Section 1981 protects your right to make and enforce contracts free from race-based discrimination, and it lets you sue in federal court without ever filing a charge with the EEOC. The law reaches both private and public actors across hiring, lending, leasing, and commercial deals. The catch: the Supreme Court now requires you to prove race was the but-for cause of the harm, not just a factor.
TL;DR:
- Plaintiffs must prove race was the but-for cause of discrimination that interfered with a contractual right, such as hiring, firing, or contract enforcement.
- Evidence such as comparator treatment, discriminatory statements, or direct documents linking the decision to race significantly strengthens a §1981 claim.
- Discrimination based on ethnicity and ancestry is protected under §1981 when rooted in racial bias, expanding the law’s scope beyond the word “race” alone.
- Section 1981 allows direct federal court actions without EEOC filing, but adding Title VII claims may be advantageous for theories like disparate impact.
- No damage caps exist under §1981, and successful plaintiffs can recover damages, reinstatement, and attorneys’ fees, particularly if conduct was reckless or intentional.
Table of Contents
- What Section 1981 Is and What Its Contract Clause Covers
- Who Counts as Protected Under Section 1981’s Race Standard
- Elements You Must Prove to Win a Section 1981 Claim
- How to Pursue a Section 1981 Claim Step by Step
- What You Can Recover in a Section 1981 Case
- Recent Caselaw and Defenses You Should Expect
- How Javitch Law Office Approaches Section 1981 Claims
- When to Rely on Section 1981 Alone or Alongside Title VII
- Get a Case Evaluation for Your Section 1981 Claim
- Sources
- FAQ
What Section 1981 Is and What Its Contract Clause Covers
42 U.S.C. § 1981 guarantees everyone in the United States the same right to make and enforce contracts regardless of race, and it applies to both private companies and government entities. The statute traces back to the Civil Rights Act of 1866, passed to secure basic economic rights for formerly enslaved people.
Congress amended the law in 1991 to close a loophole that limited it to the moment a contract was signed. Today the clause covers the making, performance, modification, and termination of a contract, not just its formation.
In practice, that reach is broad. An employer who fires a worker for a discriminatory reason, a bank that denies a loan based on race, or a landlord who refuses to lease an apartment to someone because of their ethnicity can all trigger a §1981 claim, since each involves a contractual relationship touched by racial bias.
Who Counts as Protected Under Section 1981’s Race Standard
Section 1981 protects against discrimination based on race, and the Supreme Court has read that term to include ancestry and ethnic characteristics when the bias is rooted in those traits. That interpretation means the statute covers a wider range of scenarios than the word “race” might suggest on its own, including discrimination tied to national origin when it overlaps with ethnic identity. For more on that overlap, see how national origin discrimination claims intersect with race-based ones.
Courts look for evidence that the discriminatory treatment was rooted in the plaintiff’s ancestry or ethnicity rather than some other, permissible factor. Importantly, §1981 protects people of every race, including white plaintiffs who can show they were treated worse because of their race in a contractual setting. Bias in hiring decisions, discriminatory contract terms, and unequal enforcement of an agreement all fall within its scope.
Elements You Must Prove to Win a Section 1981 Claim
A §1981 claim rests on two core elements. First, you must show impairment of a contractual right, meaning the discrimination interfered with forming, performing, modifying, or ending a contract. Second, you must show that race was an intentional, but-for cause of that impairment, not merely one factor among several.
These elements accommodate more than one legal theory. Disparate treatment, where you were treated worse than similarly situated people of another race, fits squarely within §1981. So does a hostile work environment claim, where a pattern of racial harassment interfered with your ability to perform under an employment contract. What §1981 does not allow is a disparate-impact claim, where a neutral policy happens to affect one race more than another without proof of intent.
Model jury instructions used by federal courts frame these elements in terms judges expect to see argued at trial: an existing or prospective contractual relationship, intent to discriminate based on race, and discrimination that impaired that relationship. Because of the but-for standard, a complaint needs specific facts tying the adverse decision to race, not general assertions of unfair treatment.
How to Pursue a Section 1981 Claim Step by Step
Section 1981 does not require you to file a charge with the EEOC first. You can go straight to federal court, which is one of its biggest practical advantages over Title VII. That said, many plaintiffs still file a Title VII charge alongside a §1981 claim, since Title VII covers disparate-impact theories and other protected classes that §1981 does not reach, according to Cornell’s Wex explainer.
Before filing, take these steps:
- Write down dates, locations, and details of each incident while your memory is fresh.
- Preserve emails, texts, and any written communications related to the contract or employment decision.
- Identify witnesses who observed the treatment or can speak to how others were treated differently.
- Save transactional records such as offer letters, loan applications, leases, or personnel files.
