Suing Your Employer for Racial Discrimination in New York: Section 1981, Title VII, and the NYCHRL

Reviewed by the employment practice at the Law Offices of Albert Goodwin, New York, NY. Last updated: June 2024. This article is general legal information about New York and federal race-discrimination law, not legal advice for your specific situation.

Yes — if your employer treated you worse because of your race or color, you can pursue a claim in New York. But unlike most workplace-discrimination questions, race discrimination is governed by an unusually broad set of overlapping laws, and one of them — 42 U.S.C. § 1981 — gives race plaintiffs rights that employees alleging other forms of discrimination simply do not have. Understanding which statute to use, and why, often determines whether a case is worth bringing and how much it is worth.

This page focuses specifically on race and color discrimination under New York and federal law. For a broader overview of all protected categories, see our guide to suing your employer for discrimination, and for the agency-charge process generally, see our NYC employment discrimination attorney page.

The four laws that protect race — and why race plaintiffs have more options

Race and color discrimination in a New York workplace is prohibited by four separate bodies of law, each with different coverage, proof standards, deadlines, and remedies:

• Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) — prohibits race and color discrimination by employers with 15 or more employees.
• 42 U.S.C. § 1981 — a Reconstruction-era statute guaranteeing the equal right "to make and enforce contracts" regardless of race. It applies to the employment relationship and is unique to race and ethnicity claims.
• New York State Human Rights Law (NYSHRL), Executive Law § 296 — now applies to all employers in New York regardless of size, following the 2019 amendments.
• New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107 — the most employee-protective of the four, applying to employers with four or more employees within New York City.

Why Section 1981 matters in race cases (and only race cases)

Section 1981 is the single most important reason race-discrimination claims should be analyzed differently from other discrimination claims. Several features make it powerful:

• No employee-count minimum. Unlike Title VII's 15-employee threshold, § 1981 reaches small employers.
• No EEOC charge requirement. A plaintiff can sue directly in federal court under § 1981 without first exhausting administrative remedies through the EEOC.
• A longer limitations period. Claims under § 1981 that arise from post-formation conduct (such as discriminatory firing or hostile work environment) are generally subject to the four-year federal "catch-all" statute of limitations under 28 U.S.C. § 1658, per Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) — far longer than Title VII's 300-day charge window.
• No statutory damages cap. Title VII caps combined compensatory and punitive damages at $300,000 for the largest employers; § 1981 has no such cap.

The principal limitation is that § 1981 reaches only intentional discrimination and requires the plaintiff to prove that race was the but-for cause of the adverse action, a standard the Supreme Court confirmed in Comcast Corp. v. National Association of African American-Owned Media, 140 S. Ct. 1009 (2020). It does not support disparate-impact theories. For that reason, experienced counsel frequently plead § 1981 alongside Title VII and the state and city laws to preserve every available standard of proof and remedy.

How race discrimination is proven: the McDonnell Douglas framework and beyond

Intentional race-discrimination claims under Title VII and § 1981 are typically analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):

1. The employee establishes a prima facie case: membership in a protected class, qualification for the position, an adverse employment action, and circumstances giving rise to an inference of discrimination — often a similarly situated employee of a different race who was treated more favorably.
2. The employer articulates a legitimate, non-discriminatory reason for its action.
3. The employee shows that reason is pretext — false, inconsistent, or a cover for a racial motive.

Under the NYCHRL, the standard is more forgiving. To plead a prima facie race claim under the city law, a plaintiff must allege that (1) they are a member of a protected class, (2) they were qualified, (3) they were treated less well than other employees, and (4) the differential treatment occurred under circumstances giving rise to an inference of discrimination — as restated in Laguerre v. City of New York, 2021 NY Slip Op 31810(U) (Sup. Ct. 2021). New York courts construe the NYCHRL independently and "liberally" in favor of the plaintiff, per the Local Civil Rights Restoration Act of 2005 and the Court of Appeals' decision in Albunio v. City of New York, 16 N.Y.3d 472 (2011). Once a prima facie case is made, an employer's offered justification can be challenged by showing at least one proffered reason is false, misleading, or incomplete (Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29 (1st Dep't 2011)).

Race-specific theories you may not have considered

Hairstyle discrimination and New York's CROWN Act

New York is a national leader on hair-based race discrimination. In 2019, New York amended the Human Rights Law (and the New York City Council amended the NYCHRL) to make clear that "race" includes traits historically associated with race, including hair texture and protective hairstyles such as braids, locs, twists, cornrows, Bantu knots, and Afros (see N.Y. Exec. Law § 292(37) and the 2019 "CROWN Act" amendments). The NYC Commission on Human Rights also issued enforcement guidance establishing that grooming and appearance policies that target natural Black hairstyles are unlawful race discrimination. A "facially neutral" no-braids or no-locs policy that disproportionately burdens Black employees is therefore actionable in New York even where it might survive scrutiny in other jurisdictions.

Disparate impact and facially neutral policies

Beyond intentional discrimination, Title VII and the New York statutes recognize disparate-impact claims: a neutral policy or practice (for example, a particular test, credit screen, or grooming rule) that falls more harshly on one racial group and is not justified by business necessity. Disparate-impact claims are available under Title VII and the state and city laws but, as noted above, not under § 1981.

