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Discrimination refers to different treatment for similarly situated parties, especially when no legitimate reason appears to exist. For example, an employer who rejects all female applicants and hires the first male applicant with the same qualifications might be discriminating on the basis of gender. See also: employment discrimination.

In the context of racial discrimination, discrimination may also be based on ancestry, ethnic characteristics, and race, according to 42 U.S. Code § 1981 – Equal rights under the law.

Section 1981(a), the Statement of Equal Rights, provides that “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”  

The case Harris v. Allstate Insurance Company in the United States District Court, Southern District of New York lays out the elements to establish a Section 1981 claim. Plaintiff must allege facts to support the following elements: 

  1. The plaintiff is a member of racial minority
  2. The defendant intended to discriminate against plaintiff on the basis of race; and 
  3. The discrimination concerned one or more of the activities enumerated in § 1981, such as making and enforcing contracts, suing and being sued, or giving evidence. 

The case Manley v. Texas Southern University in the United States District Court, Southern District of Texas, Houston Division states that to establish a Section 1981 claim, plaintiffs must allege facts showing that they were the subject of intentional discrimination, but a claim that a policy disproportionately impacts a protected class is not actionable under Section 1981. The case also notes that, similarly, to state a claim of racial discrimination under the Equal Protection Clause and 42 U.S. Code § 1983, plaintiffs must allege and prove that they received different treatment than that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent. 

In the context of constitutional law, (as of November 2023) under the United States Supreme Court’s dormant Commerce Clause cases such as Tennessee Wine and Spirits Retailers Association v. Thomas and Department of Revenue of Kentucky v. Davis illustrate that if a state law discriminates against out-of-state goods or non-resident non-economic actors, this law can be allowed only when the regulatory body shows that the law is narrowly tailored to advance a legitimate local purpose. 

[Last updated in November of 2023 by the Wex Definitions Team]