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New Legal Challenges to Suits Against the Government

 When a public employee is a victim of employment discrimination, there are generally several ways in which he/she may pursue his/her claim. One method is by suing under Title VII of the Civil Rights Act of 1964, a statute that focuses on employment discrimination claims for both public and private employers. Also available, for some, is §1983 of the federal civil rights statute, which may afford a plaintiff greater monetary relief than is allowed under Title VII. A plaintiff may only sue under § 1983 when her employer is the government “acting under color of state law” – so this option is for those employed by public schools, universities, local government agencies or similar government-owned entities. However, a new ruling from the Second Circuit has limited the viability of the § 1983 path.

Issued by the United States Court of Appeals for the Second Circuit on August 12, 2019, Naumovski v. ±·´Ç°ù°ù¾±²õÌýcreates stark distinctions between the treatment of gender discrimination cases under Title VII and §1983. In ±·´Ç°ù°ù¾±²õ,Ìýthe Second Circuit ruled that the correct burden of proof under § 1983 for sex discrimination claims is “but-for” causation, meaning that sex discrimination must be the determining factor in the adverse action against a plaintiff. This is a stricter burden of proof than is required for Title VII which requires only that sex discrimination be a “motivating factor” in an adverse action against an employee. This higher burden will, of course, make success under §1983 more difficult.

In addition to establishing a higher burden of proof for § 1983 cases, the ±·´Ç°ù°ù¾±²õÌýcourt also ruled that there is no vicarious liability for employers under § 1983, unlike Title VII. ±·´Ç°ù°ù¾±²õÌýalso left a wrinkle in interpreting the definition of “gender discrimination” under § 1983. Specifically, one may wonder what the holding of ±·´Ç°ù°ù¾±²õÌýmeans for plaintiffs who are the victim of employment discrimination based on their sexual orientation. Under a separate Second Circuit decision, Zarda v. Altitude Express, Inc., sexual orientation discrimination is considered to be a subset of gender discrimination under Title VII. This ruling does not clarify whether the new standards established by ±·´Ç°ù°ù¾±²õÌýaffect sexual orientation discrimination cases, as ´Ü²¹°ù»å²¹Ìýinterprets Title VII not § 1983. The court in Norris offered very little assistance in clarifying this issue under § 1983.  This leaves much uncertainty as to whether the same challenges for gender discrimination claims under § 1983 also apply to sexual orientation discrimination cases.

In summary, the ±·´Ç°ù°ù¾±²õÌýdecision created new barriers for § 1983 discrimination claims.  Employees of such institutions, and their attorneys, should take great care in deciding whether § 1983 is the best option for such cases, as they potentially run the risk of unnecessary legal costs on a claim that may be doomed to fail – or at least less likely to prevail. What do you think of this ruling? Please let us know!

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