Does 42 U.S.C. § 1981 Protect Non-Minority Witnesses to Discrimination?

Potentially yes – the Eighth Circuit Court of Appeals recently held that a non-minority witness who was interviewed as part of an internal investigation of racial discrimination was protected under the anti-retaliation provision of 42 U.S.C. § 1981.

42 U.S.C. § 1981 is a federal law that protects the rights of all citizens to “make and enforce contracts” to the same extent “as is enjoyed by white citizens.” Courts have held that § 1981 encompasses both discrimination claims and retaliation claims. In the employment context, racial discrimination is usually addressed under Title VII of the Civil Rights Act, but claims are sometimes asserted under 42 U.S.C. § 1981 as well.

In Sayger v. Riceland Foods, the Eighth Circuit held that a white employee was protected from retaliation under § 1981 because he testified about racial discrimination in the workplace and, therefore, “vindicated the rights of racial minorities.” Nos. 12-3301, 12-3395 (8th Cir., Nov. 18, 2013). The court explained that:

We conclude that someone who has substantiated a complaint of a civil rights violation has demonstrated opposition to that violation and acted to vindicate the rights of minorities. Such an individual should therefore receive the same protection against retaliation as the person who filed the original complaint. If employees who give evidence or respond to questions during internal inquiries into alleged discrimination are not protected from retaliation, it would impede any internal efforts to address discrimination.

Because the plaintiff in Sayger was able to produce evidence showing that his participation in the internal investigation was the reason for his termination, the court affirmed the lower court’s finding that the employer was liable for retaliation under § 1981.

Takeaway: When conducting internal workplace investigations, it is important for employers to know that legal protections under applicable anti-discrimination and anti-retaliation laws may apply not only to the victims, but also to any witnesses interviewed as part of the investigation.