Circuit Splits

Did the Civil Rights Act of 1991 Create a New Private Cause of Action?

On Monday the Sixth Circuit issued its opinion in McCormick v. University of Miami. Writing for the court, Judge Damon Keith identified the following circuit split over whether the Civil Rights Act of 1991 created a new private cause of action against state actors:

After the Jett decision, Congress amended § 1981 by passing the Civil Rights Act of 1991. In relevant part, the 1991 Act added subsection c, which provides:

(c) Protection against impairment

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

42 U.S.C. § 1981(c). Since the amendment to § 1981, circuit courts have split as to whether the 1991 amendment created a new private cause of action, thereby overruling Jett. The Sixth Circuit has continued to hold that Jett remains binding authority and that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008) (quoting Jett, 491 U.S. at 733). Our decision in Arendale is consistent with authorities in the Third Circuit, see McGovern v. City of Philadelphia, 554 F.3d 114, 117-18 (3d Cir. 2009); the Tenth Circuit, see Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006); the Fifth Circuit, see Oden v. Oktibbeha Cnty., 246 F.3d 458, 463-64 (5th Cir. 2001); the Eleventh Circuit, see Butts v. Cnty. of Volusia, 222 F.3d 891, 894 (11th Cir. 2000); and the Fourth Circuit, see Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995). In contrast, the Ninth Circuit has expressly held that the Civil Rights Act of 1991 has overruled the Supreme Court's holding in Jett. See Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996) ("We hold that the Civil Rights Act of 1991 creates an implied cause of action against state actors under 42 U.S.C. § 1981, and thus statutorily overrules Jett's holding that 42 U.S.C. § 1983 provides the exclusive federal remedy against municipalities for violation of the civil rights guaranteed by 42 U.S.C. § 1981."); but see Pittman v. Oregon, 509 F.3d 1065, 1074 (9th Cir. 2007) (holding that § 1981 does not contain a cause of action against arms of the state).

Using the reasoning of Jett, this circuit has held that a plaintiff cannot use § 1981 to sue a state actor in his or her official capacity. Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) ("§ 1983 provides an exclusive remedy for violations against state actors sued in their official capacities. An official capacity lawsuit against . . . a state actor[] for constitutional violations, such as race discrimination, cannot be brought under § 1981."). The district court correctly dismissed the § 1981 claims against the individual defendants in their official capacity. However, we have not addressed whether Jett bars a § 1981 claim against an individual state actor sued in his or her individual capacity. We now hold that it does.

You can read the entire opinion here: McCormick v. Miami Univ., No. 11-3614, 2012 U.S. App. LEXIS 18950, at *13-15 (6th Cir. Ohio 2012).

1st Circuit Strikes Down the Defense of Marriage Act, Calls for Guidance from the Supreme Court

In a unanimous decision yesterday, the First Circuit declared section 3 of Congress's Defense of Marriage Act unconstitutional. This provision states that "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife." 1 U.S.C. § 7.

The court noted in its opinion that the case was "difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings," adding, "only the Supreme Court can finally decide this unique case." You can read the First Circuit's opinion here: Massachusetts v. Health and Human Services Department, No. 10-2204 (1st Cir. May 31, 2012). Here are some of the initial reactions from around the web:

• Robert Barnes, Defense of Marriage Act unconstitutional, federal appeals court declares, WashingtonPost.com (May 31, 8:28 PM) (HTML) ("The decision by the Obama administration not to defend DOMA — a law that was signed but is now disavowed by Clinton — prompted an angry response from House Republican leaders. They hired Paul D. Clement, who was solicitor general in the administration of George W. Bush, to defend the law in court.").

• Jay Michaelson, DOMA Ruling is Test for Conservative Federalists, The Daily Beast (May 31, 2012 5:52 PM EDT) (HTML) ("Self-proclaimed federalists should be thrilled with the federal appeals court ruling overturning the Defense of Marriage Act ... but they probably won’t be.").

• Lyle Denniston, DOMA ban on gay marriage falls, SCOTUSblog (May 31, 2012 1:03 PM) (HTML).

And here is a video of the Wall Street Journal's Ashby Jones discussing the First Circuit's decision and how it might play out before the Supreme Court and in state courts across the country:

More Percolation Over Good Faith Conciliation

Back in February Circuit Splits featured a post on the Eastern District of California’s decision in EEOC v. Alia Corp., which identified an emerging split in authority over the appropriate standard for reviewing whether the Equal Employment Opportunity Commission (EEOC) has attempted to conciliate in good faith. Case No. 1:11-cv-01549 LJO BAM (E.D. Cal. Feb. 6, 2012).

