APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-2168)
Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
This is an appeal from several orders of the district court entered in a class action suit brought by five employees of the Vertol Division of the Boeing Company (Boeing Vertol). The plaintiffs (the individual and class plaintiffs are hereinafter referred to as "the employees") alleged racial discrimination in employment, in violation of title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and of the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1985. The employees assert that this court has jurisdiction under 28 U.S.C. § 1291 (1976). Boeing Vertol has moved to dismiss portions of the appeal for lack of subject matter jurisdiction.
Boeing Vertol is a major government contractor located in Ridley Township, Delaware County, Pennsylvania. It is engaged in the manufacture of helicopters, and nearly all of its production is purchased by the United States Department of Defense. Five Boeing Vertol employees, Mamie Croker, Eric Travis, Leolin Dockins, Chivis Davis, and Robert DeBose, brought an action individually and on behalf of a class of black employees of and applicants for employment at Boeing Vertol. They alleged that Boeing Vertol and Local 1069 (the Union) had discriminated on the basis of race in all phases of employment. Under rule 23(b)(2) of the Federal Rules of Civil Procedure, the district court certified a class action. The class was later modified to consist of:
Under Title VII, all Negro persons who had applications pending for employment with Boeing Vertol on or after March 23, 1968, or who have been employed by Boeing Vertol at any time between March 23, 1968 and June 30, 1975, the date on which trial of this action commenced;
Under 42 U.S.C. §§ 1981, 1985, all Negro persons who had applications pending for employment with Boeing Vertol on or after September 2, 1965, or who had been employed by Boeing Vertol at any time between September 2, 1965 and June 30, 1975, the date on which trial of this action commenced.
Croker v. Boeing Co. (Vertol Division), 437 F. Supp. 1138, 1198 (E.D.Pa.1977).
The district court bifurcated the case, and a nonjury trial on the liability issues began in 1975. Shortly after trial began, the Union and the employees reached a settlement. The employees and Boeing Vertol proceeded to trial, presenting both extensive statistical evidence and supporting individual testimony.
In June 1977, the district court found in favor of Boeing Vertol and against the class and certain individual employees on all issues of liability, but in favor of Croker, Dockins, Davis, Travis, and two class member witnesses, Donald Ferrel and Horace Dixon, on portions of their claims of racial discrimination in employment.*fn1 See id. Specifically, the court found that Croker, Dockins, Davis, and Ferrell were discriminatorily denied promotions, that Dixon was discriminatorily denied a request for transfer, that Croker and Travis were subject to discriminatory harassment, and that Travis was also subject to discriminatory discipline and retaliation.
Trial on the issue of damages for the six employees was held in November 1977. In that same month, the district court, while reserving the issue as to the amount, awarded attorney's fees and costs to then-prevailing plaintiffs Croker, Travis, Davis, and Dockins, and awarded costs to Boeing Vertol against the class and DeBose. See Croker v. Boeing Co. (Vertol Division), 444 F. Supp. 890 (E.D.Pa.1977). In October 1979, the district court issued an opinion and order on the damages portion of the action. See Croker v. Boeing Co., 23 FEP Cases 1783 (E.D.Pa. Oct. 12, 1979). The court held, relying on an opinion handed down by this court after the liability phase of trial had been completed, see Dickerson v. United States Steel Corp., 582 F.2d 827 (3d Cir. 1978), that Ferrell and Dixon were not entitled to individual relief because they were not named plaintiffs, but were class-member witnesses whose class-wide claims had been unsuccessful. See id. at 834. The court also found that Dockins was not entitled to damages because the discriminatory acts on which liability to him was predicated occurred in a period barred by the applicable statute of limitations. Croker, Travis, and Davis were awarded damages: Croker and Travis were awarded $15,050 and $3,550 respectively for section 1981 and title VII violations; Davis was awarded title VII backpay in the amount of $891.13 plus interest.
In March 1980, the district court fixed the amount of attorney's fees to be awarded to Croker, Travis, and Davis, whose right to fees had been previously determined. The employees then filed this appeal from the June 1977, November 1977, October 1979, and March 1980 orders.
