 
fru it of their own labor, the right to make contracts, the 
right to buy and sell, and enjoy liberty and happiness; 
and that is abominable and iniquitous and 
unconstitutional! Could anything be more monstrous or 
more abominable than for a member of the Senate to 
rise in his place and denounce with such epithets as 
these a bill, the only object of which is to secure equal 
rights to all the citizens of the country, a bill that 
protects a white man just as much as a black man? With 
what consistency and with what face can a Senator in 
his place here say to the Senate and the country that 
this is a bill for the benefit of black men exclusively 
when there is no such distinction in it, and when the 
very object of the bill is to break down all 
discrimination between black men and white men?
Cong. Globe, 39th Cong., 1st Sess. 599 (1866).

Of course, this statement was made before the House 
amended the bill to include, inter alia, the phrase "as is 
enjoyed by white citizens." However, when the bill was 
resubmitted to the Senate for consideration of the House 
amendments, the following colloquy between Senator 
Trumbull and Senator Van Winkle of West Virginia:

Mr. VAN WINKLE. There seems to be an 
incongruity in this language to which I wish to call the 
attention of the chairman of the committee. The clause 
commences with the words "and such citizens." As I 
understand those words they include all persons who are 
or can be citizens, white persons and all others. The 
clause then goes on to provide that "such citizens of 
every race and color, w ithout regard to any previous 
condition of slavery or involuntary servitude, shall have 347



12

the same right to make and enforce contracts," &c., "as 
is enjoyed by white citizens." It seems to me these 
words are superfluous. The idea is that the rights of all 
persons shall be equal; and I think the clause, leaving 
out these words, would attain the object. This is merely 
a verbal criticism. I think the bill is incongruous in 
expression as it stands.

Mr. TRUMBULL. I quite agree with the Senator 
from West Virginia that these words are superfluous. / 
do not think they alter the bill. I think the bill would 
be better w ithout them, but they have been adopted by 
the House of Representatives. We did not think they 
altered the meaning o f the bill-, and we did not think it 
worth while to send the bill back just because these 
words were inserted by the House. They thought there 
was some importance in them and have inserted them; 
and as in the opinion o f the committee which examined 
this matter they did not alter the meaning o f the b ill, 
the committee thought proper to recommend a 
concurrence, and I hope the Senate will concur in it. 
(Emphasis added). Cong. Globe, 39th Cong., 1st Sess. 
1413 (1866).

Without further debate, the amendment was approved by 
the Senate and ultimately the entire bill, as amended, was 
passed. Thus, the history of this legislation in the Senate 
clearly reflects an understanding that the act was to 
protect the rights of all citizens notwithstanding the 
amendatory language inserted by the House. Hollander i/. 
Sears, Roebuck and Co., supra, 392 F.Supp. at 92-93.

The reason for the addition of the phrase given in the 
House by James F. Wilson of Iowa, the bill's floor manager was 
that "  . . .  it was thought by some persons that unless these 
qualifying words were incorporated in the bill, [the rights 
conferred] might be extended to all citizens, whether male or 
female, majors or minors." Appendix to Cong. Globe, 39th 
Cong., 1st Sess. 157 (1866). The phrase was intended only "to  

348 emphasize the racial character of the rights being protected."



13

Georgia v. Rachel, 384 U.S. 780 at 791 (1966). In other words, 
the phrase was added to ensure that protection under the 
statute extended only to persons denied the rights conferred on 
the basis of race and not to exclude white persons from the 
protection of the statute.

The court in Kentucky v. Powers, 139 F. 452 at 495 
(Cir.Ct. E.D.Ky. 1905), rev'd 201 U.S. 1 (1906) provided the 
following analysis:

Section 1977 [now 1981], so far as it confers rights, is 
not limited to negroes and colored persons. It confers 
rights on white persons. The persons on whom it confers 
rights are 'all persons within the jurisdiction of the United 
States.' It is only when it comes to define the rights which 
the section confers that they are referred to as such 'as is 
enjoyed by white citizens.' (dictum)

This analysis of the language of the act should be sufficient, in 
and of itself, to demonstrate that Section 1981 protects whites, 
as well as non-whites. As the legislative history fu lly supports 
this analysis, this Court should hold that whites have the right 
to sue under Section 1981.

