Race Discrimination Claims Under Section 1981

A Reconstruction Era law — Section 1981 of the Civil Rights Act of 1866 — prohibits race discrimination in many settings, including employment.

The Civil Rights Act of 1866 — called “Section 1981 because of its location in the U.S. Code — is a Reconstruction Era law that declares African Americans to be citizens entitled to a series of civil rights previously reserved to white men. Section 1981 confers a number of rights, including the right to sue or be sued in court, to give evidence in a lawsuit, to purchase property, and to make and enforce contracts, including contracts of employment. Courts have interpreted this last right to prohibit race discrimination in hiring and employment.

Section 1981 applies to all private employers, regardless of size. (In contrast, Title VII of the Civil Rights Act of 1964, which also prohibits race discrimination in employment, applies only to employers with at least 15 employees.) Section 1981 also applies to state and local governments.

Section 1981 protects all employees and applicants. It also protects workers with a contractual relationship to a company, such as partners in a partnership and independent contractors.

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Section 1981 prohibits discrimination on the basis of race in the making or enforcement of employment contracts. This language has been interpreted broadly to prohibit any intentional workplace discrimination — including harassment — on the basis of race. The Supreme Court has also held that retaliation is prohibited under Section 1981. In other words, an employer may not fire or take any other negative job action against an employee for making a discrimination claim under the law.

Although Section 1981 was originally intended to protect the newly freed slaves, courts have consistently interpreted the law to protect people of any race from intentional race discrimination. Some courts have also found that Section 1981 prohibits discrimination based on ethnicity, but only if that discrimination is racial in character. For example, courts have held that discrimination against Latin Americans, Arab Americans, and Asian Americans violates Section 1981, but discrimination against those of Slavic or Italian origin does not.

In deciding whether ethnic discrimination constitutes race discrimination under Section 1981, courts have looked at several factors, including:

• whether the discriminator perceived or characterized the victim as belonging to a separate race because of his or her ethnicity
• whether the victim belongs to an ethnicity that is perceived as “nonwhite”
• whether the victim belongs to an ethnicity that has traditionally been subject to discrimination, and
• whether the victim is claiming discrimination based on characteristics commonly associated with national origin (such as country of birth, language fluency, or surname), which is not a violation of Section 1981; or on characteristics commonly associated with race (physical characteristics or skin color, for example), which is.

Only intentional discrimination violates Section 1981. Disparate impact lawsuits, in which employees claim that a seemingly neutral practice, such as a hiring test, disproportionately screened out members of a particular race, are not allowed under this law.

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If you claim race discrimination under Title VII, you must file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) and get a right to sue letter before you can file a lawsuit. This requirement doesn’t apply to Section 1981 claims: An employee can go straight to court and bypass the EEOC. Also, employees claiming a violation of Section 1981 have four years to file a lawsuit. Under Title VII, employees must file a charge within 180 to 300 days (depending on state law), and file a lawsuit within 90 days after getting a right to sue letter.

Section 1981 offers another advantage over Title VII: Employees who win don’t face any limits on the punitive damages and damages for emotional distress they can be awarded. Title VII caps these damages at $50,000 to $300,000, depending on the size of the employer, but no such cap applies under Section 1981.

If you believe you have been discriminated against because of your race, you should speak to an experienced employment attorney right away. An attorney can review your case, explain your options, and help you decide the best strategy for protecting your rights.

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