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BANKER v. TIME CHEMICAL

December 6, 1983

SARVADAMAN JASUBHAI BANKER, A/K/A SAM BANKER, PLAINTIFF,
v.
TIME CHEMICAL, INC., DEFENDANT.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

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.

FACTS

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).

Section 1981 Claim

Section 1981 provides:

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
  discriminatees.

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 ...


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