To briefly recap, the court in Alia Corp. noted that the Second, Fifth, and Eleventh Circuits require courts to evaluate "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances,” EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981)), but the Sixth and Tenth Circuits afford the EEOC greater deference in carrying out its conciliation obligation under Title VII. The court in Alia Corp. also pointed out that, while “[t]he Ninth Circuit has not weighed-in on the issue,” the district courts within the Ninth Circuit “have generally tilted toward the approach taken by the Sixth and Tenth Circuit.”

Last Wednesday, yet another district court within the Ninth Circuit addressed this issue:

"[T]here is a split among the [circuit courts] regarding the proper standard for reviewing whether the EEOC has attempted to conciliate in good faith." EEOC v. Alia Corporation, __ F. Supp. 2d __, 2012 U.S. Dist. LEXIS 14148, 2012 WL 393510 at *9 (E.D. Cal. Feb. 6, 2012), quoting EEOC v. Timeless Investments, Inc., 734 F. Supp. 2d 1035, 1052 (E.D. Cal. 2010). The Ninth Circuit has not weighed-in on this issue, but district courts within the circuit "have generally tilted toward the approach taken by the Sixth [EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (6th Cir. 1984)] and Tenth Circuits [EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978)], affording the EEOC wide deference in discharging its duty to conciliate." 2012 U.S. Dist. LEXIS 14148, [WL] at *10, citing among others, EEOC v. Cal. Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1273 (E.D. Cal. 2009) (applying the deferential standard expressed by the Sixth Circuit in Keco). The Alia court concluded that it too, in evaluating the sufficiency of the EEOC's conciliation efforts in the case before it, would defer to the judgment of the EEOC and confine its inquiry to whether the EEOC "made an attempt at conciliation." Id., quoting Keco, 748 F.2d at 1102 (emphasis in original). Thus so long as [the defendant] was given "an opportunity to respond to all [the] charges and [to] negotiate settlement[]," the EEOC fulfilled its statutory duty to conciliate in good faith." Id., quoting EEOC v. Prudential Federal Sav. & Loan Asso., 763 F.2d 1166, 1169 (10th Cir. 1985).

Even under what is purportedly the more deferential standard, not just any attempt at conciliation will suffice. It must be a "good faith" attempt. The purportedly more stringent standard adopted by the Second, Fifth and Eleventh Circuits requires courts to evaluate "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." Alia, 2012 U.S. Dist. LEXIS 14148, 2012 WL 393510 at *9, quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981), and citing EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003), and EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2nd Cir. 1996). Under this standard, the EEOC must at least: (1) outline to the employer the reasonable cause for its belief that a violation of the law has occurred; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Asplundh, 340 F.3d at 1259. It is noted, however, that there are district courts within the Ninth Circuit which, although following what is purportedly the more deferential standard, appear to nonetheless require the minimum effort articulated by the circuits employing the purportedly more stringent standard. Thus, in EEOC v. California Psychiatric Transitions ("Psychiatric Transitions II"), 725 F. Supp. 2d 1100, 1114-15 (E.D. Cal. 2010), the court stated: "[T]he law requires no more than a good faith attempt at conciliation by the EEOC; in doing so, the EEOC must outline the basis for its determination of discrimination, offer an opportunity for voluntary compliance, and respond flexibly to the reasonable attitudes of the employer." (Emphasis added).

EEOC v. Evans Fruit Co., NO. CV-10-3033-LRS (E.D. Wash. May 24, 2012) (alterations in original).

Given the frequency with which this issue has come up in district courts within the Ninth Circuit, it is only a matter of time before the Ninth Circuit will be asked to pick a side, at which point the issue would be ripe for review by the Supreme Court for several reasons:

• First, the Supreme Court is more likely to grant a case inolving a federal administrative agency than one brought by an individual or even a corporation.

• Second, the Supreme Court typically waits until a particular issue has fully “percolated” within the circuit courts before granting cert. This usually means that at least three circuits have weighed in on the issue. Here, five circuits have already addressed the issue.

• Third, in the past, the Supreme Court has agreed to review a disproportionate number of cases out of Ninth Circuit. A decision on this issue from the Ninth Circuit may be too tempting for the Court to pass up.

• Finally, the Supreme Court is more likely to review an issue on which the circuits are deeply divided. Here, if the Ninth Circuit adopts the position taken by the majority of district courts within its Circuit, the resulting 3-3 split would not likely “work itself out” over time absent guidance from the Supreme Court.

Wide Divide Over the Right to Reject Unwanted Sexual Advances in the Workplace

In 1998 the Supreme Court construed Title VII to prohibit "sexual harassment so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (construing 42 U.S.C. § 2000e-2(a)(1)). Where an employee partakes in a “protected activity,” Title VII similarly prohibits employers from retaliating against them for engaging in that protected activity.

