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. Norris creates stark distinctions between the treatment of gender discrimination cases under Title VII and §1983. In Norris, the 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 Norris court also ruled that there is no vicarious liability for employers under § 1983, unlike Title VII. Norris also left a wrinkle in interpreting the definition of “gender discrimination” under § 1983. Specifically, one may wonder what the holding of Norris means 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 Norris affect sexual orientation discrimination cases, as Zarda interprets 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 Norris decision 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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