The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Emerging Issues In Employment Litigation Under 42 U.S.C. Section 1981
By Sharmila Roy

Racial discrimination in employment is a violation of Title VII of the Civil Rights Act as well as of various state laws prohibiting discrimination in the workplace. Employment discrimination on the basis of race also violates 42 U.S.C. Section 1981, which guarantees that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." In Patterson v. McLean Credit Union, the United States Supreme Court held that section 1981 covered "only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process." 1 Thus, according to the Court, that statute did not cover racial discrimination by an employer after the employment relationship was initiated, and, therefore, plaintiffs who alleged hostile work environments or racially motivated discharges could not sue under section 1981.

In the Civil Rights Act of 1991, Congress amended section 1981, adding a definition of making and enforcing contracts that included "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 2 At present, then, an employee suing for racial discrimination in any aspect of the employment relationship should, theoretically, be able to sue under section 1981 as well as under various state and federal employment discrimination laws.

However, there are some unresolved issues regarding employment litigation under section 1981. At present, one of the primary questions facing courts and counsel in the Northern District of Illinois is whether section 1981 covers at-will employment relationships. Another issue that is often litigated involves the correct limitations period for employment discrimination suits brought under section 1981. This article describes those emerging issues in the hope of assisting practitioners who may be new to the field of employment litigation.

A. Is an at-will employment relationship a contract for purposes of section 1981?

Because section 1981 protects contractual rights against racially motivated conduct, in order to bring a claim under that section, there must be a contract. 3 However, an argument can be made that because an at-will employee can be discharged for any cause at any time, the employment relationship is not really contractual, so that section 1981 does not cover at-will employees. 4

It is not axiomatic, however, that just because an employee can be terminated at any time, he or she does not possess contractual rights. For example, even if an employee is terminated, he has a contractual right to receive payment for wages for that period. The question is whether the relationship is sufficiently contractual to support a cause of action under section 1981. And, to resolve that question, the federal court must first determine whether it is going to look at the definition of contracts under the general common law of contracts or whether the answer should come, instead, from the law of the state where the federal court sits.

1. The general common law of contracts

There appears to be no federal common law of contracts, and there is no indication in legislative history or in the statutory language of section 1981 to suggest that Congress sought to promulgate some special federalized definition of the term "contract." There is, however, a "’settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms.’" 5 And, in Patterson, the Supreme Court rejected arguments that section 1981 requires a court (1) to look outside the statute to the terms of the particular contract and (2) to state law for the obligations and covenants to be protected by that federal statute. 6 In fact, Justice Stevens’ concurring opinion in Patterson did not refer to any particular state law when noting that Patterson was an at-will employee who could have brought suit under section 1981 for discriminatory hiring. 7

Further, in Haddle v. Garrison, 8 the Supreme Court held that at-will employees may sue under section 1985(2) for tortious interference with the employment relationship by a third party. As the Second Circuit pointed out in Lauture v. International Business Machines Corp., "if there is no contract at all in an at-will employment relationship, it is hard to see how such a cause of action would be tenable." 9

The Lauture court used the definition of contracts in the Restatement to hold that a promise by the employee to perform work for the employer, as consideration for the employer’s promise to pay, constituted a contract for purposes of section 1981. 10 Similarly, in Spriggs v. Diamond Auto Glass, the Fourth Circuit pointed out that, according to the Restatement, "the lack of an agreed-upon duration [for an at-will employment relationship] does not invalidate the underlying contract itself." 11 The Lauture and Spriggs courts used the general common law definition of contracts to hold that at-will employees may sue under section 1981.

In McKnight v. General Motors Corp., Judge Posner characterized the at-will employment relationship as follows:

Employment at will is not a state of nature but a continuing contractual relation. Wages, benefits, duties, working conditions, and all (but one) of the other terms are specified and a breach of any of them will give the employee a cause of action for breach of contract. All that is missing is a provision that gives the contract a fixed term or that entitles one or both parties to a specified amount of notice before the other party can cancel the contract without liability. A contract for employment at will may end abruptly but it is a real and continuing contract nonetheless, not a series of contracts each a day —or a minute—long. 12

Once again, the McKnight court did not make any reference to state law in holding that an at-will employment relationship was contractual in nature. Though the precise holding of McKnight – that an employee could not state a section 1981 claim for race-based discharge – was superseded by the 1991 amendments to section 1981, the statement that at-will employment is governed by contract is still good law. 13 In Gonzalez v. Ingersoll Milling Machine Co., the Seventh Circuit did express some doubt whether an at-will employee has a sufficiently contractual relationship with the employer to bring suit under section 1981, but it did not resolve that issue. 14

