Patterson v. McLean Credit Union Opinion

    (Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part o f the opinion o f the Court but has been pre­
pared by the Reporter of Decisions for the convenience of the reader. See 
United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PATTERSON v. McLEAN CREDIT UNION

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE FOURTH CIRCUIT

No. 87-107. Argued February 29, 1988—Reargued October 12, 1988— 
Decided June 15, 1989

Petitioner, a black woman, was employed by respondent credit union as a 
teller and file coordinator for 10 years until she was laid off. Thereafter, 
she brought this action in District Court under 42 U. S. C. § 1981, alleg­
ing that respondent had harassed her, failed to promote her to account­
ing clerk, and then discharged her, all because of her race. The District 
Court determined that a claim for racial harassment is not actionable 
under § 1981 and declined to submit that part of the case to the jury. 
The court instructed the jury, inter alia, that in order to prevail on her 
promotion-discrimination claim, petitioner had to prove that she was bet­
ter qualified than the white employee who allegedly had received the 
promotion.. The jury found for respondent on this claim, as well as on 
petitioner’s discriminatory-discharge claim. The Court of Appeals af­
firmed the judgment in favor of respondent.

Held:
1. This Court will not overrule its decision in Runyon v. McCrary, 

427 U. S. 160, that § 1981 prohibits racial discrimination in the making 
and enforcement of private contracts. Stare decisis compels the Court 
to adhere to that interpretation, absent some “special justification” not 
to do so. The burden borne by a party advocating the abandonment of 
an established precedent is greater where the Court is asked to overrule 
a point of statutory construction, which, unlike constitutional interpreta­
tion, may be altered by Congress. Here, no special justification has 
been shown for overruling Runyon, which has not been undermined by 
subsequent changes or development in the law, has not proved to be un­
workable, and does not pose an obstacle to the realization of objectives 
embodied in other statutes, particularly Title VII of the Civil Rights Act 
of 1964. Furthermore, Runyon is entirely consistent with society’s

I



II PATTERSON v. McLEAN CREDIT UNION

Syllabus

deep commitment to the eradication of race-based discrimination. 
Pp.3-6.

2. Racial harassment relating to the conditions of employment is not 
actionable under § 1981, which provides that “[a]ll persons . . . shall have 
the same right . . .  to make and enforce contracts . . .  as is enjoyed by 
white citizens,” because that provision does not apply to conduct which 
occurs after the formation of a contract and which does not interfere with 
the right to enforce established contract obligations. Pp. 7-14.

(a) Since § 1981 is restricted in its scope to forbidding racial dis­
crimination in the “making[ing] and enforce[ment]” of contracts, it can­
not be construed as a general proscription of discrimination in all aspects 
of contract relations. It provides no relief where an alleged discrimina­
tory act does not involve the impairment of one of the specified rights. 
The “right. . .  to make . . . contracts” extends only to the formation of a 
contract, such that § 1981’s prohibition encompasses the discriminatory 
refusal to enter into a contract with someone, as well as the offer to make 
a contract only on discriminatory terms. That right does not extend to 
conduct by the employer after the contract relation has been established, 
including breach of the contract’s terms or the imposition of discrimina­
tory working conditions. The “right. . . to . . . enforce contracts” em­
braces only protection of a judicial or nonjudicial legal process, and of a 
right of access to that process, that will address and resolve contract-law 
claims without regard to race. It does not extend beyond conduct by an 
employer which impairs an employee’s ability to enforce through legal 
process his or her established contract rights. Pp. 7-10.

(b) Thus, petitioner’s racial harassment claim is not actionable 
under § 1981. With the possible exception of her claim that respond­
ent’s refusal to promote her was discriminatory, none of the conduct 
which she alleges —that her supervisor periodically stared at her for min­
utes at a time, gave her more work than white employees, assigned her 
to demeaning tasks not given to white employees, subjected her to a ra­
cial slur, and singled her out for criticism, and that she was not afforded 
training for higher level jobs and was denied wage increases—involves 
either a refusal to make a contract with her or her ability to enforce her 
established contract rights. Rather, the conduct alleged is postforma­
tion conduct by the employer relating to the terms and conditions of con­
tinuing employment, which is actionable only under the more expansive 
reach of Title VII. Interpreting § 1981 to cover postformation conduct 
unrelated to an employee’s right to enforce her contract is not only incon­
sistent with the statute’s limitations, but also would undermine Title 
VII’s detailed procedures for the administrative conciliation and resolu­
tion of claims, since § 1981 requires no administrative review or opportu­
nity for conciliation. Pp. 10-14.



PATTERSON v. McLEAN CREDIT UNION hi

Syllabus

(c) There is no merit to the contention that § 1981’s “same right” 
phrase must be interpreted to incorporate state contract law, such that 
racial harassment in the conditions of employment is actionable when, 
and only when, it amounts to a breach of contract under state law. That 
theory contradicts Runyon by assuming that § 1981’s prohibitions are 
limited to state-law protections. Moreover, racial harassment amount­
ing to breach of contract, like racial harassment alone, impairs neither 
the right to make nor the right to enforce a contract. In addition, the 
theory would unjustifiably federalize all state-law breach of contract 
claims where racial animus is alleged, since § 1981 covers all types of con­
tracts. Also without merit is the argument that § 1981 should be inter­
preted to reach racial harassment that is sufficiently “severe or perva­
sive” as effectively to belie any claim that the contract was entered into 
in a racially neutral manner. Although racial harassment may be used 
as evidence that a divergence in the explicit terms of particular contracts 
is explained by racial animus, the amorphous and manipulable “severe or 
pervasive” standard cannot be used to transform a nonactionable chal­
lenge to employment conditions into a viable challenge to the employer’s 
refusal to contract. Pp. 14-16.

3. The District Court erred when it instructed the jury that petitioner 
had to prove that she was better qualified than the white employee who 
allegedly received the accounting clerk promotion. Pp. 16-20.

(a) Discriminatory promotion claims are actionable under §1981 
only where the promotion rises to the level of an opportunity for a new 
and distinct relation between the employer and the employee. Here, 
respondent has never argued that petitioner’s promotion claim is not 
cognizable under § 1981. Pp. 16-17.

(b) The Title VII disparate-treatment framework of proof applies to 
claims of racial discrimination under § 1981. Thus, to make out a prima 
facie case, petitioner need only prove by a preponderance of the evidence 
that she applied for and was qualified for an available position, that she 
was rejected, and that the employer then either continued to seek appli­
cants for the position, or, as is alleged here, filled the position with a 
white employee. The establishment of a prima facie case creates an in­
ference of discrimination, which the employer may rebut by articulating 
a legitimate, nondiscriminatory reason for its action. Here, respondent 
did so by presenting evidence that it promoted the white applicant be­
cause she was better qualified for the job. Thereafter, however, peti­
tioner should have had the opportunity to demonstrate that respondent’s 
proffered reasons for its decision were not its true reasons. There are a 
variety of types of evidence that an employee can introduce to show that 
an employer’s stated reasons are pretextual, and the plaintiff may not be 
limited to presenting evidence of a certain type. Thus, the District



IV PATTERSON v. McLEAN CREDIT UNION

Syllabus

Court erred in instructing the jury that petitioner could carry her bur­
den of persuasion only by showing that she was in fact better qualified 
than the person who got the job. Pp. 17-20.

805 F. 2d 1143, affirmed in part, vacated in part, and remanded.

K e n n e d y , J., delivered the opinion of the Court, in which R e h n q u i s t , 
C. J., and W h i t e , O ’ C o n n o r , and S c a l i a , JJ., joined. B r e n n a n , J., 
filed an opinion concurring in the judgment in part and dissenting in part, 
in which M a r s h a l l  and B l a c k m u n , JJ., joined, and in Parts I I - B ,  II-C, 
and III of which S t e v e n s , J., joined. S t e v e n s , J., filed an opinion con­
curring in the judgment in part and dissenting in part.



NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 87-107

BRENDA PATTERSON, PETITIONER v.
McLEAN CREDIT UNION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

[June 15, 1989]

J u s t ic e  K e n n e d y  delivered the opinion of the Court.
In this case, we consider important issues respecting the 

meaning and coverage of one of our oldest civil rights stat­
utes, 42 U. S. C. § 1981.

I
Petitioner Brenda Patterson, a black woman, was em­

ployed by respondent McLean Credit Union as a teller and a 
file coordinator, commencing in May 1972. In July 1982, she 
was laid off. After the termination, petitioner commenced 
this action in District Court. She alleged that respondent, in 
violation of 42 U. S. C. § 1981, had harassed her, failed to 
promote her to an intermediate accounting clerk position, and 
then discharged her, all because of her race. Petitioner also 
claimed this conduct amounted to an intentional infliction of 
emotional distress, actionable under North Carolina tort law.

The District Court determined that a claim for racial ha­
rassment is not actionable under § 1981 and declined to sub­
mit that part of the case to the jury. The jury did receive 
and deliberate upon petitioner’s § 1981 claims based on al­
leged discrimination in her discharge and the failure to pro­
mote her, and it found for respondent on both claims. As for 
petitioner’s state law claim, the District Court directed a 
verdict for respondent on the ground that the employer’s con­
duct did not rise to the level of outrageousness required to



2 PATTERSON v. McLEAN CREDIT UNION

state a claim for intentional infliction of emotional distress 
under applicable standards of North Carolina law.

In the Court of Appeals, petitioner raised two matters 
which are relevant here. First, she challenged the District 
Court’s refusal to submit to the jury her § 1981 claim based 
on racial harassment. Second, she argued that the District 
Court erred in instructing the jury that in order to prevail 
on her § 1981 claim of discriminatory failure to promote, 
she must show that she was better qualified than the white 
employee who she alleges was promoted in her stead. The 
Court of Appeals affirmed. 805 F. 2d 1143 (1986). On the 
racial harassment issue, the court held that while instances of 
racial harassment “may implicate the terms and conditions of 
employment under Title VII [of the Civil Rights Act of 1964, 
42 U. S. C. §2000e,] and of course may be probative of the 
discriminatory intent required to be shown in a § 1981 ac­
tion,” id., at 1145 (citation omitted), racial harassment itself 
is not cognizable under §1981 because “racial harassment 
does not abridge the right to ‘make’ and ‘enforce’ contracts,” 
id., at 1146. On the jury instruction issue, the court held 
that once respondent had advanced superior qualification as a 
legitimate nondiscriminatory reason for its promotion deci­
sion, petitioner had the burden of persuasion to show that re­
spondent’s justification was a pretext and that she was better 
qualified than the employee who was chosen for the job. Id., 
at 1147.

We granted certiorari to decide whether petitioner’s claim 
of racial harassment in her employment is actionable under 
§1981, and whether the jury instruction given by the Dis­
trict Court on petitioner’s § 1981 promotion claim was error. 
484 U. S. 814 (1987). After oral argument on these issues, 
we requested the parties to brief and argue an additional 
question:

“Whether or not the interpretation of 42 U. S. C.
§ 1981 adopted by this Court in Runyon v. McCrary, 427



PATTERSON v. McLEAN CREDIT UNION 3

U. S. 160 (1976), should be reconsidered.” 485 U. S.
617 (1988).

We now decline to overrule our decision in Runyon v. Mc­
Crary, 427 U. S. 160 (1976). We hold further that racial 
harassment relating to the conditions of employment is not 
actionable under § 1981 because that provision does not apply 
to conduct which occurs after the formation of a contract and 
which does not interfere with the right to enforce established 
contract obligations. Finally, we hold that the District 
Court erred in instructing the jury regarding petitioner’s 
burden in proving her discriminatory promotion claim.

II
In Runyon, the Court considered whether § 1981 prohibits 

private schools from excluding children who are qualified for 
admission, solely on the basis of race. We held that § 1981 
did prohibit such conduct, noting that it was already well 
established in prior decisions that §1981 “prohibits racial 
discrimination in the making and enforcement of private 
contracts.” Id., at 168, citing Johnson v. Railway Express 
Agency, Inc., 421 U. S. 454, 459-460 (1975); Tillman v. 
Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431, 439- 
440 (1973). The arguments about whether Runyon was de­
cided correctly in light of the language and history of the stat­
ute were examined and discussed with great care in our deci­
sion. It was recognized at the time that a strong case could 
be made for the view that the statute does not reach private 
conduct, see 427 U. S., at 186 (Powell, J., concurring); id., at 
189 (S t e v e n s , J., concurring); id., at 192 (W h i t e , J., dis­
senting), but that view did not prevail. Some Members of 
this Court believe that Runyon was decided incorrectly, and 
others consider it correct on its own footing, but the question 
before us is whether it ought now to be overturned. We con­
clude after reargument that Runyon should not be overruled, 
and we now reaffirm that § 1981 prohibits racial discrimina­
tion in the making and enforcement of private contracts.



4 PATTERSON v. McLEAN CREDIT UNION

The Court has said often and with great emphasis that 
“the doctrine of stare decisis is of fundamental importance to 
the rule of law.” Welch v. Texas Dept, of Highways and 
Public Transportation, 483 U. S. 468, 494 (1987). Although 
we have cautioned that “stare decisis is a principle of policy 
and not a mechanical formula of adherence to the latest deci­
sion,” Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 
241 (1970), it is indisputable that stare decisis is a basic self- 
governing principle within the Judicial Branch, which is en­
trusted with the sensitive and difficult task of fashioning and 
preserving a jurisprudential system that is not based upon 
“an arbitrary discretion.” The Federalist, No. 78, p. 490 
(H. Lodge ed. 1888) (A. Hamilton). See also Vasquez v. 
Hillery, 474 U. S. 254, 265 (1986) (stare decisis ensures that 
“the law will not merely change erratically” and “permits 
society to presume that bedrock principles are founded in the 
law rather than in the proclivities of individuals”).

Our precedents are not sacrosanct, for we have overruled 
prior decisions where the necessity and propriety of doing 
so has been established. See Patterson v. McLean Credit 
Union, 485 U. S. 617, 617-618 (1988) (citing cases). None­
theless, we have held that “any departure from the doctrine 
of stare decisis demands special justification.” Arizona v. 
Rumsey, 467 U. S. 203, 212 (1984). We have said also that 
the burden borne by the party advocating the abandonment 
of an established precedent is greater where the Court is 
asked to overrule a point of statutory construction. Consid­
erations of stare decisis have special force in the area of stat­
utory interpretation, for here, unlike in the context of con­
stitutional interpretation, the legislative power is implicated, 
and Congress remains free to alter what we have done. See, 
e. g ., Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 
476 U. S. 409, 424 (1986); Illinois Brick Co. v. Illinois, 431 
U. S. 720, 736 (1977).

