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The 11th Circuit Reverses The Retaliation Claim

Title VII’s anti-retaliation provision (42 U.S.C. 2000e-3(a))makes it unlawful for an employer to discriminate against an employee:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter

To prove a case of retaliation under Title VII,  the plaintiff must show:

1. that she engaged in statutorily protected conduct
2. that she suffered an adverse employment action
3. there is some causal connection between the two events

There was no dispute that Alvarez engaged in statutorily protected conduct when she raised issues of discrimination in her complaint letter. The company argued, however, that there was no adverse action because there were plans underway to fire Alvarez even if she had not complained about discrimination in her letter.

The Court rejected this argument The evidence showed that the letter caused Alvarez to be fired the day after she mailed it – sooner than she would otherwise have been fired – and that the Verdezotos decided not to wait until they found a replacement as they had planned. This was sufficient, according to the Court, to establish the “adverse action” part of her retaliation claim.

One of the other reasons given by the defendant for firing Alvarez -- that it would be "awkward" and "counterproductive" to keep her around -- was also rejected by the Court. It stated:

Anyone who complains about unlawful discrimination is not likely to be a happy camper. ….And it will always be “awkward” and perhaps “counterproductive” in the business sense, to work with people who complain that you have discriminated against them.

But recognizing these concerns as legitimate, non-retaliatory reasons to fire someone who complains about unlawful discrimination would do away with retaliation claims and the protection they provide to victims of discrimination.

The final reason give by the company for firing Alvarez after it received her letter of complaint -- that it had to get rid of her because the Verdezotos were afraid that she might vindictively use her position as controller to sabotage the company’s operations --was also rejected by the Court after careful consideration.

The reason was because there was simply no evidence that the proffered reason was a valid one. As the Court pointed out:

Her letter contains no threats against the company or anyone else, nor does it provide a reasonable basis for inferring that Alvarez would try to disrupt operations. … And, of course, there is no evidence that Alvarez’s continued employment posed a physical danger to the Verdezotos or their other employees. The company was not entitled to summary judgment on this ground.

With that, the Court concluded that Alvarez would be entitled to prevail unless Royal Atlantic could convince a jury that:

• if they didn’t fire Alvarez immediately she would sabotage their operations or harm others and

• there was no less drastic means of reliably preventing that other than firing her

The Court also stated that Alvarez would be entitled to damages for the length of time she would have remained on the job if she had not sent the letter complaining of discrimination. The Verdozotos both testified that their initial plan was to keep Alvarez on board until they had lined up her replacement. At the time of oral argument of the appeal, the controller position remained vacant for three years after Alvarez was fired.

What all of this means is that it looks like Alvarez has a reasonable shot of winning three years of damages representing her economic loss (minus whatever she earned in the interim) when the case goes back to trial (as well as attorney fees if she prevails.)

Take Away

This is a fascinating and important case. It’s not the first time I have heard of a company defending itself by claiming that it had to fire an employee after he or she raised a discrimination claim because the employee could no longer be trusted. It comes up particularly with employees involved with high levels of responsibility and access to confidential information – like in house lawyers and financial executives -- and it’s a defense that is appealing to many judges. That’s why this thoughtful decision from the Eleventh Circuit will be very helpful to victims of retaliation in the future.

It makes sense that a person should not have to worry about losing her job if she exercises her lawful right to raise a concern about discrimination -- even if the complaint makes the employer uncomfortable. Now there's a recent opinion from a high court which confirms this important principle.

images:  thebsreport.files.wordpress.com

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of  Price Waterhouse v. Hopkins  decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination.  In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It  concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise.  And so she lost as a matter of law.

The problem with the district court’s ruling -- according to the 11th Circuit -- is that the Supreme Court's decision in  Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied,  the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff  was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case,  Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can't get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

The Lower Court’s Opinion

Duch filed a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 and the statutory laws of the state of New York and New York City.

