Harvis v. Roadway Express, Inc. Brief of Plaintiff-Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 91-3343

JAMES T. HARVIS, JR.,
Plaintiff,

MAURICE RIVERS and ROBERT C. DAVISON
Plaintiffs-Appellants,

v.
ROADWAY EXPRESS, INC.

Defendant-Appellee.

On Appeal from the United States District Court 
For the Northern District of Ohio

BRIEF OF PLAINTIFF-APPELLANT

JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
ERIC SCHNAPPER 
CORNELIA T.L. PILLARD 
(Counsel of Record)
NAACP Legal Defense and 

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

ELLIS BOAL
925 Ford Building 
Detroit, MI 43226



TABLE OF CONTENTS

TABLE OF AUTHORITES...........................................ii
DISCLOSURE OF COPORATE AFFILIATIONS AND FINANCIAL INTEREST . . V

ISSUE PRESENTED FOR REVIEW ................................  1
STANDARD OF REVIEW ........................................  3
STATEMENT OF THE C A S E ......................................  3

Nature of the C a s e ....................................  3
Course of Proceedings ................................  4
District Court Opinion ................................  6

STATEMENT OF THE F A C T S ....................................  8
SUMMARY OF ARGUMENT...........................................13
ARG U M E N T ..................................................... 14

ROADWAY VIOLATED PLAINTIFFS' § 1981 RIGHT TO ENFORCE 
THEIR CONTRACT FREE FROM RACIAL DISCRIMINATION ........  14
A. Roadway's Retaliation Against Plaintiffs for 

Filing Grievances to Enforce Their Contract 
Rigt^s, as Distinct From Rights Derived From Other
Sources, Remains Prohibited By Section 1981After Patterson.................................. 16

B. Roadway's Discharge of Rivers and Davison Even 
After They Prosecuted Their Grievances Violates 
Their Right to Enforce Their Contracts ..........  20

C. Roadway's Retaliatory Discharge Violates 
Plaintiffs' § 1981 Right to Enforce Their 
Contracts Even if Patterson Precludes Discharge 
Claims Based on The Right to Make Contracts . . . .  22

CONCLUSION................................................ 2 6
ADDENDUM.................................................... 2 7

i



21

21

3

8

20

18

"3

22

22

14

21

22

20

18

TABLE OF AUTHORITIES
CASES

Carter v. South Central Bell.
912 F.2d 832 (5th Cir. 1990),
cert, denied. Ill S. Ct. 2916 (1991) . . . .

Chambers v. Southwestern Bell Telephone Co..
917 F.2d 5 (5th Cir. 1990), 
petition for cert, filed
(May 14, 1991) (No. 90-1776) ....................

Conley v. Gibson.
355 U.S. 41 (1957) ............................

D. Federico Co. v. New Bedford Redevelopment Authority. 
723 F.2d 122 (1st Cir. 1983) ....................

Danaerfield v. The Mission Press.
1989 U.S. Dist. LEXIS 8985 (N.D. 111. 1989)

Dash v. Equitable Life Assur. Soc. of U.S..
753 F. Supp. 1062 (E.D.N.Y. 1990) ................

Dugan v. Brooks.
818 F.2d 513 (6th Cir. 1987) ....................

Gersman v. Group Health Assoc..
931 F.2d 1565 (D.C. Cir. 1991) ................

Gonzalez v. Home Ins. Co..
909 F.2d 716 (2d Cir. 1L30) ....................

Goodman v. Lukens Steel.
482 U.S. 656 (1987) ............................

Harris v. Richards Mfq. Co..
675 F.2d 811 (6th Cir. 1982) ....................

Hicks v. Brown Group.
- 902 F.2d 630 (8th Cir. 1990),

overruled by Taggart. 935 F.2d 947 (8th Cir. 1991).
Hall v. County of Cook.

1989 U.S. Dist. LEXIS 9661 (N.D. 111. 1989)
Hill v. Goodyear Tire & Rubber, Inc..

918 F.2d 877 (10th Cir. 1990) ....................

ii



8
Jackson v. Havakawa.

605 F.2d 1121 (9th Cir. 1979), 
cert. denied. 445 U.S. 952 (1980) .

Kozam v. Emerson Elec. Co..
739 F. Supp. 307 (N.D. Miss. 1990), 
aff'd. 928 F.2d 401 (5th Cir. 1991) . . . .  19

Lvtle v. Household Manufacturing.
110 S. Ct. 1331 ( 1 9 9 0 ) ........................  23

McKnight v. General Motors Coro..
908 F.2d 104 (7th Cir., 1990),
cert, denied. Ill S. Ct. 1306 (1991) . . 17, 21, 22, 23

Moore v. City of Paducah.
790 F. 2d 557 (6th Cir. 1 9 8 6 ) ....................  8

Northern Pipeline Construction Co. v. Marathon Pipe Line Co.
458 U.S. 50 ( 1 9 8 2 ) ............................  23

Overby v. Chevron U.S.A., Inc.. 
884 F.2d 470 (9th Cir. 1989)

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

18

passim
Prather v. Dayton Power & Light Co..

918 F.2d 1255 (6th Cir. 1990), petition for cert, filed.
59 U.S.L.W. 3687 (U.S. Mar. 26, 1991) . . . .  22

Russell v. District of Columbia.
747 F. Supp. 72 (D.D.C. 1990) . . . . . .  19

Sherman v. Burke Contracting. Inc..
891 F. 2d 1527 (11th Cir. 1 9 9 0 ) ................  17, 21

Taggart v. Jefferson Ctv. Child Support.
935 F. 2d 947 (8th Cir. 1 9 9 1 ) ....................  22

Tompkins v. DeKalb County Hosp. Auth..
- 916 F. 2d 600 (11th Cir. 1990)....................  22
Trujillo v. Grand Junction Regional Center.

928 F. 2d 973 (10th Cir. 1991)....................  22
Von Zuckerstien v. Argonne National Lab..

760 F. Supp. 1310 (N.D. 111. 1991)................  18
Williams v. First Union Nat'1 Bank of N.C..

920 F.2d 232 (4th Cir. 1990),
cert, denied. Ill S. Ct.2259 (1991) . . . . 18, 22

ill



Winston v. Lear Siegler Inc..
558 F.2d 1266 (6th Cir. 1977) . 21

STATUTES
1964 Civil Rights Act, 42 U.S.C. § 2000e et sea. .
1866 Civil Rights Act, 42 U.S.C. § 1981 . . . .
Labor-Management Relations Act, 29 U.S.C. §§ 185, 159.

4
passim

4

IV



UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

(This statem ent should be placed immediately preceding the statem ent of issues contained 
in the brief of the party. See copy of 6th Cir. R. 25 on reverse side of this form.)

JAMES T. HARVIS, J R .;
P l a i n t i f f

MAURICE RIVERS; ROBERT C. DAVISON 

P l a i n t i f f s  -  A p p e l la n t s

v.

ROADWAY EXPRESS, INC.