We conclude, upon direct consideration of the issue, that 
no special justification has been shown for overruling Run­



PATTERSON v. McLEAN CREDIT UNION 5

yon. In cases where statutory precedents have been over­
ruled, the primary reason for the Court’s shift in position has 
been the intervening development of the law, through either 
the growth of judicial doctrine or further action taken by 
Congress. Where such changes have removed or weakened 
the conceptual underpinnings from the prior decision, see, 
e. g., Rodriguez de Quijas v. Shearson /American Express,
Inc., 490 U. S. ------ , ------ (1989); Andrews v. Louisville &
Nashville R. Co., 406 U. S. 320, 322-323 (1972), or where the 
later law has rendered the decision irreconcilable with com­
peting legal doctrines or policies, see, e. g., Braden v. 30th 
Judicial Circuit Ct. of Ky., 410 U. S. 484, 497-499 (1973); 
Construction Laborers v. Curry, 371 U. S. 542, 552 (1963), 
the Court has not hesitated to overrule an earlier decision. 
Our decision in Runyon has not been undermined by subse­
quent changes or development in the law.

Another traditional justification for overruling a prior case 
is that a precedent may be a positive detriment to coherence 
and consistency in the law, either because of inherent confu­
sion created by an unworkable decision, see, e. g., Continen­
tal T.V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 47-48 
(1977); Swift & Co. v. Wickham, 382 U. S. I l l ,  124-125 
(1965), or because the decision poses a direct obstacle to the 
realization of important objectives embodied in other laws, 
see, e. g . , Rodriguez de Quijas, supra, a t ------ ; Boys Mar­
kets, Inc. v. Retail Clerks, supra, at 240-241. In this re­
gard, we do not find Runyon to be unworkable or confusing. 
Respondent and various amici have urged that Runyon’s, in­
terpretation of § 1981, as applied to contracts of employment, 
frustrates the objectives of Title VII. The argument is that 
a substantial overlap in coverage between the two statutes, 
given the considerable differences in their remedial schemes, 
undermines Congress’ detailed efforts in Title VII to resolve 
disputes about racial discrimination in private employment 
through conciliation rather than litigation as an initial matter. 
After examining the point with care, however, we believe



6 PATTERSON v. McLEAN CREDIT UNION

that a sound construction of the language of § 1981 yields an 
interpretation which does not frustrate the congressional ob­
jectives in Title VII to any significant degree. See Part III,
infra.

Finally, it has sometimes been said that a precedent 
becomes more vulnerable as it becomes outdated and after 
being ‘“ tested by experience, has been found to be incon­
sistent with the sense of justice or with the social welfare.’ ” 
Runyon, 427 U. S., at 191 (Stevens, J., concurring), quot­
ing B. Cardozo, The Nature of the Judicial Process 149 
(1921). Whatever the effect of this consideration may be in 
statutory cases, it offers no support for overruling Runyon. 
In recent decades, state and federal legislation has been 
enacted to prohibit private racial discrimination in many as­
pects of our society. Whether Runyon’s interpretation of 
§ 1981 as prohibiting racial discrimination in the making and 
enforcement of private contracts is right or wrong as an origi­
nal matter, it is certain that it is not inconsistent with the 
prevailing sense of justice in this country. To the contrary, 
Runyon is entirely consistent with our society’s deep com­
mitment to the eradication of discrimination based on a per­
son’s race or the color of his or her skin. See Bob Jones Uni­
versity v. United States, 461 U. S. 574, 593 (1983) (“every 
pronouncement of this Court and myriad Acts of Congress 
and Executive Orders attest a firm national policy to prohibit 
racial segregation and discrimination”); see also Brown v. 
Board of Education, 347 U. S. 483 (1954); Plessy v. Fergu­
son, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting) (“The 
law regards man as man, and takes no account of his . . . 
color when his civil rights as guaranteed by the supreme law 
of the land are involved”).1

‘ J u s t i c e  B r e n n a n  chides us for .ignoring what he considers “two very 
obvious reasons” for adhering to Runyon. Post, at 3. First, he argues at 
length that Runyon was correct as an initial matter. See post, at 3-11. 
As we have said, however, see supra, at 3-4, it is unnecessary for us to 
address this issue because we agree that, whether or not Runyon was cor-



PATTERSON v. McLEAN CREDIT UNION 7

We decline to overrule Runyon and acknowledge that its 
holding remains the governing law in this area.

I ll
Our conclusion that we should adhere to our decision in 

Runyon that § 1981 applies to private conduct is not enough 
to decide this case. We must decide also whether the con­
duct of which petitioner complains falls within one of the 
enumerated rights protected by § 1981.

A
Section 1981 reads as follows:

“All persons within the jurisdiction of the United 
States shall have the same right in every State and Ter-

reet as an initial matter, there is no special justification for departing here 
from the rule of stare decisis.

J u s t i c e  B r e n n a n  objects also to the fact that our stare decisis analysis 
places no reliance on the fact that Congress itself has not overturned the 
interpretation of § 1981 contained in Runyon, and in effect has ratified our 
decision in that case. See post, at 11-17. This is no oversight on our 
part. As we reaffirm today, considerations of stare decisis have added 
force in statutory cases because Congress may alter what we have done by 
amending the statute. In constitutional cases, by contrast, Congress lacks 
this option, and an incorrect or outdated precedent may be overturned only 
by our own reconsideration or by constitutional amendment. See supra, 
at 4. It does not follow, however, that Congress’ failure to overturn a 
statutory precedent is reason for this Court to adhere to it. It is ‘im­
possible to assert with any degree of assurance that congressional failure to 
act represents” affirmative congressional approval of the Court’s statutory 
interpretation. Johnson v. Transportation Agency, 480 U. S. 616, 671- 
672 (1987) (ScA LIA, J., dissenting). Congress may legislate, moreover, 
only through the passage of a bill which is approved by both Houses and 
signed by the President. See U. S. Const., Art. I, §7, cl. 2. Congres­
sional inaction cannot amend a duly enacted statute. We think also that 
the materials relied upon by J u s t i c e  B r e n n a n  as “more positive signs of 
Congress’ views,” which are the failure of an amendment to a different 
statute offered before our decision in Runyon, see post, at 12-15, and the 
passage of an attorney’s fee statute having nothing to do with our holding 
in Runyon, see post, at 15-16, demonstrate well the danger of placing 
undue reliance on the concept of congressional “ratification.



8 PATTERSON v. McLEAN CREDIT UNION

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 enjoyed by white citizens, and shall be subject to 
like punishment, pains, penalties, taxes, licenses, and 
exactions of every kind, and to no other.” Rev. Stat. 
§ 1977.

The most obvious feature of the provision is the restriction 
of its scope to forbidding discrimination in the “mak[ing] 
and enforcement]” of contracts alone. Where an alleged act 
of discrimination does not involve the impairment of one of 
these specific rights, § 1981 provides no relief. Section 1981 
cannot be construed as a general proscription of racial dis­
crimination in all aspects of contract relations, for it ex­
pressly prohibits discrimination only in the making and en­
forcement of contracts. See also Jones v. Alfred H. Mayer 
Co., 392 U. S. 409, 436 (1968) (§ 1982, the companion statute 
to § 1981, was designed “to prohibit all racial discrimination, 
whether or not under color of law, with respect to the rights 
enumerated therein”) (emphasis added); Georgia v. Rachel, 
384 U. S. 780, 791 (1966) (“ The legislative history of the 1866 
Act clearly indicates that Congress intended to protect a lim­
ited category of rights”).

By its plain terms, the relevant provision in § 1981 protects 
two rights: “the same right . . .  to make . . . contracts” 
and “the same right . . . to . . . enforce contracts.” The 
first of these protections extends only to the formation of a 
contract, but not to problems that may arise later from the 
conditions of continuing employment. The statute prohibits, 
when based on race, the refusal to enter into a contract with 
someone, as well as the offer to make a contract only on dis­
criminatory terms. But the right to make contracts does not 
extend, as a matter of either logic or semantics, to conduct by 
the employer after the contract relation has been established, 
including breach of the terms of the contract or imposition of 
discriminatory working conditions. Such postformation con-



PATTERSON v. McLEAN CREDIT UNION 9

duct does not involve the right to make a contract, but rather 
implicates the performance of established contract obliga­
tions and the conditions of continuing employment, matters 
more naturally governed by state contract law and Title VII. 
See infra, a t ------ .

The second of these guarantees, “the same right. . . to . . . 
enforce contracts . . .  as is enjoyed by white citizens,” em­
braces protection of a legal process, and of a right of access 
to legal process, that will address and resolve contract-law 
claims without regard to race. In this respect, it prohibits 
discrimination that infects the legal process in ways that pre­
vent one from enforcing contract rights, by reason of his or 
her race, and this is so whether this discrimination is attrib­
uted to a statute or simply to existing practices. It also cov­
ers wholly private efforts to impede access to the courts or 
obstruct nonjudicial methods of adjudicating disputes about 
the force of binding obligations, as well as discrimination by 
private entities, such as labor unions, in enforcing the terms 
of a contract. Following this principle and consistent with 
our holding in Runyon that § 1981 applies to private conduct, 
we have held that certain private entities such as labor un­
ions, which bear explicit responsibilities to process griev­
ances, press claims, and represent member in disputes over 
the terms of binding obligations that run from the employer 
to the employee, are subject to liability under § 1981 for racial 
discrimination in the enforcement of labor contracts. See 
Goodman v. Lukens Steel Co., 482 U. S. 656 (1987). The 
right to enforce contracts does not, however, extend beyond 
conduct by an employer which impairs an employee’s ability 
to enforce through legal process his or her established con­
tract rights. As J u s t ic e  W h it e  put it with much force in 
Runyon, one cannot seriously “contend that the grant of the 
other rights enumerated in §1981, [that is, other than the 
right to “make” contracts,] i. e., the rights ‘to sue, be parties, 
give evidence,’ and ‘enforce contracts’ accomplishes anything 
other than the removal of legal disabilities to sue, be a party,



10 PATTERSON v. McLEAN CREDIT UNION

testify or enforce a contract. Indeed, it is impossible to give 
such language any other meaning.” 427 U. S., at 195, n. 5 
(dissenting opinion) (emphasis in original).

B
Applying these principles to the case before us, we agree 

with the Court of Appeals that petitioner’s racial harassment 
claim is not actionable under § 1981. Petitioner has alleged 
that during her employment with respondent, she was sub­
jected to various forms of racial harassment from her super­
visor. As summarized by the Court of Appeals, petitioner 
testified that

“ [her supervisor] periodically stared at her for several 
minutes at a time; that he gave her too many tasks, caus­
ing her to complain that she was under too much pres­
sure; that among the tasks given her were sweeping and 
dusting, jobs not given to white employees. On one oc­
casion, she testified, [her supervisor] told [her] that 
blacks are known to work slower than whites. Accord­
ing to [petitioner, her supervisor] also criticized her in 
staff meetings while not similarly criticizing white em­
ployees.” 805 F. 2d, at 1145.

Petitioner also alleges that she was passed over for promo­
tion, not offered training for higher level jobs, and denied 
wage increases, all because of her race.2

With the exception perhaps of her claim that respondent 
refused to promote her to a position as an accountant, see 
Part IV, infra, none of the conduct which petitioner alleges 
as part of the racial harassment against her involves either a 
refusal to make a contract with her or the impairment of her 
ability to enforce her established contract rights. Rather,

2 In addition, another of respondent’s managers testified that when he 
recommended a different black person for a position as a data processor, 
petitioner’s supervisor stated that he did not “need any more problems 
around here,” and that he would “search for additional people who are not 
black.” Tr. 2-160 to 2-161.



PATTERSON v. McLEAN CREDIT UNION 11

the conduct which petitioner labels as actionable racial ha­
rassment is postformation conduct by the employer relating 
to the terms and conditions of continuing employment. This 
is apparent from petitioner’s own proposed jury instruction 
on her § 1981 racial harassment claim:

. . The plaintiff has also brought an action for 
harassment in employment against the defendant, under 
the same statute, 42 USC § 1981. An employer is guilty 
of racial discrimination in employment where it has 
either created or condoned a substantially discrimina­
tory work environment. An employee has a right to 
work in an environment free from racial prejudice. If 
the plaintiff has proven by a preponderance of the evi­
dence that she was subjected to racial harassment by her 
manager while employed at the defendant, or that she 
was subjected to a work environment not free from ra­
cial prejudice which was either created or condoned by 
the defendant, then it would be your duty to find for 
plaintiff on this issue.” 1 Record, Doc. No. 18, p. 4 
(emphasis added).

Without passing on the contents of this instruction, it is plain 
to us that what petitioner is attacking are the conditions of 
her employment.

This type of conduct, reprehensible though it be if true, is 
not actionable under § 1981, which covers only conduct at the 
initial formation of the contract and conduct which impairs 
the right to enforce contract obligations through legal proc­
ess. Rather, such conduct is actionable under the more ex­
pansive reach of Title VII of the Civil Rights Act of 1964. 
The latter statute makes it unlawful for an employer to “dis­
criminate against any individual with respect to his com­
pensation, terms, conditions, or privileges of employment.” 
42 U. S. C. § 2000e-2(a)(l). Racial harassment in the course 
of employment is actionable under Title VII’s prohibition 
against discrimination in the “terms, conditions, or privileges 
of employment.” “ [T]he [Equal Employment Opportunity



12 PATTERSON v. McLEAN CREDIT UNION

Commission (EEOC)] has long recognized that harassment 
on the basis of race . . .  is an unlawful employment practice 
in violation of §703 of Title VII of the Civil Rights Act.” 
See EEOC Compliance Manual §615.7 (1982). While this 
Court has not yet had the opportunity to pass directly upon 
this interpretation of Title VII, the lower federal courts have 
uniformly upheld this view,8 and we implicitly have approved 
it in a recent decision concerning sexual harassment, Meritor 
Savings Bank v. Vinson, 477 U. S. 57, 65-66 (1986). As we 
said in that case, “harassment [which is] sufficiently severe 
or pervasive ‘to alter the conditions of [the victim’s] employ­
ment and create an abusive working environment,” ’ id., at 
67, is actionable under Title VII because it “affects a ‘term, 
condition, or privilege’ of employment,” ibid.