On appeal, the employees contend that the district court erred in (1) requiring the employees to prove purposeful discrimination under 42 U.S.C. § 1981; (2) ruling that title VII liability commenced in March 1968 rather than July 1965; (3) applying an incorrect standard of proof to the employees' title VII claims; (4) failing to find Boeing Vertol liable for discrimination against the class of black employees in (a) initial placement, (b) promotions to supervisory and leadman positions, and (c) discipline and harassment; (5) failing to find Boeing Vertol liable for discrimination against certain individual black employees in promotions to supervisory and leadman positions; and (6) holding that Boeing Vertol was entitled to costs against the class of black employees and individual plaintiff DeBose. Boeing Vertol filed a cross appeal, but in its brief it presented no issues for review on its cross appeal. Instead, it responded only to those issues raised by the employees. Boeing Vertol has also moved to dismiss the employees' appeal as to the 1977 and 1979 orders on the ground that the employees did not file a timely notice of appeal from those orders.
II. APPELLATE JURISDICTION
We must first address Boeing Vertol's motion to dismiss portions of this appeal for lack of subject matter jurisdiction.*fn2 Boeing Vertol contends that the employees' notice of appeal was timely only as to the March 1980 order, and it therefore seeks dismissal of all portions of the appeal not concerning that order.
In the October 1979 order, the district court entered judgment against Boeing Vertol in favor of Croker, Travis, and Davis and in favor of Boeing Vertol against Dockins, Dixon, and Ferrell. Because the district court had determined entitlement to attorney's fees in its November 1977 order, the only issue that was unresolved after entry of the October 1979 order was the amount of such fees to be awarded. In its March 12, 1980 order, the district court set the amount of attorney's fees. Thereafter, on April 8, 1980, the employees filed their notice of appeal from all four orders (June 1977, November 1977, October 1979, March 1980).
Boeing Vertol contends that the employees were required to appeal the 1977 and 1979 orders within thirty days of the October 1979 order, which Boeing Vertol contends was the final judgment as to the matter to be decided. See 28 U.S.C. § 1291; Fed. R. App. P. 4(a) (appeal shall be filed within 30 days from entry of judgment). The employees respond that the judgment was not final until the amount of attorney's fees was set, and that their notice of appeal, filed within thirty days of the March 1980 order, was therefore timely as to all the orders.
Thus, the issue raised by Boeing Vertol's motion to dismiss is whether an order is final for purposes of appeal when a district court has decided all issues in a case, including entitlement to civil rights attorney's fees, except the amount of attorney's fees. An answer to this question is important because our prior panel opinions provide conflicting guidance. Compare, e.g., Paeco, Inc. v. Applied Moldings, Inc., 562 F.2d 870, 879 (3d Cir. 1977) (in patent case, order nonfinal that does not decide liability and damages for antitrust violations and amount of attorney's fees), and Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (in employment discrimination case, order nonfinal that left unresolved issue of attorney's fees), with DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1138-39 n.3 (3d Cir. 1980) (in patent case, order disposing of merits final if it has determined entitlement to, but not amount of, attorney's fees), and Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3d Cir.) (reservation of determination of amount of mandatory attorney's fees recoverable under 15 U.S.C. § 15 does not affect finality of judgment), cert. denied, 429 U.S. 825, 97 S. Ct. 78, 50 L. Ed. 2d 87 (1976).
Boeing Vertol suggests that the setting of attorney's fees is the equivalent of the taxing of costs under rule 58 of the Federal Rules of Civil Procedure. Because rule 58 provides that "(entry) of the judgment shall not be delayed for the taxing of costs," Boeing Vertol contends that the October 1979 order was a final judgment.
We recognize that both the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, and title VII, id. § 2000e-5(k), in granting the right to seek attorney's fees, direct that "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988; id. § 2000e-5(k).*fn3
Some circuits have concluded from the statutory language that "Congress directed that attorney's fees under section 1988 be treated as costs" within the meaning of the Federal Rules of Civil Procedure. See Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir. 1980) (motion for attorney's fees unlike motion to alter or amend judgment and thus need not be filed within ten days of entry of judgment under rule 59(e)); accord, Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981) (per curiam); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980). Other circuits, however, have concluded that when Congress referred to attorney's fees as "costs," it did not mean "to include those fees within the specific type of costs recoverable after judgment under (the Federal Rules)." See White v. New Hampshire Department of Employment Security, 629 F.2d 697, 702 (1st Cir. 1980), cert. granted, 451 U.S. 982, 101 S. Ct. 2313, 68 L. Ed. 2d 839 (1981); accord, Obin v. District No. 9, International Association of Machinists, at 580 (8th Cir. 1981) ("differences between attorney's fees and the items routinely assessed as costs after entry of judgment on the merits make it unlikely that Congress intended that fees be treated as costs for purposes of Rule 54(d)"); Gurule v. Wilson, 635 F.2d 782, 787 (10th Cir. 1980). These courts have also recognized that the Supreme Court's identification of section 1988 fees as "costs" in Hutto v. Finney, 437 U.S. 678, 695, 98 S. Ct. 2565, 2576, 57 L. Ed. 2d 522 (1978), which was made in the course of evaluating an eleventh amendment bar to award of such fees against the states, "hardly seems dispositive of the question whether section 1988 attorney's fees fall within the specific types of taxable costs contemplated by Fed.R.Civ.P. 54(d) and 58." See White, 639 F.2d at 703; accord, Obin, at 580.