D e fe n d a n t  -  A p p e l le e

)
))
)
)
)
)
)
)
)
)
)
)
)
)
)
)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

JAMES T. HARVIS, JR , MAURICE RIVERS 
Pursuant to 6th Cir. R. 25, __________AND ROBERT C. DAVISON

makes the following disclosure:
(name of party)

Is said party a subsidiary or affiliate of a publicly owned corporation?

If the answer is YES, list below the identity of the parent corporation or affiliate  
and the relationship between it and the named party:

Is there a publicly owned corporation, not a party to the appeal, that has a 
financial interest in the outcome? Mr>

If the answer is YES, list the identity of such corporation and the nature of the 
financial interest:

A u g u st 1 2 , 1991  
(Signature of Counsel) (Datej

6CA-1
7/86

Page 1 of 2



ISSUE PRESENTED FOR REVIEW

Whether the district court erred in dismissing two black 
employees' claims that Roadway Express violated 42 U.S.C. § 1981 
by discriminatorily retaliating against them for successfully 
using the collective bargaining agreement's grievance procedure 
to enforce their established contract rights against race-based 
infringement.



STATEMENT IN SUPPORT OF ORAL ARGUMENT
Pursuant to 6th Cir. R. 9(d), oral argument should be heard 

in this case because it presents an important legal issue of 
first impression in this Circuit involving the scope of a major 
federal civil rights law, 42 U.S.C. § 1981. While plaintiffs'
§ 1981 claims were awaiting trial, the Supreme Court in Patterson 
v. McLean Credit Union. 491 U.S. 164 (1989), decided that the 
§ 1981 "right ... to make and enforce contracts" on racially 
neutral terms does not prohibit racial harassment during the 
execution of a contract. The district court in this case 
extended Patterson to hold that § 1981 categorically does not 
prohibit retaliatory discharge in any circumstances.

This appeal is the first time since Patterson that a federal 
court of appeals will review a claim of race-based retaliation 
for enforcement of contract rights as such. Other circuit courts 
have upheld dismissals of § 1981 retaliation claims under 
Patterson when they involved retaliation against plaintiffs for 
their enforcement of statutory or other non-contractual rights, 
finding that such retaliation does not impair the "right ... to 
... enforce contracts" on racially neutral terms. Courts 
rejecting such claims have commented, however, that § 1981 claims 
should be sustained where, as here, defendants discriminatorily 
retaliate against plaintiffs specifically for enforcing their 
contract rights.

2



STANDARD OF REVIEW
Because the district court dismissed plaintiffs' § 1981 

claims for failure to state a legally sufficient claim, this 
Court must review its judgment de novo. Moreover, all 
plaintiffs' allegations must be taken as true and construed in 
the light most favorable to them. Dugan v. Brooks. 818 F.2d 513, 
516 (6th Cir. 1987). Remand is required unless "it appears 
beyond doubt that plaintiff can prove no set of facts in support 
of his claim which would entitle him to relief." Conley v. 
Gibson. 355 U.S. 41, 45-46 (1957).

STATEMENT OF THE CASE
Nature of the Case

Maurice Rivers and Robert C. Davison, experienced black 
garage mechanics, appeal from the district court's Memorandum and 
Order applying the Supreme Court's decision in Patterson to 
dismiss their § 1981 claims against their font0 .* employer,
Roadway Express, Inc. ("Roadway," "the Company"). After the 
conclusion of discovery and pretrial motions in this case, the 
Supreme Court handed down its Patterson decision changing the law 
governing § 1981 claims. The district court then dismissed 
plaintiffs' retaliation claims as no longer covered by § 1981. 
Plaintiffs seek reversal of that decision on the ground that 
their § 1981 right to enforce their employment contract free from 
discrimination encompasses their claims of discriminatory 
retaliation for exercising their contract rights.

3



Course of Proceedings
Maurice Rivers and Robert C. Davison, together with a third 

co-plaintiff James T. Harvis, Jr.,1 filed their Complaint against 
Roadway on February 22, 1987 in the United States District Court 
for the Northern District of Ohio, Western Division, alleging 
that Roadway discharged them in violation of the Civil Rights of 
1866, 42 U.S.C. § 1981. They also asserted claims against 
Roadway under the 1964 Civil Rights Act, 42 U.S.C. § 2000e et 
sea.. and under § 301 of the Labor-Management Relations Act 
(LMRA), 29 U.S.C. § 185(a). Plaintiffs raised a hybrid § 301/ 
duty of fair representation claim against the Union (Local Union 
20, International Brotherhood of Teamsters, Chauffeurs, 
Warehousemen, and Helpers of America). Plaintiffs filed a First 
Amended Complaint dated September 28, 1987. (R. 56: Motion; R.
218: First Amended Complaint). The district court has entered
final judgments on all claims of each plaintiff. Only the § 1981 
claims of Rivers and Davison are the subject of this appeal.

The parties engaged in extensive discovery over several 
months under the law as it stood prior to Patterson. On November 
16, 1987, Roadway moved for summary judgment, (R. 88: Motion),
and on December 1, 1987, the Union also moved for summary 
judgment on all claims. (R. 113-115: Motions). By Memorandum
and Order dated November 30, 1988, the district court dismissed 
plaintiffs' claims that the Union violated its duty of fair

J Harvis was a co-plaintiff, but his case was severed 
from that of Rivers and Davison and tried separately. His claims 
are not at issue on this appeal.

4



representation, and also dismissed plaintiffs' related labor law 
claims against Roadway. (R. 224: Memorandum and Order at 3-4).

The district court denied Roadway judgment, however, on 
plaintiffs' race discrimination claims under Title VII and 
§ 1981. The district judge "thoroughly reviewed the pleadings, 
affidavits, depositions transcripts and other materials filed in 
support of and in opposition to summary judgment," and determined 
that "genuine issues of fact exist as to plaintiffs' claims under 
Section 1981 and Title VII against defendant Company." (R. 224: 
Memorandum and Order at 6).

Plaintiffs' case was awaiting trial when the Supreme Court 
handed down its decision in Patterson v. McLean Credit Union. 491 
U.S. 164. (R. 230: Pretrial Order). The district court, by
Order dated July 10, 1989, directed Rivers and Davison to show 
cause why their § 1981 claims should not be dismissed in light of 
the Supreme Court's decision. (R. 230: Order to Show Cause)
Plaintiffs argued that their § 1981 claims should survive because 
they were not based exclusively on the right to "make ... 
contracts," which Patterson confined to discrimination in 
contract formation, but were based on the right to "enforce 
contracts." (R. 259: Plaintiffs' Response to Patterson at 10-
11). The Patterson Court held that the § 1981 enforcement clause 
continues to prohibit the kind of discriminatory interference 
with "nonjudicial methods of adjudicating disputes about the 
force of binding obligations" that occurred in this case. 491 
U.S. at 177. The district judge disagreed, and dismissed

5



plaintiffs' § 1981 claims in an unpublished Memorandum and Order 
dated January 19, 1990. (R. 266: Memorandum and Order). ^

District Court Opinion
The district court held that plaintiffs' § 1981 claims are 

no longer covered by the statute after Patterson. (R. 266: 
Memorandum and Order at 3 - 1 ^  The court quoted an extensive 
passage of the Supreme Court's opinion construing the "right to 
... make ... contracts" as not protecting an employee from the 
employer's post-contract formation conduct relating to "the 
conditions of continuing employment." Id. at 3. The district 
court concluded that "§ 1981 does not apply to discriminatory 
discharges since a discharge is conduct which occurs after the 
formation of a contract." Id.

