concurring:
I agree with the result reached by the majority as well as generally with its analysis. On at least one point, however, I believe the majority opinion is unnecessarily tentative.
On the question whether section 1981 may be applied to retaliation claims, there seems to me little parallel between harassment and retaliation. Hence, the refusal of Patterson to countenance harassment claims under section 1981 has only the most superficial application to claims for retaliation.1 A prohibition against retaliation is a necessary adjunct to the anti-discriminatory provision itself. If an employee may be fired for complaining of discrimination, his right not to be discriminated against is surely vitiated.
Several courts of appeals have recognized (of course, pr e-Patterson) a cause of action for employees discharged in retaliation for seeking redress for violations of their rights under section 1981. Judge Jerre Williams of the Fifth Circuit explained that, without a remedy for retaliatory conduct, the rights guaranteed by section 1981 would be nullified.
The ability to seek enforcement and protection of one's right to be free of discrimination is an integral part of the right itself. A person who believes he has been discriminated against because of his race should not be deterred from attempting to vindicate his rights because he fears his employer will punish him for doing so. Were we to protect retaliatory conduct, we would in effect be discouraging the filing of meritorious civil rights suits and sanctioning further discrimination against those persons willing to risk their employer's vengeance by filing suits. Section 1981 would become meaningless if an employer could fire an employee for attempting to enforce his rights under that statute.
Goff v. Continental Oil Co., 678 F.2d 593, 598 (5th Cir.1982).2
*1315The recognition of a right of action for retaliation under section 1981 is simply another application of a straightforward syllogism: if an employee is granted certain substantive rights against his or her employer, the employer may not punish the employee’s assertion of those rights, since this would allow the employer to take away a right to protection conferred by statute. Reliance on this line of reasoning to recognize implied rights of action for retaliation is certainly not a phenomenon limited to federal decisionmaking. For some time state courts as well have recognized that, where a statute or constitutional provision creates an affirmative, substantive right, punishment of an employee for the exercise of that right is itself actionable. For example, where a statute creates an administrative mechanism through which an employee can seek compensation for work-related injuries, state courts have routinely held that an employer may not take away this right to compensation by penalizing its exercise. As the Illinois Supreme Court explained in the leading case of Kelsay v. Motorola, Inc., 74 Ill.2d 172, 181-82, 23 Ill.Dec. 559, 563, 384 N.E.2d 353, 357 (1978):
[T]he legislature enacted the worker’s compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees ... would choose to retain their jobs, and thus, in effect, would be left without a remedy_ This result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and contrary to the public policy [] expressed in the Worker’s Compensation Act. We cannot believe that the legislature, even in the absence of an explicit proscription against retaliatory discharge, intended such a result.
See also Hinthorn v. Roland’s of Bloomington, 119 Ill.2d 526, 533-34, 116 Ill.Dec. 694, 698, 519 N.E.2d 909, 913 (1988). Other states have generally reached the same result, even though, as in Kelsay, the worker’s compensation law did not expressly create a cause of action for retaliatory discharge.3
*1316Other examples of the recognition of implied causes of action for retaliatory discharge could be recited, if further repetition were necessary to establish the basic proposition — an employer may not punish an employee for exercising statutorily conferred rights, since such retaliation nullifies the right granted by statute. Why section 1981 should be an exception to this general rule is not readily apparent.
The majority suggests that recognition of a cause of action for retaliation might not be appropriate because a white person would not have a viable section 1981 claim for retaliatory discharge based on her espousal of the contract rights of minorities. Thus, the majority reasons, retaliatory conduct is separable from the underlying right to be free from racial discrimination that a retaliating employer seeks to burden, and the act of retaliation does not necessarily imply any racial animus against the person discharged.
