Sixth Circuit Rejects Dismissal of Racial Harassment Claim Where Black Supervisor Called Plaintiffs Monkey A--.

Last week, the Sixth Circuit reversed an employer’s summary judgment on a racial harassment claim brought by two former truck drivers.   Smith v. P.A.M. Transport, Inc. , No. 24-5549 (6^th Cir. 9-25-25).   The  Court found that calling the plaintiffs “monkey a__” or ANY derivative of monkey was as racially derogatory as the n-word, even if it was mostly used against them by their black supervisor.   It also refused to find problems with whether black and African-American can be used interchangeably for evidentiary purposes when comparing the plaintiffs to “white” employees.   It rejected the employers’ evidence for an affirmative defense at the summary judgment stage concerning whether it took reasonable steps to prevent harassment when it promulgated an anti-harassment policy without evidence that it was effectively enforced or followed up with management training.  The Court’s majority also found sufficient evidence of comparative treatment to sustain the disparate treatment allegations. 

According to the Court’s decision, the plaintiff truck drivers both worked out of the Nashville terminal and alleged that they were paid a day rate, but were required to drive more hours and miles per week and in damaged trucks than their white counterparts.   One was fired after two negative performance evaluations, but without prior disciplinary warning.  Both alleged that they were “regularly” called “money a__” by their black supervisor, who was otherwise respectful in communicating with white truck drivers.  They alleged that their supervisor threatened to withhold pay or fire them and regularly demeaned them.  They alleged that they complained with “liaisons” about the mistreatment, but that nothing was done to rectify or stop it.    Their supervisor reported to a white manager.   Both sued under  Title VII and Section 1981.   The trial court granted the employer summary judgment on the grounds that they had failed to produce sufficient evidence of a racially hostile work environment or disparate treatment. 

The Court rejected the district court’s conclusion that derivatives of “monkey” were not plainly racist.

We have recognized that, “[g]iven the history of racial stereotypes against African-Americans and the prevalent one of African-Americans as animals or monkeys, it is [] reasonable—perhaps even [] obvious”—to conclude that the invocation of the term “monkey” against an African American is “intended [as a] racial insult.” . . .

Consequently, circuit courts, including our circuit, have overwhelmingly held that the use of the term “monkey” against an African American employee constitutes evidence of race-based harassment sufficient to support a hostile work environment claim. For example, we have found evidence of racial harassment where, among other things, African American firefighters were assigned to workstations labeled “Monkey Island.” . . .

 . . .

 . . . The term “monkey” and its derivatives, while not overtly racial in isolation, have a long and well-understood history as racial slurs when directed at African Americans.  . . . . In this case, two African American plaintiffs have testified that their supervisors directly and repeatedly called them “monkey” and “monkey ass.” The use of the terms in that context raises a reasonable “inference of discrimination on the basis of” race.  . . . . That suffices to show race-based harassment at the summary judgment stage. The district court’s determination that Plaintiffs’ testimony about the use of these terms does not constitute “evidence of the use of race-specific and derogatory terms,” therefore, was plainly incorrect.

The Court rejected as “frivolous” the argument that being called “money a__” was somehow not racist when being called monkey was inherently racist.

[The employer] offers no reason—and we can think of none—as to why the addition of the word “ass” somehow obviates the racialized nature of the term “monkey.” To the contrary, the “use of the term ‘monkey’ or derivative terms” against African Americans constitutes compelling evidence of racial harassment.  . . .  Simply put, there is no meaningful difference between the terms “monkey” and “monkey ass” when used by a supervisor against an African American employee, as alleged here.

The Court rejected the district court’s conclusion that the racist nature of the term was reduced because the speaker was also African-American.  Just as there can be same-sex harassment, there can be same-race harassment.

To be sure, in some contexts, the fact that the alleged perpetrator is within the same protected class as the alleged victim may be material. But on this record, we see no fact or reason why [the supervisor’s] race undermines the conclusion that a reasonable jury could find his (and his supervisor’s) alleged use of “monkey” and “monkey ass” to be racially derogatory.

The Court also rejected the argument that the plaintiffs were required to prove that the terms were not used against white employees.

The Court also rejected as “deeply flawed” the district court’s conclusion that African-American and “black” could not be used interchangeably, meaning that the African-American plaintiffs failed to carry their burden of proof by comparing themselves to “white” employees, who could also be African-American. 

This reasoning is deeply flawed. It starts from the erroneous premise that “African American” and “Black”—and, in turn, “non-African American” and “white”—are rigid categories of identity that can never be used interchangeably. Contrary to that assumption, our Title VII jurisprudence on race discrimination governs, and we have often used “African American” and “Black” interchangeably and compared “African Americans” with “whites.” . . . . The district court attempted to justify its additional evidentiary requirements by pointing to Title VII’s prohibition on discrimination based on skin color, reasoning that “discrimination based on color is distinct from discrimination based on race.”  . . . . But that distinction does not obviate our well-established caselaw recognizing “Black” and “white” as racial identities.

By relying on this narrow conception of racial identity, unadorned by legal precedent, the district court effectively imposed a heightened burden on Plaintiffs beyond what Title VII, § 1981, and the THRA require. Our circuit has never held that a plaintiff must proffer evidence of a comparator’s racial self-identification or genetic composition to survive judgment in a Title VII case. To the contrary, we have routinely accepted, at summary judgment, plaintiff testimony of disparate, race-based treatment grounded in experience and perception. . . .

The Court’s majority also found sufficient evidence of disparate treatment to also support the claims of racially harassment. 

“[F]acially neutral abusive conduct can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”   . . . . Here, given the alleged use of racial slurs by [the supervisor and manager], a reasonable jury could infer that the accompanying (purportedly race-neutral) verbal abuse by both individuals was, in fact, also racially motivated, without regard to Plaintiffs’ testimony that non-African Americans received more favorable treatment.

The Court also rejected the district court conclusion that the evidence was insufficient to show a severe or pervasive ractially hostile work environment.

Our governing precedent, however, requires evaluation of the work environment as a whole, including the broader context in which the terms “monkey” and “monkey ass” were allegedly used.  . . . . As noted, facially neutral abusive conduct, such as screaming, cursing, and threatening, “can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”  . . .  By refusing to consider the use of the slurs in conjunction with the accompanying verbal abuse (or, for that matter, the unfavorable employment-related treatment) when assessing severity and pervasiveness, the district court relied on an incomplete picture of the harassment that Plaintiffs allegedly experienced.