The district court held categorically that even where a 
discharge is in retaliation for seeking to enforce contract 
rights against racially discriminatory breach, it does not 
violate § 1981. The court based this conclusion on the decisions 
of "[o]ther district courts [which] have considered similar 
issues and concluded that claims that a plaintiff was discharged 
in retaliation for exercising rights still protected under § 1981 
do not state a claim under § 1981 in light of Patterson." Id. 
at 4.

The court acknowledged that the analysis whether § 1981 
applies might differ where the right to enforce as opposed to 
make contracts is concerned. If a plaintiff were denied access

6



to a grievance procedure, the court commented that he would have 
been deprived of "precisely what is protected under the 'right to 
... enforce contracts' provision of § 1981." Id. at 4. The 
court distinguished, however, punishment that precedes and 
forecloses a grievance from that which immediately follows and 
nullifies it.

STATEMENT OF THE FACTS2
Roadway hired Robert Davison to work as a washer in its 

Akron facility in 1972, and hired Maurice Rivers the following 
year to work as a janitor at the same facility. (R. 192: 
Appendix I of Plaintiff in Opposition to Summary Judgment 
("Appendix"), Davison Dep. 7/15/87, at 44-45? Rivers Dep.1

In dismissing plaintiffs' § 1981 claims for failure to 
"state a claim upon which relief can be granted in light of 
Patterson," the district judge properly considered plaintiffs' 
current factual contentions, rather than the undeveloped 
allegations of the First Amended Complaint. (R. 266: Memorandum
and Order at 4). See. Jackson v. Havakawa. 605 F.2d 1121, 1129 
(9th Cir. 1979), cert, denied. 4*5 U.S. 952 (1980) (holding that 
plaintiffs may proceed with claim not asserted in pleadings 
without amending complaint); D. Federico Co. v. New Bedford 
Redevelopment Authority. 723 F.2d 122, 126 (1st Cir. 1983) 
(holding that amendment of complaint to conform to evidence is 
not necessary, and in any event should be liberally allowed); 
Moore v. City of Paducah. 790 F.2d 557, 561 (6th Cir. 1986) 
(reversing denial of leave to amend complaint on ground that 
"cases should be tried on their merits rather than the 
technicalities of pleadings"). The plaintiffs offered to amend 
their complaint to articulate the discovered facts as they 
related to the Patterson standard. (R. 263: Plaintiffs' Reply at 
4). The district court, however, apparently viewed amendment as 
unnecessary. If this Court narrowly reads the district court 
opinion as having dismissed the § 1981 claims on the basis that 
facts were inadequately pleaded, however, the proper course would 
be to remand with directions to the district court to permit 
amendment of the pleadings, con.-istent with Federal Rule of Civil Procedure 15(b).

7



Id. In 1975, both were transferred to work as mechanics in 
Roadway's garage in Toledo, Ohio. Id.'/ For 10 years, both worked 
capably in that job. (R. 192: Appendix I, Thompson Dep.
7/22/87, at 49-50)'.3

On August 22, 1986, Roadway required both Rivers and Davison 
to attend disciplinary hearings on their accumulated work record 
without proper notice. (R. 192: Appendix I, Guy Dep. 8/12/87, u
at 151; R. 218: Complaint, at 5 11). Although Roadway is
contractually required to provide prior written notice of such 
hearings, and routinely did so for white employees, it did not 
provide either Rivers or Davison with such notice. Davison was 
simply called into the office at the end of his shift without any 
prior notice, verbal or written, that a hearing would be held 
that day. (R. 192: Appendix I, Davison Dep. 7/20/87, at 187-
88). He protested that he had not received proper notice. (R./
192: Appendix I, Guy Dep. 8/12/87, at 148). Rivers' foreman
verbally informed him during the early hours of August 22 that a 
disciplinary hearing would be held for him later that morning.
(R. 192: Appendix I, Rivers Dep. 7/14/87, at 297-299; Guy Dep.

x/8/12/87, at 149). He also received no written notice. (R. 192: 
Appendix I, Rivers Dep. 7/14/87, at 299)i

6/16/87, at 11). Each worked his way up to become a mechanic.

There were only four black employees working in the 
Toledo garage in 1986: plaintiffs Rivers, Davison and Harvis,
and a black union steward who had been discharged in 1984 for 
refusing to have his picture taken in circumsta* ces an arbitrator 
described as showing "a callous disregard for the personal rights 
of minority employees." That employee was reinstated.

8



The purpose of a disciplinary hearing is to give an 
employee, represented by the union, an opportunity to respond to 
the infractions with which Roadway has charged him. Notice of a 
hearing is critical because it gives the employee time both to 
prepare a defense and to reform his behavior.4 Because Rivers 
and Davison had not received proper notice, neither of them 
attended. The Company proceeded despite their absence. At the 
conclusion of the hearings, Roadway suspended each employee for 
two days for minor infractions, such as "wasting time" and 
wearing improper shoes to work.

Both employees then filed grievances challenging their
l/'suspensions. (R. 218: Complaint, at f 11). The grievances were

heard by the Toledo Local Joint Grievance Committee (TLJGC) on 
September 23, 1986. (R. 192: Appendix I, Rivers Dep. 7/14/87,
at 317— 18). The TLJGC was comprised of six members, three each 
from union and management, including co-chairs. Rivers and 
Davison contended that the Company failed to give proper notice, 
and instead discriminatorily held prompt hearings for these black 
employees but not for whites. (R. 192: Appendix I, Rivers Dep.

Under the collective bargaining agreement, the Company 
may_consider only the cumulative disciplinary record of the 
employee within the nine months immediately preceding the 
hearing. (R. 192: Appendix II, Local 20/Harvis Ex B-63, Article
X; R. 192: Appendix I, O'Neill Dep. 8/13/87 at 74). Thus, as
time passes between a hearing request and the hearing itself, 
some earlier disciplinary infractions may become time-barred and 
therefore no longer be subject to discipline. If an employee's 
disciplinary record is improving —  such that old infractions 
drop off his record at a greater rate than new ones accumulate - 
- he will benefit from the passage of time before a hearing is 
held. (R. 192: Appendix I, Toney Dep. 8/17/87, at 159).