Interpreting § 1981 to cover postformation conduct unre­
lated to an employee’s right to enforce her contract, such as 
incidents relating to the conditions of employment, is not only 
inconsistent with that statute’s limitation to the making and 
enforcement of contracts, but would also undermine the de­
tailed and well-crafted procedures for conciliation and reso­
lution of Title VII claims. In Title VII, Congress set up 
an elaborate administrative procedure, implemented through 
the EEOC, that is designed to assist in the investigation 
of claims of racial discrimination in the workplace and to 
work towards the resolution of these claims through concilia­
tion rather than litigation. See 42 U. S. C. §2000e-5(b). 
Only after these procedures have been exhausted, and the 
plaintiff has obtained a “right to sue” letter from the EEOC, 
may she bring a Title VII action in court. See 42 U. S. C. 
§2000e-5(f)(l). Section 1981, by contrast, provides no 
administrative review or opportunity for conciliation. 3

3 See, e. g., Firefighters Institute for Racial Equality v. St. Louis, 549 
F. 2d 506, 514-515 (CA8), cert, denied sub nom. Banta v. United States, 
434 U. S. 819 (1977); Rogers v. EEOC, 454 F. 2d 234 (CA5 1971), cert, 
denied, 406 U. S. 957 (1972).



Where conduct is covered by both § 1981 and Title VII, the 
detailed procedures of Title VII are rendered a dead letter, 
as the plaintiff is free to pursue a claim by bringing suit under 
§ 1981 without resort to those statutory prerequisites. We 
agree that, after Runyon, there is some necessary overlap 
between Title VII and § 1981, and that where the statutes do 
in fact overlap we are not at liberty “to infer any positive 
preference for one over the other.” Johnson v. Railway Ex­
press Agency, Inc., 421 U. S., at 461. We should be reluc­
tant, however, to read an earlier statute broadly where the 
result is to circumvent the detailed remedial scheme con­
structed in a later statute. See United States v. Fausto, 484 
U. S. 439 (1988). That egregious racial harassment of em­
ployees is forbidden by a clearly applicable law (Title VII), 
moreover, should lessen the temptation for this Court to 
twist the interpretation of another statute (§ 1981) to cover 
the same conduct. In the particular case before us, we do 
not know for certain why petitioner chose to pursue only 
remedies under § 1981, and not under Title VII. See 805 F. 
2d, at 1144, n.; Tr. of Oral Arg. 15-16, 23 (Feb. 29, 1988). 
But in any event, the availability of the latter statute should 
deter us from a tortuous construction of the former statute to 
cover this type of claim.

By reading § 1981 not as a general proscription of racial dis­
crimination in all aspects of contract relations, but as limited 
to the enumerated rights within its express protection, spe­
cifically the right to make and enforce contracts, we may pre­
serve the integrity of Title VII’s procedures without sacrific­
ing any significant coverage of the civil rights laws.4 Of

4 Unnecessary overlap between Title VII and § 1981 would also serve to 
upset the delicate balance between employee and employer rights struck 
by Title VII in other respects. For instance, a plaintiff in a Title VII ac­
tion is limited to a recovery of backpay, whereas under § 1981 a plaintiff 
may be entitled to plenary compensatory damages, as well as punitive 
damages in an appropriate case. Both the employee and employer will be 
unlikely to agree to a conciliatory resolution of the dispute under Title VII 
if the employer can be found liable for much greater amounts under § 1981.

PATTERSON v. McLEAN CREDIT UNION 13



14 PATTERSON v. McLEAN CREDIT UNION

course, some overlap will remain between the two statutes: 
specifically, a refusal to enter into an employment contract on 
the basis of race. Such a claim would be actionable under 
Title VII as a “refus[al] to hire” based on race, 42 U. S. C.
§ 2000e-2(a), and under § 1981 as an impairment of “the same 
right . . .  to make . . . contracts . . . as . . . white citizens,” 
42 U. S. C. §1981. But this is precisely where it would 
make sense for Congress to provide for the overlap. At this 
stage of the employee-employer relation Title V II’s media­
tion and conciliation procedures would be of minimal effect, 
for there is not yet a relation to salvage.

C
The Solicitor General and J u s t ic e  B r e n n a n  offer two al­

ternative interpretations of § 1981. The Solicitor General ar­
gues that the language of § 1981, especially the words “the 
same right,” requires us to look outside § 1981 to the terms of 
particular contracts and to state law for the obligations and 
covenants to be protected by the federal statute. Under this 
view, § 1981 has no actual substantive content, but instead 
mirrors only the specific protections that are afforded under 
the law of contracts of each State. Under this view, racial 
harassment in the conditions of employment is actionable 
when, and only when, it amounts to a breach of contract 
under state law. We disagree. For one thing, to the extent 
that it assumes that prohibitions contained in § 1981 incorpo­
rate only those protections afforded by the States, this the­
ory is directly inconsistent with Runyon, which we today de­
cline to overrule. A more fundamental failing in the 
Solicitor’s argument is that racial harassment amounting to 
breach of contract, like racial harassment alone, impairs nei­
ther the right to make nor the right to enforce a contract. It 
is plain that the former right is not implicated directly by an 
employer’s breach in the performance of obligations under a 
contract already formed. Nor is it correct to say that racial 
harassment amounting to a breach of contract impairs an em­



PATTERSON v. McLEAN CREDIT UNION 15

ployee’s right to enforce his contract. To the contrary, con­
duct amounting to a breach of contract under state law is pre­
cisely what the language of § 1981 does not cover. That is 
because, in such a case, provided that plaintiff’s access to 
state court or any other dispute resolution process has not 
been impaired by either the State or a private actor, see 
Goodman v. Lukens Steel Co., 482 U. S. 656 (1987), the 
plaintiff is free to enforce the terms of the contract in state 
court, and cannot possibly assert, by reason of the breach 
alone, that he has been deprived of the same right to enforce 
contracts as is enjoyed by white citizens.

In addition, interpreting §1981 to cover racial harass­
ment amounting to a breach of contract would federalize all 
state-law claims for breach of contract where racial animus 
is alleged, since § 1981 covers all types of contracts, not just 
employment contracts. Although we must do so when Con­
gress plainly directs, as a rule we should be and are “re­
luctant to federalize” matters traditionally covered by state 
common law. Santa Fe Industries, Inc. v. Green, 430 U. S. 
462, 479 (1977); see also Sedima S. P. R. L. v. Imrex Co., 
473 U. S. 479, 507 (1985) (M a r s h a l l , J., dissenting). By 
confining § 1981 to the impairment of the specific rights to 
make and enforce contracts, Congress cannot be said to have 
intended such a result with respect to breach of contract 
claims. It would be no small paradox, moreover, that under 
the interpretation of § 1981 offered by the Solicitor General, 
the more a State extends its own contract law to protect em­
ployees in general and minorities in particular, the greater 
would be the potential displacement of state law by § 1981. 
We do not think § 1981 need be read to produce such a pecu­
liar result.

J u s t ic e  B r e n n a n , for his part, would hold that racial ha­
rassment is actionable under § 1981 when “the acts constitut­
ing harassment [are] sufficiently severe or pervasive as effec­
tively to belie any claim that the contract was entered into in 
a racially neutral manner.” See post, at 19. We do not find



16 PATTERSON v. McLEAN CREDIT UNION

this standard an accurate or useful articulation of which con­
tract claims are actionable under § 1981 and which are not. 
The fact that racial harassment is “severe or pervasive” does 
not by magic transform a challenge to the conditions of em­
ployment, not actionable under § 1981, into a viable challenge 
to the employer’s refusal to make a contract. We agree that 
racial harassment may be used as evidence that a divergence 
in the explicit terms of particular contracts is explained by 
racial animus.5 Thus, for example, if a potential employee is 
offered (and accepts) a contract to do a job for less money 
than others doing like work, evidence of racial harassment in 
the workplace may show that the employer, at the time of 
formation, was unwilling to enter into a nondiscriminatory 
contract. However, and this is the critical point, the ques­
tion under § 1981 remains whether the employer, at the time 
of the formation of the contract, in fact intentionally refused 
to enter into a contract with the employee on racially neutral 
terms. The plaintiff’s ability to plead that the racial harass­
ment is “severe or pervasive” should not allow him to boot­
strap a challenge to the conditions of employment (actionable, 
if at all, under Title VII) into a claim under § 1981 that the 
employer refused to offer the petitioner the “same right to 
. . . make” a contract. We think it clear that the conduct 
challenged by petitioner relates not to her employer’s refusal 
to enter into a contract with her, but rather to the conditions 
of her employment.6

5 This was the permissible use of evidence of racial harassment that the 
Fourth Circuit, in its decision below, envisioned for § 1981 cases. See 805 
F. 2d 1143, 1145 (1986).

6 In his separate opinion, J u s t i c e  S t e v e n s  construes the phrase “the 
same right . . .  to make . . . contracts” with ingenuity to cover various 
postformation conduct by the employer. But our task here is not to con­
strue § 1981 to punish all acts of discrimination in contracting in a like fash­
ion, but rather merely to give a fair reading to scope of the statutory terms 
used by Congress. We adhere today to our decision in Runyon that § 1981 
reaches private conduct, but do not believe that holding compels us to read 
the statutory terms “make” and “enforce” beyond their plain and common



IV
Petitioner’s claim that respondent violated § 1981 by failing 

to promote her, because of race, to a position as an intermedi­
ate accounting clerk is a different matter. As a preliminary 
point, we note that the Court of Appeals distinguished be­
tween petitioner’s claims of racial harassment and discrimina­
tory promotion, stating that although the former did not give 
rise to a discrete § 1981 claim, “ [cjlaims of racially discrimi­
natory . . . promotion go to the very existence and nature of 
the employment contract and thus fall easily within § 1981’s 
protection.” 805 F. 2d, at 1145. We think that somewhat 
overstates the case. Consistent with what we have said in 
Part III, supra, the question whether a promotion claim is 
actionable under § 1981 depends upon whether the nature of 
the change in position was such that it involved the opportu­
nity to enter into a new contract with the employer. If so, 
then the employer’s refusal to enter the new contract is 
actionable under § 1981. In making this determination, a 
lower court should give a fair and natural reading to the stat­
utory phrase “the same right . . .  to make . . . contracts,” 
and should not strain in an undue manner the language of 
§ 1981. Only where the promotion rises to the level of an 
opportunity for a new and distinct relation between the em­
ployee and the employer is such a claim actionable under 
§ 1981. Cf. Hishon v. King & Spaulding, 467 U. S. 69 (1984) 
(refusal of law firm to accept associate into partnership) 
(Title VII). Because respondent has not argued at any stage 
that petitioner’s promotion claim is not cognizable under 
§ 1981, we need not address the issue further here.

This brings us to the question of the District Court’s jury 
instructions on petitioner’s promotion claim. We think the 
District Court erred when it instructed the jury that peti­
tioner had to prove that she was better qualified than the

PATTERSON v. McLEAN CREDIT UNION 17

sense meaning. We believe that the lower courts will have little difficulty 
applying the straightforward principles that we announce today.



18 PATTERSON v. McLEAN CREDIT UNION

white employee who allegedly received the promotion. In 
order to prevail under § 1981, a plaintiff must prove purpose­
ful discrimination. General Building Contractors Assn., 
Inc. v. Pennsylvania, 458 U. S. 375, 391 (1982). We have 
developed, in analogous areas of civil rights law, a care­
fully designed framework of proof to determine, in the con­
text of disparate treatment, the ultimate issue of whether 
the defendant intentionally discriminated against the plain­
tiff. See Texas Dept, of Community Affairs v. Burdine, 450 
U. S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 
U. S. 792 (1973). We agree with the Court of Appeals that 
this scheme of proof, structured as a “sensible, orderly way 
to evaluate the evidence in light of common experience as it 
bears on the critical question of discrimination,” Fumco Con­
struction Corp. v. Waters, 438 U. S. 567, 577 (1978), should 
apply to claims of racial discrimination under § 1981.

Although the Court of Appeals recognized that the McDon­
nell Douglas/Burdine scheme of proof should apply in § 1981 
cases such as this one, it erred in describing petitioner’s bur­
den. Under our well-established framework, the plaintiff 
has the initial burden of proving, by the preponderance of the 
evidence, a prima facie case of discrimination. Burdine, 450 
U. S., at 252-253. The burden is not onerous. Id., at 253. 
Here, petitioner need only prove by a preponderance of the 
evidence that she applied for and was qualified for an avail­
able position, that she was rejected, and that after she was 
rejected respondent either continued to seek applicants for 
the position, or, as is alleged here, filled the position with a 
white employee. See id., at 253, and n. 6; McDonnell Doug­
las, supra, at 802.7

7 Here, respondent argues that petitioner cannot make out a prima facie 
case on her promotion claim because she did not prove either that respond­
ent was seeking applicants for the intermediate accounting clerk position 
or that the white employee named to fill that position in fact received a 
“promotion” from her prior job. Although we express no opinion on the 
merits of these claims, we do emphasize that in order to prove that she was



PATTERSON v. McLEAN CREDIT UNION 19

Once the plaintiff establishes a prima facie case, an in­
ference of discrimination arises. See Burdine, 450 U. S., 
at 254. In order to rebut this inference, the employer must 
present evidence that the plaintiff was rejected, or the other 
applicant was chosen, for a legitimate nondiscriminatory 
reason. See ibid. Here, respondent presented evidence 
that it gave the job to the white applicant because she was 
better qualified for the position, and therefore rebutted 
any presumption of discrimination that petitioner may have 
established. At this point, as our prior cases make clear, 
petitioner retains the final burden of persuading the jury 
of intentional discrimination. See id., at 256.

Although petitioner retains the ultimate burden of persua­
sion, our cases make clear that she must also have the oppor­
tunity to demonstrate that respondent’s proffered reasons for 
its decision were not its true reasons. Ibid. In doing so, 
petitioner is not limited to presenting evidence of a certain 
type. This is where the District Court erred. The evidence 
which petitioner can present in an attempt to establish that 
respondent’s stated reasons are pretextual may take a vari­
ety of forms. See McDonnell Douglas, supra, at 804-805; 
Fumco Construction Corp., supra, at 578; cf. United States 
Postal Service Bd. of Governors v. Athens, 460 U. S. 711, 
714, n. 3 (1983). Indeed, she might seek to demonstrate 
that respondent’s claim to have promoted a better-qualified 
applicant was pretextual by showing that she was in fact 
better qualified than the person chosen for the position. The 
District Court erred, however, in instructing the jury that 
in order to succeed petitioner was required to make such 
a showing. There are certainly other ways in which peti­
tioner could seek to prove that respondent’s reasons were 
pretextual. Thus, for example, petitioner could seek to 
persuade the jury that respondent had not offered the true

denied the same right to make and enforce contracts as white citizens, peti­
tioner must show, inter alia, that she was in fact denied an available 
position.