We agree that the denomination of attorney's fees as "costs" in the relevant attorney's fees statutes was not intended to equate the often time-consuming process of setting fees with the routine award of other costs contemplated by the Federal Rules of Civil Procedure. Under the Federal Rules, costs are allowed as a matter of course to the prevailing party and are routinely taxed by the clerk of the court. See Fed.R.Civ.P. 54. The kind of attorney's fees involved in this case, on the other hand, are awarded in the discretion of the district court and involve numerous considerations. As the United States Court of Appeals for the First Circuit has said:
Appeals often ensue-leading to the prospect of separate fees appeals if final judgment rules are disregarded-as the sizeable sums involved may impose a very substantial and bitterly disputed liability upon the losing party. Hence while such fees, like routine costs, are, to be sure, somewhat ancillary to the main dispute, they are fully capable of engendering a major controverted claim which will require careful factual and legal analysis by the court. The considerations making it feasible to treat routine costs as an exception to final judgment rules-the ease of their computation and the fact that they almost never give rise to dispute or appeal-plainly do not apply to section 1988 attorney's fees.
White, 629 F.2d at 702-03 (emphasis added). We concur that costs and fees cannot necessarily be equated for purposes of determining whether a judgment is a final order.
Boeing Vertol also contends that once the question of entitlement to attorney's fees was determined, the exact amount of attorney's fees was a collateral issue that did not affect the finality of the district court's October 1979 order. We recognize that DeLong and Baughman suggest such a rule, see DeLong, 622 F.2d at 1138-39 n.3; Baughman, 530 F.2d at 531 n.2, but we decline to adopt Boeing Vertol's position.
A final order "terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." St. Louis Iron Mountain & Southern Railway v. South Express Co., 108 U.S. 24, 28-29, 2 S. Ct. 6, 27 L. Ed. 638 (1883). Boeing Vertol contends that the litigation on the merits between it and the employees was effectively terminated as of the October 1979 order. We believe, however, that a judgment in a case such as this may not be considered final for purposes of appeal until a district court has determined the extent of liability for any attorney's fees to be awarded. In Richerson v. Jones, also an employment discrimination case, we rejected the contention that the award of attorney's fees is collateral to the merits of a litigation. See Richerson, 551 F.2d at 921-22. But see, e.g., Obin, at 582 ("motion for attorney's fees raises a collateral and independent claim, not an application for costs under Rule 54(d) or a matter integral to the merits of the action"). We noted in Richerson that in Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976), the Supreme Court found an order nonappealable when it failed to dispose of certain of the plaintiffs' requests for relief, including injunctive relief, damages, and attorney's fees. See id. at 742, 96 S. Ct. at 1205. We therefore held in Richerson that an order leaving "the issue of attorney's fees unresolved, did not terminate the litigation between (the parties) and thus, was not a final order." See Richerson, 551 F.2d at 922.
We believe that the Richerson rule applies not only when the question of liability for attorney's fees is unresolved but also when the possible extent of such liability remains undetermined. See, e.g., Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976). But see, e.g., Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131, 133 (6th Cir. 1980). This holding is not inconsistent with Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S. Ct. 745, 62 L. Ed. 2d 676 (1980). In that case, the Supreme Court found that a judgment awarding a fixed recovery was final and appealable even though the district court had not fixed the amount of attorney's fees to be assessed. The district court had, however, established the extent of liability to the class; attorney's fees were to be awarded from the unclaimed portion of a fixed judgment fund. Therefore, the district court's "judgment terminated the litigation between Boeing and the class concerning the extent of Boeing's liability." Id. at 479-81 n.5, 100 S. Ct. 751. In this case, on the other hand, although the court had determined as of the October 1979 order that Boeing Vertol would be liable for attorney's fees, the extent of that liability remained unresolved.
