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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-2590

THOMAS JOHNSON,
Plaintiff-Appellant,
versus
UNCLE BEN'S, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

(July 1, 1992)
Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This employment discrimination class action has been in the
federal courts for eighteen years, a captive to large changes in
the controlling law. It now makes its third appearance before this
court. On behalf of himself and similarly situated class members,
Thomas Johnson appeals the grant of summary judgment in favor of
Uncle Ben's, Inc. We affirm.
I.
Thomas Johnson, an employee at a rice-processing plant owned
by Uncle Ben's, Inc., filed this suit in 1974. The complaint
alleged that, commencing in March 1972, UBI discriminated against
him and similarly situated Black and Mexican-American employees in
violation of 42 U.S.C. § 1981. He amended the complaint in 1975 to

add a claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.
The district court certified a class of Black and Mexican-
American persons who have been employed or may in the future be
employed by UBI. The case was tried to the bench from October 3
until October 21, 1977. At the conclusion of Johnson's direct
case, the district court dismissed all claims except discrimination
in the promotion of Black employees. UBI then called its personnel
manager and three expert witnesses. At the conclusion of Johnson's
direct examination of an expert rebuttal witness, the district
court granted judgment in favor of UBI.
The first district court opinion held that the proportion of
Blacks to whites in each job title at UBI should be compared to the
ratio of Black to white workers in comparable jobs in the Houston
Standard Metropolitan Statistical Area. Finding that the ratio of
Black to white workers in each job title at UBI was similar to the
proportion of Black to white workers in comparable jobs in the
Houston SMSA, the district court held that UBI had not violated
Title VII. Johnson I, 628 F.2d at 425.
We in turn vacated and remanded for further findings, holding
that workers employed in similar jobs in the Houston SMSA were not
necessarily the benchmark qualified applicant pool. Johnson v.
Uncle Ben's, Inc., 628 F.2d 419 (5th Cir. 1980). We stated:
"If [UBI] hires laterally, the relevant comparison is to
the general or qualified outside labor force. If Uncle
Ben's fills jobs by promotion, the relevant comparison,
as we recognized in James v. Stockham Valves & Fittings
Co., 559 F.2d at 331, 341, is the company's internal work
force. The applicability of James in any given case
2

turns on whether vacancies in non-entry level positions
are or could be filled by promotion. If the vacant
positions ordinarily are filled by lateral hires or
hiring from among graduates of relevant educational
programs, then the rigid James rule is inapplicable."
Johnson I, 628 F.2d at 425. We remanded for findings regarding
"how many of those 394 employees [at UBI] hold jobs that ordinarily
cannot be filled by promotion." Id. The district court was
instructed to "determine the number of Uncle Ben's jobs that were
filled by promotion and the number that were filled by hiring from
outside of the Uncle Ben's work force." Id. at 426.
The Supreme Court, however, vacated Johnson I and remanded the
case for reconsideration in light of its decision in Texas Dep't of
Community Affairs v. Burdine, 451 U.S. 248 (1981). Uncle Ben's,
Inc. v. Johnson, 451 U.S. 902 (1981). On remand, we held that
Burdine was inapplicable to this disparate impact case and again
remanded to the district court for further proceedings as stated in
Johnson I. Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (5th Cir.
1981).
Judge Sterling, who originally tried this case and issued the
first district court opinion reviewed in Johnson I, died while this
case was pending. The case was then assigned to Judge Hughes. On
May 2, 1991, Judge Hughes granted summary judgment in favor of UBI.
In his opinion, Judge Hughes stated that judgment for UBI was
appropriate because Johnson had failed to make a prima facie case
of disparate impact and had not stated an actionable claim under
§ 1981.
3