Today’s post looks at whether an employee’s rejection of their colleague or supervisor’s unwanted sexual advances is a “protected activity” within the meaning of Title VII. As Judge Richard Roberts of the U.S. District Court for the District of Columbia pointed out last week, the courts are deeply divided over the issue. Dozier-Nix v. District of Columbia, Civil Action No. 09-593 (RWR) (Dist. D.C. Mar. 31, 2012) (mem. op.). Here is a look at where the courts stand on the issue:

1. Rejecting unwanted sexual advances is a protected activity under Title VII.

• Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372, 392 (Dist. N.J. 1998), aff'd in part, rev'd in part on other grounds, 206 F.3d 271 (3d Cir. 2000).

• Ogden v. Wax Works, 214 F.3d 999, 1007 (8th Cir. 2000).

• Williams v. Verizon Wash. D.C., 266 F. Supp. 2d 107, 122-23 (Dist. D.C. 2003).

• Frentz v. City of Elizabethtown, Civil Action No. 08-621, 2010 U.S. Dist. LEXIS 118565, 2010 WL 4638768, at *5 (W.D. Ky. Nov. 4, 2010).

• Roberts v. Cnty. of Cook, No. 01-C-9373, 2004 U.S. Dist. LEXIS 8089, 2004 WL 1088230 at *4-5 (N.D. Ill. May 12, 2004) (mem. op.).

• Black v. City & Cnty. of Honolulu, 112 F. Supp. 2d 1041, 1049 (D. Haw. 2000).

• Fleming v. South Carolina Dep't of Corrections, 952 F. Supp. 283, 288 (Dist. S.C. 1996).

• Armbruster v. Epstein, 1996 U.S. Dist. LEXIS 7459, No. Civ. A 96-CV-1059, 1996 WL 289991, at *3 (E.D. Pa. May 31, 1996).

• EEOC v. Domino's Pizza, 909 F. Supp. 1529, 1536 (M.D. Fla. 1995).

• Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995).

• Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987).

 2. Rejecting unwanted sexual advances is not a protected activity under Title VII.

• LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 389-90 (5th Cir. 2007).

• Jones v. Cnty. of Cook, 2002 U.S. Dist. LEXIS 13075, No. 01 C 9876, 2002 WL 1611606, at *4 (N.D. Ill. July 17, 2002).

• Rachel-Smith v. FTData, Inc., 247 F. Supp. 2d 734, 748-49 (D. Md. 2003).

• Fitzgerald v. Henderson, 36 F. Supp. 2d 490, 499 (N.D.N.Y. 1998), aff'd in part, rev'd in part on other grounds, 251 F.3d 345 (2d Cir. 2001).

• Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996).

Please feel free to add to this list by leaving a comment.

Circuits Divided Over Exhaustion-of-Remedies Requirement Under Title VII

About a month ago the Eastern District of California identified a split among the circuit courts regarding the proper standard for reviewing whether the EEOC has attempted to "conciliate" in good faith. (See here.) Earlier this week a district judge in the Southern District of Texas flagged yet another circuit conflict involving Title VII's conciliation requirement. See generally 42 U.S.C. § 2000e-5(b) (requiring the EEOC to make a good-faith effort to eliminate unlawful employment discrimination administratively through informal methods such as "conciliation" before initiating a civil action).

In his opinion, the district judge noted that "circuit courts have split over whether administrative remedies must be exhausted before a party may enforce a conciliation agreement," adding, "the Fifth Circuit has not addressed the issue." Pasley v. Centerpoint Energy Houston Elec., Civil Action Nos. H-11-2341 & H-11-4376 (S.D. Tex. Mar. 6, 2012) (mem. op.). The plaintiff in this case was concerned that his failure to obtain a right-to-sue letter from the EEOC to pursue his claims related to the conciliation agreement would result in dismissal in district court for failure to exhaust administrative remedies. Id. at n.3. The following circuits disagree over whether this scenario deprives a federal district court of subject-matter jurisdiction:

Compare Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1305–06 (10th Cir. 2000); Eatmon [v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1508, 1510 n.8 (11th Cir. 1985);] with Blank v. Donovan, 780 F.2d 808, 809–10 (9th Cir. 1986); Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 874 (6th Cir. 1984). The Court need not resolve this dispute at this time, however, as Plaintiff does not appear to argue that his failure to exhaust administrative remedies deprives the Court of subject matter jurisdiction such that it should remand the case to state court.  

Pasley v. Centerpoint Energy Houston Elec., Civil Action Nos. H-11-2341 & H-11-4376 (S.D. Tex. Mar. 6, 2012) (mem. op.).

[*Image courtesy of Aidan Jones on Flickr.]

