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Winning Plaintiff In Supreme Court Crawford Decision Gets Big Verdict For Title VII Retaliation

We often read about cases in the courts of appeals, including the ultimate court of appeals -- the United States Supreme Court -- in which the plaintiff prevails and gets the opportunity to take his or her case to a jury.

We study these cases because of the legal principles and precedents involved and how they will affect other clients and cases in the future.

We don't usually hear -- and it's not commonly reported -- what eventually happens to the plaintiff who won the reversal and got the chance to go to court. That's because some of those cases are settled, and the settlements are often times confidential. In other instances, the results of the trial simply don't make the news.

So I was really pleased this morning to read in one the bulletins I receive from the National Employment Lawyers Association about the fantastic verdict on Monday for Vicky Crawford, the plaintiff in the landmark United Supreme Court decision Crawford v. Metropolitan Government of Nashville and Davidson Cty .

Here's what happened in the case.

Facts Of The Case

In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.

When Vicky Crawford, a 30 year Metro employee , was asked whether she had witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances of sexually harassing behavior including instances where Hughes: 

• repeatedly put his crotch up to her window and

• entered her office and grabbed her head and pulled it to his crotch

Two other employees also reported being harassed by Hughes.

Metro took no action against Hughes, but fired Crawford and the two other accusers soon after finishing the investigation.  Metro claimed it fired Crawford for embezzlement.

Crawford filed a lawsuit claiming that she was fired in retaliation for her report about Hughes's behavior in violation of Title VII of the Civil Rights Act of 1964.

Title VII's Anti-Retaliation Provisions

Title VII has two provisions which prohibit retaliation in employment discrimination cases and make it unlawful for an employer to discriminate against any of its employees because:

1. he or she "has opposed any practice which is unlawful" under Title VII
   
2. he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter"

These provisions are commonly known as the "opposition clause" and the "participation clause".

The District Court and Sixth Circuit Decisions

The District Court granted summary judgment in favor of Metro. It held that Crawford did not satisfy the opposition clause because she had not "instigated or initiated any complaint", but had "merely answered questions by investigators in an already-pending investigation, initiated by someone else."

The District Court also concluded that Crawford's claim failed under the participation clause because it held that the only circumstances in which an employee would be protected from retaliation for participation in an employer's internal investigation was where "the investigation occur[ed] pursuant to a pending EEOC charge."

Crawford appealed and the Sixth Circuit Court of Appeals affirmed on the same grounds.

Crawford next filed a petition for certiorari requesting that the United States Supreme Court accept the case. The petition was granted.

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Age Discrimination Legislation Will Overturn Gross Decision

Last June, the Supreme Court issued the awful and controversial age discrimination opinion in the Gross v. FBL Financial Services case.

I wrote about the case at that time and predicted that it was just a matter of time until Congress fixed it with a bill that would overrule the decision and set the record straight on the fair standard of proof for age discrimination plaintiffs.

Last Tuesday, the Senate and House introduced legislation designed to do just that.

The bill -- introduced as H.R. 3721 -- and called the Protecting Older Workers Against Discrimation Act, will put age discrimination plaintiffs back where they were before the Gross decision.

The bill will apply to all cases pending on or after June 17, 2009,  the day before the Gross decision.

Senator Patrick Leahy, one of the authors of the bill had this to say (as reported in the New York Times):

What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored.

In Gross, the Court held that the Plaintiff, Jack Gross, was required to prove that age was the “but for” reason he was demoted from his job.

In other words, the plaintiff would have to prove that “but for" his age, he would not have been demoted (fired, hired, etc.).

Most interpret this as a new and more stringent requirement that age be the sole reason for the adverse employment action (though the case has conflicting language on that issue).

What's fundamentally flawed about the Court's interpretation of the federal age discrimination statute (ADEA) is that it's not consistent with all  of the other comparable civil rights statutes.

