October 02, 2025
DEI, Discrimination & the Civil Rights Act of 1866
I remember years ago I was presenting a management training program, “HR & the Law for Managers” (no, it wasn’t in 1866). I had the Civil Rights Act (CRA) of 1866 listed in the handout along with the CRA of 1964, 1991, and some other applicable employment laws. A participant asked if the year “1866” was a typo. No, it was not.
To illustrate, a white male plaintiff recently filed a lawsuit alleging race discrimination under Section 1981 of the CRA of 1866. Why would an individual file a claim of discrimination under this law instead of Title VII of the Civil Rights Act of 1964? There could be a number of reasons.
- Access to small employers – Section 1981 of the CRA of 1866 covers all private sector employers, not just those with at least 15 employees.
- Skipping the administrative agency process – The CRA of 1866 permits an individual to file a claim in court without first exhausting their administrative remedies, such as first filing a charge with the U.S. EEOC, a state, or local agency.
- More time to file – an individual may have up to four years to file a claim under the CRA of 1866, much more than the maximum of 300 days under the CRA of 1964.
- No cap on damages – The CRA of 1964, which was modified by the CRA of 1991, caps the damages an individual can be paid. The CRA of 1866 does not.
So, given all that, why would an individual file a claim under Title VII of the CRA of 1964 instead of Section 1981 of the CRA of 1866? The CRA of 1866 prohibits discrimination based on race. The CRA of 1964 covers race, color, religion, national origin, and sex.
In December 2024, the American Bar Association recently reported, “Over the past year, there has been an increase in so-called reverse discrimination suits filed under Section 1981 of the Civil Rights Act of 1866.” The case referenced above is yet another. If your company has a DEI program or initiative, ensure it complies with anti-discrimination laws and does not adversely impact an individual based on any race, sex, or other legally protected status.
