Civil Rights Act of 1866: Racial Discrimination Unlawful

Congress enacted the Civil Rights Act of 1866 in the aftermath of the Civil War, when many southern states were passing laws restricting the legal rights of newly-freed slaves. The 1866 Act, among other things, conferred upon “all citizens” and “all persons” the same rights to own property and to make and enforce contracts, respectively. 

Since 1866, the Act has been re-enacted several times with some modifications. Of particular importance in the employment context, one portion of this law is now codified at 42 U.S.C. § 1981. In relevant part, Section 1981 provides that “All persons within the jurisdiction of the United States shall have the same right … to make and enforce contracts … as is enjoyed by white citizens[.]” Because the employer-employee relationship is a type of contractual relationship, Section 1981 prohibits racial discrimination in the employment context. 

In practice, Section 1981 functions similarly to Title VII of the Civil Rights Act of 1964, in that it prohibits employers from intentionally discriminating against employees on the basis of race. For example, the tests for proving a racially hostile work environment asserted under Section 1981 and Title VII are the same. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015). Under both laws, an employer is liable for a racially hostile workplace when the plaintiff can show “(1) unwelcome conduct; (2) that is based on the plaintiff’s … race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Id. at 277 (citing Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)). 

Title VII and Section 1981 differ, however, in several important aspects.

Section 1981 Requires Intentional Discrimination

Title VII contains a provision that makes it unlawful for employers to implement practices that impact individuals of one race more than individuals of other races, even if this employer did not intend for the practice to be discriminatory. This “disparate impact” provision of Title VII prohibits an employer from “us[ing] a particular employment practice that causes a disparate impact on the basis of race [or other protected characteristics]” so long as the employer “fails to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity[.]” 42 U.S.C. § 2000e-2(k)(1)(A). Thus, an employer can violate Title VII’s prohibition on racial discrimination without intending to do so. 

Section 1981 does not have an analogous provision. Section 1981 claims, therefore, require evidence of intentional discrimination. The Supreme Court has rejected the argument “that a violation of § 1981 could be made out by proof of disparate impact….” Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 383 n.8 (1982). In discussing the history of the statute and comparing it to Title VII, the Court explained Section 1981 was enacted to prevent purposeful discrimination and “did not include practices that were neutral on their face … but that had the incidental effect of disadvantaging blacks to a greater degree than whites.” Id. at 388. (quotation omitted).

Section 1981 Does Not Require an EEOC Charge

To bring a race discrimination claim under Title VII in court, a plaintiff must first file a charge of discrimination with the Equal Employment Opportunity Commission. Before she can file a Title VII race discrimination claim in court, the plaintiff must then wait for the EEOC to complete its investigation and issue a Notice of Suit Rights. By contrast, a plaintiff may bring a lawsuit under Section 1981 for racial discrimination without first going through the EEOC process. 

Section 1981 Has a Longer Statute of Limitations than Title VII

Title VII claims have a relatively short statute of limitations — depending on the state, Title VII race discrimination claims generally must be reported to the EEOC within 180 or 300 days of the employer’s discriminatory actions, and a Title VII lawsuit must be filed in court within 90 days of the employee’s receipt of suit rights from the EEOC. By contrast, the text of Section 1981 does not specify a particular time limit within which claims must be filed. Section 1981 violations are therefore subject to the general four-year statute of limitations for civil actions arising under federal law. 28 U.S.C. § 1658. Section 1981 claims may therefore be brought in court within four years of the discriminatory action at issue. 

Title VII Covers More Types of Discrimination than Section 1981

Section 1981 only applies to discrimination based on race. Title VII, by contrast, outlaws race discrimination as well as discrimination based on “religion, sex, and national origin.” 42 U.S.C. § 2000e-2(a).

Section 1981 Applies to All Employers, Regardless of Size

Title VII only prohibits racial discrimination by employers with fifteen or more employees. 42 U.S.C. § 2000e(b). Section 1981, by contrast, contains no such limitation. Because the terms of Section 1981 apply to all forms of contracting, it applies to all employers regardless of size — including employers with fewer than fifteen employees.

Both Laws Allow Recovery of Compensatory and Punitive Damages, but Section 1981 Does Not Cap Damages

Title VII is subject to caps limiting the amount of compensatory and punitive damages an employer may be required to pay for violating the law. The applicable caps range from $50,000 to $300,000, depending on how many employees the employer has. 42 U.S.C. § 1981a(b)(3). The relevant statute authorizes compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses[.]” 42 U.S.C. § 1981a(b)(3). The same statute further allows punitive damages against private-sector employers for Title VII violations if the plaintiff shows the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).

Section 1981, by contrast, does not include a cap on damages. While the text of Section 1981 does not specifically discuss damages, courts have affirmed compensatory damages awards under Section 1981, Runyon v. McCrary, 427 U.S. 160 (1976), and held that a prevailing Section 1981 plaintiff is entitled under the common law to punitive damages “under certain circumstances,” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975). Specifically, punitive damages may be awarded “for conduct [by the defendant] exhibiting malice, an evil motive, or recklessness or callous indifference to a federally protected right,” Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 489 (4th Cir. 1988); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir. 2000). This standard comes from the Supreme Court’s opinion in Smith v. Wade, 461 U.S. 30 (1983), in which the Court held that punitive damages are available under the common law in an action under the civil rights statute 42 U.S.C. § 1983 “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith, 461 U.S. at 56. 

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