Title VII of the Civil Rights Act of 1964 prohibits discrimination because of (among other protected characteristics) race and color. A lesser-known federal law, 42 U.S.C. § 1981, as interpreted, also prohibits race discrimination in the making and enforcing of contracts (including the “at-will” employment relationship).
While both prohibit race discrimination in employment, these federal laws differ in many ways. For example, while Title VII includes an “administrative exhaustion” requirement – meaning that a claim of race discrimination under Title VII must first be filed with the EEOC – § 1981 does not.
As to the issue of causation, on June 10, 2019, the U.S. Supreme Court granted a petition for a writ of certiorari to the U.S. Supreme Court (full docket here) as to the following question:
- Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?
Whereas Title VII expressly allows a court to find employment discrimination where improper considerations “w[ere] a motivating factor for any employment practice, even though other factors also motivated the practice” (42 U.S.C. § 2000e-2(m)), Section 1981 merely states that “[a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens” (42 U.S.C. § 1981(a)).
“But-for” causation has been adopted as the causation standard for claims under, e.g., the Age Discrimination in Employment Act of 1967 (see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)) and Title VII with respect to retaliation claims (see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
It remains to be seen whether claims under Section 1981 are subject to the (relatively higher) “but-for” causation standard.