The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Christine Carrillo brings this action against her
former employer, Illinois Bell Telephone Co., alleging
discrimination in violation of Title VII of the 1964 Civil
Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. As a
Hispanic female, she alleges that this discrimination was based
on her sex, race and national origin. She also seeks pendent
jurisdiction over state law claims of breach of contract and
intentional infliction of emotional distress.*fn1
Carrillo claims that after she told her supervisors that she
was pregnant, they began to subject her to harassment and
discrimination, and that this led to her demotion, which was
ostensibly for excessive tardiness. She contends that she was
told to accept the demotion or lose her job, and that when she
refused to accept the demotion, she was discharged. Lastly,
she asserts that Illinois Bell has a policy requiring women
employees who have recently had a child to return to work at
the arbitrary decision of the company's physician, and that
this discriminates against them on the basis of sex and
Illinois Bell has moved to dismiss, or in the alternative
for summary judgment on, Carrillo's § 1981 claims, portions of
her Title VII claims and her pendent state claims. For the
reasons stated below, the motion is granted.
42 U.S.C. § 1981 provides, in relevant part, that:
All persons within the jurisdiction of the United
States shall have the same right . . . to make
and enforce contracts . . . and to the full and
equal benefit of all laws . . . as is enjoyed by
white citizens. . . .
The statute encompasses claims of discrimination based upon
race and alienage, Takahashi v. Fish & Game Commission,
334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). It does not,
however, provide relief for claims of discrimination based on
sex, Movement for Opportunity & Equality v. General Motors
Corp., 622 F.2d 1235, 1278 (7th Cir. 1980) or based on national
origin, Plummer v. Chicago Journeyman Plumbers' Local Union No.
130, 452 F. Supp. 1127, 1142 (N.D.Ill. 1978), rev'd on other
grounds, 657 F.2d 890 (7th Cir. 1981), cert. denied, ___ U.S.
___, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982).
On the issue whether discrimination against Hispanics
constitutes discrimination based on race or on national
origin, there is a substantial divergence of opinion. Some
courts have viewed such discrimination as based solely on
national origin and have dismissed Hispanics' claims under
§ 1981. E.g. Martinez v. Bethlehem Steel Corp., 78 F.R.D. 125
(E.D.Pa. 1978); Vazquez v. Werner Continental, Inc.,
429 F. Supp. 513 (N.D.Ill. 1977)*fn2; Gradillas v. Hughes Aircraft
Co., 407 F. Supp. 865 (D.Ariz. 1975). The trend among the judges
of this district has been to consider discrimination against
Hispanics as racial discrimination. E.g. Aponte v. National
Steel Service Center, 500 F. Supp. 198, 202-03 (N.D.Ill. 1980)
(Moran, J.); Ridgeway v. International Brotherhood of
Electrical Workers, Local No. 134, 466 F. Supp. 595, 597
(N.D.Ill. 1979) (Crowley, J.); Garcia v. Rush-Presbyterian-St.
Luke's Medical Center, 80 F.R.D. 254, 262-64 (N.D.Ill. 1978)
(Leighton, J.); Hernandez v. United Fire Insurance Co., 79
F.R.D. 419, 423 n. 2 (N.D.Ill. 1978) (Bua, J., dicta); Ortega
Insurance Co., 433 F. Supp. 135 (N.D.Ill. 1977) (Will, J.).
The courts extending § 1981 to discrimination against
Hispanics have frequently relied on the following dicta from
Budinsky v. Corning Glass Works, 425 F. Supp. 786, 788 (W.D.Pa.
The terms "race" and "racial
discrimination" . . . are subject to a
commonly-accepted, albeit sometimes vague,
understanding. Those courts which have extended the
coverage of § 1981 have done so on a realistic
basis, within the framework of this common meaning
and understanding. On this admittedly unscientific
basis, . . . Hispanic persons and Indians, like
blacks, have been traditional victims of group
discrimination, and however inaccurately or
stupidly, are frequently and even commonly subject
to a "racial" identification as "non-whites." There
is accordingly both a practical need and a logical
reason to extend § 1981's proscription against
exclusively "racial" employment discrimination to
those groups of potential discriminatees.
As Judge Moran explained the issue in Aponte, supra,
The plain meaning of the statute [§ 1981] attempts
to remedy different treatment of whites and
non-whites. Because Hispanics are frequently
identified as "non-whites," this court believes
that the scope of § 1981 is broad enough to extend
to that group.
These and other cases that have considered Hispanics as a
race for § 1981 purposes have recognized a legitimate problem
in our society today. Those persons with Spanish surnames come
from a wide spectrum of racial and ethnic backgrounds; their
ancestors include Old-World Spaniards, New-World Indians,
blacks, and mestizos of mixed ancestry. Indisputably, there are
individual Hispanics who consider themselves as nonwhite, are
frequently identified by others as nonwhite, and suffer
discrimination not only on the basis of their Spanish surname
but because of their "race," which is perceived as ...