21.2 CIVIL RIGHTS STATUTES
21.201 42 U.S.C. § 1981.
A. In General. The Civil Rights Act of 1866 (section 1981) 73 prohibits discrimination in the making or enforcement of contracts, including unwritten employment contracts, on the basis of race, color, or ethnicity. Section 1981 prohibits racial discrimination throughout the employment relationship.
Section 1981 applies only to discrimination based on race, color, or ethnicity. It is intended to protect identifiable classes of persons who are subject to discrimination solely on account of their ancestry or racial characteristics. 74 Racial bias under section 1981 applies as much to white employees as it does to other "ethnic" groups. 75
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B. Public Employers.
1. Federal Government. Section 1981 does not protect federal employees from discrimination based on race, color, or ethnicity. The United States Supreme Court held that section 717 of title VII 76 affords federal employees the exclusive remedy for racial bias in employment. 77 Federal employees not covered by title VII, such as uniformed military personnel and civilian employees of the military, may assert section 1981 claims against the federal government. 78
2. State and Local Governments. Eleventh Amendment sovereign immunity protects state governmental entities from suits for damages under section 1981. But a public employee may seek prospective injunctive relief against a state governmental entity. 79
Although local government entities are not immune from suit under section 1981, liability under section 1981 must be based on official municipal policy or custom, not on the traditional doctrine of respondeat superior. 80 However, even if a plaintiff is able to satisfy this standard, the Eleventh Amendment also prohibits damage awards against municipalities, and only injunctive relief to prohibit future discrimination may be obtained in federal court. 81
C. Individual Liability of State and Local Officials. Although state officials acting in their official capacities are immune from suit, 82 they may be sued in their individual capacities for acts that abridge rights afforded
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under section 1981. 83 Local government officials also may be liable for monetary damages in an individual capacity. Both state and local government officials sued for damages in their individual capacities enjoy qualified or good faith immunity. The defendant must plead qualified immunity as an affirmative defense. 84
D. Remedies. Remedies under section 1981 include:
| 1. | Compensatory damages, including back pay; 85 | ||
| 2. | Declaratory and injunctive relief; 86 and | ||
| 3. | Attorney fees. 87 |
The Civil Rights Act of 1991 does not permit a public employee who is the victim of malicious or reckless racial discrimination to seek punitive damages against a governmental employer. 88
E. Procedural and Remedial Differences Between Section 1981 and Title VII.
1. In General. While both section 1981 and title VII provide protection against discrimination based on race, color, and national origin, section 1981 provides separate and independent remedies from those provided by title VII and has different procedural requirements. 89
2. Filing. Under section 1981, there is no requirement for a plaintiff to file a charge with the Equal Employment Opportunity Commission (EEOC) or to receive a letter from the EEOC authorizing a right to sue before seeking relief in federal court as there is under title VII.
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3. Statute of Limitations. Previously, because section 1981 contained no statutory limitations period for filing a claim, federal courts allowed state law to govern limitation of actions brought under it. 90 The Virginia limitations period used for section 1981 actions was two years. But in Jones v. R.R. Donnelley & Sons Co., 91 the Supreme Court concluded that the catchall four-year statute of limitations contained in 28 U.S.C. § 1658 applied to actions based on federal statutes enacted after December 1, 1990. After reviewing the 1991 amendment to 42 U.S.C. § 1981, the Court held that this four-year statute of limitations applies, not the state statute of limitations for personal injury that had traditionally been used by courts for section 1981 claims. In Virginia, this had the effect of doubling the statute of limitations for section 1981 claims.
In White v. BFI Waste Services, LLC, 92 the court applied the four-year statute of limitations required by Jones and remanded the case to the Eastern District of Virginia that had decided it before the Supreme Court's decision. The court also reiterated the requirement that a plaintiff identify and provide evidence of comparators in order to survive summary judgment on a claim of racial discrimination.
4. Intent. A plaintiff must prove an employer's discriminatory intent to establish liability under section 1981. 93 Liability under title VII, on the other hand, does not always require the plaintiff to prove discriminatory intent. For example, an employer may be liable for a title VII violation for employment practices that result in a disparate impact on a protected class, regardless of the employer's intent.
5. Remedies. The Civil Rights Act of 1991 provides title VII plaintiffs with substantially the same remedies as those available under section 1981. The principal differences between the remedies are that (i) a back pay award under section 1981 is not limited to two years as under title VII, and (ii) uncapped compensatory and punitive damages are available under section 1981, except that punitive damages may not be awarded against governmental entities.
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21.202 42 U.S.C. § 1983.
A. In General. The Civil Rights Act of 1871 (section 1983) 94 prohibits persons acting "under color of" state law from depriving individuals of "any rights, privileges, or immunities secured by the Constitution and laws."
B. Public Employers.
1. Federal Government. Because section 1983 only applies to acts of deprivation "under color of" state law, it has limited impact on the federal government and its employees. It only applies to actions of federal officials if they act in conjunction with state officials or in accordance with a local custom, law, or regulation. 95
2. State and Local Governments. Although section 1983 claims involve actions carried out under color of state law, states themselves are not "persons" within the purview of section 1983 and may not be sued under the statute. 96 Thus, a state, an entity considered to be an "arm of the state," or a state official acting in an official capacity is entitled to Eleventh Amendment sovereign immunity and may not be sued under section 1983. Moreover, any covered entity or individual will be able to assert Eleventh Amendment immunity from a section 1983 suit if the payment of any judgment against it would be made out of the state treasury. A section 1983 suit for damages against a state official in an official capacity would impose liability on the state itself and is not permitted. 97 Eleventh Amendment immunity does not bar prospective relief against a state where the state is sued through an appropriate officer. 98
In Monell v. Department of Social Services, 99 the United States Supreme Court held that municipalities and other local government units are "persons" under section 1983 and may be sued under section 1983 for monetary,
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declaratory, or injunctive relief if "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." 100 A local government entity may be held liable only for an official policy of the governmental entity. It has no liability for the actions of an employee under the doctrine of respondeat superior. 101
C. Individual Liability of State and Municipal Officials. Section 1983 suits clearly can be brought against state officials in their individual capacities to enforce any alleged violation of a constitutional right or federal statute, 102 although the Fourth Circuit has indicated that proving individual supervisory liability under section 1983 is a difficult task. 103
The Supreme Court "has left no doubt that municipalities and local governments are not entitled to immunity from suits brought under section 1983" 104 and may be sued under section 1983 for both damages and injunctive relief. 105 In fact, municipalities are not entitled to qualified immunity from liability by asserting that their officials acted in good faith. 106
A section 1983 individual defendant may be entitled to qualified immunity. The Supreme Court held that individuals sued under section 1983 could claim qualified immunity when their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 107 The Court held that immunity is a threshold question that should be determined before discovery. Qualified immunity involves immunity from suit rather than a mere defense to liability. 108
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A municipal official may not be found liable under section 1983 unless he or she possesses final authority to establish municipal policy with respect to the action ordered. 109
Certain individuals may be entitled to absolute immunity. These persons include:
| 1. | Members of city councils and boards of supervisors; 110 | ||
| 2. | City managers or county executives; 111 and | ||
| 3. | Certain state employees. 112 |
The Supreme Court has considered the following factors in determining whether a public employer is entitled to absolute, rather than qualified, immunity:
| 1. | The need to ensure that the individual can perform his or her functions without harassment or intimidation; | ||
| 2. | The presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; | ||
| 3. | The individual's insulation from political |