Several federal courts have also argued that a construction of section 1981 that excludes protection of at-will employees would conflict with the statutory purpose, which was to protect employees who worked for employers that had less than fifteen employees and thus were not covered by Title VII. 15 As stated by the court in Stone,

The report of the Education and Labor Committee explained that part of its aim in revising section 1981 was "to restore protection under federal law against harassment and other forms of intentional discrimination in the terms and conditions of employment for the more than 11 million employees in firms that are not covered by Title VII." 16

The federal district court in the Northern District of Illinois has been split in its decisions on the issue of the availability of section 1981 for at-will employees. Some judges have used the reasoning of Lauture, Spriggs, and McKnight to hold that at-will employees may bring employment discrimination claims under section 1981, while others have found insufficient contractual basis in an at-will employment relationship to constitute a predicate for a claim under section 1981. 17

2. Contractual relationships as defined by state law

Some courts have looked to the state law definition of contractual relationships to determine whether at-will employees are protected by section 1981. For example, in Skinner v. Maritz, Inc., the court pointed out that under Missouri law, an at-will employment agreement had all the elements of a valid contract: offer, acceptance, and bargained-for consideration. 18 Coupled with the fact that at-will employees could treat the employer’s failure to pay for work done as a breach of contract, these elements demonstrated that at-will employment was contractual in nature. Similarly, in Fadeyi v. Planned Parenthood Association of Lubbock, Inc., the Fifth Circuit utilized Texas law to support the contractual nature of an at-will employment relationship; 19 in Spriggs, the Fourth Circuit pointed out that under Maryland law, at-will employment relationships were contracts; 20 and in Perry v. Woodward, the Tenth Circuit held that New Mexico law considered at-will employment to be contractual. 21

Even courts that have looked to the general common law of contracts often use state law to bolster their conclusions that at-will employment is contractual in nature. For example, in Lauture, the Second Circuit pointed to the fact that New York law provided a cause of action to at-will employees for tortious interference with the contractual relationship. 22

It seems that the result would be the same under Illinois law. The Illinois Supreme Court has stated that "[w]here the contract is one of employment, it is immaterial whether it is for a fixed period or is one which is terminable by either party at will." 23 However, in Illinois, an at-will employee does not have a remedy in tort for intentional interference with a contractual relationship. 24 That fact may not be relevant to claims under section 1981, because, though at-will employees do not have an expectation of continued employment that can be the subject of interference by third parties, it has always been clear that they cannot be discharged for reasons that violate public policy. 25

Thus, it seems that whether one looks to state law or general common law, the better reasoned view is that at-will employees have contractual relationships with their employers and may sue under section 1981 for racial discrimination in employment.

B. What is the appropriate statute of limitations for employment actions under section 1981?

Section 1981 does not contain its own statute of limitations. In Goodman v. Lukens Steel Co., 26 the Supreme Court held that the appropriate limitations period for civil rights claims under section 1981 was the forum state’s statute of limitations for personal injury actions. In Illinois, the limitations period for personal injury actions is two years, and that is the limitations period that has so far governed employment discrimination actions under section 1981. 27

As far as discriminatory hiring occurring prior to 1991 is concerned, there exists no argument against the two-year period. However, employment dis-crimination claims occurring after the enactment of the Civil Rights Act of 1991 may be subject to the four-year limitations period set forth in 28 U.S.C. § 1658, which was enacted on December 1, 1990, and provides that "a civil action arising under an Act of Congress enacted after the date of enactment of this section may not be commenced later than four years after the cause of action accrues." In North Star Steel Co. v. Thomas, the Supreme Court explained that "[t]he expectation [of borrowing limitations periods from state law] is reversed for statutes passed after December 1, 1990, the effective date of 28 U.S.C. § 1658, . . . which supplies a general, four-year limitations period for any federal statute subsequently enacted without one of its own." 28

The question, then, boils down to whether the 1991 amendment to section 1981, adding subsections 1981(b) and (c), should be considered an Act of Congress enacted after December 1, 1990, making claims under section 1981 subject to the four year limitations period. A related, but no less important, question is whether the four-year limitations period should apply to all claims under section 1981 or only to claims arising under section 1981(b).

