Section 1981 of the Civil Rights Act of 1866 Flashcards
Why are Section 1981 claims unique and what MUST I have to bring a Section 1981 claim?
- CONTRACT CLAIM (*At Will employee relationship is a contract per 5thCir)
- Protects Race or Ethnicity
- Protects not just employees but INDEPENDENT CONTRACTORS
- Damages - Compensatory and Punative (with NO DAMAGE CAP)
- Applies to Small Employers IF MORE OR LESS THAN 15 EMPLOYEES In additional to Title VII, file a
Section 1981 Claim (2 types available) (4 YEAR LIMIT FOR DAMAGES!!!!) (No administrative remedies, no damage cap, Cannot bring claim against federal employer, and against public employer - only if Section 1983 is INVOKED as the mechanism) - 1981 Claim covers “only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process” including “making performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship”
-Intentional Discrimination (NO DISPARATE IMPACT CLAIMS)
-Retaliation
-Fadeyi v. Planned Parenthood (5th Cir. 1998) - Court held that Texas at-will employment relationship is a contract for purposes of Section 1981
For a Section 1981 Claim:
Who does it apply to? and Who does it not apply to?
Time for Filing?
Purpose of the Act?
How many claims and what are they called?
Defenses?
Damages? Distinguishable from Title VII?
How many types of claims under Section 1981? (2 types)
Intentional Discrimination under Section 1981
Retaliation under Section 1981
DEADLINE TO FILE:
***NO REQUIREMENT FOR EXHAUSTING ADMINSTRATIVE REMEDIES
Federal Court – 4 years (at time of filing, Court will only consider discriminatory claims 4 years prior to that date)
NOTE: Amended by the Civil Rights act of 1991 (allowed for broader definition of contract to include the relationship after contract has formed)
Defenses - Think same as Title VII
Damages:
Backpay
Compensatory
Punitive
Pre-judgement Interest
Injunctive Relief
**NO DAMAGE CAP(Title VII has cap)
**NO LIMITATION OF 2 YEARS (Limit will be 4 years)
Who does it apply to?
Applies to what Plaintiff’s?
- Independent Contractors
- Employees (Includes At-will employee because “at-will” is considered a contractual relationship for purposes of Sect. 1981 – 5th Cir.)
Applies to which Employers?
- Private Employers
- Labor Organizations
- Discrimination by Public Entity/State Actors (if Section 1983 invoked)*See note below
Who does is NOT Apply to?
- Discrimination by the Federal Government
- Discrimination by State or local government employers (-Section 1981 does not supply an independent cause of action against public entities, plaintiffs MUST ASSERT a claim under Section 1983 AND THEN THEY CAN MOVE FORWARD WITH A CLAIM)
Purpose?
Purpose: A federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. Section 1981 specifically grants all individuals within the US jurisdiction the same rights and benefits as “enjoyed by white citizens” regarding contractual relationships.
What is the deadline to file a Section 1981 Claim (Section 1981 of the Civil Rights Act of 1866)?
DEADLINE TO FILE:
***NO REQUIREMENT FOR EXHAUSTING ADMINSTRATIVE REMEDIES
Federal Court – 4 years (at time of filing, Court will only consider discriminatory claims 4 years prior to that date)
NOTE: Amended by the Civil Rights act of 1991 (allowed for broader definition of contract to include the relationship after contract has formed)
How many Claims exist under Section 1981 of the Civil Rights Act of 1866?
How many Claims exist under Section 1981 of the Civil Rights Act of 1866?
Discrimination Claim (No Disparate Impact)
Retaliation Claim
What employers and persons are covered under Section 1981 of the Civil Rights Act of 1866?
IDENTIFY who it is APPLICABLE to
Applies to what Plaintiff’s?
- Independent Contractors
- Employees (Includes At-will employee because “at-will” is considered a contractual relationship for purposes of Sect. 1981 – 5th Cir.)
Applies to which Employers?
- Private Employers
- Labor Organizations
- Discrimination by Public Entity/State Actors (if Section 1983 invoked)*See note below
Who does is NOT Apply to?
- Discrimination by the Federal Government
- Discrimination by State or local government employers (-Section 1981 does not supply an independent cause of action against public entities, plaintiffs MUST ASSERT a claim under Section 1983 AND THEN THEY CAN MOVE FORWARD WITH A CLAIM)
What is the purpose of Section 1981 of the Civil Rights Act of 1866?
