dissenting.
I view it as of overriding national importance that overt and subtle vestiges of America’s racial past be rooted out of the workplace. The majority’s application of the Supreme Court’s cramped interpretation of section 1981 in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), to the clearly distinguishable facts of this case needlessly frustrates the attainment of this crucial national imperative. Such a result is not compelled by Patterson. Therefore, I respectfully dissent.
I write in dissent to respectfully remind my colleagues that in interpreting section 19811 we must be mindful that, as judges, we are not acting in a vacuum. There is a history here. A sordid, shameful history. Thus, in interpreting a Reconstruction civil rights remedial statute we should do so in a way that gives effect to legislative intent and to the nation’s policy of eradicating discrimination in employment.2
The gravamen of Wilmer’s complaint is a section 1981 claim for discriminatory dis*1165charge. The majority disposes of this claim by concluding that section 1981 does not apply to an employment contract terminated for racially discriminatory reasons. My reading of Patterson, however, would not foreclose suits for racial discrimination in the termination of employment contracts. In addition, as I discuss in Part II, the majority’s interpretation of Patterson is contradicted by the express terms of the (recently-vetoed) Civil Rights Act of 1990.
I
Patterson held that section 1981 does not apply to a claim of racial harassment in employment. As Patterson did not explicitly address the applicability of section 1981 to a discriminatory discharge claim, the lower courts have been left to fashion their own approaches. Gonzalez v. Home Insurance Co., 909 F.2d 716, 722 (2d Cir.1990) (“In the wake of Patterson, courts have divided as to whether a viable claim for discriminatory termination of a contract may still be brought under § 1981.”).
I do not interpret Patterson to bar suits which involve claims of racially discriminatory discharge. The argument that Patterson, which dealt with a racial harassment claim, should limit discriminatory firing claims appears to me to shortchange the significance of section 1981.3 Our majority opinion places this circuit in the line of march with those who are, needlessly, in my judgment, in retreat on civil rights enforcement. We have a choice here. I would follow the Eighth Circuit’s decision in Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990), reh’g denied en banc, 902 F.2d 630 (1990). In a remarkably thorough and compelling opinion, including an extensive discussion of section 1981’s legislative history, the Eighth Circuit in Hicks held that discriminatory discharge impinges on the right to make contracts, and therefore comes under the protection of section 1981. Id. at 639. The court focused on the incongruity of prohibiting an employer from hiring on the basis of race, but allowing the same employer to fire employees on the basis of race: “Such an absurd interpretation would allow discriminatory discharge to effectively annihilate the right to make contracts.” Id.
The reasoning in Hicks has also been adopted by the U.S. District Court for the Northern District of Georgia.4 Kriegel v. Home Ins. Co., 739 F.Supp. 1538 (N.D.Ga.1990). In reconciling Patterson with the meaning of section 1981, the court in Krie-gel concluded that “[cjlaims based on racially discriminatory hiring and firing always have been considered actionable under the right to make contracts and have been analytically distinct from racial harassment claims.” Id. at 1540. But see McKnight v. General Motors, 908 F.2d 104, 112 (7th Cir.1990) (discriminatory termination does not infringe right to make a contract and therefore is not actionable under section 1981). Given my conclusion that Patterson does not bar a discriminatory discharge claim, I dissent from that aspect of the majority’s holding.
II
Several Courts of Appeals have interpreted Patterson to bar racially discrimina*1166tory termination claims.5 In response, Congress overwhelmingly passed legislation designed to insure that section 1981 continues to apply to all aspects of the employment relationship. The Civil Rights Act of 1990 (“the Act”), S. 2104, 101st Cong., 2d Sess., 136 Cong.Rec. 9944-46 (1990), was designed to redress the Supreme Court’s emasculation of employment discrimination law during the 1988 term. See Gould, The Supreme Court and Employment Discrimination Law in 1989: Judicial Retreat and Congressional Response, 64 Tul. L.Rev. 1485 (1990).
Section 2(b) stated that the purpose of the Act was'to “respond to the Supreme Court’s recent decisions by restoring the civil rights protections that were dramatically limited by those decisions.” 136 Cong.Rec. at 9944. Section 12(b) specifically overturned restrictive interpretations of Patterson by providing that “the right ‘to make and enforce contracts’ shall include the making, performance, modification and termination of contracts [.]” Id. at 9945 (emphasis added).
Under section 15, the Act would have applied to our disposition of the instant case.6 Section 15(a)(6) stated that “section 12 shall apply to all proceedings pending on or commenced after June 15, 1989 [the date Patterson was handed down].” Furthermore, section 15(b)(1) provided that any disposition of a case between the date Patterson was announced and the date of the passage of the Act which is inconsistent with section 12 “shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.” Thus, Wilmer could have resubmitted his claim if the Act had become law, and we would have been required to reverse our disposition of his section 1981 claim.