As mentioned earlier in this article, the Patterson Court held that section 1981 prohibited discriminatory hiring but not discriminatory discharge or the subjection of employees to a racially hostile work environment. In response, Congress enacted the Civil Rights Act of 1991, adding subsection (b), which expanded the definition of the term "make and enforce contracts" to include the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Following the 1991 amendments, section 1981 "clearly prohibits discriminatory conduct that occurs both before and after the establishment of the contractual relationship." 29

In Rivers v. Roadway Express, the Supreme Court has described the 1991 Act as "expanding the scope of relevant civil rights statutes," rather than "restoring" preexisting rights. 30 The Court has also referred to the 1991 Act as distinct from Title VII, even though the Act amended Title VII. 31 According to the intimations of the Court, then, section 1981(b) should be considered a new enactment. It remains to be seen whether that conclusion is bolstered by the plain meaning of the statutory language and/or its legislative history.

1. The plain meaning of section 1658

"The starting point for the interpretation of a statute is the language of the statute itself." 32. Further, if the intent of the statute is clear, the plain meaning should be conclusive. 33 The language of section 1658 sets forth a four-year limitations period for civil actions "arising under an Act of Congress enacted after" December 1, 1990. Black’s Law Dictionary defines the word "enact" as "to make into law by authoritative act." 33 The Civil Rights Act of 1991 bears the title "An Act of Congress" on the first page of the bill, and uses the introduction "Be it enacted." And, at a minimum, a cause of action for discriminatory discharge or hostile environment seems logically to "arise under" Section 1981(b), which did not exist prior to 1991. Thus, it appears that claims involving racially hostile work environment or discriminatory discharge should be construed as arising under an Act of Congress enacted after December 1, 1990, making those claims subject to a four-year limitations period.

As Judge Kennelly stated in Adams v. R.R. Donnelley & Sons,

"Judicial enquiry into the applicability of [§ 1658] begins and ends with what [§ 1658] does say and with what [§ 1658] does not." Connecticut National Bank v. Germain, 503 U.S. 249, 254 (1992). Section 1658 applies to any "civil action arising under an Act of Congress enacted" after December 1, 1990. We see nothing ambiguous in this language, at least as it relates to the claims at issue in this lawsuit. First . . we do not think the statute’s reference to "an Act of Congress enacted" is susceptible to more than one reasonable interpretation. "Enact" means "to make into law by authoritative act," Black’s Law Dictionary 546 (7th ed. 1999); thus every Act of Congress, whether it reflects a never-before considered subject or amends a previously existing statute, is "enacted." . . . To the extent there could ever be any doubt about whether the Civil Rights Act of 1991 was "an Act of Congress" or whether it was "enacted," the language of the law itself should set the record straight. Congress specifically used both words in the law’s preamble:

An Act to amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes.

Be it enacted by the Senate and the House of representatives of the United States of America in Congress assembled, . . . Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (emphasis added).

Second, there is no question that "civil action" as used in § 1658 means "claim" or "cause of action." Finally there is no question that "arising under" means "stemming from" or "originating in." See Black’s Law Dictionary 102 (7th ed. 1999). 34

There has been a split in opinion between different federal district courts on this issue, although more judges seem to have agreed with Judge Kennelly. 35 However, two federal courts of appeal have disagreed. In Zubi v. AT&T Corp., the Third Circuit held that Section 1658 applied only to Congressional Acts that did not refer to pre-existing law, and that "treating every amendment to an existing statute as a new Act of Congress is not required by the text of § 1658." 36 Similarly, in Madison v. IBP, Inc., the Eighth Circuit, agreeing with the reasoning in Zubi, found that "the words used by Congress [were] significant. The phrase ‘an Act of Congress enacted’ after 1990 is not equivalent to the phrase ‘an Act of Congress enacted or amended’ after that year." 37

Judge Alioto, dissenting in Zubi, pointed out that the term "Act of Congress" means a law enacted in one of the ways set forth in Article 1, section 7 of the United States Constitution, and under that definition, the Civil Rights Act of 1991 qualified as an Act of Congress. 38 And, according to the Nealey court, "the fact that the Congressional enactment at issue amends an already existing Congressional enactment does not appear sufficient to exclude such an amending enactment from the plain language of §1658. Otherwise, courts would be required to decide when an Act of Congress is not an Act of Congress." 39 While those opinions appear logical, it appears unlikely that, given the holdings of the Zubi and Madison courts, the statutory language will be found unambiguous. The next step, then, is to peruse the legislative history in the hope that it may cast some light on the matter. 40