Until the amount of attorney's fees is set, or a fund from which they are to be awarded is established, litigation over the extent of parties' liabilities has not been terminated. In a case such as this, "(t)he ultimate award of fees is, in our view, clearly a part of the overall relief sought and granted." See White at 704. To the extent that DeLong or Baughman are inconsistent with this decision, they are overruled. See United States Court of Appeals for the Third Circuit, Internal Operating Procedures, VIIIC.
Because the employees filed their notice of appeal within thirty days of entry of the final order-the order setting attorney's fees-Boeing Vertol's motion to dismiss portions of this appeal for lack of subject matter jurisdiction is denied.
The district court held that "to make out a claim under § 1981, the plaintiffs must prove a racially discriminatory purpose." 437 F. Supp. at 1181. The court reached this conclusion by determining that the requirement of proof of discriminatory purpose to establish a claim under the fourteenth amendment to the Constitution, see Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), applies equally well to claims brought under section 1981. The district court noted that the language of section 1981 "clearly is parallel to the equal protection clause of the Fourteenth Amendment." It also stated that proof of intent is required to give meaning to Washington v. Davis, "since § 1981 is applicable in every case in which constitutional claims of employment discrimination are asserted." 437 F. Supp. at 1181. Because it found that "the racial disparities established by the plaintiffs, at least those since 1965, are insufficiently dramatic or unexplainable to justify an inference of purposeful discrimination," the court dismissed the employees' section 1981 class claims against Boeing Vertol. Id. at 1182. The district court, however, found that Croker and Travis had proved their individual claims of section 1981 violations.
The employees contend on appeal that proof of intent is not a necessary element of a claim brought under section 1981. They argue that a section 1981 violation may be shown by proof that would be sufficient to establish a violation under title VII-that is, by a showing of either disparate treatment or disparate impact.
The cases construing section 1981 provide no definitive answer to this issue. Prior to the Supreme Court's decision in Washington v. Davis, many circuit courts did not require proof of discriminatory purpose for claims brought under section 1981. See, e.g., Douglas v. Hampton, 168 U.S. App. D.C. 62, 512 F.2d 976, 981 (D.C. Cir. 1975); Castro v. Beecher, 459 F.2d 725, 732-33 (1st Cir. 1972). While this circuit had not directly addressed the issue, our cases might reasonably have been read not to require a showing of intent. See Educational Equality League v. Tate, 472 F.2d 612, 618 (3d Cir. 1972) (s 1983); Erie Human Relations Commission v. Tullio, 493 F.2d 371, 373 n.4 (3d Cir. 1974) (prima facie case requires demonstration of underrepresentation of blacks and opportunity for racial discrimination). In Washington v. Davis, however, the Supreme Court held that a claim brought under the fourteenth amendment to the Constitution requires proof of purposeful discrimination. See 426 U.S. at 239, 96 S. Ct. at 2047.
Washington v. Davis resulted in a reexamination by many courts of the standard of proof under section 1981. As the United States Court of Appeals for the Second Circuit explained: "Before Washington v. Davis, we had approached § 1981 with the belief that the Constitution itself prohibited conduct having a discriminatory impact as well as purposefully discriminatory conduct. Now that our constitutional premise has been declared erroneous, we must of course reconsider our statutory conclusion." Guardians Association v. Civil Service Commission, 633 F.2d 232, 264 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S. Ct. 3083, 69 L. Ed. 2d 954 (U.S. June 16, 1981). Since Washington v. Davis, most of the appellate courts considering the standard of proof for a section 1981 claim have required a showing of intent. See Guardians Association, 633 F.2d at 264; Craig v. County of Los Angeles, 626 F.2d 659, 668 (9th Cir. 1980), cert. denied, 450 U.S. 919, 101 S. Ct. 1364, 67 L. Ed. 2d 345 (1981); Mescall v. Burrus, 603 F.2d 1266, 1271 (7th Cir. 1979); Williams v. DeKalb County, 582 F.2d 2, 2-3 (5th Cir. 1978) (per curiam); Johnson v. Alexander, 572 F.2d 1219, 1222 (8th Cir.), cert. denied, 439 U.S. 986, 99 S. Ct. 579, 58 L. Ed. 2d 658 (1978). But cf. Kinsey v. First Regional Securities, Inc., 181 U.S. App. D.C. 207, 557 F.2d 830, 838 n.22 (D.C. Cir. 1977) (since plaintiff proceeding under title VII and section 1981, need not prove discriminatory purpose).*fn4
