Making a Discrimination Claim Under 42 U.S.C. §1981

Title VII of the Civil Rights Act of 1964 prevents an employer from discriminating against an individual based on race, color, religion, sex, or national origin. However, another federal law—42 U.S.C. §1981—provides additional protections to victims of race discrimination.

Part of the post-Civil War Civil Rights Act of 1866, 42 U.S.C. §1981 was initially passed to provide newly freed slaves and their descendants with the right to make and enforce contracts. Section 1981 guarantees those rights; however, if they are denied, individuals can bring a discrimination claim.

How does Section 1981 differ from Title VII?

Section 1981 and Title VII of the Civil Rights Act of 1964 are both federal statutes that address issues related to discrimination. However, while there are similarities in their objectives, there are also crucial differences in their scope, coverage, and the types of protections they afford. While Section 1981 focuses specifically on racial discrimination, Title VII covers a broader range of protected characteristics, including race, color, religion, sex, and national origin. Here’s an overview:

Section 1981 addresses discrimination in making and enforcing contracts, primarily focusing on race and ethnicity.

• It applies to various contractual relationships, including employment contracts, business contracts, real estate transactions, and other agreements, and focuses on protection against discrimination based on race and ethnicity.
• Section 1981 applies to private organizations (including nonprofits), no matter how many employees they have, and also allows for claims by independent contractors.
• Individuals can bring claims under Section 1981 if they experience racial discrimination in contractual relationships, such as employment, housing, and business contracts.
• Individuals can bring private lawsuits seeking remedies for harm suffered, including damages, injunctive relief, and attorney’s fees. There is no cap on compensatory and punitive damages.
• Section 1981 claims often require that plaintiffs show intentional discrimination or purposeful discrimination.

Title VII prohibits employment discrimination based on race, color, religion, sex (including sexual orientation and gender identity), and national origin, and has a broader application than Section 1981. The law primarily focuses on prohibiting employment discrimination, covering aspects such as hiring, promotion, compensation, and terms and conditions of employment.

• Title VII recognizes both disparate impact (neutral policies that disproportionately affect a protected group) and disparate treatment (intentional discrimination) claims.
• Claims require an administrative process handled by the Equal Employment Opportunity Commission (EEOC), which investigates and makes a “cause” or “no cause” determination on claims before individuals can file private lawsuits.
• Title VII claims have a significantly shorter statute of limitations than Section 1981 claims.
• Remedies can include back pay, reinstatement, compensatory and punitive damages (subject to damages caps), and injunctive relief.

In some cases, an individual may have claims under both Section 1981 and Title VII, depending on the circumstances and the nature of the alleged discrimination. For example, an individual might have claims under both Section 1981 and Title VII if they allege discriminatory treatment in hiring, promotion, compensation, or other employment-related decisions based on race.

42 U.S.C. §1981: an overview

Under 42 U.S.C. §1981, individuals who have been subjected to discrimination based on race or ethnicity can make a discrimination claim. Specifically, Section 1981 protects against racial discrimination in the making and enforcement of contracts. Here are some critical aspects of a discrimination claim made under 42 U.S.C. §1981:

• Individuals protected: Section 1981 protects the rights of all individuals, regardless of their citizenship or immigration status, to be free from racial discrimination. This protection covers both U.S. citizens and non-citizens.
• Race or ethnicity basis: The primary focus of Section 1981 is to prohibit discrimination based on race or ethnicity in contractual relationships. It provides individuals with the right to be free from discriminatory treatment in the making and enforcement of contracts based on their race or ethnicity. Discrimination claims can arise when individuals are treated differently in the making or enforcing contracts because of their race or ethnicity.
• Scope of protection: Section 1981 prohibits racial discrimination in various aspects of contractual relationships, including but not limited to hiring, promotion, termination, compensation, and the terms and conditions of employment. It also applies to discrimination in other types of contractual relationships, such as housing and business contracts.
• Employment discrimination: Employees who believe they have been discriminated against based on race in the workplace, whether in hiring, promotion, or other employment-related decisions, may bring a discrimination claim under Section 1981.
• Contractual relationships outside employment: Discrimination claims under Section 1981 are not limited to employment relationships. Individuals involved in other contractual relationships, such as those related to housing, lending, or business transactions, can also bring claims if they believe they have been discriminated against based on race.
• Right to bring private lawsuits: Individuals who believe they have experienced discrimination under Section 1981 can bring private lawsuits seeking remedies for the harm suffered. Remedies may include damages, injunctive relief, and attorney’s fees.

In 2020, the U.S. Supreme Court held that a plaintiff who brings a racial discrimination lawsuit under 42 U.S.C. §1981 must prove that the discrimination would not have happened “but for” the discrimination.

When making a complaint under 42 U.S.C. §1981, it is advisable that you seek legal advice from an Atlanta attorney who specializes in employment or civil rights law. The experienced attorneys at Buckley Bala Wilson Mew LLP will assess the merits of your case, guide you through the legal process, and provide advice on the best course of action. Call us or complete our contact form to schedule your initial consultation today.

Related: Supreme Court Wrap-Up: Supremes Rule that Section 1981 Encompasses Claims for Retaliation