Posts Tagged: supreme court

Smith v. City of Jackson: ADEA Authorizes Employee Disparate Impact Claims

In Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), the Supreme Court recognized that the Age Discrimination in Employment Act, like Title VII of the Civil Rights Act, authorizes disparate impact claims. This means that an employee, to prevail on an age discrimination claim, does not necessarily have to prove her employer intended to discriminate against her because of her age. Under a disparate impact approach, an employee may prove age discrimination by showing the employer took an adverse action against her based on a standard or test that has the effect of adversely impacting older workers — regardless of whether the employer intended to adversely impact older workers. Unlike Title VII, however, § 4(f)(1) of the ADEA narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age[.]” 544 U.S. at 233 (citing 29 U.S.C. § 623(f)(1)). The scope of disparate-impact liability under ADEA is therefore arguably narrower than disparate-impact liability under Title VII. Id. at 240.

As discussed in an earlier post, the Age Discrimination in Employment Act protects employees over age 40 from discrimination based on age in hiring, discharge, promotion, compensation, or other terms, conditions or privileges of employment

Title VII of the Civil Rights Act contains similar provisions outlawing discrimination because of race, sex, or religion. As discussed in an earlier post, the Supreme Court in in Griggs v. Duke Power Company, 401 U.S. 424 (1971), addressed the Title VII issues created by employer policies that are facially neutral, and which the employer does not intend as discriminatory, but which adversely impact employees on the basis of race, sex, or religion. Griggs decided that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately impacts minorities or women in an adverse manner, then the neutral rule or test violates Title VII unless the employer proves it is justified by “business necessity.”

City of Jackson addressed the question of whether the ADEA, like Title VII, allows disparate impact claims by prohibiting facially neutral employer practices that disparately impact older workers.

Facts

City of Jackson involved a challenge to a city’s pay plan for police officers that was relatively less favorable to older workers than to younger workers.

The Jackson plan divided the officers into five basic positions — police officer, master police officer, police sergeant, police lieutenant, and deputy police chief — and divided the pay scale for those positions into a series of steps and half-steps. The few officers in the two highest ranks were all over age 40. The raises they received under the plan, though higher in dollar amount than the raises given to junior officers, represented a smaller percentage of their salaries. These officers in the two highest ranks were the members of the class arguing that the pay plan had a “disparate impact” against older workers.

The Jackson plaintiffs’ evidence established two main facts: First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did. Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority. Because the older officers tended to occupy more senior positions, on average they therefore received smaller increases when measured as a percentage of their salary. Jackson, 544 U.S. 228, 241–42.

The older officers in the two highest ranks filed suit against the City under the ADEA, on the grounds that the pay plan violated the law by having a disproportionate impact on workers over age 40.

The Court’s Decision

Addressing these facts, the Supreme Court held, that like Title VII, the ADEA authorizes disparate-impact claims. The Court also pointed out, however, that unlike Title VII, § 4(f)(1) of the ADEA narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age[.]” Jackson, 544 U.S. at 233. The scope of disparate-impact liability under ADEA is therefore narrower than disparate-impact liability under Title VII. Id. At 240.

To make out an ADEA disparate-impact claim, the Court held that plaintiffs must do more than show a pay plan generally has the effect of being less generous to older workers. They must establish a “specific test, requirement, or practice within the pay plan that has an adverse impact on older workers.” 544 U.S. at 241. In Jackson, while plaintiff employees had proved that the plan was relatively less generous to older workers, they had not identified any specific test, requirement, or practice “within the plan” that had an adverse impact on older workers. Id.

The Court also discussed the provision of the ADEA that permits differentiation based on “reasonable factors other than age,” as applied to the factors underlying the pay plan at issue. See 29 U.S.C. § 623(f)(1). The Court observed that the basic explanation for the differential in the Jackson pay plan was the City’s perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market. The Court held that the disparate impact was attributable to the City’s decision to give raises based on seniority and position. “Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in surrounding communities… [Therefore] the City’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a “reasonable facto[r] other than age” that responded to the City’s legitimate goal of retaining police officers. Jackson, 544 U.S. at 242.

The Court therefore (1) held that the ADEA authorizes disparate impact claims, although the scope of such claims is somewhat narrower than the scope of disparate impact claims under Title VII, and (2) affirmed summary judgment for the employer city on the particular facts of that case.

Analysis

Under City of Jackson, employees may bring ADEA claims on the grounds that facially neutral employer practices or plans have a disparate impact on older workers. However, at least with respect to employer pay plans, it is probably not enough to just show that the end result of the pay plan was relatively less favorable to older workers than to younger workers. Employees would also need to identify a specific practice “within the plan” that adversely affected older workers. 544 U.S. at 241. In the trial court decisions applying City of Jackson under different factual circumstances, however, the practical difference between pointing out that a pay plan “is relatively less generous to older workers” and identifying a “specific test, requirement, or practice within the pay plan that has an adverse impact on older workers” is sometimes a little blurry. Id. For example, the Norfolk division of the Eastern District of Virginia denied an employer’s motion to dismiss an ADEA disparate impact claim, where the complaint alleged the employer “implemented a screening and evaluation process [that] did not evaluate applicants fairly[,] but instead discriminated against candidates based on age”; “employees who were substantially older and with vastly more experience in the position and field were systematically passed over for the ITS positions in favor of younger, less-qualified applicants”; and “support[ed] the allegations with statistical data highlighting the respective ages of the applicants and those selected.” Andreana v. Virginia Beach City Pub. Sch., No. 2:17-CV-574, 2018 WL 2182297, *6 (E.D. Va. May 9, 2018). Similarly, in Merritt v. WellPoint, Inc., 615 F. Supp. 2d 440, 446 (E.D. Va. 2009), the court denied a motion to dismiss where the plaintiffs identified several alleged “arrangements” made by the employer that had a disparate impact on older workers, including: “analytical models,” a “selection process which considered age, and age-related characteristics, as negative factors” including medical care or leave, the use of “metrics,” which disproportionately evaluated and/or impacted older employees, and a consideration of “age and/or age-related characteristics in the ‘cost’ of maintaining an older workforce.”)

The main takeaway is this. City of Jackson held that the ADEA, like Title VII, authorizes disparate impact claims. This means that an employee, to prevail on an age discrimination claim, does not necessarily have to prove her employer intended to discriminate against her because of her age. Under a disparate impact approach, an employee can prove age discrimination by showing the employer took an adverse action against her based on a standard or test that had the effect of adversely impacting older workers — regardless of whether the employer intended to adversely impact older workers. Unlike Title VII, however, the ADEA narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age[.]” ADEA § 4(f)(1). The scope of disparate-impact liability under ADEA is therefore arguably narrower than disparate-impact liability under Title VII.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Price Waterhouse v. Hopkins: The Law of Stereotyping

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court recognized Title VII’s prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. The female employee in Price Waterhouse was denied a promotion because she was “macho,” “tough-talking,” and used “foul language,” and therefore failed to conform to certain gender stereotypes related to women. Id. at 235, 250-53. Six members of the Court held that adverse employment action like this, rooted in “sex stereotyping” or “gender stereotyping,” was actionable sex discrimination.

