Section 1981 Is a “Bulletproof Vest,” Not a “Full Suit of Armor” Against Discrimination


In addition to seeking recourse for race discrimination under Title VII, an employee may also bring a claim under Section 1981. But, as the U.S. Court of Appeals for the First Circuit noted, the scope of 1981 is more limited.

Section 1981 prohibits race discrimination in the making of contracts, including employment contracts. It also has been read to prohibit retaliation against those who oppose such discrimination. In Alston v. Spiegel, a Black firefighter brought Section 1981 claims against his employer and an individual member of the town’s governing body, in addition to others, for the termination of his employment and other retaliation. The First Circuit dismissed the claims, finding no basis that race played a part in his termination.

Specifically as to the retaliation claim, the First Circuit found that the individual’s alleged conduct of making negative statements to the firefighter’s supporter, even if retaliatory in an ordinary sense, did not support a retaliation claim under Section 1981 because it did not connect the individual to any injury to the firefighter’s contractual relationship with his employer. The First Circuit asserted that, “Section 1981 is not a full suit of armor – a strange remedial provision designed to fight racial animus in all of its noxious forms,” but “[r]ather, it is a bulletproof vest, designed specifically to safeguard contractual relationships.”