The district court held that Johnson proved only that there
was a "high percentage of Black employees at Uncle Ben [sic] in
low-level jobs versus a low percentage of minority employees in
high level jobs." Because Johnson failed to prove that low level
employees were the appropriate pool of qualified persons in the
relevant labor market, he failed to prove any disparate impact.
The district court also found that Johnson failed to prove
that any specific employment practice had a disparate impact upon
the rate of Black promotion and that UBI had, in any event,
rebutted any prima facie case by producing legitimate business
reasons for its employment practices. Finally, relying on
Patterson v. McClean Credit Union, 491 U.S. 164 (1989), the
district court rejected Johnson's § 1981 claim, finding that the
claim did not rest on discrimination in the formation of a new
employment contract.
The trial evidence consists largely of statistics concerning
placement of Black and white employees at UBI's two processing
plants and administrative offices in Houston, Texas. UBI's
workforce is organized into three categories--plant workers paid an
hourly wage, office workers paid an hourly wage, and salaried
personnel. Each group is, in turn, subdivided into "zones," each
zone representing a wage or salary range.
Johnson presented undisputed statistical evidence that Black
employees were generally clustered in the bottom job zones within
each of the three job categories, while the top job zones in each
category were filled by white employees. Black employees comprise
4

95.3% of the workforce in the three lowest plant hourly job zones,
holding jobs as porters, warehousemen, packers, fork lift
operators, fumigators, bran hull helpers, rough rice helpers, and
mill helpers. However, white employees held all of the highest two
plant hourly job zones, including maintenance first class, boiler
operator, and miller first class. The patterns were similar in
office hourly and salaried positions. That is, Blacks were in the
lowest office job zones, such as cafe porter, junior file clerk,
and cook, and lowest salaried positions, including microbiology
analyst and accountant. Whites held jobs in the higher zones in
both office and salaried categories, including stenographer, export
service clerk, receptionist, and computer operator and most of the
salaried managerial and supervisory positions.
Johnson did not deny that promotion across category lines,
while possible, was unusual. Generally, workers were promoted only
to the top of the job category in which they start their
employment. However, the parties fiercely disputed the lines of
promotion within each of the three job categories. UBI argued at
trial and on appeal that workers qualified to hold jobs in the
lower zones of a job category were not necessarily qualified to
hold higher jobs in the same category.
Johnson replied that the court should look to lower job zones
as the qualified applicant pool for the higher job zones because
the natural line of progression was a low level entry followed by
gradual promotions through the job zones rising through the plant,
office, or salaried hierarchy. He argues that Black employees were
5

not promoted at the same rate as whites. Black workers entered at
a low level and stayed there, stopped by a glass ceiling of race
discrimination.
Johnson offered data showing that most jobs at UBI were filled
through promotion. According to Johnson's undisputed evidence, in
March of 1972, 65.3% of all the salaried positions, 53.6% of the
office hourly positions, and 91.0% of the plant hourly positions at
UBI were filled by promotion and not by initial hire from outside
the UBI workforce. Johnson's data, however, said little about
which jobs at UBI were filled by promotion or, more importantly,
from which jobs different UBI jobholders were promoted.
II. Johnson's Title VII Claim
Johnson contends that three of UBI's employment practices--
tests, formal educational requirements, and subjective promotion
decisions by supervisors--had the effect of denying promotions to
a disparate proportion of Black employees. For his prima facie
case of disparate impact, Johnson "need[ed] only show that the
facially neutral employment standards operate more harshly on one
group than another." Carpenter v. Stephen F. Austin State
University, 706 F.2d 608, 621 (5th Cir. 1983). This initial burden
included proof of a specific practice or set of practices resulting
in a significant disparity between the proportion of Black
employees at UBI and the proportion of Blacks in the pool of
qualified applicants. Cox v. City of Chicago, 868 F.2d 217, 220
(7th Cir. 1989).
6

Statistical disparities between the relevant labor pool and
UBI's workforce are not sufficient. Pouncy v. Prudential Ins. Co.
of America, 668 F.2d 795, 800-801 (5th Cir. 1982). A plaintiff
must offer evidence "isolating and identifying the specific
employment practices that are allegedly responsible for any
observed statistical disparities." Wards Cove Packing Co., Inc. v.
Atonio, 109 S.Ct. 2115, 2124 (1989) (quoting Watson v. Fort Worth
Bank and Trust, 108 S.Ct. 2777, 2788 (1988) (plurality opinion)).
Johnson must also "offer statistical evidence of a kind and degree
sufficient to show that the practice in question has caused the
exclusion of applicants for jobs and promotions because of their
membership in a protected group." Watson, 108 S.Ct. at 2788-89;
Pouncy, 668 F.2d at 801 ("The disparate impact model requires proof
of a causal connection between a challenged employment practice and
the composition of the work force"). Absent "a systematic analysis
of the racial effects of all promotional criteria for each rank,"
Black Fire Fighters Ass'n. v. City of Dallas, Texas, 905 F.2d 63,
63 (5th Cir. 1990), Johnson cannot establish a prima facie case of
disparate impact.
Johnson challenges three employment practices: UBI's
"educational requirements," UBI's "subjective system of promotion,"
and UBI's use of irrelevant employment tests. Johnson was able to
do little more than describe the content or application of the
requirements. He failed a fortiori to show the specific effect
that each had on Black promotions.
7

