Employment Discrimination School, Part 6 (Section 1981)

One of the most overlooked federal discrimination statutes is Section 1981. It prohibits race discrimination and provides as follows:

(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens[.]

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

42 U.S.C. § 1981.

In many instances, courts will apply reasoning from Title VII cases to Section 1981 cases, but there are key differences between the statutes that are worth noting. Section 1981 does not have a statutory cap on remedies, it does not require a plaintiff to exhaust administrative remedies, it has a different statute of limitations, and provides a cause of action for individuals (such as independent contractors) who may not be covered by Title VII.

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