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LABOR & EMPLOYMENT LAW — 5/09/08

Section 1981 creates no private right of action against municipalities

Clarifying the circumstances under which employees may bring race bias claims against municipalities, and adding to a circuit split on the matter, the Sixth Circuit Court of Appeals held that the Civil Rights Act of 1991, which established equal rights for parties suing private and state defendants, left intact the US Supreme Court's holding in Jett v Dallas Indep Sch Dist (50 EPD ¶39,070) that Section 1981 does not create a private right of action against municipalities engaging in race-based employment discrimination. Therefore, a Caucasian police officer who sued the city of Memphis asserting reverse discrimination had to rely on Section 1983 as his express remedy to enforce his rights under Section 1981. However, his claims alleging that his African-American supervisor, motivated by racial animus, illegally transferred him to undesirable wards, accused him of incorrectly drafting accident reports and eventually suspended him failed because he could not establish a "municipal policy or custom" that was discriminatory under Section 1983. (Arendale v City of Memphis, 6thCir, 91 EPD ¶43,150)

Joining the Fourth, Tenth and Eleventh Circuits, the Sixth Circuit held that the Civil Rights Act of 1991, which amended Section 1981(c) to provide that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law," was not meant to abrogate the High Court's decision in Jett and afford employees with a cause of action against municipalities. Even though Section 1981(c) amended the Act to "establish[] equal rights for parties suing private and state defendants," explained the court, it "does not, on its own, establish a private cause of action." The Sixth Circuit continued: "As the Supreme Court explained in Jett, a dichotomy exists between rights and remedies. Just because a statute includes rights-creating language does not mean that it also provides a private cause of action to persons deprived of those rights, so long as Congress has also provided an effective means of vindicating the right elsewhere in federal law." Section 1983, enacted five years after Section 1981, provides that cause of action to vindicate those rights. The lone circuit split is the Ninth Circuit, which in Federation of African Am Contractors v Oakland (96 F.3d 1204) held that Section 1981 does provide a right of action against municipal employers. However, more recently, a different panel of the Ninth Circuit in Pittman v Oregon (90 EPD ¶43,035) held that Section 1981 does not provide a cause of action against municipalities.

Analyzing the officer's claims under Section 1983, the Sixth Circuit held that he failed to identify any municipal policy or custom that facilitated discrimination. Municipalities cannot be sued under Section 1983 for discrimination inflicted solely by its employees or agents, except where the execution of a government policy or custom inflicts the injury. Here, the officer failed to show that the city consciously failed to act when confronted with evidence of the supervisor's alleged egregious unconstitutional conduct. In addition, while municipalities can be held liable under Section 1983 for an allegedly unconstitutional decision made by an official with "final policy making authority" in that area of the city's business, suggesting that the city was liable for the supervisor's rejection of the officer’s final appeal of his suspension, the officer failed to make out a prima facie case of discrimination because there was no evidence presented that he was treated differently than similarly situated non-Caucasian employees. That the supervisor failed to suspend any African-American officers was insufficient to assert reverse discrimination, held the Sixth Circuit.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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