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Employment Discrimination Law (Federal): Reconstruction Era Civil Rights Acts: 42 U.S.C. §§ 1981, 1983, 1985, and 1986.

In my ongoing effort to chronicle in one place (this blog) the major employment laws affecting employers in Virginia and the District of Columbia, here is an overview of the Reconstruction Era Civil Rights Acts as applied to modern-day employment discrimination lawsuits.

What are the Reconstruction-Era Civil Rights Acts?

Sections 1981, 1983, 1985(3) and 1986 of Title 42 were enacted post-slavery to advance the goals of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. In modern-day employment discrimination lawsuits, employees often invoke these Reconstruction Era Civil Rights Acts to supplement or avoid jurisdictional and procedural requirements in Title VII and other employment discrimination statutes or to increase potential damages.

By way of summary:

Section 1981 prohibits intentional race discrimination in contracts (including "at-will" employment).

Section 1983 provides a remedy for violation of federally protected rights where state action is involved.

Sections 1985 and 1986 apply to conspiracies to deprive persons of equal rights and privileges.

What is Section 1981, and under what circumstances can it be raised in an employment discrimination case?

42 USCS § 1981 (Section 1981), as amended by the Civil Rights Act of 1991, prohibits intentional race discrimination in contracts (including "at-will" employment). Section 1981 applies to most private individuals and entities and to actions under color of State law. The U.S. Supreme Court has held, however, that Section 1981 normally cannot be raised by federal employees because Title VII is the exclusive remedy for race discrimination claims by most federal employees.

Section 1981 provides as follows:

(a) Statement of equal rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) "Make and enforce contracts" defined. For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment. The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

What is Section 1983, and how does it apply to employment discrimination claims?

42 U.S.C. § 1983 does not provide any substantive rights; rather it provides a remedy for violation of existing federally protected rights. For example, employees tend to raise Section 1983 claims by asserting that an employer violated the employee's First or Fourteenth Amendment rights of free speech, equal protection or due process.

Section 1983 does not apply to the Federal Government or purely private action. It applies only to person acting under color of state law (state action). While municipalities and other local government units are subject to Section 1983, issues of immunity often arise in claims against certain individuals and state government agencies.

Section 1983 states as follow:

Civil action for deprivation of rights. 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 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.

How do Sections 1985 and 1986 of the Reconstruction Era Civil Rights Acts apply in employment discrimination cases?

Section 1985(3) applies in employment discrimination claims alleging a conspiracy to deprive a person of the equal rights or privileges.

Section 1986, a companion statute to Section 1985, assigns liability to a person who could have but knowingly failed to prevent a Section 1985 conspiracy.

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* Searcy Business Litigation & Employment Law represents clients in the District of Columbia and Northern Virginia, including Arlington County, Fairfax County, Loudoun County, and Prince William County, the cities of Alexandria, Falls Church, and Fairfax. The firm also serves clients in the Virginia counties of Clarke, Culpeper, Fauquier, Frederick, Madison, Page, Rappahannock, Shenandoah, Spotsylvania, Stafford, and Warren, as well as the cities of Fredericksburg and Winchester, Virginia and more.

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