POINT II

ALTHOUGH 42 U.S.C. § § 2000e ET SEQ. WAS PASSED 
IN RESPONSE TO THE DENIAL OF EQUAL OPPORTUNITY 
TO NON-WHITES, THE CONGRESS INTENDED THAT THE 
ACT WOULD PROTECT WHITES, AS WELL AS 
NON-WHITES, FROM RACIAL DISCRIMINATION IN THE 
AREAS COVERED UNDER THE ACT.

Although the lower courts in the instant case did not need 
to consider the question of whether or not a white person can 
sue under Title VII since the courts found no claim of racial 
discrimination, the question ought to be considered by this 
Court if a claim of racial discrimination is found since a district

349



14

court has held that a white person cannot sue under Title VII. 
The court in Haber v. Klassen, 10 FEP Cases 1446 at 1447 
(N.D. Ohio 1975) dismissed the case of a white p la in tiff stating 
that " . . .  the discrimination these statutory provisions were 
designed to eliminate were aimed at racial minorities . . ." 2

Although the Haber court quoted from this Court's 
decision in Griggs v, Duke Power Co., 401 U.S. 424 (1971), it 
co m p le te ly  disregarded this Court's statement that 
" [d] iscriminatory preference for any group, m inority or 
majority, is precisely . . . what Congress has proscribed." 401 
U.S. at 431. This Court's interpretation of Congressional intent 
is adequately supported by the debates.

Although Title VII was passed in response to the denial of 
equal employment opportunity for minorities, the Congress was 
not unaware of discrimination against whites. On April 6 , 1964 
Senator Holland quoted in Congress from an interview by U.S. 
News and World Report of a black businessman who owned and 
operated a business with annual gross sales of $ 1 0  million and 
which had 600 employees:

" Question: Would you say, then, that racial discrimination 
is found among all races?
Answer: It is a universal human tra it — and people use it, if 
they can do so at a profit. When it becomes unprofitable 
they forget it. Here in our organization, it pays the white 
people not to discriminate against the Negro, and they 
don't. But the Negroes will discriminate against the white 
people because they are trying to get the white people out 
of some of the well-paying jobs and put Negroes in them." 
110 Cong. Rec. 7017 (April 6 , 1964)

Furthermore, many members o f Congress were concerned that 
whites might be discriminated against as a result of an

2The statutory provision involved in Haber v. Klassen, supra, is 42 
U.S.C. §2000eT6(a) which reads in relevant part: "A ll personnel actions 
affecting employees . . .  in the United States Postal Service . . . shall be 
made free from any discrimination based on race."



15

employer's efforts to comply with the requirements of Title 
V II. Senator Clark, one of the two floor managers of the Civil 
Rights Act of 1964 stated in response to this concern that the 
Equal Employment Opportunity Commission (hereinafter 
"EEOC") " . . .  has a clear mandate to engage in widespread 
educational and promotional activities to encourage 
understanding and acceptance of the policy of the act, 
including the obligation not to discriminate against whites." 
(Emphasis added) 110 Cong. Rec. 7218 (April 8, 1964). The 
EEOC, which was created under Title VII and empowered to 
investigate charges of discrimination and to determine if 
reasonable cause exists to believe that the charge is true, has 
recognized that an employer has such an obligation by finding 
in a recent case reasonable cause to believe that an employer 
and employment agency violated Title VII when, because the 
employer requested only referral of m inority group applicants 
the employment agency failed to act on an application 
submitted by a white individual. EEOC Decision 75-268, 10 
FEP Cases 1502 (1975). In another decision the EEOC found 
reasonable cause to believe that the respondent violated Title 
VII by failing to rehire a white professor. EEOC Decision 
74-106, 10 FEP Cases 269 (1974).

In view of the above, the Haber court's holding that a 
white person is not protected under Title VII is clearly 
erroneous. Therefore, this Court should expressly overrule this 
holding if a claim of racial discrimination is found in the instant 
case and it becomes necessary to consider whether or not a 
white person can sue under Title VII.

POINT III

ENFORCEMENT OF A STATUTE THAT PROHIBITS 
RACIAL DISCRIMINATION AGAINST NON-WHITES BUT 
NOT AGAINST WHITES WOULD UNJUSTIFIABLY 
DISCRIMINATE AGAINST WHITES SO AS TO BE 
VIOLATIVE OF DUE PROCESS.