 . . .

 . . . our circuit has recognized that even a single incident of racial harassment, including the use of an egregious racial slur like the n-word, “may be so severe as to constitute a hostile work environment.” . . .  Like the n-word, the term “monkey” is “odious” and “degrading and humiliating in the extreme” when used as an insult against African Americans.  . . . . That is particularly true in this case, where [the plaintiffs] were purportedly called the term directly by their supervisors. The utterance of a slur by a manager “greatly increase[s] its severity,” and “harassment will be more severe if offensive comments were directed at a plaintiff.”

 . . . .

  . . .  [The plaintiffs] testified that they were directly called “monkey” and “monkey ass” by their supervisors on multiple occasions over time. Plaintiffs have also proffered evidence that, at least with respect to [one plaintiff], the term “monkey ass” was used in an overtly threatening manner. For example, [he] testified that [his supervisor] once told him, “you’re going to get your monkey A-S-S out there and do the job or . . . I’m going to write you up.”  . . . . Even standing alone, the evidence of these race-specific and derogatory terms very likely suffices to show severe or pervasive racial harassment.

We do not rely on the use of the slurs alone, however, because our governing cases require consideration of the totality of the circumstances in hostile work environment cases.  . . . . As discussed, [the plaintiffs] testified not only that they were directly called egregious, degrading, and humiliating racial slurs by their supervisors on several occasions, but also that they were subjected to sustained verbal use, in the form of threats, demeaning criticism, cursing, and screaming, while non-African American TRR drivers were spared from that same abuse. Plaintiffs also testified that they were consistently forced to work longer hours, drive lengthier routes with longer wait times, and use damaged trucks, unlike their non-African American counterparts. And both testified that the harassment caused them significant anxiety and diminished morale, which made it more difficult to drive on the road.

Viewing the totality of the record in the light most favorable to Plaintiffs, as we must, we conclude that a “reasonable person would have found [their work environment] hostile [and] abusive.” Id. at 309. In turn, a reasonable jury could find, from the totality of the evidence, that [they] were subjected to recurring, severe, and humiliating racial harassment that unreasonably interfered with their employment.

The Court also found sufficient evidence of employer vicarious liability because the employer failed to produce sufficient evidence to support its affirmative defense. 

While the employer points to the fact that it gave [the plaintiffs] a copy of its Anti-Discrimination and Harassment Policy, our caselaw makes clear that the existence and provision of a harassment policy alone are insufficient to show “reasonable care to prevent and correct promptly any racially harassing behavior.” . . . An employer must also show that the policy was reasonable and “effective in practice.”  . . .  [The employer] points to no evidence, and does not even attempt to argue, that it had an effective policy. It makes no mention of the policy’s “requirements” on supervisors or the “training regarding the policy”— both of which are baseline requirements for establishing the existence of a reasonable harassment policy. Id. at 349-50. The record also does not show that [the employer] took reasonable care to promptly correct the alleged harassment. To the contrary, Plaintiffs have testified that they placed [the employer] on notice of the harassment by reporting it to management-level employees, and P[it] has proffered no evidence that it acted to promptly correct the situation. On this record, we cannot say that [the employer] “exercised reasonable care to prevent and correct promptly any racially harassing behavior by its supervisor[s].”

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Modifies Ohio Civil Rights Act and Shortens Limitations Periods

 

What a long strange trip it has been.  Yesterday, Governor DeWine signed H.B. 352 into law.  While it is a scaled down version of what passed the Senate before Christmas, it addresses long-standing concerns with Ohio employment discrimination legal procedures and makes them more consistent and often still more generous than exist under federal law. Among other things, it generally shortens the limitations period for 4112 claims and some federal statutory claims to two years, requires exhaustion of remedies, incorporates specific federal defenses, and makes damages subject to tort cap limits, etc.  It still retains the right of employees to bring certain age discrimination and injunctive relief claims directly in court.

First, it shortens the limitations period for claims under O.R.C. § 4112, and federal claims under §§1981a, 1983 and 1985 to two years (from the existing six years), which is still twice as long as the federal limitations period under Title VII, the ADEA and the ADA, etc.  (The limitations periods for those federal statutes vary from state to state because they “borrow” the analogous state limitations period).  The limitations period begins to run from the date when “the alleged unlawful discriminatory practice was committed.”  This period will be tolled for Chapter 4112 claims as long as a Charge is pending at the OCRC, except that if the Charge was not filed until less than 60 days before the limitations period was about to lapse (i.e., on day 670), then the tolling will last another 60 days after the Charge is no longer pending at the OCRC.

Second, similar to federal law and with a few exceptions, it requires employees to first file a Charge with the Ohio Civil Rights Commission, before filing a lawsuit.   The time period for filing a Charge is the same as for filing a lawsuit: two years.   Employees may still request a right to sue letter from the OCRC prior to the conclusion of any OCRC investigation, but the OCRC may not issue the right to sue unless the Charge has been pending at least 60 days.

Third, with certain exceptions, employees cannot file suit unless they have a Right to Sue letter, have waited at least 45 days after requesting a RTS letter and 60 days since filing a Charge, or have received a letter where the OCRC found probable cause of discrimination to have occurred.   These conditions do not apply if the employee is only seeking injunctive relief or if the employee filed a timely charge with both the OCRC and EEOC and the EEOC has issued a right to sue letter (or if filing a lawsuit for age discrimination under §4112.14).   But, if the employee initially sought only injunctive relief from a court and later amends his or her complaint to include a claim for damages, the employee must have filed a timely OCRC Charge and comply with the right-to-sue letter requirements.   

Fourth, as with federal law, it eliminates individual liability of managers and supervisors under the statute.  The legislation notes that it intends to overrule the Ohio Supreme Court’s Genaro decision and to instead follow long-standing federal law on this issue.  

Fourth, it explicitly adopts the federal standard and affirmative defense from Faragher, for sexual harassment claims. 

Sixth, it makes verdicts for Chapter 4112 claims subject to the tort caps for non-economic damages.  

