The Civil Rights Act of 1871
Law bans discrimination enacted under color of state law.
The Civil Rights Act of 1871 is found in Title 42, section 1983 of the United States Code and so is commonly referred to as section 1983. It provides that anyone who, under color of state or local law, causes a person to be deprived of rights guaranteed by the U.S. Constitution, or federal law, is liable to that person.
The Basis of a Lawsuit
Section 1983 claims are based on the denial of a right granted by the U.S. Constitution or a federal statute. They can be based on the equal protection clause of the Fourteenth Amendment to the Constitution, which creates a constitutional right to be free from sex discrimination. These equal protection claims are based on the theory that a workplace that is hostile and abusive to women, but supportive of men, denies women the equal protection of the law. Section 1983 claims also can be based on violations of Title VII, a federal statute, under which sexual harassment is a form of sex discrimination.
The denial of a right must be carried out by a person who is acting under color of state law. A person is acting under color of state law when he or she uses power that has been given him or her by the state or local government to accomplish his or her goal. If, for example, the director of the city health department has a department employee fired because she refused to have sex with him, then he is acting under color of state law and is abusing the authority that he has been granted.
Most section 1983 lawsuits are brought by employees of local governments against their employers and supervisors. However, federal government employees cannot bring suit under section 1983 because Title VII is their sole remedy. Employees of private companies generally cannot bring claims against those companies under section 1983 because that government action must be involved.
There are severe limitations on who can be sued under this statute. Cities can be sued but are liable only if it is shown that the harassment was committed pursuant to an official policy or custom of the city. City officials can be sued, but they may be protected by the doctrine of qualified immunity.
The states are immune from suit under section 1983, as are branches of the state government and state officers acting in their official capacities. This immunity extends to many entities that are considered part of state government, including political subdivisions of the state, state hospitals, and state colleges and universities.
State officials cannot be sued in their official capacities because this would be the same as suing the state, which is immune from suit. State officials can be sued as individuals, though, and will be liable under section 1983 if it is shown that they deprived a person of a federal or constitutional right while acting under color of state law.
Section 1983 contains no administrative procedures that must be satisfied before suit can be brought in court. A claim that alleges only section 1983 violations can be brought right to federal district court.
In deciding whether a claim is timely, the courts usually apply the statute of limitations for personal injuries in the state where the claim arose. A jury decides section 1983 claims.
Compensatory and punitive damages can be awarded to the successful plaintiff, but punitive damages cannot be awarded against cities. Injunctive relief and attorneys fees may also be awarded.
Proving a Section 1983 Case
A person bringing a sexual harassment claim based on section 1983 must show (1) that the harassment took place under color of state law and (2) that the harassment caused deprivation of constitutional or statutory rights. These concepts are discussed in the following case studies.
Case Study 1: Section 1983
Priscilla worked for a city police department. She claimed that her sergeant, Doyle, sexually harassed her, by breathing heavily down her neck and by talking to her about their personal lives in a seductive tone. Priscilla also claimed that her fellow officers were permitted to post lewd pictures on the walls, that they put pornographic pictures on her desk, and that they addressed her in sexist terms.
Priscilla brought a case under Title VII and section 1983. She sued several parties, including the city, her commanding officer, and her sergeant. At trial, she testified that, because of the way that the squad room was set up, both the commanding officer and the sergeant could hear the sexist language and could see the pornographic pictures.
What did Priscilla need to show to bring a successful section 1983 claim for denial of equal protection? Priscilla needed to prove that the defendants, acting under color of state or local law, intentionally discriminated against her by treating her differently from male officers because of her gender.
How could Priscilla prove that her supervisors were liable? Under section 1983, supervisors are not automatically liable for the bad acts of their subordinates. Rather, it must be shown that they actively played a role in the discrimination. This can be done by showing that the supervisor himself was the harasser or by showing that he knew of the harassment but condoned it.
In this case, Priscilla's testimony showed that Sergeant Doyle had personally harassed her by creating a hostile work environment. Trial testimony also revealed that Doyle had condoned harassment by male officers. The court found that name calling and use of outrageous sexual terms was so pervasive that anyone in the squad room would have noticed it. And, the pornographic pictures were in plain view, so they could not have been overlooked. The court said that, in these circumstances, Doyle's failure to investigate and remedy the problem lent implicit encouragement to male officers.
These same facts suggested that the commanding officer was liable under section 1983. The court found that he, too, was aware of and had condoned sexual harassment in the squad room. And, it found that he had a "boys will be boys" attitude and had told one female officer that she had to expect harassment if she worked with men.
