Federal Employment Discrimination-Jones v. R.R. Donnelley & Sons Co.: The Inadequacy of the Federal "Catchall" Statute of Limitations

University of Memphis Law Review, The, Winter 2008 by Day, Frank L Jr

The Court in Patterson held that § 1981 only applied to claims of intentional racial discrimination in the making and enforcement of contracts and did not extend to all aspects of the employment relationship.36 According to Patterson, § 1981 clearly did not apply to claims alleging racially discriminatory transfer, demotion, harassment, or racially biased conditions. Many commentators observed that the Court's very narrow interpretation of § 1981 was not consistent with its precedent,38 and one critic explained that the "decision was directly contrary to the case law that had been established on [the issue] in every federal circuit."39

After the holding in Patterson, it appeared that § 1981 would no longer be a viable remedy for a large number of employment-related claims of racial discrimination.40 In fact, the Court's decision in Patterson caused the federal courts to dismiss around one hundred § 1981 claims in the five months following the decision.41 Congress, however, disapproved of the Court's narrow interpretation of § 1981 in Patterson and acted to overturn its holding in the Civil Rights Act of 1991.42

Congress reestablished the breadth of § 1981 by broadly defining the phrase "make and enforce contracts" in § 1981(b). Congress added § 1981(b) as a definitional subsection to the original version of the statute, § 1981(a).44 Section 1981(b) reads as follows: "For purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."45 Congress explained that it intended § 1981(b) to redefine the rights conferred in § 1981(a) to "ensure that [no] Americans [are] harassed, fired or otherwise discriminated against in contracts because of their race."46

While Congress clarified the scope of § 1981, it failed to make clear which statute of limitations applied to § 1981 claims. By failing to enact either a specific statute of limitations for § 1981 or a federal catchall, Congress left to the courts the task of determining which statute to apply.

III. DETERMINING THE APPROPRIATE LIMITATIONS PERIOD FOR § 1981 CLAIMS BEFORE CONGRESS ENACTED THE FOUR-YEAR CATCHALL STATUTE OF LIMITATIONS

It is generally easy to identify what limitations period applies to claims arising under state law because state legislatures have enacted general statutes of limitations.41 Hence, in the absence of a specific limitations period, one must merely consider the nature of the claim advanced and then select the limitations period that applies to claims of that same type. Congress, however, has not adopted general limitations periods for the courts to apply to the many claims arising under federal law that lack a specified limitations period.48 Although now there is a four-year catchall statute of limitations for federal claims, because Congress had not enacted a catchall statute of limitations prior to 1990, the burden of determining what statute of limitations applied to such federal claims fell on the courts.49 In almost all such cases, the courts have elected to borrow a limitations period from the forum state when Congress has failed to provide one for the claim.50