concurring and dissenting, with whom A. LEON HIG-GINBOTHAM, Jr., Circuit Judge, joins.
I join parts I, II, IV, and V of the majority opinion and dissent only from the majority’s holding in part III that a plaintiff must prove a racially discriminatory purpose to establish a right to relief under 42 U.S.C. § 19811 for employment discrimination. I reach a contrary result for reasons of principle and policy; because of the desirability of clarity and understanding for the lay public, employees and employers alike; and because of the necessity for symmetry in the law of employment discrimination.
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 other.
I.
The § 1981 issue that divides this court today is solely one of statutory construction. I agree completely with the majority’s observation that “neither the language nor the legislative history provides certain guidance in interpreting section 1981.” Majority op. at 988. The traditional approaches of statutory interpretation — the mischief rule, the golden rule, the literal rule, and the plain meaning rule 2 * — also furnish little help with this troublesome problem. This is because the problem of statutory construction before us is not a problem of language analysis in the strict sense, arising from the presence of an unclear norm, but a problem of a lacuna, a non-existent norm3
This troublesome and recurring problem of statutory voids was recognized many decades ago by John Chipman Gray:
The fact is that the difficulties of so-called interpretation arise when the legislation has had no meaning at all; when the question which is raised in the statute never occurred to it; when what the judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.4
When this occurs, I am inclined to follow what Professor Robert A. Leflar has described as the “sound law” approach: “sound in terms of the new use and demands of society as related to the particular *1000area of law to which the statute refers.” 5 I am also attracted by the formulation of Professor (now U.S. District Judge) Robert E. Keeton, who has taught that under the circumstances presented here, we should
aim for resolving the issue at hand so as to produce the best total set of rules, including those within the core area of the statute and other cognate rules of law, whatever their source. Defer to the statute’s manifestations of principle and policy, as far as they can be ascertained. Accept the inapplicable statutory mandate as a datum. Accept other statutory directives and judicial precedents as data. Aim for a decision on this issue that will produce an evenhanded system for this issue and all the cognate issues that are answered in statutes and other precedents.6
I approach the solution to our immediate problem in the spirit of the Leflar and Keeton formulations.7 This approach requires me to consider the field of employment discrimination law as a whole, and to consider § 1981 in conjunction with Title VII of the Civil Rights Act of 1964 and not separately or independently.
II.
Both statutes provide federal remedies for racial discrimination in private and public employment. Title VII, the later of the two statutes, was not enacted in a vacuum; it was adopted with a clear recognition that § 1981 was already available as a remedy. The legislative history of Title VII discloses Congress’ understanding “that the remedies available to the individual under Title VII are co-extensive with the individual’s right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive.” H.R. Rep.No.238, 92d Cong., 1st Sess. 19 (1971), reprinted in [1972] U.S.Code Cong. & Ad. News 2137, 2154.
Admittedly, the two remedies do not track each other precisely. “[Although related, and although directed to most of the same ends, [they] are separate, distinct, and independent.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). Section 1981 is more limited in that it prohibits only racial discrimination; Title VII encompasses discrimination because of sex, religion, and national origin. Section 1981 is not limited to employment discrimination; it has a much broader reach, not relevant for our purposes here. It does not exempt employers of fewer than fifteen persons, bona fide private membership clubs with less than twenty-five members, or religious groups employing workers in religion-oriented positions.8 See Johnson, 421 U.S. at *1001460, 95 S.Ct. at 1720. It is not subject to the short limitations period of Title VII,9 but is governed by the most closely analogous state statute of limitations. These are differences, to be sure, but I defend the thesis that these distinctions do not demand a difference in the elements of a claim for relief.
Recognizing that we are dealing with a lacuna, a void in the law, requiring us to divine somehow the legislative intent, we should candidly admit with Professor Gray that we are guessing what Congress would have intended “on a point not present to its mind.” I believe it is entirely legitimate to regard our declared national policy of opposition to employment discrimination as a legitimate aid in solving this problem. With Roger J. Traynor I believe that dictates of public policy are legitimate tools in judicial decisionmaking when neither express statute nor relevant precedent furnishes an answer.10 I am persuaded that public policy as manifested by congressional activity is to expand, and not to contract, the reach of statutes dealing with employment discrimination. Congress enacted massive amendments to Title VII in 1972,11 extending that statute’s protection to public employees,12 but it did not tinker with the judicially-created impact standard.13 I have not discovered any federal legislation that suggests or demands a more exacting standard of proof in employment discrimination cases under § 1981.
I have emphasized the technical differences between the two statutes deliberately, because I must assume that in enacting Title VII Congress also recognized the circumstances where the two remedies are congruent. A mere glance at the annotations to the two statutes clearly indicates that in most actions where § 1981 will apply, Title VII will also apply. In terms of modern commercial and industrial activities, a qualified plaintiff may utilize either statute as a remedial vehicle except in cases affected by the different periods of limitation. Because Congress enacted the newer statute to augment the older in the field of employment discrimination, I must conclude that it deliberately designed the twin remedies to cover the entire field of employment discrimination based on race.
III.
I now turn to the mass of judicial decisions interpreting the legislative product. The fact is that the colossus of our employment discrimination law has not developed through judicial gloss being added to the language of § 1981, but rather to the text of Title VII. It has been Title VII, and not § 1981, that has served as the fountainhead of judicial lawmaking in the employment discrimination field. And like § 1981, Title VII contained lacunae.
