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7 PJI 0 | SECTION 1983 EMPLOYMENT DISCRIMINATION

COMMENT Chapter 7 discusses employment discrimination claims brought by public employees under Section 1983. Instructions 7.1 and 7.2 and Comment 7.3 address Equal Protection claims concerning discrimination based upon plaintiff’s membership in a protected class.1 Instruction 7.4 addresses First Amendment retaliation claims. Comment 7.5 concerns damages.

Comparison of Section 1983 employment discrimination and Title VII employment discrimination claims.

A Section 1983 employment discrimination claim may be similar in many respects to a Title VII disparate treatment claim. Thus, some of the Title VII instructions may be adapted for use with respect to Section 1983 employment discrimination claims. This comment compares and contrasts the two causes of action; more specific comparisons concerning particular types of claims are drawn in the comments that follow.

Section 1983 requires action under color of state law.

Title VII applies to both private and public employers.2 By contrast, Section 1983 applies only to defendants who acted under color of state law.3 See, e.g., Borrell v. Bloomsburg Univ., 870 F.3d 154 (3d Cir. 2017) (holding that a private hospital was not a state actor despite creating a training program for nurses in partnership with a public university); Krynicky v. University of Pittsburgh, 742 F.2d 94, 103 (3d Cir. 1984) (holding that University of Pittsburgh and Temple University acted under color of state law); see also supra Comment 4.4.

An equal protection claim under Section 1983 requires intentional discrimination.

Title VII authorizes claims for disparate impact. See Comment 5.1.6. The Section 1983 employment discrimination claims addressed in this comment rest on a violation of the Equal Protection Clause,4 which requires a showing of intentional discrimination. See, e.g., Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 274 (1979); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997) (“To prevail on her § 1983 equal protection claim, Robinson was required to prove that she was subjected to ‘purposeful discrimination’ because of her sex.”), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Thus, disparate impact claims are not actionable under Section 1983. However, evidence of disparate impact may help a Section 1983 plaintiff to show purposeful discrimination.

Section 1983 claims against individual defendants.

In contrast to Title VII, which does not provide a cause of action against individual employees,5 Section 1983 may provide a cause of action for unconstitutional employment discrimination by an individual, so long as the plaintiff shows that the defendant acted under color of state law. See Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788, 796 (2009) (“The Equal Protection Clause reaches only state actors, but § 1983 equal protection claims may be brought against individuals as well as municipalities and certain other state entities.”).

The plaintiff can make this showing by proving that the defendant was the plaintiff’s supervisor, or by proving that the defendant exercised de facto supervisory authority over the plaintiff.6 See Bonenberger v. Plymouth Tp., 132 F.3d 20, 23 (3d Cir. 1997) (“There is simply no plausible justification for distinguishing between abuse of state authority by one who holds the formal title of supervisor, on the one hand, and abuse of state authority by one who bears no such title but whose regular duties nonetheless include a virtually identical supervisory role, on the other.”). To establish a Section 1983 claim against a supervisor based on the activity of a subordinate, the plaintiff must also satisfy the requirements for supervisory liability under Section 1983. See supra Comment 4.6.1.

Qualified immunity, when applicable, provides a defense to Section 1983 claims against state and local officials sued in their individual capacities.7 See supra Comment 4.7.2; see also Comment 4.7.1 (concerning absolute immunity).

Section 1983 claims against municipal defendants.

A Section 1983 employment discrimination claim against a municipal defendant requires a showing that the violation of plaintiff’s constitutional rights resulted from a municipal policy or custom. See, e.g., Andrews, 895 F.2d at 1480; see supra Comments 4.6.3 - 4.6.8. This test differs from Title VII’s test for respondeat superior liability. See supra Comments 5.1.3 - 5.1.5.

Section 1983 does not provide a claim against the state.

State governments are not “persons” who can be sued under Section 1983. See Will v. Michigan Department of State Police, 491 U.S. 58, 65 (1989).8 By contrast, Title VII authorizes claims against state governments. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (rejecting state sovereign immunity defense to Title VII claim on the ground that Congress can validly abrogate state sovereign immunity when legislating pursuant to Section 5 of the Fourteenth Amendment).9

Section 1983 does not require employment discrimination plaintiffs to exhaust administrative remedies.