Facts

Hopkins worked for an accounting firm, Price Waterhouse, at its Office of Government Services in Washington, D.C. Despite several years of strong performance, she was denied partnership in the firm.

Price Waterhouse denied Hopkins partnership, in essence, because of her aggressive personality, which sometimes bordered on abrasiveness. For example, partners evaluating her work had counseled her to improve her relations with staff members. And although Hopkins’ evaluations later noted improvement, her perceived shortcomings in this area ultimately doomed her bid for partnership. In the firm’s consideration of Hopkins for a promotion to partner, virtually all of the firm’s partners’ negative remarks about her had to do with her “interpersonal skills.” Id. at 234-35. Both “[s]upporters and opponents of her candidacy … indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff.” Id.

The Court observed that there were “clear signs” that some of the partners reacted negatively to Hopkins’ personality because she was a woman. Id. One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.” Id. Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Id. Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Id. But the male supervisor who bore responsibility for explaining to Hopkins the reasons for the firm’s decision to not grant her partnership described her purported failings in terms of stereotypes about how women should behave: in order to improve her chances for partnership, the firm advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235.

In short, the record indicated Price Waterhouse denied Hopkins partnership because she did not behave the way Price Waterhouse believed women should behave.

Hopkins filed suit against Price Waterhouse under Title VII of the Civil Rights Act of 1964, on the grounds that she was unlawfully denied partnership because of her sex.

Applicable Law

As discussed in an earlier post, Title VII makes it unlawful for an employer to “discharge any individual, or otherwise discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Sex need only be a motivating factor, and not the only reason for the discharge or other discrimination. “[A]n unlawful employment practice is established when … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

This section clearly prohibits an employer from refusing to hire or promote a female because she is female and the employer would prefer a male. Price Waterhouse addressed the question of whether Title VII also prohibits an employer from discriminating against an individual because she or he does not conform to the employer’s (or society’s) stereotypes about how the different sexes should behave.

The Court’s Decision

Addressing the facts in Price Waterhouse, the Supreme Court held, inter alia, that Title VII’s prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. The Court noted that Hopkins was denied a promotion because she was “macho,” “tough-talking,” and used “foul language,” and therefore failed to conform to certain stereotypes related to women. Id at 235, 250-53. Six members of the Court held that adverse employment action rooted in such “sex stereotyping” or “gender stereotyping” was actionable sex discrimination. Id. at 250–52 (plurality; “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender”); see also id. at 258 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).

Analysis

This case is important in the context of developing and understanding Title VII’s prohibition against employment discrimination “because of sex.” Under Price Waterhouse, a discharge (or other adverse employment action) based at least partly on gender stereotyping is unlawful sex discrimination under Title VII. As the Fourth Circuit Court of Appeals explained in G.G. ex rel. Grimm (Grimm II), “the Supreme Court has expressly recognized that claims based on an individual’s failure to conform to societal expectations based on that person’s gender constitute discrimination ‘because of sex’ under Title VII[.]” 654 Fed. Appx. 606, 606–07 (4th Cir. 2016) (Davis, J., concurring) (internal citations omitted).

As the American Psychological Association explained in its amicus brief in Price Waterhouse, sex stereotyping can create discriminatory consequences for stereotyped groups — for example, where they shape perceptions about women’s typical and acceptable roles in society. The APA further explained, as seen in the circumstances surrounding Hopkins’ partnership denial, how sex stereoptyping can have negative effects on women in work settings. The Supreme Court’s decision in Price Waterhouse allowed Title VII to be applied in a manner that seeks to address and remedy these issues.

Following the reasoning in Price Waterhouse, courts around the country have consistently held that an employer violates Title VII when it takes adverse action against an employee because she or he does not behave the way the employer believes the different sexes should behave. For example, Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1072 (9th Cir. 2003), as amended (Jan. 6, 2004) characterized employer complaints about “assertive, strong women” as “difficult,” “having a negative attitude,” “not a team player,” and “problematic” as sex stereotypes that show discrimination. For similar reasons, in Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351–52 (7th Cir. 2017) (en banc) the Seventh Circuit held that a female plaintiff could state a Title VII claim under a sex stereotyping theory. In Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200–01 (2d Cir. 2017) (per curiam) the Second Circuit likewise held that the plaintiff employee stated a plausible Title VII claim based on a gender stereotyping theory. As did the Third Circuit, in Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (collecting cases, noting “the Supreme Court held that Title VII prohibits discrimination against women for failing to conform to a traditionally feminine demeanor and appearance”). In Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874–75 (9th Cir. 2001), the Ninth Circuit applied Price Waterhouse in the context of sex discrimination against a male employee, observing that “the holding in Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.” Similarly, in Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000), the court noted that Title VII forbids “[d]iscrimination because one fails to act in the way expected of a man or woman”). The First Circuit applied Price Waterhouse in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999), observing that “a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity.”

For some additional examples of stereotyping discrimination in the trial courts, see Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 746 (E.D. Va. 2018) (discussing the gender-stereotyping theory of Price Waterhouse, collecting cases, and concluding claims of discrimination on the basis of failure to conform with gender-based societal expectations are “per se sex discrimination under Title VII[.]”); and Klings v. New York State Office of Court Admin., 2010 WL 1292256, *11, *15-16 (E.D.N.Y. Apr. 5, 2010) (complaints that the female plaintiff had an “abrasive personality” and was “condescending” could reflect a “gender bias: that women do not have leadership and motivational skills, [and] cannot manage aggressively[.]”).

In summary, Price Waterhouse was an important case because, among other things, it confirmed that Title VII’s language prohibiting discrimination “because of sex” includes a prohibition on gender stereotyping.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Anderson v. Mt. Clemens Pottery Co.: Burden of Proving Off-the-Clock Work

The Supreme Court classic Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946),  concerned the extent to which employees’ pre-work activities are compensable working time under the Fair Labor Standards Act (for the text of the FLSA, go here). The case also addressed which party has the burden of proving how much time employees spend engaged in compensable working time. In short, the Supreme Court held that preliminary work activities, like putting on uniforms or preparing tools, were controlled by the employer and performed for the employer’s benefit, are properly included as working time under the FLSA. The Court further held that under the FLSA employees must be compensated for significant time spent preparing to work at the job site. The Court also decided the employer has the burden of proof for determining the exact wages owed to employees who perform off-the-clock work.

As discussed in an earlier post, Section 7(a) of the FLSA defines working time, and requires employers to pay overtime wages under certain circumstances. 29 U.S.C. § 207(a). Section 11(c) of the FLSA requires employers to keep accurate records regarding time on the job. 29 U.S.C. § 211(c). Section 16(b) of the FLSA enables employees to sue to recover lost wages. 29 U.S.C. § 216(b).

