The Civil Rights of Act of 1866 (42 U.S.C. § 1981) was interpreted in the late 1960s as prohibiting discrimination even in private contracts based on race.
asserted
Rights → interpret → race
In 1991, Congress expressly included that interpretation in the statute.
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Congress → include → statute
Because in the late 1800s, "race" was understood to include what today might refer to "ethnicity" (e.g., German, Arab, Jewish), the Court concluded that § 1981 extends to such discrimination based on ethnicity.
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§ → understand → ethnicity
Section 1981, by its terms, simply doesn't cover religious discrimination.
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Section → cover → discrimination
This was the key behind Domanic v. Christian Bros. Automotive Corp., decided Wednesday by Judge Stuart Kyle Duncan, joined by Judges Andrew Oldham and Cory Wilson; an excerpt:
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This → decide → Oldham
Christian Brothers Automotive Corporation is a faith-based auto-repair business that franchises only to Christians.
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that → base → Christians
All of its more than 250 franchisees—a group which includes some ethnic Jews—are professing Christians.
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which → include → Christians
When the company refused to franchise to Evan Domanic, who is an ethnic and religious Jew, Domanic sued for racial discrimination under 42 U.S.C. § 1981….
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Domanic → refuse → §
On appeal, Domanic's main argument is that discrimination against Jews is ipso facto racial discrimination, even when (as here) the differential treatment is motivated purely by religion and not ancestry.
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treatment → motivate → religion
We decline to adopt this novel argument, which is in tension with the Supreme Court's longstanding precedent that § 1981 does not reach religious discrimination.
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§ → decline → discrimination
The argument is also out of step with the Seventh Circuit, which has twice rejected similar contentions about the indivisibility of Jewish ethnicity and faith under § 1981.
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which → reject → §
Finally, we also agree with the district court that no evidence suggests that Christian Brothers's franchise policy is a façade for ethnic discrimination against Jews.
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policy → agree → Jews
If there were any evidence of that, of course, then Domanic's § 1981 claim would have to go to a jury.
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claim → be → jury
Because there is no such evidence, however, the district court correctly granted summary judgment dismissing Domanic's § 1981 claim….
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court → be → claim
Christian Brothers describes itself as a "faith-based franchisor of auto-repair stores," whose mission is to "glorify God by providing ethical and excellent service to its customers."
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mission → describe → customers
This ethos is reflected in the company's branding, website, mission statement, and, of course, its name.
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ethos → reflect → course
Christian Brothers franchises only to professing Christians.
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Brothers → franchise → Christians
The company asserts that, in forty years of business, it has never offered a franchise to someone not "spiritually aligned with the company and prepared to share a personal Christian testimony."
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it → assert → testimony
As a result, each of Christian Brothers's more than 250 franchisees professes the Christian faith.
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each → profess → faith
It is undisputed that this group encompasses a variety of races and ethnicities and includes at least two ethnic Jews.
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group → encompass → Jews
Domanic, who is both ethnically and religiously Jewish, applied to open a Christian Brothers franchise in the fall of 2020.
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who → apply → 2020
{Domanic was one of more than 1,200 applicants in 2020, only twenty-four of whom were ultimately awarded a franchise.}
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four → award → franchise
During the ensuing process, Christian Brothers employee Brandon Thomas asked Domanic about his faith.
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Thomas → ensue → faith
He replied that he is Jewish, not Christian.
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he → reply → ?
Domanic alleges Thomas told him religion would not be an issue, something Christian Brothers denies….
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Brothers → allege → him
Section 1981 provides in relevant part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens …."
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persons → provide → citizens
The section applies to both government and private actions.
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section → apply → actions
See id. § 1981(c) ("The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.").
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rights → see → law
While § 1981 does not use the term "race," the section has long been understood to "prohibit[ ] racial discrimination in the making and enforcement of private contracts."
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section → use → contracts
Section 1981's conception of race is broad: it protects "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics."
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who → protect → ancestry
It does not matter that, today, some ethnic or ancestral group (say, Germans or Swedes) might be considered "white" or "Caucasian."
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group → matter → ?
The focus is instead on what groups Congress intended to protect when it enacted the law in 1870….
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it → intend → 1870
Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time § 1981 became law."
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§ → deem → time
It is also settled that § 1981 forbids discrimination on the basis of Jewish ethnicity or ancestry.
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§ → settle → ethnicity
In Shaare Tefila Congregation v. Cobb (1987), the Supreme Court confirmed that, at the time § 1981 (and its companion, § 1982) were enacted, "Jews constituted a group of people that Congress intended to protect."
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Congress → confirm → that
"Jews and Arabs," the Court explained, "were among the peoples then considered to be distinct races and hence within the protection of the statute."
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Court → explain → statute
It is immaterial that Jews may be commonly classed as racially or ethnically "white" today.
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Jews → class → ?
A person of Jewish ancestry can nonetheless sue under § 1981 if he is discriminated against on the basis of that ancestry.
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he → sue → ancestry
Finally, it is equally settled that § 1981 does not forbid religious discrimination….
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§ → settle → discrimination
[T]he evidence proved without contradiction that Christian Brothers has a longstanding and consistent policy of franchising only to professing Christians.
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Brothers → prove → Christians
…and 21 more, not listed.
The Aporia