In Flores v. City of Westminster, published October 11, 2017, the 9th Circuit Court of Appeals affirmed a judgment after jury trial holding current and former police chiefs liable for alleged racial discrimination and retaliation under 42 U.S.C. section 1981. Section 1981 prohibits discrimination in the making and enforcement of contracts by reason of race, including color or national origin differences. The plaintiff officers alleged that they were discriminated and retaliated against because they were Latino. The defendant chiefs argued that the district court should have dismissed the section 1981 claims, because under California law the employment relationship between the state and its civil service employees is governed by statute, not contract. They further argued that they could not be held liable under section 1981 because the employment relationship was between the defendant city and the officers, rather than between the chiefs and the officers.
In an issue of first impression, the 9th Circuit concluded that section 1981 applies to California public employment. California state courts have established that a public employer who performs services while a statutory provision creating terms and conditions of employment is in effect obtains a right, protected by the contract clause, to require the public employer to comply with the prescribed condition. California law therefore weighs in favor of allowing public employees to bring section 1981 claims. Further, reading California law to bar all public employees from bringing section 1981 claims would hinder the preeminent federal interest in preventing racial discrimination. The chiefs’ argument that any section 1981 claim lies only against the city fails because case law permits individual liability under section 1981.
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