In Washington v. Davis the Supreme Court addressed only the standard of proof in a case brought under the fifth or fourteenth amendment, not the level of proof necessary under section 1981. See New York Transit Authority v. Beazer, 440 U.S. 568, 583-84 n.24, 99 S. Ct. 1355, 1364-65, 59 L. Ed. 2d 587 (1979) (noting that "exact applicability of that provision has not been decided); cf. City of Memphis v. Greene, 451 U.S. 100, 101 S. Ct. 1584, 1596, 67 L. Ed. 2d 769 (1981) (not confronting "prematurely the rather general question whether either § 1982 or the Thirteenth Amendment requires proof of specific unlawful purpose"). Nevertheless, we believe that Washington v. Davis has some applicability to the issue of proof under section 1981. Furthermore, in light of the numerous courts of appeals decisions reassessing section 1981 after Washington v. Davis, we believe that we should reexamine the issue to determine whether proof of a section 1981 violation may be made on a showing of disproportionate impact or whether a showing of purposeful discrimination is essential.*fn5
Section 1981 grants to all persons within the United States "the same right ... to make and enforce contracts ... as is enjoyed by white citizens...."*fn6 The language of the statute is inconclusive, but we believe that if it points in any direction, it suggests a requirement for proof of purposeful discrimination. See City of Memphis v. Greene, 101 S. Ct. at 1602 (White, J., concurring) (under similar language of section 1982, "(purposeful) racial discrimination is quite clearly the focus of the proscription"); Guardians Association, 633 F.2d at 267. See generally Heiser, Intent v. Impact, The Standard of Proof Necessary to Establish a Prima Facie Case of Race Discrimination Under 42 U.S.C. § 1981, 16 San Diego L.Rev. 207, 233-37 (1979) (discussing language of section 1981 and other civil rights statutes and concluding that, while not unambiguous, section 1981's language supports argument that intent required). The guarantee of the "same right" to make contracts "as is enjoyed by white citizens" is similar to the guarantee of "equal protection" embodied in the fourteenth amendment, a standard that requires proof of intentional discrimination under Washington v. Davis. As long as both nonwhite and white employees are subject to the same employment requirements or restrictions, both may be said to have been granted the right to contract on equal terms. The Supreme Court stated in construing the constitutional guarantee of equal protection: "(W)e have difficulty understanding how a law establishing racially neutral qualifications for employment is nevertheless racially discriminatory and denies "any person ... equal protection of the laws' simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups." Washington v. Davis, 426 U.S. at 245, 96 S. Ct. at 2050. We confront this same difficulty in construing section 1981's similar guarantee of the "same right ... to make and enforce contracts."
Furthermore, we believe that the language of section 1981 is far less susceptible of an interpretation permitting an impact standard than is the language of title VII. Under section 703(a)(2) of the 1964 Act, it is an unlawful employment practice to "limit, segregate, or classify ... employees or applicants for employment in any way which would deprive or tend to deprive" them of "employment opportunities or otherwise adversely affect their status as employees" because of their race or color. 42 U.S.C. § 2000e-2(a)(2). While that language is consistent with a conclusion that "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation," see Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S. Ct. 849, 854, 28 L. Ed. 2d 158 (1971) (emphasis in original), no such conclusion is apparent from the language of section 1981. See Heiser, supra, at 237-38.
We recognize that there is an argument that nonwhite citizens cannot be said to enjoy the same rights as white citizens under the statute if facially neutral practices have an adverse impact on them. See Heiser, supra, at 234 (concluding, however, that language of section 1981 suggests intent requirement). We think this is a tenuous reading of the statutory language calling for all citizens to have the "same right" to contract as whites. Nevertheless, this reading indicates that the language of the statute is not conclusive. Cf. Comment, Developments in the Law-Section 1981, 15 Harv.C.R.-C.L.L.Rev. 29, 48 (1980) (hereinafter cited as Comment, Section 1981 ) ("The statute is written in broad language subject to various interpretations."). We therefore look to congressional intent through the legislative history of section 1981.
Section 1981 was first enacted as part of section 1 of the Civil Rights Act of 1866, pursuant to section 2 of the thirteenth amendment to the Constitution.*fn7 The employees cite this history to support their contention that it is inappropriate to apply the intent requirement of the fourteenth amendment to a cause of action grounded in the thirteenth amendment. They assert that because the thirteenth amendment was enacted to eliminate the badges and incidents of slavery, see Civil Rights Cases, 109 U.S. 3, 20, 3 S. Ct. 18, 27, 27 L. Ed. 835 (1883), "motivation is irrelevant when one is concentrating on the destruction of the institution of slavery and its lingering manifestations in private employment practices."
