Section 1981 Promotion Claims after Patterson v. McLean Credit Union
![handle is hein.journals/uclr57 and id is 907 raw text is: Section 1981 Promotion Claims After
Patterson v McLean Credit Union
Marc J. Fagelt
INTRODUCTION
Section 1981 mandates that [a]ll persons within the jurisdic-
tion of the United States shall have the same right in every State
and Territory to make and enforce contracts ... as is enjoyed by
white citizens.1 For the past two decades, plaintiffs have relied
successfully on the statute in suits alleging racial discrimination
within an employment relationship, including post-formation
claims such as racial harassment and racially-motivated denial of
promotion. In 1989, however, by a vote of 5-4, the Supreme Court
rejected this expansive reading of § 1981. Patterson v McLean
Credit Union2 strictly limited the application of § 1981 to infringe-
ments of the right to make and enforce contracts, holding that
those protected rights did not include post-formation conduct like
racial harassment.
Patterson was one of the most controversial decisions of the
1988 term, and legislation presently pending before Congress
would restore § 1981 to its pre-Patterson scope. Though eventual
amendment of § 1981 seems likely, lower courts must contend in
the interim with Patterson's somewhat vague guidance. The Court
did not explicitly define what the right to make or enforce a con-
tract includes. The Court did, however, briefly explore one com-
mon type of post-formation conduct: the discriminatory denial
t A.B. 1988, Princeton University; J.D. Candidate 1991, The University of Chicago.
1 42 USC § 1981 (1982).
2 109 S Ct 2363 (1989).
3 Specifically, the legislation would amend § 1981 to include the following For pur-
poses of this section, the right to 'make and enforce contracts' shall include the making,
performance, modification and termination of contracts, and the enjoyment of all benefits,
privileges, terms and conditions of the contractual relationship. Civil Rights Act of 1990,
HR 4000/S 2104, 101st Cong, 2d Sess (Feb 7, 1990). Passage of the bill may be complicated
by the inclusion of several controversial amendments to Title VII; conservative legislators in
both houses have responded by drafting legislation which would amend only § 1981. See
Civil Rights Protections Act of 1990, HR 4081/S 2166, 101st Cong, 2d Sess (Feb 22, 1990).](ViewImageLocal?handle=hein.journals/uclr57&div=38&collection=&method=preview&ext=.png&size=3)
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Section 1981 Promotion Claims after Patterson v. McLean Credit Union
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