9



They presented examples of white employees who were not hastily 
brought in for hearings as they had been, notwithstanding that 
Roadway's requests that the union agree to dates for hearings on 
their disciplinary records had been pending for months. Id.5

The TUGC ruled in plaintiffs' favor, determining that 
"[bjased on improprieties the claim of the union is upheld." (R. 
192: Appendix II, Plaintiffs' Ex. 113, 114). The committee
reversed the suspensions and awarded them back pay for the two 
days they were suspended. One of the committee co-chairs later 
reported that the TLJGC had reversed the suspension based on the 
plaintiffs' discrimination argument. (R. 192: Appendix I,
Rivers Dep. 7/14/87 at 335; Davison Dep. 7/15/87, at 114-15,^ 
Davison Dep. 7/20/87 at 220, 252; McCord Dep. 9/3/87 at 287)

Roadway Labor Relations Manager James O'Neill became enraged 
upon hearing of the TLJGC determination, and vowed to hold

7/14/87 at 321-22, 324; McCord Dep. 9/3/87, at 285-86, 293).

While the Company precipitously convened hearings on 
plaintiffs, it generally gave proper notice and scheduled 
hearings for white employees on a more leisurely basis, with 
weeks passing between a request for a hearing and the hearing 
itself. Roadway first requested on August 1, 1986 that Rivers' 
hearing be scheduled, (R. 192: Appendix II, Plaintiffs' Dep. Ex.
65), and first requested on July 14, 1986 that Davison's be 
scheduled. (R. 192: Appendix II, Plaintiffs' Dep. Ex. 64). The
time between the request and the hearings was thus 22 and 39 
days, respectively. In contrast, the time between the request 
and the hearing of the eleven white employees for whom hearings 
were held during 1986 and early 1987 averaged 99 days, with only 
one white employee having a more prompt hearing than both 
plaintiffs, and one other more prompt than Davison. See R. 192: 
Appendix II, Plaintiffs' Exs. 69, 70, 71, 72, 73, 74, 75, 76, 77, 
78, 79, 80, 81. The hasty scheduling of plaintiffs' hearings 
r’-»prived them of both the required notice and of the benefits of 
later hearings that white employees routinely enjoyed.

■H< i (
10

vcw sc f



hearings on plaintiffs again within 72 hours. (R. 192: Appendix
\ \ /I, McCord 9/3/87 Dep. , at 256; Rivers 7/14/87 Dep. at'327; Guy 

8/12/87 Dep., at 168-69). O'Neill was "hollering," and was 
visibly upset. (R. 192: .Appendix I, McCord 9/3/87 Dep., at 286;
Guy 8/12/87 Dep., at 163—69). Plaintiffs contend that O'Neill 
sought to retaliate against them for their success in the 
grievance proceeding.

Roadway did in fact convene disciplinary hearings on Davison 
and Rivers again within three days of the September 23, 1986 
TLJGC decision with the discriminatory intention of discharging 
them. This time Roadway attempted to notify them of the hearings 
by leaving papers at their workstations. (R. 192: Appendix I,

'% y*\ ' j ' i  'ORivers Dep. 7/14/87, at 355—54). This notice fell short of the 
standard procedure of sending the notice by certified mail, which . n ,

TcW'j . *7 nplaintiffs believed was required. (R. 192: Appendix I, Toney x \,uos-1 /
t>{_{>■ M / ( H  , of f\'7dT ,1 aL ID 20, Rivers Dep. 7/14/87, at 347, 378-79).
Davison and Rivers again declined to attend the hearings on 
grounds of improper notice, and again the hearings were held in 
their absence. The second disciplinary hearings were conducted 
by another member of Roadway management, Robert Kresge, but
O'Neill nonetheless personally attended. (R. 192: Appendix I,

[/ /O'Neill Dep. 8/13/87, at 63, 69). As a result of the hearings, 
plaintiffs were discharged on/September 26, 1986. (R. 218:
Complaint, at fj[ 1, 7, 16)\/ Nobody informed either Rivers or 
Davison that failure to attend the second disciplinary hearing 
would cause his discharge. (R. 192: Appendix I, Davison Dep.

Y' v '
fe. \*?io
\A(â9 ft/'1 *S

11



7/20/87, at 227, 232; Davison Dep. 8/20/87, at 82-83). Yet the 
Company asserted that the employees' failure to attend the 
hearings in disobedience of what the Company characterizes as a 
"direct order" was the basis for its decision immediately to 
discharge them. Rivers and Davison contend that non-attendance 
was a pretextual reason given for the discriminatory decision to 
discharge them for their prior successful assertion of their 
right to notice of hearings on an equal basis with white 
employees.

12



SUMMARY OF ARGUMENT
Retaliatory discharge under the particular factual 

circumstances of this case violates the § 1981 right to "enforce 
contracts" on racially neutral grounds.

A. Plaintiffs do not contend that all race-based 
retaliatory discharge violates § 1981's enforcement clause, but 
merely that discriminatory retaliation for enforcing contract 
rights does. What plaintiffs here sought was enforcement of 
rights created by contract, not of rights derived from other 
sources. Patterson eliminates claims of retaliation for 
exercising rights unrelated to the specific § 1981 rights to 
"make and enforce contracts," not claims of discriminatory 
retaliation for the exercise of those two rights.

B. The fact that Roadway's discriminatory retaliation, 
calculated to punish and deter the racially neutral enforcement 
of plaintiffs' contracts, took place after plaintiffs' 
enforcement effort does not remove it from § 198r.'s coverage. 
Discharging an employee for having engaged in protected conduct 
is no less an infringement of that conduct than discharge in 
anticipation of such conduct.

C. Moreover, retaliatory discharge is not immune from suit 
under the enforcement clause simply because it does not also 
violate the right to make contracts. Contract enforcement 
necessarily takes place after the contract is made. Patterson's 
limitation of the right to make contracts to the contract 
formation stage expressly did not restrict the enforcement right

13



ARGUMENT
ROADWAY VIOLATED PLAINTIFFS' § 1981 RIGHT TO 
ENFORCE THEIR CONTRACT FREE FROM RACIAL 
DISCRIMINATION

Roadway's discriminatory punishment of plaintiffs Rivers and 
Davison for attempting to enforce their contracts on an equal 
basis with white employees violates plaintiffs' "right ... to ... 
enforce contracts" under 42 U.S.C. § 1981.6 Plaintiffs' § 1981 
enforcement claims are governed by Goodman v. Lukens Steel. 482 
U.S. 656 (1987), and their viability is unaffected by Patterson 
v. McLean Credit Union. 491 U.S. 164. In Goodman. the Court held 
that allegations that the defendant union discriminatorily 
refused to process black employees' discrimination grievances 
stated a claim of violation of the § 1981 right to enforce 
contracts. Goodman applies to employers as well as unions, and 
prohibits interference with employees' efforts to enforce their 
contract rights against discriminatory infringement.

Goodman's construction of the § 1981 enforcement right 
remains controlling. Indeed, the Court in Patterson explicitly 
reaffirmed Goodman's holding. The Court held that the § 1981 
right to enforce contracts does not cover on-the-job racial

Section 1981 states:
All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every 
kind, and to no other.

14



harassment, 491 U.S. at 180, but emphasized that the enforcement 
right "covers wholly private efforts to ... obstruct nonjudicial 
methods of adjudicating disputes about the force of binding 
obligations." Id. at 177.