Facts

Mt. Clemens Pottery Company employed 1,200 workers at an 8-acre Michigan facility. The plant was about 400 meters long. The employees entered the plant on one side, and worked on the other side. 328 U.S. 682-83.

A time clock was located near the entrance. The employer gave employees 14 minutes between each shift to punch the time clock, walk to their respective workbench and prepare for work. It took a minimum of eight minutes for all the employees to get by the time clock. The estimated walking time for employees ranged from 30 seconds to three minutes, but some workers needed as many as eight minutes to reach their workbenches. Upon arriving at their workbenches, employees were required to put on aprons or overalls, remove shirts, tape or grease arms, put on finger cots, prepare equipment, turn on switches, open windows, and/or assemble or sharpen tools. These kinds of “preparatory activities” took three to four minutes. Id.

The employer calculated working time under the FLSA based on the time cards punched by the clocks. The employer then deducted walking and preparatory time from the time cards based on the punched time and assumptions about how long prep work and walking would take on average. 328 U.S. 683-84.

Seven employees and their labor union brought a collective action under Section 16(b) of the FLSA, on behalf of themselves and other similarly situated workers. The suit alleged that the employer’s calculations did not accurately reflect the time actually worked and that they were deprived of the proper amount of overtime compensation. In short, the employees claimed that the employer’s method of computation (i.e. deducting time from their recorded time at the worksite to eliminate time spent on preliminary activities) did not accurately reflect all the time actually worked. Therefore, the employees argued, they were thereby deprived of the proper overtime compensation guaranteed them by Section 7(a) of the FLSA. The employees claimed, among other things, that all employees worked approximately 56 minutes more per day than the employer gave them credit for and that, in any event, all the time between the hours punched on their time cards constituted compensable working time. 328 U.S.C. 684.

The Court’s Decision

The Court held that when an employee sues her employer under the FLSA for unpaid minimum wages or unpaid overtime pay, claiming the employer has kept inadequate records of the employee’s time actually worked, and the employee produces sufficient evidence to show the amount of work for which the employee was not properly compensated as a matter of “just and reasonable inference,” the burden shifts to the employer to produce evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference favoring the employee. 328 U.S.C. § 687. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may only be approximate, based on a reasonable estimate of amount of time the employee worked without compensation. Id. In other words, where the employer has not kept accurate records of all the time an employee works, the employer cannot complain that the unpaid minimum wages or overtime pay awarded to the employee lack the exactness that would have been possible had the employer kept accurate records. Id.

In reaching this conclusion, the Court reasoned that Section 11(c) of the FLSA imposed upon the employer, not the worker, the duty to keep proper records of wages, hours and other conditions and practices of employment. Where an employer fails to keep accurate records of time worked (i.e. including time worked off the clock, or time spent conducting preliminary activities before clocking in), the law does not deny recovery on the ground that the employee is unable to prove the precise extent of her uncompensated work. That approach, the Court reasoned, would create a strong disincentive for employers to keep any records at all and shift the burden of time-keeping back onto the employee. The Court therefore concluded that “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. at 687.

The Court remanded the case to the trial court to determine how much time (on average) was spent walking and how much time doing preparatory activities and to enter an award of lost wages based only the amount of time engaged in preparatory activity.

Analysis

In practical terms, the Court’s decision in Mt. Clemens Pottery meant that once an employee testifies she has not been fully compensated for all the time she worked, the employer has the burden of proof for determining the exact wages owed to the employee for performing off-the-clock work. If the employer has not kept complete records of all time worked, including off-the-clock work, the employee may be awarded unpaid minimum wages or overtime pay based on a just and reasonable estimate of the uncompensated time she worked.

In light of the Court’s ruling in Mt. Clemens Pottery, in 1947 Congress amended the FLSA by enacting the Portal to Portal Act of 1947. 29 U.S.C. § 251, et seq. Among other things, the Portal to Portal Act sought to impose some limits on employer liability for time employees spent in “preliminary and postliminary” activity. 29 U.S.C. § 254(a).

The Supreme Court reaffirmed Mt. Clemens Pottery in the 2016 case Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016). In so holding, the Court reiterated that “where an employer violated its statutory duty to keep proper records, the [Mt. Clemens Pottery] Court concluded the employees could meet their burden by proving that they in fact ‘performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’” 136 S. Ct. 1036, 1040 (2016) (quoting Mt. Clemens Pottery, 328 U.S. at 687.)

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Griggs v. Duke Power: Disparate Impact Without Discriminatory Intent

The Supreme Court’s decision in Griggs v. Duke Power Company, 401 U.S. 424 (1971), addressed the Title VII issues created by employer policies that are facially neutral, but which adversely impact employees on the basis of race, sex, or religion. In short, the Griggs Court decided that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the neutral rule or test violates Title VII unless the employer proves it is justified by “business necessity.”

Summary

Title VII of the Civil Rights Act of 1964 prohibits employers from treating employees differently because of their race, sex, or religion. This means, obviously, that an employer cannot refuse to hire an applicant because of the applicant’s race. But sometimes employers may implement policies, or require applicants to take tests, that work to disadvantaged members of one sex, race, or religion over others — even though the employer may not have intended the policy or test to have that effect. For example, in Griggs, Duke Power had a policy that required employees in all but its lowest-paying jobs to have a high school diploma or pass “intelligence” tests. There was no evidence Duke Power intended this policy to discriminate against minority workers. The employees in Griggs argued this policy violated Title VII because it disproportionately impacted black workers.

The Griggs Court reasoned that Congress designed Title VII to address the consequences of employment practices and not just the employer’s motivation. Therefore, a neutrally-worded employment policy or test that has the effect of disproportionately impacting employees of one sex, race, or religion, may be unlawful under Title VII even if the employer did not intend that policy or test to be discriminatory in that way. The Griggs decision made it possible for employees to challenge employment practices that disadvantage certain groups if the employer cannot show the policy is justified by business necessity and paved the way for the Civil Rights Act of 1991, which codified the “disparate impact” theory of discrimination endorsed by Griggs.

Facts

Before Congress passed the Civil Rights Act of 1964, Duke Power intentionally discriminated against African-American employees by only allowing these employees to work in the company’s low-paying labor department. In 1955, the company implemented a policy requiring potential employees to have a high school diploma before they could work in any department except for the labor department. After the Civil Rights Act went into effect in 1965, Duke Power extended this policy to block employees who had not graduated high school from transferring or being promoted from its labor department to other departments within the company. Duke Power later amended this policy to allow employees who had not graduated high school to transfer from labor to other departments provided they were able to garner certain scores on “intelligence” tests. Here’s an article about the history behind this case.

Griggs filed a class action on behalf of twelve African American employees, claiming this diploma/testing policy violated Title VII by disproportionately impacting black workers. The case did not involve evidence that Duke Power intended its policy to harm black workers. The issue, then, was whether an employer’s facially neutral policy or test could violate the anti-discrimination provisions of Title VII on the grounds that the policy had the effect of disadvantaging minority workers.