Initially, I would note that resolution of the majority’s interesting hypothetical concerning the discharge of a white employee is unnecessary in this case. The question presented here involves a member of a minority group who was allegedly fired in retaliation for presenting his own claims of racial discrimination in employment. Moreover, contrary to the majority, most courts that have addressed the retaliation issue have concluded that the motive for retaliatory conduct is necessarily the intent to discriminate, and thereby discourage minorities’ assertion of their statutory rights.4 Therefore, a white person who is discharged for espousing the rights of minorities could establish that the employer acted with discriminatory intent (as required to state a claim under section 1981); that the racial discrimination was directed at another, rather than directly at the plaintiff, is irrelevant, since it is the plaintiff who is suffering due to the employer’s racial discrimination. The Supreme Court has held that a white individual may state a claim under 42 U.S.C. section 1982, (which, like section 1981, guarantees individuals the same rights “as [are] enjoyed by white citizens”), where the white person alleges that she was treated unfavorably due to her association with minority group members. Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969). Courts have relied on this decision to hold that a white person may state a claim under section 1981 where that individual alleges she was treated unfavorably due to her advocacy of the rights of, or association with, minorities.5
Eichman v. State University Board of Trustees, 597 F.2d 1104 (7th Cir.1979), and International Woodworkers of America v. Chesapeake Bay Plywood Corp., 659 F.2d 1259 (4th Cir.1981), relied upon by the majority, do not suggest the contrary. In Eichman, the court specifically rejected the argument that plaintiff’s Title VII retaliation claim was fatally flawed because “the plaintiff had not alleged that he was a member of a racial minority”; the court held, to the contrary, that the retaliatory discharge provision of Title VII “extends to *1317all who ‘assist’ or ‘participate’ [in the effort to eradicate discriminatory employment practices] regardless of their race or sex.” 597 F.2d at 1107 (emphasis added). And in Chesapeake Bay, the court dismissed a white employee’s Title VII claim only on the narrow ground that plaintiff failed to “allege that he has been retaliated against for his efforts in pursuing the civil rights claims of others.” 659 F.2d at 1270. While I might not quibble with the majority’s tautological assertion that “[a] white person who opposes discrimination is not being discriminated against because of his race,” neither this statement nor Eichman nor Chesapeake Bay answers the more relevant question: whether a white person can state a claim where he or she is discharged because of discrimination against someone because of that third party’s race. I believe the other cases I have cited do resolve this issue, and resolve it in favor of finding that a white person can state a claim for his or her discharge, if that discharge was based on racial animus against persons protected by section 1981.
Of course, as has been noted, the rights of white employees under section 1981 are really irrelevant in this case, which presents the more fundamental issue whether a minority employee fired for asserting his own rights under section 1981 can state a claim based on his discharge. On this point, I would align myself with the results reached by the other circuits to have addressed this issue (and with the reasoning of state courts answering analogous questions) and hold that an individual in Malhotra’s position may state a claim for retaliation under section 1981. I think therefore that the retaliation point need not be left undecided.6
. In fact, to the limited extent Patterson is relevant here, it would appear to support the recognition of a cause of action for retaliatory conduct. The Patterson court explained that section 1981's guarantee of the right "to enforce contracts"
covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations.... The right to enforce contracts ... extend[s] [to] conduct by an employer which impairs an employee’s ability to enforce through the legal process his or her established contract rights.
Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 2373, 105 L.Ed.2d 132 (1989). Clearly, when an employer punishes an employee for attempting to enforce her rights under section 1981, this conduct "impairs the employee's ability to enforce her contract rights.”
The decision in Goodman v. Lukens Steel Co., 482 U.S. 656, 669, 107 S.Ct. 2617, 2625, 96 L.Ed.2d 572 (1987), although pr e-Patterson, also supports Malhotra’s retaliation claim. Goodman held that a union could be liable under section 1981 where it refused to process griev-anees that charged the employer with breaches of the collective bargaining agreement which were also violations of section 1981. Thus in Goodman the union had not itself denied the employees their contractual rights under section 1981; instead, the union sought to obstruct the employees’ efforts to obtain redress for the employer’s violations of section 1981. Of course, employer retaliation operates in the identical manner, by seeking to make it more difficult for the aggrieved employee to remedy the employer’s past misconduct.
. The Second Circuit provided a similar rationale for recognizing a cause of action for retaliation:
[A]n employee who is punished for seeking administrative or judicial relief, regardless of the merits of his initial claim, has failed to secure that right to equal treatment which constitutes the fundamental promise of § 1981. When a complainant experiences retaliation for the assertion of a claim to evenhanded treatment, he remains under a handicap not faced by his colleagues. Such inequality, we believe, is proscribed by § 1981.
*1315Choudhury v. Polytechnic Inst. of N.Y., 735 F.2d 38, 43 (2d Cir.1984); see also, e.g., Miller v. Fairchild Indus., Inc., 876 F.2d 718, 723 & n. 3 (9th Cir.1989); Greenwood v. Ross, 778 F.2d 448, 455 (8th Cir.1985); Irby v. Sullivan, 737 F.2d 1418, 1429-30 (5th Cir.1984); Setser v. Novack Investment Co., 638 F.2d 1137, 1147 (8th Cir.) (collecting cases), modified on other grounds, 657 F.2d 962 (en banc), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981).
