Since the 1991 Civil Rights Act, courts have wrestled with the problem of whether the amended section 1981(c) — which provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law” — was meant to abrogate Jett v. Dallas Independent School District, 491 U.S. 701 (1989), and furnish a cause of action against government employers.
The Sixth Circuit became the latest court to answer “no.” Arendale v. City of Memphis, No. 07-5230 (6th Cir. Mar. 20, 2008) . It thus joins the Fourth, Tenth and Eleventh Circuits in this conclusion. [The Ninth Circuit has been the only holdout, finding that the amended statute does provides a right of action against municipal employers. Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir.1996). More recently though, another panel of the same court held that section 1981 does not provide a cause of action against state agencies. Pittman v. Oregon, 509 F.3d 1065 (9th Cir. 2007).]
The underlying case, by a white police officer, was not an auspicious one. It was killed off on summary judgment stage. A white police officer (Arendale) claimed that one Lieutenant Cox, identified as African-American, assigned him to undesirable beats and verbally harassed him. Two months after Arendale filed an EEOC charge, he was charged with insubordination owing to a fight with Cox at headquarters (compounded by a workrule violation — he was caught not wearing his gun belt). The ensuing disciplinary action (ten days’ suspension, later remitted to four) prompted a second EEOC charge for retaliation.
The panel majority spent much of its opinion sorting out the § 1981 conundrum. It held that neither the language of the amended act nor the legislative history betrayed any suggestion of overruling Jett. “As the Supreme Court explained in Jett, a dichotomy exists between rights and remedies. Just because a statute includes rights-creating language does not mean that it also provides a private cause of action to persons deprived of those rights, so long as Congress has also provided an effective means of vindicating the right elsewhere in federal law. . . . Accordingly, the fact that § 1981(c) establishes equal rights for parties suing private and state defendants does not, on its own, establish a private cause of action.” (Concurring Judge Cook wrote, in just a line, that “I concur in the judgment and opinion of the court with the exception of its analysis of and reliance on the Civil Rights Act of 1991’s legislative history.”)
Weighing the officer’s claims under § 1983 brought him no closer to relief. Although it concluded that Arendale had state a claim against the city for his suspension, on a theory of ratification — “even if the allegedly unconstitutional decision is initially made by a subordinate official, when that decision is appealed to and affirmed by an official with final authority over a matter, the municipality may be held liable for this affirmance” — the claim lacked merit, as he simply located no minority officers who committed comparable violations (insubordination) warranting suspension. The court also flicked aside the harassment and retaliation claims against Cox at the prima facie stage.