20 PATTERSON v. McLEAN CREDIT UNION

reason for its promotion decision by presenting evidence 
of respondent’s past treatment of petitioner, including the 
instances of the racial harassment which she alleges and 
respondent’s failure to train her for an accounting position. 
See supra, a t ------ . While we do not intend to say this evi­
dence necessarily would be sufficient to carry the day, it can­
not be denied that it is one of the various ways in which peti­
tioner might seek to prove intentional discrimination on the 
part of respondent. She may not be forced to pursue any 
particular means of demonstrating that respondent’s stated 
reasons are pretextual. It was, therefore, error for the Dis­
trict Court to instruct the jury that petitioner could carry her 
burden of persuasion only by showing that she was in fact 
better qualified than the white applicant who got the job.

V

The law now reflects society’s consensus that discrimina­
tion based on the color of one’s skin is a profound wrong 
of tragic dimension. Neither our words nor our decisions 
should be interpreted as signaling one inch of retreat from 
Congress’ policy to forbid discrimination in the private, as 
well as the public, sphere. Nevertheless, in the area of pri­
vate discrimination, to which the ordinance of the Constitu­
tion does not directly extend, our role is limited to interpret­
ing what Congress may do and has done. The statute before 
us, which is only one part of Congress’ extensive civil rights 
legislation, does not cover the acts of harassment alleged 
here.

In sum, we affirm the Court of Appeals’ dismissal of peti­
tioner’s racial harassment claim as not actionable under 
§ 1981. The Court of Appeals erred, however, in holding 
that petitioner could succeed in her discriminatory promotion 
claim under § 1981 only by proving that she was better quali­
fied for the position of intermediate accounting clerk than 
the white employee who in fact was promoted. The judg­
ment of the Court of Appeals is therefore vacated insofar as it



PATTERSON v. McLEAN CREDIT UNION 21

relates to petitioner’s discriminatory promotion claim, and 
the case is remanded for further proceedings consistent with 
this opinion.

It is so ordered.



SUPREME COURT OF THE UNITED STATES

No. 87-107

BRENDA PATTERSON, PETITIONER v.
McLEAN CREDIT UNION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

[June 15, 1989]

J u s t ic e  B r e n n a n , with whom J u s t ic e  M a r s h a l l  and 
J u s t ic e  B l a c k m u n  join, and with whom J u s t ic e  St e v e n s  
joins as to Parts II-B, II-C, and III, concurring in the judg­
ment in part and dissenting in part.

What the Court declines to snatch away with one hand, it 
takes with the other. Though the Court today reaffirms 
§1981’s applicability to private conduct, it simultaneously 
gives this landmark civil rights statute a needlessly cramped 
interpretation. The Court has to strain hard to justify this 
choice to confine § 1981 within the narrowest possible scope, 
selecting the most pinched reading of the phrase “same right 
to make a contract,” ignoring powerful historical evidence 
about the Reconstruction Congress’ concerns, and bolstering 
its parsimonious rendering by reference to a statute enacted 
nearly a century after § 1981, and plainly not intended to af­
fect its reach. When it comes to deciding whether a civil 
rights statute should be construed to further our Nation’s 
commitment to the eradication of racial discrimination, the 
Court adopts a formalistic method of interpretation anti­
thetical to Congress’ vision of a society in which contractual 
opportunities are equal. I dissent from the Court’s holding 
that § 1981 does not encompass Patterson’s racial harassment 
claim.



2 PATTERSON v. McLEAN CREDIT UNION

I
Thirteen years ago, in deciding Runyon v. McCrary, this 

Court treated as already “well established” the proposition 
that “ § 1 of the Civil Rights Act of 1866, 14 Stat. 27, 42 
U. S. C. § 1981, prohibits racial discrimination in the making 
and enforcement of private contracts,” as well as state-man­
dated inequalities, drawn along racial lines, in individuals’ 
ability to make and enforce contracts. 427 U. S. 160, 168 
(1976), citing Johnson v. Railway Express Agency, Inc., 421 
U. S. 454 (1975); Tillman v. Wheaton-Haven Recreation 
Assn., Inc., 410 U. S. 431 (1973); and Jones v. Alfred H. 
Mayer Co., 392 U. S. 409 (1968). Since deciding Runyon, 
we have upon a number of occasions treated as settled law its 
interpretation of § 1981 as extending to private discrimina­
tion. Goodman v. Lukens Steel Co., 482 U. S. 656 (1987); 
Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987); 
General Building Contractors Assn., Inc. v. Pennsylvania, 
458 U. S. 375 (1982); Delaware State College v. Ricks, 449 
U. S. 250 (1980); McDonald v. Santa Fe Trail Transp. Co., 
427 U. S. 273 (1976). We have also reiterated our holding in 
Jones that § 1982 similarly applies to private discrimination in 
the sale or rental of real or personal property—a holding ar­
rived at through an analysis of legislative history common to 
both § 1981 and § 1982. Shaare Tefila Congregation v. Cobb, 
481 U. S. 615 (1987); Sullivan v. Little Hunting Park, Inc., 
396 U. S. 229 (1969).

The Court’s reaffirmation of this long and consistent line 
of precedents establishing that § 1981 encompasses private 
discrimination is based upon its belated decision to adhere 
to the principle of stare decisis—a decision that could readily 
and would better have been made before the Court decided to 
put Runyon and its progeny into question by ordering re­
argument in this case. While there is an exception to stare 
decisis for precedents that have proved “outdated, . . . un­
workable, or otherwise legitimately vulnerable to serious 
reconsideration,” Vasquez v. Hillery, 474 U. S. 254, 266



PATTERSON v. McLEAN CREDIT UNION 3

(1986), it has never been arguable that Runyon falls within 
it. Rather, Runyon is entirely consonant with our society’s 
deep commitment to the eradication of discrimination based 
on a person’s race or the color of her skin. See Bob Jones 
University v. United States, 461 U. S. 574, 593 (1983) 
(“every pronouncement of this Court and myriad Acts of 
Congress and Executive Orders attest a firm national policy 
to prohibit racial segregation and discrimination”). That 
commitment is not bounded by legal concepts such as “state 
action,” but is the product of a national consensus that racial 
discrimination is incompatible with our best conception of our 
communal life, and with each individual’s rightful expectation 
that her full participation in the community will not be contin­
gent upon her race. In the past, this Court has overruled 
decisions antagonistic to our Nation’s commitment to the 
ideal of a society in which a person’s opportunities do not de­
pend on her race, e. g., Brown v. Board of Education, 347 
U. S. 483 (1954) (overruling Plessy v. Ferguson, 163 U. S. 
537 (1896)), and I find it disturbing that the Court has in this 
case chosen to reconsider, without any request from the par­
ties, a statutory construction so in harmony with that ideal.

Having decided, however, to reconsider Runyon, and now 
to reaffirm it by appeal to stare decisis, the Court glosses 
over what are in my view two very obvious reasons for refus­
ing to overrule this interpretation of § 1981: that Runyon was 
correctly decided, and that in any event Congress has ratified 
our construction of the statute.

A

A survey of our cases demonstrates that the Court’s inter­
pretation of § 1981 has been based upon a full and considered 
review of the statute’s language and legislative history, as­
sisted by careful briefing, upon which no doubt has been cast 
by any new information or arguments advanced in the briefs 
filed in this case.



4 PATTERSON v. McLEAN CREDIT UNION

In Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), this 
Court considered whether § 1982, which provides that “ [a]ll 
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,” prohibits private discrimination 
on the basis of race, and if so, whether the statute is con­
stitutional. The Court held, over two dissenting votes, that 
§ 1982 bars private as well as public racial discrimination, 
and that the statute was a valid exercise of Congress’ power 
under §2 of the Thirteenth Amendment to identify the 
badges and incidents of slavery and to legislate to end them.

The Court began its careful analysis in Jones by noting the 
expansive language of § 1982, and observing that a black citi­
zen denied the opportunity to purchase property as a result 
of discrimination by a private seller cannot be said to have 
the “same right” to purchase property as a white citizen. 
392 U. S., at 420-421. The Court also noted that, in its orig­
inal form, § 1982 had been part of § 1 of the Civil Rights Act 
of 1866,1 and that §2 of the 1866 Act provided for criminal 
penalties against any person who violated rights secured or

‘ Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27. Section 1 provided: 
“[C]itizens, of every race and color, without regard to any previous con­

dition of slavery or involuntary servitude, . . . shall have the same right, in 
every State and Territory in the United States, to make and enforce con­
tracts, to sue, be parties, and give evidence, to inherit, purchase, lease, 
sell, hold, and convey real and personal property, and to full and equal ben­
efit 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.”

All members of the Court agreed in Jones v. Alfred H. Mayer Co., 392 
U. S. 409 (1968), that intervening revisions in the property clause of § 1— 
the reenactment of the 1866 Act in § 18 of the Voting Rights Act of 1870, 
ch. 114, § 18, 16 Stat. 144, the codification of the property clause in § 1978 
of the Revised Statutes of 1874, and its recodification as 42 U. S. C. 
§ 1982—had not altered its substance. Jones, 392 U. S., at 436-437 (opin­
ion of the Court); id., at 453 (dissenting opinion).



PATTERSON v. McLEAN CREDIT UNION 5

protected by the Act “under color of any law, statute, ordi­
nance, regulation, or custom.” 392 U. S., at 424-426. This 
explicit limitation upon the scope of § 2, to exclude criminal 
liability for private violations of § 1, strongly suggested that 
§ 1 itself prohibited private discrimination, for otherwise the 
limiting language of §2 would have been redundant. Ibid. 
Although Justice Harlan, in dissent, thought a better ex­
planation of the language of §2 was that it “was carefully 
drafted to enforce all of the rights secured by § 1,” id., at 454, 
it is by no means obvious why the dissent’s view should be 
regarded as the more accurate interpretation of the structure 
of the 1866 Act.2 * * * * * 8

The Court then engaged in a particularly thorough analysis 
of the legislative history of §1 of the 1866 Act, id., at 
422-437, which had been discussed at length in the briefs 
of both parties and their amici.s While never doubting 
that the prime targets of the 1866 Act were the Black Codes, 
in which the Confederate States imposed severe disabilities 
on the freedmen in an effort to replicate the effects of slav­
ery, see, e. g., 1 C. Fairman, Reconstruction and Reunion 
1864-1888, pp. 110-117 (1971) (discussing Mississippi’s Black 
Codes), the Court concluded that Congress also had intended 
§ 1 to reach private discriminatory conduct. The Court cited

2 In support of its view, the Court in Jones quoted from an exchange 
during the House debate on the civil rights bill. When Congressman Loan
of Missouri asked the Chairman of the House Judiciary Committee why § 2 
had been limited to those who acted under color of law, he was told, not 
that the statute had no application at all to those who had not acted under
color of law, but that the limitation had been imposed because it was not
desired to make ‘“ a general criminal code for the States.’ ” Id., at 425,
n. 33, quoting Cong. Globe, 39th Cong., 1st Sess., 1120 (1866). Justice
Harlan in dissent conceded that the Court’s interpretation of this exchange 
as supporting a broader reading of § 1 was “a conceivable one.” 392 U. S., 
at 470.

8 See, e. g., Brief for Petitioners 12-16, Brief for Respondents 7-24, 
Brief for United States as Amicus Curiae 28-35, 38-51, and Brief for Na­
tional Committee Against Discrimination in Housing et al. as Amici Curiae 
9-39, in Jones v. Alfred H. Mayer Co., 0. T. 1967, No. 45.



6 PATTERSON v. McLEAN CREDIT UNION

a bill (S. 60) to amend the Freedmen’s Bureau Act, intro­
duced prior to the civil rights bill, and passed by both Houses 
during the 39th Congress (though it was eventually vetoed 
by President Johnson), as persuasive evidence that Congress 
was fully aware that any newly recognized rights of blacks 
would be as vulnerable to private as to state infringement. 
392 U. S., at 423, and n. 30. The amendment would have 
extended the jurisdiction of the Freedmen’s Bureau over all 
cases in the former Confederate States involving the denial 
on account of race of rights to make and enforce contracts or 
to purchase or lease property, “in consequence of any State 
or local law, ordinance, police, or other regulation, custom, or 
'prejudice.” Cong. Globe, 39th Cong., 1st Sess., 209 (1866) 
(emphasis added). When the civil rights bill was subse­
quently introduced, Representative Bingham specifically 
linked it in scope to S. 60. Id., at 1292. See Jones, supra, 
at 424, n. 31.

The Court further noted that there had been “an imposing 
body of evidence [before Congress] pointing to the mistreat­
ment of Negroes by private individuals and unofficial groups, 
mistreatment unrelated to any hostile state legislation.” 392 
U. S., at 427. This evidence included the comprehensive re­
port of Major General Carl Schurz on conditions in the Con­
federate States. This report stressed that laws were only 
part of the problem facing the freedmen, who also encoun­
tered private discrimination and often brutality.4 The con-

J Report of C. Schurz, S. Exec. Doc. No. 2, 39th Cong., 1st Sess. 
(1865). The Schurz report is replete with descriptions of private dis­
crimination, relating both to the freedmen’s ability to enter into contracts, 
and to their treatment once under contract. It notes, for example, that 
some planters had initially endeavored to maintain “the relation of master 
and slave, partly by concealing from [their slaves] the great changes that 
had taken place, and partly by terrorizing them into submission to their 
behests.” Id., at 15. It portrays as commonplace the use of “force and 
intimidation” to keep former slaves on the plantations:
“In many instances negroes who walked away from the plantations, or 
were found upon the roads, were shot or otherwise severely punished,



PATTERSON v. McLEAN CREDIT UNION 7

gressional debates on the Freedmen’s Bureau and civil rights 
bills show that legislators were well aware that the rights of 
former slaves were as much endangered by private action as 
by legislation. See id., at 427-428, and nn. 37-40. To be 
sure, there is much emphasis in the debates on the evils of 
the Black Codes. But there are also passages that indicate 
that Congress intended to reach private discrimination that 
posed an equal threat to the rights of the freedmen. See id., 
at 429-437. Senator Trumbull, for example, promised to in­
troduce a bill aimed not only at “local legislation,” but at any 
“prevailing public sentiment” that blacks in the South “should 
continue to be oppressed and in fact deprived of their free-

which was calculated to produce the impression among those remaining 
with their masters that an attempt to escape from slavery would result in 
certain destruction.” Id., at 17.
In Georgia, Schurz reported, “the reckless and restless characters of that 
region had combined to keep the negroes where they belonged,” shooting 
those caught trying to escape. Id., at 18. The effect of this private 
violence against those who tried to leave their former masters was that 
“large numbers [of freedmen], terrified by what they saw and heard, qui­
etly remained under the restraint imposed upon them.” Ibid. See Jones, 
392 U. S., at 428-429.