Roadway retaliated against Rivers and Davison in precisely 
the way that § 198l's enforcement prong prohibits. Here, as in 
Goodman, plaintiffs used the nonjudicial grievance arbitration 
provided for under their collective bargaining agreement as a 
means to enforce their contract rights.7 The rights they sought 
to enforce were contract rights, and not rights established by 
other sources not addressed by § 1981. They asserted their 
contractual right to properly scheduled hearings with prior 
written notice was violated on racially discriminatory grounds. 
While Roadway gave timely and proper notice to white employees, 
it precipitously convened disciplinary hearings for Rivers and 
Davison in order to mete out swifter and harsher discipline 
.•'gainst them than against white employees. As a result of their 
successful efforts in the grievance proceeding, however, 
plaintiffs were not rewarded with enjoyment of contract rights 
equal to those of white employees, but instead were promptly 
discharged. Because their discharge in retaliation for enforcing 
their contract rights violates § 1981, the decision of the 
district court must be reversed.

A labor-management arbitration panel is indisputably a 
;;nonjudicial method[] of adjudicating disputes about the force of 
binding obligations." Patterson. 491 U.S. at 177.

15



A. Roadway's Retaliation Against Plaintiffs for 
Filing Grievances to Enforce Their Contract 
Rights, as Distinct From Rights Derived From Other 
Sources, Remains Prohibited By Section 1981 Even 
After Patterson

The conduct discriminatorily penalized by Roadway's 
retaliation was plaintiffs' enforcement, through arbitration, of 
their equal contract rights. Courts since Patterson have 
consistently distinguished retaliation claims based on 
infringement of the right to enforce statutory rights, which are 
not actionable, from those based on infringement of the right to 
enforce contract rights, which are. The district court in this 
case overlooked this crucial distinction in dismissing 
plaintiffs' § 1981 enforcement claim.

Several courts of appeals have rejected § 1981 claims 
because they did not allege the kind of retaliation involved 
here. In Carter v. South Central Bell. 912 F.2d 832, 840 (5th 
Cir. 1990), cert, denied. Ill S. Ct. 2916 (1991), the Fifth 
Circuit distinguished claims of retaliation for asserting 
contract rights, which remain actionable under § 1981, from 
claims of retaliation for filing EEOC charges, which the court 
held may be pursued exclusively under Title VII. It was only 
because the plaintiff in Carter "was asserting a right given to 
him by the Civil Rights statutes, not by his employment contract 
with SCB," that his "right to enforce his employment contract was 
not impaired" by his subsequent discharge. In Chambers v. 
Southwestern Bell Telephone Co.. 917 F.2d 5, 7 (5th Cir. 1990), 
petition for cert, filed (May 14, 1991) (No. 90-1776), another

16



Fifth Circuit panel elaborated on Carter to hold that, under 
Patterson. "[u]nlike constructive and discriminatory discharges, 
retaliatory discharge may implicate the right to enforce 
contracts. Retaliation or threats of retaliation calculated to 
deter the legal enforcement of contractual rights falls within 
the express ambit of $ 1981." (emphasis added).

In McKnight v. General Motors Coro.. 908 F.2d 104, 111 (7th 
Cir., 1990), cert, denied 111 S. Ct. 1306 (1991), the Seventh 
Circuit similarly commented that "[r]etaliation or a threat to 
retaliate is a common method of deterrence, and if what is sought 
to be deterred is the enforcement of a contractual right, then, 
we may assume, the retaliation or threat is actionable under 
section 1981 as interpreted in Patterson. provided that the 
retaliation has a racial motive." The plaintiff in McKnight, 
however, alleged that he had been discharged in retaliation for 
having filed statutory race discrimination claims with the 
Wisconsin Civil Rights Commission and the state court. The court 
held that he therefore did not have a § 1981 enforcement claim 
because "General Motors did not interfere with contractual 
entitlements." Id. at 112 (emphasis added). Similarly, in 
Sherman v. Burke Contracting, Inc.. 891 F.2d 1527, 1535 (11th 
Cir. 1990), the Eleventh Circuit held that an employer's 
retaliation against an employee for filing a charge with the EEOC 
under Title VII did not violate the right to enforce contracts

17



because the discrimination was "unrelated to specific contract 
rights."8

Thus, the court in Von Zuckerstien v. Argonne National Lab.. 
citing McKniaht and Sherman. permitted plaintiffs to proceed to 
trial on their § 1981 claims that "defendants specifically- 
retaliated against them for pursuing (or intending to pursue) 
their contract claims in the internal grievance forum." 760 F. 
Supp. 1310, 1318 (N.D. 111. 1991) (emphasis in original).9

Other Circuit court cases affirming dismissals of 
retaliatory discharge claims have not specifically distinguished 
interference with contract enforcement from interference with 
statutory enforcement, but none has dealt with the former type 
claim which plaintiffs here allege. The plaintiff in Williams v. 
First Union Nat11 Bank of N.C.. 920 F.2d 232 (4th Cir. 1990), 
cert, denied. Ill S. Ct. 2259 (1991), asserted that his employer 
subjected him to discriminatory working conditions in retaliation 
for having filed EEOC charges.

The retaliation alleged in Hill v. Goodyear Tire & Rubber. 
Inc.. 918 F.2d 877 (10th Cir. 1990), was in response to 
plaintiff's having "complained to management ... about racial 
slurs and other incidents of racial harassment in an attempt to 
bring about a more harmonious relationship between the bargaining 
unit employees and management." Id. at 880. The Court held that 
"[s]ince plaintiff's advocacy was not protected under section 
1981, his discharge, even if in retaliation for such advocacy, 
was not actionable under section 1981." Id.

In Overbv v. Chevron U.S.A.. Inc.. 884 F.2d 470 (9th Cir. 
1989), the plaintiff alleged that he was discharged in 
retaliation for refusing to consent to a search of his person.
He filed an EEOC charge, which he concedes he then withdrew 
voluntarily. The Court held that the employer had created no 
impediment to Overby's right under § 1981 to enforce his 
contract. Id. at 473.

Other district courts have articulated the same 
standard, stating that § 1981 retaliation claims are subject to 
dismissal only where they are not based on interference with 
efforts to enforce contract rights. In Dash v. Equitable Life 
Assur. Soc. of U.S.. 753 F. Supp. 1062, 1067 (E.E.N.Y. 1990), the 
court dismissed the § 1981 retaliation claims only because 
"plaintiff has not alleged that his discharge impaired his

18



Rivers and Davison, like the plaintiffs in Von Zuckerstein. 
contend that they were retaliated against for enforcing their 
contractual rights. Their claims are distinct from those based 
on efforts to enforce statutory rights against nondiscrimination 
by filing charges with state or federal agencies. Plaintiffs' 
claims are also unlike claims of retaliation for exercising other 
rights, such as First Amendment rights of association or 
expression. Rivers and Davison contend that the abruptly 
convened disciplinary sessions for black employees, carried on 
without the contractually required prior written notice to 
plaintiffs, constituted intentionally discriminatory breaches of 
contract. When plaintiffs were deprived of the contract rights 
to fair disciplinary procedures that white employees enjoyed, 
they sought to enforce their rights through the grievance 
procedures established for that purpose. Such efforts to enforce 
contracts are precisely what § 1981 explicitly does protect.

