Section 1981 Inapplicable to Discrimination Based on Religion

In Kampfer v. Buchanan et. al., No. 1:10-CV-1234 (N.D.N.Y. Feb. 18, 2011), the court dismissed plaintiff’s claim – brought under 42 U.S.C. 1981 (“Section 1981”) – which was solely based on defendant’s alleged comment alluding to the parties’ “Mormon contract”.  Plaintiff alleged that this constituted racial discrimination that interfered with his ability to make and enforce a contract under Section 1981.

The court disagreed, and summarized the contours of Section 1981 as follows:

It is well-established that “[a]lthough [Section] 1981 does not itself use the word `race,’ the [Supreme] Court has construed the section to forbid all `racial’ discrimination in the making of private as well as public contracts.” … The “racial discrimination” prohibited by section 1981 is broadly defined as intentional discrimination based solely on a person’s “ancestry or ethnic characteristics.” … Moreover, while the Second Circuit has held that discrimination based on alienage is also prohibited by section 1981, discrimination based on gender, religion, national origin, or age is not.

The court rejected plaintiff’s “attempt to characterize the use of the word ‘Mormon’ as indicative of racial discrimination”, and held that even “assuming … that [defendant] intended to discriminate against plaintiff when he made the statement, it cannot reasonably be argued that such a comment suggests anything other than religious discrimination.”   However, “discrimination based on religious affiliation cannot support a section 1981 claim.”