Chapter 22 - § 22.2 • federal civil rights statutes

§ 22.2 • federal civil rights statutes

The federal civil rights statutes, 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986, enacted by Congress during Reconstruction, provide a powerful mechanism for employees to enforce their federal civil rights against public employers. Using these statutes, employees have the opportunity to sue both public entities and individual government officials for alleged violations of the U.S. Constitution and federal law. In turn, however, public employers and especially individual government officials have numerous potential affirmative defenses available to them to respond to such lawsuits. This section explores the causes of action provided by the four main federal civil rights statutes, as well as the available defenses for public employers and individual government officials.

§ 22.2.1—42 U.S.C. § 1983

To begin, 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Section 1983 does not confer any substantive rights, but instead is solely a procedural mechanism for the enforcement of rights created by the U.S. Constitution or federal law. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979); Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir. 1988). Therefore, an individual cannot claim a violation of § 1983 because "§ 1983 by itself does not protect anyone against anything." Chapman, 441 U.S. at 617. For that reason, to state a valid cause of action under § 1983, one must allege a deprivation of a federal right by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The substantive rights that may form the basis of a cause of action brought pursuant to § 1983 include federal constitutional, statutory, and regulatory rights. Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980); Wright v. City of Roanoke Redevelop. & Hous. Auth., 479 U.S. 418, 423 (1987). However, § 1983 does not cover rights established or recognized exclusively under state law. Harrill v. Blount County, 55 F.3d 1123, 1125-26 (6th Cir. 1995); Flynn v. Sandahl, 58 F.3d 283, 290 (7th Cir. 1995). Accordingly, the Colorado Constitution and Colorado law cannot form the necessary predicate of a § 1983 action.

Parties to a § 1983 Cause of Action

Section 1983 actions can be brought either by citizens or noncitizens of the United States. Cf. Graham v. Richardson, 403 U.S. 365, 371 (1971). Proper plaintiffs include individuals, corporations, unions, nonprofit organizations, and associations. Allee v. Medrano, 416 U.S. 802, 819 n.13 (1974) (labor unions have standing to sue under § 1983); Neighborhood Action Coalition v. City of Canton, 882 F.2d 1012, 1016-17 (6th Cir. 1989) (nonprofit associations have standing to sue under § 1983); Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 13-15 (1st Cir. 1979) (developers have standing to sue under § 1983), vacated on other grounds, 454 U.S. 807 (1981).

Section 1983 authorizes suits against "every person" who acts under color of state law. To the extent that private persons can become defendants to § 1983 claims, courts look to the state-action requirement of the Fourteenth Amendment to the U.S. Constitution to determine if the private person was acting under color of state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928-33 (1982); Cobb v. Saturn Land Co., Inc., 966 F.2d 1334, 1336-37 (10th Cir. 1992). If the conduct allegedly causing the deprivation of a federal right arising under the Constitution or law is "fairly attributable" to the state, the state-action requirement is met and the § 1983 action can be brought against the private individual. Lugar, 457 U.S. at 937; Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 190-91 (1988).

Federal Officials

Section 1983 actions cannot be brought against federal officials for actions under color of federal law, although such actions can, in certain circumstances, be brought against federal officials for conduct done under color of state law. Wheeldin v. Wheeler, 373 U.S. 647, 650 n. 2 (1963). However, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court authorized damage actions directly against individual federal officials for alleged infringement of constitutional rights. 403 U.S. 388, 396-97 (1971). A Bivens action, not a § 1983 claim, is the appropriate mechanism for enforcing any alleged constitutional violations by a federal official. See generally Lawmaster v. Ward, 125 F.3d 1341 (10th Cir. 1997); United States v. Furman, 112 F.3d 435 (10th Cir. 1997); Mick v. Brewer, 76 F.3d 1127 (10th Cir. 1996). Importantly, however, all of the defenses and immunities discussed below for § 1983 actions also apply to Bivens claims. See Butz v. Economou, 438 U.S. 478, 504 (1978); Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997).

States and State Agencies

Bringing a § 1983 action against the State of Colorado or any state official in his or her official capacity is limited by the Eleventh Amendment of the United States Constitution. If a state has not waived its Eleventh Amendment immunity, or if Congress has not overridden the Eleventh Amendment immunity pursuant to a valid exercise of its constitutional authority, a state cannot be sued in its own name, regardless of the relief sought. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63 (1996); Kentucky v. Graham, 473 U.S. 159, 167 (1985); Quern v. Jordan, 440 U.S. 332, 344 (1979); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). In Quern, the Supreme Court concluded that in enacting § 1983, Congress did not intend to abrogate the states' Eleventh Amendment immunity. 440 U.S. at 344. Subsequently, in Will v. Michigan Dep't of State Police, the Court held the states were not a "person" within the meaning of § 1983. 491 U.S. 58, 71 (1989). In combination, Quern and Will mean that states and state agencies cannot be sued under § 1983 in either federal or state court for damages. Moreover, state officials cannot be sued in their official capacity in an action for monetary relief under § 1983, as such an action would violate the prohibition of the Eleventh Amendment. A suit against an official in his or her official capacity is tantamount to a suit against the entity itself. Graham, 473 U.S. at 166. Governmental officials who are sued in their individual capacities for their actions taken under color of state or federal law, however, are deemed private individuals for purposes of monetary damages suits. Hafer v. Melo, 502 U.S. 21, 25-28 (1991). The contours of Eleventh Amendment immunity are discussed in more detail below. Although not an employment case, United States v. Georgia, 546 U.S. 151, 159 (2006), confirms that Title II of the ADA validly abrogates a state's Eleventh Amendment immunity insofar as it creates a private cause of action for damages against the states for conduct that actually violates the Fourteenth Amendment. See also Tennessee v. Lane, 541 U.S. 509 (2004). Contrast United States v. Georgia with Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363-364 (2001).

Continuing the analysis of Seminole Tribe of Florida v. Florida, 517 U.S. 44, the Supreme Court decided a trio of cases: Kimel v. Florida Board of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). In those cases, the Supreme Court reinforced a state's Eleventh Amendment immunity vis-à-vis the power of Congress to enact legislation under the commerce clause, Article I of the U.S. Constitution, and § 5 of the Fourteenth Amendment. The Court in Kimel held that the states are immune from claims for damages under the Age Discrimination and Employment Act (ADEA).

The Supreme Court continues to address the sufficiency of legislation enacted to waive or abrogate states' immunity from suit. For example, governmental entities that accept federal funding must also comply with the prohibitions against disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. The Rehabilitation Act, passed pursuant to Article I of the U.S. Constitution Spending Clause, has been held to constitute a valid waiver of a state's Eleventh Amendment immunity. Robinson v. Kansas, 295 F.3d 1183, 1188-89 (10th Cir. 2002). "Congress may, in the exercise of its spending power, condition its grant of funds to the states upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686-87 (1999) (citing South Dakota v. Dole, 483 U.S. 203, 207 (1987)).

Counties and Municipalities

Local governments in Colorado may be sued under § 1983 for constitutional deprivations resulting from a governmental custom, policy statement, ordinance, regulation, or decision officially adopted and promulgated by the public entity. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In Monell, the Supreme Court explicitly rejected the notion of governmental entity liability based on either a respondeat superior or vicarious liability theory. Id. at 694. Instead, "[t]o establish municipal liability, a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct...

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