Most people are familiar with Title VII of the Civil Rights Act of 1964, it frequently used by aggrieved employees. However, Section 1981 of the Civil Rights Act of 1866 is another legal mechanism that can be used to bring employment discrimination claims.
Before bringing an employment discrimination claim, it is important to understand the differences between these two statutes, when they apply, and how they operate.
Overview
The Civil Rights Act of 1866 was enacted shortly after the Civil War, with the aim to protect the rights of newly freed slaves. Section 1981 was an original part of the Act, which guaranteed that all individuals within the United States enjoy the same right to make and enforce contracts, regardless of race. Over the years, the Supreme Court has interpreted Section 1981 to apply broadly to various forms of racial discrimination in contractual relationships, including employment.
The Civil Rights Act of 1991 amended Section 1981 to include protections against discrimination in the performance, modification, and termination of contracts, and clarified that it applies to both private and public discrimination.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin. Title VII was a pivotal piece of legislation in the fight against employment discrimination in the United States. Its historical context is deeply rooted in the broader Civil Rights Movement of the 1960s, which sought to address systemic racial discrimination and inequality. Title VII also established the Equal Employment Opportunity Commission (“EEOC”) to enforce its provisions and handle workplace discrimination complaints.
Scope of Protection
One of the key differences between Title VII and Section 1981 lies in the scope of protection they offer. Title VII provides a broad range of protections against various forms of discrimination, including race, color, religion, sex, and national origin. It covers all aspects of employment, such as hiring, firing, promotions, compensation, and other terms and conditions of employment. Additionally, Title VII applies to employers with 15 or more employees, including federal, state, and local governments, as well as private and public sector employers.
In contrast, Section 1981 specifically addresses racial discrimination in the making and enforcement of contracts. This includes employment contracts, but its protections are limited to race and do not extend to other protected characteristics covered by Title VII. Section 1981 applies to all employers, regardless of size, and does not require the involvement of the EEOC for enforcement. This means that individuals can bring claims directly to federal court without first filing a charge with the EEOC, which can be a significant advantage in certain cases.
Types of Discrimination
Title VII addresses a broad spectrum of discriminatory practices in the workplace. It prohibits discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), and national origin. This includes disparate treatment, disparate impact, harassment, and retaliation.
Section 1981, on the other hand, is specifically concerned with racial discrimination. It ensures that all individuals, regardless of race, have the same rights to make and enforce contracts, which include employment contracts. This statute addresses both intentional discrimination and discriminatory practices that affect the ability to enter into or maintain contractual relationships. While Section 1981 does not explicitly cover other forms of discrimination like sex or religion, it provides robust protection against racial discrimination in the workplace and other contractual settings.
Enforcement and Remedies
Title VII is enforced by the Equal Employment Opportunity Commission (EEOC), which investigates discrimination complaints, mediates disputes, and can file lawsuits on behalf of employees. Before filing a lawsuit under Title VII, individuals must first file a charge with the EEOC. Remedies under Title VII can include reinstatement, back pay, front pay, compensatory damages for emotional distress, and punitive damages for particularly egregious conduct. The amount of compensatory and punitive damages is capped based on the size of the employer, ranging from $50,000 to $300,000
Section 1981, in contrast, allows individuals to bypass the EEOC and file lawsuits directly in federal court. This can expedite the legal process for those facing racial discrimination. Remedies under Section 1981 are similar to those available under Title VII, including compensatory and punitive damages, but there are no caps on the amount of damages that can be awarded. This makes Section 1981 a powerful tool for addressing racial discrimination, providing broader potential financial recovery for plaintiffs.
It is important to note that these are general distinctions between Title VII and Section 1981, and specific legal requirements may vary in different jurisdictions.
Consulting with an attorney who specializes in employment litigation can provide further guidance on the application of these laws to the facts and circumstances of specific cases.
If you would like to discuss Title VII or 1981 claims, please contact CMBG3.
Nathanael E. Wright is a partner, and Louis Miyara is an associate at CMBG3
I am submitting this formal summary to document a series of discriminatory incidents and professional misconduct I have experienced since beginning my employment as a Route Sales Representative against Jon S.-Medley 921. I am writing now after resigning due to no longer being able to withhold a guilty conscience. I understand I may not be reinstated, though the truth must be stated.
1. Hostile Training Environment
During my initial training period, my trainer created a hostile work environment through repeated racial harassment. While alone in the work vehicle, he made derogatory comments regarding my skin color and tattoos. Additionally, he explicitly stated his “hatred” for Muslims. These comments were unsolicited and created an immediate atmosphere of exclusion.
2. Not Properly Equipped to Perform
Also, during my training stage, I was only given one work shirt for the duration of training.
3. Unequal Pay and Disparate Treatment
In approximately August/September 2025, I was promoted. Despite holding the same job title and responsibilities as my colleagues, I was paid significantly less than my colleagues. No professional justification was provided for this pay gap.
4. Direct Racial Slurs from Management
The hostile environment was reinforced by leadership. On one occasion, while in a private meeting in his office, my manager (a Caucasian male) blatantly used the N-word in my presence. This use of a racial slur by a direct supervisor is a severe violation of company policy and professional standards.
5. Orchestrated Misconduct
Management eventually orchestrated a “fake” drug test. This process was presented to me under the guise of “helping me keep my job.” I believe this fraudulent situation was manufactured to exert control over my employment and further isolate me while I was already experiencing pay discrimination and verbal harassment.
Closing
The combination of racial slurs, discriminatory treatment, and the orchestration of a fraudulent drug test has made it impossible to maintain a productive or safe working relationship with this team. I am requesting a formal review of these incidents and the pay records associated with my role.
D.K.J. Milton