The Civil Rights Act of 1866 is the Reconstruction-era statute, still on the books as 42 U.S.C. §§ 1981 and 1982, that guarantees every person in the United States the same right as white citizens to make contracts, hold and transfer property, and enforce those rights in court. It lets you sue in federal court over intentional racial discrimination in employment, housing, lending, and other contract or property dealings, and it reaches private conduct, not just government action. Because it predates Title VII and the Fair Housing Act and operates alongside them, it fills gaps those statutes leave open: no EEOC charge required, no cap on damages, and coverage of ethnic and ancestral discrimination that modern usage might not label “racial.”
What Sections 1981 and 1982 Cover Today
Section 1981 guarantees the same right to make and enforce contracts, to sue and be sued, to give evidence, and to receive the full and equal benefit of all laws protecting person and property.1Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law In practice, that means an employer cannot refuse to hire you, a landlord cannot refuse to lease to you, and a bank cannot refuse to lend to you because of your race.
The Civil Rights Act of 1991 expanded the phrase “make and enforce contracts” to include the performance, modification, and termination of the contract, plus the enjoyment of all of its benefits and conditions.1Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law That amendment closed an earlier loophole under which some courts had held the statute reached only contract formation. Racially motivated firings, demotions, denials of promotion, and hostile work environments are all actionable. At-will employment counts. So do independent contractor arrangements.
Section 1981 also covers retaliation. In CBOCS West, Inc. v. Humphries (2008), the Supreme Court held that an employee punished for reporting racial discrimination, or for supporting a coworker’s complaint, can bring a retaliation claim under the statute.2Justia. CBOCS West, Inc. v. Humphries
Section 1982 guarantees all citizens the same right as white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property.3Office of the Law Revision Counsel. 42 USC 1982 – Property Rights of Citizens That covers buying a home, inheriting family land, and leasing commercial space.
Both provisions reach purely private discrimination. Jones v. Alfred H. Mayer Co. (1968) held that a private homeowner or developer who refuses to sell property because of race violates Section 1982, no government involvement required.4Justia. Jones v. Alfred H. Mayer Co. Section 1981(c) states the same thing for contracts, confirming that its protections apply against “nongovernmental discrimination” as well as state action.1Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law
Who the Act Protects
The statute protects against discrimination based on race. It does not cover gender, religion, age, or disability. But “race” here is not limited to modern racial categories. Courts read it the way Congress understood it in 1866, which included distinct ethnic and ancestral groups.
In Saint Francis College v. Al-Khazraji (1987), the Supreme Court held that a professor of Arab descent could bring a Section 1981 claim, explaining that the 1866 Congress understood “race” to encompass ancestry and ethnic characteristics.5Justia. St. Francis Coll. v. Al-Khazraji The companion case Shaare Tefila Congregation v. Cobb (1987) applied the same reasoning under Section 1982 to Jewish Americans.6Oyez. Shaare Tefila Congregation v. Cobb The test is whether the plaintiff was targeted because of ancestry or ethnicity, not whether they look distinct.
What You Have to Prove
A Section 1981 case rests on three elements: a contractual relationship you had or were trying to form, an adverse action by the defendant, and race as the reason for that action.
The contract piece is usually the easiest. Employment relationships, leases, loan applications, service contracts, and retail purchases all qualify. You need to show you were forming, performing, or ending a contract when the discrimination occurred, and it helps to have the offer, application, or written communications on hand.
Causation is the hard part. In Comcast Corp. v. National Association of African American-Owned Media (2020), the Supreme Court held unanimously that a Section 1981 plaintiff must show the injury would not have happened but for the defendant’s racial motivation.7Supreme Court of the United States. Comcast Corp. v. National Association of African American-Owned Media That is a higher bar than the “motivating factor” standard some Title VII claims use. If the defendant can show the same decision would have been made for legitimate reasons, the claim fails.
The discrimination must also be intentional. Disparate-impact claims, where a neutral policy happens to fall harder on one racial group, do not work here. Evidence that tends to establish intent includes internal emails, comments by decision-makers, inconsistent treatment of similarly situated people of different races, and statistical patterns. You also need to identify the specific individuals or entities responsible. Vague allegations against an organization, without naming who did what, rarely survive a motion to dismiss.
How Long You Have to Sue
The Act itself sets no deadline, so the applicable limitations period depends on the type of claim.
For claims that only became available through the 1991 amendments — wrongful termination, hostile work environment, denial of contract benefits — the Supreme Court held in Jones v. R.R. Donnelley & Sons Co. (2004) that the four-year federal catch-all in 28 U.S.C. § 1658 applies.8Legal Information Institute. Jones v. R.R. Donnelley and Sons Co. For claims that could have been brought under the original 1866 statute, such as an outright refusal to enter a contract because of race, courts borrow the most analogous state personal-injury limitations period, which ranges from one to six years depending on the state.9Congress.gov. 42 USC 1981 Contract Clause – Racial Equality in Contractual Relations The deadline that governs your case depends on both what happened and where it happened.
How to File and What You Can Recover
You file directly in federal district court. No EEOC charge is required, and no waiting period applies.1Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law10U.S. Equal Employment Opportunity Commission. Other Employment and Civil Rights Laws Not Enforced by the EEOC You draft a complaint, pay the filing fee (a $350 statutory fee under 28 U.S.C. § 1914, plus an administrative surcharge that brings the total to roughly $405), and serve the defendant.11Office of the Law Revision Counsel. 28 US Code 1914 – District Court Filing and Miscellaneous Fees Skipping the EEOC saves time but forgoes the agency’s investigation and mediation, which is why many employment plaintiffs file a Title VII charge with the EEOC and a Section 1981 lawsuit in parallel.
Remedies under Section 1981 are broader than Title VII allows. Compensatory damages cover lost wages, lost business revenue, and other out-of-pocket losses, along with emotional distress. Punitive damages are available for especially malicious or reckless conduct, and there is no statutory cap on the total award.12United States Court of Appeals for the Third Circuit. Instructions For Race Discrimination Claims Under 42 USC 1981 Title VII, by contrast, caps combined compensatory and punitive damages at $300,000 even for the largest employers. That difference is why high-value discrimination cases often rely on Section 1981.
Prevailing plaintiffs can also recover reasonable attorney’s fees and costs. Section 1988(b) authorizes federal courts to award fees to the prevailing party in actions enforcing Sections 1981 and 1982.13Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights
Money is not the only remedy. Courts can order equitable relief to put you where you would have been without the discrimination. In employment cases, that can mean reinstatement, a denied promotion, or back pay. In property and contract disputes, a court can enjoin the discriminatory practice or order the transaction to go through.
Where the Law Came From
Congress passed the Act during Reconstruction to dismantle the Black Codes and the legal machinery of slavery. It declared that all persons born in the United States and not subject to a foreign power were citizens, and that those citizens held the same rights to contract, sue, testify, and own property “as is enjoyed by white citizens.”14San Diego State University. Civil Rights Act of 1866 Its principles were soon absorbed into the Fourteenth Amendment, but the statute itself remained on the books and now draws its constitutional footing from the Thirteenth Amendment, which the Supreme Court has read as giving Congress the power to reach private discrimination as a “badge or incident” of slavery.4Justia. Jones v. Alfred H. Mayer Co. More than 150 years later, it remains one of the most powerful tools available to someone facing intentional racial discrimination in a private transaction.