Seventh, it makes Chapter 4112 the sole and exclusive remedy for employment discrimination, which is similar to federal law.  In other words, there cannot be a common law wrongful discharge claims for violation of public policy against employment discrimination.

Finally, while it retains under §4112.14 the existing right of employees not subject to an arbitration agreement to file suit for age discrimination claims seeking only reinstatement, back pay, costs and attorney’s fees and the existing election of remedies, it added a few wrinkles.   The employee must still elect remedies (i.e., bring this direct action without being able to sue for compensatory or punitive damages or being required to file an OCRC Charge).   These direct actions are still subject to the new two year statute of limitations as described above.   Like other 4112 claims, that limitations period may be tolled if the employee filed a Charge with the OCRC making the same allegations. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit: No EPA Violation to Equalize Salesman’s Compensation to Match Female Without Pre-Existing EPA Violation

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment where a terminated male salesman alleged that the employer had violated the Equal Pay Act when it lowered his compensation to equal that of a female colleague. Schleicher v. Preferred Solutions, Inc., No. 15-1716 (6^th Cir. 8-2-16).  Under the EPA, an employer is not permitted to reduce an employee’s compensation in order to come into compliance with the Act.   However, the Court concluded that the employer had not violated the EPA by paying him substantially more than his female colleague because she voluntarily chose to be paid a salary and rejected the option to be paid on a purely contingency basis as he negotiated for himself.   Therefore, when his compensation was later reduced to match her compensation plan, the employer did not violate the EPA in doing so.

According to the Court’s opinion, the plaintiff was hired after being introduced to the defendant’s president by the female colleague (who formerly worked with him).  While the female colleague was a vice-president, she and the plaintiff were the only salespeople in the healthcare IT market for the defendant company.  The plaintiff wanted to be paid exclusively a percentage of a profit pool based on the profits generated by the healthcare IT market, but the female colleague found that to be too risky and wanted to receive a half of his percentage plus a guaranteed salary.  No one knew who would end up being paid more at the time.  However, their division became extremely profitable and the plaintiff ended up being paid almost $700K more than her over a four year period.  Nonetheless, she never requested to modify her compensation structure.

In the meantime, his workplace conduct and refusal to follow direction created friction between him and the president.  There were also disputes as to who was more responsible for making that division as profitable as it was. The plaintiff alleged that the president made derogatory comments about his gender, suggesting at one point that he would be happier working with other men.  In May 2013, the president changed his compensation structure to match his female colleagues and then, after finding him insubordinate in December, terminated his employment.

The Court assumed that the plaintiff had made a prima facie case of an EPA violation by paying him almost $700k more over four years than his female colleague who was performing the same job.  However, it agreed that the defendant had carried its heavy burden of proving its affirmative defense that the compensation difference was based on a factor other than sex.

The Court found that the female colleague’s decision to take a less-risky compensation plan with a guaranteed salary was a legitimate factor other than sex for the difference in their compensation.  It rejected the plaintiff’s argument that this was a valid defense for the first year or two, but that it became a statutory violation when the compensation difference persisted for two more years without the female colleague being given the option of changing her compensation.    The Court seemed reluctant to characterize a legal decision to an illegal one simply with the passage of time, particularly when the female colleague testified that there was never a time that she wanted or requested to be paid on a purely contingency basis.   There was nothing about the plaintiff’s or colleague’s gender which played a factor in the employer’s decision to pay them with different compensation plans while performing the same work.

The Court also rejected the plaintiff’s argument that the employer’s explanation was pretextual.  His evidence that there were discriminatory comments directed at him as a man hardly demonstrates why he was paid more because he was a man. 

Because it does not violate the EPA to reduce an employee’s salary if it is not done to remedy an EPA violation, reducing the plaintiff’s compensation to what his female colleague was being paid did not violate the EPA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Dismissal of USERRA Claim Where Plaintiff Was Employed Under One-Year Contract Without Renewal Term

Yesterday, a divided Sixth Circuit Court of Appeals affirmed a hospital employer’s summary judgment on a surgeon’s USERRA claim on the grounds that the surgeon’s one-year employment contract which could be terminated without cause upon 90 days’ notice constituted “brief, non-recurrent employment” with “no reasonable expectation” that it would “continue indefinitely or for a significant period” under USERRA’s re-employment exception and therefore did not require the hospital to reinstate him following his reservist deployment to Iraq and Kuwait.  Slusher v. Shelbyville Hospital Corp., No. 15-5256 (6^th Cir. 10-26-15).  The Court’s opinion was also influenced by the fact that the hospital had been searching for a permanent orthopedic surgeon before hiring the plaintiff, that plaintiff had been offered and declined that job, that the plaintiff’s one-year contract did not contain an automatic renewal term and that his employment was terminated under the terms of his contract once the hospital recruited and hired a permanent orthopedic surgeon.  The majority also found that the plaintiff could not show that he had been discriminated against on account of his military service under that factual situation.  Finally, the Court found that the plaintiff was not entitled to military pay under the Hospital’s policy.

According to the Court’s majority opinion, the hospital had been attempting to hire an orthopedic surgeon since 2010.  In the interim, it relied on temporary surgeons to fill its needs.  It hired the plaintiff on 30-day contracts, which were renewed several times beginning in July 2010.  The plaintiff lived out of state and could not initially persuade his wife to relocate. The hospital offered the plaintiff a permanent job as its orthopedic surgeon, but he declined the position.  Instead, he accepted a one-year contract commencing in January 2011.  The contract provided that it could be terminated on 90-days’ notice or immediately upon paying the plaintiff for 90 days in lieu of notice.  It did not contain a provision for automatic renewal or extension.   The hospital continued to search for a permanent surgeon and in April was contacted by the candidate that it eventually hired.   Like the plaintiff, he was also a military reservist.  The following month, the plaintiff received his deployment notice and was subsequently informed that the hospital was considering a candidate.  The hospital offered the candidate a three-year contract later that month and the plaintiff was deployed to Kuwait in early June.  The following month, the plaintiff received notice that his contract would be terminated in 90 days (October 26) because the hospital had hired the candidate to begin on October 1. The plaintiff’s deployment ended and he returned to work at the hospital until his employment was terminated on October 26.  He later brought suit under USERRA on the grounds that he was denied re-employment and was discriminated against on account of his military service.