Evaluating the EEOC's Efforts to Eliminate Discrimination

In 1863 President Lincoln spoke of “a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” His message was clear: discrimination, of any kind, must not be tolerated in a “government of the people, by the people, for the people.” Although more than a century had passed since President Lincoln delivered his Gettysburg Address, Congress took a major step toward fulfilling Lincoln’s vision when it passed the Civil Rights Act of 1964, the dynamic culmination of civil rights activism, a series of seminal Supreme Court cases, and the relentless effort of fearless leaders who helped shine the national spotlight on the lingering badges of slavery that remained entrenched in society.

Congress, seeking to dismantle the informal caste system that had emerged as a result, included Title VII in the Act in an effort “to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin.” H. R. Rep. No. 914, 88th Cong., 1st Sess., 26 (1963). See 110 Cong. Rec. 13079-13080 (1964) (remarks of Sen. Clark). To achieve this mission, Congress created the EEOC and directed its members to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion” before initiating a civil action. 42 U.S.C. § 2000e-5(b) (emphasis added).

On Monday, the Eastern District of California issued an opinion that identifies a “split among the [circuit courts] regarding the proper standard for reviewing whether the EEOC has attempted to conciliate in good faith.” EEOC v. Alia Corp., Case No. 1:11-cv-01549 LJO BAM (E.D. Cal. Feb. 6, 2012) (alteration in original).

The Second, Fifth, and Eleventh Circuits require courts to evaluate "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (quoting [EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981)]). Under this standard, the EEOC must at least: (1) outline to the employer the reasonable cause for its belief that a violation of the law has occurred; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Id. (citing Klingler, 636 F.2d at 107). See EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir. 1996). The Sixth and Tenth Circuits, on the other hand, appear to have adopted a standard that is much more deferential to the EEOC. Under this standard, a court "should only determine whether the EEOC made an attempt at conciliation. The form and the substance of those conciliations is within the discretion of the EEOC . . . and is beyond judicial review." [EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (1984)] (emphasis added). See also [EEOC v. Zia, Co., 582 F.2d 527, 533 (1978)] ("[W]e agree that a court should not examine the details of the offers and counteroffers between the parties, nor impose its [own] notions of what the agreement should provide.").

Id. After examining the positions taken by other circuits, the court turned its attention to its own circuit:

The Ninth Circuit has not weighed-in on the issue. However, district courts in this circuit have generally tilted toward the approach taken by the Sixth and Tenth Circuits, affording the EEOC wide deference in discharging its duty to conciliate. See EEOC v. Cal. Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1273 (E.D. Cal. 2009) ("Cal. Psych. I") (applying the deferential standard expressed by the Sixth Circuit in Keco); U.S. EEOC v. Hometown Buffet, Inc., 481 F. Supp. 2d 1110, 1113-14 (S.D. Cal. 2007) (same); EEOC v. Grimmway Enters., Inc., Case No. CV F 06-0561 LJO DLB, 2007 U.S. Dist. LEXIS 45268, at *16-18 (E.D. Cal. June 12, 2007) (same); EEOC v. Gold River Operating Corp., 2:04-cv-01349-LRL, 2007 U.S. Dist. LEXIS 24597, at *14-17 (D. Nev. Mar. 30, 2007) (same); U.S. EEOC v. Lawry's Restaurants, Inc., Case No. CV 06-1963 DDP PLAx, 2006 U.S. Dist. LEXIS 55859, at *3 (C.D. Cal. July 14, 2006) (same).

Id. Accordingly, the court ulitmately endorsed the more deferential standard, explaining,

This Court finds no reason to depart from the deferential approach taken by the district courts in the Ninth Circuit. Title VII, as a whole, affords the EEOC substantial deference in discharging its duties. See Hometown Buffet, 481 F. Supp. 2d at 1113-14. In fact, an effort by the U.S. Senate in 1972 to require judicial approval of EEOC settlement agreements was "soundly rejected." EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241, 262 (N.D. Ill. 1980) (citing 118 Cong. Rec. 3807 (Feb. 14, 1972)). Therefore, in evaluating the sufficiency of the EEOC's conciliation efforts in this case, the Court will defer to the judgment of the EEOC and confine its inquiry to whether the EEOC "made an attempt at conciliation." Keco, 748 F.2d at 1102 (emphasis added). So long as Alia was given "an opportunity to respond to all [the] charges and [to] negotiate settlement[]," the EEOC fulfilled its statutory duty to conciliate in good faith. EEOC v. Prudential Federal Sav. & Loan Ass'n., 763 F.2d 1166, 1169 (10th Cir. 1985) (citation omitted).

Id.

From a practical standpoint, where conciliation is treated as a jurisdictional prerequisite to filing a lawsuit under Title VII or the ADA, the EEOC’s failure to conciliate in good faith warrants dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1). On the other hand, where conciliation is merely treated as an element of a Title VII or ADA claim, the defendant must challenge the EEOC’s failure to conciliate in good faith by filing a Rule 12(b)(6) motion to dismiss for failure to state a claim.