Justice Jackson Warns Timing Rules Shield Systemic Workplace Bias

The US Supreme Court’s recent denial of review in Nicholson v. W.L. York, Inc. received little public attention, but Justice Ketanji Brown Jackson’s written dissent warrants a closer look—especially for those interested in civil rights enforcement, economic equity, and the evolving role of 42 U.S.C. § 1981 in the federal anti-discrimination framework.

At issue in Nicholson was whether the US Court of Appeals for the Fifth Circuit correctly treated a series of allegedly racially discriminatory refusals to contract as time-barred under Section 1981. The petitioner, Chanel Nicholson, an adult entertainer, claimed she was turned away from work on multiple occasions because there were already “too many Black girls” on the schedule at two Houston clubs. The Fifth Circuit held that these denials were merely the “continued effects” of earlier discrimination dating back to 2014, and therefore outside the four-year statute of limitations.

Jackson, joined by Justice Sonia Sotomayor, dissented from the denial of certiorari, arguing that the Fifth Circuit misapplied clear Supreme Court precedent—specifically National Railroad Passenger Corp. v. Morgan, which established that each discrete act of discrimination starts its own limitations clock. She emphasized that Nicholson’s allegations of being turned away in 2017 and 2021 constituted independent, actionable denials of contractual opportunity under Section 1981.

This interpretive dispute reflects a much larger issue: how Section 1981 is being constricted in both scope and effect by federal courts, despite its clear statutory guarantee that all persons shall enjoy “the same right” to enter and enforce contracts “as is enjoyed by white citizens.”

As I argue in my own scholarship, Section 1981’s failure to fully realize its remedial potential isn’t due to statutory ambiguity, but rather to courts’ discomfort with interrogating the racialized motivations that often shape contracting decisions.

Today, courts apply a but-for causation standard to Section 1981 claims, following Comcast Corp. v. National Association of African American-Owned Media. This standard significantly raises the bar for plaintiffs, especially in the absence of direct evidence. At the same time, courts have continued to interpret the statute’s timing rules in ways that protect business defendants from accountability for what may be routine, repeated forms of racial exclusion.

Jackson’s dissent rejects that trajectory. Her reading recognizes that discrimination in contracting rarely happens in a single, isolated moment. Instead, it often unfolds over time through repeated denials that may appear procedurally neutral but, taken together, reflect systemic exclusion.

In this sense, the dissent aligns with the original purpose of Section 1981 as articulated by the Reconstruction Congress: not simply to prohibit race-based refusals to contract, but to dismantle the structural market practices that rendered such refusals routine.

This context is particularly important for the business community, where concerns about contracting equity—whether in employment, supplier diversity, or procurement—are increasingly salient. Jackson’s dissent can be read as a warning that procedural dismissals risk shielding economic actors from scrutiny, even when race appears to be a determining factor in access to opportunity. In Nicholson, the allegation that clubs turned away a worker because there were “too many Black girls” implicates precisely the kind of intentional discrimination Section 1981 was designed to address.

Yet under current doctrine, that claim never made it to discovery.

What this suggests is a deeper jurisprudential disconnect: Courts continue to interpret Section 1981 through the lens of individual bad actors and discrete transactions, while much of the discrimination Black workers and entrepreneurs face operates at the level of organizational culture, performance expectations, and informal norms. In a doctrine that presumes all contracting decisions are rational and race-neutral absent conclusive evidence to the contrary, the law is ill-equipped to address market exclusion that is racially coded but rarely explicit.

Jackson’s dissent thus invites both courts and practitioners to revisit Section 1981’s role. It isn’t just a procedural statute; it is a substantive statement about who gets to participate fully in the American economy. Interpreting it narrowly—whether through the statute of limitations or pleading standards—undermines its capacity to counteract market structures that continue to operate along racial lines.

This has implications beyond civil rights litigation. Businesses today operate in a legal and reputational environment that increasingly demands transparency and fairness in contracting. If courts are reluctant to recognize repeated racial denials as actionable under Section 1981, companies may perceive a regulatory gap—but the reputational and strategic risks of tolerating exclusionary practices remain high.

As diversity, equity, and inclusion programs come under scrutiny and Section 1981 itself is increasingly used to challenge race-conscious remedial efforts, Jackson’s dissent serves as a reminder of the statute’s original purpose—and of the continued legal, economic, and institutional consequences of failing to enforce it.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Carliss Chatman is a professor at SMU Dedman School of Law. She writes on corporate governance, contract law, race, and economic justice.

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