Were the sergeant and the commanding officer entitled to qualified immunity? Both men argued that they were entitled to qualified immunity and so could not be personally liable for official misconduct. The court rejected this argument. The purpose of granting qualified immunity is to protect public officials in situations where they neither knew or could have been expected to know the proper legal standard. So, their actions are protected by qualified immunity only if they do not know that their offensive conduct violated established constitutional or statutory rights. The court ruled that the sergeant and the commissioner should have known that harassment of women in the workplace violated their rights, and so they were not entitled to immunity.
Was the city liable under section 1983? No. A city cannot be liable under section 1983 simply because of city workers' misconduct. Rather, it must be shown that the city itself supported the violation of a person's rights. To meet this burden, Priscilla would need to show that it was the policy or custom of the city to discriminate against female officers or to fail to take appropriate action when they complained of harassment.
To establish a government custom or policy, Priscilla would have had to show action by a decision-maker with final authority to establish policy. Or, she would have had to show that harassment of female officers was an established and permanent practice of state officials.
In this case, the police commissioner was the senior policymaker within the department. So, his actions were examined to determine departmental policy. It was found that, at the commissioner's direction, police officers had been given information explaining the prohibition against sexual harassment, and they attended department training programs. They regularly received bulletins about the department's antidiscrimination program. There was no evidence that the commissioner was aware that Priscilla had been sexually harassed, so it could not be said that he had condoned the sergeant's conduct. Nor was there any evidence that the commissioner had delegated authority in such matter to the sergeant. For these reasons, the city was not liable under section 1983.
Case Study 2: Section 1983
Hortencia was hired by the city fire department as a dispatcher. For the three and one-half years that she worked for the city, she was constantly subjected to sexual harassment. On her very first night at work, she took a short nap and awoke to find a senior dispatcher's hand pressed against her crotch. This same person, who later became her supervisor, tried to engage Hortencia in conversations about sex, rubbed his pelvis against her rear, and forced her to leave the bathroom door open when she used it. The other dispatchers made her the target of their obscene comments, forced her to listen to their "filthy" descriptions of their sexual fantasies involving her, and harassed her fellow female dispatchers as well.
Trial testimony also showed that Hortencia constantly complained, spread rumors about her coworkers, made claims (which were untrue) that they violently and physically abused her, brought false criminal charges against one of her supervisors, and often had "temperamental outbursts of anger."
Did Hortencia have a section 1983 claim? Yes. She could bring suit claiming that sexual harassment by her employer, a city agency, was sex discrimination, which violated her rights under the equal protection clause of the Fourteenth Amendment.
Did Hortencia have a Title VII claim? Yes. The facts also revealed that she was subjected to a hostile work environment.
Who was liable to Hortencia on the section 1983 claim? The dispatcher and his colleagues were liable because they personally participated in the sexual harassment. In addition, the fire department could be liable because management officials were aware of, condoned, and participated in the harassment. And, Hortencia showed that the department did not have a formal written policy forbidding sexual harassment. These factors lead the court to find that sexual harassment was an ongoing and accepted practice of the department, for which the city itself might also be liable.
Who won this case? The fire department was able to prove that Hortencia was not fired because of her gender or because she filed a charge with the EEOC but because she was insubordinate to a superior officer and "obstreperous." So, she lost on her Title VII claim, despite proof that she had been sexually harassed.
But, she won her section 1983 claim because the sexual harassment that she suffered was sex discrimination that violated the equal protection clause. So, she was entitled to the damages available under that statute.
Case Study 1: Unions and Title VII
Diane was a journeyman plumber working as a pipefitter. She asked the union's business manager to transfer her to another job because of harassment by her shop steward, foreman, and coworkers, who grabbed at her, told dirty jokes, and told her to take such treatment "like a man." They also asked her to act in a sexually explicit home video that they planned to film and made comments about her chest size.
Diane was transferred to another job site. There, the foreman hired a man who constantly told dirty jokes and tried to get Diane into his van. Diane transferred to yet another job site. Male coworkers told dirty jokes, made comments about her body, and questioned Diane about her sex life. They put roaches in her hair and pants and sent her into a cellar, where they knew there was a decapitated cat.
Diane went on to hold a series of union jobs, was laid off, and finally decided to work for her father, who ran a non-union shop. She was expelled from the union a few months later for nonpayment of dues.
Diane filed a charge with the EEOC claiming, among other things, that the union allowed her to suffer from sexual harassment at the hands of its agents and members.
Does Title VII prohibit such conduct by a union? Yes. Under Title VII, it is unlawful for a union to discriminate against any member because of sex. The courts have ruled that unions have an obligation to help eradicate sex discrimination in employment.