As evidence of UBI's educational requirements, Johnson cites
the testimony of Dr. Richard Jeanneret, an industrial psychologist
and UBI's expert witness. Jeanneret testified concerning his study
of 119 job titles at UBI, in which he interviewed UBI's employees,
observed work at UBI's facilities, and studied various job
descriptions. At trial, he testified about the level of education
that he believed UBI employees would need to perform different jobs
successfully. Jeanneret did not explain in detail which jobs at
UBI required which levels of education. He simply described the
number of jobs at UBI that required a high school or college degree
"or equivalent experience."1
Jeanneret also did not purport to testify concerning the
educational levels that UBI actually required. Rather, he
testified only about the skills he believed UBI's employees ought
to have. He conceded that UBI's own job descriptions did not
contain "written educational requirements" and that he was
testifying from his "expertise as opposed to some requirement that
is imposed at Uncle Ben's." Jeanneret testified that UBI's
"posting notices" announcing "something about education or an
education related item" such as "training in . . . chemistry or
math," but he did not testify at any time that UBI actually
1Dr. Jeanneret testified out of roughly 191 jobs, 39 of the
jobs required a college degree, 27 required "some college perhaps
or some type of training beyond that which one normally gets at
high school," 39 required "either high school or some form of
vocational school or some other type of equivalent education," 45
jobs would require "simply a high school education or equivalent
experience," and 43 jobs would require "less than a high school
education."
8

required employees to have any degrees or formal education level
for promotion to any UBI job.
Dr. Jeanneret's testimony, therefore, does not compel the
conclusion that UBI had formal educational prerequisites for
promotion. Aside from Dr. Jeanneret's testimony, Johnson relies on
his own testimony to establish that educational requirements
existed at UBI. He testified that a supervisor told him that "you
don't have the science background or the academic background to
satisfy the needs of the job [to which Johnson sought promotion]"
(emphasis added). However, even if the district court credited
Johnson's testimony, that testimony indicates at most that a
supervisor told Johnson that he lacked necessary "background" in
science, not that Johnson lacked a formal degree or other specific
educational prerequisite to promotion. According to Johnson's own
testimony, the supervisor simply informed Johnson that "you don't
have the skills that we are looking for." This testimony indicates
at most that UBI required some unspecified level of scientific
training.
In contrast to the testimony of Dr. Jeanneret and Johnson
himself, UBI's personnel director, Herman Koehn, presented specific
testimony that UBI did not require any particular level of
education for most of the jobs at UBI. Koehn testified that "[w]e
don't make an evaluation on whether [one] finished high school or
not in terms of [whether one will] be[] offered a job." According
to Koehn, he "never thought about job requirements in terms of high
9

school or no high school." Rather than rely on formal education,
Koehn testified that UBI
"would focus on the job and the ability to make numerical
calculations and reading and writing. And [this would]
not necessarily [be] reflected upon the number of years
at school. It would be what they had learned and what
they were able to do through displaying what they can do
on the job."
Koehn also noted that there were supervisors who had never obtained
a college degree. Koehn admitted that food supervisors in research
and development had to have "knowledge in the sciences," but he
denied that this knowledge required a "specific degree." Rather,
the supervisor in research and development needed "an educational
background in the "physical sciences, chemistry, courses that
relate to . . . food science." Koehn also stated that microbiology
analysts ought to have "academic training in microbiology," but,
again, he did not specify the level of training expected.
In short, Johnson presented frail evidence concerning the
differing educational backgrounds that UBI required for different
jobs and presented no evidence whatsoever concerning how many Black
employees failed to meet UBI's requirements. Johnson contends that
any educational requirements, regardless of their content, would
"by definition" have a disparate impact on Black promotion rates,
because Blacks in general tend to have less education than whites.
To support this argument, Johnson cites national data from the 1970
U.S. census in his brief on appeal.
The national population, however, is not the qualified labor
pool against which UBI's workforce should be compared. The effect
of educational requirements on the ability of Blacks in the
10

