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In this case the Plaintiff ______ has made a claim under the Federal Civil Rights statute that prohibits discrimination against [an employee] [an applicant for employment] because of the person’s race.
Specifically, [plaintiff] claims that [he/she] was [describe the employment action at issue] by defendant[s] _______ because of [plaintiff's] race.
[Defendant] denies that [plaintiff] was discriminated against in any way. Further, [defendant] asserts that [describe any affirmative defenses].
I will now instruct you more fully on the issues you must address in this case.
COMMENT Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.
42 U.S.C. § 1981 prohibits race discrimination in the making and enforcing of contracts. It prohibits racial discrimination against whites as well as nonwhites. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295 (1976) (Section 1981 was intended to "proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race"). In Runyon v. McCrary, 427 U.S. 160 (1976), the Supreme Court held that Section 1981 regulated private conduct as well as governmental action.1
In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court restricted the application of Section 1981 to claims arising out of the formation of the contract. But the Civil Rights Act of 1991 legislatively overruled the Supreme Court's decision in Patterson, providing that the clause "to make and enforce contracts" in Section 1981 "includes the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). “[A] plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006).
The protections afforded by Section 1981 may in many cases overlap with those of Title VII. But the standards and protections of the two provisions are not identical. For example, a Section 1981 plaintiff does not have to fulfill various prerequisites, including the completion of the EEOC administrative process, before bringing a court action. Also, Title VII applies only to employers with 15 or more employees, whereas Section 1981 imposes no such limitation.2 Employees cannot be sued under Title VII, but they can be sued under Section 1981. On the other hand, Title VII protects against discrimination on the basis of sex, creed or color as well as race, while Section 1981 prohibits racial discrimination only. Title VII and Section 1981 are subject to different limitations periods as well. See Cardenas v. Massey, 269 F.3d 251, 266 (3d Cir. 2001).
For ease of reference, these pattern instructions provide a separate set of instructions specifically applicable to Section 1981 claims. But where both Section 1981 and Title VII are both applicable, and the instructions for both provisions are substantively identical, there is no need to give two sets of instructions. In such cases, these Section 1981 instructions can be used because the claim will have to be one sounding in race discrimination. The Comment will note if a Section 1981 instruction is substantively identical to a Title VII instruction.
With respect to claims for wrongful termination, the First Amendment’s religion clauses give rise to an affirmative defense that “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702, 709 n.4 (2012). Though Hosanna-Tabor involved a retaliation claim under the Americans with Disabilities Act, the Court’s broad description of the issue suggests that its recognition of a “ministerial exception” may apply equally to wrongful-termination claims and discriminatory refusals to hire brought under other federal anti-discrimination statutes. See id. at 710 (“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her…. [T]he ministerial exception bars such a suit.”). Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), applied the exception to discrimination claims under both the Age Discrimination in Employment Act and Americans with Disabilities Act, and there is little doubt that the exception applies to Section 1981 and Title VII. Further, while the discharge in Hosanna-Tabor implicated religious principles of the employer, the schools in Our Lady of Guadalupe were held entitled to the protection of the exception even though the decisions challenged there were said to be based on secular concerns. Id. at 2058 (“The school maintains that it based its decisions on classroom performance — specifically, Morrissey-Berru’s difficulty in administering a new reading and writing program, which had been introduced by the school’s new principal as part of an effort to maintain accreditation and improve the school’s academic program.”); id. at 2059 (“The school maintains that the decision was based on [Biel’s] poor performance — namely, a failure to observe the planned curriculum and keep an orderly classroom.”). For further discussion of the ministerial exception, see Comment 5.0.
(Last Updated March 2018)
1 Though Section 1981 regulates both public and private action, the Court of Appeals has held that Section 1981 does not provide a remedy for a government actor’s violation of its terms. See McGovern v. City of Philadelphia, 554 F.3d 114, 122 (3d Cir. 2009) (“[N]o implied private right of action exists against state actors under 42 U.S.C. § 1981.”). See generally Comment 6.1.7 (discussing McGovern). A claim against a government actor for a violation of Section 1981 can in appropriate circumstances be brought under 42 U.S.C. § 1983. For discussion of Section 1983 claims, see generally Chapter 4.
2 Indeed, persons other than employers can be sued under Section 1981. See, e.g., Faush v. Tuesday Morning, Inc., 808 F.3d 208, 220 (3d Cir. 2015) (noting that independent contractors can bring claims under Section 1981). Conversely, the fact that a person is an employer for purposes of Title VII liability does not necessarily establish the existence of a contractual relationship for purposes of Section 1981. Compare id. at 209 (holding that jury question existed as to whether the client of a temporary-staffing agency counted as an employer of one of the agency’s employees for Title VII purposes), with id. at 220 (holding that the temporary-worker plaintiff’s Section 1981 claim was appropriately dismissed on summary judgment because “the record does not indicate that [the plaintiff] entered into a contract with [the staffing agency’s client] or ever attempted to do so”).