1.1 Overview

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

1.1 OVERVIEW

1.101 The Civil Rights Act of 1964.¹ Title VII applies to employers that have fifteen or more employees for each working day in each of 20 weeks in the current or preceding calendar year. ² An "employee" is defined broadly in Title VII as "an individual employed by an employer." ³

Title VII created the Equal Employment Opportunity Commission (EEOC), which initially was given authority only to conciliate claims and had very limited enforcement authority. As originally enacted, Title VII did not provide for jury trials, and its remedies were limited to back pay, front pay, and in some cases, reinstatement.

1.102 The Civil Rights Acts of 1866 and 1870.⁴ These Reconstruction Era statutes prohibiting racial discrimination had been narrowly interpreted by the Supreme Court and limited to incidents involving "state action." ⁵ These holdings were overturned by the Supreme Court after the

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passage of the Civil Rights Act of 1964. ⁶ As a result, claims alleging racial discrimination in the private sector may be brought under Title VII ⁷ or under the Civil Rights Acts of 1866 and 1870. ⁸ These acts provided for jury trials and for compensatory and punitive damages before the 1991 amendment to the Civil Rights Act.

42 U.S.C. § 1981 guarantees the right to make, enforce, modify, perform, and terminate contracts, as well as the right to the full and equal benefit of all laws. Since the passage of the Civil Rights Act of 1991, section 1981 applies to all benefits, privileges, terms, and conditions of a contractual relationship, negating the Supreme Court decision in Patterson v. McLean Credit Union. ⁹ Before 1991, the courts had interpreted section 1981 narrowly, excluding from its scope conduct where retaliation would most likely be found, namely post-contract-formation conduct. In 1991, Congress enacted legislation to supersede that case law and explicitly redefined the scope of section 1981 to include post-contract-formation conduct. Since 1991, the lower courts have uniformly interpreted section 1981 as encompassing retaliation actions. In CBOCS West, Inc. v. Humphries, ¹⁰ the United States Supreme Court ruled that there was no need to depart from this interpretation of section 1981. It is clear Congress intended its 1991 reenactment of section 1981 to cover retaliation.

42 U.S.C. § 1982 guarantees the right to inherit, purchase, hold, and convey property.

Although these statutes are applicable only to claims of race discrimination, the courts include certain groups based on ethnicity and

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ancestry. ¹¹ Whites as well as blacks or other minorities are protected. ¹² Discrimination based on sex or religion ¹³ or alienage ¹⁴ is not covered.

The statute applies only to intentional discrimination (disparate treatment). Disparate impact claims are not allowed. ¹⁵ The burden remains upon the plaintiff to prove discriminatory intent.

The cause of action does not have to be premised on "state action." ¹⁶

In Sallee v. Inova Health Care Services, ¹⁷ the court held that a section 1981 claim could not be made against an individual supervisor.

There are no administrative remedies to exhaust. The remedies provided are very broad, consisting of (i) compensatory and punitive damages (no cap); (ii) equitable relief similar to that available under Title VII; (iii) back pay (not limited to two years); (iv) reinstatement; and (v) promotion with restoration of full rights and benefits. Attorney fees may be awarded pursuant to 42 U.S.C. § 1988. Although discretionary, attorney fees may be awarded to a prevailing defendant when the case is "frivolous, unreasonable, or without foundation." ¹⁸

Because no federal statute of limitations directly applied, courts had previously used the most closely related statute of limitations of the state in which the cause of action arose. However, in Jones v. R.R. Donnelley & Sons

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Co., ¹⁹ the Supreme Court concluded that the catch-all 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, not the state statute of limitations for personal injury that had traditionally been used by courts for section 1981 claims, applied. In Virginia, this had the effect of doubling the statute of limitations for section 1981 claims.

In White v. BFI Waste Services, LLC, ²⁰ 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.

1.103 The Civil Rights Act of 1871.²¹ Enacted to enforce the provisions of the Fourteenth Amendment, the Civil Rights Act of 1871 (section 1983) prohibits the deprivation under color of state law of any rights, privileges, or immunities secured by the federal Constitution or other laws. In general, section 1983 claims require the plaintiff to establish that (i) the defendant acted under color of state law, (ii) the defendant's actions intentionally deprived the plaintiff of a right protected under the Constitution or laws of the United States, and (iii) the defendant's actions were the proximate cause of the deprivation. ²²

Section 1983 does not cover federal or private action, so it does not apply to federal agencies or officers (unless they are acting under "color of state law"). It prohibits discrimination on the basis of sex and religion, as well as race, color, and national origin. Arguably, it also applies to age and disability discrimination. As with sections 1981 and 1982, section 1983 requires that the plaintiff prove intentional discrimination (disparate treatment); disparate impact claims generally are not allowed. ²³ Individual acts of discrimination by

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non-policy-making state or local employees are not subject to section 1983. ²⁴ The plaintiff must prove that the violation of his or her "right to make contracts" was caused by state action. ²⁵

1.104 The Civil Rights Act of 1871—The Ku Klux Klan Act.²⁶ Conspiracies of two or more persons to deprive any person or class of persons of the equal protection of the law are prohibited by this statute. ²⁷ Private conspiracies, if they involve racial discrimination, come within the purview of the statute. Conspiracies involving discrimination because of sex, religion, disability, or age, which are proscribed by the Fourteenth Amendment, are only included in this statute if there is some form of state action. ²⁸ The statute does not include any substantive rights but is limited to remedies. It cannot be used to enforce rights created by statutes that have their own enforcement provisions, such as Title VII.

1.105 The Civil Rights Act of 1991.

A. In General. The Civil Rights Act of 1991 increased the remedies available under Title VII and superseded a number of Supreme Court decisions that Congress perceived as unduly restricting the intended protections of Title VII.

B. New Provisions.

1. Compensatory damages may be awarded to Title VII complainants. However, compensatory damages may not be awarded under both Title VII and the Civil Rights Act of 1991, because double recovery is

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