2 PJI -- | INTRODUCTORY NOTES
(1) Statutory Authority. The statutory authority for discrimination claims is as follows: Equal Pay Act, 29 U.S.C. § 206(d) (2001) (prohibiting sex-based pay differentials); Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (2001) (age); Civil Rights Act of 1866, 42 U.S.C. § 1981 (2001) (prohibiting racial discrimination in the making and enforcement of contracts); Civil Rights Act of 1871, 42 U.S.C. § 1983 (2001) (prohibiting state action in violation of federal civil rights); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2001) (race, color, religion, national origin, or sex discrimination and sexual harassment); Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (2001) (pregnancy); Americans With Disabilities Act of 1990, ADA.html">42 U.S.C. §§ 12101-12213 (2006), amended by The ADA Amendments of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008) (disability); Rehabilitation Act of 1973, 29 U.S.C. § 794 (2001) (same). The statutory authority for retaliation claims is as follows: 42 U.S.C. § 1981 (as interpreted by the Supreme Court in CBOCS West, Inc., v. Humphries, 128 S. Ct. 1951 (2008)); 29 U.S.C. § 626(d) (2001) (ADEA retaliation provision) (for federal sector employees, 29 U.S.C. § 633a(a), see Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008)); 42 U.S.C. § 2000e-3(a) (2001) (Title VII retaliation provision for private sector employers); Morales-Vallellanes v. Potter, 605 F.3d 27, 35-36 (1st Cir. 2010) (noting the court has assumed that the anti-retaliation provision applicable to private sector employers operates to prohibit retaliation in federal employment)); 42 U.S.C. § 12203(a) (2001) (ADA retaliation provision). see also Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 n.9 (1st Cir. 1996) (Title VII retaliation) (Title VII and ADEA retaliation analysis is “largely interchangeable”); Champagne v. Servistar Corp., 138 F.3d 7, 13 (1st Cir. 1998) (ADA retaliation claim) ((citing Mesnick v. General Elec. Co., 950 F.2d 816 (1st Cir. 1991) (ADEA retaliation claim)); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005) (employee has retaliation claim under Title IX, 20 U.S.C. § 1681, et seq., for action employer took because of his complaints about discrimination in athletics).
(2) Disparate Treatment Cases. We have drafted generic instructions that should generally be usable, with appropriate modifications, for federal employment discrimination claims where the plaintiff claims disparate treatment based on race, color, religion, sex, national origin or age, but we have drafted separate instructions for harassment, retaliation, Equal Pay Act and disability discrimination claims. See, e.g., Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997) (Title VII) (“We regard Title VII, ADEA, ERISA and FLSA as standing in pari pasu and endorse the practice of treating judicial precedents interpreting one such statute as instructive of decisions involving another.”); Equal Employment Opportunity Comm’n v. Amego, Inc., 110 F.3d 135, 145 n.7 (1st Cir. 1997) (ADA) (“The ADA is interpreted in a manner similar to Title VII, and courts have frequently invoked the familiar burden-shifting analysis of McDonnell-Douglas in ADA cases.” (citations omitted)); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 428 n.3 (1st Cir. 2000) (ADEA) (“This [Title VII McDonnell Douglas] framework applies to Age Discrimination in Employment Act (ADEA) cases under the law of this Circuit.”); Ayala-Gerena v. Bristol Meyers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996) (§ 1981) (“In order to prevail under Section 1981, a plaintiff must prove purposeful employment discrimination... under the by-now familiar analytical framework used in disparate treatment cases under Title VII.”); White v. Vathally, 732 F.2d 1037, 1039 (1st Cir. 1984) (Title VII and § 1983) (“[W]e have recognized that the analytical framework for proving discriminatory treatment claims set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), is equally applicable to constitutional and to Title VII claims.” (parallel citations omitted)); Kvorjak v. Maine, 259 F.3d 48, 50 n.1 (1st Cir. 2001) (ADA) (“the standards applicable to [the Americans with Disabilities Act and the Rehabilitation Act] have been viewed as essentially the same”).
(3) Disparate Impact Cases. These instructions are not designed for use in disparate impact cases.
(4) 1991 Civil Rights Act Partial Relief. As a result of Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the 1991 Civil Rights Act provision allowing for partial relief in mixed motive cases is available in Title VII cases whether the plaintiff’s evidence is direct or circumstantial. But it may not be available outside Title VII. see Dominguez-Cruz, 202 F.3d at 429 n.4. In fact, the First Circuit has stated explicitly that partial relief is not available under the ADEA. Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 33 (1st Cir. 2001) (ADEA). As for ADA cases, “[t]his circuit has noted, but not resolved, the question....” Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 n.2 (1st Cir. 2002). Although not discussed in any of these cases, § 1981 and § 1983 claims might also be excluded from the reach of this aspect of the 1991 amendment for the same reasons.