national population to get promotions at UBI has little relevance.
New York Transit Authority v. Beazer, 440 U.S. 568, 584-87 (1979)
(statistics showing that 63%-65% of methadone users in New York
City's public programs were Black or Hispanic does not show that a
disproportionate number of Black or Hispanic Transit Authority
employees were dismissed for using methadone). The question is
whether and how specific educational requirements affected UBI
employees seeking promotions. It is not obvious that Black UBI
employees in the pool of employees qualified for promotion to
higher levels would not have the skills or education allegedly
required for promotion.
In short, there was little record evidence of the effects of
educational requirements on Black promotion rates from the
qualified applicant pool--employees at UBI. This is not to say
that UBI's entire internal workforce constituted the appropriate
statistical pool against which the proportion of Black employees at
UBI should be measured. Assuming without deciding that some job
zones at UBI should be compared with other lower UBI job zones, we
find a complete absence of evidence that UBI employees were barred
by educational requirements from reaching higher levels of
employment at UBI. The district court did not clearly err in
finding that Johnson failed to show that these alleged educational
requirements affected Black promotion.
Johnson also argues that UBI allowed its supervisors to make
promotion decisions subjectively and that this practice resulted in
a disparity between the promotion rates of Black and white
11

employees. However, "an employer's policy of leaving promotion
decisions to the unchecked discretion of lower level supervisors
should itself raise no inference of discriminatory conduct."
Watson, 108 S.Ct. at 2786. See also Pouncy, 668 F.2d at 801-02.
Johnson has not offered any evidence that Blacks' allegedly smaller
number of promotions was causally related to this subjectivity.
This cannot suffice to establish a prima facie case. Wards Cove,
109 S.Ct. at 2124-25.
Finally, Johnson refers to UBI's "use of invalidated
employment tests" as one challenged employment practice that had a
disparate impact on Black employees seeking promotions. There was
testimony that UBI had used three different written tests to
evaluate job applicants: (1) a typing test for jobs requiring
typing; (2) an arithmetic aptitude test for clerical jobs requiring
calculation such as statistical clerk; and (3) a "mental
adaptability test," which purported to test basic reading and math
skills. The last test was apparently discontinued sometime between
1971 and 1973.
Johnson presented no evidence of the effects of these tests on
Black promotions. There was no testimony that Blacks performed
more poorly on these tests than whites or that any Black employee
was denied a promotion as a result of his performance on these
tests. Indeed, Ethylene Burks, one of Johnson's witnesses and the
only witness to testify about a Black employee's performance on the
mental adaptability test, stated that the employee achieved a high
score of 90 on the test. Burks also testified that achievement of
12

any particular test score was not a prerequisite for promotion and
that test scores were only one factor among many that a supervisor
might consider. Given the dearth of evidence on the effects of the
various tests on Black promotion rates, we conclude that Johnson
failed to establish any causal nexus between the scores and the
alleged disparate impact.
Johnson contends that this court's earlier decision in Johnson
I precludes the district court from finding that he had failed to
make a prima facie case. According to Johnson, the Johnson I court
remanded for the narrow purpose of determining whether the
appropriate pool of qualified applicants constituted the entire
workforce of UBI or the population of people holding jobs similar
to those at UBI in the Houston Standard Metropolitan Statistical
Area. Johnson also argues that, if most jobs at UBI were filled
through promotion, then, under Johnson I, the district court was
required to find that Johnson had succeeded in establishing a prima
facie case of disparate impact.
We need not determine whether or not the district court's
findings went beyond the mandate of the Johnson I court. Assuming
arguendo that they did, we find that intervening Supreme Court
decisions justified such a departure. The "mandate rule" is "a
specific application of the 'law of the case' doctrine.'" Piambino
v. Bailey, 757 F.2d 1112, 1120 (5th Cir. 1985). Under this rule,
the district court must follow an appellate decision on an issue in
all subsequent trial proceedings unless the presentation of new
evidence or an intervening change in the controlling law dictates
13

