3d Cir. Model Jury Instr. (Civil) 6.1.2

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Last updated March 2026

In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court restricted 22

the application of Section 1981 to claims arising out of the formation of the contract. But the Civil 23

Rights Act of 1991 legislatively overruled the Supreme Court ’s decision in Patterson, providing 24

that the clause “to make and enforce contracts ” in Section 1981 “includes the making, 25

performance, modification and termination of contracts, and the enjoyment of all benefits, 26

privileges, terms, and conditions of the contractual relationship. ” 42 U.S.C. § 1981(b). “[A] 27

plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing 28

(or proposed) contract that he wishes ‘to make and enforce.’ “ Domino’s Pizza, Inc. v. McDonald, 29

546 U.S. 470, 479-80 (2006). 30

The protections afforded by Section 1981 may in many cases overlap with those of Title 31

VII. But the standards and protections of the two provisions are not identical. For example, a 32

Section 1981 plaintiff does not have to fulfill various prerequisites, including the completion of 33

the EEOC administrative process, before bringing a court action. Also, Title VII applies only to 34

employers with 15 or more employees, whereas Section 1981 imposes no such limitation. 2 35

Employees cannot be sued under Title VII, but they can be sued under Section 1981. On the other 36

hand, Title VII protects against discrimination on the basis of sex, creed or color as well as race, 37

while Section 1981 prohibits racial discrimination only. Title VII and Section 1981 are subject to 38

different limitations periods as well. See Cardenas v. Massey, 269 F.3d 251, 266 (3d Cir. 2001). 39

For ease of reference, these pattern instructions provide a separate set of instructions 40

specifically applicable to Section 1981 claims. But where both Section 1981 and Title VII are both 41

applicable, and the instructions for both provisions are substantively identical, there is no need to 42

give two sets of instructions. In such cases, these Section 1981 instructions can be used because 43

the claim will have to be one sounding in race discrimination. The Comment will note if a Section 44

1981 instruction is substantively identical to a Title VII instruction. 45

With respect to claims for wrongful termination, the First Amendment ’s religion clauses 46

give rise to an affirmative defense that “bar[s] the government from interfering with the decision 47

2 Indeed, persons other than employers can be sued under Section 1981. See, e.g., Faush v. Tuesday

Morning, Inc., 808 F.3d 208, 220 (3d Cir. 2015) (noting that independent contractors can bring

claims under Section 1981). Conversely, the fact that a person is an employer for purposes of Title

VII liability does not necessarily establish the existence of a contractual relationship for purposes

of Section 1981. Compare id. at 209 (holding that jury question existed as to whether the client of

a temporary-staffing agency counted as an employer of one of the agency ’s employees for Title

VII purposes), with id. at 220 (holding that the temporary -worker plaintiff’s Section 1981 claim

was appropriately dismissed on summary judgment because “the record does not indicate that [the

plaintiff] entered into a contract with [the staffing agency’s client] or ever attempted to do so”).