Sanders v. Dobbs Houses, Inc.

431 F.2d 1097, 2 Fair Empl. Prac. Cas. (BNA) 942, 1970 U.S. App. LEXIS 7522, 3 Empl. Prac. Dec. (CCH) 8019
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 28, 1970
DocketNo. 29029
StatusPublished
Cited by111 cases

This text of 431 F.2d 1097 (Sanders v. Dobbs Houses, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 2 Fair Empl. Prac. Cas. (BNA) 942, 1970 U.S. App. LEXIS 7522, 3 Empl. Prac. Dec. (CCH) 8019 (5th Cir. 1970).

Opinions

CLARK, Circuit Judge:

In 1968, the Supreme Court resurrected § 1 of the Civil Rights Act of 1866 [now 42 U.S.C.A. §§ 1981 and 1982 (1970)] and held the portion of the original act which now appears as 42 U. S.C.A. § 1982 barred racial discrimination by private individuals in the sale or rental of property.1 The quickening of this statutory Lazarus necessarily revived the congressional prohibition against purely private racial discrimination in contracts of employment. This prohibition against private discriminatory practices, now codified as 42 U.S.C.A. § 1981, had laid dormant in a tomb of disuse for over a century. Because the district court failed to accord § 1981 its new viability, which permits the maintenance of actions arising out of purely private relationships, we reverse.

Plaintiff, Mrs. Fannie M. Sanders, was discharged by her employer Dobbs Houses, Inc. (Dobbs), the defendant, for stealing food. On March 5, 1968, she formally complained to the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII of the Civil Rights Act of 1964,2 that the charges against her had been false and that she was discharged solely because she was a Negro. On May 12, 1969, the EEOC notified plaintiff that it had been unable to obtain voluntary conciliation and advised her that she had thirty days to commence a civil action. Forty-six days later she instituted this action for an injunction, back pay and an offer of reinstatement under Title VII. Dobbs moved the court to dismiss the complaint for failure to meet the thirty-day statute of limitations.3 Plaintiff thereupon moved the court for leave to amend her complaint to state jurisdiction under 42 U.S.C.A. § 1981 and to allege that white employers in Georgia had the custom and practice of firing Negro employees after falsely accusing them of theft. The trial judge allowed the amendment, subject to objection, but dismissed the amended complaint on the grounds that the statute of limitations barred the Title VII action and the § 1981 claim could not be maintained against a private employer in the absence of some element of State action.

Our finding 'that the complaint stated a claim on which relief could be granted may be most succinctly expounded by answering three well-defined, dispositive questions:

1. Can a plaintiff state a claim against a private employer under 42 U. S.C.A. § 1981?

2. Do the specific remedies fashioned by Congress in Title VII of the Civil Rights Act of 1964 preempt the general

[1099]*1099remedial language of 42 U.S.C.A. § 1981?

3. Are damages recoverable under 42 U.S.C.A. § 1981?

I. RIGHTS AGAINST A PRIVATE EMPLOYER UNDER 1981.

In Waters v. Wisconsin Steel Works, etc., 427 F.2d 476 (7th Cir. April 28, 1970), the Seventh Circuit recently held that § 1981 4 prohibits “private racial discrimination in employment by companies and unions.” Such a conclusion was clearly forecast by the Supreme Court’s opinion in Jones v. Alfred Meyer Co., supra, n. 1. In Jones the Court held that 42 U.S.C.A. § 1982 5 prohibited “all racial discrimination, private as well as public, in the sale or rental of property. * * * ” The Seventh Circuit reasoned that since § 1981 and § 1982 are both derived from § 1 of the Civil Rights Act of 1866,6 they must be construed consistently and that since § 1982 is enforceable against private en-tifies, § 1981 is similarly enforceable. We agree.

The contentions of Dobbs to the contrary are without merit. First, it argues that problems arising out of the Civil Rights Act have been associated with the Fourteenth Amendment of the Constitution of the United States,7 which would demand State action as a prerequisite to jurisdiction. This argument ^as devitalized in Jones where the Court stated:

“It is quite true that some members of Congress supported the Fourteenth Amendment ‘in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States.’ Hurd v. Hodge, 334 U.S. 24, 32-33, 68 S.Ct. 847, 852, 92 L.Ed. 1187. But it certainly does not follow that the adoption of the Fourteenth Amendment or the subsequent re-adoption of the Civil Rights Act were meant somehow to limit its application to state action.” 392 U.S. at 436, 88 S.Ct. at 2201.

[1100]*1100The second contention of Dobbs — that Jones is distinguishable since it was foreshadowed by a long line of cases forbidding racial discrimination in the sale of real property — -is equally without merit. The defendants in Waters made the same unfounded contention, provoking the following judicial reply: “If, by foreshadowing, the defendants mean that the State action concept has sometimes been employed in a flexible fashion to achieve just results, the cases upon which they rely foreshadow the demise of the requirement of State action under § 1981 as well. Furthermore, it is mistaken to suggest that courts have not used similar means to circumvent the requirement of State action in the area of employment contracts: See Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 198-199, 65 S.Ct. 226, 89 L.Ed. 173 (1944).” 427 F.2d at 483. We would only note further that defendant’s concern that this decision is unprecedented is much too myopic. The result in this case is both predicted and required by Jones.

II. PREEMPTION: REPEAL BY IMPLICATION.

Dobbs vigorously contends that Title VII of the Civil Rights Act of 1964 preempted the general remedial language of 42 U.S.C.A. § 1981, so that a cause of action can no longer exist thereunder. Since there is no language in Title VII that can remotely be construed as directly repealing § 1981, the only means of repeal through preemption would be by implication. Repeals by implication, however, are not favored and “the intention of the legislature must be clear and manifest * * * ” Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). See, e.g. Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963).

In Waters the Seventh Circuit was faced with the same contention and held that “a right to sue under § 1981 for ‘private’ racial- discrimination in employment existed prior to 1964. By enacting Title VII of the 1964 Civil Rights Act, Congress did not repeal this right to sue.” 427 F.2d at 481. This interpretation also finds support by analogy in Jones where the Court ruled that Title VIII of the Civil Rights Act of 1968 did not repeal § 1982 by implication. Moreover, in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 405, 24 L.Ed.2d 386, 393 (1970), the Court stated:

“We noted in Jones v. Alfred H. Mayer Co., that the Fair Housing Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U.S., at 413-417, 88 S.Ct. at 2189-2192.

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Bluebook (online)
431 F.2d 1097, 2 Fair Empl. Prac. Cas. (BNA) 942, 1970 U.S. App. LEXIS 7522, 3 Empl. Prac. Dec. (CCH) 8019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-dobbs-houses-inc-ca5-1970.