It must therefore have been evident to members of the 39th Congress 
that, quite apart from the Black Codes, the freedmen would not enjoy the 
same right as whites to contract or to own or lease property so long as pri­
vate discrimination remained rampant. This broad view of the obstacles 
to the freedmen’s enjoyment of contract and property rights was similarly 
expressed in the Howard Report on the operation of the Freedmen’s Bu­
reau, H. R. Exec. Doc. No. 11, 39th Cong., 1st Sess. (1865). It likewise 
appears in the hearings conducted by the Joint Committee on Reconstruc­
tion contemporaneously with Congress’ consideration of the civil rights bill. 
See Report of the Joint Committee on Reconstruction, 39th Cong., 1st 
Sess., pts. I-IV  (1866). These investigations uncovered numerous inci­
dents of violence aimed at restraining southern blacks’ efforts to exercise 
their new-won freedom, e. g., id., pt. Ill, p. 143, and whippings aimed 
simply at making them work harder, or handed out as punishment for a 
laborer’s transgressions, e. g., id., pt. IV, p. 83, as well, for example, as 
refusals to pay freedmen more than a fraction of white laborers’ wages, 
e. g., id., pt. II, pp. 12-13, 54-55, 234.



8 PATTERSON v. McLEAN CREDIT UNION

dom.” Cong. Globe, 39th Cong., 1st Sess., 77 (1866), quoted 
in Jones, 392 U. S., at 431.5 In the Jones Court’s view, 
which I share, Congress said enough about the injustice of 
private discrimination, and the need to end it, to show that it 
did indeed intend the Civil Rights Act to sweep that far.

Because the language of both § 1981 and § 1982 appeared 
traceable to § 1 of the Civil Rights Act of 1866, the decision 
in Jones was naturally taken to indicate that § 1981 also 
prohibited private racial discrimination in the making and 
enforcement of contracts. Thus, in Tillman v. Wheaton- 
Haven Recreational Assn., Inc., 410 U. S., at 440, the Court 
held that “ [i]n light of the historical interrelationship be­
tween § 1981 and § 1982,” there was no reason to construe 
those sections differently as they related to a claim that a 
community swimming club denied property-linked member­
ship preferences to blacks; and in Johnson v. Railway Ex­
press Agency, Inc., 421 U. S., at 459-460, the Court stated 
that “ § 1981 affords a federal remedy against discrimination 
in private employment on the basis of race.” The Court only 
addressed the scope of § 1981 in any depth, however, in Run­
yon v. McCrary, 427 U. S. 160 (1976), where we held that 
§ 1981 prohibited racial discrimination in the admissions pol­
icy of a private school. That issue was directly presented 
and fully briefed in Runyon.6

5 Senator Trumbull was speaking here of his Freedmen’s Bureau bill, 
which was regarded as having the same scope as his later civil rights bill. 
See supra, a t ------ .

For other statements indicating that § 1 reached private conduct, see 
Cong. Globe, 39th Cong., 1st Sess., 1118 (1866) (“Laws barbaric and treat­
ment inhuman are the rewards meted out by our white enemies to our col­
ored friends. We should put a stop to this at once and forever”) (Rep. 
Wilson); id., at 1152 (bill aimed at “the tyrannical acts, the tyrannical 
restrictions,and the tyrannical laws which belong to the condition of slav­
ery”) (emphasis added) (Rep. Thayer).

'See, e. g ., Brief for Petitioners 2, 6-11, Brief for Respondents 13-22, 
and Brief for United States as Amicus Curiae 13-18, in Runyon v. Me-



PATTERSON v. McLEAN CREDIT UNION 9

Although the Court in Runyon treated it as settled by 
Jones, Tillman, and Johnson that § 1981 prohibited private 
racial discrimination in contracting, it nevertheless discussed 
in detail the claim that § 1981 is narrower in scope than 
§ 1982. The primary focus of disagreement between the ma­
jority in Runyon and J u s t ic e  W h i t e ’s dissent, a debate 
renewed by the parties here on reargument, concerns the ori­
gins of § 1981. Section 1 of the 1866 Act was expressly reen­
acted by § 18 of the Voting Rights Act of 1870. Act of May 
31, 1870, ch. 114, §18, 16 Stat. 144. Section 16 of the 1870 
Act nevertheless also provided “ [t]hat all persons within the 
jurisdiction of the United States shall have the same right in 
every State and Territory in the United States to make and 
enforce contracts . . . .” Ibid. Section 1 of the 1866 Act, 
as reenacted by § 18 of the 1870 Act, was passed under Con­
gress’ Thirteenth Amendment power to identify and legislate 
against the badges and incidents of slavery, and, we held 
in Jones, applied to private acts of discrimination. The dis­
sent in Runyon, however, argued that § 16 of the 1870 Act 
was enacted solely under Congress’ Fourteenth Amendment 
power to prohibit States from denying any person the equal 
protection of the laws, and could have had no application 
to purely private discrimination. See Runyon, supra, at 
195-201 (W h i t e , J ., dissenting). But see District of Colum­
bia v. Carter, 409 U. S. 418, 424, n. 8 (1973) (suggesting 
Congress has the power to proscribe purely private conduct 
under § 5 of the Fourteenth Amendment). When all existing 
federal statutes were codified in the Revised Statutes of 
1874, the Statutes included but a single provision prohibiting 
racial discrimination in the making and enforcement of con­
tracts — § 1977, which was identical to the current §1981. 
The Runyon dissenters believed that this provision derived 
solely from § 16 of the 1870 Act, that the analysis of § 1 in

Crary, O. T. 1975, No.75-62; Brief for Petitioner 17-59, in Fairfax- 
Brewster School, Inc. v. Gonzales, O. T. 1975, No. 75-66.



10 PATTERSON v. McLEAN CREDIT UNION

Jones was of no application to § 1981, and that § 1981 hence 
could not be interpreted to prohibit private discrimination.

The Court concluded in Runyon, however—correctly, I be­
lieve—that §1977 derived both from §1 of the 1866 Act (as 
reenacted) and from § 16 of the 1870 Act, and thus was to be 
interpreted, in light of the decision in Jones, as applying 
to private conduct. See also General Building Contractors 
Assn., Inc. v. Pennsylvania, 458 U. S., at 390, n. 17 
(“ § 1981, because it is derived in part from the 1866 Act, has 
roots in the Thirteenth as well as the Fourteenth Amend­
ment”). This result followed, the Court held, from the 
terms of the 1874 revision of the statutes. The revisers who 
prepared the codification had authority only to “revise, sim­
plify, arrange, and consolidate” existing laws, to omit “redun­
dant or obsolete” provisions, and to make suggestions for re­
peal. Act of June 27, 1866, 14 Stat. 74-75. See Runyon, 
427 U. S., at 168, n. 8. The revisers made no recommenda­
tion that § 1 of the 1866 Act, as reenacted, be repealed, and 
obviously the broad 1866 provision, applying to private ac­
tors, was not made redundant or obsolete by § 16 of the 1870 
Act, with its potentially narrower scope. Hence it is most 
plausible to think that § 1977 was a consolidation of § 1 and of 
§ 16. Id., at 169, n. 8. The Runyon Court explained that a 
revisers’ note printed alongside § 1977, indicating that it was 
derived from § 16, but not mentioning § 1 or its reenactment, 
had to be viewed in light of the terms of the codification as 
either inadvertent or an error, and declined “to attribute to 
Congress an intent to repeal a major piece of Reconstruction 
legislation on the basis of an unexplained omission from the 
revisers’ marginal notes.” Ibid? Respondent has supplied 7

7 Congress originally entrusted the revision of the laws to three Com­
missioners appointed under the Act of June 27, 1866, 14 Stat. 74-75. 
These Commissioners were instructed to draft side-notes indicating the 
source of each section of their revision, §2, id., at 75, and they wrote the 
marginal note to what became § 1977 of the Revised Statutes, which re­
ferred as a source only to § 16 of the 1870 Act. See 1 Revision of the



PATTERSON v. McLEAN CREDIT UNION 11

no new information suggesting that the Court’s conclusion as 
to the dual origins of § 1981 was mistaken.8 In sum, I find 
the careful analysis in both Jones and Runyon persuasive.

United States Statutes as Drafted by the Commissioners Appointed for 
that Purpose 947 (1872). Congress rejected the work of the Commission­
ers, however, precisely because members believed it to contain new legis­
lation. See 2 Cong. Rec. 646 (1874). Congress then appointed Thomas 
Durant to review the Commissioners’ work. See Act of Mar. 3, 1873, § 3, 
17 Stat. 580. “[Wjherever the meaning of the law had been changed,” Du­
rant was “to strike out such changes.” 2 Cong. Rec. 646 (1874). Durant 
reported that he had compared the Commissioners’ revision with pre-exist­
ing statutes, and that “wherever it has been found that a section contained 
any departure from the meaning of Congress as expressed in the Statutes 
at Large, such change has been made as was necessary to restore the origi­
nal signification.” Report to the Joint Committee on the Revision of the 
Laws 1 (1873). Durant’s revision, H. R. 1215, 43d Cong., 1st Sess. (1874), 
which was put before Congress in the form of a bill, see 2 Cong. Rec. 819 
(1874), contained no marginal notations. See id., at 826-827, 1210. The 
Commissioners’ reference to § 16 reappeared only after Congress author­
ized the Secretary of State to publish the Revised Statutes with marginal 
notations. See Act of June 20, 1874, ch. 333, §2, 18 Stat. (part 3) 113. 
Apparently, the Secretary simply lifted notations from the Commissioners’ 
draft revision. Hence, insofar as Durant might have thought that the 
Commissioners had changed the law by referring only to §16 as their 
source, and that this problem had been cured merely by the omission of the 
marginal note from his own draft, it seems strained to rely upon the later 
decision to restore the Commissioners’ marginal notes as evidence that 
§ 1977 derives solely from § 16. This is particularly so in light of criticism 
directed in Congress to the accuracy of some of the Commissioners’ side- 
notes. See 2 Cong. Rec. 828 (1874) (citing as an error a marginal note that 
was “not sufficently comprehensive” to reflect the provision’s source) (Rep. 
Lawrence).

81 find strong support for our prior holding that § 1981 is derived in part 
from the 1866 Act in the legislative history of the 1874 codification. Rep­
resentative Lawrence, a member of the Joint Committee on the Revision of 
the Laws, specifically commented in the House upon the proposed revision 
of the 1866 and 1870 Acts. Id., at 827-828. He noted that the plan of 
revision was “to collate in one title of ‘civil rights’ the statutes which de­
clare them.” Id., at 827. After setting out § 1 and §2 of the 1866 Act, 
and then § 16 and § 17 of the 1870 Act, Representative Lawrence stated 
that the revisers had “very properly not treated [the 1870 Act] as super-



12 PATTERSON v. McLEAN CREDIT UNION

B
Even were there doubts as to the correctness of Runyon, 

Congress has in effect ratified our interpretation of § 1981, a 
fact to which the Court pays no attention. We have justified 
our practice of according special weight to statutory prece­
dents, see ante, at 4, by reference to Congress’ ability to cor­
rect our interpretations when we have erred. To be sure, 
the absence of legislative correction is by no means in all 
cases determinative, for where our prior interpretation of a 
statute was plainly a mistake, we are reluctant to ‘“ place 
on the shoulders of Congress the burden of the Court’s own 
error.’ ” Monell v. New York City Dept, of Social Services, 
436 U. S. 658, 695 (1978), quoting Girouard v. United States, 
328 U. S. 61, 70 (1946). Where our prior interpretation of 
congressional intent was plausible, however—which is the 
very least that can be said for our construction of § 1981 in 
Runyon—we have often taken Congress’ subsequent inaction 
as probative to varying degrees, depending upon the circum­
stances, of its acquiescence. See Johnson v. Transportation 
Agency, 480 U. S. 616, 629-630, n. 7 (1987). Given the fre­
quency with which Congress has in recent years acted to 
overturn this Court’s mistaken interpretations of civil rights 
statutes,* 9 its failure to enact legislation to overturn Runyon

seeling the entire original act.” Id., at 828. Rather, they had “trans- 
lat[ed] the sections I have cited from the acts of 1866 and 1870, so far as 
they relate to a declaration of existing rights,” in the provisions that have 
now become § 1981 and § 1982. Ibid. There is no hint in this passage that 
any part of the 1866 Act would be lost in the revision, and indeed in other 
parts of his statement Representative Lawrence makes it plain that he un­
derstood the revisers’ task to be that of presenting “the actual state of the 
law.” Id., at 826. See also id., at 647-649 (general discussion on the aim 
of the revision to codify existing law without modification), and id., at 1210 
(“we do not purpose to alter the law one jot or tittle”) (Rep. Poland).

9 See, e. g., Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 
94-559, 90 Stat. 2641, 42 U. S. C. § 1988 (overturning Alyeska Pipeline 
Service Co. v. Wilderness Society, 421 U. S. 240 (1975)); Pregnancy Dis­
crimination Act, Pub. L. 95-555, 92 Stat. 2076, 42 U. S. C. §2000e(k)



PATTERSON v. McLEAN CREDIT UNION 13

appears at least to some extent indicative of a congressional 
belief that Runyon was correctly decided. It might likewise 
be considered significant that no other legislative develop­
ments have occurred that cast doubt on our interpretation of 
§1981. Cf., e. g., Shearson/American Express Inc. v. Mc­
Mahon, 482 U. S. 220, 233-234 (1987) (regulatory develop­
ments); Monell, supra, at 697-699; Califano v. Sanders, 430 
U. S. 99, 105-107 (1977).