The Defendants requested that Duch’s claims be dismissed as a matter of law and the federal District Court agreed holding that:

• OCA provided a reasonable avenue of complaint
  

• no reasonable fact-finder could conclude that the employer-defendants had actual or contsrtructive knowledge of the alleged harassment
  

• even assuming the employer defendants did know or should have known about the harassment, their response was reasonable

Duch filed an appeal to the Second Circuit Court of Appeals.

Sexual Harassment Law

The law of sexual harassment is a bit complicated.

In short, in order to prove a hostile environment sexual harassment claim Duch was required to establish that:

• the harassment was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and

• there was a specific basis for imputing the conduct creating the hostile work environment to the employer

Proving the harassment was not the problem -- Duch could provide that proof with her testimony.

The thorny issue in this case turned on whether Duch could impute the conduct that created the hostile work environment to her employer – and that depended on who did the harassing and who knew about it.

When the harassment of an employee is done by an officer, owner, or manager the company will in most circumstances be automatically liable for the illegal conduct.

When the harassment is that of a co-worker, the employer is not automatically liable. In a co-worker harassment case like this one, Duch was required to have proof that her employer:

• knew about the harassment or

• in the exercise of reasonable care should have known about the harassment  and

• failed to act promptly to stop it

The District Court found that Duch failed to properly report Kohn’s harassment and as a result her employer was not liable.  Duch appealed.

The Court of Appeals Decision

The Second Circuit Court of Appeals reversed and in its opinion gave us some helpful guidance on what does and does not constitute sufficient reporting by a victim of harassment for purposes of imposing employer liability.

Conversations With Christiano

Because Christiano was a co-worker without supervisory authority, her knowledge could only be imputed to her employer if:

• she had an official duty to act, and whether in light of her knowledge

• her response was unreasonable

There was no dispute that Christiano knew about Kohn’s harassment.  Duch however told Christiano “absolutely not “  to tell Jukabek about it.  

The Court found that Christiano acted reasonably in honoring Jukabek’s request. In so doing, the Court acknowledged:

[T]here is certainly a point at which harassment becomes so severe that a reasonable employee simply cannot stand by, even if requested to do so by a terrified employee.

In this case, however, the Court sided with the defense. It did so because it concluded that:

• there was no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch

• therefore the jury could not conclude that Christiano breached a duty to Duch and

• the defendant employer could not be liable because of Christiano’s inaction

Conversations With Jakubek

The evidence involving Jukabek caused the Court to reach a different conclusion than it  did with Christiano and reversed the district court.

That’s because Jukabek was Kohn’s supervisor, and as such, “was charged with a duty to act on the knowledge and stop the harassment.”

As the Court stated:

Where the person who gained notice of the harassment was the supervisor of the harasser (e.g. had the authority to hire, fire, discipline, or transfer him, knowledge will be imputed to the employer on the ground that the employer vested in the supervisor.

The Court held that there was sufficient evidence from which the jury could find that Jakubek knew, or should have known about the harassment including proof that Jakubek:

• knew that Duch asked for a change in her work schedule when she was scheduled to work alone with Kohn

•  asked Kohn about it, and Kohn admitted that he did or said something “he should not have”

•  knew that Kohn had engaged in sex-related misconduct toward females in the past

•  told Kohn, in reference to his conduct towards Duch, to “cut it out and grow up”

•  knew that the subject of working with Kohn caused Duch to become emotional , teary and red, and lose her composure

•  said “good”, when Duch said she didn’t want to talk about it, because “I don’t want to know what happened"

•  agreed to change Duch’s schedule so that she didn’t have to work with Kohn alone

Based on the above, according to the Court, Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and encourage (rather than discourage) her to reveal the full extent and nature of the harassment.

The Court wrote:

In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees.

We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as Jakubek is alleged to have displayed —will not shield an employer from liability under Title VII.

Accordingly, notwithstanding the District Court’s observation that Jakubek ‘was never told of, and did not witness, the alleged harassment,’ we hold that a reasonable jury could conclude that Jakubek knew, or in the exercise of reasonable care should have known about the harassment.

The Adequacy Of The Response

According to the District Court, even if the employer knew about the harassment, the  response was reasonable. The Court of Appeals disagreed:

Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed.

A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment.