In Schneider v. Rusk, 377 U.S. 163 at 168(1964), this 
Court stated that " . . .  while the Fifth Amendment 351



16

contains no equal protection clause, it does forbid 
discrimination that is 'so unjustifiable as to be violative of due 
process.' Bolling v. Sharpe, 347 U.S. 497, 499 [1954 ]." In 
Frontiero v. Richardson, 411 U.S. 677 (1973), this Court 
followed this reasoning and applied the analytic techniques 
developed in Fourteenth Amendment equal protection cases to 
a claim arising under the due process clause of the Fifth 
Amendment.

Classifications based upon race, being inherently suspect, 
must be subjected to close judicial scrutiny. It is evident, 
though, that even under a traditional rational-basis analysis, a 
statute prohibiting racial discrimination against members of one 
race, while not providing the same protection against members 
of another race, would have to be held invalid. There can be no 
constitutional justification for such invidious discrimination. 
The proper course for this Court to follow would be to 
interpret the statutes so as to provide standing for whites, and 
thereby, avoid having to render the statutes invalid.

352



17

CONCLUSION

The legislative history of both Section 1981 and Title VII 
compel a holding that whites, as well as non-whites, are 
protected against racial discrimination by these statutes. Due 
process considerations necessitate such a holding if the statutes 
are not to be held invalid.

For the reasons set forth herein, the decision below should 
be reversed.

Respectfully Submitted,

SAMUEL RABINOVE
Attorney for the 

American Jewish Committee 
165 East 56th Street 

New York, New York 10022

ALAN ROY HOLLANDER
Of Counsel

December 15, 1975

353





(Emirt of lit? Itutfft States
October T erm, 1975 

No. 75-260

I h  t h e

L. N. McDonald, e t al.,

v .

Petitioners,

Santa F e T ransportation Co., et al.

ON W R IT OP CERTIORARI TO T H E  

U N ITED  STATES COURT OP APPEALS 

POR T H E  P IP T H  CIRCUIT

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS 
C U R IA E  OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

J ack Greenberg 
B arry L. Goldstein 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae

355





I n ' t h e

§>uprent£ (Emirt of tlje lotted ^tatra
O ctober T erm , 1975

No. 75-260

L. N. M cD onald, e t al.,

v .
P etitio n ers ,

'Santa F e T ransportation Co., et al.

ON W R IT  OE CERTIORARI TO T H E  

U N ITED  STATES COURT OE APPEALS 

EOR T H E  F IF T H  CIRCUIT

MOTION FOR LEAVE TO 
FILE BRIEF AS A M I C U S  C U R I A E

N.A.A.C.P. Legal Defense and Educational Fund, Inc., 
hereby moves for leave to file the attached brief as am icus  
curiae.

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation incorporated under the 
laws of the State of New York. It was formed to assist 
Negroes.to secure their constitutional rights by the prose­
cution of lawsuits. Its charter declares that its purposes 
include rendering legal services gratuitously to Negroes 
suffering injustice by reason of racial discrimination. For 
many years attorneys of the Legal Defense Fund have 
represented parties in employment discrimination litigation

357



2

before this Court and the lower courts. The Legal Defense 
Fund believes that its experience in employment discrimi­
nation litigation may be of assistance to the Court, The 
proposed brief is submitted in support of respondents 
though advancing reasons somewhat different than those 
relied on by the courts below.

W h er efo r e , the N.A.A.C.P. Legal Defense and Educa­
tional Fund, Inc., respectfully prays that this motion be 
granted, and that the attached brief be filed.

Respectfully submitted,

J ack Greenberg  
B arry L. G oldstein  
E ric  S c h n a ppe r  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae

358



I n  t h e

i>uprrntr (Court of tljr luitrts States
O ctobee T e e m , 1975 

No. 75-260

L. N. M cD onald, et al.,

v .
Petitioners,

S anta F e T eanspoetation  Co., et al.

ON W KIT OE CEETIOBAEI TO TH E 

U N ITED  STATES COTTBT OE APPEALS 

EOE T H E  E IF T H  CIECUIT

BRIEF AMICUS CURIAE OF THE 
NAACP LEGAE DEFENSE AND 

EDUCATIONAL FUND, INC.

