In Mwangi v. Passbase, Inc. et al, 21-cv-6728, 2022 WL 2133734 (S.D.N.Y. June 14, 2022), the court, inter alia, dismissed plaintiff’s discrimination claims under 42 U.S.C. § 1981.
At all relevant times, plaintiff worked remotely from Berlin, Germany, and was not in the U.S. when the alleged discrimination took place.
As to plaintiff’s § 1981 claim, the court explained:
The relevant language of § 1981 states that “all persons within the jurisdiction of the United States shall have the same right in every state and territory … to make and enforce contracts.” 42 U.S.C. § 1981 (emphasis added). Accordingly, the question the Court must address is whether Mwangi was within the jurisdiction of the United States when the events occurred, such that she may make a valid § 1981 claim. The Court holds that she was not. While Mwangi is a United States citizen, and the defendants were in the United States at the time of the alleged incidents, this does not compel the conclusion that § 1981 applies to this case. The Second Circuit has addressed the issue of extraterritorial application of § 1981 directly, holding that “the ‘language’ of Section 1981 unambiguously confirms [that it does not] reach discrimination against individuals outside the territor[y]” of the United States. Ofori-Tenkorang v. Am. Int’l Group, Inc., 460 F.3d 296, 301 (2d Cir. 2006). Ofori-Tenkorang dealt with a § 1981 claim brought by a Black plaintiff who had been employed by AIG in Connecticut and was transferred to South Africa. Id. at 299. He alleged that both before and after the transfer, he was treated discriminatorily with regards to office assignment and expense reimbursement and was given harsher performance reviews and smaller bonuses. Id. The court held that the claims arising from conduct that occurred after his transfer to South Africa must be dismissed for two reasons. First, the plain meaning of the text of § 1981 unambiguously refers only to the jurisdiction of the United States and subdivisions within its borders, confirming the “legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.” Id. at 301. Second, the legislative history makes clear that § 1981 was not meant to apply to those who are physically outside of the United States when an alleged discriminatory act takes place, since it was part of Reconstruction-era legislation meant to “ensure that [formerly enslaved people] retained … basic rights.” Id. Because of the text and legislative history of § 1981, the court concluded “that Congress has not extended the coverage of Section 1981 beyond the territorial jurisdiction of the United States.”
Noting that it was undisputed that plaintiff was not in the U.S. when the discrimination took place and was never within the country during the relevant period, the court held that her § 1981 claims must be dismissed (notwithstanding that plaintiff was defined as a resident of California when the parties wrote her contract).
The court also dismissed plaintiff’s claims under the New York State and City Human Rights Law, since plaintiff was at all relevant times in Berlin, and hence did not feel the “impact” of the allegedly discriminatory acts in New York.