EEO LAW BASICS
CHAPTER 3
SECTION 1983, 42 USC §1983

3-A | WHO IS COVERED UNDER SECTION 1983?

Section 1983 covers any citizen of the United States or other person within the jurisdiction thereof.

Wheeldin v. Wheeler, 373 U.S. 647 (1963): “Congress made liable in civil suits ‘every person’ who ‘under color’ of any state... ... law deprives anyone of a right ‘secured by the Constitution and laws’ of the United States”.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

3-B | WHAT IS PROHIBITED UNDER SECTION 1983?

Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory ... 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, equity, or other proper proceeding for redress.”
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

3-C | WHO MAY BE LIABLE UNDER SECTION 1983?

Any person acting under color of state law (state action requirement):

1) Local governments, municipalities, and individual municipal agents acting in official capacities may be liable. Monnell v. Department of Social Services, 436 U.S. 658 (1978).

A municipality may only be held liable for acts that it officially sanctioned or ordered OR where the constitutional deprivation occurred as a result of a custom or policy of the municipality Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397 (1997).

Municipalities & local governments not liable for legislative (as opposed to administrative) acts.

2) State governments

a) State governments and officials in official capacity are immune from suit. State governments are not divested of Eleventh Amendment immunity, even when the state is indemnified by the federal government for litigation costs as well as costs of adverse judgments. Regents of University of Cal., 519 U.S. 425 (1997).

b) A state official may be sued in his/her individual capacity.

3) Section 1983 does not apply to the federal government (in most instances). Therefore, actions by federal officials, unless taken in conjunction with state officials or pursuant to local custom, law, or regulation, cannot be challenged in a Section 1983 suit.

4) Section 1983 does not apply to private entities unless they become enmeshed in governmental entity.

Rendell-Baker v. Kohn, 457 U.S. 830 (1982): Rendell-Baker addressed the issue of a privately owned university which was 90% publicly subsidized and whether Section 1983 was applicable to its employment practices. The United States Supreme Court found no state action, noting that the symbiotic relationship between the private entity and the state was not present.
Likewise, hospitals and utilities have been found free of state action even though substantial state funding and regulation were present.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

3-D | WHAT IS THE BASIS OF DISCRIMINATION PROHIBITED BY SECTION 1983?

Section 1983 does NOT create federal rights. Rather, it is used to enforce already existing federal rights, such as:

1) Equal protection/right to be free from racial and gender discrimination, including sexual harassment. Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Courts have held that Title VII does not foreclose a Section 1983 claim for the same conduct.

2) Freedom of speech

a) Where a private sector employee is retaliated against for advocating certain issues, that retaliation may give rise to Section 1983 claim.

b) A public employee’s speech protection and whether he/she has been retaliated against for that speech is controlled by Pickering v. Board of Education, 391 U.S. 563 (1968).

3) Due process of law is analyzed on a case by case basis.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

3-E | WHAT ESTABLISHES A PRIMA FACIE CASE UNDER SECTION 1983?

1) The plaintiff must prove that the defendant, acting under color of state law, deprived the plaintiff of his/her constitutional rights.

2) State action is required.

a) The state action requirement reaches employment discrimination involving police, fire departments, public schools, colleges and universities, public hospitals, and public transportation authorities.

b) Private entities may be so involved with the state that state action is found. This may happen in varying circumstances including:

(1) Licensing, regulation, receipt of public funds, location in state owned facilities;

(2) Carrying out functions normally carried out by state; and

(3) State supported monopoly

c) Graham v. Connor, 490 U.S. 386 (1989):

The plaintiff must identify one or more specific constitutionally protected rights that have been infringed by the defendant’s actions.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

3-F | WHAT RELIEF IS AVAILABLE UNDER SECTION 1983?

Available relief under Section 1983 includes damages and injunctive relief.

1) Damages

a) Memphis Community School Dist. V. Stachura, 477 U.S. 299 (1986):

Section 1983 creates a species of tort liability in favor of persons who have been deprived of the rights, privileges, or immunities under the Constitution. Therefore, the level of damages is ordinarily determined according to the principles derived from common law torts. Damages may include:

(i) Compensatory damages for emotional distress, embarrassment, impairment of reputation and humiliation;

(ii) Actual and nominal damages; and

(iii) Punitive damages available where there has been a willful or malicious violation or where the defendant acted with evil motive or reckless and callous indifference. Municipalities are immune from punitive damages.

2) Injunctive relief

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

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