There is no cause, though, to consider the precise weight to 
attach to the fact that Congress has not overturned or other­
wise undermined Runyon. For in this case we have more 
positive signs of Congress’ views. Congress has considered 
and rejected an amendment that would have rendered § 1981 
unavailable in most cases as a remedy for private employ­
ment discrimination, which is evidence of congressional ac­
quiescence that is “something other than mere congressional 
silence and passivity.” Flood v. Kuhn, 407 U. S. 258, 283 
(1972). In addition, Congress has built upon our interpreta­
tion of § 1981 in enacting a statute that provides for the re­
covery of attorney’s fees in § 1981 actions.

After the Court’s decision in Jones v. Alfred H. Mayer 
Co., Congress enacted the Equal Employment Opportunity 
Act of 1972, Pub. L. 92-261, 86 Stat. 103, amending Title VII 
of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq. 
During Congress’ consideration of this legislation—by which 
time there had been ample indication that § 1981 was being

(overturning General Electric Co. v. Gilbert, 429 U. S. 125 (1976); see 
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 
(1983)); Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 
131, 42 U. S. C. § 1973 (overturning Mobile v. Bolden, 446 U. S. 55 (1980); 
see, e. g., H. R. Rep. No. 97-227, pp. 28-30 (1981)); Handicapped Chil­
dren’s Protection Act of 1986, Pub. L. 99-372, 100 Stat. 796, 20 U. S. C. 
§§ 1415(e)(4)(BMG) (1982 ed., Supp. V) (overturning Smith v. Robinson, 
468 U. S. 992 (1984); see e. g., H. R. Rep. No. 99-296, p. 4 (1985)); Civil 
Rights Restoration Act of 1987, Pub. L. 100-259, 102 Stat. 28, note follow­
ing 20 U. S. C. A. § 1687 (Supp. 1989) (overturning Grove City College v. 
Bell, 465 U. S. 555 (1984); see, e. g., S. Rep. No. 100-64, p. 2 (1987)).



14 PATTERSON v. McLEAN CREDIT UNION

interpreted to apply to private acts of employment dis­
crimination10—it was suggested that Title VII rendered re­
dundant the availability of a remedy for employment dis­
crimination under provisions derived from the Civil Rights 
Act of 1866. Some concluded that Title VII should be made, 
with limited exceptions, the exclusive remedy for such dis­
crimination. See H. R. Rep. No. 92-238, pp. 66-67 (1971) 
(minority views). Senator Hruska proposed an amendment 
to that effect. 118 Cong. Rec. 3172 (1972). Speaking for his 
amendment, Senator Hruska stated his belief that under ex­
isting law private employment discrimination would give rise 
to a § 1981 claim. He complained specifically that without 
a provision making Title VII an exclusive remedy, “a black 
female employee [alleging] a denial of either a promotion or 
pay raise . . . because of her color,” might “completely by­
pass” Title VII by filing “a complaint in Federal court under 
the provisions of the Civil Rights Act of 1866 against . . . 
the employer.” Id., at 3368, 3369. In speaking against the 
Hruska amendment, Senator Williams, floor manager of the 
bill, stated that it was not the purpose of the bill “to repeal 
existing civil rights laws,” and that to do so “would severely 
weaken our overall effort to combat the presence of employ­
ment discrimination.” Id., at 3371. He referred to §1981 
as an existing protection that should not be limited by the 
amendments to Title VII:

“ The right of individuals to bring suits in Federal courts
to redress individual acts of discrimination, including

10 The Court had remarked in Jones upon the close parallel between 
§ 1981 and § 1982. 392 U. S., at 441, n. 78. Moreover, the lower federal 
courts already had begun to interpret § 1981 to reach private employment 
discrimination. See, e. g., Waters v. Wisconsin Steel Works, 427 F. 2d 
476 (CA7), cert, denied, 400 U. S. 911 (1970); Sanders v. Dobbs Houses, 
Inc., 431 F. 2d 1097 (CA5 1970), cert, denied, 401 U. S. 948 (1971); Young 
v. International Tel. & Tel. Co., 438 F. 2d 757 (CA3 1971); Caldwell v. 
National Brewing Co., 443 F. 2d 1044 (CA5 1971), cert, denied, 405 U. S. 
916 (1972); Boudreaux v. Baton Rouge Marine Contracting Co., 437 F. 2d 
1011 (CA5 1971).



PATTERSON v. McLEAN CREDIT UNION 15

employment discrimination[,] was first provided by the 
Civil Rights Acts of 1866 and 1871, 42 U. S. C. sections 
1981, 1983. It was recently stated by the Supreme 
Court in the case of Jones v. Mayer, that these acts pro­
vide fundamental constitutional guarantees. In any 
case, the courts have specifically held that title VII and 
the Civil Rights Acts of 1866 and 1871 are not mutually 
exclusive, and must be read together to provide alterna­
tive means to redress individual grievances.

“Mr. President, the amendment of [Senator Hruska] 
will repeal the first major piece of civil rights legislation 
in this Nation’s history. We cannot do that.

“The peculiarly damaging nature of employment dis­
crimination is such that the individual, who is frequently 
forced to face a large and powerful employer, should be 
accorded every protection that the law has in its pur­
view, and that the person should not be forced to seek 
his remedy in only one place.” Id., at 3371-3372.11

The Hruska amendment failed to win passage on a tied 
vote, id., at 3373, and the Senate later defeated a motion to 
reconsider the amendment by a vote of 50-37. Id. , at 3964- 
3965. Though the House initially adopted a similar amend­
ment, 117 Cong. Rec. 31973, 32111 (1971), it eventually 
agreed with the Senate that Title VII should not preclude 
other remedies for employment discrimination. See H. R. 
Conf. Rep. No. 92-899 (1972). Thus, Congress in 1972 as­
sumed that §1981 reached private discrimination, and de­
clined to alter its availability as an alternative to those reme­
dies provided by Title VII. The Court in Runyon properly 
relied upon Congress’ refusal to adopt an amendment that

11 See also 118 Cong. Rec. 3370 (1972) (Sen. Javits) (opposing the Hruska 
amendment because it would “cut o ff . . . the possibility of using civil rights 
acts long antedating the Civil Rights Act of 1964 in a given situation which 
might fall, because of the statute of limitations or other provisions, in the 
interstices of the Civil Rights Act of 1964”).



16 PATTERSON v. McLEAN CREDIT UNION

would have made § 1981 inapplicable to racially discrimina­
tory actions by private employers, and concluded, as I do, 
that “ [t]here could hardly be a clearer indication of congres­
sional agreement with the view that § 1981 does reach private 
acts of racial discrimination.” 427 U. S., at 174-175 (empha­
sis in original).

Events since our decision in Runyon confirm Congress’ ap­
proval of our interpretation of § 1981. In 1976—shortly after 
the decision in Runyon, and well after the Court had indi­
cated in Tillman and Johnson that § 1981 prohibits private 
discrimination—Congress reacted to the ruling in Alyeska 
Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 
(1975), that attorney’s fees are not ordinarily recoverable 
absent statutory authorization, by enacting the Civil Rights 
Attorney’s Fees Awards Act of 1976, Pub. L. 94-559, 90 
Stat. 2641, 42 U. S. C. § 1988. A number of civil rights stat­
utes, like § 1981, did not provide for the recovery of attor­
ney’s fees, and Congress heard testimony that the decision in 
Alyeska Pipeline might have a “devastating impact” on liti­
gation under the civil rights laws. H. R. Rep. No. 94-1558, 
p. 3 (1976). Congress responded by passing an Act to per­
mit the recovery of attorney’s fees in civil rights cases, in­
cluding those brought under § 1981.

Congress was well aware when it passed the 1976 Act that 
this Court had interpreted § 1981 to apply to private dis­
crimination. The House Judiciary Committee Report had 
expressly stated:

“Section 1981 is frequently used to challenge employ­
ment discrimination based on race or color. Johnson v. 
Railway Express Agency, Inc., 421 U. S. 454 (1975). 
Under that section the Supreme Court recently held 
that whites as well as blacks could bring suit alleging ra­
cially discriminatory employment practices. McDonald 
v. Santa Fe Trail Transportation Co. [427 U. S. 273 
(1976)]. Section 1981 has also been cited to attack ex­
clusionary admissions policies at recreational facilities.



PATTERSON v. McLEAN CREDIT UNION 17

Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 
U. S. 431 (1973).” Id., at 4 (footnote omitted).

The House recognized that § 1981, thus interpreted, overlaps 
significantly with Title VII, and expressed dissatisfaction 
that attorney’s fees should be available under the latter but 
not the former statute. See also S. Rep. No. 94-1011, p. 4 
(1976) (“fees are now authorized in an employment dis­
crimination suit brought under Title VII of the 1964 Civil 
Rights Act, but not in the same suit brought under 42 
U. S. C. §1981, which protects similar rights but involves 
fewer technical prerequisites to the filing of an action”). 
Congress’ action in providing for attorney’s fees in § 1981 ac­
tions, intending that successful §1981 plaintiffs who could 
have brought their action under Title VII not be deprived of 
fees, and knowing that this Court had interpreted § 1981 to 
apply to private discrimination, goes beyond mere acquies­
cence in our interpretation of § 1981. Congress approved 
and even built upon our interpretation. Overruling Runyon 
would be flatly inconsistent with this expression of congres­
sional intent. See Bob Jones University v. United States, 
461 U. S., at 601-602; Patsy v. Florida Bd. of Regents, 457 
U. S. 496, 501 (1982); Apex Hosiery Co. v. Leader, 310 U. S. 
469, 488 (1940).

II
I turn now to the two issues on which certiorari was origi­

nally requested and granted in this case. The first of these 
is whether a plaintiff may state a cause of action under § 1981 
based upon allegations that her employer harassed her be­
cause of her race. In my view, she may. The Court reaches 
a contrary conclusion by conducting an ahistorical analysis 
that ignores the circumstances and legislative history of 
§ 1981. The Court reasons that Title VII or modern state 
contract law “more naturally gover[n]” harassment actions, 
ante, at 8 -9 —nowhere acknowledging the anachronism at­
tendant upon the implication that the Reconstruction Con­
gress would have viewed state law, or a federal civil rights



18 PATTERSON v. McLEAN CREDIT UNION

statute passed nearly a century later, as the primary bases 
for challenging private discrimination.

A

The legislative history of § 1981—to which the Court does 
not advert—makes clear that we must not take an overly nar­
row view of what it means to have the “same right . . .  to 
make and enforce contracts” as white citizens. The very 
same legislative history that supports our interpretation of 
§ 1981 in Runyon also demonstrates that the 39th Congress 
intended, in the employment context, to go beyond protect­
ing the freedmen from refusals to contract for their labor and 
from discriminatory decisions to discharge them. Section 1 
of the Civil Rights Act was also designed to protect the freed­
men from the imposition of working conditions that evidence 
an intent on the part of the employer not to contract on non- 
discriminatory terms. See supra, a t ------ , and n. 4. Con­
gress realized that, in the former Confederate States, em­
ployers were attempting to “adher[e], as to the treatment 
of the laborers, as much as possible to the traditions of the 
old system, even where the relations between employers and 
laborers had been fixed by contract.” Report of C. Schurz, 
S. Exec. Doc. No. 2, 39th Cong., 1st Sess., p. 19 (1865) (em­
phasis added). These working conditions included the use of 
the whip as an incentive to work harder—the commonplace 
result of an entrenched attitude that “ [y]ou cannot make the 
negro work without physical compulsion,” id., at 16—and the 
practice of handing out severe and unequal punishment for 
perceived transgressions. See id., at 20 (“ The habit [of cor­
poral punishment] is so inveterate with a great many persons 
as to render, on the least provocation, the impulse to whip a 
negro almost irresistible”). Since such “acts of persecution” 
against employed freedmen, ibid., were one of the 39th Con­
gress’ concerns in enacting the Civil Rights Act, it is clear 
that in granting the freedmen the “same right . . .  to make



PATTERSON v. McLEAN CREDIT UNION 19

and enforce contracts” as white citizens, Congress meant to 
encompass post-contractual conduct.

B
The Court holds that § 1981, insofar as it gives an equal 

right to make a contract, “covers only conduct at the initial 
formation of the contract.” Ante, at 11; see also ante, at 15. 
This narrow interpretation is not, as the Court would have us 
believe, ante, at 8, the inevitable result of the statutory grant 
of an equal right “to make contracts.” On the contrary, the 
language of § 1981 is quite naturally read as extending to 
cover postformation conduct that demonstrates that the con­
tract was not really made on equal terms at all. It is indeed 
clear that the statutory language of § 1981 imposes some limit 
upon the type of harassment claims that are cognizable under 
§ 1981, for the statute’s prohibition is against discrimination 
in the making and enforcement of contracts; but the Court 
mistakes the nature of that limit.12 In my view, harassment 
is properly actionable under the language of § 1981 mandating 
that all persons “shall have the same right . . .  to make . . . 
contracts . . .  as is enjoyed by white citizens” if it demon­
strates that the employer has in fact imposed discriminatory

12 The Court’s overly narrow reading of the language of § 1981 is difficult 
to square with our interpretation of the equal right protected by § 1982 “to 
inherit, purchase, lease, sell, hold, and convey real and personal property” 
not just as covering the rights to acquire and dispose of property, but also 
the “right. . .  to use property on an equal basis with white citizens,” Mem­
phis v. Greene, 451 U. S. 100, 120 (1981) (emphasis added), and “not to 
have property interests impaired because o f . . . race,” id., at 122 (empha­
sis added).

In Shaare Tefila Congregation v. Cobh, 481 U. S. 615 (1987), we re­
versed the dismissal of a claim by a Jewish congregation alleging that indi­
viduals were liable under § 1982 for spraying racist graffiti on the walls of 
the congregation’s synagogue. Though our holding in that case was lim­
ited to deciding that Jews are a group protected by § 1982, our opinion no­
where hints that the congregation’s vandalism claim might not be cogni­
zable under the statute because it implicated the use of property, and not 
its acquisition or disposal.



20 PATTERSON v. McLEAN CREDIT UNION

terms and hence has not allowed blacks to make a contract on 
an equal basis.