(5) The First Circuit has held that Title VII does not provide for liability of individual employees/supervisors; only lawsuits against the employer are authorized. Fantini v. Salem Sate College, 557 F.3d 22 (1st Cir. 2009). The same is true for Title I of the ADA. Román-Oliveras v. Puerto Rico Elec. Power Auth’y, ___ F.3d ___, 2011 WL 3621548, at *7 (1st Cir. Aug. 18, 2011). The question remains open as to certain other federal statutes. see generally Henry P. Ting, Note, Who’s the Boss?: Personal Liability Under Title VII and the ADEA, 5 Cornell J.L. & Pub. Pol’y 515 (1996). Sections 1981 and 1983 do not use the same “employer” language and therefore do not share this restriction on individual liability. Injunctive relief in the form of “backpay” is not available against an individual capacity defendant. Negron-Almeda v. Santiago, 528 F.3d 15, 26 (1st Cir. 2008) (“It is settled law in the federal courts that backpay as such cannot be awarded against a defendant in his or her individual capacity.”). However, compensatory damages are available against an individual capacity defendant, and “[p]roperly proven, those damages will equal the grand total of the plaintiff’s aggregate lost wages and benefits.” Id.
(6) Respondeat Superior in 42 U.S.C. §§ 1981 and 1983 Cases. Section 1983 does not allow recovery on respondeat superior theories of liability. see Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985) (§ 1983) (“The Supreme Court has firmly rejected respondeat superior as a basis for section 1983 liability of supervisory officials or municipalities.” (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 691, 694 n.58 (1978) (§ 1983))); see also Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998) (§ 1983) (“Supervisory liability under § 1983 ‘cannot be predicated on a respondeat superior theory, but only on the basis of the supervisor’s own acts or omissions.’”).
The availability of respondeat superior liability in § 1981 cases depends on the identity of the defendant. Because the remedial provisions of § 1983 “provide the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor,” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-32 (1989) (§§ 1981 and 1983), there is no respondeat superior liability in § 1981 cases involving governmental defendants. The Ninth Circuit has held that the 1991 amendments to the Civil Rights Act created an implied cause of action against state actors under 42 U.S.C. § 1981. In reaching this holding, the court concluded that the 1991 amendments statutorily overruled Jett’s first holding: that a § 1981 claim for damages against a state actor must be brought under § 1983. Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996). But see Bolden v. City of Topeka, 441 F.3d 1129, 1136-37 (10th Cir. 2006) (disagreeing with the Ninth Circuit’s conclusion, holding that Jett is still good law, and collecting cases). But the Ninth Circuit also held that with the 1991 amendments Congress intended to preserve Jett’s second holding: that a § 1981 plaintiff who sues a municipality may not rely on the doctrine of respondeat superior. Fed’n of African Am. Contractors. 96 F.3d at 1215. The First Circuit has not addressed whether the 1991 amendments impacted either of Jett’s holdings.
Section 1981 cases against non-governmental defendants, on the other hand, are not governed by the § 1983 remedial provisions, and therefore respondeat superior theories of liability are available. see Springer v. Seaman, 821 F.2d 871, 881 (1st Cir. 1987) (§ 1981) (“Unlike § 1983, § 1981 contains no limitation to actions taken under color of state law, and its legislative history evidences no intention to reject the ordinarily applicable respondeat superior liability or to impose the strict causation requirements of § 1983.”), abrogated in part by Jett, 491 U.S. at 731-32 (although § 1983 provides the exclusive remedy for § 1981 cases against state actors, § 1981 claims against private actors are not governed by § 1983 rules); see also Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262-64 (10th Cir. 1995) (§ 1981) (analyzing § 1981 defendant’s liability under respondeat superior theory); Cabrera v. Jakabovitz, 24 F.3d 372, 385-88 (2d Cir. 1994) (§ 1981) (same). In Cerqueira v. American Airlines Inc., 520 F.3d 1, 19 (1st Cir. 2008), the First Circuit noted that “the Supreme Court has not addressed the scope of any respondeat superior liability in § 1981 claims generally and we need not do so here.” (footnote omitted).
For a discussion of the substantive standards that apply in § 1983 supervisory liability cases, see Excessive Force Instruction 1.1 note 3.