When employes of state or local governments run into race, sex or national origin discrimination on the job, what are their legal remedies? The answer to that question is so confused at the moment that the answer is: It depends on where they live.
Within two weeks recently, two federal courts ruled on the issue, and came to opposite conclusions. It looks like an issue that the Supreme Court eventually will have to resolve.
The controversy is over the interplay of two federal statutes enacted a century apart. In the wake of the Civil War, Congress gave citizens broad authority to sue those who use local governmental power to deprive them of their constitutional rights. In the past two decades, that Reconstruction-era statute has become a popular vehicle to oppose everything from employment discrimination to police brutality. And in 1972, Congress extended to employes of state, county and city governments the same protections against bias in hiring and promotion that had been given to employes of private businesses in the 1964 Civil Rights Act.
To win a case under the Reconstruction-era law, a plaintiff must show that a constitutional right is involved. And it is not always easy to show that being fired or not getting a promotion represents an infringement of constitutional protections. The 1972 law clearly opens the way for suing over job discrimination, but does not let an employe get into court until the dispute has gone through lengthy administrative hurdles.
The current uncertainty is whether the 1972 law supercedes the 19th-century law, or whether government workers have their choice of either route.
On July 8, the U.S. District Court in Denver decided that the 1972 law is the only option in government employment discrimination cases. The case in point involved a Mexican-American who was fired by the Denver park department after he filed discrimination charges. U.S. District Judge John L. Kane read the congressional debates before the 1972 amendments as saying that the lawmakers intended the new right to sue being given state and municipal workers to be an exclusive one. The Denver case, Tafoya v. Adams, is the first time the issue had come up in the Rocky Mountain area.
But on June 25, the U.S. Court of Appeals in Chicago, in Trigg v. Fort Wayne, came to just the opposite conclusion. That case, brought by a public school employe who claimed she was fired because her supervisor did not like to work with black women, was allowed to go forward under the Reconstruction statute, without having to go through the administrative procedures required by the more recent law. The constitutional right at the heart of such litigation is the right to equal protection under the law: the right of a black woman to be treated by government in the same way that a white man would be treated. That, the Chicago judges said, is different enough from the right to sue for job discrimination based on sex or race that it provides a separate route for getting a grievance into court, even if the underlying facts are the same.
In other cases, courts ruled that:
*Auto insurance can be stretched to cover a hazardous encounter with the police. A Florida motorist who says he suffered injuries from being "roughed up" by police after being stopped for a traffic violation tried to collect for his medical expenses from the personal-injury protection in his car insurance policy. The insurer resisted, saying the car was merely the location of the encounter, and had nothing to do with the injuries. The state Supreme Court, however, told the company to pay up. It looked at why the cops stopped the driver, read the policy language, and decided the injuries did arise "out of the ownership, maintenance, or use of a motor vehicle." (Hernandez v. Protective Casualty, May 30)
*There's a limit on what a genius is worth. Rhode Island District Judge Bruce M. Selya said he was offended by a magistrate's ruling that a drug firm should pay an expert witness in a product-liability case $420 per hour for the time he spent answering pre-trial questions. The expert, a professor at an Ivy League medical school, "may well be a genius in his field," Selya admitted, but the $420-per-hour rate is "out of touch with the economic realities of the world." He set the fee at $250 per hour. (Anthony v. Abbott Laboratories, June 18)