Argument

All parties to this case, as well as the courts below, agree 
that white employees alleging discrimination on the basis 
of race may sue under Title VII of the 1964 Civil Rights 
Act, 42 U.S.C. § 20006.1 The procedural requirements for 
a Title VII action were clearly met. Petitioner McDonald 
was discharged on October 2, 1970, and filed a grievance 
with the union on that day. The grievance was resolved 
against McDonald on October 29, 1970; the discharge only

1 Appendix, pp. 4, 63, 105, 121-22.

359



2

became final upon the completion of grievance proceedings 
and the statutory period for filing a charge with the Equal 
Employment Opportunity Commission was tolled pending 
those proceedings.2 Within the 180 days after the rejection 
of his grievance McDonald filed the requisite charges with 
the E.E.O.C. against both the company and the union.3 
Since this case was commenced as a class action, it was 
not necessary for petitioner Laird to file a separate Title 
VII charge. Albemarle Paper Co. v. Moody, 422 U.S. 405, 
414 n. 8 (1975).4 * All the relief sought by petitioners in their 
Second Amended Complaint is within the broad remedial 
power of the court in a Title VII action.6

Since jurisdiction over this action exists under Title 
VII, it appears unnecessary to reach the more difficult and 
far reaching question of whether white employees may sue 
under 42 U.S.C. § 1981. If, however, the Court reaches 
that question and concludes that the phrase “as is enjoyed 
by white citizens” is “superfluous language, the substance 
of which would in no way alter the substance of the 
statute”,6 amicus believes that section 1981 must be con­

2 C u lp e p p e r  v. R e y n o ld s  M e ta ls  Co., 421 F.2d 888 (5th Cir. 
1970); H u tc h in g s  v. U .S . In d u s tr ie s ,  In c ., 428 F.2d 303 (5th Cir. 
1970) ; M alone  v. N o r th  A m e r ic a n  R o c k w e ll C orp ., 457 F.2d 779 
(9th Cir. 1972) ; S a n ch ez  v. T .W .A . ,  499 F.2d 1107 (10th Cir 
1974).

3 Appendix, pp. 115, 118. The 1972 amendments to Title V II 
extended the period of time within which to file such charges from 
90 to 180 days, and apply to all pending litigation. See Pub. L. 
92-261; 42 U.S.C. § 2000e-5(d) ; D a v is  v. V a lle y  D is tr ib u t in g  Co., 
522 F.2d 879 (9th Cir. 1975).
SLA j

4 If  the class action aspect of the case were dismissed, Laird and
other putative class members would be entitled as of right to inter­
vene in this action although the relevant deadlines had by then 
passed. A m e r ic a n  P ip e  a n d  C o n s tru c tio n  Co. v. U ta h , 414 U.S. 
538 (1974). Whether Laird himself filed a timely charge with 
EEOC is a matter of dispute. Appendix, pp. 115-116.

6 Appendix, pp. 41-42; 42 U.S.C. § 2000e-5.
6 Brief of Petitioners, p. 25.

360



3

strued not merely to protect whites against racial dis­
crimination, as urged by petitioners and various amici, but 
also to prohibit all forms of invidious discrimination—on 
the basis of sex, age, national origin, etc.

An allegation of racially motivated unequal discipline 
for identical misconduct, even criminal misconduct, by 
similarly situated employees states a cause of action under 
Title VII, regardless of whether the victim of the alleged 
discrimination is black or white. In McDonnell Douglas 
Corp. v. Green, 411 U.S. 792 (1973), this Court held that 
an employer might justifiably refuse to hire an employee 
who engaged in unlawful acts against it “but only if this 
criterion is applied alike to members of all races.” 411 
U.S. at 804. If the employer in this case maintains a 
general policy of firing whites who steal but forgiving 
blacks who do so. or vice versa, such a policy would turn 
the theft into a pretext for mistreating the disfavored race. 
An allegation of such a policy might be supported by evi­
dence that black employees known to the company to be as 
culpable as petitioners, and whose cases presented com­
parable mitigating factors, were not discharged. Other 
relevant evidence would include whether or not the em­
ployer had a practice of not hiring white applicants, of 
confining white employees to menial low-paying jobs, or of 
using tests with a disproportionate racial impact on whites. 
In a case, unlike this one,7 where an employee challenged 
the good faith of an employer’s conclusion that he was 
guilty and others innocent, of the misconduct charged, an 
inquiry might be required as to who was indeed culpable 
and what reason the employer had to believe otherwise.

