Working for Justice

Victims of Race Discrimination: Don’t Forget About § 1981!

Posted August 31st, 2020 by in Employment Discrimination.

As the recent murders of innocent African American civilians like George Floyd, Breonna Taylor, Ahmaud Arbery, and countless others remind us, the United States has a long way to go in its struggle for racial justice.  While current efforts against racial inequality are rightfully focused on police brutality, race discrimination in employment has a long and ignominious history in this country that persists to this day.[1]  In the early 1960s, pervasive workplace discrimination impelled President John F. Kennedy to introduce civil rights legislation to Congress and, in July 1964, President Lyndon Johnson signed Title VII of the Civil Rights Act into law.[2]  Described as a “super” statute,[3] Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against “any individual with respect to [that individual’s] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a)(1).

But there exists another federal law that has the potential to offer even greater protection to racial minorities than Title VII.  42 U.S.C. § 1981, originally passed as part of the post-Civil War Civil Rights Act of 1866, was enacted to protect newly freed slaves and their descendants by guaranteeing them the same rights enjoyed by white citizens.[4]  Section 1981 provides:

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).  Notwithstanding its origins in the Reconstruction period of American history, federal courts have interpreted § 1981 as protecting against discrimination based on race, ethnicity, and national origin for a wide variety of groups, such that persons of Lebanese and Indian origin have been protected, as has at least one person of French origin.[5]  In CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008), the U.S. Supreme Court held that § 1981 encompasses retaliation claims as well.  Id. at 457.

So, what advantages does § 1981 have over Title VII?

First, unlike Title VII, § 1981 protects independent contractors from discrimination.  See Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1265 (10th Cir. 2013) (“Independent contractors can state a discrimination claim under § 1981.”).  As the First Circuit Court of Appeals has noted, “[s]ection 1981 does not limit itself, or even refer, to employment contracts but embraces all contracts and therefore includes contracts by which a corporate independent contractor . . . provides service to another corporation.”  Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 14 (1st Cir. 1999).

Second, § 1981 can be “invoked against employers who hire fewer than 15 employees,” whereas Title VII does not cover employers that do not meet this numerical threshold.  Lauture v. Int’l Bus. Machines Corp., 216 F.3d 258, 264 (2d Cir. 2000) (citing 42 U.S.C. § 2000e(b)).

Third, “individuals with supervisory authority may be held liable under Section 1981,” which is not the case under Title VII.  Brown v. Children’s Nat’l Med. Ctr., 773 F. Supp. 2d 125, 136 (D.D.C. 2011) (quotation and alterations omitted); see Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001) (“Although claims against individual supervisors are not permitted under Title VII, this court has found individual liability under § 1981 when the defendants intentionally cause an infringement of rights protected by Section 1981, regardless of whether the employer may also be held liable.” (citation, quotation, and brackets omitted)).

Fourth, unlike Title VII, there is no administrative exhaustion requirement that a plaintiff must satisfy before initiating an action under § 1981 in court.  Before commencing a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcing Title VII.  42 U.S.C. § 2000e-2(a)(1).  Although the charge-filing requirement is not jurisdictional (meaning a court can adjudicate a Title VII case where the plaintiff hasn’t filed a charge), the defendant can raise a plaintiff’s failure to file a charge prior to commencing suit as an affirmative defense, which can require a court to dismiss the plaintiff’s action.  See Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1850–51 (2019).  Section 1981, on the other hand, has no administrative exhaustion requirement.

Fifth, § 1981 has a longer statute of limitations period than Title VII.  To pursue a Title VII claim in court, you must first file an EEOC charge within 180 days (or 300 days if a state or local agency in your area prohibits employment discrimination on the same basis) from the last day on which the discrimination or harassment took place.  Once the EEOC issues a Notice of Right to Sue, you must file a lawsuit in court within 90 days.  In contrast, in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), the U.S. Supreme Court held that § 1981 claims are governed by the federal “catch-all” four-year statute of limitations.  Id. at 382–83.

Finally, unlike Title VII, § 1981 places no cap on damages.  Under Title VII, there are limits on the amount of compensatory and punitive damages a plaintiff can recover based on the size of the employer: for employers with 15-100 employees, the limit is $50,000; for employers with 101-200 employees, the limit is $100,000; for employers with 201-500 employees, the limit is $200,000; and for employers with more than 500 employees, the limit is $300,000.[6]  Section 1981, on the other hand, contains no caps on damages.  See Williams v. ConAgra Poultry Co., 378 F.3d 790, 798 (8th Cir. 2004) (“[I]n making the decision to limit damages in Title VII cases, Congress made the implicit judgment not to limit damages in § 1981 cases.”).

And there you have it.  While Title VII covers more protected characteristics than § 1981 and permits claims of disparate impact (which § 1981 does not),[7] § 1981 unambiguously protects independent contractors, does not require a defendant to have a minimum number of employees, permits individual liability against supervisors, has no administrative exhaustion requirement, has a longer limitations period, and places no cap on damages.

If you have experienced discrimination based on your race, ethnicity, or national origin, you should consult with an attorney to determine what your legal options are.  Sanford Heisler Sharp, LLP has experienced race and national origin discrimination lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.

Footnotes

[1]  See Danyelle Solomon, Connor Maxwell & Abril Castro, Systematic Inequality & Economic Opportunity, Center for American Progress (Aug. 7, 2019, 7:00 am), https://www.americanprogress.org/issues/race/reports/2019/08/07/472910/systematic-inequality-economic-opportunity/.

[2] See Brandon Underwood, Note, Tread Lightly: Third-Party Retaliation Claims After Thompson v. North American Stainless, 38 J. Corp. 463, 466–67 (2013).

[3] William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1231, 1237–42 (2001).

[4] Carmen D. Caruso, Section 1981 Litigation: Making Free Markets Free, American Bar Association (Apr. 23, 2013), https://www.americanbar.org/groups/litigation/committees/civil-rights/articles/2013/section-1981-litigation-making-free-markets-free/#:~:text=History%20of%2042%20U.S.C.%20%C2%A7,of%20economic%20parity%20in%20America.

[5] See Danielle Tarantolo, Note, From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce, 116 Yale L.J. 170, 193 n.139 (2006).  Section 1981 also covers Arabs and Jews.  See Steven H. Steinglass, Section 1983 Litigation in State Courts, 1 Section 1983 Litigation in State Courts § 4:5 (Nov. 2018 Update).

[6] See Remedies for Employment Discrimination, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/remedies-employment-discrimination (last visited Aug. 25, 2020).

[7] See Castleberry v. STI Grp., 863 F.3d 259, 267 (3d Cir. 2017) (“[W]hen comparing the two theories of discrimination brought under both Title VII and § 1981, we have explained that a theory of disparate impact is brought under Title VII alone while a theory of disparate treatment can be brought under § 1981 as well.” (quotations omitted)).

Alok Nadig is an Associate in the New York office of Sanford Heisler Sharp, LLP. He received his Bachelor of Arts degree and Bachelor of Music degree, each magna cum laude, from Northwestern University, where he was elected to Phi Beta Kappa.
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