Under these circumstances, we cannot say as a matter of law, that defendants’ response was ‘effectively remedial and prompt.'

Lessons To Be Learned

It’s very common for victims of harassment to be fearful of reporting the harassment. It’s also common for an employee to confide in a co-employee, or supervisor, without making a formal complaint and to say,  “don’t tell anyone.”

What we learn in this case is that those  informal and non-specific conversations can trigger an employer's obligation  to investigate and take appropriate action to stop the harassment.

We also learn that those conversations may not satisfy an employee’s obligation to report harassment  --- and that of this very much depends on what level of authority the person has who hears what the victim has to say and how much the victim reveals.

This case provides lots of valuable legal analysis in some gray area of sexual harassment law which have been infrequently addressed in the past.

In my opinion, it's an important and useful decision for all employers, victims of harassment, and all practitioners of employment law.

images:  thestar.com

www.hush-collection.com

According to the EEOC, managers witnessed employees dragging their victims kicking and screaming into the refrigerator. Victims’ complaints  were made to virtually every manager in the restaurant but the conduct never stopped. Eventually the police were called and an EEOC charge was filed.

Mary Jo O’Neill, Regional Attorney of the EEOC’s Phoenix office had this to say:

The evidence was clear, and everyone knew about it. Behind the lavish décor that the company boasts on its web site was a horribly dysfunctional workplace where male workers lived in fear.

I would like to think that this situation is unusual, but the EEOC’s Phoenix District Office’s press release points out that it's currently prosecuting a similar case against Fleming’s Prime Steak House.

What’s with these restaurants?

Lessons To Be Learned

When most of us think about sex discrimination, we think about discrimination against women, and that’s certainly what was contemplated when the “because of sex” language was added to Title VII.

(Interestingly, the addition of "sex" by a southern congressman to Title VII in 1964  was seen by most as a cynical attempt to torpedo the bill which was primarily targeted to address race discrimination)

Likewise, when most of us think about sexual harassment, we think of men as the harassers and women as the victims.

(Not so, said the Supreme Court in the landmark case of Oncale v. Sundowner Offshore Services,Inc in 1998; for more on this topic, see my article: What's Going On With Male On Male Sexual Harassment )

These recent EEOC cases draw attention to the fact that men can be victims of gender discrimination as well as outrageous sexual harassment.  Both forms of discrimination are against the law and can lead to serious consequences for all involved.

Images:  www.foodgps.com

www.family-vacation-getaways

Superior Qualifications

As the Court pointed out, Risch had superior qualifications for the position of detective than two of the male candidates (Moore and Spencer) promoted to the position in 2005. Her scores were better and she had greater experience in the department.

As the Court stated:

Taking the facts in the light most favorable to Risch … it is clear that Risch was as qualified as or better qualified than either Moore or Spencer. 

Discriminatory Remarks

The Court noted that male officers frequently made degrading comments regarding the female officers. Some of those remarks included the following:

• "The chief will never have a female officer on the command staff"
  

• "None of you {female officers} will ever go anywhere …"
  

• A majority of male officers told Risch that women do not belong in the police force

As the Court stated:

We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext ….

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. …

We do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory animus.

Other Evidence Proving Discrimination

The Court also made note of other evidence it considered to prove a “general atmosphere of discrimination" including discrimination against women in duties, shift assignments, and work distribution.

Part of the evidence was that Lieutenant Foster, who held a senior position in the command staff, gave the men:

• any kind of detail they wanted

• all of the plum assignments

The assignments and the work the men didn’t want went to the women.

This evidence, according to the Court, supported Risch’s claim that she was discriminated against regarding her promotion.

As the Court stated (citing its decision in Ercegovich v. Goodyear Tire &Rubber Co.interestingly written by the same judge as this case):

We have explained that management’s consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context.

In light of the above evidence ... we conclude that Risch has produced sufficient evidence to establish a genuine issue of material fact concerning whether the Department's proffered legitimate, nondiscriminatory reason was pretextual.

