Source: law/42usc1981.law
law 42usc1981
cite 42 U.S.C. § 1981
title Equal contractual rights and retaliation; private and state remedial routes
url https://www.neochart.com/catalog/federal/civil_rights/title_42/chapter_21/section_1981/title42_sec1981_b68fdd59ea50/1981_equal_rights_under_the_law_0001/index.html
address catalog/federal/civil_rights/title_42/chapter_21/section_1981/title42_sec1981_b68fdd59ea50/1981_equal_rights_under_the_law_0001/index.html
source ir/usc/title42.jsonl#title42_sec1981 sha1=70b95448a9fed7122e5b0ebb204917aa48ae3cd5 chars=1045
claim private-contract-discrimination : protected-person & own-contract & contractual-impairment & racial-intent & but-for-causation & private-actor
gloss 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.
claim state-contract-discrimination : protected-person & own-contract & contractual-impairment & racial-intent & but-for-causation & state-remedial-route
gloss 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.
claim retaliation : protected-person & protected-activity & defendant-knowledge & retaliatory-adversity & retaliatory-causation & (private-actor | state-remedial-route)
gloss 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.
# v0.1: burden-shifting protocol borrowed from Title VII practice (McDonnell Douglas).
protocol mcdonnell-douglas proves racial-intent
stage prima-facie : burden plaintiff production -> raises a rebuttable presumption of discrimination
stage employer-reason : burden defendant production -> presumption drops out
stage pretext : burden plaintiff persuasion -> merges with the ultimate causation question
rule /f3d/918/0990-01 @5791..6260 | Under McDonnell Douglas, a plaintiff "must first establish a prima facie case of discrimination." Torgerson v. City of Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011) (en banc). Here, Nelson has established a prima facie case because "(1) she is in a protected class; (2) she was qualified for [the Operations Manager] position; (3) she was denied that position; and (4) [ABCBS] filled the position with a person not in the same protected class." Id. (citation omitted).
rule /f3d/918/0990-01 @6261..6786 | Next, the burden shifts to the employer to "articulate a legitimate, nondiscriminatory reason for not hiring" the plaintiff. Id. (citation omitted). This burden is "not onerous." Id. at 1047 (citation omitted). Here, ABCBS met this burden. ABCBS's proffered legitimate, nondiscriminatory reasons for hiring Watkins over Nelson were: (1) Watkins scored higher on the interview; and (2) her retail experience at Alltell was more directly relevant to the storefront concept that ABCBS wanted to develop at the Pine Bluff office.
rule /f3d/918/0990-01 @6787..6935 | Finally, the burden shifts back to the plaintiff to demonstrate that the reason offered by the employer was pretext for discrimination. Id. at 1046.
gloss 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.
element protected-person : and
name Persons protected by equal contractual rights
text @64..499 | 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.
gloss The text protects all persons within U.S. jurisdiction and equal rights enjoyed by white citizens; it is not limited to minority plaintiffs or employees of Title VII-sized employers. Race-based ancestry/ethnicity discrimination may qualify; sex, age or religion alone is not a §1981 contract claim. Citizenship/alienage applications and specific noncontract clauses require separate analysis.
element own-contract : and
name Plaintiff has rights in an existing or proposed contract
text @176..205 | to make and enforce contracts
rule /us/546/0470-01 @6665..7639 | Any claim brought under § 1981, therefore, must initially identify an impaired “contractual relationship,” § 1981(b), under which the plaintiff has rights. Such a contractual relationship need not already exist, because § 1981 protects the would-be contractor along with those who already have made contracts. We made this clear in Runyon v. McCrary, 427 U. S. 160 (1976), which subjected defendants to liability under § 1981 when, for racially motivated reasons, they prevented individuals who “sought to enter into contractual relationships” from doing so, id., at 172 (emphasis added). We have never retreated from what should be obvious from reading the text of the statute: Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, 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.
not-required A fully executed contract before a discriminatory refusal to contract.
gloss Domino’s Pizza requires plaintiff’s own actual or proposed rights, not merely injury through a shareholder’s or agent’s relationship with a contracting corporation. The requirement applies to the direct contract-discrimination claim; CBOCS separately protects advocacy for another person’s contract rights.
element contractual-impairment : and
name Formation performance termination or contractual benefits
text @541..788 | 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.
rule /us/546/0470-01 @14181..14591 | Consistent with our prior case law, and as required by the plain text of the statute, we hold that a plaintiff cannot state a claim under §1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes “to make and enforce.” Section 1981 plaintiffs must identify injuries flowing from a racially motivated breach of their own contractual relationship, not of someone else’s.
variant formation | Discriminatory refusal to enter an available proposed contract.
variant performance | Discriminatory terms, performance, modification, benefits or termination under subsection (b).