ability to enforce contractual rights either through this court 
or otherwise." The court emphasized, however, that retaliatory 
discharge claims are actionable where "the discharge is alleged 
to have actually obstructed plaintiff's access to the courts or 
to some other process for the resolution of contract disputes." 
See also. Russell v. District of Columbia. 747 F. Supp. 72 
(D.D.C. 1990) (dismissing retaliation claim because plaintiff 
"did not seek to enforce contractual rights ... rather, he sought 
'to enforce his rights under antidiscrimination laws'") (quoting 
McKniqht. 908 F.2d at 112); Kozam v. Emerson Elec. Co.. 739 F. 
Supp. 307 (N.D. Miss. 1990), aff'd. 928 F.2d 401 (5th Cir. 1991) 
(reading Sherman as "leav[ing] open the possibility of a 
retaliation claim under § 1981 where the EEOC complaint 
[triggering the discharge] involves a specific contractual right, 
as where the contract of employment itself provides that the 
employer will not discriminate on the basis of race," but 
dismissing plaintiff's retaliation claim because "no right 
arising from his contract" was involved).

19



Roadway's retaliation against plaintiffs for seeking racially 
neutral contract enforcement thus falls squarely within § 1981. 
Patterson's restriction of the contracts clause to the two rights 
it explicitly provides —  the right to make contracts, and the 
right to enforce them —  does not affect this aspect of the 
statute's coverage.10

B. Roadway's Discharge of Rivers and Davison
Even After They Prosecuted Their Grievances 
Violates Their Right to Enforce Their 
Contracts

Roadway's discharge of Rivers and Davison violated their 
right to enforce their contracts notwithstanding that it occurred 
after they "successfully" prosecuted their grievance. The 
district court correctly acknowledged that if a plaintiff were 
denied access to a grievance proceeding, he would have been 
deprived of "precisely what is protected under the 'right to ... 
enforce contracts' provision of § 1981," (R. 266: Memorandum
and order, at 4). This description of the enforcement right is, 
however, far too narrow. The court erred in distinguishing an 
employer's refusal to allow presentation of a grievance from its 
post hoc punishment of a plaintiff who has presented one.

In dismissing plaintiffs' retaliatory discharge claims, 
the district court purported to act consistently with prior 
decisions of other district courts. (R. 266: Memorandum and
Order at 4, citing, Danaerfield v. The Mission Press. 1989 U.S.y 
Dist. LEXIS 8985 (N.D. 111. 1989); Hall v. Countv of Cook. 1989 /  
U.S. Dist. LEXIS 9661 (N. D. 111. 1989)). The decisions the 
district court relied on, however, did not involve dismissal of 
retaliation claims based on efforts to secure non-discriminatory 
enforcement of contract rights, and are thus inapposite to this case.

20



Discharging an employee as he walks out of his grievance hearing, 
as opposed to on his way in, is equally effective punishment for 
filing a grievance, and is therefore equally an infringement of 
his right to grieve to enforce his contract.

Retaliation by its nature takes place in response to, and 
therefore after, protected conduct such as the enforcement of 
contract rights. Cases on retaliation prior to Patterson 
authorized claims without regard to the timing of the 
retaliation. See. e.q.. Harris v. Richards Mfg. Co.. 675 F.2d 
811, 812 (6th Cir. 1982); Winston v. Lear Siealer Inc.. 558 F.2d 
1266, 168-70 (6th Cir. 1977). Patterson did not affect this 
aspect of § 1981 doctrine. Courts' repeated acknowledgements, 
even after Patterson, that certain retaliation claims remain 
viable is a clear repudiation of the district court's categorical 
assumption that only preemptive, or anticipatory, obstruction of 
contract enforcement is prohibited by § 1981. See Carter. 912 
F.2d at 840, Chambers. 917 F.2d at 7, Sherman. 891 F.2d at 1535, 
McKniaht. 908 F.2d at 111.

Affirmance of the district court's interpretation of § 1981 
as prohibiting only successful efforts to bar initial access to 
an adjudicative forum would yield unacceptable results. An 
employer adopting a policy of promptly discharging any employee 
who grieved a discriminatory denial of contract rights would 
clearly violate the § 1981 enforcement guarantee. Yet under the 
district court's standard, as long as the employer gives an 
employee a pro fcnna grievance hearing, the employer escapes

21



§ 1981 liability. The right to enforce contracts is not a purely 
formal right to go through the motions of judicial or non­
judicial dispute resolution. If the right is to have meaning in 
protecting employees' equal enforcement of their contracts, 
interference with the enforcement of contracts on racially 
neutral terms must be covered by the statute regardless of how or 
when it is accomplished.

C. Roadway's Retaliatory Discharge Violates 
Plaintiffs' § 1981 Right to Enforce Their 
Contracts Even if Patterson Precludes Discharge 
Claims Based on The Right to Make Contracts

If interference with contract enforcement is carried out by 
means of discharge, it is no less actionable simply because that 
discharge may not also violate the § 1981 right to make 
contracts.11 The Patterson Court's limitation of the scope of

Plaintiffs remain convinced that the § 1981 right to 
make contracts, correctly interpreted, does prohibit 
discriminatory discharge. They acknowledge that a panel of this 
Circuit, consistently with several other federal courts of 
appeals, has ruled that Patterson precludes claims of 
discriminatory discharge based on the § 1981 right to make 
contracts. Prather v. Dayton Power & Light Co.. 918 F.2d 1255, 
1256-58 (6th Cir. 1990), petition for cert, filed. 59 U.S.L.W. 
3687 (U.S. Mar. 26, 1991); Taggart v. Jefferson Ctv. Child 
Support. 935 F.2d 947 (8th Cir. 1991); Gersman v. Group Health 
Assoc.. 931 F.2d 1565 (D.C. Cir. 1991); Trujillo v. Grand 
Junction Regional Center. 928 F.2d 973, 976 (10th Cir. 1991); 
Williams v. First Union National Bank. 920 F.2d 232, 233-34 (4th 
Cir. 1990), cert, denied. Ill S. Ct. 2259 (1991); Tompkins v. 
DeKalb County Hosp. Auth.. 916 F.2d 600, 601 (11th Cir. 1990)
(per curiam); Gonzalez v. Home Ins. Co.. 909 F.2d 716, 722 (2d 
Cir. 1990); McKnight v. General Motors Corp.. 908 F.2d 104, 108- 
09 (7th Cir. 1990), cert, denied. Ill S. Ct. 1306.

There is, however, some suppo-t in the law for the view that 
these cases were wrongly decided. See Prather v. Dayton Power & 
Light Co.. 918 F.2d at 1259 (Boggs, J., dissenting); Hicks v.

