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COMMENT Section 1981 applies against employers acting under color of State law. See 42 U.S.C. § 1981(c). Where a government employee brings a claim of racial discrimination in employment, there can be an overlap of Section 1981 and Section 1983 protections. In Jett v. Dallas Indep. School Dist., 491 U.S. 701, 731 (1989), the Supreme Court held that the remedial provisions of Section 1983 constituted the exclusive federal remedy for violations of rights enumerated in Section 1981 for actions under color of State law. The Civil Rights Act of 1991 amended Section 1981 after the decision in Jett, however; and the circuits have split over whether that Act established an independent private cause of action under Section 1981 against employers acting under color of state law for acts of racial discrimination. See, e.g., Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.1996) (Civil Rights Act of 1991 restored a private right of action under Section 1981 for racial discrimination in employment under color of state law); Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995) (section 1983 continues as the exclusive federal remedy for rights guaranteed in section 1981 by state actors); Johnson v. City of Fort Lauderdale, 114 F.3d 1089 (11th Cir.1997) (following Fourth Circuit view).

The Third Circuit has “join[ed] five of [its] sister circuits in holding that no implied private right of action exists against state actors under 42 U.S.C. § 1981.” McGovern v. City of Philadelphia, 554 F.3d 114, 122 (3d Cir. 2009).18 Accordingly, no municipal-liability instruction is provided here. 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.

(Last Updated March 2018)


18 As the quote in the text indicates, the McGovern court described its determination on this point as a holding. The McGovern court also noted another ground for its resolution of the case: “Even if we were to recognize a cause of action under § 1981, McGovern's claim against the City was appropriately dismissed for an independent reason: he did not allege that the discrimination he suffered was pursuant to an official policy or custom of the City.” McGovern, 554 F.3d at 121.

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