In litigating employment discrimination matters, attorneys frequently utilize 42 U.S.C. § 1981 (“Section 1981”), which provides that “[a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.”

The United States Supreme Court has long held that Section 1981 protects individuals against private employment discrimination on the basis of race.  In a recent decision, the United States District Court for the Eastern District of Pennsylvania concluded that Section 1981 does not, however, protect individuals from employment discrimination on the basis of national origin.  

In Funayama v. Nichia America Corp., the plaintiff, a female of Asian (in particular, Japanese) descent, alleged that she had been discriminated against on account of her race as well as national origin in violation of Section 1981.  Her former employer filed a motion to dismiss her claims arguing that her complaint did not state a claim based on race discrimination and Section 1981 does not provide a cause of action based on national origin discrimination. 

The motion to dismiss was summarily granted.  The federal district court did not find race discrimination even though the plaintiff had been replaced by a white male and in spite of her supervisor commenting that she was becoming “Americanized” and making disparaging remarks about her non-Japanese husband.  Although the federal district court found that such actions constituted discrimination due to her national origin, Japanese, it pointed out that Section 1981 “affords no protection to an individual alleging discrimination based on national origin alone.”  

While the Third Circuit had not yet directly addressed whether a claim for discrimination based upon national origin can be made under Section 1981, the majority of federal district court decisions in the Third Circuit have reached a conclusion similar to the one in Funayama.  Until the Third Circuit ultimately decides this issue, a complaint should thus be carefully drafted to include, if possible, a race discrimination claim alongside a national origin discrimination claim.