The question in a case in which an employee makes a § 1981 
claim alleging racial harassment should be whether the acts 
constituting harassment were sufficently severe or pervasive 
as effectively to belie any claim that the contract was entered 
into in a racially neutral manner. Where a black employee 
demonstrates that she has worked in conditions substantially 
different from those enjoyed by similarly situated white em­
ployees, and can show the necessary racial animus, a jury 
may infer that the black employee has not been afforded the 
same right to make an employment contract as white employ­
ees. Obviously, as respondent conceded at oral argument, 
Tr. of Oral Arg. 30 (Feb. 29, 1987), if an employer offers a 
black and a white applicant for employment the same written 
contract, but then tells the black employee that her working 
conditions will be much worse than those of the white hired 
for the same job because “there’s a lot of harassment going on 
in this work place and you have to agree to that,” it would 
have to be concluded that the white and black had not en­
joyed an equal right to make a contract. I see no relevant 
distinction between that case and one in which the employer’s 
different contractual expectations are unspoken, but become 
clear during the course of employment as the black employee 
is subjected to substantially harsher conditions than her 
white co-workers. In neither case can it be said that whites 
and blacks have had the same right to make an employment 
contract.13 The Court’s failure to consider such examples, 
and to explain the abundance of legislative history that con­

181 observe too that a company’s imposition of discriminatory working 
conditions on black employees will tend to deter other black persons from 
seeking employment. “ [W]hen a person is deterred, because of his race, 
from even entering negotiations, his equal opportunity to contract is de­
nied as effectively as if he were discouraged by an offer of less favorable 
terms.” Comment, Developments in the Law—Section 1981, 15 Harv. 
Civ. Rights-Civ. Lib. L. Rev. 29, 101 (1980).



PATTERSON v. McLEAN CREDIT UNION 21

founds its claim that § 1981 unambiguously decrees the re­
sult it favors, underscore just how untenable is the Court’s 
position.14

Having reached its decision based upon a supposedly literal 
reading of § 1981, the Court goes on to suggest that its grudg­
ing interpretation of this civil rights statute has the benefit of 
not undermining Title VII. Ante, at 10-13. It is unclear 
how the interpretation of §1981 to reach pervasive post- 
contractual harassment could be thought in any way to un­
dermine Congress’ intentions as regards Title VII. Con­
gress has rejected an amendment to Title VII that would 
have rendered § 1981 unavailable as a remedy for employ­
ment discrimination, and has explicitly stated that § 1981 
“protects similar rights [to Title VII] but involves fewer 
technical prerequisites to the filing of an action,” see supra, 
at 17; that the Acts “provide alternative means to redress in­
dividual grievances,” see supra, at 15; and that an employee 
who is discriminated against “should be accorded every pro­

14 In Meritor Savings Bank v. Vinson, 477 U. S. 57 (1986), we addressed 
the question whether allegations of discriminatory workplace harassment 
state a claim under § 703 of Title VII, 42 U. S. C. § 2000e-2(a)(l), which 
prohibits discrimination “with respect to [an employee’s] compensation, 
terms, conditions, or privileges of employment.” We held that sexual ha­
rassment creating a hostile workplace environment may ground an action 
under Title VII. “ [N]ot all workplace conduct that may be described as 
‘harassment’ affects a ‘term, condition, or privilege’ of employment within 
the meaning of Title VII,” however. 477 U. S., at 67. “For sexual ha­
rassment to be actionable it must be sufficiently severe or pervasive ‘to 
alter the conditions of [the victim’s] employment and create an abusive 
working environment.’ ” Ibid. Similarly, not all workplace conduct that 
may be described as racial harassment affects an employee’s right to make 
contracts free of discrimination. But racial harassment of sufficent sever­
ity may impinge upon that right, as explained in the text, and should be 
actionable under § 1981.

Petitioner has never argued that the harassment she allegedly suffered 
amounted to a breach of an express or implied contract under state law, so 
this ease presents no occasion to consider the Solicitor General’s view that 
such a breach is actionable under § 1981 because it deprives a black em­
ployee of the same right to make contracts as a white person.



22 PATTERSON v. McLEAN CREDIT UNION

tection that the law has in its purview, and . . . the person 
should not be forced to seek his remedy in only one place,” 
ibid. Evidently, Title VII and § 1981 provide independent 
remedies, and neither statute has a preferred status that is 
to guide interpretation of the other. The Court, indeed, is 
forced to concede this fact, admitting that where the statutes 
overlap “we are not at liberty ‘to infer any positive prefer­
ence for one over the other.’ ” Ante, at 12-13. But the 
Court then goes on to say that the existence of Title VII 
“should lessen the temptation for this Court to twist the in­
terpretation of [§ 1981] to cover the same conduct.” Ante, at 
13. This, of course, brings us back to the question of what 
§ 1981, properly interpreted, means. The Court’s lengthy 
discussion of Title VII adds nothing to an understanding of 
that issue.

The Court’s use of Title VII is not only question-begging; 
it is also misleading. Section 1981 is a statute of general 
application, extending not just to employment contracts, 
but to all contracts. Thus we have held that it prohibits 
a private school from applying a racially discriminatory ad­
missions policy, Runyon, and a community recreational facil­
ity from denying membership based on race, Tillman. The 
lower federal courts have found a broad variety of claims of 
contractual discrimination cognizable under §1981. E. g., 
Wyatt v. Security Inn Food & Beverage, Inc., 819 F. 2d 69 
(CA4 1987) (discriminatory application of hotel bar’s policy 
of ejecting persons who do not order drinks); Hall v. Bio- 
Medical Application, Inc., 671 F. 2d 300 (CA8 1982) (medical 
facility’s refusal to treat black person potentially cognizable 
under § 1981); Hall v. Pennsylvania State Police, 570 F. 2d 
86 (CA3 1978) (bank policy to offer its services on different 
terms dependent upon race); Cody v. Union Electric, 518 F. 
2d 978 (CA8 1975) (discrimination with regard to the amount 
of security deposit required to obtain service); Howard Secu­
rity Services, Inc. v. Johns Hopkins Hospital, 516 F. Supp. 
508 (Md. 1981) (racially discriminatory award of contract to



PATTERSON v. McLEAN CREDIT UNION 23

supply services); Grier v. Specialized Skills, Inc., 326 F. 
Supp. 856 (WDNC 1971) (discrimination in admissions to bar­
ber school); Scott v. Young, 307 F. Supp. 1005 (ED Va. 1969), 
aff’d, 421 F. 2d 143 (CA4), cert, denied, 398 U. S. 929 (1970) 
(discrimination in amusement park admissions policy). The 
Court, however, demonstrates no awareness at all that § 1981 
is so much broader in scope than Title VII, instead focusing 
exclusively upon the claim that its cramped construction of 
§ 1981 “preserved] the integrity of Title VII’s procedures,” 
ante, at 13, and avoids “ [unnecessary overlap” that would 
“upset the delicate balance between employee and employer 
rights struck by Title V II,” ante, at 13, n. 4. Rights as be­
tween an employer and employee simply are not involved in 
many § 1981 cases, and the Court’s restrictive interpretation 
of § 1981, minimizing the overlap with Title VII, may also 
have the effect of restricting the availability of § 1981 as a 
remedy for discrimination in a host of contractual situations 
to which Title VII does not extend.

Even as regards their coverage of employment discrimina­
tion, § 1981 and Title VII are quite different. As we have 
previously noted, “the remedies available under Title VII 
and under § 1981, although related, and although directed to 
most of the same ends, are separate, distinct, and independ­
ent.” Johnson, 421 U. S., at 461. Perhaps most important, 
§ 1981 is not limited in scope to employment discrimination 
by businesses with 15 or more employees, cf. 42 U. S. C. 
§2000e(b), and hence may reach the nearly 15% of the work­
force not covered by Title VII. See Eisenberg & Schwab, 
The Importance of Section 1981, 73 Cornell L. Rev. 596, 602 
(1988). A § 1981 backpay award may also extend beyond the 
two-year limit of Title VII. Johnson, 421 U. S., at 460. 
Moreover, a § 1981 plaintiff is not limited to recovering back­
pay: she may also obtain damages, including punitive dam­
ages in an appropriate case. Ibid. Other differences be­
tween the two statutes include the right to a jury trial under 
§ 1981, but not Title VII; a different statute of limitations in



24 PATTERSON v. McLEAN CREDIT UNION

§ 1981 cases, see Goodman v. Lukens Steel Co., 482 U. S. 656 
(1987); and the availability under Title VII, but not § 1981, 
of administrative machinery designed to provide assistance 
in investigation and conciliation, see Johnson, supra, 460.15 
The fact that § 1981 provides a remedy for a type of racism 
that remains a serious social ill broader than that available 
under Title VII hardly provides a good reason to see it, as 
the Court seems to, as a disruptive blot on the legal land­
scape, a provision to be construed as narrowly as possible.

C
Applying the standards set forth above, I believe the evi­

dence in this case brings petitioner’s harassment claim firmly 
within the scope of § 1981. Petitioner testified at trial that 
during her 10 years at McLean she was subjected to racial 
slurs; given more work than white employees and assigned 
the most demeaning tasks; passed over for promotion, not in­
formed of promotion opportunities, and not offered training

15 The Court suggests that overlap between § 1981 and Title VII inter­
feres with Title VIPs mediation and conciliation procedures. Ante, at 
13-14, and n. 4. In Johnson v. Railway Express Agency, Inc., 421 U. S., 
at 461, however, we rejected a suggestion that the need for Title VII pro­
cedures to continue unimpeded by collateral litigation required that the 
timely filing of a discrimination charge with the EEOC toll the limitation 
period for § 1981:
“Conciliation and persuasion through the administrative process . . . often 
constitute a desirable approach to settlement of disputes based on sensitive 
and emotional charges of invidious employment discrimination. We recog­
nize, too, that the filing of a lawsuit might tend to deter efforts at concilia­
tion, that a lack of success in the legal action could weaken the [EEOC’s] 
efforts to induce voluntary compliance, and that suit is privately oriented 
and narrow, rather than broad, in application, as successful conciliation 
tends to be. But these are the natural effects o f the choice Congress has 
made available to the claimant by its conferring upon him independent ad­
ministrative and judicial remedies. The choice is a valuable one. Under 
some circumstances, the administrative route may be highly preferred 
over the litigatory; under others, the reverse may be true.” (Emphasis 
added.)



PATTERSON v. McLEAN CREDIT UNION 25

for higher-level jobs; denied wage increases routinely given 
other employees; and singled out for scrutiny and criticism.

Robert Stevenson, the General Manager and later Presi­
dent of McLean, interviewed petitioner for a file clerk posi­
tion in 1972. At that time he warned her that all those with 
whom she would be working were white women, and that 
they probably would not like working with a black. Tr. 1- 
19. In fact, however, petitioner testified that it was Steven­
son and her supervisors who subjected her to racial harass­
ment, rather than her co-workers. For example, petitioner 
testified that Stevenson told her on a number of occasions 
that “blacks are known to work slower than whites by na­
ture,” Tr. 1-87 to 1-88, 2-80 to 2-81, or, as he put it in one 
instance, that “some animals [are] faster than other animals.” 
Tr. 2-83. Stevenson also repeatedly suggested that a white 
would be able to do petitioner’s job better than she could. 
Tr. 1-83.16

Despite petitioner’s stated desire to “move up and ad­
vance” at McLean to an accounting or secretarial position, 
Tr. 1-22, she testified that she was offered no training for a 
higher-level job during her entire tenure at the credit union. 
Tr. 1-25. White employees were offered training, Tr. 1-93, 
including a white employee at the same level as petitioner 
but with less seniority. That less senior white employee 
was eventually promoted to an intermediate accounting clerk 
position. Tr. 1-48 to 1-49, 2-114 to 2-115. As with every 
other promotion opportunity that occurred, petitioner was 
never informed of the opening. Tr. 1-46, 1-91 to 1-92. 
During the 10 years petitioner worked for McLean, white 
persons were repeatedly hired for more senior positions,

16 A former manager of data processing for McLean testified that when 
he recommended a black person for a position as a data processor, Steven­
son criticized him, saying that he did not “need any more problems around 
here,” that he would interview the person, but not hire him, and that he 
would then “search for additional people who are not black.” Tr. 2-160 to 
2-161.



26 PATTERSON v. McLEAN CREDIT UNION

without any notice of these job openings being posted, and 
without petitioner ever being informed of, let alone inter­
viewed for, any of these opportunities. Tr. 1-93 to 1-97. 
Petitioner claimed to have received different treatment as to 
wage increases as well as promotion opportunities. Thus 
she testified that she had been denied a promised pay raise 
after her first six months at McLean, though white em­
ployees automatically received pay raises after six months. 
Tr. 1-84 to 1-85. See also Tr. 1-60 to 1-65 (denial of merit 
increase).

Petitioner testified at length about allegedly unequal work 
assignments given by Stevenson and her other supervisors, 
Tr. 1-27 to 1-28, 1-30, and detailed the extent of her work 
assignments. Tr. 1-31,1-101 to 1-120, 2-18, 2-119 to 2-121. 
When petitioner complained about her workload, she was 
given no help with it. Tr. 1-82 to 1-83. In fact, she was 
given more work, and was told she always had the option of 
quitting. Tr. 1-29. Petitioner claimed that she was also 
given more demeaning tasks than white employees, and was 
the only clerical worker who was required to dust and to 
sweep. Tr. 1-31. She was also the only clerical worker 
whose tasks were not reassigned during a vacation. When­
ever white employees went on vacation, their work was reas­
signed; but petitioner’s work was allowed to accumulate for 
her return. Tr. 1-37, 1-87.

Petitioner further claimed that Stevenson scrutinized her 
more closely and criticized her more severely than white em­
ployees. Stevenson, she testified, would repeatedly stare at 
her while she was working, although he would not do this to 
white employees. Tr. 1-38 to 1-39, 1-90 to 1-91. Steven­
son also made a point of criticizing the work of white employ­
ees in private, or discussing their mistakes at staff meetings 
without attributing the error to a particular individual. But 
he would chastise petitioner and the only other black em­
ployee publicly at staff meetings. Tr. 1-40, 1-89 to 1-90, 
2-72 to 2-73.