In granting (and affirming) summary judgment, the courts found that the plaintiff was not entitled to re-employment rights under 38 U.S.C. §4312(d)(1)(C), which provides in relevant part that:

(d)(1) An employer is not required to reemploy a person under this chapter if—

 . . .

 (C) the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

The employer bears the burden of proving its entitlement to this exception.  The majority found that that this burden was satisfied in this case:

As far as [the plaintiff, the CEO and the Hospital] would have been concerned, the employment from which [the plaintiff] left to serve in the uniformed services was for at most a year; the parties were bound by an at-will one-year contract that did not provide for any renewal or extension. Moreover, [the Hospital and its CEO] were actively seeking to hire a permanent orthopedic surgeon at the time [the plaintiff] notified his employer of his impending deployment. [The plaintiff] was aware that [the Hospital] was interested in finding a permanent orthopedic surgeon because it offered the position to him and he declined it.

That [the plaintiff’s] contract was for one year and did not provide for renewal or extension plainly means that his employment was for a “nonrecurrent period” and that he could not have had a “reasonable expectation” that his employment would “continue indefinitely.” Thus, whether the § 4312(d)(1)(C) exception applied to [his] employment turns on whether it was “brief” and whether [he] had a “reasonable expectation” that it would continue “for a significant period.”

[The plaintiff] cannot be said to have had a reasonable expectation that his employment would continue “for a significant period.” [He] was aware that [the Hospital] was interested in finding a permanent orthopedic surgeon because it offered the position to him and he declined it, and he would have understood that his at-will contract (including a clause allowing [it] to terminate the agreement with no notice in exchange for 90 days’ pay) allowed [it] to promptly dismiss him upon finding a permanent replacement. Therefore, the relevant question is not whether the remainder of [his] one-year contract was “a significant period,” because in these circumstances [he] could not have reasonably expected to finish the one-year term. Rather, the relevant question is: How long did [he] reasonably expect his employment to continue, and was that amount of time a “significant period”? Given [his] situation, he could have reasonably expected his employment to continue for significantly less than a year, potentially ending in a matter of weeks or months if [it] could secure a permanent orthopedic surgeon. The Act does not define “significant period” as used in § 4312, see 38 U.S.C. § 4303, but any remaining employment term likely measured in weeks or months falls outside the bounds of a “significant period.” In the context of employment duration, a significant period is one that would provide an employee with some semblance of security or offer the ability to engage in long-term planning. [He] did not find himself in that position. Practically speaking, he had a temporary job ending as soon as a suitable replacement could be secured. [He] could not have reasonably expected his employment with [the Hospital] to continue for a significant period.

Finally, then, is the question of whether the employment from which [the plaintiff] left to serve in the uniformed services was for a “brief” period. The Act does not provide a definition of “brief” as used in § 4312, see 38 U.S.C. § 4303, but comments to the final rules governing the Act state that a three-month position would be considered “brief,” 70 Fed. Reg. 75246-01, 75249-50 (Dec. 19, 2005).  At the other end of the spectrum, one federal court has persuasively held that a four-year employment term is not “brief.” . . . 

 . . . we do not decide whether a one-year employment term is necessarily brief. Rather, we hold that [the plaintiff’s] employment term was brief because both parties would have contemplated that it would last up to one year but most likely less. Once more, it bears emphasizing that [the Hospital] was seeking a permanent orthopedic surgeon, and was capable of terminating [his] contract at any time because of the at-will clauses it contained. An employment term of this particular nature — a one-year at-will contract likely to be terminated early — is brief.   

Recognizing the impact of its decision if it were to imply that prevalent at-will contracts were presumptively “brief,” the Court was careful to restrict the implication of its decision:  

We are careful to note, however, that the at-will nature of a contract should not always weigh so heavily in determining whether an employment term is “brief” for purposes of § 4312.  . . . if at-will clauses are afforded too much weight the § 4312(d)(1)(C) exception could swallow the general reemployment rule of § 4312(a). But in this case, [his] at-will contract is properly given substantial weight because all parties would have contemplated that [the Hospital] actually intended to invoke the at-will clause as soon as it practically could in order to facilitate hiring a permanent orthopedic surgeon.

The Court’s majority also found that the discrimination claim under §4311 was properly dismissed, albeit on different grounds than the trial court (which had found discrimination claims could only be maintained if the plaintiff also had a right to reinstatement under §4312):

the district court’s understanding that § 4311 discrimination protections apply only upon reemployment that complies with the Act’s other requirements is dubious because it would reward employers for failing to compliantly reemploy returning military members by shielding those employers from § 4311 discrimination claims. It is highly doubtful that the drafters of the Act intended noncompliance with some of its provisions to trigger immunity from other provisions. More likely, if reemployment is a prerequisite to a § 4311 claim, it would either be mandatory reemployment under § 4312, or reemployment in the sense that the employee has returned to work even though § 4312 did not guarantee him or her reemployment.

The Court noted that prior precedent had not addressed contrary regulations and that many circuits had found §4311 discrimination claims to be wholly independent of §4312.

In any event, like the trial court had noted in passing, the plaintiff failed to make his prima facie case of showing that his military service was a substantial or motivating factor in his termination or to disprove the employer’s affirmative defense that it would have taken the same action in the absence of the plaintiff’s protected military service.

Plaintiff has failed to set forth any evidence of a discriminatory motive for his discharge. The fact that he was given the termination agreement during his deployment is not evidence of discrimination against his military service in light of the record evidence as a whole, which demonstrates that Plaintiff was aware at the time he signed his employment contract and prior to his deployment that [Heritage] was seeking a permanent orthopedic surgeon. Additionally, the fact that Plaintiff’s replacement, Dr.Mosley, was also a service member who could be called to active duty undermines any argument Plaintiff could make regarding [the Hospital]’s alleged discrimination against service members.

  . . . . 

[The Hospital] sought to replace [the plaintiff] because it wanted a permanent orthopedic surgeon, not because of [his] military service. Its motivation to find a permanent employee is reflected both in that it offered [him] the permanent position and that it continued looking for his replacement before it knew of his deployment. That [the Hospital] hired [the plaintiff] in the first place and then replaced him with Mosley further demonstrates that it did not disfavor military physicians.

