Employers are generally knowledgeable about Title VII’s prohibition against employment discrimination on the basis of race, sex, national origin, etc. But is Title VII the only remedy for an employee who believes that (s)he has such a claim of employment discrimination?

Long before the enactment of Title VII, in fact 150 years ago, a statute commonly referred to as “Section 1983” was passed after the Civil War to protect the rights of people who are deprived of their Constitutional or other federal law rights by persons who act “under color of state law.” Persons who act “under color of state law” can include virtually any public entity, official, employee, or other person acting on their behalf who act in their official capacity. Therefore, while section 1983 can be used by a person who claims that a police officer used excessive force, or by a person who claims that he was deprived of a property right by a municipality without due process, it also applies to public sector employees who allege claims of employment discrimination.

Note that the Supreme Court has held that section 1983 does not establish any substantive rights but is merely a vehicle for vindicating rights found in the Constitution or federal law.

Can such a public employee sue on a claim of employment discrimination under both Title VII and section 1983?

One recent case dealt with a public employee alleging gender discrimination and sexual harassment who did not meet the pre-filing procedural requirements of Title VII, but sued also under section 1983. The trial court dismissed not only the Title VII claim, but also the section 1983 constitutional claim (a claim based upon the same facts but asserting that her 14th Amendment due process right to continued employment was violated). The court held that Title VII is the “exclusive remedy” for such claims, and that the employee could not circumvent Title VII’s procedural requirements by pleading constitutional violations under section 1983.

An appeals court reversed this decision, holding that “when the employer's conduct violates not only rights created by Title VII, but also rights conferred by an independent source [in this case the 14th Amendment], Title VII supplements, rather than supplants, existing remedies for employment discrimination.”

This case may be of interest only to lawyers, however public employers should be aware that employment discrimination can be pleaded in more than one way. Simply getting a Title VII claim thrown out does not necessarily win the case.