7 Since no such allegation was made, whether petitioner actually 
stole the anti-freeze, as he now appears to deny, need not be re­
solved.

361



4

As petitioners correctly recognize,8 the cause of action 
accorded white employees under Title VII does not confer 
a right to thwart or deter actions by an employer, whether 
voluntary or court ordered, to end past discrimination 
against blacks or to overcome the continuing effects of 
such discrimination. If in the past a white employee has 
enjoyed the illicit benefits which are the windfall whites 
often receive when black employees are mistreated, such a 
white employee cannot complain if he is restored to his 
rightful place and is subject to the terms and conditions of 
employment which would have applied to him had there 
been no discrimination. An employer who defends a reme­
dial policy is not obligated to establish, in the manner and 
detail which would have been required of a black employee 
suing for such a relief, that it had engaged in systemic 
racial discrimination or that the remedy it chose was that 
which would have been selected by a federal court. Such 
a requirement would frustrate the statutory policy of en­
couraging employers to voluntarily examine their employ­
ment practices and correct any discrimination. Albemarle 
Paper Co. v. Moody, 472 U.S. 405 (1975). Only the most 
courageous of employers would voluntarily implement a 
remedy if they did so at peril of liability to white employees 
should they fail to guess the precise remedy a court might 
years later find appropriate. An employer need only estab­
lish that the remedy it has chosen is reasonably related 
to a palpable claim of prior discrimination against blacks.

The expectations aroused by a past practice of discrimi­
nation in favor of whites may prompt a white employee 
to perceive injustice in an end to that favoritism.9 The

8 Brief of Petitioners, p. 42.
9 “Title V II guarantees that all employees are entitled to the 

same expectations regardless of ‘race, color, religion, sex, or na­
tional origin.’ Where some employees now have lower expectations 
than their co-workers because of the influence of one of these for­
bidden factors, they are entitled to have their expectations raised

362



5

extensive discovery in this action clearly indicates this is 
such a case. Although the complaint alleges there are 
“numerous” whites who have been subject to discrimina­
tory dismissal,10 the plaintiffs were the only employees 
fired at the Houston Terminal during the year involved.11 
It is not disputed that, on or about September 26, 1970, 
plaintiff McDonald, a truck driver whose route included 
the SMS Company, returned from its plant with approxi­
mately ten cases of antifreeze manufactured by that firm. 
On arriving at the Santa Fe Terminal, McDonald admit­
tedly sold some of that antifreeze to a number of fellow 
employees, black and white, with the knowledge and as­
sistance of plaintiff Laird, who was McDonald’s supervisor. 
When the transaction came to light detectives employed 
by the Company investigated several dozen employees, 
including plaintiffs. McDonald conceded he had sold the 
antifreeze but maintained that the antifreeze was a gift 
to him from the SMS company;12 the company concluded, 
however, that McDonald had stolen the antifreeze from 
SMS; and therefore dismissed McDonald for theft and 
Laird for failing to deal effectively with the problem of 
theft.13 The black employee involved, Charles Jackson, 
was merely one of the employees who had purchased the 
antifreeze from McDonald; since McDonald had advised 
him the antifreeze was lavffully acquired there was never 
any question that Jackson was culpable.14 Even if Jack­

even if the expectations of others must be lowered in order to 
achieve the statutorily mandated equality of opportunity.” Robin­
son v. Lorillard Corp., 444 F.2d 791, 800 (4th Cir. 1971), cert, 
dismissed 404 U.S. 1006 (1971).

10 Appendix, p. 36.
11 Id., p. 33.
12 See deposition of L. N. McDonald, pp. 10-14.
13 Appendix, p. 32.
14 See deposition of Charles Adrian Jackson.

363



6

son had reason to suspect the goods were stolen, his pur­
chase was manifestly less culpable than the actual theft, 
and was mitigated by his active cooperation with the 
company’s investigation.15 The only question of fact gen­
uinely in issue is whether the company erred in conclud­
ing McDonald obtained the antifreeze by theft rather than 
as a gift, but such a mistake would not violate Title VII. 
Under the circumstances this case appears ripe for sum­
mary judgment. Mourning v. Family Publications Ser­
vice, 411 U.S. 356, 362, n. 16 (1973).

Respectfully submitted,

J ack Greenberg  
B arry L. Goldstein  
E ric  S c h n a pper  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus Curiae

15 Id.

364



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