Section 1981

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Section 1981 is a shorthand reference to 42 U.S.C. § 1981, which derives from Section 1 of the 1866 Civil Rights Act. The statute establishes that certain rights are to be guaranteed to all citizens of the United States, and these rights are to be protected against impairment by nongovernment and state discrimination. More specifically, Section 1981(a) guarantees the following rights: “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.”

While similar in protecting against unjust discrimination, Section 1981 differs from Title VII of the 1964 Civil Rights Act. Section 1981 applies only to intentional racial discrimination, while Title VII applies to intentional discrimination and disparate impact discrimination on race, color, national origin, sex, or religion. Title VII also requires an EEOC charge to be filed before bringing their claims in court and has a cap on damages. Plaintiffs alleging racial discrimination will often allege Section 1981 and Title VII claims together (provided the plaintiff filed an EEOC charge and has received a right to sue letter from the EEOC). 

Section 1981 protection against discrimination in actions taken by the federal government, but also by the state governments and private individuals. For example, in Jones v. Alfred H. Mayer Co., the U.S. Supreme Court confirmed that Section 1981 bars all racial discrimination, private as well as public, in sale or rental or property. Also, the U.S. Supreme Court, in CBOCS West, Inc. v. Humphries ruled that Section 1981 extends to retaliation claims. 

[Last updated in April of 2021 by the Wex Definitions Team]