What's Important About The Case

What's important about the case is that the Court broadly looked at a combination of evidence about Risch's experiences at work (as well as that of other women) and used it to hold that Risch could challenge the department's failure to promote her. That evidence included:

• a record of comparative qualifications

• discriminatory statements by decisionmakers and others in the department 
  

• an atmosphere of discrimination experienced by Risch and co-workers
  

• the lack of women in command positions
  

• proof that Risch was arguably better qualified than male candidates

The federal district court disregarded much of the evidence presented by Risch and that, according to the Sixth Circuit Court of Appeals, constituted reversible error.

The simple fact that the Court of Appeals considered all of the evidence of gender discrimination -- instead of narrowly limiting the inquiry to the reasons given by the employer for the denial of the 2005 promotion -- is what's really important about this case.

It's been historically quite difficult for women to prove that they they were denied promotions which went to less qualified male counterparts.

The Sixth Circuit’s opinion in this case --  and its broad interpretation of what kinds of evidence can support these claims --  should go a long way in helping women, as well as other victims of discrimination, get their cases in front of juries where they properly belong.

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I give credit to Dell's decision makers for deciding to pay the plaintiffs what they appear to have been entitled to  --- instead of running up the gigantic legal bills which generally correspond with the scorched earth defense of  these kinds of cases.

News of the settlement came in interesting juxtaposition to news of the reintroduction of the Equal Rights Amendment ("ERA").

Representative Carolyn Maloney of New York and more than 50 co-sponsors reintroduced the ERA last week in the House. The amendment would add the following sentence to the US Constitution:

Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

The Equal Rights Amendment was first introduced in 1923 by Lucretia Mott. It passed through Congress in 1972 but fell three states short of the 38 needed for ratification. In her announcement, Representative Malone had this to say:

Women have made incredible progress in the past few decades. But laws can change, government regulations can be weakened, and judicial attitudes can shift. 

The only way for women to achieve permanent equality in the United States is to write it into the Constitution.  These 54 words, when passed by Congress and ratified by 38 states, will make equal rights for women not just a goal to be desired but a constitutional right.

With news of the Dell settlement, coupled with cases of gender discrimination we see on almost a daily basis, it's about time for the Equal Rights Amendment to become part of the constitutional law of the land.

Some say with the new administration, there's actually a chance that it might happen. Wouldn't that be something.

Image: z.about.com

After all, though Hispanics make up 15% of the population, less than 4% of federal judges are of Hispanic descent and not one has served on the nation’s highest court.

According to Kara Hadge in Slate on Saturday

Appointing a Supreme Court justice gives the president a chance to leave a lasting impact on the judicial system, and Obama is under pressure to choose someone who is not only qualified but also symbolic.

There is a general consensus among the coverage that Obama could consider Sonia Sotomayor, a New York federal appeals court justice who would be the first Hispanic Supreme Court justice...

The Daily Beast called Judge Sotomayor a "frontrunner. " On Meet the Press Sunday morning, I couldn't help but notice Senator Arlen Specter's mention of a Hispanic female judge as a consideration for Justice Souter's spot.

Frankly, I'm too ignorant about Judge Sotomayor to render an educated opinion as to whether she's  the best choice for the seat. Her credentials are certainly impressive.

But I don't yet know her views on Constitutional interpretation or her positions on  the many issues I care deeply about -- civil rights, pro-choice, civil liberties, to name a few, so I'm not ready to jump on the Sotomayer bandwagon.

The National Journal had this to say about Judge Sotomayor last year, and it looks promising:

One of the nation's most prominent Hispanic judges, she is liberal and very smart. Born to a Puerto Rican family and raised in a Bronx housing project, she won highest honors at Princeton and distinction at Yale Law School. She was an assistant district attorney and commercial litigator before becoming a federal district judge and, in 1998, an appellate court judge.

According to the Wall Street Journal President Obama has been quoted to say  that he would seek a nominee with:

a record of excellence and integrity...who understands that justice isn't about some abstract legal theory or footnote in a case book.

The President also stated his preference for someone attuned to the "daily realities of people's lives." I take him at his word.

