The Civil Rights Act of 1866 is often referred to as Section 1981. This is because it has been codified as Section 1981 in the 42nd volume of the United States Code. Long before it was codified, however, it was a law that changed the entire landscape of rights for African Americans in the United States.
The Civil Rights Act of 1866 provided a long list of rights that were once reserved only to white men. After the passing of this law, those rights were now available to African Americans for the first time. African Americans, as persons born in the United States, were now citizens of the United States.
One of the rights included in the Civil Rights Act of 1866 was the right to make and enforce contracts. This has traditionally included employment contracts as well. This law works in conjunction with the Civil Rights Act of 1964 as well. Your employment lawyer will be able to tell which law is available in your unique situation, and he or she will craft an argument to meet the requirements of whichever law you can use to assert your employment discrimination claim.
Protections under Section 1981 for Persons of Color
Section 1981 specifically prohibits employment discrimination based on race. It is framed in the context of contracts, but it reaches to virtually any aspect of employment, including harassment allegations.
In many ways, Section 1981 is more extensive than the Civil Rights Act of 1964. For example, Section 1981 applies to all employers, while the Civil Rights Act of 1964 applies only to employers that have at least 15 employees. Section 1981 also extends to state and local governments.
Because Section 1981 is based on the right to contract, “contractual relationship racial discrimination” is also within its purview. This can include:
- Partners
- Independent contractors
- Subcontractors
- Freelance workers
Additionally, its broad reach also allows it to cover at-will employees. Section 1981 was originally enacted to protect newly freed slaves in the United States, but it has extended to other people of color as well. However, those who have been discriminated against for their “white” heritage have been denied protections under Section 1981. For example, if someone asserts that they have been discriminated against because they are Irish, there may not be protections available under Section 1981. Instead, the Civil Rights Act of 1964 might be a better avenue for protections.
Proving Racial Discrimination Under Section 1981
Proving racial discrimination under Section 1981 is similar to the requirements to show discrimination under the Civil Rights Act of 1964. There are some subtle differences, however. Importantly, the Court will look at several factors to determine whether discrimination has occurred. These factors include:
- Whether the employer characterized or perceived the victim as being in a different race
- Whether the victim is considered “nonwhite”
- Whether the victim belongs to an ethnicity that has historically be the subject of discrimination or mistreatment
- Whether the victim is claiming discrimination based on characteristics that are commonly associated with people of the same national origin or associated with people of the same race
There is no need to go through the Equal Employment Opportunity Commission to assert a claim under Section 1981. Again, this is unlike the rights available to you under the Civil Rights Act of 1964. You also have four years to file a claim, which is much longer than the 180 to 300 days that you have under Title VII of the Civil Rights Act of 1964.
Another advantage that Section 1981 has over Title VII is that there are no caps on the amount that you can receive for emotional distress and punitive damages. These amounts are capped under Title VII at $300,000, and this amount is only for the largest employers.
Limitations of Section 1981
Section 1981 does not protect against discrimination based on nationality. It only protects against discrimination based on race. This distinction can be important from a legal standpoint, but it can be difficult to tell the difference from a practical viewpoint.
The discrimination must also be deliberate under Section 1981. The Civil Rights Act of 1964 might protect against actions that discriminate, but the discrimination was not intentional. These situations are commonly referred to as “disparate impact lawsuits.” In these situations, the employer has developed a seemingly neutral policy, but the result ends up being discriminatory.
Contact The Brown Firm PLLC For More Information
Whether you assert your racial discrimination claim under Section 1981 or Title VII of the Civil Rights Act of 1964 is going to be an important decision in your case. An employment lawyer can help immensely with this legal decision. Contact The Brown Firm PLLC by sending us a message online or giving us a call today to schedule a consultation and discuss whether you have grounds for a lawsuit.
