Legal Affairs

Jeff Feuquay, Associate Editor

Civil Rights Overview

As we all know, Federal law prohibits employment discrimination based on race, color, religion, sex, age, national origin, citizenship status, and disability. Virtually all employers -- private and government alike -- as well as employment agencies and labor unions, are affected by the requirements of at least some of these laws. Unfortunately, too often attorneys tend to focus on very narrow issues in workplace discrimination, forgetting the breadth of the laws with which we are expected to comply. So, below is a summary of those many federal laws -- something to use as a checklist to see if your counsel is covering all the bases (and keeping you covered).

My guess is that most in the public sector will be familiar with most of the mentioned laws, but some may come as a surprise. Please don't view the list as comprehensive; it's simply a summary of those civil rights laws which seem to be most relevant to our environment. For what it's worth, Federal government contractors and subcontractors have additional obligations beyond those listed below. At the end of the summary, I've included more detail on the Civil Rights Acts of 1866 and 1871. Those Acts are extremely powerful and often forgotten until too late.

The First, Fifth, and Fourteenth Amendments

The First Amendment to the U.S. Constitution prohibits the federal government from interfering with religious freedom. The Fifth Amendment prohibits the federal government from depriving individuals of liberty or property without the "due process of law." The Fourteenth Amendment, passed during the Reconstruction era and aimed at racial discrimination, prohibits the states from interfering with the immunities or privileges of U.S. citizenship, from depriving individuals of liberty or property without due process of law, and from denying any individual the equal protection of the laws.

The Civil Rights Acts of 1866 And 1871

These laws were passed during the Reconstruction era to give effect to the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. Section 1981 prohibits racial discrimination in all aspects of contractual relationships, including written and unwritten employment contracts.It applies to public and private employers. Section 1983 prohibits employment discrimination committed by persons acting "under color of" state or local laws. It applies to race, color, sex, religious, or national origin discrimination. A Section 1983 claim is extremely complex, and can put the public employer and employee at odds over the issue of whether the employee was acting within the scope of his/her employment when the complained-of act occurred.

Title VII of The Civil Rights Act of 1964

Probably the best-known of the fair employment practice laws, Title VII prohibits discrimination in any aspect of employment, including "help wanted" advertising and pre-job testing, on the basis of race, color, religion, sex, or national origin. In 1978, the Pregnancy Discrimination Act amended Title VII to prohibit bias on the basis of pregnancy. Public sector employers, employers of 15 or more workers, labor unions, and employment agencies, are covered by Title VII.

The Equal Pay Act of 1963

Part of the Fair Labor Standards Act, this law prohibits pay differentials based on sex.

The Age Discrimination in Employment Act of 1967

This statute prohibits employment discrimination against individuals aged 40 or older. It applies to employers of 20 or more workers, labor unions, and employment agencies.

Title IX of the Education Amendments of 1972

This law prohibits sex discrimination by any educational program or activity receiving federal financial assistance. "Program or activity" includes all of the operations of an educational institution even if only one department or program actually receives federal funding.

The Rehabilitation Act of 1973

Section 503 of the law prohibits discrimination against handicapped persons by federal contractors. These employers are required to take affirmative action in hiring qualified individuals with disabilities. Section 504 of the Act prohibits discrimination against qualified individuals with handicaps by institutions or programs that receive federal funds. You may recall that this Act applied to most of us long before the ADA became reality. The long history of cases under this Act became the foundation for courts' interpretation of the ADA.

The Vietnam-Era Veterans' Readjustment Assistance Act of 1974

This law requires affirmative action by government contractors to employ and advance in employment qualified veterans of the Vietnam era and disabled veterans. I mention this primarily because virtually all states have similar, but often more expansive, requirements.

The Immigration Reform and Control Act of 1986

An amendment to the Immigration and Nationality Act, this statute prohibits employers of four or more workers from discriminating on the basis of citizenship status or national origin. The Act's antidiscrimination provisions do not apply to illegal aliens, and there are exemptions where citizenship is required by law.

The Americans With Disabilities Act of 1990

Effective in 1992, this statute prohibits employment discrimination against individuals with disabilities and requires places of public services and accommodations to be usable and accessible. Employers with 25 or more workers are covered by the law as of July 26, 1992, and employers of 15 or more workers are covered beginning July 26, 1994. There are no affirmative action requirements under ADA.

The Religious Freedom Restoration Act of 1993

This law requires federal, state, and local governments to demonstrate a compelling governmental interest before substantially burdening an individual's exercise of religion and to demonstrate that they are using the least restrictive means of furthering that compelling governmental interest.

