U.S. Supreme Court confirms 'but for' causation in Section 1981 cases

Surrounded by the confusion and anxiety of the current COVID-19 pandemic, it may feel refreshing to step back and consider some of the basic tenets of employment law. A recent U.S. Supreme Court decision provides the opportunity to do just that. In its opinion, the Court reminds us that 42 U.S.C. § 1981 was created for a specific purpose and is uniquely different from Title VII.

Background

Often in race discrimination cases, Title VII and Section 1981 are the two vehicles used to vindicate rights. Although we tend to lump them together in thought, in reality they are very different.

42 U.S.C. § 1981(a) was passed as part of the Civil Rights Act of 1866 in the aftermath of the Civil War to vindicate the rights of former slaves. It provides that all persons shall have the same right to make and enforce contracts, to sue, be parties, and give evidence as is enjoyed by white citizens. While nothing in the Act specifically authorizes private lawsuits to enforce the right to contract, the U.S. Supreme Court implied a private right of action in 1975 and has explained it was designed to eradicate blatant deprivations of civil rights. As a result, Section 1981 claims often are paired with Title VII claims in race discrimination lawsuits.

Details of the case