12. What is the “Civil Rights Act of 1866”?
The Civil Rights Act of 1866, commonly known as the 1981 Act, was passed at the end of the Civil War in an effort to protect minorities against race-based discrimination. The pertinent provisions of the Act reads, “All persons shall have the same right to make and enforce contracts as enjoyed by white citizens.” While the 1981 Act also protects against race-based discrimination, it provides additional protections beyond those of Title VII. It specifically protects against discrimination in hiring, retaliatory firing, and creation of a hostile work environment. It originally allowed for the recovery of damages for intentional discrimination. The Act was amended in 1991 to allow a plaintiff to recover for policies or practices with a discriminatory impact. Unlike Title VII, the 1981 Act allows a plaintiff to bring an action in federal court without filing a complaint through the EEOC. It also allows plaintiffs to recover compensatory and punitive damages in the event of intentional discrimination.
• Discussion: Why do you think Congress passed a separate Act (beyond Title VII) to combat race-based discrimination? Do you believe the objectives of the 1981 Act are the same as those under Title VII? Why or why not?
• Practice Question: Walt is an African-American man applying for a position at a local restaurant. At the interview he noticed that the entire wait staff is Caucasian, while the entire kitchen staff is African-American. During the interview, the restaurant manager indicates that he believes Walt would be a better fit as a kitchen manager. Walt kindly refuses the kitchen manager position and reasserts that he wishes to be considered for the waiter position. The restaurant eventually hires a Caucasian female to fill the waiter position. Does Walt potentially have a cause of action against the restaurant? If so, what are his legal options and procedure for bringing the action?