Discrimination Lawsuits and Public Sector Employees

by Lorrie Ray, Esq., SPHR, Director of Membership Development

Bulletin,  Public Employers

Public SectorIn 1866, Congress passed the Civil Rights Act of 1866 (42 U.S.C. § 1981), which is commonly referred to as “Section 1981.” This law provides remedies for race discrimination in the making and enforcing of contracts between federal or state government (or any political subdivision) and a private citizen or entity. Every federal circuit except for the Ninth Circuit Court of Appeals has determined that Section 1981 doesn’t provide a remedy for race discrimination by public employers in the employment relationship, but only when government is accused of discriminating against the other party to the contract on the basis of race. Other circuits have not been shy about pointing out the Ninth Circuit’s error. The Supreme Court apparently agrees with the majority of circuits and refused to hear a Seventh Circuit case arguing that section 1981 could be used by an employee. (Campbell v. Forest Preserve Dist. of Cook Cnty., Ill., U.S., No. 13-334, cert. denied 1/12/15).

In 1871, Congress passed the Civil Rights Act of 1871 (42 U.S.C. § 1983), commonly referred to as “Section 1983.” Section 1983 protects employees from race discrimination—and only race discrimination—by providing a remedy for actions by public officials acting “under color of state law” or in their official capacity. It applies to employees of state government and smaller political subdivisions, such as municipalities. Many court cases have defined “race” and have limited it to those in a group that share common traits and ancestry who are historically subject to discrimination. For example, Middle Eastern ancestry may constitute a “race” for purposes of Section 1983.

In 1964, Congress passed the Civil Rights Act of 1964, which, as amended, is now called the “Civil Rights Act of 1991.” Monetary awards under this law are more limited, but it protects many classes besides race, including religion, national origin, gender, color, and creed. This is the law most employers and employees are familiar with, and the law that dictates an administrative process through the Equal Employment Opportunity Commission for those employers with 15 or more employees.

If you have questions about any of these laws, please contact MSEC. We can help.

About the author

About the author
Lorrie Ray, Esq., SPHR, Director of Membership Development

Lorrie's experience in the variety of problems typically facing employers includes resolution of civil rights cases before state and federal administrative agencies, federal wage and hour disputes and state law claims, employment discrimination, wrongful discharge and health and safety laws. She is also a frequent lecturer on employment law matters. Previous to working at Employers Council, Lorrie worked at the U.S. Department of Labor Office of the Solicitor for a little over three years, prosecuting wage and hour cases for the Department.