3d Cir. Model Jury Instr. (Civil) 6.2.1

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Last updated March 2026

Encyclopedias of the 19th century also described race in terms of ethnic 34

groups, which is a narrower concept of race than petitioners urge. Encyclopedia 35

Americana in 1858, for example, referred to various races such as Finns, vol. 5, p. 36

123, gypsies, 6 id., at 123, Basques, 1 id., at 602, and Hebrews, 6 id., at 209. The 37

1863 version of the New American Cyclopaedia divided the Arabs into a number 38

of subsidiary races, vol. 1, p. 739; represented the Hebrews as of the Semitic race, 39

9 id., at 27, and identified numerous other groups as constituting races, including 40

Swedes, 15 id., at 216, Norwegians, 12 id., at 410, Germans, 8 id., at 200, Greeks, 41

8 id., at 438, Finns, 7 id., at 513, Italians, 9 id., at 644 -645 (referring to mixture of 42

different races), Spanish, 14 id., at 804, Mongolians, 11 id., at 651, Russians, 14 43

id., at 226, and the like. The Ninth edition of the Encyclopedia Britannica also 44

referred to Arabs, vol. 2, p. 245 (1878), Jews, 13 id., at 685 (1881), and other ethnic 45

groups such as Germans, 10 id., at 473 (1879), Hungarians, 12 id., at 365 (1880), 46

and Greeks, 11 id., at 83 (1880), as separate races. 47

These dictionary and encyclopedic sources are somewhat diverse, but it is 48

clear that they do not support the claim that for the purposes of § 1981, Arabs, 49

Englishmen, Germans, and certain other ethnic groups are to be considered a single 50

race. We would expect the legislative history of § 1981 . . . to reflect this common 51

understanding, which it surely does. The debates are replete with references to the 52

Scandinavian races, Cong. Globe, 39th Cong., 1st Sess., 499 (1866) (remarks of 53

Sen. Cowan), as well as the Chinese, id., at 523 (remarks of Sen. Davis), Latin, id., 54

at 238 (remarks of Rep. Kasson during debate of home rule for the District of 55

Columbia), Spanish, id., at 251 (remarks of Sen. Davis during debate of District of 56

Columbia suffrage), and Anglo-Saxon races, id., at 542 (remarks of Rep. Dawson). 57

Jews, ibid., Mexicans, see ibid. (remarks of Rep. Dawson), blacks, passim, and 58

Mongolians, id., at 498 (remarks of Sen. Cowan), were similarly categorized. 59

Gypsies were referred to as a race. Ibid. (remarks of Sen. Cowan). Likewise, the 60

Germans. . . . 61

Based on the history of § 1981, we have little trouble in concluding that 62

Congress intended to protect from discrimination identifiable classes of persons 63

who are subjected to intentional discrimination solely because of their ancestry or 64

ethnic characteristics. Such discrimination is racial discrimination that Congress 65

intended § 1981 to forbid, whether or not it would be classified as racial in terms 66

of modern scientific theory. The Court of Appeals was thus quite right in holding 67

that § 1981, “at a minimum,” reaches discrimination against an individual “because 68

he or she is genetically part of an ethnically and physiognomically distinctive 69

subgrouping of homo sapiens. ” It is clear from our holding, however, that a 70