Wash. Court of Appeals published opinion — 318583.pub.pdf

As presently codified, § 1981(a) provides in relevant part that "[a]ll persons within

the jurisdiction of the United States shall have the same right in every State ... to make

and enforce contracts ... as is enjoyed by white citizens." Section 1981 not only protects

a plaintiffs right to respond to an existing offer of a contract, it also provides a remedy

where a defendant's action prevents a plaintiff from obtaining contracts. As pointed out

in McCrary, discussing the Court's earlier decision in Jones,

Just as in Jones a Negro's § 1 right to purchase property on equal terms
with whites was violated when a private person refused to sell to the
prospective purchaser solely because he was a Negro, so also a Negro's § 1
right to "make and enforce contracts" is violated if a private offeror refuses
to extend to a Negro, solely because he is a Negro, the same opportunity to
enter into contracts as he extends to white offerees.

427 U.S. at 170-71.

The meaning of "make and enforce contracts" for purposes of § 1981 was

broadened by Congress by the Civil Rights Act of 1991, in response to a decision by the

United States Supreme Court that construed § 1981 as having no application to "conduct

which occurs after the formation of a contract and which does not interfere with the right

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Sambas ivan v. Kadlec Med. Ctr.

to enforce established contract obligations." Patterson v. McLean Credit Union, 491

I u.s. 164, 171, 109 S. Ct. 2363,105 L. Ed. 2d 132 (1989). Following the 1991 act,
§ 1981 (b) broadly defines "make and enforce contracts" for purposes of the statute as

including "the making, performance, modification, and termination of contracts, and the