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Employment Discrimination
University of Baltimore School of Law
Van Deusen, Darrell

Van Deusen

Employment Discrimination

Fall 2011

Class Layout

I. Theory

II. Special Areas/Issues

III. Procedural Aspects

Today – Baseline of employment is ‘employment at-will’. Anyone (employer or employee) can terminate employment for any reason at any time… except for illegal reasons!

Many things that organized labor used to provide have been abrogated to the State (i.e. OSHA now provides for safe work places, anti-discrimination laws now protect against discrimination, etc.)

Inroads/Things That Offset the Employment At-Will Doctrine

FLSA (Fair Labor Standards Act) – Law that governs wages and hours. You are either exempt or non-exempt from this law. If not exempt, you must be paid minimum wage and must be paid overtime for working more than 40 hours/week, etc. EPA (Equal Pay Act) is an off-shoot that deals with gender.

§1981 – Enforces 13th Amendment (abolishing slavery)

§1983 – Enforces 14th Amendment (right to DP and equal protection under the law)

§1985 – Also related to 13th and 14th

Title VII (Civil Rights Act of 1964 (42 USC §2000e)) – Prohibits discrimination on the basis of race, sex, color, national origin, religion and (just recently) genetic information.

ADEA (Age Discrimination in Employment Act) – Prohibits discrimination against individuals that are 40 years or older (also prohibits forced retirement).

ADA (Americans with Disabilities Act) – Prohibits employers from discriminating against individuals with mental or physical disability.

OSHA – Workplace safety

ERISA – Retirement and healthcare rights

FMLA – Family Medical Leave Act

MD Laws – Can’t discriminate based on marital status; age discrimination with no cap (i.e. doesn’t matter if it’s over 40 or not); sexual orientation

Individual Ks – e.g. contract to work for 1 year for $50K

Labor Ks – e.g. union contracts/collective bargaining

Torts – Wrongful discharge

42 USC §1981

Post-Civil War, 13th Amendment prohibits involuntary servitude (slavery)

§1981 passed in 1866

Gave all citizens right to “make and enforce Ks” the same as white citizens.

§1981 now applies to employment discrimination cases (originally just enforced against the government)


What is race under §1981? Includes races that could be identified in 1866, i.e. Jews, Arabs, Whites, Blacks, etc.

What types of employees are covered? Difference between independent contractors and employees is the level of control involved (set hours, use own tools, etc.). Independent contractors ARE covered under §1981 but NOT covered under Title VII.

Who can be sued under §1981? Employers, INCLUDING INDIVIDUALS and independent contractors can be sued. Individuals CANNOT be sued under Title VII.

What type of discrimination does §1981 cover? Requires INTENTIONAL discrimination. No vicarious liability under §1981. Must have independent evidence that the contractor themselves intentionally discriminated against someone b/c of race.

What does “make and enforce contacts” mean? At-Will employees ARE COVERED under §1981.

Patterson v McClean Credit Union (later overturned via Civil Rights Act of 1991) – SC in 1989 said “make and enforce Ks” means only hiring, firing, maybe a big promotion.

Today, look to §1981(b) (added by CRA of 1991) to determine what “make and enforce contracts” means – NOW APPLIES TO ALL ASPECTS/TERMS/CONDITIONS OF EMPLOYMENT

When can you sue under §1981? There is no statute of limitations under §1981. So, after identifying what kind of claim it is, you look to what SOL is in the State for similar types of claims. §1981 is most like personal injury claims (which, in MD has a 3yr SOL).

But, Congress passes a law that says statutes passed after 1990 have a default SOL of 4yrs.

SO… for those wide range of things (i.e. Terms and Conditions of employment) covered under §1981(b) (passed after 1990), they have a 4yr SOL, BUT, for §1981 actions that refer to hiring/firing/big promotions (HFP) under original §1981, those have the most relevant State SOL.

Example: In MD, plaintiff says, “I was harassed for my race and then fired,” there would be a 4yr SOL for the harassment but a 3yr SOL for the firing.

Nutshell: If complaint is for discrimination in hiring/firing/promotion, SOL is whatever the most relevant State SOL; If complaint is for discrimination in any other aspect or terms and conditions of employment, SOL is 4yrs. 4yrs for retaliation too.

If you have a RACE discrimination case, be sure to bring claim under Title VII AND §1981!

42 USC §1983


Reaches only persons acting “under color of” state law. The statute does not reach purely pr

the 14th Amendment (life, liberty, property). Once a P establishes the deprivation of a protected property or liberty interest, the next hurdle is to prove the employer violated DP (must receive notice of the anticipated adverse employment decision and have an opportunity to be heard before the decision comes into effect). (Post deprivation process can suffice where state must act quickly or it is impractical to afford predeprivation process.)

Substantive DP is much more difficult to claim. A substantive DP claim lies where the government’s actions concerning a fundamental right either shock the conscience or offend judicial notions of fairness or human dignity

First Question to Ask – Is this a protected class? (note: sexual orientation is)

Second Question to Ask – Are they acting under color of State law?

42 USC §1985(3)

If two or more persons in any State or Territory conspire for the purpose of depriving either directly or indirectly any person or class of person of the equal protections of the laws . . .


1. a conspiracy;

2. for the purpose of depriving any person or class of persons of equal protections of the laws, or of equal privileges and immunities under the laws; and

3. an act in furtherance of the conspiracy;

4. whereby a person is either injured in his person or property or was deprived of having and exercising any right or privilege of a citizen of the United States

Conspiracy – at least two individuals or entities must have conspired (issue of whether a single corporation falls within §1985 – it doesn’t. Need someone else outside of the corporation)

§1985(3) creates no substantive rights; rather, like §1983, it merely provides a remedy for violation of the rights it designates

§1985(3) covers private as well as governmental conduct

No separate cause of action under §1985, rather, it must glom on to either 1981 or 1983

§1985(3) requires class-based animus