Simply stated, it makes no sense for an age discrimination plaintiff to be treated differently, and more harshly, than a plaintiff in a race or gender discrimination case. The method of proof and standard of proof has been, and ought to be, the same.

In other discrimination cases a plaintiff must prove that the alleged discrimination was "a motivating factor," not the  sole reason, for the challenged adverse employment decision.

This bill establishes that age discrimination cases are to be interpreted by the same "motivating factor" standard of proof.

The bill also explicitly recognizes the difficulty of proving discrimination cases and makes clear that victims of any kind of prohibited discrimination can prove their cases with direct or circumstantial evidence.

According to Senator Tom Harkin, one of the co-sponsors of the bill -- as reported in Workforce Management:

The Court invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination

This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.

It’s no secret that workers over 55 have been hit hard by the recession. According to the EEOC, 25,000 age discrimination cases were filed last year, a 30%increase from 2000.

The last thing these folks need is a more difficult standard of proof when age discrimination is at play.

Fortunately, Congress has the final say on what its legislation means and how it should be interpreted. That’s why it gets to say that all discrimination plaintiffs should be treated consistently by the courts.

Let’s hope that this important Congressional fix gets passed soon.
 

image:blog.prospect.org   images1.wikia.nocookie.net

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Supreme Court's Ricci Decision Is Bad For Business and Everyone Else

It took me almost a whole day to read and digest the 89 page Ricci v. DeStefano decision. I have spent most of a  whole second day reading the commentary and analysis.    

Here's where I'm at regarding this case:

• it's really hard for businesses to deal with   

• it's also really bad for everyone else

• it's procedurally unsound

• it's got to go

Bad For Business

There is a general consensus that business is the big loser in the Ricci decision. Almost without exception, all of the commentary points to the fact that the Supreme Court has now made it harder than ever for employers to follow Title VII law which prohibits discrimination in the workplace. That's not good.

A described in a Lawyers USA article today, the lawyers who represent employers believe that they have been put in a "lose-lose" situation:

The outcome really puts employers in a box, said Andrew J. Pincus, a partner in the Washington office of Mayer Brown who filed an amicus brief on behalf of the National League of Cities and other groups. Before, employers had some leeway. Under the new standard, they are really in a box because they will be facing costly litigation no matter what they do.

In sum, the Supreme Court in a 5-4 decision found in favor of white firefighters who claimed discrimination because of race when test results for promotions were discarded because no black employees scored high enough to be considered for promotions. The city feared a disparate impact discrimination lawsuit and set aside the test results.

The Court held  that an employer may not discard test results on account of race unless it shows a "strong basis in evidence" that it would be subject to disparate impact liability. Statistics alone are not enough to make a "strong showing in evidence",  but no one seems to know what is.

As Rae T. Vann,  general counsel for the Equal Employment Advisory Council, which submitted an amicus brief in the case commented:

“I think [the justices] made the situation a little more challenging as far as navigating that Catch-22 because they changed the rules of the game without giving employers the guidance that they need.”

Without knowing just what qualifies as a “strong basis in evidence” of the likelihood of being found liable for creating a disparate impact, many employers will chose not to discard a selection or promotion process that yields few minority candidates once it is in place, possibly drawing a disparate impact suit.

What's ironic is that this decision came from the Roberts pro business court. Ilya Somin wrote a very interesting piece about the subject in the Volokh Conspiracy and here are some excerpts:

The Supreme Court's decision in Ricci v. DeStefano has interesting implications for the longstanding debate over whether the Roberts Court is "pro-business."

The bottom line is that the business interests were among the big losers here. The Court's ruling makes it difficult for employers to use race-conscious measures to avoid disparate impact liability under Title VII of the Civil Rights Act. And this defeat was inflicted by the supposedly business-friendly conservative justices. Although Ricci addressed promotion decisions by a government employer, the same Title VII standards apply to private employers too.

 If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities.

