Emily Aleisa


In Smith v. Bray, the Seventh Circuit, on a case of first impression, determined that supervisors with retaliatory motives can and should be individually liable under section 1981 when they cause the employer to retaliate against an employee. This article argues against the Seventh Circuit’s holding for four reasons. First, courts are required to analyze section 1981 the same way they analyze Title VII, and Title VII does not allow for individual supervisor liability. Second, the Seventh Circuit justified its decision based on a flawed comparison between section 1981 and section 1983, a similar but distinct civil rights statute. Third, individual supervisor liability for discrimination and retaliation conflicts with tort, agency, and contract law, all of which create the framework for analyzing section 1981 specifically and employment discrimination generally. Finally, holding individual supervisors liable under §1981 will chill efficient and effective service to their employers.