In the aftermath of the Civil War, Congress passed several civil rights acts at the same time as it considered and sent to the states the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.
The civil rights acts were important components of Reconstruction and served to establish the rights of the newly freed slaves in the former states of the Confederacy. These acts were not vigorously enforced, however, when Reconstruction came to an end, and they were revived only by the Supreme Court almost a century later. Three of these statutes figure in the law of employment discrimination: section 1981, which grants to all persons the same right "to make and enforce contracts... as is enjoyed by white citizens"; section 1983, which creates a private right of action for deprivations of federal rights under color of state law; and section 1985(3), which prohibits conspiracies to deny equal protection of the laws.
An entire treatise could be devoted to these laws, and particularly to section 1983, which has developed as the principal vehicle for general civil rights claims under federal law. The procedures for enforcing these statutes differ significantly from those under Title VII, tending to be much simpler, but the substantive law and remedies are largely the same. The following discussion emphasizes the differences between these statutes and Title VII.
The principal Reconstruction statute that provides a remedy for employment discrimination is section 1981, which prohibits all forms of racial discrimination, whether public or private, in making contracts.
The exact scope of section 1981 has been a matter of controversy, only recently resolved by the Civil Rights Act of 1991. For many years, section 1981 was thought to prohibit only state action in denying the right to contract, until the Supreme Court reached a contrary conclusion in interpreting a companion statute, section 1982, which prohibits discrimination with respect to property rights. The Court interpreted section 1982 to reach private discrimination in real estate transactions, and this precedent was soon extended to section 1981.
In Johnson v. Railway Express Agency, the Supreme Court broadly interpreted section 1981 to provide a remedy for employment discrimination that is procedurally independent of Title VII. The Court later expanded section 1981 still further, to reach discrimination on the basis of national origin, in addition to discrimination on the basis of race.
Despite these expansive decisions, the Court has limited section 1981 to claims of disparate treatment, excluding claims of disparate impact, and other federal courts have generally held that section 1981 imposes no greater burden on employers than does Title VII.
The lower federal courts are divided on whether it covers discrimination against aliens.
Another restrictive decision by the Supreme Court, in Patterson v. McLean Credit Union, eventually led Congress to amend section 1981 in the Civil Rights Act of 1991. Relying on the literal terms of section 1981 as it then read, the Court in Patterson held that section 1981 covered only discrimination in the formation of contracts, not in their performance, as in the claim of racial harassment in Patterson itself. This decision is probably better explained as expressing longstanding doubts about the extension of section 1981 to private discrimination. In any event, Congress put all these doubts to rest by adding a provision explicitly extending section 1981 to private discrimination and another provision overruling Patterson and extending section 1981 to all aspects of the contractual relationship.
After some initial decisions holding that section 1981 did not apply to contracts of employment-at-will, the courts of appeals have now uniformly applied the statute to all contracts of employment.
Although Congress clearly meant to overrule Patterson in the Civil Rights Act of 1991, it is less clear that it meant to affect another Supreme Court decision, Jett v. Dallas Independent School District,
which held that claims under section 1981 against state officials must be brought under section 1983. The Court inJett reasoned that section 1981 only created a right, whereas section 1983 explicitly provided a remedy for actions of state officials, and so the latter governed the method of enforcing the right. The new provisions in section 1981 do nothing to disturb this reasoning, although the general expansion of section 1981 might be thought to override the limitations under section 1983, particularly various immunities. The circuits are divided on this question, as they are on others about the effect of the Civil Rights Act of 1991.
Unlike Title VII, section 1981 does not require exhaustion of administrative remedies," but like the newly amended Title VII, it provides damages as a remedy" and gives rise to a right to jury trial...