Is the union responsible for the conduct of the shop steward? its members? nonmembers who sexually harass a member on the job site? The court said that the union might be directly responsible for the acts of union representatives such as the shop steward if it was shown that they were designated to act as agents of the union by, for example, being responsible for receiving complaints at the job site. The court also ruled that the union could be liable for the acts of its members if it was aware of and condoned sexual harassment on their part. The union could not, however, be held liable for the acts of nonmembers, who were beyond its control.
Did Diane have a claim based on her expulsion from the union? Maybe. The court said that if she could prove that the union condoned sexual harassment by its members, this might equate to a constructive expulsion from the union because it was harmful for Diane to work in a union shop.
Case Study 2: Unions and Title VII
Adrienne was a carpenter and one of only two female members of the carpenters union, Local 600. She also took part in a training program run by the local and the Joint Apprenticeship and Training Trust Fund (JATTF). The union had printed and distributed calendars with pictures of nude or partly nude women with their breasts, buttocks, and pubic areas exposed. Some of the poses were intended to suggest sexually submissive behavior. The union's name, address, and logo appeared on each calendar. Although the calendars were not posted at the union hall, they were made available to union members and to employers by the union's business agents.
Calendars were in plain view at all the job sites where Adrienne worked. She said that the posters embarrassed and humiliated her and made it hard for her to talk with her supervisors. She complained about the posters to a shop steward, who told her that she was taking it "too seriously." Adrienne did not file a grievance with the union because the men to whom she would have complained were the same ones who were putting up the calendars. She did not lodge a complaint with the JATTF. Adrienne did, though, file a Title VII claim against Local 600, claiming that, by sponsoring the calendars, the union created hostile and abusive work environments.
Did Adrienne have a Title VII claim against the union? Yes. The court found that she suffered intentional discrimination because of her sex. It ruled that the intent to discriminate on the basis of sex is "implicit" in cases involving pornographic materials. The pornographic pictures sexualized the workplace and had a "cumulative and corrosive" effect on the work environment. Although Adrienne's male coworkers might have found the pictures harmless, they clearly would have been offensive to any reasonable woman, injured her dignity, and created a barrier to her success in the workplace. Adrienne's predicament was heightened because she was one of only two women in the union.
Could the union defend its actions by arguing that sexually oriented material can readily be purchased at any newsstand? No. The fact that pornography may be readily available in society does not mean that it is appropriate or acceptable in the workplace. The "girlie" calendars made clear to women union members that the union regarded them only as sex objects and not as skilled workers. A goal of Title VII is to prevent the perpetuation of stereotypes that hinder women's progress. This goal could be achieved, the court said, only if women were allowed to work without being harassed.
Is Local 600 liable for sexual harassment? Yes. The local was responsible for creating offensive work environments because its business agents bought and distributed the posters. And, the local knew that, once purchased, the calendars were widely posted at union job sites.
Was JATTF also liable for sexual harassment? No. The court found no evidence that JATTF acted with the local to purchase or distribute the calendars. And, only the local's logo appeared on the calendars. For this reason, the only way that JATTF could have been liable for sexual harassment by the local union was if it was considered an integrated enterprise with the local.
Were the local and JATTF an integrated enterprise? No. Four factors indicate that an integrated enterprise exists. These are (1) interrelated operations such as common offices, bank accounts, and equipment; (2) common management; (3) centralized control of labor relations; and (4) common ownership and control. In this case, although JATTF and the local shared the same address, they did not share offices. They did not share a common management, nor was there common control of labor relations and employees. They did not share common financial controls, in fact, this would have violated the federal labor laws that require that trust funds like JATTF be financially independent. The fact that one person served as an officer of the local and as a trustee of JATTF was not enough to create an integrated enterprise. So, JATTF was not liable for sexual harassment by Local 600.
Liability of Parent Company
Is the foreign parent company of a large U.S. corporation liable for the company's sexual harassment? Not necessarily, said a federal court judge. The plaintiffs brought a massive class action against the U.S. company. They contended that they had been the victims of an "organized pattern" of sexual harassment, of which the parent company was well aware. They argued that the parent also should have been liable either because it negligently failed to prevent the harassment or because it failed to protect the employees by investigating their claims.
The court held that the two companies were not so interrelated that they could be considered one company for purposes of deciding responsibility for harassment. Statements in the company handbook that described the companies as interrelated did not, as a matter of law, mean that they could be considered one employer for liability purposes. In these circumstances, the parent's knowledge of the harassment did not create a duty to remedy it. The court also dismissed the theory that the parent had taken on a "duty of care" for the plaintiffs, noting that the parent had not begun its investigation until after the plaintiffs had left the company.
SEXUAL HARASSMENT CLAIMS STEP-BY-STEP by Dale Callender. Copyright 1998 by Barron's Educational Series, Inc. Published by arrangement with Barron's Educational Series, Inc.
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