The opinion of the court was delivered by: Moran, District Judge.
Three years ago this court held that the protections offered by
42 U.S.C. § 1981 of the Civil Rights Act extended to Hispanics.
In Aponte v. National Steel Service Center, 500 F. Supp. 198
(N.D.Ill. 1980), this court wrote:
The plain meaning of the statute 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.
Id. at 203-3. Presently before the court is the issue of whether
East Indians are also covered by section 1981. The court finds
that they are.
Plaintiff Sarvadaman Jasubhai Banker, a citizen of the State of
Illinois, is of East Indian ancestry.*fn1 In September, 1975,
Time Chemical, Inc. (Time) hired Banker as a technical director.
While so employed Banker was in charge of his department and
several other employees. One year after being hired Banker was
assigned to work as a chemist responsible for quality control. He
considered this a demotion. He was replaced as technical director
by a white American. In January, 1977, Banker's salary was
reduced to an amount less than he received when originally hired.
Banker was the only employee in the laboratory whose salary was
reduced. He continued to work as a chemist for Time until
January, 1978, when his employment was terminated.
Banker filed an action against Time in Illinois circuit court,
alleging discriminatory firing. Subsequent to filing that action
Banker brought suit in this court against Time under 42 U.S.C. § 1981.
Banker alleged that his demotion, salary reduction and
firing were discriminatorily motivated due to his "racial
identification and national origin." Defendant moves to dismiss
the action, claiming that East Indians are not covered by section
1981. Defendant also argues that plaintiff insufficiently alleged
his race in the complaint and that the statute of limitations has
run on a number of plaintiff's claims. Finally, defendant asks
this court to dismiss this action in deference to a pending state
court action pursuant to Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47
L.Ed.2d 483 (1976).
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and
enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and
proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no
42 U.S.C. § 1981. This section has been held to prohibit racial
discrimination in employment. See Waters v. Wisconsin Steel Works
of International Harvester Co., 427 F.2d 476, 482 (7th Cir.),
cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).
The section, however, is not necessarily directed to
discrimination against a different "race" in the technical sense.
See Keating v. Carey, 706 F.2d 377, 384 (2d Cir. 1983);
Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir.
1979). See generally Aponte v. National Steel Service Center, 500
F. Supp. at 202-03. Although discrimination based on national
origin alone is generally not considered to be within the ambit
of section 1981, see Jones v. Alfred H. Mayer Co., 392 U.S. 409,
413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968) (a § 1982 case
applying to § 1981 through Runyon v. McCrary, 427 U.S. 160, 171,
96 S.Ct. 2586, 2594, 49 L.Ed.2d 415 (1976)); 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, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d
134 (1982), this court, in Aponte, found "a degree of identity
between claims of national origin or ethnic background
discrimination and racial discrimination." Aponte v. National
Steel Service Center, 500 F. Supp. at 202. See Garcia v.
Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 263
(N.D.Ill. 1978). In Aponte this court, in finding that Hispanics
were covered by section 1981, was persuaded by the dicta in
Budinsky v. Corning Glass Works, 425 F. Supp. 786 (W.D.Pa. 1977),
which disputed the validity of rigid racial classifications in
section 1981 actions. The court in Budinsky wrote:
The terms "race" and "racial discrimination" may be
of such doubtful sociological validity as to be
scientifically meaningless, but these terms
nonetheless 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, whites are plainly a "race"
susceptible to "racial discrimination;" 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
prescription against exclusively "racial" employment
discrimination to these groups of potential
This view of race in the context of actions brought under section
1981 has been directly cited and accepted by a number of courts
in this district. See Badillo v. Central Steel and Wire Co., 89
F.R.D. 140, 142 (N.D.Ill. 1981) (Shadur, J.); Aponte v. National
Steel Service Center, 500 F. Supp. at 202-3 (Moran, J.); Garcia v.
Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254,
263-64 (N.D.Ill. 1978) (Leighton, J.); Ortega v. Merit Insurance
Co., 433 F. Supp. 135, 138-39 (N.D.Ill. 1977) (Will, J.). See also
Carrillo v. Illinois Bell Telephone Co., 538 F. Supp. 793, 796
(N.D.Ill. 1982) (Getzendanner, J.).
Defendant's argument stems from the language in Budinsky.
Defendant argues that East Indians, unlike Hispanics, are not
"traditional victims of group discrimination," not "commonly
subject to a `racial' identification as `non-whites,'" and thus
not within the scope of section 1981 as delineated in Budinsky.
In support of this argument defendant claims that East Indians in
this country generally have impressive educational backgrounds
and prestigious positions with high financial remuneration. See
generally Saran, Cosmopolitans from India, Society, Sept. 10,
1977, 65, 67. This evidence, defendant claims,
when contrasted with the relatively low educational, professional
and economic positions of Hispanics and blacks, indicates that
East Indians are not the victims ...