'Old White Men' Suit Against Library Saved by Amendment to Section 1981

BY SHANNON P. DUFFY
U.S. Courthouse Correspondent

A federal judge has refused to dismiss a lawsuit brought by a Hispanic employee at the Free Library of Philadelphia who claims he was fired after serving jury duty by an African-American supervisor who insisted that the library is not run by "old white men."

US District Judge Herbert J. Hutton ruled that William Marquess presented a valid claim of race discrimination under Section 1981, as that law was modified by language in the Civil Rights Act of 1991.

Prior to the 1991 act, Hutton said, Section 1981 was not read as having established "a general proscription of racial discrimination in all aspects of contract relations." The 3rd US Circuit Court of Appeals, Hutton said, specifically held that Section 1981 did not apply to claims of racially motivated discharge because job termination (was considered) conduct occurring after the formation of the employment contract."

But in the 1991 act, Hutton said, Congress specifically defined the phrase "to make and enforce contracts" as it appears in Section 1981 as: "the making, performance, modification, and termination of contracts

and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship."

As a result, Hutton said, the 1991 law superseded the US Supreme Court's 1989 decision in Patterson v. McLean Credit Union and made Section 1981 applicable to discriminatory termination claims."

Deputy City Solicitor Michael Holmes argued that while Marquess claims that race was a factor in his termination, he failed to allege any contractual basis for his Section 1981 claim.

Marquess' lawyer, Mark S. Scheffer of Larry Pitt & Associates, argued that the law allows such a claim where an at-will employee is terminated in part because of his race.

Hutton agreed, saying there is Eastern District precedent for allowing just such a claim.

In Hudson v. Radnor Valley Country Club, Hutton said, Senior US District Judge Donald W. VanArtsdalen held that "the termination for racially discriminatory reasons of an otherwise terminable at-will implied-in-fact contract may be actionable under 42 U.S.C. Section 1981."

day.

VanArtsdalen reasoned that such an at- will employee's working conditions can be "altered at any time, with or without reason, provided that such alteration of working conditions was not because he was black an/or the alteration would not have occurred had he been white."

Hutton found that Marquess, too, had made out a valid Section 1981 claim by alleging that he was an at-will employee and that race was "a factor" in the decision to fire him.

According to the suit, Marquess was hired as a library assistant at the Northeast Regional Library branch on Cottman Avenue on March 4, 1997. He received

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