The majority also affirmed dismissal of the plaintiff’s breach of contract claims because the contract had been terminated under its own terms and the plaintiff was not entitled to military pay (i.e., a salary differential) under the Hospital’s policy because the policy – like USERRA itself  -- contained a specific exception for when the employee is employed for brief, non-recurrent periods with no reasonable expectation of continued employment for an indefinite or significant period. 

The dissent would have found disputed issues of fact based on the fact that the Hospital could have opted to extend or continue the one-year contract indefinitely as it had previously extended or renewed his 30-day employment contracts for several months before offering him the one-year contract.  In that event, the hospital would not have qualified for the re-employment exception.   Further, there was evidence that the Hospital’s CEO had stated to the new orthopedic surgeon that the plaintiff’s sudden deployment “had really messed things up” and that he had already confirmed that the candidate would not be re-deployed before offering him the job.  Therefore, evidence existed that his military service had motivated the hospital to replace him.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court Reverses Employer’s Summary Judgment on Sexual Harassment and Retaliation Claim

Last week, a unanimous Butler County Court of Appeals reversed an employer’s summary judgment on a sexual harassment and retaliation claim brought by a former grocery store employee.  Ellis v. Jungle Jim's Market, Inc., 2015-Ohio-4226.   The court found that there were factual disputes which prevented judgment on the employer’s defenses even though it did a lot correctly after learning of the alleged harassment.  In particular, the Court found there was enough evidence to show that the employer did not sufficiently prevent or remedy harassment because its management had not been trained about harassment or workplace investigations, it failed to obtain written statements from all witnesses in a timely fashion and its anti-harassment policy did not specifically address informal and verbal reports of harassment.  A jury could also find that the employer retaliated against the plaintiff for filing her OCRC Charge by immediately transferring her to a lower-skilled bagging position at the same rate of pay purportedly in order to protect her because it had not transferred her when she earlier complained about harassment and had not transferred or suspended the harassing employee.

According to the Court’s opinion, the plaintiff had been hired as a bagger and was subsequently promoted into the seafood department.  She had been given the employer’s sexual harassment policy, which directed her to bring concerns to her supervisor, her manager or to a certain employee (who had previously died) who chaired the store’s investigation committee.  About a month after her promotion in February 2013, she claimed that her supervisor subjected her on a daily basis to inappropriate sexual comments and suggestions, many of which were graphic and gross.   Although she regularly objected to his conduct and suffered emotional and physical distress from it, she did not report it to management because he told her that he was just kidding and implicitly threatened her when he said that he knew that she liked her job.

Another employee reported the alleged harassment of the plaintiff to the assistant store manager, who then reported it to the store manager (who now chaired the store’s investigation committee).  After speaking with the plaintiff, the store managers interviewed her supervisor and two other employees (who did not corroborate the plaintiff’s allegations).  They did not interview all of the department employees or obtain written statements from the department employees.  Nonetheless, they issued a disciplinary action on May 5 directing the supervisor to cease any sexual comments under penalty of immediate termination.  The plaintiff was instructed to report any further problems to the store manager and she declined the opportunity to transfer out of the department.  Her working hours were changed so that she would no longer work with her supervisor.

There was conflicting evidence about whether the inappropriate comments continued.  The plaintiff at one point testified that he only whispered about her to other employees.  She claimed, however, that he retaliated against her by denying her time off, etc.  She did not immediately bring these issues to management even though they regularly walked through her department and checked in with her in order to ensure that she was suffering no further harassment.  Nonetheless, the plaintiff filed an OCRC Charge on May 28 alleging sexual harassment.  She was almost immediately transferred back to bagging without any reduction in pay and declined the owner’s offer to return her to the seafood department.  She subsequently injured her knee and was medically restricted to a sitting position.  Accordingly, the store gave her its only light duty position as the store greeter.  However, she resigned because she felt that she had been put in that position in order to ridicule her.

The plaintiff filed suit in November.  The following May, the store finally interviewed the rest of the seafood department employees almost a year after its first investigation and received further corroboration of the sexual harassment and that it continued after the plaintiff had been transferred out of the department.

Unlike the trial court, the Court of Appeals found that the plaintiff produced sufficient evidence that her supervisor created a hostile working environment with his daily sexual comments and suggestions because his conduct could be found by a jury to be sufficiently severe and pervasive enough to alter the terms and conditions of employment.  The Court also found that the alleged harassment was also objectively and subjectively hostile to a reasonable person in the plaintiff’s position.  Evidence about her failure to complain, the testimony of co-workers that they never witnessed the alleged harassment and the fact that she accepted a ride home from the harasser only affected the weight of the employer’s defense and not whether the plaintiff could prevail at trial.

Unlike the trial court, the Court also found that there was sufficient evidence to hold the employer vicariously liable for the harassment.   First, it found that there remained issues of material fact about whether the employer could raise the “no tangible employment action” defense.  The plaintiff could not show that her harassing supervisor had taken any tangible actions because her transfers, etc. had been taken by upper store management.  Nonetheless, the employer was not entitled to summary judgment on the defense because it could not show that it took sufficient steps to prevent and remedy harassment.   In particular, its policy did not explicitly provide for informal or verbal complaints.   There were also issues as to whether the employer actively implemented the policy or trained supervisors or staff about it because it had not been updated following the death of the investigations committee chair and none of the managers had received training about harassment or how to conduct investigations. Second, the employer did not interview all of the departmental employees identified by the plaintiff in her interview or obtain written statements from any departmental employees until after the plaintiff filed her OCRC Charge.   The Court also faulted the employer for leaving the plaintiff in the department, only periodically touching base with her thereafter and not training the harasser about how his conduct had been objectionable.

