The “Hole Card”-Section 1981 Prohibition of Race Discrimination

Section 1981 refers to the Civil Rights Act of 1866, which was recodified as 42. USC 1981, and has come to be known as “Section 1981”.  This statute provides that “all persons within the jurisdiction of the United States shall have the same right in every State…to make and enforce contracts…and to the full and equal benefit of all laws…as is enjoyed by white citizens…”.  Thus, this Act prohibits discrimination in the making and enforcing of contracts (including employment at will contracts) as to anyone on the basis of race.  This law can be used in addition to Title VII’s prohibition of race discrimination.  And the reason I refer to it above as the “hole card” is because it is not burdened with some of the restrictions and hoops which must be jumped through to use Title VII’s prohibition on race discrimination and it may be the last hope if Title VII is procedurally not available.  For example, in order to use Title VII a worker must file with the EEOC within 300 days of the time of the discrimination or the claim is barred; however, no such requirement is imposed on Section 1981.  Title VII imposes arbitrary limits of recovery involving compensatory damages and punitive damages which are not imposed by Section 1981.  If a race discrimination client has waited over 300 days to complain, even though Title VII is of no use, the claimant may be able to use Section 1981. The limitation period of Section 1981 is from 2 to 4 years depending on the type of harm.  Another, major difference is that Title VII can only be used by employees, while Section 1981 can be used by non-employees, usually independent contractors.  The disadvantages of Section 1981 are that it does not cover federal employees and there are complications for state and local employees using it.  Also, Section 1981 protects against intentional discrimination only and does not protect against any other category than race.  But, Section 1981 can be a powerful weapon at the appropriate time and circumstance.