Section 1981 Claims & Racial Discrimination
In South Carolina, employment discrimination on racial grounds is prohibited. However, if it happens to you, it is important to understand that there are different legal options on which to rely if you decide to seek compensation. Most of the time, Title VII of the Civil Rights Act of 1964 is the law on which plaintiffs rely, but there is another alternative that can sometimes be a better bet, depending on the specifics of your case. In this article, we’ll discuss Section 1981 claims and racial discrimination.
Section 1981
42 U.S.C. §1981 is a law passed not long after the U.S. Civil War, which states that all people within U.S. jurisdiction have the same rights as to be able to conduct certain acts—namely, to contract, to sue, and to have the “full and equal benefit of all laws and proceedings … [given to] white citizens.” Such a law, in essence, places people of all races on the same legal footing as white U.S. citizens, which was in doubt during most of the 19th century. It is important to note that this law has been held to protect any group that is identifiable as an ethnicity, including many white-passing groups, such as Jews, as being Jewish is considered both a religion and an ethnicity.
There are some advantages to using Sec. 1981 to file as opposed to using Title VII. Filing your suit under Section 1981 and doing so under Title VII are not mutually exclusive processes, so it is in theory possible to do both at the same time. However, filing under Title VII means that you must pursue charges via either the South Carolina Human Affairs Commission or the Equal Employment Opportunity Commission (EEOC) before filing an actual lawsuit. This requirement is not in place if you sue under Sec. 1981, which means that suits can sometimes get underway quicker. Also, Title VII does not apply to small businesses (those with fewer than 15 employees), but Sec. 1981 does.
Potential Disadvantages
While Sec. 1981 does have distinct positives compared to bringing your complaint under Title VII, there are also distinct negatives. Sec. 1981 does not apply to federal employees, and also, it does not cover indirect claims. Most notably, Sec. 1981 has not been held to cover what are called disparate impact claims. Disparate impact claims are allegations of discrimination occurring despite a facially neutral policy—in other words, when discrimination occurs in effect despite not being sanctioned in theory.
A common example of such practices can be seen in the Supreme Court case of Griggs v. Duke Power Co (1971), in which the Supreme Court held that Duke Power’s policy of requiring proof of a high school diploma before promoting from inside the company was discriminatory because at that time, many black workers were not given the opportunity to finish high school, and there was no business necessity to require a diploma for the jobs in question. Griggs’ claim was decided under Title VII, even though it was based on alleged racial discrimination, because Sec. 1981 does not countenance these types of claims.
Seek Experienced Legal Help
If you have questions regarding a potential racial discrimination claim against your employer, contacting an attorney experienced in these cases can help. Attorney A. Christopher Potts is happy to sit and talk with you and work to answer your questions. Contact our office in Charleston today to set up an appointment.