Supreme Court ruling could boost use of bias law

Alana Roberts

Tuesday, Oct. 19, 2004 | 11:07 a.m.

A federal discrimination law that predates the Civil Rights Act of 1964 could gain momentum in courts now that the U.S. Supreme Court ruled that a more generous statute of limitations applies under the law, an employment law attorney told a group of human resource professionals last week in Las Vegas.

The federal law known as United States Code Title 42, Section 1981, originally devised in late 19th century, doesn't specifically protect people from discrimination on the basis of gender, age, national origin, religion, race and color and it doesn't protect people from sexual harassment the way Title Seven under the Civil Rights Act does, employment attorneys say.

Instead, it more generally states that every person within the jurisdiction of the United States and its territories will have the same benefits of the law, such as the right to enforce contracts and sue.

However, the law can be used in racial discrimination cases and, because of the more generous statute of limitations and no cap on damages, more employees and plaintiffs attorneys may be turning to this law, Joseph Beachboard, a Los Angeles-based employment law attorney, said in a speech he presented at a Southern Nevada Human Resource Association breakfast.

The U.S. Supreme Court in May ruled that the four-year statute of limitations applied to the law. The case, Jones v. R.R. Donnelley & Sons Co., dealt with plaintiffs' claims that they were discriminated against because they were black.

Beachboard said the law also lacks a requirement to bring cases before the Nevada Equal Rights Commission or the U.S. Equal Rights Commission first before filing suit.

"I think because of this ruling, you'll see more Section 1981 cases," Beachboard said.

To bring a discrimination charge under Title Seven, the plaintiff needs to file the complaint either with NERC within 180 days or with the EEOC within 300 days, Patrick Hicks, a local employment attorney said. The law also lacks a cap on damages unlike cases under the Civil Rights Act that have a $300,000 cap.

As a result of the longer statute of limitations under the Section 1981 law, Beachboard suggested companies keep records of any discrimination claims and investigations for longer periods of time to accommodate the law.

"This may affect record retention policies. Not having documentation is a terrible place to be," Beachboard said.

However Hicks, an attorney at Littler Mendelson, a law firm that represents employers, said the law has been used for several years locally. Hicks did not attend Beachboard's speech.

"We've been seeing these lawsuits for several years. It's not new. It's a way employers can be exposed beyond the normal statute of limitations," Hicks said.

Sharon Nelson, an employee's attorney, said increased awareness of the Section 1981 law might encourage more labor law attorneys to file more complaints because of the generous time limit.

"I would suspect that would pick up simply because I know there are other plaintiffs firms in town that handle Title Seven cases and they turn a lot of cases away because of that statutory deadline. 1981 is a great tool for plaintiffs attorneys because we've got the four-year deadline," Nelson said.

Drawbacks of the law are that the law isn't as broad as Title Seven and doesn't specifically name protected groups. Nelson also said since the law is less popular a person who sues under it is going into uncharted territory.

"I will tell you it has not been utilized as much by plaintiffs attorneys so there's not the extensive case history as there is with Title Seven. So plaintiffs attorneys are more comfortable with Title Seven because of the case law," Nelson said.

Beachboard said another trend in employment litigation that employers should be on the look out for is age discrimination. "Most employment lawyers say this is going to be a growth area," Beachboard said.

He said the U.S. Supreme Court made a decision this past year that bodes well for employers and clarifies the Age Discrimination in Employment Act. In the case of General Dynamics Land Systems v. Cline, the court ruled that the ADEA does not bar "reverse" age discrimination, which allows an employer to favor older workers over younger workers.

"It (ADEA) really protects those who are older over those who are younger," Beachboard said. The ADEA prohibits age discrimination of workers over 40.

Hicks and Nelson said other employment law trends include more class-action litigation based on the Fair Labor Standards Act, more litigation on the basis of the Family Medical Leave Act as well as more cases being brought by the EEOC on behalf of workers.

Hicks agreed that there have been more cases filed locally regarding the Fair Labor Standards Act. He also said the EEOC has filed more cases against employers on behalf of employees.

"I have seen more of those in the last year and a half of my practice than I did in the past 16 1/2 years of my practice," Hicks said.