2. The legislative history of section 1658

28 U.S.C. § 1658 was enacted on December 1, 1990, as section 313(a) of the Judicial Improvements Act of 1990. Congress had some concern regarding the practice of borrowing limitations periods from state law for federal civil rights claims, as this had caused uncertainty and lack of uniformity. 41 And, in the years preceding the enactment, many courts had directed pleas to Congress to enact uniform federal statute of limitations. 42 In response, Congress appointed a Federal Courts Study Committee, which made a recommendation to Congress to "adopt limitations periods for major Congressionally created federal claims that presently lack such periods and adopt fallback limitations periods for federal claims . . . not explicitly created by Congress and for any other federal claim not specifically covered by a limitations provision." 43 The Study Committee Report was cited by the House Judiciary Committee, 44 and in a statement on the Floor of the Senate, Senator Joseph Biden, the bill’s chief sponsor, quoted from the report of the Study Committee and expressed the desire of Congress to do away with the practice of borrowing limitations periods from state law. 45

As stated earlier, several federal district courts have agreed that the 1991 Act is clearly an Act of Congress that was enacted after December 1, 1990, and is, therefore, subject to the four-year limitations period of section 1658. The Zubi court read the same legislative history, however, and came to the opposite conclusion:

Congress could have provided that § 1658 would be applicable to all causes of action that accrued after the effective date of the Act, but it did not. It did not because it valued the avoidance of frustrated expectations more highly than national uniformity. It realized that there was an existing body of case law establishing limitations periods for causes of action arising under federal statutes already in existence, and it decided to preserve that body of law in the interest of avoiding the disruption of parties’ settled expectations. See H.R. Rep. No. 101-734, § 111, at 24 (1990) . . . Given the preeminent value placed by Congress on the avoidance of disappointed expectations, we conclude that the choice between [the different] proposed readings of § 1658 should be made on the basis of which will provide the greatest certainty in application. 46

The Zubi court held that "only when Congress establishes a new cause of action without reference to preexisting law that § 1658 applies, and decided that all claims under section 1981, whether based on discriminatory hiring or discriminatory discharge, would continue to arise under the preexisting statute. 47 By contrast, in Alexander v. Precision Machining, Inc., the court found that "claims arising under § 1981 after November 21, 1991, would be claims arising under an Act of Congress enacted after § 1658. Whether such claims also were viable under a previously enacted version of the statute is irrelevant." 48 In other words, the Alexander court refused to make a distinction between claims of discriminatory hiring, which could be brought under the pre-amendment version of section 1981, and claims under section 1981(b) for discriminatory discharge or racially hostile work environment, which could only have arisen by virtue of the 1991 amendment.

In Adams, however, Judge Kennelly found that such a distinction had to be made:

As applied to § 1981, claims that under Patterson could be brought under the pre-1991 version of § 1981 clearly arise under an Act of Congress that was enacted prior to § 1658’s enactment date, and the catch-all statute does not apply to such claims. Claims that Patterson said could not be brought under the pre-1991 version of § 1981, but which can be made only by virtue of § 1981(b), just as clearly arise under the Civil Rights Act of 1991, an Act of Congress enacted after § 1658. 49

This survey of case law shows that uniformity has not been achieved as to the issue of the proper limitations period for claims under section 1981. Given the divergent readings of legislative history, it seems as if Congress will have to step in and clarify its intentions. Until that comes to pass, lawyers will be relegated to the task of parsing the legislative history and finding pronouncements that help their side of the issue.

C. Conclusion

This article has attempted to give practitioners a glimpse into the shrouded complexities of employment litigation under section 1981. As more and more courts consider the issues described here, perhaps some clarity will emerge, affording litigants a certain measure of certainty and bringing uniformity into federal civil rights law.

 1 491 U.S. 164, 185 (1989).

 2 42 U.S.C. § 1981(b).

 3 Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1034 (7th Cir. 1998).

 4 The employment at will doctrine allows an employer "to discharge an employee at will for any reason or no reason, except when the discharge violates clearly mandated public policy." Talley v. Washington Inventory Serv., 37 F.3d 310, 311 (7th Cir. 1994).

 5 Foster v. BJC Health Sys., 121 F. Supp. 2d 1280, 1289 (E.D.Mo. 2000) (quoting United States v. Shabani, 513 U.S. 10, 13 (1994).