Executive Orders

E.O. 11246 bans discrimination on the basis of race, sex, religion, color, and national origin by federal contractors with contracts in excess of $10,000. The order includes affirmative action requirements. E.O. 11141 prohibits discrimination on the basis of age by federal contractors.

State Laws

In addition to the above federal laws, most of the states have enacted laws prohibiting discrimination on the basis of race, religion, sex, national origin, age, or handicap. As most of you have likely already discovered, many of these laws are more comprehensive and restrictive than comparable federal legislation.

Reconstruction Era: The Civil Rights Act 0f 1866

I want to provide a little more information on the oft-forgotten Reconstruction Era: the Civil Rights Acts of 1866 (42 U.S.C. §1981, §1982) and of 1871 (42 U.S.C. §1983) In recent years, these statutes have been used as a basis for lawsuits against employers charged with job discrimination. Although they reach few situations not also covered by Title VII, these laws cover employers too small to be reached by Title VII, provide employees with protection against Title VII's procedural pitfalls, have a longer statute of limitations period for filing suit, and provide uncapped compensatory and punitive damages. Be very wary of them.

In pertinent part, Section 1981 prohibits race discrimination in the making and enforcing of contracts, and applies to public and private employers. Section 1983 bars anyone acting "under color of any" state or local law from depriving an individual of rights "secured by the Constitution and laws."

A distinctive physiognomy is not essential to qualify for the law's protection. Thus, an Iraqi-born U.S. citizen could prevail under Section 1981 if he could prove that he was subjected to intentional job discrimination based on the fact that he was born an Arab, rather than solely on his national origin or religion. The law does not apply to discrimination based on factors other than race, color, or ethnicity.

The Civil Rights Act of 1991 reversed a portion of a Supreme Court decision that held that Section 1981's protections were limited to discrimination in contract formation, and did not extend to on-the-job racial harassment. An amendment to the law makes it clear that Section 1981 applies to the making, performance, modification, and termination of a contract as well as to the "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."

Uncapped compensatory and punitive damages and jury trials have always been available under Section 1981. A new section, added by the 1991 Civil Rights Act, provides for recovery of limited compensatory damages in cases of intentional sex, religious, and disability bias in employment against private employers, state and local governments, and the federal government. Limited punitive damages may be recovered against non-public employers in cases where the employer acted with "malice or with reckless indifference to" a victim's federally protected rights. If compensatory or punitive damages are sought, either party to the lawsuit may request a jury trial.

The Civil Rights Act of 1871, in pertinent part, prohibits employment discrimination committed by persons acting "under color of any" state or local law. It does not apply to purely private conduct, in most instances. There must be some state involvement -- i.e., "state action"--in the challenged practices. The ultimate issue in determining whether a person is acting "under color of" state law is whether the alleged infringement on federal rights is fairly attributable to the state. Thus, the 1871 Act has been used to reach employment discrimination involving police departments; fire departments; public schools; and public or semipublic hospitals.

But, and this is important, neither a state, an entity considered to be an "arm of the state," or a state official acting in his or her official capacity may be sued for damages under the Civil Rights Act of 1871. The states are immune from suits for damages under the Eleventh Amendment of the U.S. Constitution and in addition, the U.S. Supreme Court has ruled that states or entities considered to be "arms of the state" are not "persons" for purposes of the 1871 Act. Note: municipal government units that are not considered "arms of the State" for Eleventh Amendment purposes may be sued under the 1871 Civil Rights Act.

For that matter and of personal interest, a suit for damages against a state official in his or her official capacity is deemed to be actually another way of suing the state, since a judgment against a public servant in his or her official capacity would impose liability on the state he or she represents. Thus, just as states may not be sued for damages under the 1871 Act, neither may state officials acting in their official capacities. However, a state official may be sued in his or her official capacity for prospective relief -- such as a court order requiring that a discriminatory practice cease -- since such actions are not deemed to be actions against the state. And, a state official may be sued under the 1871 Act in his or her personal capacity. Liability will be established if it is shown that the official, acting under color of state law, caused the deprivation of a federal right. In such cases, any judgment obtained would be satisfied by the individual official, not the state treasury. However, the state official may be able to assert personal immunity defenses, such as reasonable reliance on existing law. And, several (but not all) courts have held that an individual may not bring an action under the Civil Rights Act of 1871 against a person who could not be sued directly under Title VII, since the 1871 law cannot enlarge the remedies available under Title VII.

I derived this from a variety of sources, mostly off the WWW. Hope it helps. If not... well, see you in court . . .

Jeff may be reached at P.O. Box 706, Perry, OK 73077-0706; Phone: (580) 336-4908; Fax (580) 336-5366; Net: jeff@feuquay.com. If there is a topic that you would like to see addressed in this column please let him know.