Section 1983 of the Civil Rights Act’s protections and limitations

1. Section 1983’s protections

Section 1983 of the Civil Rights Act of 1871 (“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 any 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, suit in equity, or other proper proceeding for redress.

Unlike Section 1981 of the Civil Rights Act, Section 1983 does not create any rights (for example, the right to be free from employment discrimination on the basis of race or any other protected classification). Rather, Section 1983 is the means by which individuals can sue for redress of the violation of other federally protected rights, such as rights provided under the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. On this basis, Section 1983 has been interpreted to prohibit certain forms of public sector employment discrimination (race, color, national origin, sex and religion). However, Section 1983 cannot be used to enforce other federal anti-discrimination statutes, like Title VII or the ADEA, that have their own exclusive remedies.

2. Who may be sued under Section 1983?

Local governmental agencies, municipalities, and local government officials may be sued under Section 1983. States and state agencies, however, are not covered by Section 1983. However, state officials, while they’re not subject to Section 1983 liability in their official capacities, are subject to Section 1983 in their individual capacities.

Because Section 1983 contains a “color of law” requirement, it rarely applies to private employers.

Section 1983 does not apply to the federal government or to federal officials in their individual capacities because the law is restricted to suing those who act under the color of state law. However, you may sue federal officials (but not federal agencies) in their official capacities under Section 1983 when they act under color or state law by conspiring with state officials.

3. What does Section 1983 cover?

Section 1983 has been interpreted to prohibit public sector employment discrimination on the basis of race, color, national origin, sex, and religion. It also prohibits governmental employers from completely restraining the speech of their employees.

The United State Supreme Court’s decision in Garcetti v. Ceballos (2006) set the boundaries of what constitutes “protected” employee speech: the “First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” However, employee speech that is made “pursuant” to the employee’s professional duties is not accorded First Amendment protection under Garcetti. This is because, the Court explained, “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

In Garcetti, a prosecutor for the Los Angeles County District Attorney’s Office named Ceballos prepared an internal office memorandum recommending dismissal of a case that was being pursued by the office. After a heated meeting that ensued, Ceballos was reassigned from his position, transferred to another courthouse, and denied a promotion. Ceballos sued, claiming the employment actions violated his constitutional rights. The Court found that Ceballos’s statements, made directly to his supervisors and also in a memorandum, were made pursuant to his official duties and therefore not protected under the First Amendment. The Court explained that Ceballos was speaking in his role “as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed.” The speech was therefore “commissioned” by his employer. Ceballos was not so much a private citizen exercising free speech rights as an employee whose job consisted in part of speech, for which he could be evaluated, rewarded, or disciplined. Because the “First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities,” Ceballos’ claim of unconstitutional retaliation failed.

The question under Garcetti is not whether the speech was made during the employee’s work hours, or whether it concerned the subject matter of his employment. Merely because an employee’s speech was made at work and about work does not necessarily remove that employee’s speech from the ambit of constitutional protection. Rather, it is whether the speech was made pursuant to the employee’s job duties or, in other words, whether the speech was “commissioned” by the employer. In addressing that question, the Supreme Court deliberately refrained from defining a “comprehensive framework for defining the scope of an employee’s duties.” It instead emphasized that the inquiry was “a practical one,” and that a court cannot simply read off an employee’s duties from a job description because “formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform.”

The Supreme Court, however, in Elrod v. Burns (1976) and Branti v. Finkel (1980), appears to have dramatically curtailed, if not completely eliminated the rights of public employees in “policymaking or confidential positions” by holding that they may be terminated for politically-motivated reasons without violating the First Amendment.

The following examples illustrate the contours of the First Amendment protections extended to public employees.

  • There is a Section 1983 violation where a public school teacher was fired because he sent a letter to a local newspaper, in connection with a proposed tax increase, that was critical of the way in which the Board of Education and the District Superintendent of Schools had handled past proposals to raise new revenues for the schools.
  • There is no Section 1983 violation where the District Attorney fired an Assistant District Attorney who, after learning that she was to be transferred, prepared and distributed a questionnaire soliciting the views of her fellow staff members about the office transfer policy, office morale, and the need for a grievance committee.
  • There is no Section 1983 violation where the county prosecutor fired an assistant county prosecutor for refusing to support the country prosecutor in a campaign for a district court judgeship, and for refusing to try to stop his brother from supporting the county prosecutor’s political opponent.
  • There is no Section 1983 violation where a registered nurse was suspended after her supervisor demanded that she submit to an evaluation of fitness for duty after she had complained in a memorandum of unpleasant events with hospital personnel.
  • There was no Section 1983 violation where a state university reduced the salary of a tenured professor at a state university and terminated his National Science Foundation grant after the professor had complained about the university’s misuse of the NSF funds. This was because the professor had complained pursuant to his official duties as a university professor and not as a private citizen; therefore, his speech was not protected by the First Amendment.