 6 Patterson, 491 U.S. at 182.

 7 Id. at 221 (Stevens, J., concurring in part, dissenting in part).

 8 525 U.S. 121 (1998).

 9 216 F.3d 258, 261 (2nd Cir. 2000).

 10 Id.

 11 165 F.3d 1015, 1018 (4th Cir. 1999), citing Restatement 2d of Contracts, § 33 cmt. d illus. 6 (accepted offer of employment, though of indefinite duration, may create at-will employment agreement).

 12 McKnight v. General Motors Corp., 908 F.2d 104, 109 (7th Cir. 1990); see also Jordan v. Duff and Phelps, Inc., 815 F.2d 429, 438 (7th Cir. 1987) (citing E. Allan Farnsworth, Contracts 532 n.29 (1982), cert. dismissed, 485 U.S. 901 (1988) ("employment at will is still a contractual relation, one in which a particular duration (‘at will’) is implied in the absence of a contrary expression").

 13 See Robinson v. Sabis Educ. Systems, Inc., 1999 WL 414262, *10 (N.D.Ill. June 4, 1999) (holding that at-will employees can state a section 1981 claim for racially motivated discharge)

 14 Gonzalez, 133 F.3d at 1035. The doubt was expressed in dicta, which is not considered binding in subsequent cases. See In re McCarthy Bros. Co., 83 F.3d 821, 833 (7th Cir. 1996).

 15 See, e.g., Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1050 (5th Cir. 1998), citing H.R. Rep. No. 102-40(II), at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 694; Stone v. American Federation of Govt. Employees, 135 F. Supp. 2d 873, 877 (N.D.Ill. 2001).

 16 Stone, 135 F. Supp. at 877 (quoting H.R. Rep. No. 102-40(I), reprinted in 1991 U.S.C.C.A.N. 549, 630).

 17 See, e.g., Allen v. Chicago Transit Auth., 2001 WL 341106 (N.D.Ill. April 6, 2001) (holding that at-will employees are protected by section 1981); Riad v. 520 S. Michigan Ave. Assoc. Ltd., 78 F. Supp. 2d 748 (N.D.Ill. 1999) (same); Jones v. Sabis Educ. Sys., Inc., 52 F. Supp. 2d 868, 875-76 (N.D.Ill. 1999) (same); Daniels v. Nationwide Ins., 1999 WL 495649 (N.D.Ill. June 28, 1999) (same); Stone, 135 F. Supp. At 877 (same); Melton v. Five Four Corp., 1999 WL 436572 (N.D.Ill. June 22, 1999) (same); Jefferson v. Ingersoll Int’l, Inc., 1999 WL 325042 (N.D.Ill. May 20, 1999) (same). But see Tucker v. Cassiday, Schade & Gloor, 2000 WL 968828 (N.D. Ill. July 13, 2000) (holding that an at-will employee cannot maintain a contractual relationship sufficient to support a § 1981 claim); Saez v. Chicago Housing Auth., 1999 WL 183665 (N.D.Ill. March 25, 1999) (same); Payne v. Abbott Labs., 1999 WL 116208 (N.D.Ill. March 2, 1999) (same).

 18 Skinner v. Maritz, 235 F.3d 337, 340 (8th Cir. 2001). See also Pecoraro v. General American Life Ins. Co., 130 F. Supp. 2d 1093, 1096 (E.D.Mo. 2001)(pointing out that the Second and Fourth Circuits have looked to the general common law, while the Fifth and Tenth Circuits have considered state law in ruling on the question of at-will employees’ right to bring actions under § 1981).

 19 Fadeyi, 160 F.3d at 1050-51, citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989) (holding that an at-will employee could maintain a cause of action for tortious interference with contract against a third party who interfered with the employment relationship).

 20 Spriggs, 145 F.3d at 1018, citing Hrehorovich v. Harbor Hosp. Ctr., Inc., 614 A.2d 1021, 1030 (Md. Ct. Spec.App. 1992).

 21 Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999), cert. denied, 529 U.S. 1110 (2000), citing Melnick v. State Farm Mut. Auto. Ins. Co., 749 P.2d 1105, 1109 (N.M. 1988).