But if the business adopts race-conscious measures to try to shield itself from liability (e.g. - by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to "disparate treatment" lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

No One Seems to Like the Decision

It's not like anyone else likes the decision either. John Payton, the president of he NAACP Legal Defense Fund said that the Ricci decision is a "step backward from the goal of equal employment opportunity.

The law professors have written excellent articles for the academics and theorists on the many things that are flat out wrong and troubling about the decision. The New York Times Opinionator did a good job of gathering some of them.

One was an excellent analysis on the Workplace Prof Blog by Marcia McCormick. Here's a piece of it:

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Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it's hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don't want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that's so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It's a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

1. It decided an entirely different issue than the question accepted for review -- one that was not properly presented or briefed.
   
2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here's an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can't be discriminated against  in his/her employment "because of " his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act ("ADEA") was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  "because of " age.

The Supreme Court has interpreted the "because of" language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a "but for" standard which meant that the plaintiff in a Title VII case would have to prove that "but for" his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the "but for" standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a "motivating factor in the employment decision" in order to prove that he or she was discriminated against because of it.

Congress ratified the "motivating factor" interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

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.

What happened in the Gross case last week is that the majority resurrected the"but for" standard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the "but-for"cause of the employer's adverse decision.

It's important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it's not been done before.

 Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here's a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It's failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress' intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.

The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the "but for" language -- not the least of which is that it's a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What's Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times  on Friday:

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There's been quite a bit in the news recently about anti-Latino discrimination.

In one EEOC case out of Miami, Nordstrom agreed to a settlement of $292,500 because of a store manager's blatant prejudice.

The manager was heard to say  that she  "hated Hispanics" and that Hispanics were "lazy and ignorant."  Hispanic workers were also chastised for speaking to each other in Spanish.

The same store manager didn't like African American employees either and was known to make remarks like "I don't like Blacks" and "you're Black, you stink".

According to the EEOC:  

The employees complained to Nordstrom about the harassment, but the harassment did not stop. The . . . manager retaliated against those who complained by continuing the racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

In a different  EEOC case out of Los Angeles, Skilled Healthcare Group agreed to pay $450,000 to a class of Hispanic employees who were subjected to harassment and discrimination at its nursing homes and assisted living facilities in California and Texas.

In that case, the EEOC alleged that workers were

• prohibited from speaking Spanish to Spanish speaking residents

• disciplined for speaking Spanish n the parking lot while on breaks

• given less desirable work than non-Hispanic counterparts paid less and promoted less often
  

In other news, the Southern Poverty Law Center issued an alarming report about anti-Latino discrimination in the South

The report — Under Siege: Life for Low-Income Latinos in the South — details the experiences of Latino immigrants who face increasing hostility as they fill low-wage jobs in Southern states that had few Latino residents until recent years.

According to the report, Latino workers are:

• subjected to widespread hostility, discrimination and exploitation.
• consistently cheated out of their pay
• 80% more likely to die on the job than native-born workers

The discrimination against Latina women in the workplace was particularly disturbing.. For example, 77% of the Hispanic women interviewed said sexual harassment was a major workplace problem.

 A recurring theme is the male supervisor using immigration status as leverage to coerce sexual favors from female employees. These women often have little or no idea about sexual harassment laws and have nowhere to turn.

Sadly, for a variety of reasons discussed in the report including language barriers and legal status, most victims do not seek legal recourse even though Title VII of the Civil Rights Act of 1964 prohibits sexual harassment as well as race and national origin discrimination regardless of immigration status according to most courts.

 With all of these recent stories about discrimination targeted against Latinos,  it's good news that President Obama is strongly considering a Hispanic woman for Supreme Court Justice.

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The Supreme Court heard arguments yesterday in Ricci v. DeStefano a case which many are saying is one which may fundamentally change civil rights protection in the workplace.

As noted by Lia Epperson, a law professor at Santa Clara University: 

This is the Roberts court's first major decision on the issue of racial discrimination.

