St. Mary's Law Journal


Jeffrey A. Lacy


In Patterson v. McLean Credit Union, the United States Supreme Court held 42 U.S.C. § 1981 does not provide a remedy for racial harassment during employment. In 1976, in Runyon v. McCrary, the Court expanded the scope of § 1981 to cover private discrimination in contractual settings, including racial discrimination in private schools, when previously unavailable. More than a decade after the Runyon decision, the Supreme Court in Patterson, established that there were limits to § 1981’s applicability in private racial discrimination claims. Specifically, the Court held while § 1981 prohibits discriminatory conduct while entering into or enforcing a contract, it does not extend to incidents of racial harassment occurring after the contract is formed. By distinguishing between pre-contractual and post-contractual discriminatory conduct, the Court practically eliminates a recognized cause of action for on-the-job discrimination. Although Patterson establishes a clear and concise rule for managing racial harassment claims, the Court’s approach to § 1981 unduly restricts an employee’s right to redress discriminatory conduct during employment. The Court’s narrow interpretation of § 1981 has created a simple but inadequate framework for dealing with discriminatory conduct in employment. Perhaps more importantly, the Patterson holding significantly reduces the relief available to victims of discrimination during employment. The Court’s willingness to simply refer employment discrimination problems to Title VII ignores the fact that Title VII coverage does not extend to a substantial number of employees and does not contain many of the remedies available under § 1981. Until a more realistic approach to the complex issue of racial discrimination during employment is developed, the Supreme Court’s restrictive interpretation of § 1981 will make racial harassment cases much easier to decide, but to the detriment of employees.


St. Mary's University School of Law