 22 Lauture, 261 F.3d at 262, citing Finley v. Giacobbe, 79 F.3d 1285, 1295 (2nd Cir. 1996).

 23 Fellhauer v. City of Geneva, 142 Ill. 2d 495, 512, 568 N.E.2d 870, 878 (1991) (quoting London Guarantee & Accident Co. v. Horn, 206 Ill. 493, 507 (1903). But see Tucker, 2000 WL 968828, at *7("because at-will relationships do not have the same status as contractual ones in Illinois, we find persuasive the reasoning of those courts which find that an at-will employee cannot establish the existence of a contractual relationship sufficient to support a § 1981 cause of action").

 24 See, e.g., Canel & Hale Ltd. v. Tobin, 304 Ill. App. 3d 906, 914, 710 N.E.2d 861, 871 (1st Dist. 2000), appeal denied, 185 Ill. 2d 619, 720 N.E.2d 1090 (2001), citing Fellhauer, 142 Ill. 2d at 510, 568 N.E.2d at 877.

 25 See Spriggs, 165 F.3d at 1020 (acknowledging that while at-will employees do not have contractual rights to specific terms of employment, an employer’s racially discriminatory discharge of such employees may still violate section 1981); Riad, 78 F. Supp. 2d at 756, citing Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981) (noting that rights conferred by antidiscrimination statutes are a species of tort right, and that under Illinois law, at-will employees may sue in tort where termination from employment violates a public policy).

 26 482 U.S. 656 (1987). See also Reed v. United Transp. Union, 488 U.S. 319, 323-24 (1989).

 27 735 ILCS 5/13-202 (2000).

 28 515 U.S. 29, 34 n.1 (1995).

 29 Perry, 199 F.3d at 1132.

 30 511 U.S. 298, 313-14 (1994).

 31 See Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999)(referring throughout the opinion to the Civil Rights Act of 1991 as distinct from Title VII, even though the 1991 Act amended Title VII).

 32 Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (internal quotes omitted).

 33 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984); Time Warner Cable v. Doyle, 66 F.3d 867, 876 (7th Cir. 1995), cert. denied, 516 U.S. 1141 (1996).

 33 Black’s Law Dictionary 546 (7th ed. 1999).

 34 Adams v. R.R. Donnelley & Sons, 149 F. Supp. 2d 459, 463-64 (N.D.Ill. 2001).

 35 See, e.g., Hill v. Textron Automotive Interiors, Inc., 2001 U.S. Dist. LEXIS 3595 (D.N.H. March 17, 2001); Nealey v. University Health Servs., 114 F. Supp. 2d 1358 (S.D.Ga. 2000); Rodgers v. Apple South, Inc., 35 F. Supp. 2d 974 (W.D.Ky. 1999); Miller v. Federal Express Corp., 56 F. Supp. 2d 955 (W.D.Tenn. 1999); Alexander v. Precision Machining, Inc., 990 F. Supp. 1304 (D. Kan. 1997). But see Coleman v. Shoney’s, Inc., 2001 WL 526673 (W.D.Tenn. March 9, 2001); Hall v. Flightsafety Internat’l, Inc., 106 F. Supp. 2d 1171 (D. Kan. 2000); Hardin v. CNA Ins. Co., 103 F. Supp. 2d 1091 (S.D.Ind. 1999).

 36 Zubi, 219 F.3d 220, 225 (3rd Cir. 2000).

 37 Madison v. IBP, Inc., 2001 U.S.App. LEXIS 14231, *43-44 (8th Cir. June 25, 2001).

 38 219 F.3d at 230 (Alioto, J., dissenting).

 39 114 F. Supp. 2d at 1365.

 40 See Blum v. Stenson, 465 U.S. 886, 896 (1984).

 41 Miller, 56 F. Supp. 2d at 964.

 42 See, e.g., Sentry Corp. v. Harris, 802 F.2d 229, 246 (7th Cir. 1986); London v. Coopers & Lybrand, 644 F.2d 811, 813 (9th Cir. 1981).

 43 Judicial Conference of the United States, Report of the Federal Courts Study Committee 93 (1990).

 44 H.R. Rep. No. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N. 6870.

 45 136 Cong. Rec. S17581 (October 27, 1990) (Sen. Biden).

 46 Zubi, 220 F.3d at 223.

 47 Id. at 225.

 48 Alexander, 990 F. Supp. at 1308.

 49 Adams, 149 F. Supp. 2d at 465.

Sharmila Roy is a 1984 graduate of the University of Arizona College of Law. She is an associate at the Naperville firm of Brooks, Adams and Tarulis, where she concentrates in appellate and employment law.

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