Young v. International Telephone & Telegraph Co.

Decision Date11 February 1971
Docket NumberNo. 19269.,19269.
PartiesJames F. YOUNG, on his own behalf and on behalf of all others similarly situated, Appellants, v. INTERNATIONAL TELEPHONE & TELEGRAPH CO., Nesbitt Division, Hershman Sheet Metal Works, Inc., Local #19, Sheet Metal Workers, International Association, Al Kern, individually and as Vice President of Local #19, Sheet Metal Workers International Association.
CourtU.S. Court of Appeals — Third Circuit

Edwin D. Wolf, Philadelphia, Pa. (Sharon K. Wallis, Lawyer's Committee for Civil Rights Under Law, Philadelphia, Pa., on the brief), for appellants.

H. Thomas Felix, II, Richard H. Markowitz, Philadelphia, Pa. (Wilderman, Markowitz & Kirschner, Philadelphia, Pa., on the brief), for appellees.

Lutz Alexander Prager, Atty., E. E. O. C., Washington, D. C. (Stanley P. Hebert, Gen. Counsel, Julia P. Cooper, Atty., E. E. O. C., Washington, D. C., on the brief), for the United States Equal Employment Opportunity Commission amicus curiae.

Before HASTIE, Chief Judge, and FREEDMAN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Plaintiff appeals from the order of the district court which dismissed his complaint for want of subject matter jurisdiction. The complaint seeks damages and injunctive relief with respect to alleged racial discrimination in employment. In reviewing a dismissal pursuant to Rule 12(b) (1) we must accept these allegations as true.

Plaintiff is a black citizen of the United States, a resident of Philadelphia, and a sheet metal journeyman. Defendant International Telephone & Telegraph Co., Nesbitt Division (Nesbitt) operates a plant in Philadelphia where it employs sheet metal workers. Defendant Local #19, Sheet Metal Workers International Association (Local #19) is an unincorporated trade union of sheet metal workers, having union contracts with employers of sheet metal workers in the Philadelphia area. Defendant Kern is the Vice-President of Local #19. Prior to 1965 there were no minority group members of Local #19 due to a policy of racial exclusion implemented by conspiracy between Local #19 and certain employers including Nesbitt, whereby employers kept minority workers in unskilled job classifications. In 1965 plaintiff was admitted to membership in Local #19 as a result of an order by the Philadelphia Human Relations Commission requiring Nesbitt to reinstate plaintiff in a job category which required his admission to Local #19. Since his admission to Local #19 both it and Nesbitt have harassed plaintiff maliciously and wantonly, in retaliation for his enforcing his right of admission to the union, and pursuant to its general practice of discriminating against black employees. Plaintiff filed three complaints with the Philadelphia Human Relations Commission in an unsuccessful effort to end harassment by Nesbitt, but was eventually forced to seek other employment.

In 1969 Local #19 was composed of 1,688 journeymen, of whom only 17 were from minority groups. At the same time, at least 375 minority group workers were qualified to perform the same work as present members of Local #19 but were denied admission to the Union.

Defendant Hershman Sheet Metal Works, Inc. (Hershman) is an employer of Sheet Metal Workers at its plant in Philadelphia. On July 17, 1970 Hershman offered plaintiff employment and on July 20 he resigned from Nesbitt. When plaintiff went to Local #19 to notify it of his new job Kern informed him that Local #19's rules required that he be placed on the Out-of-Work List, in spite of the fact that Local #19's usual procedure with respect to white members is to grant immediate transfer when a new job has been secured by an individual member. On July 20 Local #19 notified Hershman that plaintiff could not work there, and as a result Hershman cancelled plaintiff's job.

Plaintiff on his own behalf seeks damages from Nesbitt, Hershman and Local #19 for lost wages since July 20, 1970, and temporary and permanent injunctions restraining Hershman from breaching his employment contract, and Local #19 from interfering with that contract. Claiming to act on behalf of all black sheet metal journeymen who are present and potential members of Local #19, pursuant to Rule 23(a) and (b) (2), Fed.R.Civ.P., he seeks temporary and permanent injunctions against Nesbitt, Hershman, and Local #19, restraining each from discriminating against blacks with respect to job opportunities and working conditions.