As for her retaliation claim, the trial court had found that the transfer back to a bagging position at the same rate of pay was lateral and therefore, not materially adverse.  The Court of Appeals found this to be a disputed factual issue because a bagger’s diminished responsibility might have deterred a reasonable person from filing an OCRC Charge.  Further, the plaintiff could show a causal connection between her transfer and her protected activity because she was transferred almost immediately (or within a few days) after the employer learned that she had filed her OCRC Charge.  It also found a factual dispute as to whether the employer’s legitimate business reason for transferring her – to protect her from further sexual harassment – was pretextual because it had not transferred her earlier even though she had allegedly complained about continued harassment.  A jury could reasonably find that she had been transferred in retaliation for filing her OCRC Charge because the harasser could have been transferred or suspended instead.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

A Hodgepodge of Activity in February

There have been a few interesting decisions within the past month in the employment context, but none of them are earth-shattering (unless you are facing a factually similar situation in your workplace).   The NLRB once again dinged a non-union employer for terminating an HR employee for discussing confidential salary information with co-workers because the employer failed to show she was a statutory supervisor and employees have a right to discuss wage information.  After she declined reinstatement, the employer offered “to make the former employee whole by paying her backpay, 401(k) contributions, medical expenses and interest in the total amount of $107,000, to revise its policy to delete the prohibition on employees of discussing their salaries, and to post a Board Notice describing these actions.”  Of course, whether this decision survives is an open question since the D.C. Court of Appeals ruled last month that President Obama lacked the authority to make three recess appointments to the NLRB on January 4, 2012 and, without those recess appointments, the NLRB lacks a quorum to vote.  (Yes, here we go again).  The NLRB announced it intended to appeal the decision in that particular case and essentially otherwise ignore the decision while conducting business as usual until the Supreme Court tells it otherwise.  The Sixth Circuit also issued a few interesting decisions.

In one case, Quinn v. Griffith, No. 12-1465 (6^th Cir. 2-21-13) the Sixth Circuit affirmed a jury verdict holding an employer liable for a sexually hostile work environment created by the manager in a two-person office and the imposition of punitive damages.  The employee apparently set up a hidden camera in the office to substantiate her allegations after the employer’s internal investigation concluded that it could not substantiate her allegations. The trial court refused to permit testimony by the employer’s lip-reading expert to rebut what the jury saw on the videotape.  Even without lost wages, the plaintiff was awarded $25,000 in compensatory damages and $50,000 in punitive damages.   (Attorney fees for a prevailing plaintiff were not discussed in the opinion).  The matter was remanded for the trial court to clarify or modify the allocation of damages among the individual and corporate defendant and among the state and federal claims.  The Court had no difficulty in rejecting the employer’s argument that it should not be held liable for the manager’s conduct because it failed to preserve the Ellerth/Faragher affirmative defense in its answer to the plaintiff’s complaint or in its summary judgment motion.  Moreover, the employer failed to present any evidence of how it had exercised reasonable care to prevent and remedy the harassment.   (Obviously, this is difficult when it failed to distribute a sexual harassment policy, but not impossible according to the Court).   The same could be said of its argument that it could not be liable for punitive damages.  “An employer may avoid liability by showing that it engaged in good-faith efforts to comply with Title VII, which is most often shown by effective implementation of an anti-harassment policy.”

The Sixth Circuit has also heard and rejected a few appeals involving firefighters suing the City of Columbus.   Yesterday’s decision in Arnold v. City of Columbus likewise found no evidence of race discrimination.  This case involved a series of external and internal investigations over a few years into the conduct of the inspections section/fire protection bureau of the fire department.  Employees complained, in particular, about how the internal investigations were conducted and alleged that they were treated differently than white employees in terms of the presence of union officers in interviews, whether certain interviews were tape recorded and whether they could object to the presence of union officers in interviews, etc.   Ultimately, the Court found that the plaintiffs were not treated differently on account of their race.   In the Fullen case, the Court upheld disciplinary action when a plaintiff refused to be interviewed in the presence of a union representative.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Finds Possible Hostile Work Environment Drove Plaintiff From Workplace, But Denies Disability Wrongful Discharge Claim Based on Subsequent Medical Leave of Absence

Yesterday, the Franklin County Court of Appeals reversed an employer’s summary judgment on a sexual harassment claim, but affirmed dismissal of the wrongful discharge claim. Camp v. Star Leasing Co., 2012-Ohio-3650. In that case, the plaintiff presented sufficient evidence that her male boss regularly demeaned her, but was not similarly hostile to male employees. Only one of his comments was sex-specific and none of it was related to any arguable sexual attraction. The Court also rejected the employer’s affirmative defense. However, the Court upheld her termination after she requested four additional months of medical leave for depression and anxiety following the completion of her FMLA leave on the grounds that her episodic flare-up of mental symptoms did not qualify as a disability or entitle her to additional leave as a reasonable accommodation.

The Court’s opinion contained a number examples of the condescending and degrading treatment which the plaintiff alleged she endured over a five-year period. One of them was described:

[He] treated her in a degrading and humiliating manner throughout the time he acted as her supervisor. [She] testified to multiple examples of this treatment. First, [she] stated that [he] required her to stop whatever she was doing, turn her chair around to face him, put her hands in her lap, and look him in the eye whenever he spoke to her. One time, when [she] did not respond fast enough to [his] presence, [he] twirled her chair around and yelled, "I want eye contact. I want eye contact. Right here. Right here. Look me in the eyes." . . . . While yelling, [he] pointed at [her] face and then at his eyes. [He] did not require male employees to stop what they were doing, put their hands in their laps, and look him in the eye when he spoke with them.

He allegedly also used offensive language when he spoke with her, unlike the male employees. He would only meet with male sales representatives, but not female ones (although he would occasionally make comments about being sexually attracted to them). He permitted male employees to bring Playboy magazines to work, where she would be required to see them.

The plaintiff complained to upper management that she felt discriminated against on account of her sex, but no formal investigation was ever conducted. After a number of years, the plaintiff’s mental health suffered and she took a leave of absence upon her doctor’s advice. After exhausting her FMLA leave, she requested four additional months, but was denied and terminated on account of the nature of her position and inability to temporarily replace her. The trial court granted summary judgment to the employer on all of her claims.

The Court of Appeals found that she had provided enough evidence (from her own experience and that of other female employees) to demonstrate a hostile work environment. She experienced the hostile conduct on daily basis, making it sufficiently pervasive. While the employer attempted to defend her manager on the grounds that he was equally rude to everyone, her denial of ever seeing him similarly denigrate male employees was sufficient to create an issue of fact for the jury to resolve. She was able to show that it affected her ability to work in making her increasingly anxious and depressed, finally requiring significant medical treatment.

