Under 42 U.S.C. § 1981, Equal Rights Under The Law, are non-employment contracts protected in the Ninth Circuit? Here’s my point of view.
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ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC
The problem is how to adapt the four elements of a prima facie case established in the employment discrimination context to claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981; this was a matter of first impression in the Ninth Circuit in Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1145 (9th Cir. 2005).
The Plaintiff-Appellant (“Lindsey” dba “E-Jays Panache Images”) was a business that presented fashion shows; all representatives were African-American, and audience members were primarily African-American as well. The Defendant-Appellee (“SLT Los Angeles” or “the Westin”) owned and operated, inter alia, a Grand Ballroom in their subject Westin Hotel.
Lindsey contracted for use of the Grand Ballroom for an event, but on the day of the event, there was an apparent mix up by the Westin. He essentially alleged that they were denied the Grand Ballroom in favor of a Bar Mitzvah because of their race.
Lindsey sued in U.S. District Court for, inter alia, violations of 42 U.S.C. § 1981, and “the district court concluded that Appellant … [Lindsey] had failed to prove that the Westin’s actions, which had prevented Panache from hosting its annual Mother’s Day Fashion Show in the Grand Ballroom of the Westin Hotel, presented a prima facie case of race discrimination pursuant to 42 U.S.C. § 1981.” Id. at 1141.
Lindsey appealed to the Ninth Circuit, and it reversed the district court and remanded for trial. The Ninth Circuit agreed with the decisions of other circuits that “the first three elements of the McDonnell Douglas test are easily adapted to claims arising under section 1981 outside of an employment context.” Id.
Accordingly, “the first three elements require a plaintiff to show that: (1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services.” Id. (referencing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001); Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.1996)) (emphasis added).
CONFLICTS BETWEEN 6TH & 7TH CIRCUITS
However, the court identified that “the Seventh and Sixth Circuits conflict over adaptation of the fourth McDonnell Douglas requirement, which, as applied by the district court … [in Lindsey], requires that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class.” Id. (emphasis added).
The court then pointed out that “the Seventh Circuit adopts this requirement … but the Sixth Circuit concludes that this flat requirement is too rigorous in the context of the denial of services by a commercial establishment, because customers often have no way of establishing what treatment was accorded to other customers.” Id. (internal citations omitted).
The 9th Circuit reasoned that “the Sixth Circuit distinguishes the commercial services context from the employment context, where records are kept and there is a paper trail disclosing what treatment is given to similarly-situated others.” Id. (internal citations omitted). Thus, “the Sixth Circuit alters the elements to require: (a) that plaintiff was deprived of services while similarly situated persons outside the protected class were not; and/or (b) that plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.” Id. (internal citations and quotation marks omitted).
Ultimately, the Ninth Circuit found the Sixth Circuit’s reasoning compelling, but did not decide whether its modification/relaxation of the fourth element of a prima facie case under Section 1981 is required in many or all cases arising in a commercial, non-employment context. The court found that the plaintiff in Lindsey offered clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, and, thus, it applied all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed.
CONCLUSION
It appears that in the Ninth Circuit, the following may be required to establish a prima facie case of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981:
1) membership in a protected class;
2) an attempt to contract for certain services;
3) denial of the right to contract for those services; and (possibly);
4) plaintiff was deprived of services while similarly situated persons outside the protected class were not [AND/OR] plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.
See Lindsey, 447 F.3d at 1145. When the plaintiff offers clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, the court will likely apply all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed. See id.
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