Procedural Posture

The trial court dismissed the complaint. Griggs appealed. The Fourth Circuit affirmed in part, reversed in part, and remanded, holding that in the absence of a discriminatory purpose, Duke Power’s policy requiring a high school diploma or passing an “intelligence” test as a condition of employment was lawful under the Civil Rights Act. The Fourth Circuit, therefore, rejected Griggs’ claim that because Duke Power’s policy operated to render ineligible for employment a disproportionately high number of minority workers, the policy violated Title VII’s anti-discrimination provisions unless the employer proved the policy was job-related.

The Court’s Decision

The Court reversed. It held that Title VII prohibited Duke Power from requiring employees to produce a high school diploma or pass an “intelligence” test as a condition of employment, because Duke Power failed to show that these standards were significantly related to successful job performance, and both requirements operated to disqualify minority workers at a substantially higher rate than white applicants. The Court also observed that the jobs in question formerly had been filled only by white employees as part of Duke Power’s long-standing practice of giving preference to whites.

The Court pointed out that Congress’ objective for Title VII was to “achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” 401 U.S. at 429–30. Therefore, under Title VII, “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Id. at 430. Intent is not dispositive. Title VII requires “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id. at 431.

The critical point here was the Court’s understanding that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” Id. at 432; see also Civil Rights Act of 1964, §§ 701 et seq., 703(a) (2), (h), 42 U.S.C. §§ 2000e et seq., 2000e–2(a) (2), (h). Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” 401 U.S. at 431.

After all, Congress intended Title VII to address “the consequences of employment practices, not simply the motivation.” Id. at 432. More than that, Title VII places on the employer “the burden of showing that any given requirement must have a manifest relationship to the employment in question.” Id. Therefore, an employer’s facially-neutral policy or test can violate the anti-discrimination provisions of Title VII if the policy has the effect of disadvantaging minority workers, and the employer fails to prove the policy or test is justified by “business necessity.” Id. at 431. “If an employment practice which operates to exclude [minority workers] cannot be shown to be related to job performance, the practice is prohibited.” Id.

Analysis

After Griggs, a neutrally-worded employment policy or test that has the effect of disproportionately impacting employees of one sex, race, or religion, may be unlawful under Title VII even if the employer did not intend that policy or test to be discriminatory in that way. The Griggs decision made it possible for employees to challenge employment practices that disadvantage certain groups if the employer cannot show the policy is justified by business necessity. Griggs also paved the way for the Civil Rights Act of 1991 (text here) which codified the “disparate impact” theory of discrimination endorsed by Griggs. In contrast to disparate treatment cases, which often turn on evidence of the employer’s intent, disparate impact cases commonly use statistical analyses to assess whether an employer’s policy or test runs afoul of Title VII by disproportionately harming employees of a certain race(s), sex, or religion.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

McDonnell Douglas Corporation v. Green: A Framework for Analyzing Discriminatory Intent Using Indirect Evidence

In the landmark McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the Supreme Court described a burden-shifting framework by which employees can prove their employers engaged in unlawful discrimination under Title VII without any “direct” evidence of discriminatory intent. The enduring aspect of this case was the Court’s description of the burden-shifting proof framework, and not so much the outcome of particular factual case before it.

Summary

In short, McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like a statement from her boss saying, “We’re firing you because of your race”), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims where the plaintiff has chosen to proceed using purely indirect or circumstantial evidence.

Facts

Green was a black mechanic, lab technician, and civil rights activist. He worked for McDonnell Douglas Corporation, a St. Louis aerospace company, until his termination in 1964. After his discharge, Green participated in a protest against McDonnell Douglas in which he asserted that his termination had been racially motivated and in violation of Title VII of the Civil Rights Act of 1964. The protest involved a “stall-in” in which protesters parked vehicles to block the roads leading to one of the company’s factories. Green was arrested for obstructing traffic. After the protest, McDonnell Douglas publicly advertised a job opening for qualified mechanics. Green applied for the position. Although Green was a qualified mechanic, McDonnell Douglas declined to hire him. McDonnell Douglas later defended this decision not to hire Green on the grounds that Green had engaged in illegal traffic-obstructing conduct while participating in the protest.

Procedural Posture

Green filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging McDonnell Douglas refused to rehire him on the basis of race and retaliation in violation of Title VII. The EEOC found reasonable cause to believe McDonnell Douglas’ rejection of Green’s reemployment application violated the anti-retaliation provision of §704(a) of Title VII. That section forbids discrimination against applicants or employees for making any attempt to protest or rectify allegedly discriminatory employment conditions. 42 U.S.C. § 2000e–3(a). The EEOC made no finding as to Green’s allegation that McDonnell Douglas violated §703(a)(1) of Title VII, which prohibits racial and other types of status-based discrimination. 42 U.S.C. § 2000e–2(a)(1).

Green filed suit. The District Court dismissed Green’s claims, holding that McDonnell Douglas refused to rehire Green because of his participation in illegal protest demonstrations, rather than his race or opposition to racial discrimination. The District Court ruled that Green’s (illegally) obstructing traffic in protest was not an activity protected by §704(a), and dismissed Green’s §703(a)(1) racial discrimination claim on the grounds that the EEOC had made no finding of racial discrimination in any employment decision. The Court of Appeals affirmed the dismissal of the §704(a) retaliation claim. But it reversed the dismissal of Green’s §703(a)(1) racial discrimination claim, holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to pursuing a discrimination claim in federal court violation. McDonnell Douglas appealed this decision. The Supreme Court granted cert.

The Court’s Decision: A Framework for Analyzing Indirect Evidence of Discrimination

In a 9-0 decision in favor of Green, the McDonnell Douglas Court described burden-shifting framework of organizing and evaluating indirect proof of discrimination. An employee may use this approach to show intentional discrimination by an employer in the absence of any direct evidence of discrimination. More than 45 years later, the McDonnell Douglas framework continues to guide lower courts’ summary judgment analyses of many discrimination and retaliation claims.

The McDonnell Douglas framework entails three discrete steps. First, the plaintiff employee must establish a prima facie case by presenting sufficient indirect evidence to give rise to an inference of discrimination. For example, in a non-hiring case, the employee can establish a prima facie case by presenting evidence that (1) the employee is a member of a Title VII protected group; (2) she applied and was qualified for the position sought; (3) the job was not offered to  her; and (4) the employer continued to seek applicants with similar qualifications. Similarly, in a demotion or termination case, the employee can establish a prima facie of racial discrimination case by showing (1) that she is a member of a Title VII protected group, (2) that she was qualified for the position she held, (3) that she was demoted and/or discharged from that position, and (4) that the position remained open and was ultimately filled by a someone of a different race. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

If the employee can prove the elements of a prima facie case, the McDonnell Douglas analysis moves to the second step.