variant employment | Hiring, promotion or discharge impairing the employment relationship; a hostile-environment theory must also satisfy hostile-environment under the conditional constraint below.
variant commercial | Retail, service and other contracting outside employment; identify the actual proposed or existing contractual opportunity.
gloss Section 1981 is not an omnibus remedy for all offensive conduct. The 1991 definition displaced Patterson’s restricted postformation coverage; do not revive that superseded limitation. Contract rights can be impaired without a separately proven state-law breach-of-contract tort.
element racial-intent : and
name Judicial intentional-race-discrimination requirement
text @64..499 | 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.
rule /f3d/918/0990-01 @5165..5638 | A plaintiff suing for race discrimination may survive a motion for summary judgment by "present[ing] admissible evidence directly indicating unlawful discrimination ... or creat[ing] an inference of unlawful discrimination under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Macklin v. FMC Transp., Inc., 815 F.3d 425, 427 (8th Cir. 2016) (citation and internal quotation marks omitted).
not-required Direct evidence as the exclusive method of proving discriminatory intent.
gloss Intentional race discrimination is required; disparate impact by itself is insufficient. Nelson supplies alternative direct/circumstantial proof and pretext framework in the employment setting, not a universal comparator pleading requirement. Its 2019 formulation is read subject to Comcast’s 2020 but-for rule.
element but-for-causation : and
name Judicial but-for causation of contractual injury
text @121..205 | shall have the same right in every State and Territory to make and enforce contracts
xref Comcast Corp. v. National Association of African American-Owned Media, 589 U.S. 327 (2020) | Official current-law update: plaintiff must plead and prove that race was a but-for cause of its injury; this burden remains throughout the lawsuit. https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf
gloss This judicial requirement is not verbatim statutory language. Comcast rejected a motivating-factor pleading rule and importing Title VII’s mixed-motive standard. But-for does not mean race must be the sole cause. The official opinion is an external annotation, not a fabricated local IR rule quote.
element private-actor : and
name Nongovernmental impairment
text @823..967 | The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
gloss Subsection (c) reaches private racial discrimination. A contractual discrimination action against a private defendant does not require state action; corporate attribution and personal participation remain necessary to identify a liable defendant.
element state-remedial-route : and
name Judicial section 1983 remedial route for state-law impairment
text @823..967 | The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
xref 42 U.S.C. § 1983; Jett v. Dallas Independent School District, 491 U.S. 701 (1989) | Express remedial route for state-actor impairment of §1981 rights; municipal liability requires policy/custom or qualifying final policymaker and cannot rest solely on respondeat superior.
rule /f3d/935/0510-01 @13207..13654 | The district court dismissed these claims because " § 1981 does not provide a cause of action against state actors in their individual capacities." While that is true, plaintiffs may still bring § 1983 claims premised on violations of § 1981. See, e.g., McCormick v. Miami Univ. , 693 F.3d 654, 661-62 (6th Cir. 2012) ("[T]he more specific and express cause of action contained in § 1983 provide[s] a mechanism to address a violation of § 1981.").
rule /f3d/935/0633-01 @4620..5033 | A municipality can act only through its employees, so a plaintiff seeking damages against a municipality under § 1983, for race discrimination that violated § 1981, must show that a municipal official or employee racially discriminated against him. See Jett v. Dall. Indep. Sch. Dist. , 491 U.S. 701, 735-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) ; Russell v. Hennepin County , 420 F.3d 841, 846 (8th Cir. 2005).
gloss Boxill recognizes §1983 as the vehicle even though direct §1981 claims against state actors fail. Ridgell’s city verdict failed because the only alleged discriminatory official was exonerated on that record; do not turn that outcome into immunity whenever any individual wins for any reason.
element protected-activity : and
name Opposition to racial impairment of contract rights
text @176..205 | to make and enforce contracts
rule /us/553/0442-01 @25226..25305 | We consequently hold that 42 U. S. C. § 1981 encompasses claims of retaliation.
gloss CBOCS holds that advocacy for another person’s racially impaired contractual rights can support retaliation. The word retaliation is absent from §1981’s text; protection is authoritative judicial interpretation, not a statutory quotation. A generic workplace complaint unrelated to race/§1981 rights does not automatically qualify.
element defendant-knowledge : and
name Judicial defendant-knowledge requirement for retaliation
text @823..967 | The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
rule /f3d/935/0510-01 @14122..14517 | To survive dismissal, Boxill must allege that (1) she engaged in protected activity; (2) her exercise of that activity was known by the Defendant; (3) the Defendant thereafter took an action that was materially adverse to her; and (4) there was a causal connection between the protected activity and the materially adverse action. Laster v. City of Kalamazoo , 746 F.3d 714, 730 (6th Cir. 2014).
gloss Link knowledge to the relevant decisionmaker/defendant, not a conclusory reference to defendants collectively. Boxill dismissed because concrete adverse-action/causal allegations were missing.
