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Volume 4 Number 4 NAACP LDF RELEASES REPORT ON THE IMPACT OF THE SUPREME COURT'S JUNE 1989 PATTERSON DECISION
One much discussed issue about the Court's fair employment decisions is whether they are technical in nature or will have an important impact on peoples' lives. A report by the NAACP Legal Defense and Educational Fund provides an assessment of the early impact in the lower federal courts of the Supreme Court's June 15, 1989 decision in Patterson v. McLean Credit Union. The report states that "between June 15, 1989 and Novem ber 1, 1989, at least 96 section 1981 claims were dismissed because of Patterson."
Background
The Supreme Court ruled 5-4 in Patterson that an 1866 civil rights law (sec. 1981 of the U.S. Code, Title 42) does not cover racial harassment. In so doing the Court stated that the 1866 law prohibits racial discrimina tion in the hiring actions of a private employer and may cover some promotion actions, but does not prohibit discriminatory treatment of employees.
"By its plain terms, the relevant provision in sec. 1981 protects two rights: 'the same right ... to make ... a contract' 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 ... [It does not extend to] breach of the terms of the contract or imposition of discriminatory working condi tions ... The second of these guarantees .... embraces 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 ... The right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee's ability to enforce through legal processes his or her established contract rights."
On the question whether a promotion claim is actionable under Sec. 1981 the Court stated: "only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under sec. 1981".
The findings of the NAACP LDF report include:
Between June 15, 1989 and November 1, 1989, at least 96 race discrimination claims have been dismissed by federal judges because of Patterson. These dismissal orders were entered in a total of 50 different cases.
The largest group of claims concerns allegations that a plaintiff was fired because of his or her race (31), 22 racial harassment claims have been dismissed, 16 claims alleging that promotions or transfers were denied on account of race, 8 retaliation claims, and six demotion claims.
Among the section 1981 claims dismissed under Patterson have been allegations of "ra cial" discrimination against Hispanic, native Hawaiian, Chinese, Filipino, Cuban, and Jewish plaintiffs.
  
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