High Court Considers Domino's Discrimination Suit

The U.S. Supreme Court considers whether an African-American businessman can sue Domino's Pizza for racial discrimination. Legal experts believe this case could ultimately affect how discrimination lawsuits involving contracts are handled. Ed Gordon discuss the case with Goodwin Liu, law professor at the Boalt School of Law at the University of California at Berkeley.

ED GORDON, host:

From NPR News, this is NEWS & NOTES. I'm Ed Gordon.

The US Supreme Court will decide if an African-American businessman can sue Domino's pizza for racial discrimination. Legal experts believe this case could ultimately affect how discrimination lawsuits involving contracts are handled. It's the first legal dispute of its kind before the US Supreme Court under Chief Justice John Roberts. Lawyers for the plaintiff, John McDonald, argued before the court on Tuesday that Domino's reneged on contracts with McDonald's company to build four pizza franchises in Nevada. America's top pizza chain says racial discrimination had nothing to do with their decision. Domino's maintains that McDonald failed to uphold his end of the bargain.

To help simplify all of this is Goodwin Liu, professor at law at the Boalt School of Law at the University of California at Berkeley. Mr. Liu has clerked for US Supreme Court Justice Ruth Bader Ginsburg.

Good to have you, Mr. Liu. Appreciate it.

Professor GOODWIN LIU (Boalt School of Law; University of California, Berkeley): Thank you for having me.

GORDON: We should note importantly here to give a brief history, a discrimination suit was filed in US District Court in 2002, the case was dismissed by the US District Court, then appealed to the 9th Circuit Court who ruled in favor of Mr. McDonald. Then Domino's pizza appealed to the high court. That's where we stand. But we should note here, Mr. Liu, that in the traditional sense of discrimination and discrimination suits, that's not what the high court is looking at.

Prof. LIU: Well, the way the case stands right now is that Domino's has asked the courts to basically dismiss the suit without even a trial. And the reason Domino's has made that request is because they believe that Mr. McDonald has no legal claim under the applicable statute in this case. And the statute in this case says--basically, it's a very simple statute. It says that all persons in the jurisdiction of the United States have the same right to make and enforce contracts. And the dispute in this case is about whether that language is meant to protect only people who are in contractual relationships with one another from racial discrimination or whether it applies more broadly to a situation like we have here where Mr. McDonald was the sole proprietor of a corporation which he owned and the corporation was in a contract with Domino's to build some pizza stores, but Domino's, his complaint says, reneged on the contract because of racial discrimination directed against him, as an individual, not against his corporation.

GORDON: Yeah. So it's really a question in Domino's mind of whether or not they serviced the contract with the corporation vs. the individual. Here's the interesting point to many and that is whether or not we are seeing in this decision a bellwether that will ring true for many cases down the road. We should note that we have seen a division of some 17 states attorneys general who have either sided with Domino's or with Mr. McDonald on this by virtue of looking down the road and seeing what they believe would be in favor, obviously, of their side.

Prof. LIU: Yeah. Absolutely. That's right. There have been--excuse me--there have been seven states that have filed briefs and filed a brief in favor of Mr. McDonald and 10 who have opposed. And I think what's interesting about this case is that this is not a typical business case in the sense of the line of division being between parties who think that this case is about creating a business-friendly environment or not. Rather, this is a case more about deciding what kind of business-friendly environment are you going to create because this is essentially a dispute in which one big company, Domino's, is seeking a kind of immunity from liability for certain kinds of discrimination that might be perpetrated upon another kind of corporation. In particular, corporations that may be owned by minority individuals as well as those that might employ a lot of minority individuals. And so I think some states are looking at this case as one that will greatly impact whether or not the business climate in their states will be friendly towards minority-owned businesses, which may be quite prevalent in places like New York, for example, where the attorney general of that state has decided to file a brief in Mr. McDonald's behalf

GORDON: We should note we'll hear from Mr. McDonald in just a moment. Before we let you go, Mr. Liu, let me ask you, there was a lot of back and forth, particularly between Antonin Scalia and Chief Justice Roberts. I'm curious when you hear that kind of back and forth, being that you were a clerk for the US Supreme Court under Ruth Bader Ginsburg, what does that say to us?

Prof. LIU: Well, it's very hard to read the tea leaves from the argument itself. I think the justices in general try very hard to look at both sides of every case and oftentimes at oral arguments you hear a lot of jousting, not only between the bench and the lawyers, but also among the justices themselves. But let me say one thing about the legal issue in this case, which is that--I think it's interesting for people like Justice Scalia who are people who like to--judges who like to read the plain language of statutes and to go with the original intention behind statutes. This is a case in which the plain language of the statute protects persons from discrimination who are making and enforcing contracts. And there's no dispute here that Mr. McDonald in his individual capacity is the person who is making and enforcing contracts and, as his complaint alleges, was discriminated against by Domino's. And so the fact that he wasn't making and enforcing a contract that--in which he, himself, was the party but rather his corporation was the party to the contract...

GORDON: Yeah.

Prof. LIU: ...isn't a factor taken into account in the statute itself. And this statute was the first Civil Rights Act passed by Congress after the Civil War. It was passed in 1866...

GORDON: Yeah.

Prof. LIU: ...during Reconstruction at the very beginning in order to protect the economic equality and opportunities for newly freed blacks to engage in economic activity on a par with all other persons in the country.

GORDON: Right.

Prof. LIU: And so to some extent, I think one can make a pretty good argument that the type of discrimination that Mr. McDonald alleges here falls within the purpose of the statute as it was originally conceived by Congress.

GORDON: All right. Well, Goodwin Liu, professor of law at the University of California and former clerk for US Supreme Court Justice Ruth Bader Ginsburg, thanks for joining us. Greatly appreciate it.

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