The courts have already filled the Title VII lacunae. In an undeviating series of cases beginning with Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the courts — not Congress — have established a dichotomy that recognizes claims established by proof of disparate impact as well as disparate treatment. Having fashioned this dichotomy and having affirmed and reaffirmed that discriminatory intent is not a necessary element of a Title VII claim, the courts should not now unduly complicate this very difficult and sensitive area of the law by requiring proof of intent in overlapping actions under § 1981. The courts should not take two pieces of legislation, each containing serious and identical voids, and without good reason fabricate different standards for proof of a violation.
*1002I believe that there will be more predictability and reckonability to the law of employment discrimination, more understanding and societal acceptability by the lay public, including putative employees, employees, and employers alike, if there is consistency in the judicial interpretation of the two statutes. The interested lay public will not be able to understand that where a claim of discrimination antedates the limitation period of Title VII the employee must prove discriminatory intent for years one and two, but need only prove discriminatory impact for years three and four.
When the language of a statute is insufficient, the methods utilized by the courts to assist in the construction process are designed for one purpose — to ascertain the intent of Congress. Because I do not believe that Congress intended that § 1981 be interpreted in one way as to the standard of proof and Title VII in another, I would hold that the traditional wisdom that has emerged from the mass of judicial construction of Title VII should be applied to § 1981 cases as well. I believe that this is the sound approach, commensurate with the developing nuances of employment discrimination law, and sound in terms of societal claims, wants, and demands.
Racial discrimination can be the most virulent of strains that infect a society, and the illness in any society so infected can be quantified. Exposure to embarrassment, humiliation, and the denial of basic respect can and does cause psychological and physiological trauma to its victims. This disease must be recognized and vigorously eliminated wherever it occurs. But racial discrimination takes its most malevolent form when it occurs in employment, for prejudice here not only has an immediate economic effect, it has a fulminating integ-rant that perpetuates the pestilences of degraded housing, unsatisfactory neighborhood amenities, and unequal education.
Our profound national policy of opposition to racial discrimination must continuously and unstintingly concentrate on its eradication in employment. If the courts are to implement this policy in our function of interpreting relevant statutes, our compass must be constantly jammed in that direction, for there we find the better rule of law. Professor Harry W. Jones has reminded us:
A legal rule ... is a good rule . . . when — that is, to the extent that — it contributes to the establishment and preservation of a social environment in which the quality of human life can be spirited, improving and unimpaired.14
The rule that I s'uggest meets this test. Accordingly, I would reverse the district court’s judgment to the extent it held that the plaintiffs had to prove intentional discrimination in order to prevail in their § 1981 claims, and remand for further proceedings.
. 42 U.S.C. § 1981 provides:
. See H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1144 — 46 (Cambridge Tent. ed. 1958), reprinted in R. Aldisert, The Judicial Process 175-77 (1976).
. See M. Cappelletti, J. Merryman & J. Perillo,-The Italian Legal System 253 (1967).
. J.C. Gray, Nature and Sources of Law 172-73 (2d ed. 1921). See also W. Friedmann, Legal Theory 453 (5th ed. 1967), quoting Eyston v. Studd (Eng. 1574):
[I]t is a good way, when you peruse a statute, to suppose that the lawmaker is present; and that you have asked the question you want to know touching the equity; then you must give yourself an answer as you imagine he would have done, if he had been present.
. See Leflar, Statutory Construction: The Sound Law Approach, in R. Aldisert, The Judicial Process 177, 180 (1976).
. Keeton, Statutes, Gaps, and Values in Tort Law, 44 J. Air Law & Commerce 1, 9 (1978).
. This approach is similar to that prescribed in several European Civil Codes, which frankly and publicly recognize that situations will occur that were not within the contemplation of the legislative draftsmen. Perhaps the best known model is the Swiss Civil Code of 1907:
Art. 1: The Code governs all questions of law which come within the letter or the spirit of any of its provisions.
If the Code does not furnish an applicable provision, the judge shall decide in accordance with customary law, and failing that, according to the rule which he would establish as legislator.
In this he shall be guided by approved legal doctrine and judicial tradition.
The Austrian General Civil Code of 1811 provides:
Sec. 7: Where a case cannot be decided either according to the literal text or the plain meaning of a statute, regard shall be had to the statutory provisions concerning similar cases and to the principles which underlie other laws regarding similar matters. If the case is still doubtful, it shall be decided according to the principles of natural justice, after careful research and consideration of all the individual circumstances.
See also Article 6, Spanish Civil Code of 1889; Chap. 2, Article 12 of the Italian Code, Provisions on the Laws in General; and Article I of the 1951 Civil Code of Iraq. For English translations see R. Schlesinger, Comparative Law 228, 317, 602-03 (4th ed. 1980).
. Compare 42 U.S.C. §§ 2000e(b), 2000e-l.
. See 42 U.S.C. §§ 2000e-5(e), 2000e-5(f)(l).
. See Traynor, Reasoning in a Circle of Law, 56 Va.L.Rev. 739, 749-50 (1970).
. Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, 86 Stat. 103.
. Id. §§ 2(1), 11, codified at 42 U.S.C. §§ 2000e(a), 2000e-16.
. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the decision that recognized the disparate impact test, is discussed with approval in the legislative history of the 1972 Act. See H.R.Rep.No.238, 92d Cong., 1st Sess.-(1971), reprinted in [1972] U.S.Code Cong. & Ad.News 2137, 2144.
. Jones, An Invitation to Jurisprudence, 74 Colum.L.Rev. 1023, 1030 (1974).