In the world of civil rights law, it doesn't get much more important than this.

When cases get to the United States Supreme Court, they are generally complex and this one is no different. Discrimination cases particularly,  in terms of the law, are never really very easy to explain but here's a try.

In order to understand the case at all, it's important to know the difference between the two kinds of discrimination under Title VII of the Civil Rights Act of 1964.

disparate treatment discrimination

• where a person is being treated differently --  because of his/her race, sex, religion, national origin, disability, veteran status or age -- than a person who is not in the protected class

•  proven with direct or circumstantial evidence of an intent to discriminate

 disparate impact discrimination

• when a neutral policy, standard or test has a disparate impact on a protected class.

• i.e. if a company only hires individuals who are 5 foot 6 inches tall or over -- the qualification while neutral on its face, would have a disparate impact on women.

• no intent to discriminate is required to prove these kinds of cases

These two types of discrimination are implicated  in this case and come together like a perfect storm for the Court. Here's what happened .

In 2003, the New Haven Fire Department was filling captain and lieutenant positions.  The union contract required promotions to be based on examinations,  The city contracted with a company to develop the exams which were given to qualified applicants.

Under the city's rules, once the test results were certified, the department was required to promote those individuals with the top three scores. It turned out that the Black applicants' pass rate on the exam was approximately half of the rate for white applicants which was not the case on prior exams.

The city was concerned that the exam was flawed.  City officials believed that if the results were certified, the city could be subject to a disparate impact discrimination lawsuit from the minority applicants who did not qualify for the promotions.

New Haven is a city where 37 percent of residents are African-American, 21 percent are Hispanic, and only 15 percent of the fire department's officers are minorities.

A group of white firefighters, and one Hispanic,  (the petitioners) who scored the highest on the test filed a disparate treatment discrimination lawsuit claiming that they were being adversely treated because of their race --- what is commonly called a "reverse discrimination" case.

The main question before the Supreme Court is:  Under what circumstances can a plaintiff prove a disparate-treatment case when the employer's justification for it's decision is that it acted to comply with Title VII's disparate-impact provisions?

New Haven's counsel pointed out the dilemna  as reported in The Washington Post:

 The city was placed in a position where it was bound to be sued by one side or the other and opted to "pause" and reconsider how promotions should be made

He added that if it is unfair to white firefighters to have the promotions scuttled, it would be equally unfair to black firefighters who were "locked out" by test results that did not truly produce a list of those most qualified.

"I certainly have sympathy for the plaintiffs, but at the end of the day it was the wrong test," Bolden said

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The recent US Supreme Court decision in the14 Penn Plaza v. Pyett case was a huge blow to employee rights. The case held that a worker can't go to court on a discrimination case when the union bargaining contract  requires that  civil rights claims must go to arbitration instead of a judge or jury.  There's are lots of summaries of the case including those in  Ross Runkel's Law Memo  the SCOTUS BLOG and The Wall Street Journal.

The 14 Penn Plaza case is another chapter in the ongoing battle regarding mandatory arbitration of civil rights and employment claims and the decision couldn't be worse.

The only bright spot on the topic is that there was a very good decision from the Third Circuit  Court of Appeals just days before 14 Penn Plaza in the case of Kirleis V. Dickie, McCamey & Chlcote, P.C. . 

In Kirleis, the Court  held that the plaintiff was not required to arbitrate her civil rights claims. Here's what happened in the case.

The plaintiff, Alyson Kirleis, practiced law with the firm of Dickie, McCamey & Chilcote. She worked there since 1987. She became a shareholder in 1998.

Kirleis filed complaints against the firm alleging sex discrimination, retaliation, and hostile work environment in violation of state and federal law. The firm filed a motion to compel arbitration  based on a provision of its bylaws which mandated arbitration of any disputes.