The employer attempted to argue that it was entitled to an affirmative defense because she failed to sufficiently utilized internal procedures concerning workplace harassment. It first argued that she could not show that she suffered a material job action in that she had always received raises and favorable performance evaluations. However, the Court pointed out that she was not required to prove the existence of a tangible job action to recover for a hostile work environment; that was an element of the employer’s affirmative defense. Moreover, the plaintiff had utilized the employer’s policy and complained about discriminatory treatment. While she did not utilized the word “harassment,” she sufficiently described his demeaning treatment of her. The employer did not conduct any investigation and concluded based on cursory inquiries that she simply had a personality conflict with her boss. When the employer argued that she had failed to submit any written complaints about her boss, the Court pointed out that the employer’s policy did not contain any such requirement.

Finally, the Court affirmed dismissal of her wrongful discharge claim. She claimed that she was fired on account of her mental disability when the employer refused to provide an accommodation of four months of additional medical leave. The Court determined that a four month episode of depression and anxiety was insufficiently severe or enduring to substantially limit a major life activity or constitute a disability. Therefore, she was not entitled to any reasonable accommodation or additional leave of absence following the conclusion of her FMLA leave.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Proposes New ADEA Rule to Address “Reasonable Factor Other Than Age”

Last week, the EEOC began soliciting comments on a proposed rule defining the “reasonable factor other than age” defense available to employers under the Age Discrimination in Employment Act. Both the ADEA and Title VII contain a “business necessity” defense, but only the ADEA also has a defense for RFOA. Interestingly, the Equal Pay Act also has a defense for “factor other than sex,” but does not limit the defense to “reasonable” factors. In addition, even though Congress narrowed the “business necessity” defense in Title VII in 1991 following the Wards Cove Packing v. Atonia, 490 U.S. 692 (1989) decision, it did not similarly amend the ADEA (probably because there had been an open question whether disparate impact liability even existed before 2005). The EEOC concluded that a new rule was necessary following the Supreme Court decision in Smith v. City of Jackson, 544 U.S. 228 (2005), which found that the scope of an employer’s potential “disparate-impact liability under the ADEA is narrower than under Title VII'' because of the additional RFOA defense. In particular, the Court found that the employer could legitimately adopt a pay plan which did not benefit older employees to the same extent as younger employees if the employer had a reasonable basis – such as recruitment and retention of employees -- for doing so which was not based on the age of the employees. Moreover, the Supreme Court also held that employers bear both the burden of production and persuasion under the RFOA affirmative defense. Meacham v. Knolls Atomic Power Lab, 128 S. Ct. 2395 (2008).

The new rule will be located at 29 CFR §1625.7(b) and will provide as follows:

Whether a differentiation is based on reasonable factors other than age (``RFOA'') must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.
(1) Reasonable. A reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer. Factors relevant to determining whether an employment practice is reasonable include but are not limited to, the following:
(i) Whether the employment practice and the manner of its implementation are common business practices;
(ii) The extent to which the factor is related to the employer's stated business goal;
(iii) The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
(iv) The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
(v) The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
(vi) Whether other options were available and the reasons the employer selected the option it did.\1\
------

\1\ This does not mean that an employer must adopt an employment practice that has the least severe impact on members of the protected age group. ``Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class,
the reasonableness inquiry includes no such requirement.'' Smith v. City of Jackson, 544 U.S. 228, 243 (2005). Instead, this simply means that the availability of other options is one of the factors relevant to whether the practice was a reasonable one. ``If the actor can advance or protect his interest as adequately by other conduct which involves less risk of harm to others, the risk contained in his conduct is clearly unreasonable.'' Restatement (Second) of Torts 292, cmt. c (1965).
-------------------------------------------------------

(2) Factors Other Than Age. When an employment practice has a significant disparate impact on older individuals, the RFOA defense applies only if the practice is not based on age. In the typical disparate impact case, the practice is based on an objective non-age factor and the only question is whether the practice is reasonable. When disparate impact results from giving supervisors unchecked discretion to engage in subjective decision making, however, the impact may, in fact, be based on age because the supervisors to whom decision making was delegated may have acted on the bases of conscious or unconscious age-based stereotypes. Factors relevant to determining whether a factor is ``other than age'' include, but are not limited to, the following:
(i) The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
(ii) The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
(iii) The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Judgment for Employer is Affirmed on Sexual Harassment Claim When Investigation and Termination Was Handled Properly.

This morning, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of a hospitality industry employer on a sexual harassment claim when the employer properly investigated and terminated the employee. Balding-Margolis v. Cleveland Arcade d/b/a Hyatt Regency Cleveland, No. 09-3017 (11/10/09). Retired Justice Sandra Day O’Connor was part of the panel which issued the decision. The plaintiff was a long-time waitress who was found to have violated many cash-handling procedures over a period of time, including rules against increasing the amount of her tip on a customer’s credit card payment. After she was fired, she alleged that, among other things, she had been subjected to a hostile work environment and treated differently on account of her age and sex.

According to the Court’s decision, when the plaintiff was hired, she was given copies of several policies, including the employer’s sexual harassment policy (which permitted her to bring concerns to her manager, the Director of Human Resources and a national toll-free hotline), and that she could be immediately terminated for violating cash-handling procedures. Her employment was also governed by a bargaining agreement with the UNITE HERE union. “[T]he Cash Handling Rules generally prohibited an employee from altering a guest check; required that an employee follow proper procedures; and prohibited an employee from handling checks, cash, and credit cards in an improper manner. The restrictions on altering a guest check included prohibitions on changing the tip amount or closing out a check that differed in any way from the customer’s signed receipt.” Notwithstanding these rules, and the fact that she was a trainer who oriented new employees about these rules, “[i]n October 2005, she was issued a warning when two guests left the restaurant without providing a valid form of payment. In January 2006, [plaintiff] received another warning because of a large cash variance following her shift. In May 2006, [plaintiff] received a third warning—a “Final Written Warning”—for adding an additional eighteen-percent gratuity without the customer’s permission.”

