Plaintiffs can sue for employment discrimination under Section 1981

Most employment discrimination cases are brought under Title VII of the Civil Rights Act of 1964, which Congress undoubtedly intended to cover these cases. But Section 1981, which prohibits racial discrimination in the making and enforcement of contracts, can also predicate an employment discrimination case.

The case is Leung v. New York University, a summary order decided on October 14. Back in the late 1990s, some federal judges began ruling that plaintiffs cannot bring employment discrimination claims under Section 1981 unless they had an employment contract. The Second Circuit put that argument to rest in 2000, ruling in Lauture v. IBM (a case that I briefed) that even at-will employees have a contract (albeit unwritten) and can sue under that statute.

It is 2014, and the Court of Appeals reminds us that employment plaintiffs may sue under Section 1981. The district court ruled that "Section 1981 is not a substitute for an employment discrimination claim." That was wrong. The Court of Appeals (Pooler, Raggi and Hall) says that "Congress intended Section 1981 to apply to employment discrimination and Section 1981 provides a vehicle for every employee to remedy racial discrimination in the workplace." That fact that plaintiff lacks a written contract does not prevents him from bringing a case.

So here are the options for a racial discrimination plaintiff who wants to sue in federal court. You can sue under Section 1981 and proceed directly to court. You can also sue under Title VII, the principle employment discrimination statute, which requires that you first proceed in the EEOC and allow them to investigate for six months before you get a "right to sue" letter that lets you then sue in court. The advantage under Title VII is that the EEOC process gives you a glimpse of what the employer will say in court, as it must file a position paper that will typically contain exhibits in support of the employer's decision. If you want to sue right away but also want to take advantage of EEOC process, then file the Section 1981 and EEOC charge simultaneously. When the right-to-sue letter arrives six months later, then amend the Complaint to assert a Title VII action also.