Race-based hostile work environment

Racial slurs, racist "jokes," displayed symbols, or other race-based harassment can create a hostile work environment. Under federal law, the conduct must generally be "severe or pervasive" enough to alter the conditions of employment. Under the NYSHRL (as amended in 2019) and the NYCHRL, that bar is significantly lower: harassment need not be severe or pervasive, and an employer escapes liability only if the conduct amounts to no more than "petty slights or trivial inconveniences" that a reasonable victim of the same protected characteristic would consider trivial (see N.Y. Exec. Law § 296(1)(h)).

Why race plaintiffs in New York often favor the state and city laws

The 2019 amendments brought the NYSHRL much closer to the very plaintiff-friendly NYCHRL. Compared to federal law, New York's state and city laws offer:

• Universal employer coverage under the NYSHRL (no minimum employee count) and coverage of independent contractors, domestic workers, and certain non-employees who provide services under contract.
• A lower harassment standard — no "severe or pervasive" requirement.
• No Faragher/Ellerth affirmative defense based on the employee's failure to use an internal complaint procedure.
• No statutory cap on compensatory or punitive damages.
• Mandatory attorneys' fees to a prevailing plaintiff under the NYCHRL.

Deadlines specific to race-discrimination claims

Race plaintiffs in New York face an unusually wide range of filing deadlines depending on which law they invoke:

• EEOC charge (Title VII): generally 300 days from the discriminatory act in New York (a "deferral" state). An EEOC charge is a prerequisite to a federal Title VII lawsuit, and a right-to-sue letter must usually be obtained first.
• Section 1981 lawsuit: no agency charge required; generally up to four years for post-formation conduct under Jones v. R.R. Donnelley. This is the longest window available and is unique to race/ethnicity claims.
• NYSDHR administrative complaint (NYSHRL): within three years of the discriminatory act for most claims following the 2019 statute-of-limitations extension.
• NYCCHR or court action (NYCHRL): generally three years.
• Election of remedies: filing an administrative complaint with the NYSDHR or NYCCHR generally bars a later court action on the same claim (with limited exceptions), so the choice of forum should be made deliberately at the outset.

Because § 1981 alone can keep a case alive long after the Title VII charge window has closed, race plaintiffs should not assume their claim is time-barred even if more than a year has passed. A lawyer can evaluate which avenue still remains open. For a general walkthrough of the agency process, see our overview of what an EEOC lawyer does and the procedure involved.

Evidence in race cases

Most modern race discrimination is circumstantial rather than overt. Helpful evidence often includes: comparator data showing differently treated employees of other races who were similarly situated; written performance reviews that contradict the employer's stated reason for an action; emails, texts, and voicemails; pay and promotion records; documentation of slurs or comments (recorded contemporaneously, even in a note to yourself or a trusted person); and the timing of adverse actions relative to your complaints. Preserve these materials before any dispute escalates, because access can disappear once a claim is filed. New York's lower NYCHRL standards mean that even a pattern of "subtle" differential treatment can support a claim that might fail under federal law.

Damages available in a race-discrimination case

Depending on the statute, a successful plaintiff may recover back pay, front pay, reinstatement, compensatory damages for emotional distress and out-of-pocket losses, punitive damages, attorneys' fees, and costs. Two race-specific points are worth emphasizing: (1) under § 1981 and the New York state and city laws there is no $300,000 cap that constrains Title VII recoveries; and (2) punitive damages may be available where an employer acted with malice or reckless indifference, including ignoring a properly reported complaint.

Retaliation protections

It is unlawful for an employer to retaliate against you for complaining about race discrimination or participating in an investigation. Retaliation can include termination, demotion, reduced hours, schedule changes, or a hostile shift in treatment. Retaliation claims are often easier to prove than the underlying discrimination because they turn on timing and the employer's knowledge of your protected activity — and § 1981, the NYSHRL, and the NYCHRL all provide independent retaliation protection.

Frequently asked questions

Can I sue if my employer has fewer than 15 employees?

Yes. Title VII would not apply, but Section 1981, the NYSHRL (all employers), and the NYCHRL (four or more employees in NYC) can still cover a race-discrimination claim.

Do I have to file with the EEOC first to bring a race claim?

For a Title VII claim, yes — an EEOC charge and right-to-sue letter are required. For a Section 1981 claim, no — you can file directly in federal court. State and city claims have their own routes.

Is my case too old to bring?

Not necessarily. Even if the 300-day EEOC window has passed, Section 1981 generally allows up to four years for post-formation conduct, and the NYSHRL and NYCHRL generally allow three years.

Are natural Black hairstyles protected at work in New York?

Yes. New York's CROWN Act amendments include hair texture and protective hairstyles such as locs, braids, and twists within the definition of race, so policies targeting them can constitute unlawful race discrimination.

What is the difference between disparate treatment and disparate impact?

Disparate treatment is intentional — being singled out because of race. Disparate impact involves a neutral policy that disproportionately harms one racial group without business justification. Section 1981 covers only intentional discrimination; Title VII and the New York laws cover both.

Speak with a New York employment lawyer

Choosing among Title VII, Section 1981, the NYSHRL, and the NYCHRL — and the deadlines that go with each — is the heart of a strong race-discrimination case. The Law Offices of Albert Goodwin handles employment matters in New York City, Brooklyn, and Queens. To discuss your situation, call 212-233-1233 or email [email protected].