a different result or if the appellate decision is clearly
erroneous and, if implemented, would work an egregious result.
Falcon v. General Telephone Co., 815 F.2d 317, 320 (5th Cir. 1987).
If the Johnson I court held that a disparity between the
proportion of Blacks in UBI's workforce and the relevant labor pool
of qualified applicants together with the use of challenged
employment practices were sufficient to establish a prima facie
case of disparate impact, it has been contradicted by the Supreme
Court's decision in Wards Cove, the Supreme Court's plurality
opinion in Watson, and this court's decision in Pouncy. As we have
explained, Johnson must identify a causal nexus between a specific
employment practice and a disparity in Black promotions. The
district court did not err in following Wards Cove and requiring
evidence that the particular challenged practices caused a
disparity in Black promotions.
III. Johnson's § 1981 Claim
Citing Patterson v. McClean Credit Union, 491 U.S. 164 (1989),
the district court held that Johnson's allegations of intentional
discrimination were not actionable under 42 U.S.C. § 1981, because
Johnson's allegations concerned "post-formation conduct of the
employment relationship, rather than . . . the making or enforcing
of a new contract." The district court found that Johnson's
evidence of discrimination was based entirely on discrimination in
"wage increases" and in promotions within each of the three basic
job categories. The district court held that movement within each
of the three categories--plant hourly, office hourly, and salaried-
14

-did not work sufficient change in the employer-employee
relationship under Patterson.
Patterson requires discriminatory "conduct at the initial
formation of the contract" or "conduct which impairs the right to
enforce contract obligations through legal process." Patterson,
109 S.Ct. at 2374. Discriminatory denials of promotion do not
state a claim under § 1981 unless the promotion denied to the
plaintiff "rises to the level of an opportunity for a new and
distinct relation between employee and employer." Id. at 2377.
Determining whether a promotion would create a "new and
distinct relation" requires a fact-specific examination into
employee's duties, pay, and responsibility before and after the
promotion. Harrison v. Associates Corp. of North America, 917 F.2d
195, 198 (5th Cir. 1990). The inquiry does not lend itself to
blanket prescriptions. At the least, "[R]outine increases in
salary and responsibility which are clearly part of an original
contract of employment" do not signal a new employment relation.
Harrison, 917 F.2d at 198. "It would be very odd to regard each
rung on the career ladder as a different employment relation."
McKnight v. General Motors Corp., 908 F.2d 104, 110 (7th Cir.
1990).
Johnson presented little evidence of the precise nature of the
promotions assertedly denied its class members. Rather, Johnson
urged that class members were denied promotion "from hourly-paid
positions to salaried positions and from non-supervisory positions
to supervisory positions." Johnson's anecdotal evidence of
15

specific attempts to obtain promotions showed that the promotions
involved routine upward movement by one or two job zones within a
single job category--plant, office, or salaried. In most cases,
both the pay raise and the change in responsibilities were modest,
involving no assumption of supervisory responsibility or change
from wage payment to payment of salary.
For instance, Ida Johnson, a junior file clerk (office job
zone two), applied for the position of traffic clerk (office job
zone four). Both jobs were essentially non-supervisory, clerical
positions paid by the hour, the latter being distinguished
primarily by the new duty of typing. Likewise, Marie Horner
testified that a typist, Brenda Smith, was denied a promotion to
the position of office receptionist--again, a move of two zones
from one non-supervisory, office-hourly position to another.
Zachary Perkins was denied a promotion from steeper-cooker (plant
zone four) to dryer operator (plant zone seven). Both were non-
supervisory positions involving the operation of plant machinery,
and Perkins testified that steeper-cooker operators were normally
promoted to dryer operator as a matter of course.
Two class members present a closer case. Clyde Cobb and
Johnson himself sought and were denied promotions from non-
supervisory jobs in salaried job zone seven (the lowest salaried
job zone) to a supervisory position. As the promotion sought was
from a non-supervisory position to a supervisory position, there is
not a complete absence of evidence that the promotion involved a
new employment relation: changes in supervisory status are
16

