Survivorship Claims Under Employment Discrimination Statutes

Abstract

This 1999 article discusses the federal district split on whether a plaintiff’s employment discrimination claim survives his or her death. 42 U.S.C. § 1988(a) requires that federal courts apply state law to the question of survivorship of a claim, but federal courts are split on whether that provision applies to claims brought under federal statutes such as the Americans with Disabilities Act. After Robertson v. Wegmann in 1978, many federal courts held that state law could limit survivorship of claims based on the Reconstruction civil rights acts, so long as the state law is not inconsistent with federal law or the Constitution. However, courts have held that survivorship of Age Discrimination in Employment Act claims cannot be limited by state law and must be determined by federal common law. Federal common law distinguishes between remedial statute claims, which survive the plaintiff’s death, and penal statute claims, which do not. For claims under the ADA, federal common law applies and not § 1988(a).

Keywords: survivorship, employment discrimination, employment law, Americans with Disabilities Act, conflicts of law

JEL Classification: K00, K19, K31, K39, K41, K42, K49