The bottom line is that more diversity on the United States Supreme Court is an imperative. A Hispanic female for the United States Supreme Court would be an exciting and historic pick.

 images:activecitizen.tufts

              www.pace.edu

1. Front Pay:

Donlin was in her 30's at the time of her employment with Phillips and 40 at the time of trial. The question presented was: was how far into the future can a younger employee like Donlin claim economic loss?

For those of us who represent individuals in employment cases, the issue  has always been a hard one to deal with when it comes to a younger worker.  The reason is because past damages can be calculated with certainty, but future losses can not:

• Is the person going to get another job?
  

• If so when and for how much?
  

• How do we know what someone will be doing 20 or 30 years from now?

When we  represent someone in an age discrimination case, and the terminated employee is 55 for example,  it's easy for us to project damages until age 65 or 70  ( whatever the age is that the person was likely to retire).

It's not speculative to assume that the person would have worked for another 10 or 15 years, and it's not hard to calculate what he or she would have earned and what the total losses are.

It's much more complicated when we represent a younger person.  Since the law does not allow "speculative" damages, it's simply very difficult to predict how far into the future the court will allow us to project.

In this case, the  district court judge ruled that Donlin was entitled to receive damages for economic loss for 10 years into the future. The Court of Appeals affirmed the ruling :

We note that there will often be uncertainty concerning how long the front-pay period should be, and the evidence adduced at trial will rarely point to a singe, certain number of weeks, months , or years.  More likely, the evidence will support a range of reasonable front-pay periods.  Within this range, the district court should decide which award is most appropriate to make the claimant whole ...

We find that the District Court did not abuse it's discretion when it awarded Donlin front- pay for 10 years.

This means that we now we have a decision with a sound analysis for front -pay involving a relatively young employee from a high level court.  It's a decision that other victims and their lawyers can rely on and it's a decision that carries considerable weight. It's very good news.

2. Mitigation

In an employment case, the employee  who has lost a job has a duty to mitigate -- which means that she  (or he) must make reasonable efforts to minimize her loss of income. The precise language of the statute says

Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

In other words:

• a person who is claiming damages in an employment case has a duty to look for work

• damages into the future end if an employee gets an equivalent job or better job

•  the right to damages end when that opportunity becomes available

In this case, Donlin first got a job in which she earned $14.70 and hour.  The problem was that it was a 32 -mile commute. She worked at the job for two years, and then found a job closer to home at which she made $13.00 an an hour.

She would have  received $14.67 an hour as a base salary had she been hired at Philips.

Phillips argued:

• Donlin's "voluntary transfer" to a lower-paying job was inconsistent with her "duty to mitigate"

•  Phillips should not have to make up the difference.

Donlin argued:

• once you factor the cost of the commute
  

• the the two jobs were substantially the same.

The Court of Appeals agreed with Donlin:

An employee need not seek employment which involves conditions that are substantially more onerous than [her] previous position...

It is well settled that a claimant has not failed to make a reasonable effort to mitigate damages when she refuses to accept employment that is an unreasonable distance from her residence.

[T]he job at Mission constituted a substantially equivalent opportunity as that available at Romark.  Donlin should not be penalized for accepting that opportunity.

Accordingly, the District Court's finding that Donlin sufficiently mitigated her damages was not clearly erroneous ...

Certainly our clients still have a duty  to mitigate and make a "reasonable effort" to find comparable work if they intend to claim damages in a lawsuit.  This decision does not change that fact.

But this decision certainly delivers great news since it clearly states that a person is not required take a job which places an onerous burden on him (or her)  in order the meet that obligation.

On many fronts,  this is a hugely helpful case on questions of damages in employment cases. While we deal with these problems every day, it's certainly not every day that we get federal circuit court case law on these particular issues.

It's also a wake up  to employers to be careful about their hiring practices.

The bottom line is that Donlin worked as a temp at  a company  for eight months. Because she was discriminated against when the company hired a man instead of her into a permanent position, she is now entitled to all of her past losses plus 10 years of damages into the future. That's a big win.

