Section 1981 of the Civil Rights Act’s protections and limitations

1. What does Section 1981 prohibit employers from doing?

a. Discrimination based on race and color

Section 1981 of the Civil Rights Act of 1866 (“Section 1981”) prohibits discrimination in employment based on race and color: “All persons within the jurisdiction of the United States shall have the same right…to make and enforce contracts…as is enjoyed by white citizens.” The Civil Rights Act of 1991 defined the term “to make and enforce contracts” to include the “making, performance, modification and termination of contracts, and the benefits, privileges, terms and conditions of the contractual relationship.”

The Supreme Court has broadly construed Section 1981 to include protection for not only African-Americans, Asians, and Caucasians, but also other “racial groups” that do not necessarily fit into the traditional view of race. (The lower courts have recognized that Indians, Hispanics, and Mexicans, among others, may maintain Section 1981 claims for race discrimination.) Section 1981 also includes a prohibition on retaliation.

b. Discrimination based on alienage and citizenship

As amended by the Civil Rights Act of 1991, it appears that Section 1981 prohibits discrimination on the basis of alienage and citizenship.

c. Retaliation

Section 1981 prohibits retaliation for filing a statutory or administrative race discrimination claim or opposing race discrimination.

d. Harassment

As with Title VII, Section 1981 prohibits harassment on the basis of race and color.

If you have a hostile work environment claim under 1981, you will have to prove the same elements as a Title VII hostile work environment claim:

  1. You were subjected to verbal or physical conduct because of your race;
  2. The conduct was unwelcome; and
  3. The conduct was sufficiently severe or pervasive to alter the conditions of your employment and create an abusive work environment.

e. Association discrimination

Section 1981 prohibits association discrimination, which is employment discrimination, based not on your color and race but on the race and color of someone else you associated with or advocated on behalf of.

2. What are the remedies available to me if I succeed in a Section 1981 claim?

If you prevail in your Section 1981 employment discrimination claim, you are entitled to:

  1. Equitable (declaratory and injunctive) relief;
  2. Actual damages, including back pay, front pay, and other compensatory damages;
  3. Punitive damages; and
  4. Attorneys’ fees and costs.