Municipal corporations: proving improper motives of multiple member policymakers.

Summary

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Courts differ over how many members of a municipal corporate board must intend discrimination for a plaintiff to sue under 42 U.S.C. section 1983. The US Supreme Court could have resolved the differences, but it refused to hear an appeal of a relevant US First Circuit Court of Appeals case, Scott-Harris v. City of Fall River. Defense counsel for municipalities should rely on state statute, identify background for individual board member decisions, and ensure the judge clearly instructs the jury on what constitutes municipality discrimination.

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Municipal corporations: proving improper motives of multiple member policymakers.

For liability to attach for discriminatory acts, plaintiffs should be required to prove that a majority board or council members acted with bad intentions

MUNICIPAL corporations and other governmental entities are among the largest employers in the United States. Public employees, like their private counterparts, may bring claims against municipal corporation employers under Title VII of the Civil Rights Act of 1964 (42 U.S.C. [sections] 2000e et seq.), the Equal Pay Act of 1963 (29 U.S.C. [sections] 206(d)), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. [subsections] 621-634), the Americans with Disabilities Act (ADA) (42 U.S.C. [subsections] 12101-12213), as well as various state employment discrimination statutes. Federal discrimination statutes, which provide a comprehensive remedial scheme, may be the exclusive remedies for discrimination claims.(1)

As a practical matter, most discrimination claims begin with the employee complaining about some type of improper discrimination. The employee then becomes a plaintiff, suing the municipal employer and claiming a violation of the specific federal discrimination statute. As a precaution, the plaintiff also may allege that the adverse employment action was taken in retaliation for speaking out about the alleged discrimination. This alleged retaliation might constitute a violation of the First Amendment.(2) Much the same as a 14th Amendment equal protection or due process violation, the First Amendment violation is not pre-empted by Title VII or any othe...

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