In that second step, the burden shifts to the defendant employer. The employer is allowed to offer a purported non-discriminatory reason for the adverse action suffered by the employer— such as the refusal to hire, or a termination. For example, in McDonnell Douglas, the employer argued that it refused to rehire Green not because of his race, but because he illegally obstructed traffic. Once the employer offers a non-discriminatory reason for its decision, the burden shifts back to the employee.

In that final step of the McDonnell Douglas framework, the plaintiff employee must be allowed the opportunity to demonstrate that the defendant’s proffered explanation is not consistent with a completely honest or unbiased view of the employee, making the explanation “pretext” for a discriminatory bias underlying the adverse employment action.

The Court therefore held that while the Court of Appeals correctly found Green proved a prima facie case of race discrimination, it erred in holding that McDonnell Douglas had failed to discharge its burden of presenting a legitimate, non-discriminatory reason for its decision to not rehire Green (his participation in illegal traffic obstructing). Critically, the Court made clear that on remand the employee Green must be given a fair opportunity to show that his employer’s stated reason was a pretext for a racially discriminatory decision. The Court indicated that one way an employee in Green’s position could successfully demonstrate pretext was with comparator evidence — such as by showing that white employees who engaged in similar illegal activity were retained or hired by McDonnell Douglas. Other evidence that may be relevant at the pretext stage, depending on the circumstances, could include evidence that the employer had discriminated against the respondent when he was an employee, or followed a discriminatory policy toward minority employees. See McDonnell Douglas, 411 U.S. at 804-05. This framework and its application has been the topic of much scholarly literature.

The McDonnell Douglas Court agreed with the Court of Appeals that an employee’s right to bring suit under Title VII is not confined to charges as to which the EEOC has made a reasonable cause finding.

Analysis

McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like an admission from a supervisor that the employee was fired because of her race), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion there describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims that turn on purely indirect or circumstantial evidence. First, the employee must establish a prima facie case which will give rise to an inference of discrimination. Second, the employer is allowed to offer a purported non-discriminatory reason for its adverse action against the plaintiff. And in the final step of this framework, the employee must be allowed the opportunity to show that the employer’s proffered explanation is just pretext for discriminatory bias.

It is worth noting that for an employee to prove unlawful discrimination, the McDonnell Douglas proof framework is not required. Rather “discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (emphasis added) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n3 (2003)). As noted above, direct evidence is “evidence of conduct or statements that both reflect[s] directly the alleged discriminatory attitude and … bear[s] directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc)).

The McDonnell Douglas framework turns on circumstantial evidence and inference, having the employee demonstrate the employer’s proffered non-discriminatory reason for termination is “unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “The Supreme Court constructed the elements of the [McDonnell Douglas] prima facie case to give

plaintiffs who lack direct evidence a method for raising an inference of discrimination.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (citing Burdine, 450 U.S. at 253–54 and Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003)).

Where “a plaintiff has direct evidence of discrimination … the McDonnell Douglas framework is of little value[.]” Id. at 318 n4 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concurring) (noting that the Supreme Court has suggested that the burden-shifting framework is inapplicable where a plaintiff presents direct evidence of discrimination)).

An employee who has direct evidence of discrimination, or a combination of direct and indirect evidence, may therefore prove her claims without using the McDonnell Douglas method.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

 

Originally published on timcoffieldattorney.com 

Vance v. Ball State, 133 S.Ct. 2434 (2013): Vicarious Liability for Workplace Harassment

Vance v. Ball State, 133 S.Ct. 2434 (2013) addresses the circumstances under which an employer (i.e. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. This is generally referred to as “vicarious liability” — when the employer company or government is liable for the actions of its employees. Vance discusses the differing standards of proof for holding a company responsible for harassment in its workplace. Which standard applies depends on whether the harassing employee qualifies as a “supervisor,” as the case defines that term, and whether the harassment at issue culminated in a tangible employment action.

The plaintiff in Vance, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Davis, violated Title VII of the Civil Rights Act through physical and verbal acts of racial harassment, thereby creating a racially hostile work environment. The District Court granted summary judgment to Ball State. It held that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who lacked the authority to take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed this decision, as did the Supreme Court.

In so holding, the Court articulated differing standards of proof for holding an employer liable for harassment in the workplace.

Co-Worker Harassment: Negligence

Under one approach, if the harassing employee was the victim’s co-worker, the employer can be held responsible (i.e. lose a lawsuit, and have to compensate the victim for the harassment he or she suffered at work) if the employer was negligent in allowing the harassment to take place. In other words, the employer can be liable for co-worker harassment if the company knew or should have known that the harassment would take place or was taking place, but did not take adequate steps to prevent or stop it.

Supervisor Defined

Under another approach — the primary topic of the decision in Vance — an employer can be held strictly liable or responsible for harassment by any of its “supervisors” against subordinate employees. This presents the question of what kind of employee constitutes a “supervisor” for the purposes of holding the employer responsible for that employee’s harassment of another worker. In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he is empowered by the employer to take “tangible employment actions” against the victim. A tangible employment action means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

In so defining “supervisor,” the Court rejected various colloquial meanings of the term, and determined the concept was best understood by looking to the employer / employee framework set out in Title VII and the Court’s prior decisions in Ellerth and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).

Supervisor Harassment I: Strict Liability for Harassment Resulting in a Tangible Employment Action

The Vance Court further decided that if a supervisor’s harassment culminates in a “tangible employment action”, then the employer is strictly liable for the harassment. For example, if a supervisor demoted or fired a subordinate because she refused his sexual advances, the employer is responsible for that harassment — regardless of whether anyone at the company other than the harassing supervisor and the victim knew about the harassment.

Supervisor Harassment II: In the Absence of a Tangible Employment Action, Employer May Escape Liability with Faragher / Ellerth Defense

The Vance Court also discussed the standard for holding an employer liable for supervisor harassment when the harassment does not result in a tangible employment action. Under those circumstances, the Court explained , the employer may escape liability for the harassment if it can establish, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. This affirmative defense was described at length in previous Supreme Court cases Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 765 (1998). This is significant, because when the harasser is a supervisor the burden of proof is on the employer to prove this defense, as opposed to the situation where the harasser was a co-worker, in which case the victim has the burden of proving the employer was negligent in controlling working conditions. If the employer cannot prove the Faragher / Ellerth defense or another defense, it will generally be liable for the supervisor’s harassment.