relevant to determining whether a promotion creates a new and
distinct relation under Patterson. Sitgraves v. Allied-Signal,
Inc., 953 F.2d 570, 574 (9th Cir. 1992).
However, we find that the record evidence concerning the
promotions sought by Cobb and Johnson is insufficient to create a
genuine fact question. Attainment of supervisory status does not
alone create a new and distinct employment relation. Partee v.
Metropolitan School District of Washington Township, 954 F.2d 454,
457 (7th Cir. 1992); Mozee v. American Commercial Marine Service
Co., 940 F.2d 1036, 1051-55 (7th Cir. 1991). Aside from the
supervisory status of the jobs sought by Cobb and Johnson, the
other evidence suggested that the promotions would not create a new
employment relation. Dr. Jeanneret's undisputed testimony about
the supervisory positions was that they could only be filled
through promotion from lower-zoned positions.2 Such testimony
indicates that the positions were simply rungs on a career ladder,
not new employment contracts. Malhotra v. Cotter & Co., 885 F.2d
1305, 1311 (7th Cir. 1989).
In any case, aside from the fact that Johnson and Cobb sought
supervisory positions, Johnson has not pointed to specific record
evidence that the promotions sought by Cobb and Johnson would
create new employment relations. Given that the change from a non-
supervisory to a supervisory position does not suffice by itself to
2On cross-examination, Dr. Jeanneret testified that "all of
these jobs [administrators and managers] would require experience
at Uncle Ben's really before assuming the position," and he
agreed that such positions were "jobs that a person has to be
promoted into."
17

create a new employment relation, Johnson has not carried his
summary judgment burden. Celotex Corp. v. Catrett, 106 S.Ct. 2548,
2553 (1986); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-17
(5th Cir. 1992).
Johnson's general contention that the promotions in this case
involved "new and distinct relations" sits uneasily with his
contention at trial that UBI's job zones represented routine steps
in a sequential hierarchy in which work in each job zone gave the
qualifications needed for the duties of the next zone. With such
a natural progression, promotion within a single job category and
across only one or two pay zones is not likely to create a new
employment contract. To the contrary, they appear to be a
fulfillment of expectations implicit in the original employment
contract. Johnson strenuously argued at trial that the zone-by-
zone promotion was simply the ordinary progression of a UBI
employee. It is difficult to accept that proposition and also the
proposition that each promotion represented a "new and distinct
relation." Carter v. South Central Bell, 912 F.2d 832, 840 (5th
Cir. 1990). The district court did not err in concluding that
under the undisputed evidence there was no "new and distinct
relation between employee and employer" within the meaning of
Patterson.
IV. Retroactivity of the Civil Rights Act of 1992
In a Rule 28(j) letter sent to the clerk of this court four
days after the enactment of the Civil Rights Act of 1991, Johnson
argued that the Civil Rights Act of 1992 ought to be applied to
18

this case retroactively. The Civil Rights Act of 1991, 42 U.S.C.
§ 2000e-2(k), however, did not alter the "particularity" aspect of
Wards Cove as applied in this case.3 The application of the Act
has no effect on our disposition of Johnson's Title VII disparate
impact claim, and we need not address whether the Act's provisions
affecting Title VII disparate impact claims are retroactive.
The Act would, however, affect the disposition of Johnson's
§ 1981 claim. Section 101(2)(b) of the Act construes § 1981 to
include
"the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship."
42 U.S.C. § 1981(b). Under § 1981 as amended by the Act, racial
harassment and other discrimination in an employment relation
occurring after contract formation is actionable. If the Act
applies to this case, the district court erred in dismissing
Johnson's § 1981 action on the ground that the discrimination did
not occur during the formation of a new employment relation.
We must determine whether § 101 of the Act amending § 1981
applies retroactively to cases pending when the Act was enacted.
We have not previously addressed the issue. Three circuits and the
Equal Employment Opportunity Commission have done so. Luddington
3Section 105(a) of the Act, 42 U.S.C. § 2000e-
2(k)(B)(i)(A)(i) provides that "the complaining party shall
demonstrate that each particular challenged employment practice
causes a disparate impact, except that if the complaining party
can demonstrate to the court that the elements of a respondent's
decision-making process are not capable of separation for
analysis, the decision-making process may be analyzed as one
employment practice."
19

