The Illegality of Sex Discrimination in Contracting

Abstract

Discrimination on the basis of sex in the sale of goods and services, a practice that puts women at a severe disadvantage in the marketplace, is widespread and remains largely tolerated. This Article argues that the Civil Rights Act of 1866 (now codified as 42 U.S.C. § 1981), the first civil rights law in our nation’s history, should be read to prohibit such discrimination. The Civil Rights Act of 1866 broadly pronounces that “all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Yet the statute’s expansive language and the moral principle of nondiscrimination it expresses has been misinterpreted to exclude claims of sex discrimination in contracting. In this Article, I suggest an interpretation that acknowledges women’s disfavored social status in the nineteenth century and concludes that the statute should be read to support sex discrimination claims. Specifically, I argue that by “white citizens,” Congress could only have been referring to the group of people who at the time the law was passed exercised the unfettered right to contract—that is, white men. Under this reading of the statute, a woman who could demonstrate that she had not been treated equally to white men when making or enforcing a contract could state a claim for sex discrimination under Section 1981. This Article contends that such an understanding of Section 1981 is preferable to traditional readings that exclude claims of sex discrimination. Such readings are inconsistent with the U.S. Supreme Court’s interpretative methodology in civil rights cases and suffer from other historical and interpretative flaws. By adopting the approach advocated in this Article, courts would at last give full effect to the principle of nondiscrimination that Section 1981 embodies, and would ensure that women would no longer be required to pay more than men for goods and services in the marketplace.