Alaska Employment Law

The 9th Circuit has joined four other circuits in holding that 42 USC § 1981 does not create a private right of action against a State defendant.  The Court rejected the plaintiff’s argument that the 1991 Civil Rights Amendments added that remedy.  The plaintiff relied upon an earlier panel’s opinion that the 1991 amendments created a private right of action against municipalities.  Fed’n of African Amer. Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996).  The Court refused to extend that ruling to § 1981 suits against states.

The impact of this ruling may be slight, since neither § 1981 nor § 1983 (the historic vehicle for remedying § 1981 violations) abrogates state sovereign immunity.  Thus, a citizen would be able to enforce a § 1981 claim against a state defendant only if the state had waived its immunity (intentionally, through state statute, say; or perhaps unintentionally, through removal to federal court, as happened in Pittman’s case).  The Supreme Court held, in Lapides v. Bd. of Regents, 535 U.S. 613 (2002), that a state lost its 11th Amendment immunity when it removed to federal court.

Pittman v. State of Oregon, 2007 WL 4246114 (9th Cir. Dec. 5, 2007).