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

A black female alleged racial discrimination in violation of section 1981 in that she was treated differently from white employees and not promoted, on the basis of race. The Court held that section 1981 was not available to address this problem since the case did not involve the making of a contract, but rather its performance.

Kennedy, J.

Patterson, a black female, worked for the McLean Credit Union (MCU) as a teller and file coordinator for 10 years. She alleges that when she first interviewed for her job, the supervisor, who later became the president of MCU, told her that she would be working with all white women and that they probably would not like working with her because she was black. According to Patterson, in the subsequent years, it was her supervisor who proved to have the problem with her working at the credit union.

Patterson alleges that she was subjected to a pattern of discrimination at MCU which included her supervisor repeatedly staring at her for minutes at a time while she performed her work and not doing so to white employees; not promoting her or giving her the usually perfunctory raises which other employees routinely received; not arranging to have her work reassigned to others when she went on vacation, as was routinely done with other employees, but rather, allowing Patterson's work to accumulate during her absence; assigning her menial, non-clerical tasks such as sweeping and dusting, while such tasks were not assigned to other similarly situated employees; being openly critical of Patterson's work in staff meetings, and that of one other black employee, while white employees were told of their shortcomings privately; telling Patterson that it was known that "blacks are known to work slower than whites, by nature" or, saying in one instance, "some animals [are] faster than other animals"; repeatedly suggesting that a white would be able to perform Patterson's job better than she could; unequal work assignments between Patterson and other similarly situated white employees, with Patterson receiving more work than others; having her work scrutinized more closely and criticized more severely than white employees; despite her desire to "move up and advance," being offered no training for higher jobs during her 10 years at the credit union, while white employees were offered training, including those at the same level, but with less seniority (such employees were later promoted); not being informed of job openings, nor interviewed for them, while less senior whites were informed of the positions and hired; and when another manager recommended to Patterson's supervisor a different black to fill a position as a data processor, the supervisor said that he did not "need any more problems around here," and would "search for additional people who are not black."

When Patterson complained about her workload, she was given no help, and in fact was given more work and told she always had the option of quitting. Patterson was laid off after 10 years with MCU. She brought suit under 42 U.S.C. section 1981, alleging harassment, failure to promote and discharge because of her race. None of the racially harassing conduct which McLean engaged in involved the section 1981 prohibition against refusing to make a contract with Patterson or impairing Patterson's ability to enforce her existing contract rights with McLean. It is clear that Patterson is attacking conditions of employment which came into existence after she formed the contract to work for McLean. Since section 1981 only prohibits the interference with the making or enforcement of contracts because of race, performance of the contract is not actionable under section 1981. Section 1981's language is specifically limited to making and enforcing contracts. To permit race discrimination cases involving post-formation actions would also undermine the detailed and well-crafted procedures for conciliation and resolution of Title VII claims.

While section 1981 has no administrative procedure for review or conciliation of claims, Title VII has an elaborate system which is designed to investigate claims and work toward resolution of them by conciliation rather than litigation. This includes Title VII's limiting recovery to backpay, while section 1981 permits plenary compensatory and punitive damages in appropriate cases. Neither party would be likely to conciliate if there is the possibility of the employee recovering the greater damages permitted by section 1981. There is some overlap between Title VII and section 1981, and when conduct is covered by both, the detailed procedures of Title VII are rendered a dead letter, as the plaintiff is free to pursue a claim by bringing suit under section 1981 without resort to those statutory prerequisites. Regarding Patterson's failure to promote claim, this is somewhat different. Whether a racially discriminatory failure to promote claim is cognizable under section 1981 depends upon whether the nature of the change in positions is such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer's refusal to enter the new contract is actionable under section 1981. AFFIRMED in part, VACATED in part, and REMANDED.

1. Do you think justice was served in this case? Explain. Why do you think Patterson waited so long to sue?

2. If you had been the manager when Patterson was initially interviewed, would you have made the statement about whites not accepting her? Why or why not?

3. When looking at the list of actions Patterson alleged McLean engaged in, do any seem appropriate? Why do you think it was done or permitted?