Civil Rights

Revitalizing Section 1981

The Economic Inclusion Civil Rights Act: Revitalizing Section 1981

Congress passed our nation’s first civil rights law in 1866. Known today as “Section 1981,” the law was a watershed when it was first enacted. It was the first national legislative effort after the Civil War to secure the rights of African Americans. It did that ambitiously – legislating that citizenship belongs to persons “of every race and color” and that all of us “shall have” the same right to “make and enforce contracts” and to “full and equal benefit of all laws.” Section 1981 repudiated the Supreme Court’s heinous and reviled decision in Dred Scott. 

But today, after more than 150 years on the books, Section 1981 is in sorry disrepair. It’s simply no match for today’s racial inequalities – with differences in the rights, opportunities, and treatment of whites and non-whites that are more subtle and less aggressive than the racism of 1860 – or 1960 – but similarly unjustifiable. For example, the unequal service and treatment that Black and Brown men and women too often experience while banking, shopping, trying to reserve an Airbnb, eating out, or just sitting in a Starbucks should have a legal remedy. But, right now, Section 1981 isn’t up to the job.

Congress can fix this. If this nation is committed to ensuring that Black and Brown lives, dreams, and struggles matter, then updating Section 1981 should be a top priority. Until Section 1981 is revitalized, the full promise of equal opportunity, a merit-based economy, and a strong democracy will be much harder to realize.

Revitalizing Section 1981 and Getting it Right

As the courts currently (mis)interpret it, Section 1981 doesn’t outlaw many of the daily discriminations experienced by people of color. Section 1981 should guarantee all Americans the right to shop, browse, bank, or wait for goods or services without being harassed, surveilled, or rebuffed because of their race. It should also be amended to address environmental racism – the disproportionate exposure of communities of color to fumes, toxic waste, and other pollutants. In addition, a revitalized Section 1981 should address not just purposeful, intentional discrimination but also persistent, unjustifiable, racially disparate impacts and effects. 

The Economic Inclusion Civil Rights Act

In 2020, motivated by the pressing need to update our first civil rights law, retired federal judge U.W. Clemon and civil rights attorneys Joshua Karsh and Cyrus Mehri published a proposal for updating the law in The Atlantic. Within a year, responding to that article, Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Sen. Ron Wyden (D-OR), along with Representatives Jamie Raskin (D-MD) and Mondaire Jones (D-NY), jointly introduced The Economic Inclusion Civil Rights Act of 2021. Two years later, on the eve of Juneteenth 2023, an updated version, ‘The Economic Inclusion Civil Rights Act of 2023, was introduced by the same group and new sponsors too: 

Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Mazie Hirono (D-HI), Bernie Sanders (D-VT), Ed Markey (D-MA), Elizabeth Warren (D- MA), Sheldon Whitehouse (D-RI), and Ron Wyden (D-OR), alongside Representatives Jamie Raskin (D-MD), Glenn F. Ivey (D-MD), Jamaal Bowman (D-NY), Al Green (D-TX), Jonathan Jackson (D-IL), Barbara Lee (D-CA), Jared Moskowitz (D-FL), Bennie G. Thompson (D-MS), Rashida Tlaib (D-MI), Bonnie Watson Coleman (D-NJ) and Eleanor Holmes Norton (D-DC).

The Economic Inclusion Civil Rights Act would revitalize Section 1981 and get it right by:

  • Broadening the statute to guarantee not just equal rights “to make and enforce contracts” but also the right to equal “service and treatment,” regardless of your race. 
  • Aligning Section 1981 with other civil rights statutes–statutes that prohibit both intentional racial discrimination and acts, practices, and policies that have the effect of unjustifiably creating or perpetuating disadvantage due to race or ethnicity. In combating discrimination, intent isn’t all that matters. 
  • Addressing the disproportionate impact of environmental and health hazards on minority communities. 
  • Banning forced arbitration of claims brought to enforce rights protected by Section 1981.  

Want to learn more?

The Atlantic, “The Nation’s First Civil Rights Law Needs to Be Fixed

Full Text of the Bill

Case Studies

Shopping While Black or Brown

The Discrimination: An Actual Case:  In March of 2018, Lorenzo Lopez, a Latino man, went to a Target store in Florida. He selected some items to buy and proceeded to a check-out line. When he reached the front of the line, the cashier, a white woman, told him insultingly that the register was closed.

Lopez stepped away, and the cashier served the next customer while laughing and gesturing toward Lopez. There were no other Latino customers in line at the register. Meanwhile, Lopez headed toward another check-out line, where a Target supervisor stopped him and told him that he should go back to the first register, where the cashier would ring him up. So, Lopez returned to the first register. But when he reached the front of the line again, the cashier told him, in a very loud voice, “Don’t you listen? I’m closed!” Lopez told the cashier that he was following the supervisor’s instructions. The cashier, ruder and louder, said, “Don’t you understand? I’m closed to YOU!” Lopez stepped back, went to a different register to be rung up by a different cashier, and made his purchases.