Images: images.businessweek.com

It's no surprise that there were over twenty five "friends of the court " briefs filed by various civil rights, governmental, management, and other organizations.  If you care to see everything there is to see on this case, the best place to go is the Supreme Court of the United States Blog which has an excellent summary as well as all of the court filings.

I thought that the brief filed by the United States not only made some good points, but really could help the Court steer clear of this hot potato.  Here's the gist of the government's argument:

• An employer does not violate Title VII disparate treatment prohibition when it decides not to certify the results of a promotional test so that it could comply with Title VII's prohibitions against disparate impact discrimination.

A contrary reading would needlessly pit Title VII's basic anti-discrimination provisions against one another and would defeat Congress's intent to encourage employers to comply voluntarily with Title VII

Titlve VII's ban on both disparate-treatment and  disparate-impact discrimination reflects Congress's obvious desire that the provisions be read in harmony so that one provision does not defeat the other

• An employer's concern that it's test may violate Title VII does not equate with intentional discrimination -- it is consistent with Congress' core objective to prevent discrimination

• Employers are encouraged to take appropriate and lawful measures to eliminate adverse impact from selection procedures under EEOC guidelines which is exactly what the city of New Haven was doing

• The city of New Haven did not make any racial classifications and did not  make any intentional promotional decisions based on race because no one was selected for the promotions, much less selected based on race. 
  

• The case should be decided like other disparate treatment cases -- the plaintiff provides evidence of discrimination; the employer articulates its justification for the decision; the plaintiff comes forward with evidence that the justification is pretextual  -- meaning not credible or made-up

• As applied to this case, that would  mean that the plaintiff would be entitled to prove that the stated reason for New Haven's decision -- compliance with Title VII -- was merely a pretext for intentional race discrimination

• Thus, the  jury should be permitted to find pretext  when the plaintiff establishes that: 
  

                     1. the employer's proffered motive of Title VII compliance is  reasonable

                             (suspending a selection process to investigate the possibilities of                                   alternate selection methods would be considered reasonable ) or

                     2. there is other separate evidence that the employer's stated reason is not credible

The real bottom line of the argument is that the Court  can and should  write an opinion which relies on an analysis that already exists and send the case back down to the district court to apply it.  It's a solution to a catch-22 problem that makes sense.

No doubt, this is a very important case and most Supreme Court observers agree that it will be decided by the swing vote of Justice Kennedy. 

I hope he sees the path that has been cleared in the government's brief. The logic is great, the law is sound, and the Court does not have to pick an outright winner or loser.

image:www:image/firefighters

In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it  may have discriminated,  it would have reached the same result anyway in denying Ms. Hopkins her promotion.

In it's fractured decision,  the Supreme Court came up with a new way of proving discrimination in what it called a "mixed-motive" case.  Simply said, this new method of proof set forth a complicated and confusing burden shifting framework.

After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor.

In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination.

As a result, Congress overturned that portion of Price Waterhouse  when it enacted the Civil Rights Act of 1991.  In so doing, it specifically lowered the standards for employees in "mixed-motive" cases.  Theoretically, the CRA  makes it easier for employees to win these cases.  Under the Act:

• the employer is not absolved of liability in "mixed-motive cases" even if it proves it would have made the same decision anyway, but damages to the employee are restricted.

• in  order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must “demonstrate” that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation.

The issue of what kind of evidence was required was decided by the Supreme Court in Desert Palace, Inc. v.Costa in 2003.  According to that decision, Congress intended the term "demonstrate" to mean that an employee could prove his or her case by direct or circumstantial evidence.  As the Court stated:

Title VII’s silence with respect to the type of evidence required in mixed-motive cases . . .suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.” ... That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” . . . by using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983). 

You would think that would settle it but there's always a wrinkle, and the wrinkle for Mr. Gross is that  the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross' case.

Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument.

One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII  (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court.

Gross' argument is that there would be no reason not to interpret the ADEA  consistently with Title VII and no reason not to do so in this case.  That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters)

If anyone wants more, better, or different analysis of  the Gross case,  there are lots good pieces on it (SCOTUSBLOG, Ross Runkel's Law Memo are two)

Whatever the outcome, as a practical matter I don't think it will change the way employees and their lawyers go about proving age discrimination cases:

• Plaintiffs are going to present all the evidence they have whether it's direct or circumstantial, or both.

