Section 1981

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42 U.S.C. § 1981, which is often referred to as merely "Section 1981," is a federal law that establishes the rights under the law for persons of all color shall be the same as the rights of "white citizens." State action is not required, but proof of intentional racial discrimination is.[1]

(a) Statement of equal rights. 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.
(b) "Make and enforce contracts" defined. 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.
(c) Protection against impairment. The rights protected by this section were protected against impairment by nongovernmental discrimination and impairment under color of State law.

Violations of Section 1981 by government officials were traditionally asserted through use of Section 1983, but the subsection (c) was added in the 1991 amendments to the Civil Rights Act to clarify that rights could be asserted under Section 1981 itself.


42 U.S.C. § 1981 was originally adopted by Congress immediately after the Civil War on April 9, 1866. It was enacted by virtue of the Thirteenth Amendment and was intended to rectify some of the disabilities of slavery. Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1879); United States v. Harris, 106 U.S. 629, 27 L. Ed. 290, 1 S. Ct. 601 (1883); Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1872)(Act enacted to guarantee certain privileges and immunities to eliminate vestiges of involuntary servitude). "The Civil Rights Act of 1866 was the first federal statute to provide broad protection in the field of civil rights. Its purpose was to give the newly emancipated Negro equality with whites before the law." Bernard Schwartz, Statutory History of the United States: Civil Rights Vol. 1, p. 99 (1970). The original statute provided that persons "born in the United States, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as punishment for a crime where the party shall have been duly convicted, shall have the same right, in every state and territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherent, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens…" The purpose of the original legislation was to promote equality it did not create or relate to political rights.

In 1991 Congress reenacted the statute with amendments which expand on the limiting interpretive decision of the United States Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989). The requirement of citizen standing was eliminated and the statute was modernized and expanded as to contractual rights. The essence of the statute in its relevant part is similar to the 1866 statute.

The 1991 legislation expands in section (b) the rights protected with regard to employment. See § 2 of Publ. L. 102-166, November 21, 1991, 105 Stat. 1071. Congress provided that "no statements other than the interpretive memorandum appearing at Vol. 137 Congressional Record S 15276 (Daily Rept. Oct. 25, 1991) shall be considered legislative history of, or relied upon in any way as legislative history in construing or applying, any provision of" the act. § 105(b) of Pub. L. 102-166.

The prohibited discrimination proscribed by the statute must concern one or more of the activities specifically enumerated in the statute. Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085 (2d Cir. 1993); Thomas v. St. Luke's Health Systems, Inc., 869 F. Supp. 1413 (D.N.D. Iowa 1994) aff'd 61 F.3d 908 (8th Cir.). The language of the statute and history of the section show it has no application to the circumstances of this case unless there has been a seizure of the defendant in violation of § 1981. There was no interference with any of the statutory enumerated rights in this case, except possible with regard to "security" if there was otherwise a violation of rights. The provisions of the Fourth Amendment and 42 U.S.C. § 1983 have application to the alleged seizure of a person and the Fourth Amendment informs the issue in this case. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

Some courts have found 42 U.S.C. § 1981 applicable in the context of a civil suit to police misconduct in detaining or arresting a person solely on the basis of race. Grier by Grier v. Galinac, 740 F. Supp. 338 (D.M.D. Pa. 1990); Melson v. Kroger, 550 F. Supp. 1100 (D. Ohio 1982); Spriggs v. City of Chicago, 523 F. Supp. 138 (D. III. 1981). Without critically analyzing these pre-1991 cases, it is sufficient to note the cases did not consider the issue of suppression of evidence or dismissal of a criminal prosecution. They concerned a civil remedy and appear to be generous in the interpretation of § 1981 as distinct from 42 U.S.C. § 1983. The statute is not applicable to the relief sought in this case or to a situation where no seizure has occurred. The exclusionary rule sought to be applied in this case comes from the Fourth Amendment Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914). 42 U.S.C. § 1981 does not have application to the issue of suppression of evidence, that remedy must be based on a constitutional violation of the Fourth Amendment. c.f. United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); United States v. Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976). The remedy of suppression is one provided by judicial decision for protection of Fourth Amendment interests. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). Congress has provided no such remedy under 42 U.S.C. § 1981.


  • United States v. Ruiz, 961 F. Supp. 1524 (D. Utah 1997)


  1. In contrast, proof of intentional discrimination is not required ijn order for a plaintiff to recover on a claim brought pursuant to Title VII.