What Needs Fixing: Mr. Lopez unsuccessfully filed suit under Section 1981. A federal district court, affirmed on appeal, dismissed his case, holding that because Lopez was “not denied the ability to” make a purchase, Section 1981 offered him no protection. The court said that, “Unless the customer was actually denied the ability” to make a purchase, there’s no claim; the “mistreatment” that Lopez endured was legal.

The Solution – Amending S.1981: The Economic Inclusion Act would protect shoppers like Mr. Lopez – by amending Section 1981 to make undeniably clear that all Americans have equal rights to non-discriminatory “service and treatment.” Now is the time to provide remedies for the injustices people of color too often face when shopping (and in other areas of the marketplace).

Banking While Black

The Discrimination: An Actual Case: In March 2018, Alison York, an African American woman, went to the drive-through window at a JPMorgan Chase Bank in Arizona. She asked to make two credit card payments and a withdrawal, giving the teller her credit card, driver’s license, and a withdrawal slip. The teller then left the window while York waited. After twenty minutes, the acting branch manager asked York to enter the bank, which York did. The bank accepted her payments on her two credit cards but told York that it “did not feel comfortable” allowing York to withdraw the money, that it had the right to “refuse service,” and that York needed to “go to another branch.” Ultimately, York completed her withdrawal, but only after spending more than an hour at the bank persuading the bank to give her her money.

What Needs Fixing: Ms. York unsuccessfully filed a suit under Section 1981. A federal district court dismissed her case, holding that “if a customer is ultimately served,” there is no viable Section 1981 claim–even if she was discriminated against before the bank served her. 

The Solution – Amending S. 1981: The Economic Inclusion Act would protect account holders like Alison York by amending Section 1981 to make undeniably clear that it is no defense that “a customer is ultimately served.” Under the Act, all Americans would have equal rights to nondiscriminatory “service and treatment.

Now is the time to provide remedies for the injustices people of color too often face in banking (and in other areas of the marketplace). The Economic Inclusion Act will go a long way to protecting the economic and civil rights of Black and Brown people across the country. 

Environmental Justice and Section 1981

The Discrimination: An Actual Case: In 1990, a group of residents in a Virginia county filed a lawsuit challenging the siting of a proposed new regional landfill, pointing out that it would blight a historic Black church and community. The county had a history of siting landfills in the Black areas of town, a town that was fifty percent Black and fifty percent white. It had already sited three other landfills in predominantly black areas, and twenty-one of the twenty-six families along the road toward the new landfill would be Black too. There was no question but that county’s Black residents in the county were disproportionately affected.

What Needs Fixing: A federal district court, affirmed on appeal, agreed that the placement of landfills in the county had had a disproportionate impact on Black residents, but it dismissed the group’s lawsuit anyway, holding that even indisputably racially unequal effects were not illegal. The court explained that, in its current form, federal law “merely prohibits government officials from intentionally discriminating based on race,” which, the court said, the plaintiffs had not proved notwithstanding the strikingly unequal distribution of environmental harms.

The Solution – Amending S.1981: Black and Brown people have borne the brunt of Environmental racism for way too long. Under existing law, environmental justice claims often founder on the requirement that plaintiffs must prove discriminatory intent. Proving unjustifiable discriminatory effects is not enough. The Economic Inclusion Act would fix that, giving all Americans equal rights “against exposure to a disproportionate burden of the negative human health and environmental impacts of pollution or environmental hazards.” All Americans should enjoy the same rights to clean water and clean air. No racial group should disproportionately bear the burdens of addressing climate change and protecting the environment.

Mehri & Skalet on Amending and Revitalizing Section 1981

Retired U.S. District Judge U.W. Clemon (Chief Judge N.D. Alabama), Of Counsel, Mehri & Skalet

“Today, the statute is a weak imitation of what it was then, given intervening Supreme Court and lower court rulings. Updating the statute and repudiating the erosion of it is critical, particularly in this period of growing (and record) economic inequalities that track race. 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.”

Joshua Karsh, Partner, Mehri & Skalet

“The proposed legislation would revitalize the statute, helping make it a better match for structural racism and a stronger tool for addressing racial economic inequality. To fix the economy, we must create equal opportunity; and to create equal opportunity, we must talk about race.”

Cyrus Mehri, Founder and Partner, Mehri & Skalet

“This bill would go a long way toward fixing Section 1981—and, by doing so, significantly address the problem of persistent race discrimination in the marketplace.”

Interested in learning more?

Email us.