Ill
Vetoed legislation should not ordinarily serve as guidance for lower courts. In certain instances, however, Congressional intent has served as a valid basis for judicial interpretation in spite of a Presidential veto. In 1984, for example, a re-enactment of the Equal Access to Justice Act (EAJA) was passed by large majorities in both houses of Congress. Although the EAJA was not reenacted due to President Reagan’s veto, the Third Circuit and the Fifth Circuit both found certain portions of the vetoed bill’s legislative history to be a convincing indicator of Congressional intent. In Taylor v. United States, 749 F.2d 171, 174 (3d Cir.1984), the court stated that:
Although the President declined to sign the bill into law, we nonetheless find its language and legislative history to be instructive on the question of the meaning of “final judgment” under the original EAJA.
sfs sk sfc ¡fc ¡}c ¡fc
*1167The President’s pocket veto renders the bill to reenact the EAJA without legal effect, but we find the language of the bill and its legislative history persuasive as a clear expression of congressional intent.
Similarly, in Clifton v. Heckler, 755 F.2d 1138, 1145 n. 15 (5th Cir.1985), the court found that “Regardless of the President’s veto of the bill ... we find its legislative history instructive on the question of the intended nature of the thirty-day limitation under the original EAJA.”
Thus, I find an overwhelming consensus — both Congress and the President favor reversing Patterson — in favor of applying section 1981 to discriminatory discharge.7 The Civil Rights Act of 1990 was a repudiation by Congress of the Supreme Court’s narrow interpretation of federal civil rights statutes. Moreover, the Act represented the seventh occasion since 1975 that Congress has felt compelled to address the Supreme Court’s increasingly cramped interpretations of federal civil rights laws. Ralston, Court v. Congress: Judicial Interpretation of The Civil Rights Acts and Congressional Response, 8 Yale L. & Pol’y Rev. 205, 210 (1990) (“[BJetween 1976 and 1988, Congress overruled restrictive readings of civil rights statutes six separate times, an average of one statute per Congress.”). See also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2132, 104 L.Ed.2d 733 (1989) (Stevens, J., dissenting) (“Congress frequently revisits [Title VII] and can readily correct our mistakes if we misread its meaning.”). The Act is also certain to be reintroduced in the immediate future. Thus, the fact that the Senate, on October 24, 1990, failed by one vote to override the Presidential veto of the Act need not diminish its significance.
The veto of the Civil Rights Act of 1990 capped a decade-long effort on the part of the executive branch to frustrate the efforts of the legislative branch to provide remedies for employment and housing discrimination against racial minorities and women. Throughout the mid-1980s, the Civil Rights Division of the Justice Department filed numerous briefs urging the Court to narrow its interpretation of Title VII. However, the limitations placed on plaintiffs by the Court in 1989 must have surprised even the most ardent opponents of civil rights enforcement.
Congress’ constitutional authority to respond to judicial limitations of civil rights laws, spelled out in section 5 of the fourteenth amendment, should have prompted the administration to debate the merits of the Act with greater seriousness, especially in view of the overwhelming sentiment in favor of the Act. The identification of “quotas” as the reason for the veto is puzzling given that many Senators who were initially intense opponents of the bill recommended passage following negotiations over the “quota” issue (these negotiations resulted in some thirty modifications of the bill). The Act was also strongly supported by many organizations — such as the American Jewish Congress and the Anti-Defamation League — which have maintained longstanding opposition to quo*1168tas. With one stroke of the pen; the administration has left in place restrictions of individual civil rights at a time when we have witnessed a drive toward the expansion of individual rights in many long-oppressed corners of the globe.
The myopia which resulted in the veto of the Act is startling, and masks an assumption that “[a]ll things [are] equal, with no history of discrimination.... But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation.” Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971) (unanimous opinion of Burger, C.J.). See also Wards Cove, 109 S.Ct. at 2136 (Blackmun, J., dissenting) (“One wonders whether the majority still believes that race discrimination — or, more accurately, race discrimination against nonwhites — is a problem in our society, or even remembers that it ever was.”).
The portion of the Act which overturned Patterson was probably its least controversial section. My perusal of the vociferous Congressional debates over the Act reveals little, if any, opposition to the Act’s application of section 1981 to all aspects of the employment relationship. The Justice Department itself has drafted legislation designed to overturn Patterson. Ralston, supra, at 216-17. The inherent inequities in Patterson were expressed by Charles Fried, Solicitor General during the Reagan Administration, in his testimony regarding the Civil Rights Act of 1990:
The bill does a very good thing here: it extends the protection of the Reconstruction Civil Rights Act, what is now section 1981, to some very ugly and demeaning forms of discrimination which the Supreme Court in the Patterson case last Term held were not covered by that statute. By the amendment that is proposed in this bill, acts of discrimination after a person has been hired are as actionable as racially motivated refusals to enter into the employment relation in the first place.... [F]rom a human point of view it is worse for a person to be subject to demeaning treatment in a job they have come to rely on than to be foreclosed from getting into the situation in the first place.
