The Civil Rights Act of 1866 and the 14th Amendment came out of the same Reconstruction-era effort, but they are different kinds of law and they do different work. The 1866 Act is a federal statute, now living in 42 U.S.C. § 1981 and § 1982, that lets you sue over racial discrimination in contracts and property, whether the person discriminating is a private party or a government actor. The 14th Amendment is a constitutional provision that restrains only the government, but reaches far beyond race to cover citizenship, due process, and equal protection for all persons. Which one you use depends on who discriminated against you, what kind of discrimination it was, and what you want out of the case.
Statute Versus Constitutional Amendment
The 1866 Act is a law Congress passed. The 14th Amendment is part of the Constitution, ratified on July 9, 1868.1National Archives. 14th Amendment to the U.S. Constitution – Civil Rights (1868) That distinction has real consequences. A statute can be repealed by a later Congress or narrowed by the courts. A constitutional provision can only be changed by supermajorities in both chambers and ratification by three-fourths of the states.
The two were designed to work together. When Congress passed the 1866 Act, lawmakers were unsure whether the 13th Amendment gave them authority to legislate this broadly on civil rights. The 14th Amendment settled that doubt by writing citizenship, due process, and equal protection directly into the Constitution, and Section 5 gave Congress explicit power to enforce those guarantees through legislation.2Congress.gov. Fourteenth Amendment Section 5
Who You Can Sue Under Each
This is the fork that matters most for a person deciding which claim to bring.
The 14th Amendment restricts only government behavior. Courts call this the state action doctrine: because the Amendment says “no State shall,” it does not reach purely private conduct, no matter how discriminatory.3Legal Information Institute. U.S. Constitution Annotated – Amdt14.2 State Action Doctrine To bring a 14th Amendment claim, you have to show a government entity, public official, or someone acting with government authority was responsible.
Section 1981 has no such limit. It protects against “impairment by nongovernmental discrimination and impairment under color of State law,” covering both private and government actors in the same provision.4Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law The Supreme Court confirmed the reach into private conduct in Runyon v. McCrary (1976).5United States Court of Appeals for the Third Circuit. Instructions for Race Discrimination Claims Under 42 USC 1981 Section 1982 works the same way. In Jones v. Alfred H. Mayer Co. (1968), the Court held that Section 1982 bars all racial discrimination in property sales and rentals, whether by a government or a private landlord.6Justia Law. Jones v Alfred H Mayer Co, 392 U.S. 409 (1968)
So: a private employer refuses to hire you because of race, only the 1866 Act’s statutory protections reach that conduct directly. A city passes a discriminatory zoning ordinance, either law could apply.
What Each One Actually Protects
The 1866 Act is narrow in subject matter and narrow in the groups it covers. Section 1981 guarantees all persons the same right as white citizens to make and enforce contracts, sue and be sued, give evidence, and enjoy the full and equal benefit of laws protecting persons and property. The Civil Rights Act of 1991 clarified that “make and enforce contracts” runs the full life of the contract, including performance, modification, termination, and enjoyment of its benefits.4Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law Section 1982 gives all citizens the same right as white citizens to buy, sell, lease, hold, inherit, and transfer real and personal property.7Office of the Law Revision Counsel. 42 USC 1982 – Property Rights of Citizens Both sections cover race and ethnicity only.
The 14th Amendment is broader on both axes. Section 1 contains four protections. The Citizenship Clause makes anyone born or naturalized in the United States, and subject to its jurisdiction, a citizen of both the nation and their state. The Privileges or Immunities Clause bars states from cutting back the rights of U.S. citizens. The Due Process Clause forbids the government from taking life, liberty, or property without fair legal process. The Equal Protection Clause requires states to treat similarly situated people the same.8Congress.gov. U.S. Constitution – Fourteenth Amendment
The Due Process and Equal Protection Clauses protect all “persons,” not just citizens, and they are not limited to race. Courts have applied Equal Protection to laws that discriminate on the basis of sex, national origin, religion, alienage, and other characteristics that Section 1981 does not touch.
What You Have to Prove
Section 1981 covers only intentional racial discrimination. Unlike Title VII, it does not allow disparate impact claims where a neutral policy falls harder on a protected group.9Legal Information Institute. Section 1981
The bar got higher in 2020. In Comcast Corp. v. National Association of African American-Owned Media, the Supreme Court held that a Section 1981 plaintiff must show race was a “but-for” cause of the defendant’s conduct, meaning the discrimination would not have happened absent the plaintiff’s race.10Justia Law. Comcast Corp v National Association of African American Owned Media (2020) That burden runs from the complaint through trial. Race as one factor among several will not do; it has to be decisive.
The 14th Amendment’s Equal Protection Clause also generally requires intentional discrimination for race-based claims, but it reaches many more categories of unequal treatment than Section 1981 does.
How You File and How Long You Have
Section 1981 has a big procedural advantage: you go straight to federal court. The EEOC does not enforce Section 1981.11U.S. Equal Employment Opportunity Commission. Other Employment and Civil Rights Laws Not Enforced by the EEOC No administrative charge, no waiting period, no right-to-sue letter. Title VII, by contrast, requires filing a charge with the EEOC first.
The deadline depends on which version of the right you are suing under. Claims that rest on the 1991 amendments to Section 1981, including the expanded definition of contract rights, get a four-year federal limitations period under 28 U.S.C. § 1658.12Office of the Law Revision Counsel. 28 USC 1658 Claims based on the pre-1991 version borrow the most analogous state statute of limitations, usually the state’s personal injury deadline, which commonly runs one to three years.13Congress.gov. 42 USC 1981 Contract Clause – Racial Equality in Contractual Relations
You cannot sue directly under the 14th Amendment against a state actor for damages. The usual vehicle is 42 U.S.C. § 1983, which lets you sue people acting under color of state law for violating constitutional rights. Section 1983 claims also borrow the state personal injury statute of limitations, and they do not require an administrative filing first.
What You Can Recover
Section 1981 has no statutory cap on compensatory or punitive damages. The federal damages statute expressly says nothing in the Title VII damages provisions “shall be construed to limit the scope of, or the relief available under, section 1981.” Title VII, in contrast, caps combined compensatory and punitive damages based on employer size, topping out at $300,000 for employers with more than 500 employees.14Office of the Law Revision Counsel. 42 U.S. Code 1981a – Damages in Cases of Intentional Discrimination That is why employment discrimination plaintiffs with a race claim often file under both statutes.
Section 1983 claims for 14th Amendment violations also allow compensatory and punitive damages without a statutory cap, but with two important limits. Government entities like cities and counties cannot be assessed punitive damages under Section 1983. And individual government employees can raise qualified immunity as a defense. Neither limit applies to a private defendant sued under Section 1981.
Choosing Between Them, or Using Both
The two are not alternatives so much as different tools for different jobs.
If you are dealing with racial discrimination in a private employment, housing, or contracting situation, Section 1981 or Section 1982 is your route. The 14th Amendment cannot help you because there is no state actor.
If you are challenging a government policy that discriminates on the basis of sex, religion, national origin, or another characteristic beyond race, the 14th Amendment’s Equal Protection Clause is the tool. Section 1981 does not reach those categories.
If a government actor discriminated against you because of race, you may have both options. Section 1981 spares you from qualified immunity concerns against a non-governmental co-defendant and keeps damages uncapped. A Section 1983 claim under the 14th Amendment can add constitutional weight and cover conduct that goes beyond contracts and property. Filing both is common, and each claim carries its own procedural rules and defenses.