42 U.S.C. § 1981 · A outline

A · Element outline

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Claim structure

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42usc1981:private-contract-discrimination

protected-person & own-contract & contractual-impairment & racial-intent & but-for-causation & private-actor

Core §1981(a)-(c) contractual equality claim against nongovernmental discrimination. Plaintiff must identify its own existing or proposed contract rights; race must cause the actionable impairment. Pleading and proof burdens remain with plaintiff.

42usc1981:state-contract-discrimination

protected-person & own-contract & contractual-impairment & racial-intent & but-for-causation & state-remedial-route

A §1981 right impaired under color of state law is enforced through §1983 under Jett and the cited circuit cases. §1983 causation, personal involvement, municipal policy/custom and immunities must be satisfied where applicable; §1981(c) does not eliminate them.

42usc1981:retaliation

protected-person & protected-activity & defendant-knowledge & retaliatory-adversity & retaliatory-causation & (private-actor | state-remedial-route)

CBOCS recognizes retaliation for advocacy of protected racial contract rights, including another person’s rights. Do not require plaintiff to be the original victim of the opposed racial discrimination; liability still requires its own retaliatory injury.

Constraints

A hostile-environment theory must satisfy the additional judicial harassment test.

Applies only to the hostile-environment variant of contractual-impairment, not every hiring, promotion, discharge or commercial-contract dispute. Keep the core own-contract, racial-intent and Comcast but-for requirements; state actors also require the state-remedial-route. Employer attribution depends on the actor and controlling law, not automatic respondeat superior for municipalities.

Law modes, protocols and effects

law

Law kind: substantive

protocol · mcdonnell-douglas

Proves: racial-intent

prima-facie: plaintiff bears production; raises a rebuttable presumption of discrimination

employer-reason: defendant bears production; presumption drops out

pretext: plaintiff bears persuasion; merges with the ultimate causation question

Judicial circumstantial-proof protocol: Nelson describes the stages for its Eighth Circuit promotion claim. Those prima-facie facts are context-specific; plaintiff retains the ultimate Comcast but-for burden. The older analogy to Title VII does not import motivating-factor liability.

Statute text with element anchors

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§1981. Equal rights under the law
(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.
(b) "Make and enforce contracts" defined For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. (R.S. §1977; Pub. L. 102–166, title I, §101, Nov. 21, 1991, 105 Stat. 1071 .)
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