Patterson v. McLean Credit Union/Concurrence Stevens

Justice STEVENS, 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, 96 S.Ct. 2586, 2604, 49 L.Ed.2d 415 (1976) (concurring opinion) (quoting B. Cardozo, The Nature of the Judicial Process 149 (1921)). The Court had already construed the statutory reference to the right "to make and enforce contracts" 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 persuaded, however, that the meaning that had already been given to "the same right . . . 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 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 interviewer-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, uncomfortable surroundings, whereas the white employee would be given a well-furnished, two-window office-the discrimination would be covered by the statute. In such a case, the Court would find discrimination in the making of the contract because the disparity surfaced before the contract was made. See ante, at 176-177, 179, 180, 184. Under the Court's understanding of the statute, the black applicant might recover on one of two theories: She might demonstrate that the employer 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 177. 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 employees until after the contract of employment is first conceived 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 beings. 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 relationship-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, it has imposed a contractual term on them that is not the "same" as the contractual provisions that are "enjoyed by white citizens." Moreover, whether employed at will or for a fixed term, employees typically strive to achieve a more rewarding relationship with their employers. By requiring black employees to work in a hostile environment, the employer has denied them the same opportunity 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 discrimination 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, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), we built further on the foundation laid in Runyon. We decided that a union's "toleration and tacit encouragement of racial harassment" violates § 1981. 482 U.S., at 665, 107 S.Ct., at 2623. Although 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 177-178, 183, 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 particular language in the statute. 482 U.S., at 664-669, 107 S.Ct., at 2622-2625.

The Court's repeated emphasis on the literal language of § 1981 might be appropriate if it were building a new foundation, but it is not a satisfactory method of adding to the existing 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 II-B and II-C of Justice BRENNAN's opinion, I respectfully dissent from the conclusion reached in Part III of the Court's opinion. I also agree with Justice BRENNAN's discussion of the promotion claim.