In a recent case, High v. Wells Fargo Bank, 2023 WL 2505540 (E.D.Va. March 14, 2023), the court offered interpretive guidance on 42 U.S.C. § 1981 which, generally, prohibits race discrimination in the making and enforcement of contracts (which has been interpreted to mean the “at will” employment relationship).
While Title VII of the Civil Rights Act of 1964 also prohibits discrimination based on (among other characteristics), “race,” that statute is more restrictive in certain ways (by, for example, requiring a preliminary filing at the EEOC).
The court explained, specifically, the often fine line between discrimination based on “national origin,” on the one hand, and ethnicity or ancestry, on the other, as that distinction relates to the statute’s coverage:
In her Amended Complaint, High alleges discrimination “based on her Hispanic ancestral and ethnic characteristics and her Dominican national origin” in violation of Section 1981. Although the text of Section 1981 only speaks explicitly to race, see 42 U.S.C. § 1981(a) (“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws as is enjoyed by white citizens.”), its concept of “race” is much broader than our modern understanding of the term and includes ancestral and ethnic characteristics.
Still, the scope of Section 1981 protection is not unlimited, and there exists a distinction between discrimination based on ancestry or ethnic characteristics and discrimination based on place or nation of origin. However, there is no bright line. Trying to draw clear distinctions between someone’s ethnicity and national origin can often amount to impossible hairsplitting, and in some instances, evidence of discrimination based on national origin may even be ‘identical as a factual matter to discrimination based on ethnicity or ancestry.
Even reading High’s Amended Complaint favorably, it is possible that there is no difference between her Hispanic ancestral and ethnic characteristics and her Dominican national origin, such that this Court could draw a distinction between her ethnicity and national origin. That is, in this case, it is possible that evidence of discrimination based on national origin may even be identical as a factual matter to discrimination based on ethnicity or ancestry.
Unfortunately, the court proceeded to hold that plaintiff’s allegations – which included a derogatory “joke” – did not sufficiently allege “severe or pervasive” conduct necessary to establish a hostile work environment claim under § 1981.