136 Cong.Rec. S9894 (daily ed. July 18, 1990).
Nevertheless, cases alleging racially discriminatory termination under section 1981 will continue to be summarily dismissed under Patterson if the precedent established here is followed. Countless numbers of potential claims of discrimination will go unredressed. I regret that our disposition of this case further minimizes the scope and effectiveness of section 1981.
IY
For the foregoing reasons, I respectfully DISSENT.
. 42 U.S.C. § 1981 reads as follows:
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.
. In its thorough review of the legislative history and historical context surrounding the adoption of section 1981 in 1866, the Eighth Circuit concluded that “[gliven Congress’ acquaintance with and concern about the varied forms of southern intransigence, we doubt that it would have subscribed to an interpretation of Section 1981 that secures the equal right of the freedmen to make contracts at the formation stage, but then abandons them after the contract is formed." Hicks v. Brown Group, 902 F.2d 630, 648 (8th Cir.1990), reh’g denied en banc, 902 F.2d 630 (1990).
This country's strong public policy against discrimination was forcefully expressed by Chief Justice Burger in Bob Jones Univ. v. United States, 461 U.S. 574, 592-93, 103 S.Ct. 2017, 2028-29, 76 L.Ed.2d 157 (1983):
[T]here can no longer be any doubt that racial discrimination ... violates deeply and widely accepted views of elementary justice.... Ovér the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination!.]
. William T. Coleman, Jr., who served as Secretary of Transportation during the Ford Administration, testified before Congress that "Patterson has virtually eviscerated the 1866 Civil Rights Act." The Civil Rights Act of 1990: Joint Hearings Before the Committee on Education and Labor and the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, 101st Cong., 2d Sess. 440 (1990) (hereinafter Joint Hearings).
. An alternate view of Patterson has also developed. In Gonzalez v. Home Insurance Co., 909 F.2d 716 (2d Cir.1990), the Second Circuit attempted to interpret Patterson to allow for some racially discriminatory discharge claims, while at the same time adhering to its view that, under Patterson, section 1981 does not generally apply to contract termination. Gonzalez, then, states that Patterson does not bar discriminatory discharge suits if the plaintiff, in good faith, alleges that the employer intended at the time of the formation of the contract to terminate him or her for racially discriminatory reasons. Id. at 722 (allowing plaintiffs to amend complaint in order to charge that defendants "harbor[ed] the intent to terminate the agreement because of plaintiffs race.”).
. The NAACP Legal Defense and Educational Fund estimates that Patterson has resulted in the dismissal of well over 150 claims. 136 - Cong.Rec. S9958 (daily ed. July 18, 1990) (statement of Senator Riegle).
. The version of the Act passed by the House and ultimately submitted to the President contained a provision seemingly designed to alter the retroactivity of the Act. Section 15(b)(3), entitled "Final Judgments", stated that “any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed and vested, where the time for seeking further judicial review of such judgment has otherwise expired ... shall be vacated in whole or in part if justice requires pursuant to rule 60(b) ... or other appropriate authority, and consistent with the constitutional requirements of due process of law.” This provision, in my view, does not affect the retroactivity of the Act, which remains clearly stated in section 15(b)(1). Any limitation on the Act’s retroactivity would stem from the requirement that judgments be vacated “if justice requires pursuant to Rule 60(b)(6).” Rule 60(b) defines the parameters under which relief from a final judgment may be obtained. Rule 60(b)(6) is a catch-all provision providing that relief from a final judgment may be obtained for “any other reason justifying relief from the operation of the judgment.” Section 15(b)(3), then, appears to me to provide a firmer statutory basis for overturning judgments rendered under Patterson. Although section 15(b)(3) does appear to restrict retroactivity to those situations “consistent with the constitutional requirements of due process of law”, I do not read this due process requirement to impact substantially on the retroactivity provisions explicitly stated in section 15(b)(1).
. Urging the adoption of the 1990 Civil Rights Act — which overturns Patterson —does not conflict with my earlier position interpreting Patterson not to prohibit suits for discriminatory discharge under section 1981. In my view, the Act simply seeks to clarify the intent of the 1866 Congress in passing section 1981. The Supreme Court’s strained interpretation of section 1981 in Patterson forced the Congress to clearly articulate by statute that section 1981 was always intended to apply to every phase of the employment relationship. Furthermore, I would argue that the actual holding of Patterson is inconsistent with the Congressional intent behind section 1981. As former Secretary of Transportation Coleman testified before the Senate Committee on Labor and Human Resources:
As a matter of statutory construction the results in some of these decisions are, to put the matter delicately, far fetched, and in some instances, actually absurd. For example, in Patterson can it seriously be imagined that in 1866 Congress intended to forbid a private employer from refusing to hire or promote a black because of race, but felt at the same time there would be nothing wrong if the employer hired a black woman and then visited her with harassment which certainly would make the contract a nullity or at least make her life a living hell? But that is the result of the Court’s ruling in Patterson.
Joint Hearings, supra note 3, at 437-38.