In order to assert a Title VII employment discrimination claim, the plaintiff must first exhaust administrative remedies. See, e.g., Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997) (“In Title VII actions, failure to exhaust administrative remedies is an affirmative defense in the nature of statute of limitations.”). There is no such exhaustion requirement for a Section 1983 employment discrimination claim.10

Section 1983 has a more generous limitations period than Title VII.

As noted above, a person wishing to sue under Title VII must present the claim to the relevant agency within strict time limits. By contrast, the limitations period for a Section 1983 equal protection claim is borrowed from the relevant state statute of limitations for personal injury suits, see Wilson v. Garcia, 471 U.S. 261, 280 (1985), and is likely to be considerably longer.

Section 1983 employment discrimination remedies differ from Title VII remedies.

Statutory caps apply to compensatory and punitive damages awards under Title VII. See supra Comments 5.4.1, 5.4.2. No such caps apply to Section 1983 employment discrimination claims. There may also be differences in the allocation of tasks between judge and jury concerning matters such as front pay and back pay. Compare Comments 5.4.3, 5.4.4 (discussing back pay and front pay under Title VII) with Comment 7.5 (discussing back pay and front pay under Section 1983).

Title VII does not preempt employment discrimination claims under Section 1983.

The Court of Appeals has rejected the contention that Title VII preempts Section 1983 remedies for employment discrimination. See, e.g., Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d Cir. 1990) (“[T]he comprehensive scheme provided in Title VII does not preempt section 1983, and... discrimination claims may be brought under either statute, or both.”).11 Although Bradley predated the Civil Rights Act of 1991,12 district courts within the Third Circuit have continued to apply Bradley since 1991. See, e.g., Bair v. City of Atlantic City, 100 F. Supp. 2d 262, 266 (D.N.J. 2000) (“The vast majority of courts, including the Third Circuit, hold that claims under Section 1983 and Title VII are not necessarily mutually exclusive; if the right which a plaintiff claims was violated is constitutionally based, and also a right protected by Title VII, a plaintiff may bring either a Title VII claim or a Section 1983 claim, or both.”). Cf. Fitzgerald, 129 S. Ct. at 797 (holding that Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U.S.C. § 1681(a), does not displace claims under Section 1983 for equal protection violations arising from gender discrimination in schools). But see Hildebrand v. Allegheny County, 757 F.3d 99 (3d Cir. 2014) (holding that the Age Discrimination in Employment Act precludes an action for age discrimination under section 1983).

On the other hand, section 1983 cannot be used to vindicate the statutory rights created by Title VII, because to do so “would thwart Congress’s carefully crafted administrative scheme.” Williams v. Pennsylvania Human Relations Comm’n, 870 F.3d 294, 299 (3d Cir. 2017) (reaching same result under the American with Disabilities Act as well).

The usefulness of special interrogatories.

When the plaintiff asserts claims against multiple defendants, or when the plaintiff asserts both Title VII claims and Section 1983 equal protection claims, the court should take care to distinguish the differing liability requirements; in this regard, it may also be useful to employ special interrogatories. Cf. Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir. 1994) (“Since separate theories of liability with different standards of individual involvement were presented to a jury, it would have been better practice and aided appellate review had the trial court made use of special interrogatories on the liability issues.”).

Sexual orientation and transgender status may be treated differently under Title VII and Section 1983. Section 1983 permits a plaintiff to sue for intentional discrimination on account of sex (among other equal protection violations). In Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court held that discrimination on the ground of sexual orientation or transgender status constituted sex discrimination under Title VII. The Court relied on the “ordinary public meaning of the statute’s language at the time of the law’s adoption.” Id. at 1741. It did not address whether that rule would apply under the Equal Protection Clause, which does not use the word “sex.” The dissent warned that, despite important differences between Title VII and the discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review”). Bostock, 140 S. Ct. at 1783 (Alito, J., dissenting).

