4.2 Federal Civil Rights Statutes

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

4.2 FEDERAL CIVIL RIGHTS STATUTES

4.201 In General.

The federal statutes prohibiting discrimination in employment are enforced by the Equal Employment Opportunity Commission (EEOC), which also issues regulations based on the statutes and provides assistance to employers and employees who have questions about discrimination in employment. ¹⁹³⁸ Because federal civil rights law in the employment context is a vast and complex topic, this chapter will only provide a brief overview. ¹⁹³⁹

4.202 42 U.S.C. § 1981.

The Civil Rights Act of 1866 (codified at 42 U.S.C. § 1981), prohibits discrimination in making or enforcing contracts, including unwritten employment contracts, on the basis of race, color, or ethnicity. Section 1981 prohibits racial discrimination throughout the employment relationship.

Section 1981 applies only to discrimination based on race, color, or ethnicity to protect identifiable classes of persons who are subject to discrimination solely on account of their ancestry or racial characteristics. ¹⁹⁴⁰

4.203 42 U.S.C. § 1983.

Section 1983 establishes a civil remedy for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws by a person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia."

4.204 Attorney Fees.

Attorney fees are available for a prevailing party in a suit brought under the federal civil rights statutes. ¹⁹⁴¹ The standard for awarding fees under 42 U.S.C. § 1988 is "generally the same as under the fee provisions of the 1964 Civil Rights Act." ¹⁹⁴² The Fourth Circuit follows the "lodestar" method of computing attorney fees (the number of hours worked multiplied by the prevailing hourly rates) using a twelve-factor test. ¹⁹⁴³ There is a strong presumption that the lodestar is sufficient. Factors subsumed in the lodestar calculation cannot be used as grounds for increasing an award above the lodestar, and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. ¹⁹⁴⁴

4.205 Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of 1964 (title VII), ¹⁹⁴⁵ prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin. ¹⁹⁴⁶ "Sex" includes discrimination based on pregnancy, childbirth, or related medical conditions, ¹⁹⁴⁷ and includes discrimination against employees who are gay or transgender. ¹⁹⁴⁸ Title VII applies to employers who have fifteen or more employees for each working day in each of 20 weeks in the current or preceding calendar year. ¹⁹⁴⁹

Title VII provides two ways of proving discrimination in employment: (i) "disparate treatment" or (ii) "disparate impact." ¹⁹⁵⁰ Absent direct evidence of discrimination, a plaintiff may use circumstantial evidence to establish a prima facie case of disparate treatment under a burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green: ¹⁹⁵¹

1. Membership in a protected class;

2. Satisfactory job performance;

3. Adverse employment action; and

4. Different treatment from similarly situated employees outside the protected class. ¹⁹⁵²

If an employee can establish a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions toward the employee. ¹⁹⁵³ If the employer does so, the burden shifts back to the employee to show that the employer's proffered reason is pretextual. ¹⁹⁵⁴

A "disparate impact" case does not require proof of discriminatory motive. Instead, disparate impact claims involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. ¹⁹⁵⁵

Title VII also prohibits harassment or a "hostile work environment" based on a protected characteristic. ¹⁹⁵⁶ A sexualized workplace may be sufficient to maintain a hostile work environment claim, ¹⁹⁵⁷ as are "personal gender-based remarks." ¹⁹⁵⁸ However, title VII does not "attempt to purge the workplace of vulgarity," and "[n]ot all sexual harassment that is directed at an individual because of his or her sex is actionable." ¹⁹⁵⁹

Traditionally, hostile work environment claims have been among the most difficult title VII actions to bring. To prevail, a plaintiff needs to allege and prove that the behavior was (i) unwelcome, (ii) based on a protected characteristic, (iii) "sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere," and (iv) imputable to the employer. ¹⁹⁶⁰

The Fourth Circuit has more recently appeared willing to allow hostile work environment claims to go to a jury by reversing district court grants of summary judgment to employers. ¹⁹⁶¹

An employee may also make a claim for "constructive discharge" if he or she can show that a hostile working environment is so intolerable that "resignation qualified as a fitting response." ¹⁹⁶²

An employer can be liable for the activities of nonemployee third parties in a claim for sexual harassment if the employer takes no steps to protect its employees after having actual or constructive knowledge of the situation. Strict compliance with company policy as to reporting of harassment incidents is not always necessary; knowledge of harassment can be imputed to an employer if a reasonable person, intent on complying with title VII, would have known about the harassment. ¹⁹⁶³

In a hostile work environment case, when the harassing employee is the victim's coworker, the employer is liable only if it was negligent in controlling working conditions. When the harasser is a supervisor, and no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (i) the employer exercised reasonable care to prevent and correct any harassing behavior, and (ii) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. For purposes of this rule, a "supervisor" is someone who is empowered by the employer to take tangible employment actions against the victim. ¹⁹⁶⁴

Title VII also prohibits retaliation against an individual who opposes any practice that is unlawful under the statute or files or participates in a title VII investigation or proceeding. ¹⁹⁶⁵ The elements of a prima facie case of retaliation under title VII are:

1. The plaintiff engaged in a "protected activity";

2. The defendant took an "adverse employment action" against the plaintiff; and

3. A causal connection existed between the protected activity and the adverse employment action. ¹⁹⁶⁶

For the act of an employer to be actionable as retaliation, it must be "materially adverse." ¹⁹⁶⁷ According to the Supreme Court, employment actions are "materially...