Private discrimination

Unequal and unfair treatment on the basis of such characteristics as race, sex, religion, national origin, and disability, committed not by the government but by individuals and nongovernmental organizations.

Through the Civil Rights Act of 1875Civil Rights Act of 1875, Congress prohibited discrimination on the basis of race in inns, conveyances, theaters, and other public places. The Supreme Court, in the Civil Rights Cases[case]Civil Rights Cases[Civil Rights Cases] (1883), held that Congress did not have the power to prohibit private discrimination. According to the Court, the Fourteenth Amendment applied only to state action, that is, legislation passed by the state or actions of state officers or agents. The Thirteenth Amendment did not support the act because racial discrimination by private individuals did not constitute slaverySlavery;”badge” of[badge of] or a badge of slavery.Discrimination, race

Although the Court’s ruling that Congress may address only public, not private, discrimination under the Fourteenth Amendment remained largely intact, the Court allowed some application of this amendment to private actors when they act in concert with or in place of the state. It also greatly expanded its view of what constitutes a badge of slavery, giving Congress the power to remedy racial discrimination under the Thirteenth Amendment. In addition, it allowed Congress to attack private discrimination through its spending and commerce clause powers.

The Fourteenth and Thirteenth Amendments

The equal protection clauseEqual protection clause of the Fourteenth AmendmentFourteenth Amendment;equal protection clause prohibits governments from discriminating on the basis of race, sex, and certain other characteristics. Although private actors are not normally covered, the Court held that the equal protection clause may apply if the private actor performed a state function or significantly involved the state in the activity. It ruled that when political parties bar African Americans from participating in the primary process (Smith v. Allwright, 1944) or when a company-owned town bars access to its streets (Marsh v. Alabama[case]Marsh v. Alabama[Marsh v. Alabama], 1946), they are performing essentially governmental functions and are covered by the Fourteenth Amendment. The Court kept the public function doctrine narrow, however, and refused to extend it to shopping malls in Lloyd Corp. v. Tanner[case]Lloyd Corp. v. Tanner[Lloyd Corp. v. Tanner] (1972) and a privately owned electric company in Jackson v. Metropolitan Edison Co.[case]Jackson v. Metropolitan Edison Co.[Jackson v. Metropolitan Edison Co.] (1974).

Private actors may also be prohibited from discrimination if the government encourages or becomes significantly involved in their activities. In Burton v. Wilmington Parking Authority[case]Burton v. Wilmington Parking Authority[Burton v. Wilmington Parking Authority] (1961), the Court held that a privately owned coffee shop that leased space in a publicly owned garage was involved in a joint enterprise with the state and could not refuse to serve African Americans. The Court also kept this doctrine very narrow, refusing to extend it to private groups that merely received funding from the state in Rendell-Baker v. Kohn[case]Rendell-Baker v. Kohn[Rendell-Baker v. Kohn] (1982) or are regulated by the state in Moose Lodge v. Irvis[case]Moose Lodge v. Irvis[Moose Lodge v. Irvis] (1972).

After the Civil War, Congress passed statutes giving African Americans “the same right as white persons” to own or lease property and to enter into contracts. Because of the restrictive interpretation given the Thirteenth Amendment in the Civil Rights Cases, these statutes did not apply to private discrimination until the 1960’s. In Jones v. Alfred H. Mayer Co.[case]Jones v. Alfred H. Mayer Co.[Jones v. Alfred H. Mayer Co.] (1968), the Court reversed itself and held that Congress had the power under the Thirteenth Amendment to abolish all “badges and incidents of slavery,” including private discrimination on the basis of race in the sale of housing. The Court applied this reasoning in Runyon v. McCrary[case]Runyon v. McCrary[Runyon v. McCrary] (1976), holding that section 1981 prohibited a private nonsectarian school from refusing to admit blacks. In 1989 the Court tried to restrict the effect of Runyon by holding that section 1981 applied only to the formation of a contract and not its performance in Patterson v. McLean Credit Union[case]Patterson v. McLean Credit Union[Patterson v. MacLean Credit Union] (1989), but that was effectively overruled by Congress in the Civil Rights Act of 1991.

The Commerce Clause

The most important piece of antidiscrimination legislation passed in the modern civil rights era was probably the Civil Rights Act of 1964. It prohibited many kinds of discrimination, both public and private. Several of its most important titles were directed at private discrimination. Title II prohibited racial discrimination by hotels, restaurants, and other places of public accommodations. Title VII prohibited discrimination in employment on the basis of race, color, religion, sex, and national origin. Congress used its power under the commerce clauseCommerce clause to pass the act, finding that private discrimination in these areas had a substantial effect on interstate commerce. In Katzenbach v. McClung[case]Katzenbach v. McClung[Katzenbach v. McClung] (1964), the Court agreed that this was a valid use of congressional power under the commerce clause.

The Court’s very broad interpretation of Congress’s commerce clause power proved extremely useful in passing legislation prohibiting many types of private discrimination. Unlike its power under the Thirteenth Amendment, Congress is not limited to prohibiting only racial discrimination. In addition to prohibiting employment discrimination under Title VII, Congress also used its commerce clause power in passing the Age Discrimination in Employment ActAge Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990.

Congressional Spending Power

Congress may also use its spending power to prohibit certain kinds of private discrimination by organizations receiving federal funds. For example, Title IX of the Education Amendments of 1972Title IX, Education Amendments of 1972 prohibits sex discrimination in any educational program receiving federal financial assistance. The Court, in Grove City College v. Bell[case]Grove City College v. Bell[Grove City College v. Bell] (1984), gave a narrow interpretation to the word “program,” which would have applied the prohibition only to the department that was receiving the funds. Congress, in the Civil Rights Restoration Act of 1987, responded by making clear that the entire operations of a college would be covered if any department received federal funds.

Further Reading

  • Abraham, Henry, and Barbara Perry. Freedom and the Court. 7th ed. Oxford: Oxford University Press, 1998.
  • Gressman, Eugene. “The Unhappy History of Civil Rights Legislation.” Michigan Law Review 50 (1952): 1323.
  • Viera, Norman. Constitutional Civil Rights. 3d ed. St. Paul, Minn.: West Publishing, 1998.
  • Williams, Juan. Eyes on the Prize: America’s Civil Rights Years, 1954-1965. New York: Penguin Books, 1987.

Affirmative action

Age discrimination

Civil Rights Acts

Civil rights and liberties

Commerce, regulation of


Employment discrimination

Fourteenth Amendment

Race and discrimination

Restrictive covenants

Thirteenth Amendment