(Last Updated July 2019)

Footnotes

1 The Supreme Court has held that a public employee’s equal protection claim cannot be based upon a “class-of-one” theory – i.e., a public employee cannot “state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee's membership in any particular class.” Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146, 2148-2149, 2157 (2008).
2 See 42 U.S.C. § 2000e(b) (defining “employer” to include – subject to certain exceptions – “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person”); id. § 2000e(a) (defining “person” to include “governments, governmental agencies, [and] political subdivisions”); id. § 2000e(h) (defining “industry affecting commerce” to include “any governmental industry, business, or activity”).
3 Some plaintiffs asserting intentional race discrimination may also bring a claim under 42 U.S.C. § 1981, which applies to both private and public employers. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987) (noting that “the Court has construed [Section 1981] to forbid all ‘racial’ discrimination in the making of private as well as public contracts”).
4 Plaintiffs bringing Section 1983 employment claims could also assert violations of other constitutional protections. See, e.g., Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1306-07 (3d Cir. 1993) (affirming dismissal of procedural due process claim because plaintiff did not have property interest in employment).
5 See supra Comment 5.1.3.
6 For a discussion of caselaw from other circuits concerning the possible liability of non-supervisory co-workers for equal protection violations arising from sexual harassment, see Cheryl L. Anderson, "Nothing Personal:" Individual Liability under 42 U.S.C. § 1983 for Sexual Harassment as an Equal Protection Claim, 19 BERKELEY J. EMP. & LAB. L. 60, 92-98 (1998) (arguing that non-supervisory co-workers can violate equal protection by “us[ing] their position with a government employer as an opportunity to engage in severe and pervasive harassment of fellow employees”); see also infra Comment 7.3.
7 As noted above, a Section 1983 employment discrimination plaintiff must show intentional discrimination in order to establish an equal protection violation. For discussion of whether a defendant who intended to discriminate can receive the benefit of qualified immunity, see Andrews, 895 F.2d at 1480 (“Liciardello and Doyle objectively should have known the applicable legal standard, and thus are not protected by qualified immunity in treating, or allowing their subordinates to treat, female employees differently on the basis of gender in their work environment.”); see also supra Comment 4.7.2 (discussing analogous questions).
8 Similarly, Section 1983 does not provide a cause of action against state officials in their official capacities. See Will, 491 U.S. at 71.
9 Reasoning that Fitzpatrick’s holding does not foreclose inquiry into whether Title VII is a valid exercise of Congress’s Section 5 enforcement powers, the Seventh Circuit considered that question and concluded that “the 1972 Act validly abrogated the States' Eleventh Amendment immunity with respect to Title VII disparate treatment claims.” Nanda v. Board of Trustees of University of Illinois, 303 F.3d 817, 831 (7th Cir. 2002).
10 Nor is the Section 1983 employment discrimination plaintiff required to exhaust state administrative remedies before suing. See Patsy v. Board of Regents, 457 U.S. 496, 516 (1982).
11 Compare Price v. Delaware Dept. of Correction, 40 F. Supp. 2d 544, 558 (D. Del. 1999) (“A claim of retaliation cannot be the sole basis for a § 1983 claim where there is no violation of the Constitution or federal law, other than the retaliation provision of Title VII.”).

As to Bivens claims by federal employees, see Brown v. General Services Administration, 425 U.S. 820, 835 (1976) (holding that Title VII was the exclusive avenue for employment discrimination claims by federal employees in the competitive service); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (holding that personal staff member of Member of Congress could bring Bivens claim for employment discrimination); RICHARD H. FALLON, JR., ET AL., THE FEDERAL COURTS & THE FEDERAL SYSTEM 816 n.4 (5th ed. 2003) (asking whether Congress’s extension of Title VII remedies to House and Senate employees should preclude the remedy recognized in Davis).

12 The Civil Rights Act of 1991 amended Title VII in a number of ways; among other changes, it authorized compensatory and punitive damages for intentional discrimination claims and provided a right to a jury trial on such claims, see P.L. 102-166, November 21, 1991, § 102, 105 Stat. 1071, 1072-74.

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