Working for Justice

42 U.S.C. § 1981: A Recipe for Race Relations and Reconciliation in the Wake of Charlottesville?

Posted February 14th, 2018 by in Race Discrimination.

Congress initially enacted the protections of 42 U.S.C. § 1981 as part of the Civil Rights Act of 1866, in the immediate aftermath of the Civil War. The act was passed between the ratification of the Thirteenth and Fourteenth Amendments to the U.S. Constitution. In relevant part, the current act provides:

(a) Statement of equal rights

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.

42 U.S.C. § 1981(a) (emphasis added).

On its face, § 1981 protects racial minorities from discrimination, including employment discrimination and discrimination in the workplace, by providing that they will have the same rights as “white citizens.” So does the act protect Caucasians of Russian, Jewish, Italian, or Greek descent – among others – even against discrimination by other Caucasians?

The answer is Yes.

The Supreme Court addressed this issue in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987). There, the question was whether section 1981 covered discrimination based on Arabian ancestry, even though Arabs were understood to be Caucasian at the time of the Court’s decision. The Court held prohibited racial discrimination under the act includes “intentional discrimination” “against identifiable classes of persons” “solely because of their ancestry or ethnic characteristics.” Id. at 613. The plaintiff’s ethnic group need not be “physiognomically distinctive.” Id. Thus, the St Francis plaintiff had a viable claim of racial discrimination based on being born an Arab. Id.

The Court explained that there was a different understanding of race in the mid-to-late nineteenth century, when § 1981 became law. At that time, race was typically defined as: “The descendants of a common ancestor; a family, tribe, people, or nation, presumably of the same stock.” Id. at 611 (citing N. Webster, Dictionary of the English Language 589 (1887)). Under this conception, what we now think of as “white” ethnic groups or nationalities were considered separate races. Among the groups identified as separate races during Congressional debates and in the literature of the time are Finns, Swedes, Norwegians, Germans, Greeks, Italians, Spanish, Russians, Hungarians, Arabs, and Jews. Id. at 611-12.

Following St. Francis, lower courts have recognized claims of racial discrimination under section 1981 on behalf of “white” Caucasians of Russian, Polish, Slavic, Italian, Jewish, Greek, and French ancestry – among others. The result in these cases is presumably very different than if section 1981 had been enacted today. (Of course, such individuals would be often covered by more recently enacted protections against discrimination on the basis of national origin or religion, but discrimination by other “whites” would not be thought of as a race claim).

So, what happened?

As European immigrants assimilated into American society, race became calcified along color lines – as informed by America’s original sins of racial chattel slavery and segregation. To a significant extent, white ethnic groups became folded into an amalgamated pasty “whiteness” –adopting and benefiting from a white racial identity. Potential class and ethnic divisions were eased as society was divided along the color barrier. For example, the G.I. Bill provided a path to opportunity for Caucasians of various backgrounds following WWII, while blacks were often excluded through prevalent redlining practices.

As commentators and theorists have observed, incrementally over time, Caucasians have become inexorably imbued with whiteness and its privileges. For nineteenth and twentieth century immigrant groups, this may in part be a coping and defense mechanism towards facing discrimination and estrangement in a new land. A whole academic subfield – critical whiteness studies – has emerged to study and explore this phenomenon and its implications.

This dynamic – solidifying Caucasian ethnicities under the umbrella of “whiteness” – is dangerous because it separates out people of color and pits white against black as well as (increasingly) Latino and Asian. It can give rise to an outlook of supremacy and superiority, as white ethnics assimilate the prevailing cultural and racial ethos.

It is unfortunate, but hardly surprising, that some of the neo-Nazis and white supremacists at Charlottesville and elsewhere are members of ethnic groups considered non-white and vulnerable to racial discrimination in the nineteenth century. After all, many if not most Caucasians today are of mixed ethnic ancestry. (The KKK’s apologist Trump himself is Drumpf, of German descent)

On The Daily Show, Trevor Noah highlighted one such white supremacist with a Slavic-sounding surname. Noah wryly mused that this young man would be targeted by his fellow white nationalists in the “second wave” – i.e. that the racial purists would inevitably turn to cleansing “white” ethnics like him after the blacks, Latinos, and Jews are gone. It is the ineffable logic of the enterprise, as in any Reign of Terror.

There is no one prescription for the rise of White Nationalism in America, and no panacea or silver bullet.

I would venture, however, that the cult of “whiteness” should be splintered back into the salad bowl of ethnic and cultural diversity. Of course, in practice, I advocate a modernized twenty-first century version, not its nineteenth-century predecessor. There should be no place for eugenics and similar debunked mythology.

In a benign modern conception, we are all come from our own subgroups with our own histories but share a common humanity and links as human beings. We are one human race with many facets of expression. We have a common purpose and a collective future. What we now think of as “interracial” relationships – black/white and so forth – should be as common and unremarkable as unions between different white ethnicities, even those subject to historical tensions and animosities.

If there is no white power bloc, there should be fewer white supremacists. Transforming the mentality of whiteness, even one person at a time, could help chip away at the base of support for white nationalist ideas and movements. Instead, it could enable us to approach race relations from a dual base of individuality and broader collectivism that helps us all get along better.

Racial justice advocate Susan Raffo has suggested that ending white supremacy is ultimately about “choosing human-ness over whiteness.” This, of course, may involve grappling with one’s often deep-seated identity and potential traumas of the past – no easy task. The lens of § 1981 may provide one way to forge ahead. Reconceiving ourselves as interconnected in our diversity, rather than members of monolithic racial blocs, is a move in the right direction. A step back to adopt (and adapt) a framework from legal history may just facilitate a leap forward.

It’s time to go Back to the Future!

Andrew Melzer

Andrew Melzer

Andrew Melzer is a partner in the New York office of Sanford Heisler Sharp. Mr. Melzer is Co-Chair of the Firm’s wage and hour practice and has helped return millions of dollars of lost wages to employees in presuit negotiations, active litigation, and trials. Learn More

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