As noted above, if the harassing employee does not qualify as a supervisor and is instead just a rank-and-file co-worker, Vance says that to hold the employer liable, the harassment victim can show that the employer was negligent in controlling working conditions and allowing a work environment where harassment could take place. But as explained Vance, it is generally easier for the victim of harassment to prevail against an employer if the harasser  is considered a “supervisor” rather than a just “co-worker.” This is because the employer is strictly liable for a supervisor’s harassment — liable without proof of negligence — if the harassment results in a tangible employment action, or if the employer is unable to meet its burden of proof to establish the Faragher / Ellerth defense.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)

 

Oncale v. Sundowner Offshore Services is an important case in the development of employee protections from sexual harassment, same-sex discrimination, sexual orientation discrimination, and sexual identity discrimination. Specifically, Title VII of the Civil Rights Act of 1964 — the primary federal law barring sex-based discrimination in employment — prohibits workplace discrimination and harassment that is “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). This language plainly bars an employer from treating male employees better than female employees, or vice versa, and plainly bars employers from making sexual activities a condition of employment. But the text of Title VII does not specifically explain whether this “because of … sex” language also bars sexualized harassment by a straight employee against another straight employee of the same sex, or whether it bars discrimination against an employee because of his/her/their sexual orientation or gender identity.

Summary

Oncale specifically concerns the meaning of the phrase “because of…sex” in the context of same-sex harassment among straight male employees. The central decision in Oncale was that Title VII’s rule against discrimination “because of… sex” applied to sexualized harassment in the workplace between members of the same sex, even when the conduct at issue is not motivated by sexual desire. This decision was a precursor to later cases applying that same “because of … sex” language in the context of discrimination based on sexual orientation and gender identity.

Facts and Procedural Background

Oncale worked for Sundowner on an oil rig in the Gulf of Mexico. He was part of a crew of eight men. On several occasions, certain crew members subjected Oncale to “sex-related, humiliating actions … in the presence of the rest of the crew … physically assaulted Oncale in a sexual manner, and … threatened him with rape.” 523 U.S. at 77. Oncale complained to his supervisors about the behavior, but they allowed it to continue. Oncale eventually quit, and requested that his personnel file reflect that he left “due to sexual harassment and verbal abuse.” Id. Apparently all the crew members were straight, so presumably their actions were not motivated by sexual desire. Id. at 79.

Oncale sued Sundowner, claimed that the harassing behaviors directed against him by his straight male co-workers constituted discrimination “because of … sex” under Title VII. The District Court granted summary judgment for Sundowner, dismissing the case on the grounds that Oncale, being male, had no cause of action under Title VII for harassment by male co-workers. The Fifth Circuit affirmed. 83 F.3d 118 (1996).

Supreme Court Decision: Same-Sex Discrimination is Action Under Title VII

In a 9-0 decision written by Scalia, the Supreme Court reversed, holding that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court’s reasoning here was that (1) under Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682 (1983), Title VII’s prohibition of discrimination “because of … sex” protects men as well as women, and (2) under Castaneda v. Partida, 430 U. S. 482, 499 (1977), in the related context of racial discrimination in the workplace, the Court had rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Castaneda, 430 U.S. at 499. It therefore follows that males might discriminate against other males.

The Court’s Rationale

The Court further explained there was no justification in Title VII’s language or the Court’s precedents for a categorical rule barring a claim of discrimination “because of … sex” just because the victim and the harasser are of the same sex. Scalia explained that while male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII … Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

The Court therefore held that same-sex harassment is actionable under Title VII, so long as the conduct meets the well-established elements of a sexual harassment claim: (1) that the conduct at issue was “not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex’ and (2) that the conduct “severe or pervasive enough to create an objectively hostile or abusive work environment[.]” Id. at 81.

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Scalia further pointed out that in all harassment cases, including same-sex cases, the “severe or pervasive” inquiry requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale at 81. For example, “[a] professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Id. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Id. at 81-82.

The Court therefore rejected Sundowner’s argument that recognizing liability for same-sex harassment would transform Title VII into a “general civility code” for the American workplace. Scalia explained that Title VII is directed at discrimination “because of” sex, not merely “conduct tinged with offensive sexual connotations.” Id. at 81. The Court also pointed out that Title VII does not reach “genuine but innocuous differences” in the ways men and women routinely interact with members of the same, and the opposite, sex. Id.

Analysis and Significance

In short, Oncale is important because it held that Title VII’s protection against workplace discrimination “because of… sex” applies to sex-based conduct between members of the same sex, even in the absence of sexual desire. This was an important early decision in the development of the rights of employees to be free from workplace discrimination because of their sexual orientation or gender identity. For example, in 2015 the EEOC cited Oncale as part of its rationale for issuing an agency decision that Title VII bars sexual orientation-based employment discrimination. Oncale therefore laid the foundation for analyzing same-sex harassment and sex-based harassment without “sexual desire” by indicating that any discrimination based on sex is actionable if it places the victim in an objectively hostile or abusive work environment, regardless of the victim’s or harasser’s gender or sexual preference.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013): Different Standards for Proving Causation in Title VII Discrimination and Retaliation Claims

In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), the Supreme Court clarified the appropriate standards for proving causation in claims brought under Title VII of the Civil Rights Act of 1964. In short, the Court held that to prevail on a retaliation claim under Title VII, an employee must prove retaliation was a “but-for” cause of the adverse employment action at issue. This is arguably a more stringent causation standard than that available in Title VII claims for status-based discrimination, where an employee may prevail by showing her race, sex, religion, or national origin was a “motivating factor” behind the adverse employment action. But-for causation, however, does not require employees to prove retaliation was the sole cause of an adverse employment decision. Just like any event, a termination or other adverse action can (and often does) have multiple but-for causes.

Title VII protects employees and prospective employees from discrimination based on their race, color, sex, religion, or national origin. Under Title VII, an employer may not treat employees or job applicants differently based on such factors. 42 U.S.C. §2000e–2(a). In addition to those status-based discrimination protections, Title VII also prohibits employers from retaliating against any employees who oppose employment practices made unlawful by the statute, or who participate in filing complaints or investigations of discrimination. 42 U.S.C. §2000e–3(a).

Nassar highlights the differing standards for proving causation in Title VII retaliation claims and status-based discrimination claims, respectively.

Background

Nassar was a physician of Middle Eastern descent. His employer, University of Texas Southwestern Medical Center, held an affiliation agreement with a hospital, Parkland Memorial, that required the hospital to offer any vacant staff physician posts to University of Texas faculty members. Nassar held a position as a university faculty member and a hospital staff physician. During his employment, Nassar claimed a Dr. Levine, a supervisor, discriminated against him on account of his religion and ethnic heritage. Nassar brought this complaint to the attention of Dr. Fitz, the supervisor of Levine. After he arranged to continue working at the hospital without remaining on the university faculty, Nassar resigned from his university teaching position and circulated a letter explaining that he was resigning because of Levine’s harassment. Upset by the Levine’s public humiliation, Fitz objected to Nassar’s hospital job offer, and the offer was then withdrawn.  