The complaint does not allege that plaintiff has pursued any remedies under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5. Jurisdiction is asserted under 42 U.S.C. § 1981 and § 1985, and under 28 U.S.C. § 1343(1) and (4). The district court dismissed (1) because § 1981 is not applicable to discrimination in private employment, and (2) because plaintiff's failure to have invoked the administrative processes of Title VII of the 1964 Civil Rights Act is fatal to his cause. We reverse.

I. The Effect of 42 U.S.C. § 1981

Defendants contend that § 1981 does not give plaintiff a right of action for their acts of discrimination relating to his employment. That statute provides:

All persons within the jurisdiction of the United States shall have the same right * * * to make and enforce contracts * * * as is enjoyed by white citizens * * *.

Respondents contend that this section is not applicable to private acts of discrimination in employment because, having been enacted pursuant to congressional powers under the Fourteenth Amendment, it must be read as applicable only to state action. Courts of Appeals in two circuits have considered and rejected this contention, and we agree. Waters v. Wisconsin Steel Works of Internat'l Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied International Harvester Co. v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970).1 These courts concluded that § 1981 was derived from the Civil Rights Act of 1866, 14 Stat. 27 (1866), that the 1866 Act was enacted pursuant to congressional powers under the Thirteenth Amendment, and that it was intended to prohibit acts of private discrimination.

In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Supreme Court held that 42 U.S.C. § 1982, which was derived from § 1 of the Civil Rights Act of 1866, prohibited all racial discrimination, public and private in the sale or rental of property. The constitutionality of this enactment was upheld on the basis of congressional power to enforce the Thirteenth Amendment. If, as plaintiff contends, § 1981 was derived from the same 1866 statute, Jones v. Alfred H. Mayer Co., supra, and the subsequent case of Sullivan v. Little Hunting Park, 396 U. S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) control. Defendants argue, however, that § 1981 is derived not from the 1866 Act, but from the Act of 31 May, 1870, 16 Stat. 140, 144. In one sense this is true, for after the adoption of the Fourteenth Amendment, Congress in the 1870 Civil Rights Act, in order to insure that the prohibitions of the 1866 Act were supported by that Amendment as well as the Thirteenth, restated verbatim parts of the 1866 Act including the part which in the 1866 Act was the nearest counterpart of § 1981. The part of the 1866 Act dealing with property (now § 1982) was not restated in 1870. When in 1874 prior acts were codified the two sections became sections 1977 and 1978 of the Revised Statutes of 1874. The codification acknowledges the 1866 Act for the derivation of § 1978 (now § 1982) but acknowledges the 1870 Act for the derivation of § 1977 (now § 1981). Where there is any difference in language between the 1866 and 1870 Acts the 1870 Act is for present purposes broader since it applied to all persons within the jurisdiction of the United States, not just to citizens. Nothing in this history shows any congressional intent in 1870 or in 1874 not to rely upon the Thirteenth Amendment or to restrict what is now § 1981 to cases involving state action.2

The Supreme Court evidently concludes that both § 1981 and § 1982 were enacted under Thirteenth Amendment powers for in Jones v. Alfred H. Mayer Co., supra, it discussed Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906), a case involving § 1977 of the Revised Statutes (now § 1981) and an employment situation in which the Court had taken a restricted view of congressional power under the Thirteenth Amendment. The court said, "Insofar as Hodges is inconsistent with our holding today, it is hereby overruled." 392 U.S. at 441 n. 78, 88 S.Ct. at 2205. Sullivan v. Little Hunting Park, supra, considered a complaint based on both § 1981 and § 1982. While the holding in that case refers to § 1982 neither the majority nor the dissent draws any distinction between the two sections. Thus the indication in Jones v. Alfred H. Mayer Co., supra, of common lineage of the two sections may still be relied upon. We conclude, therefore, that this case falls within the holdings of Jones v. Alfred H. Mayer Co., supra, and Sullivan v. Little Hunting Park, supra, and § 1981 is applicable to private acts of discrimination.3

Defendants also contend that assuming the applicability of § 1981 to certain private acts of discrimination, a fair reading of the statute precludes the construction that it was intended to apply to the employment situation. We cannot agree. In the context of the Reconstruction it would be hard to imagine to what contract right the Congress was more likely to have been referring. Certainly the recently emancipated slaves had little or nothing other than their personal services about which to contract. If such contracts were not included, what was? Certainly the situation of former slaves with respect to their labor was a matter of grave concern in the Congress when the 1866 Act was passed.4 We therefore reject the strained reading...

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