22



§ 1981 to discrimination at the contract-formation stage was a 
construction of the right to make contracts, not of the right to 
enforce them. 491 U.S. at 176. The district court's holding 
that "§ 1981 does not apply to discriminatory discharges since a 
discharge is conduct which occurs after the for ion of a
contract," (R. 266: Memorandum and Order at 3), is thus an
erroneous statement of the Supreme Court's holding. The Court 
condemned only "[i]nterpreting § 1981 to cover postformation 
conduct unrelated to an employee's right to enforce her 
contract." 491 U.S. at 165. Contract enforcement necessarily

Brown Group. 902 F.2d 630 (8th Cir. 1990), overruled by Taggart. 
935 F.2d 947; see id. at 949 (McMillian, Lay, Arnold, 
dissenting); McKnight v. General Motors Coro.. 908 F.2d at 117 
(Fairchild, J., dissenting). Plaintiffs therefore hereby 
preserve their claim that their discharge violated their § 1981 
right to make contracts in the event that a majority of the 
judges in this Circuit, the Supreme Court, or Congress ultimately 
agrees with them. This Court sitting en banc has not yet had an 
opportunity to consider this question. The Supreme Court has 
explicitly acknowledged that the question is an open one and was 
not resolved by its decision in Patterson. See L\ ile v.
Household Manufacturing. 110 S. Ct. 1331, 1336 n. j (1990); id. 
at 1338 (O'Connor, concurring). Moreover, Congress last term 
enacted legislation stating that § 1981 prohibits discriminatory 
discharge, Civil Rights Act of 1990, S. Con. Res. 2104, § 12, 
101st Cong., 2d Sess. (1990), and although the President vetoed 
the legislation, he did so on grounds unrelated to Congress' 
interpretation of § 1981, stating that he, too, disagreed with 
the Supreme Court's restriction of § 1981 to discrimination at 
the contract formation stage. Text of Veto Message of President 
Bush, Oct. 22, 1990, at 1. (Attachment A).

If this Court were inclined to determine that plaintiffs' 
retaliatory discharge claim is no longer viable under Patterson. 
it should at least hold the appeal in abeyance until Congress has 
acted on the proposed Civil Rights and Women's Equity in 
Employment Act of 1991, H.R. 1, § 110, 102d Cong., 1st Sess. 
(1991). See Northern Pipeline Construction Co. v Marathon Pipe 
Line Co.. 458 U.S. 50, 88 (1982).

23



occurs after the contract has been formed. Thus, whether or not 
a discriminatory discharge violates the § 1981 right to make 
contracts, using discharge as a means of penalizing employees who 
seek to enforce their contracts is covered by § 1981.

The district court erroneously suggests that Patterson 
eliminated § 1981 enforcement claims where plaintiffs also have 
breach of contract claims. (R. 266: Memorandum and Order at
4) 1̂ /what the Supreme Court held in Patterson is that a 
plaintiff cannot "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." 491 U.S. at 183 (emphasis added). 
Breach of contract thus does not in itself amount to deprivation 
of the right to enforce a contract. Rather, a § 1981 enforcement 
claim depends on precisely the kind of additional facts present 
here: discriminatory adverse action by the employer hindering
the employee's ability to rectify the breach through arbitration. 
The only reason that it is important to be protected in enforcing 
contract rights is that they may be breached. Section 1981 
provides a specific remedy, in addition to those provided by 
contract law, for cases such as this one where an employer

The district court held that "'bootstrapping' of the 
actual breach of contract claim into a claim that plaintiffs were 
deprived of the right to enforce the contract was rejected in 
Patterson." The Supreme Court's reference to "bootstrapping" had 
nothing to do with the enforcement right: the Court rejected as
strained an attempt to convert a challenge to the continuing 
conditions of employment into a claim that the employer refused 
at the outset to make a contract on neutral terms. 491 U.S. at 184.

24



discriminatorily breaches contract rights, and then, in a further
attempt to 
employee's

effectuate its discrimination, interferes with the 
grievance seeking to redress that breach.

25



CONCLUSION
For the foregoing reasons, the decision below should be 

vacated and the case should be remanded to the district court for 
further proceedings and a jury trial on the merits of plaintiffs' 
§ 1981 claim.

Respectfully submitted,

JULIUS L. CHAMBERS 
ERIC SCHNAPPER 
CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013

ELLIS BOAL
925 Ford Building 
Detroit, MI 48226

August 12, 1991

26



CERTIFICATE OF SERVICE

This will certify that I have this date served counsel 
for defendant in this action with true and correct copies of the 
foregoing Brief of Plaintiffs-Appellants by placing said copies 
in the U.S. Mail at New York, New York, First-Class postage 
thereon fully prepaid addressed as follows:

John Landwehr
800 United Savings Building 
Toledo, Ohio 43604-1141

Executed this day of August, 1991 at New York, New
York.



UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 91-3348

JAMES T. HARVIS, JR.,
Plaintiff.

MAURICE RIVERS and 
ROBERT C. DAVISON

Plaintiffs-Appellants.
v.

ROADWAY EXPRESS, INC.
Defendant-Appellee.

APPELLANT'S DESIGNATION 
OF APPENDIX CONTENTS

Appellant, pursuant to Sixth Circuit Rule 11(b), her-acy designates 
the following filings *in the district court's record as items to 
be included in the joint appendix:

DESCRIPTION OF ENTRY DATE RECORD ENTRY NO.
1. Docket Sheet for Action 

No. C 86-7955
12/22/86 N/A

2 . First Amended Complaint 9/28/87 218
3 . Memorandum and Order 1/19/90 266
4 . Notice of Appeal --■1/3T/-6HD 4| 111̂11 N/A
5. Order to Show Cause 7/10/89 257

27



DESCRIPTION OF ENTRY DATE RECORD ENTRY NO.
6. Appendix I of Plaintiff in 8/29/88 192

Opposition to Summary 
Judgment ("Appendix"),
Davison Dep. 7/15/87 .
at 44-45, €-20-,—€52;
7/20/87 at 187-88, 220,
227, 232, 252; 8/20/87 
at 82-83.

7. Appendix I, Rivers Dep.
6/16/87 at 11; 7/14/&Z 
at 297-99, -SaaggSB ,-'"321- 3m 
322, 324, 327, 335, 347, 
353-54, 378-79.

8. Appendix I, Thompson Dep.
7/22/87 at 49-50.

9. Appendix I, Guy Dep.
8/12/87 at 148-49, 151, 
168-69.

10. Appendix I, O'Neill Dep.
8/13/87 at 63, 69, 74.

11. Appendix I, McCord Dep.
9/3/87 at 285-87, 293.

12. Appendix I, Toney Dep.
10/1/6-7 at -19-3-0. i r -

13. Appendix II, Local 20/
Harvis Ex. B-63.

8/29/88 192

8/29/88 192

8/29/88 192

8/29/88 192

8/29/88 192

8/29/88 192

8/29/88 192

28



ATTACHMENT A



TO THE SENATE OF THE UNITED STATES:

I am today returning without ay approval S. 2104, the 
"Civil Rights Act of 1990." I deeply regret havihg to take this 
action with respect to a bill bearing such a titli, especially 
since it contains certain provisions that I strongly endorse.