v. Indiana Bell Telephone Co., No. 91-2320 (7th Cir. June 15, 1992)
(Posner, J.); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th
Cir. 1992); Mozee v. American Commercial Marine Service Co., No.
90-2660 (7th Cir. May 7, 1992); Vogel v. City of Cincinnati, 959
F.2d 594 (6th Cir. 1992); EEOC Notice No. 915.002 (December 27,
1991). All have found that the Act does not apply retroactively to
conduct occurring before the effective date of the Act.
We find the holdings of all other circuits on this issue
persuasive. The statutory language and legislative history is
inconclusive on the question of retroactive application. Applying
a general presumption against retroactive application of
substantive laws, we find that § 101 of the Act, 42 U.S.C.
§ 1981(b), should not be applied to a case pending on appeal that
was filed and decided by the trial court before the enactment of
§ 101 and that arises out of conduct occurring before § 101's
enactment.
In determining whether a statute is retroactive, we look first
to the language of the statute. The language of the Civil Rights
Act of 1991 offers little help. As one court has noted, Congress
"dumped the [retroactivity] question into the judiciary's lap
without guidance." Luddington, No. 2320, at 3. The Act nowhere
states that it applies either prospectively or retrospectively. It
is silent on the subject, stating only that it "shall take effect
upon enactment"--November 21, 1991.
Sections 109(c) and 402(b) of the Act state that the Act
should not apply retroactively to certain categories of cases.
20

P.L. No. 102-166, §§ 109(c), 402(b), 105 Stat. 1071-1100.4 One
district court has reasoned that § 402(b) and § 109(c) imply that
the statute should generally be applied retroactively. Otherwise,
the specific sections withdrawing retrospective application would
be "meaningless." Stender v. Lucky Stores, Inc., 780 F.Supp. 1302,
1304-05 (N.D. Cal. 1992).
Stender's reasoning rests too much on negative implication.
Congress may have wanted to ensure that certain retroactive
applications of the statute were barred without intending to reach
any general conclusion about the statute's general retroactive
application. Mozee, 90-2660, at 9-10. Several Senators stated as
much. Fray, 960 F.2d at 1377. Moreover, attempts to extend the
Act explicitly to pending cases failed. President Bush vetoed the
Civil Rights Act of 1990, which contained language applying the Act
retroactively to pending cases. The Civil Rights Act of 1991
dropped this language and was signed by the President. It may have
been that neither the proponents of retroactive application nor the
supporters of pure prospectivity could obtain a veto-proof majority
concerning the general application of the Act. We do not know, but
the relevant point is that the negative implication cannot carry
Stender's freight given the swirling confusion surrounding the
Act's passage.
4Section 402(b) provides that the Act shall not apply
retrospectively to the Wards Cove case itself, and § 109(c)
provides that the Act's provisions giving the Act
extraterritorial reach shall not apply retroactively.
21

Legislative history also sheds little light on whether the Act
should apply to pre-enactment conduct. There is little point in
reciting speeches made on the floor of Congress concerning
retroactivity. These remarks have been summarized before, see,
e.g., Fray, 960 F.2d at 1376, and they "contain statements that
both favor and disfavor the retroactive application of the 1991
Civil Rights Act to pending cases." Mozee, No. 90-2660, at 12.
See also Vogel, 959 F.2d at 598 (noting that Senators Danforth and
Kennedy expressed different views concerning retroactivity of Act).
We conclude only that members of Congress reached no consensus and
left it to the courts to resolve. Luddington, No. 91-2320, at 4;
Mojica v. Gannett Co., Inc., 779 F.Supp. 94, 96 (N.D.Ill. 1991).
We are faced with a deliberately ambiguous statute, and we are
asked to resolve political questions Congress was not able to
answer. This difficulty is not unfamiliar. It is exacerbated by
conflicting lines of authority in the Supreme Court's jurisprudence
concerning statutory retroactivity. In Bradley v. Richmond School
Board, 416 U.S. 696, 716 (1974), the Supreme Court declared a
"general rule that a court is to apply a law in effect at the time
it renders its decision." Bradley seems to have adopted this
"general rule" "even where the intervening law does not explicitly
recite that it is to be applied to pending cases." Id. at 715. By
contrast, in Bowen v. Georgetown University Hospital, 109 S.Ct.
468, 471 (1988), the Supreme Court held that the Secretary of
Health and Human Services could not promulgate retroactive limits
on reimbursable Medicare costs. According to Bowen,
22