Nassar filed suit, alleging two discrete violations of Title VII. First, Nassar claimed Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the university, in violation of 42 U.S.C §2000e-2(a), which prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, or national origin.” This was, therefore, a claim of status-based discrimination. Second, Nassar claimed Fitz’s efforts to prevent the hospital from hiring him were in retaliation for his complaints about Levine’s discrimination and harassment, in violation of 42 U.S.C. §2000e-3(a), which prohibits employers from retaliating “because an employee has opposed… an unlawful employment practice… or… made a Title VII charge. The jury found for Nassar on both claims. The Fifth Circuit vacated the constructive discharge claim, but affirmed as to the retaliation claim, on the theory that retaliation claims brought under §2000e–3(a) —like §2000e–2(a) status-based claims— require only a showing that retaliation was a “motivating factor” for the adverse employment action, not its but-for cause. See 42 U.S.C. §2000e–2(m). And the Fifth Circuit found sufficient evidence to support the jury’s finding that Fitz was motivated, at least in part, to retaliate against Nassar for his complaints about Levine.

The Court’s Decision

The Supreme Court reversed, holding that Title VII retaliation claims require evidence of “but-for” causation, and could not be proved using the “motivating factor” standard of §2000e—2(m).

As the Court explained, an employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. In those claims, it is sufficient if the employee only shows that the motive to discriminate (because of race, color, sex, religion, or national origin) was one of the employer’s motives in taking an adverse employment action (like a termination or promotion denial), even if the employer also had other, lawful motives for the decision. This principle arose from the Civil Rights Act of 1991, which substituted a new Title VII burden-shifting framework for the one previously endorsed by the Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The 1991 Act added a new subsection to §2000e–2, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000e–2(m). Significantly, the text of §2000e—2(m) does not mention the causation standard for retaliation claims.

Rather, Title VII’s anti-retaliation provision appears in a different part of the law from the ban on status-based discrimination. The Court noted that like 29 U.S.C. §623(a)(1), the Age Discrimination in Employment Act provision at issue in Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), §2000e–3(a) (Title VII’s anti-retaliation provision) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Finding a “lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1)”, the Court concluded that Title VII retaliation claims require proof that the desire to retaliate was a but-for cause of the challenged employment action.

In so holding, the Court rejected Nassar’s arguments that §2000e–2(m)’s motivating-factor test applied to retaliation claims. First, the Court noted that such a reading was inconsistent with the plain language of the motivating-factor section, which discusses only race, color, religion, sex, and national origin discrimination — i.e., status-based claims. The section says nothing about retaliation claims. 570 U.S. at 339, 352-53.

Second, the Court determined Nassar’s reading was inconsistent with the statute’s “design and structure.”  570 U.S. at 339, 353. This was because Congress made the motivating-factor provision a subsection within §2000e–2, which deals only with status-based discrimination. By contrast, another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. The Court reasoned that if Congress had intended the motivating-factor section to apply to retaliation, it would have included similar language — addressing all unlawful employment actions, instead of just status-based actions — in the motivating-factor section. Congress did not do this. The Court, therefore, concluded that Congress deliberately omitted retaliation claims from the motivating-factor provision set out in §2000–2(m).

Third, the Court rejected Nassar’s proposition that Congress’ enactment of a “broadly phrased antidiscrimination statute”, like Title VII, may signal an accompanying intent to also ban retaliation against individuals who oppose that discrimination. 570 U.S. at 339, 354-55. Some cases seemed to support this argument. For example, in CBOCS West, Inc. v. Humphries, 553 U. S. 442 (2008), the Court held that 42 U.S.C. §1981 — which ensures that all persons “shall have the same right … to make and enforce contracts … as is enjoyed by white citizens” — prohibits not only racial discrimination but also retaliation against those who oppose it. Id. at 445, 452–453. Similarly, the Court has interpreted the broad wording of the ADEA’s federal-employee provisions (“All personnel actions affecting [federal] employees … who are at least 40 years of age … shall be made free from any discrimination based on age”) as including a bar on retaliation. Gómez–Pérez v. Potter, 553 U.S. 474, 479, 487 (2008); 29 U.S.C. § 633a(a). But the Court found that these cases did not support the “quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for retaliation, especially in a precise, complex, and exhaustive statute like Title VII.”  570 U.S. at 339, 355. For example, the Court pointed out that the Americans with Disabilities Act of 1990, which contained detailed descriptions of the practices constituting prohibited discrimination, as well as an express, separate anti-retaliation provision, was passed only a year before §2000e–2(m) was passed. The Court found this shows that “when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly.” Id. at 339, 357.

The Court also expressed concerns that applying a motivating-factor standard to retaliation claims would stress administrative and judicial resources, by potentially leading to an increase in claims where the employer had acted without retaliatory intent. 570 U.S. at 358-59.

Finally, the Court rejected Nassar’s last-resort argument that retaliation claims should be allowed to proceed under a motivating-factor framework because that approach would be consistent with the views of the Equal Employment Opportunity Commission, as expressed in its guidance manual. The Court determined that the EEOC’s explanations for its views “lack[ed] the persuasive force that is a necessary precondition to deference” under Skidmore v. Swift & Co., 323 U.S. 134 (1944). 570 U.S. at 361.

The Court therefore held that Title VII retaliation claims must be proved according to the traditional principles of but-for causation, not the more lenient motivating factor standard that § 2000e-2(m) applies to status-based discrimination claims.

Analysis

It is worth noting that while but-for causation is often viewed as a higher standard of causation than motivating-factor, it does not require employees to prove that retaliation was the sole cause of an adverse employment decision. A termination or other adverse action, just like any event, can (and often does) have multiple but-for causes. For example, a car might run off the road because the driver was speeding, the road was wet, and the tires were bald. If the road were dry, or if the driver had not been speeding, or if the tires had not been bald, the car would have stayed on the road. In that situation, the driver’s speed, the road conditions, and the tires were all but-for causes of the car leaving the road. Similarly, an employer might terminate an employee partly because the employee was not a top performer, and partly in retaliation because the employee had complained about sexual harassment. Under Nassar, the key question in these cases is simply whether the employer would have taken the adverse action in absence of a retaliatory motive. If the answer to that question is “no,” the but-for standard is satisfied.


This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

Encino Motorcars v. Navarro (SCOTUS, April 2, 2018)

Encino Motorcars v. Navarro (SCt. Case No. 16-1362) (Encino II) held that service advisors at car dealerships are exempt from the provisions of the Fair Labor Standards Act (FLSA) requiring employers to pay overtime to employees who work more than forty hours in a week. Enacted in 1938, the FLSA is the United States labor law that created the employee right to minimum wage, and overtime pay (generally, one and a half times the employee’s regular hourly rate) for employees who work over forty hours a week. The FLSA, however, contains numerous exemptions — categories of employees who are not entitled to receive overtime pay under the FLSA based on their job duties. These employees are referred to as “exempt” from the right to receive overtime pay.

One such provision, codified at 29 U.S.C. §213(b)(10)(A), provides an exemption to the overtime-pay requirement for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The plaintiff employee Navarro in Encino Motorcars worked for a car dealership as a service advisor. Navarro sued the dealership on behalf of himself and other service advisors, arguing that the dealership violated the FLSA by failing to pay them overtime wages. The primary question for the Supreme Court was whether the FLSA entitled service advisors to overtime pay, or whether the job of service advisor fell into the exemption for “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles[.]”

