Into the Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, and Escalating Incoherence

Authors

William R. Corbett

Abstract

Federal employment discrimination law has become such an asymmetrical and largely incoherent body of law that those who find themselves in its midst can feel as though they have entered another realm or dimension—the “twilight zone.” The role of Section 1981 (42 U.S.C. § 1981) in federal employment discrimination law poses some significant mysteries and problems. The statute was enacted as part of the Civil Rights Act of 1866 to ensure the rights of recently liberated slaves, and it was amended in 1870. One of the rights guaranteed by Section 1981 is the right to make and enforce contracts on the same basis as white citizens. The Supreme Court declared that the contract language supported a holding that a claim for private employment discrimination is actionable under Section 1981 in Johnson v. Railway Express Agency, Inc. Since that decision, it has been clearly established that plaintiffs could sue for race discrimination under Section 1981. Section 1981 has numerous advantages over the other principal federal employment discrimination statutes—Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1991 (ADA). Chief among those advantages are: uncapped compensatory, and, in an appropriate case, punitive, damages, a longer limitations period for filing a lawsuit, and no procedural prerequisites to filing suit. In the Civil Rights Act of 1991, Congress sought to equalize the remedies between Section 1981 on the one hand and Title VII and the ADA on the other (the ADEA has a different remedial scheme). However, the political compromise required to secure passage of the 1991 Act resulted in the imposition of several caps on compensatory and/or punitive damages, depending on the size of the employer. Thus, a Section 1981 claim remains the most favored employment discrimination claim. This asymmetry in employment discrimination law gives rise to problems, as the scope of coverage of Section 1981 is unclear. Although it clearly covers race, the definition of race is controversial, open-ended, and evolving. The problems created by the availability of employment discrimination claims under Section 1981 were highlighted by two recent cases: Rajaram v. Meta Platforms, Inc. and Harris v. FedEx Corp. Servs., Inc. In Rajaram, a divided panel of the Ninth Circuit held that a claim for reverse citizenship discrimination is actionable under Section 1981. In Harris, a Fifth Circuit panel held that a plaintiff asserting race discrimination claims under Section 1981 and Title VII, who had recovered more than $366 million in the trial court, was barred from asserting a Section 1981 claim and remitted her award to less than $250,000, which was below the $300,000 cap applicable to Title VII. These cases highlight, respectively, the uncertainty regarding Section 1981’s coverage and the superior remedies afforded by Section 1981 in comparison with Title VII and the ADA. This Article proposes bringing employment discrimination law out of this twilight zone dimension. Congress should enact law to make Title VII the exclusive remedy for private sector race discrimination in employment. Additionally, Congress should increase the damage caps applicable to Title VII claims because the caps have been the same since 1991.

Recommended Citation

William R. Corbett, Into the Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, and Escalating Incoherence, 90 Brook. L. Rev. 1059 (2025).
Available at: https://brooklynworks.brooklaw.edu/blr/vol90/iss4/2