Purpose: A federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. Section 1981 specifically grants all individuals within the US jurisdiction the same rights and benefits as “enjoyed by white citizens” regarding contractual relationships.
Threshold issue: If individual sues a public entity under Section 1981 of the Civil Rights ct of 1866, what must be done?
Did she sue a public entity and if so, what else must be done?
-Section 1981 does not supply an independent cause of action against public entities, plaintiffs MUST ASSERT a claim under Section 1983
(Maybe a 11th Amendment immunity issue)
Was a right violated that has been enumerated under Section 1981?
Rights under Section 1981
Conduct violates a right enumerated in 1981(a)
- Making and performing of a Contract (**For purposes of Sect. 1981 – At Will is a Contract)
- Modification and Termination of a Contract
- Benefits, Privileges, Terms and Conditions of the Contractual Relationship
General Info: 1981 Claim through the Civil Rights Act of 1991 covers “only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process” including “making performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship”
To have a claim under Section 1981 then it is a claim of discrimination or retaliation against someone based on that person’s ________?
-Race (or Ethnicity)
What is the analysis for proving an intentional discrimination claim under Section 1981 of the Civil Rights Act of 1866? (What is never part of the claim)
Intentional Discrimination under Section 1981
Plaintiff must prove PRIMA FACIE Case (Preponderance of the Evidence):
- Belong to Class of Persons (Based on Race)
- Defendant has to Intentionally Discrimination on Basis of Rights
- Conduct violates a right enumerated in 1981(a) - Making and performing of a Contract (**For purposes of Sect. 1981 – At Will is a Contract)
- Modification and Termination of a Contract
- Benefits, Privileges, Terms and Conditions of the Contractual Relationship
SAME McDonnell Douglas Burden Shifting Analysis as Title VII
Defendant must then show evidence of LEGITIMATE, NONDISCRIMINATORY REASON
If shown by Defendant, Plaintiff must show PRETEXT
- Replaced by someone outside of her protected class (Race or Ethnicity) OR
- Was treated less favorably than other similarly situated individuals outside her protected class (under 1981 – MUST be Race or Ethnicity)
Plaintiff can PROVE INTENT by evidence of Defendant’s:
- Making Performance Modification;
- Termination of Contract; OR
- Affecting Privileges, Terms and Conditions of a Transactional Relationship
NEVER PART OF CLAIMS - DISPARATE IMPACT
How do you prove a retaliation claim under Section 1981 of the Civil Rights Act of 1866?
Retaliation Claim under Section 1981
Prima Facie Case:
- Claimant engaged in a PROTECTED ACTIVITY
- Employer carried out an ADVERSE EMPLOYMENT ACTION
- CAUSAL NEXUS exists between Claimant’s protected activity and Employer’s adverse action (BUT-FOR CAUSATION – Requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer)
Element 1 - Protected Activity
-filing an EEOC complaint is protected activity
Element 2 – Adverse Employment Action
Constructive Discharge TEST: Must prove that `working conditions would have been so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.’
5th Circuit: In determining whether a reasonable employee would feel compelled to resign, we have considered the relevancy of the following events:
(1) demotion;
(2) reduction in salary;
(3) reduction in job responsibilities;
(4) reassignment to menial or degrading work;
(5) reassignment to work under a younger supervisor;
(6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or
(7) offers of early retirement [or continued employment on terms less favorable than the employee’s former status]
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.2001)
(List other adverse employment actions)
Element 3 – Causal Nexus – “BUT-FOR” CAUSATION for Retaliation
What is the constructive discharge test under the fifth circuit? (7 factors could count as constructive discharge and therefore an adverse employment action)
Constructive Discharge TEST: Must prove that `working conditions would have been so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.’
5th Circuit: In determining whether a reasonable employee would feel compelled to resign, we have considered the relevancy of the following events:
(1) demotion;
(2) reduction in salary;
(3) reduction in job responsibilities;
(4) reassignment to menial or degrading work;
(5) reassignment to work under a younger supervisor;
(6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or
(7) offers of early retirement [or continued employment on terms less favorable than the employee’s former status]
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.2001)
What are damages under Section 1981 of the Civil Rights Act of 1866?
DAMAGES
Backpay
Compensatory,
Punitive,
Pre-judgement Interest,
Injunctive Relief
**NO DAMAGE CAP(Title VII has cap)
**NO LIMITATION OF 2 YEARS (Limit will be 4 years)
What are defenses of Section 1981 of the Civil Rights Act of 1866?
Same as for Title VII similar claims