element retaliatory-adversity : and
name Judicial material-adversity requirement for retaliation
text @691..788 | the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
gloss Boxill’s pinned retaliation test requires materially adverse action. Apply the reasonable-worker deterrence inquiry in employment; petty slights alone do not satisfy it. Retaliation does not require proof that the challenged action was itself motivated by the plaintiff’s race.
element retaliatory-causation : and
name Judicial causation requirement for retaliatory injury
text @823..967 | The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
gloss Require a causal connection and the applicable ultimate but-for standard; knowledge plus temporal sequence alone does not necessarily prove causation. Boxill is a pleading decision and does not hold that its prima facie articulation replaces the ultimate burden.
element remedies : and
name Compensatory equitable punitive and fee remedies
text @691..788 | the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
xref 42 U.S.C. § 1988(b) | Prevailing-party attorney-fee authority; §1981a is not the blanket remedial source for §1981 claims.
rule /f3d/919/0520-01 @15361..15492 | But Bryant brought his claim under § 1981, so Jeffrey Sand was on fair notice that the jury's award could exceed the Title VII cap.
rule /f3d/919/0520-01 @16080..16182 | A prevailing party in a § 1981 action may be awarded a reasonable attorney's fee. 42 U.S.C. § 1988(b).
gloss Section 1981 remedies are judicially developed; punitive damages require additional culpability and constitutional proportionality. Section 1981a(b)(3) employment caps do not cap §1981 awards; §1981a(b)(4) preserves §1981 relief. State/municipal defendants raise distinct immunity/remedial limits under §1983.
defense limitations : defense
name Claim-specific limitations and accrual
text @541..788 | 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.
xref 28 U.S.C. § 1658; Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) | Four-year federal period for claims made possible by the 1991 amendments; preexisting §1981 claims generally borrow the appropriate state personal-injury period. Classify the claim rather than applying four years automatically.
rule /f3d/919/0520-01 @7164..8056 | We also conclude that Bryant's § 1981 claim was timely under the applicable four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383-85, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (explaining that federal statute of limitations in 28 U.S.C. § 1658 applies to such claims). "[U]nder federal law one act of the hostile work environment must occur ... within the § 1981 statute of limitations period. If that requirement is met, a party may then recover for all illegal acts that made up the hostile work environment." Madison v. IBP, Inc., 330 F.3d 1051, 1061 (8th Cir. 2003). The continuing violation rule applies to punitive, as well as compensatory, damages. See id. at 1060-61. Thus, in order for Bryant's claim to be timely, at least one act of the hostile work environment must have occurred after July 13, 2012-four years before Bryant filed his complaint.
gloss Bryant’s hostile-environment continuing-violation rule requires a component act in time; it does not revive all time-barred discrete employment decisions. No Title VII EEOC-charge prerequisite is imported into a direct §1981 claim.
constraint hostile-route(contractual-impairment, hostile-environment) : A hostile-environment theory must satisfy the additional judicial harassment test.
type requires
gloss 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.
element hostile-environment : and
name Judicial hostile-environment threshold and attribution
text @691..788 | the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
rule /f3d/863/0259-01 @4811..5942 | Plaintiffs’ harassment claim under § 1981 alleges a hostile work environment on the basis of race. To win, a plaintiff must show that “1) the employee suffered intentional discrimination because of his/her [race], 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability [meaning the employer is responsible].” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (citation omitted). Plaintiffs assert that the District Court applied the wrong legal standard in dismissing this claim when it required them to plead discrimination that was “pervasive and regular.” See J.A. at 13 (emphasis added) (citing Ocasio v. Lehigh Valley Family Health Ctr., 92 Fed.Appx. 876, 879 (3d Cir. 2004)). Instead, they only were required to plead that they were subjected to a hostile work environment in which there was discrimination that was “severe or pervasive.” See Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (emphasis added).
gloss Castleberry (Third Circuit) applies severe OR pervasive harassment, actual detrimental effect on plaintiff, objective effect on a reasonable person in like circumstances, and a basis to hold the employer responsible. These judicial requirements elaborate the contractual-conditions hook. A sufficiently severe single incident can qualify; no rule requires both severity and pervasiveness. The 2017 opinion's general Title VII analogy is read subject to Comcast for ultimate §1981 racial causation.
element catalogue-scope : and
name Contract and retaliation scope with noncontract clauses identified
text @207..499 | 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.
gloss The displayed title and formulas cover racial contractual impairment, including conditional hostile environment, and retaliation. Subsection (a) separately protects litigation/evidence participation, equal legal protection of persons/property, and equal punishment/exactions; those noncontract theories and alienage claims are not decomposed here. The own-contract requirement in these formulas is not a declaration that the quoted noncontract rights are absent from the statute.