Applying 42 U.S.C. Section 1981 to Claims of Consumer Discrimination


This Comment explores several interesting legal questions regarding the proper interpretation 42 U.S.C. Section 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. It explores how the Fifth Circuit’s and other federal courts’ narrow interpretation of section 1981’s application in a retail setting, which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchase, is contrary to the statute’s express language, Congressional intent, and to evolving concepts of contract theory, all of which encompass our society’s deep commitment to combating racial discrimination through strict enforcement of civil rights protections. It examines the legislative and interpretive history of 42 U.S.C. § 1981, emphasizing the trend in both Congress and the courts to interpret this and other civil rights laws broadly. It then reviews a selection of federal court interpretations of § 1981’s application to the retail setting, from the very restrictive to those that have found a workable, broader interpretation that encompasses the various stages of the retailer-consumer contractual relationship. It highlights the standard adopted in the Sixth Circuit that finds actionable “markedly hostile” discriminatory conduct affecting the contractual relationship. Finally, the Comment examines how, as contract theory itself evolves to encompass a more expansive view of responsibility and liability between contracting parties, so should the non-discrimination statute which governs contractual relations. In conclusion, an adoption of the Sixth Circuit’s “markedly hostile” test is urged.


Constitutional Law

Date of this Version

June 2005