- Note your state’s statute of limitations, since §1981 borrows the most analogous state personal-injury period unless a federal four-year catch-all period applies.
Pro Tip: Start a dated log the moment you suspect discrimination. Contemporaneous notes carry far more weight in court than a reconstructed timeline months later.
What You Can Recover in a Section 1981 Case
Successful §1981 plaintiffs can recover equitable relief such as reinstatement, compensatory damages for lost wages and emotional distress, punitive damages where the conduct was especially reckless, and attorney’s fees. Unlike Title VII, §1981 imposes no statutory caps on damages, and Title VII’s caps are tied to employer size while its remedies also run through the EEOC’s administrative process.
Keep pay stubs, medical or counseling records, and any documentation of how the discrimination affected your finances or well-being. That paper trail becomes the backbone of a damages claim later.
Recent Caselaw and Defenses You Should Expect
The Supreme Court’s 2020 decision in Comcast Corp. v. National Association of African-American-Owned Media requires plaintiffs to plead and prove that race was a but-for cause of the injury, not just a motivating factor. That ruling raised the bar for surviving a motion to dismiss.
Defendants commonly argue they had a legitimate, nondiscriminatory reason for the decision, that the plaintiff lacked a genuine contractual interest, or that the claim is time-barred. Complaints that survive tend to include comparator evidence, contemporaneous discriminatory statements, or documents directly tying the decision to race. Vague claims that treatment “felt unfair” without specifics tend to fail.
How Javitch Law Office Approaches Section 1981 Claims
Javitch Law Office is a California-based civil rights firm with a nationwide reach that focuses on protecting clients against discrimination, constitutional violations, and consumer harm. The firm has built specific experience in racial and religious discrimination cases, First Amendment violations, and consumer class actions, with an emphasis on holding powerful institutions accountable.
Before an initial consultation, gather dates and details of each incident, copies of relevant communications, personnel files or transactional records, and the names of any witnesses. Readers weighing whether their situation warrants counsel can also review guidance on when to hire a discrimination lawyer for workplace-specific scenarios.
When to Rely on Section 1981 Alone or Alongside Title VII
Use §1981 alone when your harm is purely race-based and you want to skip EEOC exhaustion or reach outside Title VII’s employer-size rules. Add Title VII when disparate impact, another protected class, or agency investigation could strengthen your case. When your situation involves overlapping theories, a short consultation with counsel early on can clarify which path, or both, fits your facts.
— Mark
Get a Case Evaluation for Your Section 1981 Claim
If you believe your contract rights were violated because of your race, You can find legal representation that offers direct attorney contact and often handles discrimination cases on a contingency-fee basis, meaning payment is due only if there is a recovery. Some firms take on cases that larger firms might decline, combining local knowledge with the ability to litigate across multiple jurisdictions.
- Workplace Discrimination covers race-based hiring, firing, and contract disputes tied to employment.
- Student and religious discrimination claims often overlap with §1981’s contract protections in education settings.
- Business Litigation Attorneys handle commercial contract disputes where race played a role in a business decision.
Bring your documentation, a timeline of events, and witness names to your first conversation. Contact Javitch Law Office to have your situation reviewed and learn whether a §1981 claim fits your case.
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
Sources
- 42 U.S.C. § 1981 - Equal rights under the law
- Other Employment and Civil Rights Laws Not Enforced by the EEOC | U.S. EEOC
- Supreme Court requires but-for causation for Section 1981 claims (Ogletree analysis)
- Instructions For Race Discrimination Claims Under 42 U.S.C § 1981 (Third Circuit model instructions PDF)
FAQ
Does Section 1981 Cover Ethnicity as Well as Race?
Yes. Courts have interpreted “race” under §1981 to include ancestry and ethnic characteristics when the discrimination is rooted in those traits, extending the law’s reach beyond a narrow racial category.
What Are Common Examples of Unfair Discrimination Under Section 1981?
Typical examples include refusing to hire someone because of their race, denying a loan or lease based on ethnicity, enforcing contract terms unequally between racial groups, and subjecting an employee to a racially hostile work environment that interferes with their job.
Can a White Person Bring a Discrimination Claim Under Section 1981?
Yes. Section 1981 protects people of every race, so a white plaintiff who can show intentional race-based treatment that impaired a contractual right has standing to sue just like any other plaintiff.
What Are the Elements of a Section 1981 Claim?
A plaintiff must show impairment of a contractual right, such as hiring, firing, or contract enforcement, and that race was an intentional, but-for cause of that impairment, as required by the Supreme Court’s Comcast decision.
Does Section 1981 Require Filing With the EEOC First?
No. Section 1981 claims go directly to federal court through a private lawsuit, and the EEOC has confirmed it does not enforce this statute, unlike Title VII’s administrative process.