At the trial court level, the district court had dismissed the suit on the grounds that service advisors were exempt and therefore were not entitled to overtime pay. The employees appealed that decision, and the Court of Appeals for the Ninth Circuit reversed the trial court, finding that the exemption for “salesman … primarily engaged in selling or servicing automobiles” did not apply to service advisors at car dealerships. In a 5-4 decision, the Supreme Court reversed the Ninth Circuit and held that the service advisors were exempt and therefore not entitled to overtime pay. Justice Thomas wrote the majority opinion. Justice Ginsberg wrote the dissent.

The Court first determined that a service advisor is a “salesman” for the purposes of the exemption at issue, because the ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles[.]” Encino II at 6 (cite to earlier decision omitted).

Next, the Court held that service advisors are also “primarily engaged in . . . servicing automobiles.” Thomas’ reasoning here was that “servicing” can mean either “the action of maintaining or repairing a motor vehicle” or “[t]he action of providing a service,” and service advisors satisfy both definitions because they are integral to the servicing process. Encino II at 6-7. Service advisors meet customers and listen to their concerns about their cars; suggest repair and maintenance services; sell new or replacement parts; record service orders; follow up with customers as the services are performed; and explain the repair and maintenance work being performed. Encino II at 6-7 (quotes omitted). Therefore, service advisors are primarily engaged in servicing automobiles.

In reaching this conclusion, Thomas rejected the Ninth Circuit’s approach to interpreting the word “or” in the language of the exemption (“any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles”). The Ninth Circuit had applied the distributive method — matching “salesman” with “selling” and “partsman [and] mechanic” with “servicing”— and therefore determined that the exemption does not apply to “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” The Supreme Court disagreed with that approach, observing that the word “or,” is “almost always disjunctive” — meaning, in this context of this language, that “salesman” could be matched with “servicing.” Encino II at 7-9 (citing United States v. Woods, 571 U. S. 31, 45.) The Court also pointed out that the distributive use of “or” worked best when one-to-one matching was possible and did not make as much sense when trying to pair three terms (“salesman, partsman, or mechanic”) with two terms (“selling” or “servicing”). Therefore, the Court applied the disjunctive meaning of “or.” By using “or” to join “selling” and “servicing”, Thomas determined that the exemption covers a salesman primarily engaged in either selling or servicing. This included service advisors, which the Court had concluded were salesmen primarily engaged in servicing automobiles. Encino II at 7-9.

Thomas also discussed the Ninth Circuit’s application of the long-standing principle in FLSA jurisprudence that exemptions should be narrowly construed. Thomas rejected that approach, reasoning that because the FLSA “gives no textual indication that its exemptions should be construed narrowly, there is no reason to give them anything other than a fair (rather than a ‘narrow’) interpretation.” Encino II at 9 (citing and quoting Scalia, Reading Law, at 363.)

In sum, this case determined that service advisors at auto dealerships are exempt from the overtime-pay requirement, and departed from the Court’s long-standing principle that FLSA exemptions should be construed narrowly.

This article was originally published on timcoffieldattorney.com

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Title I of the Americans with Disabilities Act: Protections for Employees with Disabilities

Enacted in 1990, the Americans with Disabilities Act is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life. This includes jobs, schools, transportation, and all public and private places that are open to the general public. Similar to laws that prohibit discrimination based on race, gender, or religion, the ADA’s purpose is to ensure that people with disabilities have the same rights and opportunities as those who do not. This protects disabled individuals by guaranteeing equal opportunities in public accommodations, transportation, state and local government services, telecommunications, and employment. The ADA is divided into five titles. The first four titles each address a different sphere of public life, and the fifth section contains laws that apply generally to the first four, including protections against retaliation for people who seek to exercise their rights under the ADA:

Title I: Equal Employment Opportunities for Individuals With Disabilities;
Title II: Nondiscrimination on the Basis of Disability in State and Local Government Services;
Title III: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities;
Title IV: Telecommunications;
Title V: Miscellaneous, including protections against retaliation.

Title I of the ADA is intended to ensure disabled individuals have access to the same employment opportunities as people without disabilities. This part of the law is enforced by the Equal Employment Opportunity Commission. Among other things, this part of the law requires employers to provide reasonable accommodations to assist employees that qualify as disabled under the ADA. For example, an employer may need to provide a deaf employee with access to sign language interpreters, provide ramps for employees who use wheelchairs, or under some circumstances provide disabled employees with ergonomic desks or modified workstations. An employer should engage in an interactive process with its employees who have disabilities, to work together to identify and implement effective accommodations for their respective disabilities. The interactive process is ongoing. It may involve a series of meetings over time and oftentimes includes considering input from an employee’s physician. Employees should be able to perform the essential functions of their jobs with the required modifications or adjustments.

Title I of the ADA also prohibits employers from discharging, demoting, or denying advancement opportunities to disabled employees on the basis of their disabilities. An employee who believes they have been subjected to this form of disability discrimination may bring a lawsuit against his or her employer for not complying with the ADA (after first filing a charge of discrimination with the proper EEOC field office). Employees who seek to enforce in court their rights under the ADA to be free from disability-based employment discrimination generally must prove three elements:

The individual’s impairment must qualify as a “disability” within the meaning of the ADA. The ADA defines “disability” to include (1) any physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. To establish if an individual’s particular impairment substantially limits major life activities, a court will consider a variety of factors, including the nature of impairment and its severity, how long the individual has been dealing with the impairment, and the actual or expected long-term impact.

The individual is qualified and able to perform the essential functions of his or her job with or without reasonable accommodations. This simply means the individual needs to be able to do his or her job, and perform the duties that job entails, once the employer has made the necessary reasonable accommodations for the employee’s disability.

The individual has suffered an adverse employment action on the basis of his or her disability. An adverse employment action can include a termination, a demotion, the denial of a promotion, or other similar action by the employer that denies the employee advancement opportunities in the company. An adverse employment action “on the basis of disability” can mean a variety of things, depending on the circumstances. For example, it can mean the employer at least partly did not want to keep or advance the employee because of his or her disability, record of disabilities, or perceive disability. Under certain circumstances, it can also mean the employer failed to provide reasonable accommodations for an employee’s known disability, then terminated or denied opportunities to the employee because of perceived performance deficiencies that could have been avoided if the employer had reasonably accommodated the employee’s disability. For example, if an employer fails to provide a deaf employee with reasonable access to sign language interpreters, then fires the employee for not communicating effectively with others at work who do not know sign language, that might constitute a wrongful termination under the ADA.

In short, Title I of the ADA seeks to ensure that individuals with disabilities have equal access to employment opportunities as employees without disabilities. Under certain circumstances, employees who feel they have been denied reasonable accommodations at work, or otherwise mistreated by an employer due to a disability, may take legal action to address the issue and improve the equality of employment opportunities for themselves and other employees with disabilities.

This article was originally published on timcoffieldattorney.net

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.