Discrimination, whether on the basis of race* national 
origin, sex, religion, or disability, is worse than wrong. It 
is a fundamental evil that tears at the fabric of our society, 
and one that all Americans should and must: oppose. That 
requires rigorous enforcement of existing antidiscrimination 
laws, it also requires vigorously promoting new measures such 
as this year's Americans with Disabilities Act, ^ich for the 
first time adequately protects persons with disabilities against 
invidious discrimination.

one step that the Congress can taka to fight discrimination
right nav iS to act promptly on the civil rights bill that I 
transmitted on October 20, 1990. This accomplishes the stated 
purpose of S. 2104 in strengthening our Nation's laws against 
employment discrimination- Indeed, this bill contains several 
important provisions that are similar to provisions in S. 2104:
o Both shift the burden of proof to the employer on the issue

iof "business necessity" in disparate impact'cases.
Both create expanded protections against on-the-job racial 
discrimination by extending 42 U.S.C. 1981 io the 
performance as well as the making of contracts.
Both expand the right to challenge discriminatory seniority 
systems by providing that suit may be brougjit when they 
cause harm to plaintiffs.
Both have provisions creating new monetary remedies for 
the victims of practices such as sexual harassment.
(The Administration bill allows equitable awards up to 
$130,000.00 under m i s  new mor-tary provision, in addition 
-o existing remedies under Title VII.)
Both have provisions ensuring that employees can be held 
liable if invidious discrimination was a motivating factor

in an employment decision.



2

Q Both provide Cor plaintiffs in civil rights cases to
receive expert witness fees under the ssiae standards that 
apply to attorneys fees.

o Both provide that the Federal Government, wWen it is a
defendant under Title VII, will have the sane obligation to

t I
pay interest to compensate for delay in payment as a 
nonpublic party. The filing period in ;*uch 'actions is also 
lengthened,

o Both contain a provision encouraging th3 use of alternative
i

dispute resolution mechanisms.
The congressional majority and I are on common ground regarding 
these important provisions. Disputes about other, controversial 
provisions in S. 2104 should not be allowed to impede the 
enactment of these proposals.

Along with the significant similarities between my 
Administration's bill and s. 2104, however, there are crucial
differences. Despite the use of the term "civil rights" in the

!
title of S. 2104, the bill actually employs a maze of highly 
legalistic language to introduce the destructive force of quotas 
into our Nation's employment system. Primarily through 
provisions governing cases in which employment pfcactices are 
alleged to have unintentionally caused the clj.spreporticnate 
exclusion of members of certain groups, S. 2104 fcreates powerful 
incentives for employers to adopt hiring and promotion quotas. 
These incentives are created by the bill1s new and very 
technical rules of litigation, which will it difficult for
employers to defend legitimate employment practices. In many 
cases, a defense against unfounded allegations will be 
impossible. Among other problems, the plaintiff often need not 
even show that any of the employer's practices caused a 
significant statistical disparity, in other cades, the 
employer's defense is confined to an unduly narrow definition of



3

"business necessity" that is significantly more restrictive than 
that established by the Supreme Court in Griggs ind in two 
decades of subsequent decisions. Thus, unable t4 defend 
legitimate practices in court, employers will be I driven to adopt 
quotas in order to avoid liability.

proponents of S. 2104 assert that it is needed to overturn 
the supreme Court's wards Cove decision and restore the law that 
had existed since the Griggs case in 1971. S. 2io4, however, 
does not in fact codify Griggs or the Court's subsequent 
decisions prior to Wards Cove. Instead, S. 2104 engages in a 
sweeping rewrite of two decades of Supreme Court jurisprudence, 
using language that appears in no decision cf the Court and that 
is contrary to principles acknowledged even by Justice Stevens' 
dissent in Wards Cove; "The opinion in Griggs made it clear 
that a neutral practice that operates to eweludaiminorities is 
nevertheless lawful if it serves a valid buaines^ purpose.”

I am aware of the dispute among lawyers aboit the proper 
interpretation of certain critical language used in this portion 
of S. 2104. The very fact of this dispute suggests that the 
bill is not codifying the law developed by the Supreme Court in 
Griggs and subsequent cases. This debate, moreover, is a sure 
sign that £. 2104 will lead to years -- perhaps decades —  of 
uncertainty and expensive litigation. It is neither fair nor 
sensible to give the employers of our country a difficult choice 
between using quotas and seeking a clarification of the law 
through costly and very risky litigation.

£. 2104 contains several other unacceptable: provisions 
as well. One section unfairly closes the court*’, in many 
instances, to individuals victimized by agreements, to which 
they were not a party, involving the use of guotias. Another 
section radically alters the remedial provision^ in Title VII of 
the Civil Rights Act of 1964, replacing measured designed to 
foster conciliation and settlement with a naw sclheme modeled ou 
a tort system widely acknowledged to be in a st^te of crisis.

I



Th* bill also contains « number of provisions that will craate 
unnecessary and inappropriate incentives for litigation. These 
include unfair retroactivity rules; attorneys fee provisions 
that will discourage settlements; unreasonable new statutes of 
limitation; and a -rule of construction" that will make it 
extremely difficult to know how courts ean be expected to apply 
the lav. in order to assisrtj the Congress regarding legislation 
in this area, I enclose herewith a memorandum from the Attorney 
General explaining in detail, the defects that make S. 2104 
unacceptable.

Our goal and our promise has been equal opportunity and 

equal protection under the Law. That i s  a bedrock p rin cip le  

from which we cannot m treaL  The temptation to  support a 

b i l l  -  any b i l l  -  simply because i t s  t i t l e  includes the words 

" c iv il  rights" i s  very strbLg. This impulse i s  not e n tire ly  

bad. Presumptions have tetj often run the other way, and our 

Nation's h istory  on ra c ia l questions cautions against 

complacency. But when our e ffo r ts , however w ell in ten tions* , 

r esu lt  in quotas, equal opportunity i s  not advanced but 

thwarted. The very commitment to  ju s t ic e  and equality  that is  

offered as the reason why |h i s  h i l l  should be signed requires me

to  veto i t .
Again, I urge the comjress to act on my legislation b*f< 

adjournment. In order truly to enhance equal opportunity, 
however, the Congress must also take action in several related 
areas. The elimination ofl employment discrimination is a vital 
element in achieving the American dream, but it is not enough- 
The absence of discrimination will have little concrete meaning

and the members of all groups have the 
id to qualify for those jobs. Nor can

unless jobs are availab le  

s k i l l s  and education need*

the future if they grow 
hopelessness•

we expect th at our young people w il l  work hard to  prepara for
in a climate of violence, drugs, and



In order to address these problems, attention 
to  measures that promote accountability and parentu 
the schools; that strengthen the fight against, vioL 
and drug dealers in our inner cities; and that; hel;? 
poverty and inadequate housing. We need initiative 
empower individual Americans and enable them to re 
of their lives, thus helping to make our country's 
opportunity a reality for all. Enactment of *uch 
along with my Administration's civil rights bill, 
real advances for the cause of equal opportunity.

must be given 
.1 choice in 
ent criminals 
to combat 

:s that will 
ijslaim control 
promise of 
initiatives, 
will achieve

the white h o u s e,
October 22, 1990.