Many workers know that employment discrimination is not only unfair, but also illegal. Employees should also be assured that they have certain rights regarding discrimination; this includes the right to take legal action against the perpetrators. What isn't as clear is what should they file? Should it be a Section 1981 lawsuit or a Title VII claim? Both section 1981 and Title VII of the federal Civil Rights Act of, protect employees against discrimination at work. However, it depends on what type of discrimination. For instance, if you've suffered from racial discrimination, you could possibly use one or the other. Section 1981 grants individuals the right to make and enforce contracts, regardless of race. Because the employee/employer relationship is regarded as a "contractual" relationship (even considering at-will employment), Section 1981 relates to numerous factors of the employment connection. While most racial discrimination claims are typically brought under VII of the Civil Rights Act, Section 1981 has various benefits over Title VII. Here are five questions to ask to help you decide which one is right for your situation:
- What is the basis of the discrimination? – Title VII protects against discrimination based on race, national origin, color, sex, and religion; Section 1981 only protects against race or ethnicity-based discrimination.
- What is the size of your employer? – Title VII only applies for employers with 15 or more employees, but Section 1981 applies to employers regardless of size.
- Was the discrimination intentional? – If the answer is "no", there may not be a claim under Section 1981 because it doesn't help employees who've been discriminated unintentionally. However, Title VII could apply because it protects against disparate impact, which includes practices that aren't intended to be discriminatory but eventually prove to be discriminatory after all.
- Will you file a complaint with the Equal Employment Opportunity Commission (EEOC)? – If not, you must deal with your situation by filing a case under Section 1981 because it doesn't require the preliminary step of filing an EEOC complaint, like pursuing a claim under Title VII does.
- When did the discrimination take place? – There are deadlines (referred to as statutes of limitations) for filing a claim under both Title VII and Section 1981. Section 1981 has a longer time frame, giving parties four years after a violation to file a claim.
- The statute of limitations is longer
- Uncapped damages are available
- Individual liability is possible
- Applies to employers regardless of size