PATTERSON v. McLEAN CREDIT UNION 27

The defense introduced evidence at trial contesting each of 
these assertions by petitioner. But given the extent and na­
ture of the evidence produced by Patterson, and the impor­
tance of credibility determinations in assigning weight to that 
evidence, the jury may well have concluded that petitioner 
was subjected to such serious and extensive racial harass­
ment as to have been denied the right to make an employ­
ment contract on the same basis as white employees of the 
credit union.17

Ill
I agree that the District Court erred when it instructed the 

jury as to petitioner’s burden in proving her claim that 
McLean violated §1981 by failing to promote her, because 
she is black, to an intermediate accounting clerk position. 
The District Court instructed the jury that Patterson had to 
prove not only that she was denied a promotion because of 
her race, but also that she was better qualified than the white 
employee who had allegedly received the promotion. That 
instruction is inconsistent with the scheme of proof we have 
carefully designed, in analogous cases, “to bring the litigants 
and the court expeditiously and fairly to [the] ultimate ques­
tion” of whether the defendant intentionally discriminated 
against the plaintiff. Texas Dept, of Community Affairs v. 
Burdine, 450 U. S. 248, 253 (1981).

A § 1981 plaintiff must prove purposeful discrimination. 
General Building Contractors Assn., Inc. v. Pennsylvania, 
458 U. S., at 391. Where the ultimate issue in a disparate- 
treatment action is whether the defendant intentionally dis­
criminated against the plaintiff, a well-established frame­
work of proof applies if the plaintiff offers only indirect 
evidence of discriminatory motive. See McDonnell Douglas

17 The proposed jury instruction quoted by the Court, ante, at 11, is 
scarcely conclusive as to the nature of Patterson’s harassment claim. In­
deed, it is precisely harassment so pervasive as to create a discriminatory 
work environment that will demonstrate that a black plaintiff has been de­
nied an opportunity to contract on equal terms with white employees.



28 PATTERSON v. McLEAN CREDIT UNION

Corp. v. Green, 411 U. S. 792 (1973) (Title VII); Ulster v. The 
Continental Group Inc., 859 F. 2d 1108 (CA2 1988) (discrimi­
natory interference with right to benefits, in violation of § 510 
of ERISA, 29 U. S. C. § 1140); Loeb v. Textron, Inc., 600 F. 
2d 1003 (CA1 1979) (violation of the Age Discrimination in 
Employment Act, 29 U. S. C. § 621 et seq.). There is no rea­
son why this scheme of proof, carefully structured as a “sen­
sible, orderly way to evaluate the evidence in light of com­
mon experience as it bears on the critical question of 
discrimination,” Fumco Construction Corp. v. Waters, 438 
U. S. 567, 577 (1978), should not apply to claims of racial dis­
crimination under § 1981. Indeed, the Court of Appeals held 
below that “ [t]he disparate treatment proof scheme devel­
oped for Title VII actions in McDonnell Douglas Corp. v. 
Green, [supra,] and its progeny, may properly be trans­
posed, as here, to the jury trial of a § 1981 claim.” 805 F. 2d 
1143, 1147 (CA4 1986). The courts below erred, however, in 
identifying a § 1981 plaintiff’s burden under that framework.

A black plaintiff claiming that an employment decision in­
fringed her § 1981 right to make and enforce contracts on the 
same terms as white persons has the initial burden of estab­
lishing a prima facie case. This burden is not an onerous 
one. Burdine, supra, at 253. The plaintiff need only prove 
by a preponderence of the evidence that she applied for an 
available position for which she was qualified, see supra, at
------ , that she was rejected, and that the employer either
continued to seek applicants for the position, or, as allegedly 
occurred in this case, filled the position with a white em­
ployee. See McDonnell Douglas, supra, at 802; Burdine, 
supra, at 253. We have required at this stage proof only 
that a plaintiff was qualified for the position she sought, 
not proof that she was better qualified than other applicants. 
See McDonnell Douglas, supra, at 802; Burdine, supra, at 
253, n. 6. Proof sufficient to make out a prima facie case 
raises a presumption that the employer acted for impermissi­
ble reasons, see Fumco Construction Corp., supra, at 577,



PATTERSON v. McLEAN CREDIT UNION 29

which the employer may then rebut by articulating “some le­
gitimate, nondiscriminatory reason for the employee’s rejec­
tion.” McDonnell Douglas, supra, at 802.

In this case, in addition to attacking petitioner’s claim 
to have made out a prima facie case, the respondent intro­
duced evidence tending to show that if it promoted a white 
employee over petitioner, it did so because the white em­
ployee was better qualified for the job. This evidence rebut­
ted any presumption of discrimination raised by petitioner’s 
prima facie case. Our cases make it clear, however, that a 
plaintiff must have the opportunity to introduce evidence to 
show that the employer’s proffered reasons for its decision 
were not its true reasons. It is equally well-established 
that this evidence may take a variety of forms. McDonnell 
Douglas, supra, at 804-805; Fumco Construction Corp., 
supra, at 578. Though petitioner might have sought to 
prove that McLean’s claim to have promoted a better-quali­
fied applicant was not its true reason by showing she was in 
fact better qualified than the person promoted, the District 
Court erred in instructing the jury that to succeed petitioner 
was required to make that showing. Such an instruction is 
much too restrictive, cutting off other methods of proving 
pretext plainly recognized in our cases. We suggested in 
McDonnell Douglas, for example, that a black plaintiff might 
be able to prove pretext by showing that the employer has 
promoted white employees who lack the qualifications the 
employer relies upon, or by proving the employer’s “general 
policy and practice with respect to minority employment.” 
411 U. S., at 804-805. And, of particular relevance given 
petitioner’s evidence of racial harassment and her allegation 
that respondent failed to train her for an accounting position 
because of her race, we suggested that evidence of the em­
ployer’s past treatment of the plaintiff would be relevant to a 
showing that the employer’s proffered legitimate reason was 
not its true reason. Id., at 804. There are innumerable dif­
ferent ways in which a plaintiff seeking to prove intentional



30 PATTERSON v. McLEAN CREDIT UNION

discrimination by means of indirect evidence may show that 
an employer’s stated reason is pretextual and not its real 
reason. The plaintiff may not be forced to pursue any one of 
these in particular.18

I therefore agree that petitioner’s promotion discrimina­
tion claim must be remanded because of the District Court’s 
erroneous instruction as to petitioner’s burden. It seems to 
me, however, that the Court of Appeals was correct when it 
said that promotion-discrimination claims are cognizable 
under § 1981 because they “go to the very existence and na­
ture of the employment contract.” 805 F. 2d, at 1145. The 
Court’s disagreement with this common-sense view, and its 
statement that “the question whether a promotion claim is 
actionable under § 1981 depends upon whether the nature of 
the change in position was such that it involved the opportu­
nity to enter into a new contract with the employer,” ante, 
at 16-17, display nicely how it seeks to eliminate with tech­
nicalities the protection §1981 was intended to afford—to 
limit protection to the form of the contract entered into, 
and not to extend it, as Congress intended, to the substance 
of the contract as it is worked out in practice. Under the 
Court’s view, the employer may deny any number of promo­
tions solely on the basis of race, safe from a § 1981 suit, pro­
vided it is careful that promotions do not involve new con­
tracts. It is admittedly difficult to see how a “promotion” —

18 The Court of Appeals mistakenly held that the instruction requiring 
petitioner to prove her superior qualifications was necessary in order to 
protect the employer’s right to choose among equally well-qualified appli­
cants. As we stated in Texas Dept, o f Community Affairs v. Burdine, 
450 U. S. 248, 259 (1981), “the employer has discretion to choose among 
equally qualified candidates, provided the decision is not based upon un­
lawful criteria.” (Emphasis added.) Where a plaintiff proves that an em­
ployer’s purported reasons for a promotion decision were all pretextual, 
the factfinder may infer that the employer’s decision was not based upon 
lawful criteria; and, as I point out in the text, there are many ways in 
which a plaintiff can prove pretext other than by proving her superior 
qualifications.



PATTERSON v. McLEAN CREDIT UNION 31

which would seem to imply different duties and employment 
terms—could be achieved without a new contract, and it may 
well be as a result that promotion claims will always be cog­
nizable under § 1981. Nevertheless, the same criticisms 
I have made of the Court’s decision regarding harassment 
claims apply here: proof that an employee was not promoted 
because she is black—while all around white peers are ad­
vanced-shows that the black employee has in substance 
been denied the opportunity to contract on the equal terms 
that § 1981 guaranteees.

IV

In summary, I would hold that the Court of Appeals erred 
in deciding that petitioner’s racial harassment claim is not 
cognizable under § 1981. It likewise erred in holding that 
petitioner could succeed in her promotion-discrimination 
claim only by proving that she was better qualified for the 
position of intermediate accounting clerk than the white em­
ployee who was in fact promoted.



SUPREME COURT OF THE UNITED STATES

No. 87-107

BRENDA PATTERSON, PETITIONER v. 
McLEAN CREDIT UNION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

[June 15, 1989]

Justice St e v e n s , concurring in the judgment in part and 
dissenting in part.

When I first confronted the task of interpreting § 1981, I 
was persuaded by Justice Cardozo’s admonition that it is wise 
for the judge to “ ‘lay one’s own course of bricks on the secure 
foundation of the courses laid by others who had gone before 
him.’ ” Runyon v. McCrary, 427 U. S. 160, 191 (1976) (con­
curring opinion) (quoting B. Cardozo, The Nature of the Judi­
cial Process 149 (1921)). The Court had already construed 
the statutory reference to the right “to make and enforce con­
tracts” as a guarantee of equal opportunity, and not merely a 
guarantee of equal rights. Today the Court declines its own 
invitation to tear down that foundation and begin to build a 
different legal structure on its original text. I agree, of 
course, that Runyon should not be overruled. I am also per­
suaded, however, that the meaning that had already been 
given to “the same r ight . . .  to make and enforce contracts” 
that “is enjoyed by white citizens” —the statutory foundation 
that was preserved in Runyon—encompasses an employee’s 
right to protection from racial harassment by her employer.

In Runyon we held that § 1981 prohibits a private school 
from excluding qualified children because they are not white 
citizens. Just as a qualified nonwhite child has a statutory 
right to equal access to a private school, so does a nonwhite 
applicant for employment have a statutory right to enter into



2 PATTERSON v. McLEAN CREDIT UNION

a personal service contract with a private employer on the 
same terms as a white citizen. If an employer should place 
special obstacles in the path of a black job applicant — perhaps 
by requiring her to confront an openly biased and hostile in­
terviewer—the interference with the statutory right to make 
contracts to the same extent “as is enjoyed by white citizens” 
would be plain.

Similarly, if the white and the black applicants are offered 
the same terms of employment with just one exception—that 
the black employee would be required to work in dark, un­
comfortable surroundings, whereas the white employee 
would be given a well-furnished, two-window office—the dis­
crimination would be covered by the statute. In such a case, 
the Court would find discrimination in the making of the con­
tract because the disparity surfaced before the contract was 
made. See ante, at 8-9, 10-12, 16. Under the Court’s un­
derstanding of the statute, the black applicant might recover 
on one of two theories: She might demonstrate that the em­
ployer intended to discourage her from taking the job—which 
is the equivalent of a “refusal to enter into a contract” —or 
she might show that the employer actually intended to enter 
a contract, but “only on discriminatory terms.” Ante, at 8. 
Under the second of these theories of recovery, however, it is 
difficult to discern why an employer who makes his intentions 
known has discriminated in the “making” of a contract, while 
the employer who conceals his discriminatory intent until 
after the applicant has accepted the job, only later to reveal 
that black employees are intentionally harassed and insulted, 
has not.

It is also difficult to discern why an employer who does not 
decide to treat black employees less favorably than white em­
ployees until after the contract of employment is first con­
ceived is any less guilty of discriminating in the “making” of a 
contract. A contract is not just a piece of paper. Just as a 
single word is the skin of a living thought, so is a contract 
evidence of a vital, ongoing relationship between human be-



ings. An at-will employee, such as petitioner, is not merely 
performing an existing contract; she is constantly remaking 
that contract. Whenever significant new duties are assigned 
to the employee—whether they better or worsen the rela­
tionship—the contract is amended and a new contract is 
made. Thus, if after the employment relationship is formed, 
the employer deliberately implements a policy of harassment 
of black employees, he has imposed a contractual term on 
them that is not the “same” as the contractual provisions that 
are “enjoyed by white citizens.” Moreover, whether em­
ployed at-will or for a fixed term, employees typically strive 
to achieve a more rewarding relationship with their employ­
ers. By requiring black employees to work in a hostile envi­
ronment, the employer has denied them the same opportu­
nity for advancement that is available to white citizens. A 
deliberate policy of harassment of black employees who are 
competing with white citizens is, I submit, manifest dis­
crimination in the making of contracts in the sense in which 
that concept was interpreted in Runyon v. McCrary, supra. 
I cannot believe that the decision in that case would have 
been different if the school had agreed to allow the black 
students to attend, but subjected them to segregated classes 
and other racial abuse.

Indeed, in Goodman v. Lukens Steel Co., 482 U. S. 656 
(1987), we built futher on the foundation laid in Runyon. 
We decided that a union’s “toleration and tacit encourage­
ment of racial harassment” violates § 1981. Id., at 665. Al­
though the Court now explains that the Lukens decision 
rested on the union’s interference with its members’ right to 
enforce their collective bargaining agreement, see ante, at 9, 
14-15, when I joined that opinion I thought—and I still 
think—that the holding rested comfortably on the foundation 
identified in Runyon. In fact, in the section of the Lukens 
opinion discussing the substantive claim, the Court did not 
once use the term “enforce” or otherwise refer to that par­
ticular language in the statute. 482 U. S., at 664-669.

PATTERSON v. McLEAN CREDIT UNION 3



4 PATTERSON v. McLEAN CREDIT UNION

The Court’s repeated emphasis on the literal language of 
§ 1981 might be appropriate if it were building a new founda­
tion, but it is not a satisfactory method of adding to the exist­
ing structure. In the name of logic and coherence, the Court 
today adds a course of bricks dramatically askew from “the 
secure foundation of the courses laid by others,” replacing a 
sense of rational direction and purpose in the law with an 
aimless confinement to a narrow construction of what it 
means to “make” a contract.

For the foregoing reasons, and for those stated in Parts 
11(B) and 11(C) of Justice  Br e n n a n ’s opinion, I respectfully 
dissent from the conclusion reached in Part III of the Court’s 
opinion. I also agree with Justice  Br e n n a n ’s discussion of 
the promotion claim.