• Most of us who represent employees have never seen the benefit of getting a "mixed motive" instruction even when we have direct evidence of discrimination because it's too confusing to the jury.

• It's just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision.

For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one.  Other than that, it's not very interesting at all, but since it's not often that an age discrimination cases hit  the Supreme Court, it's got to be talked about even though I am the first to admit --it's mostly academic.

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The federal district court threw out Chadwick's claim because, according to the court, nothing in the record showed that  Wellpoint failed to promote Chadwick because of her sex.

Chadwick appealed the decision. The First Circuit Court of Appeals reversed the lower court, finding in Chadwick's favor, and stated:

• an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities.

• unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities

In sum, according to the Court of Appeals:

The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.

In reaching it's decision, the Court relied on two important lines of cases involving gender discrimination:

1.  Stereotyping  based on Sex:

• The Supreme Court of the United States identified sex-based stereotyping as an impermissible form of discrimination in the landmark case of Price Waterhouse v. Hopkins.
• The Supreme Court most recently addressed the topic of working mothers and sex stereotyping in Nevada Dep't of Human Res. v. Hibbs  in the context of the Family and Medical Leave Act.

2. "Sex Plus" Discrimination: 

• cutting edge cases in which an employer may be liable under Title VII when it does not discriminate against the class of men or women as a whole, but
•  treats a subset differently -- for example, the employer discriminates against working mothers as opposed to all women

The new First Circuit case is an extremely important win for working women who are discriminated against because of their family responsibilities. In my experience, this kind of discrimination often occurs in situations just like Laurie Chadwick's -- a woman deserving of a promotion is passed over on account of a presumption that she just can't do the job because she has "too much on her plate."

The lower court refused to recognize  Wellpoint's failure  to promote Chadwick as a discriminatory decision even in the face of undisputed evidence that she was the more qualified candidate for the job.  In so doing, it chose to ignore United States Supreme Court decisions which plainly state that sex stereotyping is sex discrimination.

Thankfully, the First Circuit Court of Appeals set the record straight.

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1. A difference of treatment between the pregnant employee and a similarly situated non-pregnant employee
2. Remarks which show prejudice against pregnant women or working mothers
3. Statistical disparity
   
4. The reason given for the discharge is not credible along with a prima facie case of discrimination
   
5. Circumstantial or direct evidence  a motivating factor for the termination was pregnancy related

No doubt, there are a host of problems with the Pregnancy Discrimination Act. Gillian Thomas of Legal Momentum and Joanna L. Grossman of Hofstra University School of Law recently published an excellent article about this topic.  As the authors point out:

Pregnancy discrimination claims have been steadily rising in the last ten years, at a faster rate than other types of discrimination claims.  The rise in claims -- and the millions of dollars paid out in response -- suggest the persistence of unlawful treatment of pregnant women at work.

The article goes on to illuminate the many gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. It's a must read for anyone trying to maneuver the legal maze of the PDA.

But while it may not be easy to prove discrimination, there are many cases in which women who have been discriminated against because of their pregnancy have won. The Sixth Circuit Court of Appeals case of Ensley-Gaines v. Runyon spells it out:

As recognized by the United States Supreme Court, '[t]he second clause [of the PDA] could not be clearer: it mandates that pregnant employees ´shall be treated the same for all employment-related purposes' as nonpregnant employees similarly situated with respect to their ability to work'"Int'l Union v. Johnson Controls , 499 U.S. 187, 204-05 (1991)

Women make up half of the workforce and 85% of working women will become mothers at some point in their working lives. Last year the number of pregnancy discrimination charges filed with the Equal Employment Opportunity Commission was up 50%.  Certainly pregnancy discrimination is a huge issue for working women and their families who suffer the affects of an unexpected job loss.

I do agree with the NY Times article in this respect:  If you believe that you have been discriminated against because of pregnancy, contact an employee rights attorney or the EEOC and get the proper advice -- and don't wait long.

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