The scope of the thirteenth amendment and section 1981 is not coextensive with the scope of the fourteenth amendment. Cf. City of Memphis v. Greene, 101 S. Ct. at 1596 (section 1982 and thirteenth amendment coverage significantly different from fourteenth amendment coverage). Nevertheless, section 1981 has some ties to the fourteenth amendment because it was reenacted in section 16 of the Civil Rights Act of 1870, after adoption of the fourteenth amendment, in part because of congressional concern about the constitutionality of the 1866 Act. See, e.g., Runyon v. McCrary, 427 U.S. 160, 168-69 n.8, 96 S. Ct. 2586, 2593, 49 L. Ed. 2d 415 (1976) ("There is ... no basis for inferring that Congress did not understand the draft legislation which eventually became 42 U.S.C. § 1981 to be drawn from both § 16 of the 1870 Act and § 1 of the 1866 Act."); Mahone v. Waddle, 564 F.2d 1018, 1030 (3d Cir. 1977) (section 1981 rests on thirteenth and fourteenth amendments) cert. denied, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147 (1978). Even if section 1981 is considered to rest solely on the thirteenth amendment powers of Congress, however, it does not follow that discriminatory impact is the touchstone of a section 1981 claim.
The thirteenth amendment prohibits slavery and involuntary servitude. From its first interpretation by the Supreme Court, the amendment has been construed to grant to Congress the "power to pass all laws necessary and proper for abolishing all badges and incidents of slavery." Civil Rights Cases, 109 U.S. at 20, 3 S. Ct. at 28. Much more recently, the Court has declared that "Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440, 88 S. Ct. 2186, 2203, 20 L. Ed. 2d 1189 (1968) (Congress has power under thirteenth amendment to prohibit private as well as public discrimination).
The Civil Rights Act of 1866 was enacted to give "real content to the freedom guaranteed by the Thirteenth Amendment." Id. at 433, 435, 88 S. Ct. at 2200-2201. Whether that content includes protection from facially neutral actions having a discriminatory impact is uncertain from the Act's legislative history. That history has been reviewed extensively in other cases,*fn8 and we will not repeat it here. We believe it is clear that the 1866 Act was a response to burgeoning abuses against former slaves, which threatened to render illusory the freedom granted to them in the thirteenth amendment. See, e.g., Comment, Section 1981, supra, at 38. This threat came from the growing power of the Klu Klux Klan and the adoption by the Southern States of the "Black Codes," which restricted such varied rights as the rights to serve as ministers, to receive an education, and to own arms. See id. at 40. While it is true that they also contained some facially neutral statutes, such as vagrancy laws, those statutes were intended to be and were purposefully applied in a discriminatory fashion. See, e.g., Note, Section 1981: Discriminatory Purpose or Disproportionate Impact?, 80 Colum.L.Rev. 137, 157-58 (1980) (hereinafter cited as Note, Purpose or Impact? ). Thus, the legislative history of the 1866 Act generally reveals congressional concern with "direct, intentional abuses." See City of Memphis v. Greene, 101 S. Ct. at 1604 (White, J., concurring) (section 1982 requires proof of purposeful discrimination); Note, Purpose or Impact?, supra, at 157 (noting that history not conclusive, but "(w)hat can be demonstrated is a strong congressional preoccupation with the varied types of intentional discrimination commonplace in the South at the time."). We think that it is more likely than not that the statute was addressed to such intentional conduct.
The employees have not directed our attention to any legislative history that reveals a contrary intent. We doubt that they could. See City of Memphis v. Greene, 101 S. Ct. at 1603 (White, J., concurring) ("nothing in the legislative history of this Act suggests that Congress was concerned with facially neutral measures which happened to have an incidental impact on former slaves"); Guardians Association, 633 F.2d at 267 (plaintiffs failed to cite and court unable to find any indication in legislative history that Congress intended to prohibit anything other than racially motivated refusal to treat nonwhites and whites alike).
We acknowledge that the legislative history does not reveal a direct refusal to extend section 1981 to nonpurposeful conduct. Given the absence of a congressional declaration of intent to extend the 1866 Act to the effects of facially neutral conduct, however, we believe that it is more consistent with the language of and impetus behind that statute to conclude that the statute is directed only at purposeful conduct. We reach this conclusion fully aware that neither the language nor the legislative history provides certain guidance in interpreting section 1981. As we noted at the beginning of ...