. Griess v. Consolidated Freightways Corp., 776 P.2d 752 (Wyo.S.Ct.1989); Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560-61 (Iowa 1988); Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988); Allen v. Bethlehem Steel Corp., 76 Md.App. 642, 547 A.2d 1105, 1110 (1988); Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 794-95 (N.D.1987) ("The ‘sure and certain relief’ for an injured workman under our Workmen’s Compensation Act would be largely illusory and do little for the worker’s well-being if the price were the loss of his immediate livelihood."); Firestone Textile Co. v. Meadows, 666 S.W.2d 730, 734 (Ky.1984); Hansen v. Harrah's, 100 Nev. 60, 64, 675 P.2d 394, 397 (1984) (per curiam) ("We know of no more effective way to nullify the basic purposes of
Nevada’s workmen’s compensation system than to force employees to choose between a continuation of employment or the submission of an industrial claim.’’); Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (1981) (per curiam), aff'g, 173 N.J.Super. 162, 413 A.2d 960 (App.Div. 1980); Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980); Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087, 1090 (1978); Sventko v. Kroger Co., 69 Mich.App. 644, 647, 245 N.W.2d 151, 153 (1976); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 251-52, 297 N.E.2d 425, 427-28 (1973). This is not to say that several states have not refused to recognize a cause of action for retaliatory discharge. See Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss.1981); Hudson v. Zenith Engraving Co., 273 S.C. 766, 259 S.E.2d 812 (1979); Martin v. Tapley, 360 So.2d 708 (Ala.1978); Segal v. Arrow Indus. Corp., 364 So.2d 89 (Fla.App.1978); Dockery v. Lamport Table Co., 36 N.C.App. 293, 244 S.E.2d 272, cert. denied, 295 N.C. 465, 246 S.E.2d 215 (1978); Stephens v. Justiss-Mears Oil Co., 300 So.2d 510 (La.App.1974); Narens v. Campbell Sixty-Six Express, Inc., 347 S.W.2d 204 (Mo.1961). I would note that several (if not all) of these latter decisions have been overruled by legislation creating a cause of action for employees discharged in retaliation for exercis*1316ing their rights under the worker’s compensation law.
. As the Eighth Circuit has explained,
We do not accept appellees’ contention that a retaliatory action against a prospective employee for attempting to enforce rights under § 1981 might not be based on any racial discrimination.... [A] retaliatory response by an employer against [an individual] who genuinely believed in the merits of his or her complaint would inherently be in the nature of a racial situation. Judicial recognition of appellees' distinction could lead courts into the factual mire of determining whether a retaliatory act was based purely on non-racial criteria.
Setser v. Novack Investment Co., 638 F.2d 1137, 1146 (8th Cir.), modified on other grounds, 657 F.2d 962 (en banc), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981); see also Goff v. Continental Oil Co., 678 F.2d 593, 598-99 (5th Cir.1982).
. See, e.g., Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1447 (10th Cir.1988); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir.1986); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th.Cir.1986); Fiedler v. Marumusco Christian School, 631 F.2d 1144, 1150 (4th Cir.1980); Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th Cir.1977); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.), modified on other grounds, 520 F.2d 409 (1975); Garcia v. Rush-Preshyterian-St. Luke’s Medical Center, 80 F.R.D. 254, 265-66 (N.D.Ill.1978).
. In addition to the retaliation question, it is also possible to take a less equivocal view on the promotion issue. The majority quite persuasively points out the anomaly created by allowing a stranger to the firm to sue under section 1981 for a failure to hire while denying the same right to an existing employee seeking the same job by promotion. Nothing in Patterson — certainly not the "new and distinct relation” criterion — comes close to justifying or requiring our acceptance of such an anomaly. Hence, promotion to a job for which there is actual or potential outside competition is not excluded from 1981 coverage by Patterson.
Further, while I agree with the majority’s identification of promotion claims that are actionable under section 1981, its formulation is not necessarily exhaustive. In Patterson the Court stated that promotions were actionable if they constituted “an opportunity for a new and distinct relation between the employee and the employer,” or “the opportunity to enter into a new contract.” 109 S.Ct. at 2377. Unfortunately, although the Patterson decision is replete with contract terminology of established meaning (“pre-” and “post-formation conduct,” “breach,” "performance,” etc.), the term "new and distinct relation" nowhere appears in the generally accepted contracts jurisprudence. There is no obvious reason why the Court did not intend by "new and distinct relation” to simply refer to "a new job” as laypersons might understand the term. The "new and distinct relation" test may simply involve a substantial change in the plaintiffs job duties and responsibilities. At least no cogent rationale has been cited for the test’s meaning anything more.