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

This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit’s and other federal courts’ narrow interpretation of § 1981’s application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute’s express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the 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. The Note 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 Note argues that, 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, this Note urges an adoption of the Sixth Circuit’s “markedly hostile” test.