Helen Pittman sued her employer, the Employment Department of the State of Oregon, in state court under section 1981 for race discrimination, ?and ?its ?director ?under ?section The State removed the case to federal court. ?The district court held that by its removal the State waived sovereign immunity but nevertheless? the? court? granted? summary judgment for the State holding that section 1981 does not create a claim against a state.? The Ninth Circuit affirmed.?? In Jett v. Dallas Independent School?? District,?? 491?? U.S.?? 701?? (1989),?? the Supreme Court had concluded that ?the prohibition on discrimination by a state or its officials contained in ? 1981 can be enforced against state action only by means of ?1983.? Two years later, Congress amended section 1981 by adding subsection (c) prohibiting discrimination?? ?under?? color?? of?? State?? law.? Pittman argued that the amendment implied a private cause of action against states. ?The Ninth Circuit had previously held that the amendment overruled Jett to create a cause of action against municipalities and state actors, explaining: ?[T]here was already a remedy for violations of

  • 1981 by municipalities under ?1983?however,

?there is no alternative enforcement mechanism in? the? revised? ?1981? itself,??? so? ?implying? a cause ?of ?action ?against ?municipalities ?under

  • 1981 ?imposes no substantive change on federal civil rights law,? because such actions were already possible under ?1983.? Although the Court acknowledged that neither the statute nor the Ninth Circuit?s prior holding supported distinguishing between municipalities and states, they should nevertheless be treated differently because unlike recognizing a cause of action against municipalities, ?recognizing a cause of action against state actors under ?1981, would, in fact, expand the remedies available under that statute beyond those available under ?1983.? ?Even though the State of Oregon had waived sovereign immunity in this case, the Ninth Circuit held that allowing? a? cause? of? action? under? section? 1981 would ?allow actions in state court?at least when the state does not invoke sovereign immunity? which must be supported by a clear statement of Congressional intent not found in the statute or its legislative history. ?Pittman v. State of Oregon, No. 05-35900 (Dec. 5, 2007, Fisher, Berzon, Barzilay of Court of Internat?l Trade sitting by design.)