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The 2nd U.S. Circuit Court of Appeals joined several other circuits Tuesday in finding that an at-will employee can sue for racially discriminatory discharge under federal civil rights law. In a case of first impression that has divided lower courts in the circuit, a three-judge panel unanimously ruled that an African-American woman — a 16-year veteran of IBM Corp. who was fired in 1998 — had stated a cause of action under 42 U.S.C. �1981. The decision reversed a lower court’s grant of summary judgment on behalf of the computer giant in the case of Lauture v. IBM, 99-7732. Jackie Lauture joined IBM in 1982 and rose through the ranks, eventually becoming director of human resources for the company’s division of global procurement in 1996. Two weeks after she was fired for allegedly poor job performance on June 30, 1998, Lauture filed suit in the Southern District of New York under �1981. Southern District Judge Charles L. Brieant, noting a split of opinion in the district, granted IBM’s motion for summary judgment in May 1999. On appeal, Senior Circuit Judge Wilfred Feinberg said it was true that some courts in the 2nd Circuit have concluded that at-will employees do not have a cause of action under the statute. “Yet, in the past two years alone, three courts of appeals addressing this issue — the 4th, 5th and 10th Circuits — have concluded that an at-will employee may sue for wrongful discharge under �1981.” Feinberg said the court was adopting the view of these circuits and the “emerging consensus of the district courts in this circuit,” in making its ruling. When Congress amended �1981 in the Civil Rights Act of 1991, he said it was intended to restore “the broad scope” of the statute to ensure that Americans could not be harassed, fired or otherwise discriminated against in contracts because of their race. The 2nd Circuit, he said, found that “because the relationship between Lauture and IBM was a contract in the ordinary meaning of the word, Lauture may bring a �1981 claim,” and the “relationship between Lauture and IBM is no less contractual because it was at-will.” “In the context of a racial discrimination claim brought under federal law, the fact that the employment is at-will is simply not dispositive,” he said. “The New York Court of Appeals has noted that the doctrine is not a bar to actions by employees under certain circumstances.” Moreover, he said, each of the circuits that found plaintiffs could pursue a claim under Section 1981 “did so even though under the state law at issue, plaintiff’s employment was at will.” IBM’s interpretation of �1981 “would severely weaken the statute,” he said, and with 40 states recognizing at-will employment, “would deny protection from workplace discrimination to a significant number of people.” The court remanded the case. Judges Amalya L. Kearse and Robert D. Sack joined in the opinion. Stephen Bergstein, of the Law Offices of Michael H. Sussman, represented Lauture. John Houston Pope of Davis Weber & Edwards represented IBM. Jay E. Gerber is of counsel for IBM.

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