Title VII is the not the only federal law which prohibits employment discrimination based on race — in fact, it may not be the best statute under which to file your claim. For many workplace race discrimination claims, plaintiffs will be better served by filing their lawsuits under 42 U.S.C. §1981 (Section 1981). As Section 1981 is not restricted to employers with at least 15 employees (unlike Title VII), in cases involving small businesses it may be a plaintiff’s only option. While Title VII and Section 1981 are not mutually exclusive (you can file suit under both if the employer has 15 or more employees), Section 1981 has several benefits over Title VII which allow claims to proceed more quickly and potentially make a larger recovery.
Section 1981 — Who Does it Protect?
Section 1981 prohibits intentional employment discrimination on the basis of race. Protected classes include any group which can be identified by racial or ethnic characteristics, such as black, white, Latino, Arab or Jewish employees.
Section 1981 — What Types of Employers are Covered?
Unlike Title VII, which applies only to employers that have 15 or more employees, Section 1981 applies to all private, state and local government employers, regardless of the number of employees. It does not apply to federal employers — employees of the federal government are limited to Title VII claims for race discrimination.
Section 1981 — What Employment Practices Are Prohibited?
Section 1981 prohibits all forms of intentional employment discrimination based on race which are considered “disparate treatment”. Disparate treatment includes: firing, refusing to hire, demotion, failure to promote, unequal pay and hostile work environment claims. “Disparate impact” claims, claims which allege that a race-neutral employment policy has an unequal impact on a protected racial class, cannot be brought under Section 1981 (but can still be brought under Title VII).
Section 1981 also prohibits retaliation by employers against employees who pursue their rights under the statute.
Advantages of Section 1981 over Title VII
Section 1981 has several advantages over Title VII. It applies to all non-federal employers, regardless of the number of employees. A Section 1981 plaintiff does not need to file an EEOC charge before filing a lawsuit, saving plaintiffs months of delay over Title VII plaintiffs. Section 1981 does not have caps on compensatory or punitive damages. The statute of limitations on Section 1981 claims is 4 years, allowing far more time for an employee to bring a claim over Title VII plaintiffs.
Possible Disadvantages of Section 1981
In addition to not applying to federal employers and not allowing “disparate impact” claims, Section 1981 plaintiffs may not be able to prevail in a discrimination lawsuit in which an employer successfully raises a “mixed motives” defense. In “mixed motive” cases, an employer alleges that while discrimination may have been one motive for taking negative employment action, it was not the primary reason. Under Title VII, a plaintiff can still receive some relief (usually a declaratory judgment and attorney’s fees) if the employer proves that non-discriminatory motives outweighed discriminatory motives in its employment decision. Under Section 1981, it does not appear that a plaintiff can prevail under these circumstances — although this is an unsettled area of law.