2-B | WHO MAY BE LIABLE UNDER SECTION 1981?

1) Private Sector Employers

a) There is no restriction as to employer size, which is found in other anti-discrimination statutes.

b) The employer may be liable under certain circumstances for acts of intentional discrimination by employees even when the employees are not supervisors.

c) Under certain circumstances, the parent corporation may be liable for discriminatory acts of its subsidiary.

d) Supervisors may be individually liable if they make or recommend employment decisions.

e) There is no liability for a corporate official when he/she did not participate in discrimination.

2) Public Sector Employers

a) Section 1981 does not waive sovereign immunity in suits against the United States. Federal officials may be personally liable for ultra vires acts/unauthorized acts or acts beyond the scope of their power.

b) Local government employers

c) State government employers

(1) State governmental entities and officers sued in official capacity enjoy sovereign immunity.

(2) State officials, in their individual capacity, may be sued for injunctive relief and damages.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

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