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Proving Racial Discrimination in Employment Contracts Under Section 1981


What is Section 1981?

42 U.S.C. § 1981 (“Section 1981”) encompasses employment contracts and is a federal law that protects a person’s right to make and enforce contracts regardless of his or her race. 42 U.S.C. § 1981 states that:

  • “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 the like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

To bring a Section 1981 claim, a plaintiff must identify an impaired contractual relationship under which the plaintiff has rights. Section 1981 applies both “when racial discrimination blocks the creation of a contractual relationships, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.” To succeed on a Section 1981 claim, a plaintiff must initially plead, and ultimately prove that, but for race, he or she would not have suffered the loss of a legally protected right.

How Do I Prove Racial Discrimination Under Section 1981?

To succeed on a Section 1981 claim, a plaintiff must establish:

  1. that he or she is a member of a racial minority;
  2. that the defendant had intent to discriminate on the basis of race; and
  3. that the discrimination concerned one or more of the activities enumerated in the statue.

In determining whether a plaintiff has satisfied his or her elements, courts look for the same type of evidence used in other employment discrimination cases:

  1. direct evidence;
  2. statistical evidence that shows a pattern or practice of discrimination; or
  3. circumstantial evidence based on the four-pronged test outlined in the McDonnell Douglas burden-shifting framework.

Once the plaintiff has met the initial burden of demonstrating the three (3) elements listed above, the defendant has an opportunity to offer evidence demonstrating that it did not discriminate against the plaintiff. After the defendant has met its burden, the plaintiff is afforded a final opportunity to demonstrate to the court that the defendant’s reason(s) is pretextual for its actual discriminatory reason.

Section 1981 claims are analyzed using the same analysis as other employment discrimination claims. Thus, caselaw used to interpret other employment discrimination claims can be used to interpret Section 1981 claims.

Did Your Employer Discriminate Against You?

If you feel your rights under 42 U.S.C. § 1981 have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King.

You can contact us either online or by calling us at (205) 265-1880. We are here to serv