Kirleis submitted undisputed evidence stating that:

•  she never got a copy of the by-laws
  

•  she never saw the document which contained the mandatory arbitration language
  

• she was never given a copy of the document which contained the mandatory arbitration language
  

• she never signed any agreement to arbitrate
  

• she never agreed to arbitrate her claims against the firm 

Therefore, she argued, that since she never agreed to the arbitration provision she could not be bound by it.

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Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services  case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it's almost impossible.

For one, in my opinion, the outcome will not affect most employees who are trying to bring age discrimination cases. Two, even most lawyers who do this work don't get bogged down in the subject of the argument because it's just too complicated, and not particularly beneficial, but let me try to explain it.

Jack Gross sued  his employer under the Age Discrimination in Employment Act ("ADEA") alleging that he was demoted because of his age. The Defendant employer, FBL Financial Services:

• denied that it took Gross' age into consideration                        
• said even if it did, it had a legitimate reason for doing so, and
• it would have made the same decision anyway.

The questions presented are:

1. In a "mixed-motive" age discrimination case -- where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
2. What kind of evidence needs to be presented -- direct or circumstantial -- to prove a "mixed-motive" case?
3. Does the discriminatory reason need to be a "substantial reason" or "a motivating reason" for the employee to prevail?
4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. ("CRA"); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

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The Wall Street Journal  Law Blog  today discussed a Wall Street Journal article about the disproportionate rate at which plaintiffs' employment  discrimination cases are lost in federal court and asked: Is the federal bench biased against discrimination cases?  As reported:

From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy. 

This is no coincidence. To those of us who have been representing employees in discrimination cases for many years the data comes as no surprise.  We know this because we have lived it. 

Our experience is that many federal judges are hostile to our cases and so are their law clerks.  All you have to do is read the comments to the WSJ Law Blog  today where the former federal law clerk refers to these cases as "dogs" to get a flavor of the attitude.

It is indisputable that far too many federal judges decide to disregard the Federal Rules of Civil Procedure and Evidence when it comes ruling on discrimination cases:

• Rather than let the juries decide when material facts are in dispute as the rules require, judges routinely decide to parse through the evidence, weigh each piece separately, and decide why each is not enough to support a claim.  
• They routinely and improperly assess the credibility of the testimony, a task specifically assigned to juries not judges.
• They routinely disregard the employee's evidence, and that of their co-workers, while giving credence to the self serving evidence of the employer. 
• Even when there is direct evidence of discrimination -- like "you're too old to do this job" -- or "women just be at home with their kids"-- it will often be dismissed as a "stray remark" too remote in time to be considered, or not made by someone influential enough in the decision.
• In sexual harassment cases, the judges often decide that the harassment may indeed have occurred but that it wasn't severe enough for a jury to consider.

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 This post was originally published in Today's Workplace www.workplacefairness.org on September 10, 2008

Three years ago, I was interviewed by Court TV about the John Roberts nomination. In preparation, I painstakingly reviewed his record. In so doing, I reached the unpleasant conclusion that Roberts was philosophically opposed to civil rights and other legislation for the public good which Roberts deemed to an improper exercise of congressional power.

 The Roberts point of view, it seemed to me, was that since Congress should not have authored this legislation to begin with, it must be as narrowly construed as possible. This was the only logic I could discern which connected a long record of what appeared to be outright hostility to plaintiffs in civil rights cases.

 I was extremely worried about what might happen with Roberts at the helm of the Court. The Alito nomination, with a record equally as hostile to plaintiffs in civil rights cases as that of Roberts, made me feel even more concerned. The harsh reality of Thomas and Scalia combing with these forces was a truly frightening prospect.

But the fact remains; we never really know with any precision what one will do after ascension to the Supreme Court actually occurs. Nothing surprised me more than the Court’s decision this past year in the decision of Sprint v Mendelsohn 128 S. Ct. 1140 (2008) – and it was a very pleasant surprise indeed. 

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