"Retroactivity is not favored in the law. Thus,
congressional enactments and administrative rules will
not be construed to have retroactive effect unless their
language requires this result."
Bowen, 109 S.Ct. at 471 (citations omitted). The Supreme Court has
acknowledged the "apparent tension" between these two positions,
Kaiser Aluminum & Chem. Corp. v. Bonjorno, 110 S.Ct. 1570, 1577
(1990), but it has yet to choose between the two presumptions.
Our own decisions straddle the divide between Bowen and
Bradley. Some decisions follow Bowen's "general rule barring
retroactivity." Sierra Medical Center v. Sullivan, 902 F.2d 388,
392 (5th Cir. 1990). See also Walker v. United States Department
of Housing and Urban Development, 912 F.2d 819, 831 (5th Cir.
1990). Other cases, however, follow Bradley's rule that "a change
in law while a case is on direct appeal be given affect." See,
e.g., Louviere v. Marathon Oil Co., 755 F.2d 428, 430 (5th Cir.
1985).
Forced as we are to choose a canon without the guidance of
controlling authority, we find that § 101 should be construed not
to apply to cases arising out of conduct occurring prior to the
enactment of § 101. We follow the canon that statutes affecting
substantive rights "are ordinarily addressed to the future and are
to be given prospective effect only." Turner v. United States, 410
F.2d 837, 842 (5th Cir. 1969). See also United States v. Vanella,
619 F.2d 384, 385 (5th Cir. 1980) (quoting Greene v. United States,
376 U.S. 149, 160 (1964)) ("'legislation must be considered as
addressed to the future, not to the past . . . [and] a
retrospective operation will not be given to a statute which
23

interferes with antecedent rights'"). This canon has a lengthy
pedigree, see Kaiser Aluminum, 110 S.Ct. at 1579 (Scalia, J.,
concurring), reflecting obvious and fundamental concerns of
fairness and predictability. Luddington, No. 91-2320, at 4.
In Bennett v. New Jersey, 470 U.S. 632, 638-40, 105 S.Ct.
1555, 1559-60 (1985), the Court held that substantive provisions of
amendments to the 1978 Amendments to the Elementary and Secondary
Education Act cannot be applied retroactively to funds expended in
1971-72. In distinguishing Bennett from Bradley, the Supreme Court
noted that the rule in Bradley was limited by "another venerable
rule of statutory interpretation, i.e., that statutes affecting
substantive rights and liabilities are presumed to have only
prospective effect." Bennett, 470 U.S. at 639, 105 S.Ct. at 1560.
The Bennett Court noted that Bradley concerned allowance of
attorney's fees under § 718 of the Emergency School Aid Act, 20
U.S.C. § 1617--a remedial provision--not substantive obligations or
rights under a statute. Id.
Section 101 affects substantive antecedent rights. Under
Patterson, § 1981 did not prohibit discrimination in promotions
before the enactment of § 101. Section 101 extended § 1981 to such
discriminatory conduct. We then presume that § 101 does not apply
to conduct that occurred before its enactment, absent clear
evidence to the contrary. There is no such clear evidence.
We recognize the apparent anomaly that, at the time of UBI's
allegedly discriminatory conduct, Patterson had not yet been
decided and, under the decisions of many lower courts, § 1981
24

applied to racial discrimination in promotions. UBI's reliance on
the law announced in Patterson, therefore, may be minimal. Some
opinions have argued that, given such minimal reliance, the
presumption against retroactivity should not operate. Mozee, No.
90-2660, at 37 (Cudahy, J., dissenting); Stender, 780 F.Supp. at
1308; Mojica, 779 F.Supp. at 98.
We are not persuaded. As a matter of law, the rule announced
in Patterson applies retroactively to UBI's conduct in 1974.
Lavender v. V. & B. Transmissions & Auto Repair, 897 F.2d 805, 806-
07 (5th Cir. 1990). Cf. James B. Beam Distilling Co. v. Georgia,
111 S.Ct. 2439 (1991). UBI is just as entitled to the preservation
of its substantive interests under this rule as litigants whose
conduct occurred after Patterson was decided. Any other holding
would require unwieldy distinctions between classes of litigants
based on the degree to which they relied on the legal regime
antedating the Civil Rights Act of 1991. We decline to embark on
such an inquiry. Luddington, No. 91-2320, at 8.
Having decided that § 101 does not apply retroactively to
UBI's conduct, it follows that Johnson's § 1981 claims are governed
by the Supreme Court's decision in Patterson. As we have
explained, we affirm the district court's finding that Patterson
bars Johnson's § 1981 claim.
AFFIRMED.
25