M&S Attorneys Applaud Legislation to Revitalize S.1981

WASHINGTON, D.C. (June 24, 2021) — The following is a joint statement from The Honorable U.W. Clemon, Joshua Karsh and Cyrus Mehri, civil rights attorneys at Mehri & Skalet and the authors of ‘The Nation’s First Civil Rights Law Needs to Be Fixed,’ an essay featured in the August 2020 issue of The Atlantic, in reaction to introduction of ‘The Economic Inclusion Civil Rights Act of 2021’ introduced this afternoon in the U.S. House and U.S. Senate by Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ) and Sen. Ron Wyden (D-OR) and Representatives Jamie Raskin (D-MD) and Mondaire Jones (D-NY):

“Section 1981, our nation’s oldest federal civil rights law, can and should provide a tool to combat discrimination and inequalities in the economy. But it can’t and won’t unless it’s modernized. That’s what ‘The Economic Inclusion Civil Rights Act of 2021’ would do.

“The central problem is that the law, as currently interpreted, is too narrow and fails to protect activities like the right to shop, eat out, cash a check, make a withdrawal, or apply for credit free from racial harassment. This means that many of the appallingly common experiences of being discriminated against for doing such things ‘while Black’ are not redressable under Section 1981.

“In 1866, Section 1981 legislated, for the first time, that citizenship belongs to persons ‘of every race and color’ and that all citizens ‘shall have’ the ‘same’ right ‘to make and enforce contracts’ and to ‘the full and equal benefit of all laws … as is enjoyed by white citizens.’  But that’s not the way things have turned out. More than 150 years later, Section 1981’s promise remains unfulfilled.

“With this Congressional action, a revitalized Section 1981 could become an invaluable tool for addressing structural racism. More victims of discrimination would have standing to sue, they could prevail by proving unjustifiable racist, disparate impact, without invidious intent, and Section 1981 would be violated when race is ‘a motivating factor’ without showing that it was a ‘but for’ cause.

“We applaud Senators Blumenthal, Booker and Wyden and Representatives Raskin and Jones for their leadership in promoting inclusion and equal opportunity. Their bill would go a long way toward fixing Section 1981 and we strongly urge its adoption.”

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