Three Circuits, most recently the Ninth in Johnson v. Lucent Techs., Inc., No. 09-55203, 2011 U.S. App. LEXIS 16100 (9th Cir. Aug. 4, 2011), have held that retaliation claims under 42 U.S.C. § 1981 are subject to the 4-year statute of limitations set forth in 28 U.S.C. § 1658.In Johnson, the Ninth Circuit recognized that retaliation claims were no longer viable under § 1981 after the Supreme Court’s 1989 decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) until they were resuscitated by the enactment of the Civil Rights Act of 1991. The Ninth Circuit held: “Because they arise under a post-December 1, 1990 act of Congress, section 1981 retaliation claims are governed” by section 1658.Previously, the Eleventh and Seventh Circuits had so held.

On February 1, the 5th Circuit slashed a $366,160,000 jury verdict against FedEx for employment retaliation claims under 42 U.S.C. § 1981 (Section 1981) and Title VII of the Civil Rights Act of 1964 (Title VII). Instead, in Harris v. FedEx Corporate Services, Inc., No. 23-20035, the court found that the former employee, Jennifer Harris, was only entitled to $248,619.57 — less than 0.1% of the original verdict — largely because (1) Harris’ Section 1981 claim was barred by the six-month limitation period she agreed to in her employment contract with FedEx and (2) Harris’ remaining Title VII claim was subject to a $300,000 statutory cap on damages.Harris sued FedEx in Texas in May 2021 for race discrimination and retaliation under Section 1981 and Title VII, based on her termination from employment with FedEx in January 2020. Section 1981 does not contain a statutory limitations period, so courts typically apply the most analogous state statute of limitations, which in Texas is generally either two or four years (depending on the specific type of claim alleged). However, Harris’ employment contract with FedEx contained a “

Resolving a split among the federal circuit courts on the issue, the U.S. Supreme Court has decided that a plaintiff bringing suit under 42 U.S.C. § 1981 bears the burden of showing that the plaintiff’s race was a “but for” cause of his its injury, and that this burden exists throughout the life of the case, including at the pleading stage. Comcast Corp. v. National Assn. of African American-Owned Media, No. 18-1171 (Mar. 23, 2020).Section 1981 grants all persons the right to make and enforce contracts regardless of race.BackgroundThis case arose from African American-owned television network Entertainment Studios Network’s (ESN) failed efforts to have cable television provider Comcast carry its channels.

Therefore, under § 1983 claims, the cases largely turn on whether the campus security officer exhibited objectively reasonable behavior in temporarily detaining or using force in detaining a plaintiff, and both the officers and the university itself may be liable. B. Section 1981 Claims 42 U.S.C. 1981 was originally enacted as the first section of the Civil Rights Act of 1866. Section 1981(a) provides the following: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to the like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

They claimed that Comcast inappropriately rejected ESN’s proposal to carry several television channels, motivated by racial bias. They filed their claim under a federal law located at 42 U.S.C. §1981 – also known as “Section 1981” – which prohibits private parties from refusing to enter into contracts because of race.The federal trial court in California dismissed the lawsuit, saying that the complaint did not properly allege a valid claim under the statute. In other words, even if the allegations were true, there was not enough in the complaint that could even show that Comcast’s refusal to carry the television channels was motivated by race such to trigger Section 1981 liability rather than by justifiable business reasons.

In December 2018, following a 21-month investigation, Banner terminated Dr. Sharifi’s medical staff membership and clinical privileges at the Banner hospitals, and terminated each PSA between Dr. Sharifi and Banner, allegedly based on patient care issues, alteration of medical records, and disruptive behavior. In his lawsuit, Dr. Sharifi alleged that Banner’s actions were actually racially motivated by his Iranian nationality and Arab descent, in violation of Section 1981 of the Civil Rights Act of 1866 42 U.S.C. § 1981 (“Section 1981”). In his complaint, Dr. Sharifi included documentation of multiple instances where witnesses reported observing conversations where Dr. Sharifi’s competitors and Banner leadership discussed Dr. Sharifi using racist terms.During his time on Banner hospitals’ medical staffs, Dr. Sharifi conflicted with Banner leadership on several occasions.

Motivating-factor means that race was one of several motives, even if the racial motive did not by itself make the difference. The statute provides that “[a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). It further defines “make and enforce contracts” as including “the making, performance, modification, and dermination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”

By John DoranToday the U.S. Supreme Court raised the bar on a wide-ranging Civil War Era statute that prohibits discrimination in the making and enforcement of contracts. Comcast Corp. v. National Association of African-American Owned Media (No. 18-1171, March 23, 2020) Congress enacted 42 U.S.C. Section 1981 in 1866 in order to ensure that former slaves enjoyed the same rights to enter into contracts as did non-slaves. Section 1981 specifically prohibits discrimination in the making and enforcement of contracts, and the prohibition goes beyond employment contracts to all forms of contract. Congress amended Section 1981 in 1991 to ensure an expansive definition of what it means to make or enforce a contract.An African-American owned studio sued Comcast for $20 billion, claiming that Comcast refused to air its programming content because the studio was African-American owned.

In a recent decision, Buntin v. City of Boston, the First Circuit Court of Appeals held that there is no implied private right of action for damages against state actors under 42 U.S.C. Section 1981. In reaching that conclusion, the court of appeals determined that Congress, when it amended the statute in 1991, did not overrule the Supreme Court of the United States’ 1989 holding in Jett v. Dallas Independent School District, 491 U.S. 701 (1989), that Section 1981 affords no such right of action and that 42 U.S.C. Section 1983 is the exclusive source for federal damages actions against state actors alleged to have violated Section 1981.

On March 23, 2020, the Supreme Court of the United States, in Comcast Corp. v. National Association of African-American Owned Media, ruled that a plaintiff who alleges race discrimination under 42 U.S.C. § 1981 must plead and has the ultimate burden of showing that race was a but-for cause of the plaintiff’s injury, and that burden remains constant over the life of the lawsuit.The 9-0 opinion was authored by Justice Neil Gorsuch (Justice Ruth Bader Ginsburg filing an opinion concurring with the exception of one footnote, and concurring in the judgment).