A year later, her supervisor noticed that her credit card tips equaled almost 1/3 of her receipts for the day (not including cash tips). “The high tips-to-sales ratio was suspicious and caused [her supervisor] to audit [plaintiff’s] transactions that day. [He] concluded that there were problems with one-third of [her] sales, including receipts for discounted meals that lacked the required discount coupons; ten checks without a signed copy of the room charge, credit card, or other documentation; and two unsigned receipts with listed tips that exceeded the actual food-sales amount. [He] conducted an audit of the two workers with whom [she] had been serving that day but found no similar discrepancies.” He then went back and audited the prior few weeks and involved the Controller and Human Resources Manager, confirmed that there consistently were similar violations and decided to terminate her employment. She “was given the opportunity to explain the various discrepancies, but she failed to do so.”

During the termination meeting, [plaintiff] made general complaints regarding the way that [her supervisor] had administered the staff, but she made no complaints of sex- or age-based discrimination or harassment. Following her termination, Hyatt continued auditing [her] receipts for five dates in April 2007, revealing additional discrepancies. Because [she] had alleged during her termination meeting that [her supervisor] was attempting to get her fired and that he had papered her file and/or stolen the supporting documentation that she needed to explain the discrepancies, Hyatt conducted an audit of [her] transactions during a two week period prior to [his] employment at Hyatt. That audit revealed similar cash-handling problems. Hyatt also conducted an audit of all the checks closed out by the servers on April 25, May 1 through 4, and May 8, 2007, and found that none of them had discrepancies or cash-handling violations similar to [her] discrepancies.

Plaintiff then filed an EEOC Charge and union grievance alleging sexual harassment and age discrimination. Hyatt conducted an investigation, interviewed co-workers and did not find any basis for her claims. She then filed suit in federal court.

The Court concluded that she could not satisfy a prima facie case of age discrimination because she could not show that she was replaced by a substantially younger employee or that younger employees were treated more favorably. A bartender was not her “replacement” because he had already worked in the restaurant part-time before her termination. A “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”

She also could not show that others were treated more favorably because their alleged violations were not the same.

She claims that the younger employees’ practice of marrying alcohol and their admitted but unproven failure to turn in receipts were sufficiently serious to merit comparison to the disciplinary violation that led to her termination—the cash-handling-policy violation and misappropriation of funds. . . . This is not the case. Marrying alcohol may be a violation of Ohio law, but [she] never engaged in the practice and was never disciplined for not participating. The fact that [she] was terminated for engaging in an illegal practice does not automatically make marrying alcohol and [her] infraction comparable. Misappropriation of funds and marrying alcohol are different circumstances involving distinguishable conduct.

Plaintiff also brought pay discrimination claims because trainers at non-Cleveland Hyatt hotels were paid more than her... However, she presented no evidence that she was paid less than co-workers outside of her protected class in Cleveland “‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . . [She] concedes that she was the only server-trainer in Cleveland, and she has presented no evidence that other non-protected employees held “substantially equal” jobs and were paid more. . . . . . [She] further concedes that those employees who were paid a higher rate had greater seniority and were being paid pursuant to the provisions of the CBA.” She also presented no evidence about the age or sex of the non-Cleveland trainers, even if they could be considered as part of the same establishment.

The Court found that the plaintiff presented a prima facie case of sexual harassment, especially based on two allegations of improper physical contact and her supervisor’s daily bragging about his sexual life:

(1) The Director of Sexual “once invited [her] to lie down in his room;”
(2) The Security Director once told [her] that she was attractive;”
(3) The Director Security “once hit [her] on the buttocks and “untied [her] apron, which was tied in the back;”
(4) Her supervisor “once commented that he had a large penis;”
(5) Her supervisor “once told [her] that he had sex with one of her customers, [her] to provide a free meal to that customer, and then “put his hands . . . against the wall and dry humped it or did a pelvic thrust against it,” stating “I did her, I did her,”;
(6) Her supervisor “had once asked a female line cook to do the “boobie dance,” which involved putting the cook’s “hands underneath her chest” and moving them “up and down” and shaking “her hips;”
(7) Her supervisor “repeatedly bragged to [her] about the day that he had sexual intercourse with a fellow Hyatt server and [her] female co-worker at the Hyatt;”
(8) Her supervisor “repeatedly talked to [her] ‘about a sexual relationship he had with a former co-worker, how that co-worker was pregnant, how [he] needed to mail that pregnant woman a check so that the woman can pay for an abortion,” and how he wanted [plaintiff] to put [his] check in the mail.”

In light of her evidence of sexual harassment, Hyatt would be liable for the supervisor’s actions unless it could show by a preponderance of the evidence “that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that [the plaintiff] ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ . . . Generally, an employer satisfies the first part of this two-part standard when it has promulgated and enforced a sexual harassment policy.”

The Court found that Hyatt had an effective sexual-harassment reporting policy and that the plaintiff failed “to take advantage of Hyatt’s corrective policy was unreasonable.”

Although her post-deposition affidavit states that she complained to Hyatt management verbally over thirty times, [her] deposition testimony indicates that she never complained to anyone concerning [her supervisor’s] harassment and discriminatory conduct other than to [her supervisor] himself. Her deposition testimony further establishes that she never complained to anyone about [the Security Director’s] conduct. [Plaintiff] failed to make these complaints notwithstanding that she testified that she was aware of the open-door policy, the complaint procedure, and the fact that if her immediate supervisor failed to act on her complaint she could go elsewhere. [She] clearly took advantage of the complaint process with regard to a variety of run-of-the-mill matters, but she failed to take advantage of the policies when it mattered most.

Likewise, the Court rejected her retaliation claim. She failed to testify in her deposition about any instances of complaining to management about any sex or age discrimination, even though she complained in writing and verbally about a number of other matters. In order to invoke the protections of federal or state law, an employee needs to be direct in complaining about discrimination:

a vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice. An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination.

In any event, the Court also concluded that even if the plaintiff could satisfy her prima facie case, the employer had shown a legitimate, nondiscriminatory and non-retaliatory reason for firing her.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0732n-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Fear of Race Discrimination Lawsuit Cannot Justify Reverse or Other Intentional Race Discrimination if Employer Has Valid Defenses.

In a highly anticipated decision, a 5-4 Supreme Court today reversed a summary judgment decision previously approved by the Supreme Court nominee Sonia Sotomayor. Ricci v. DeStafano, No. 07-1428. The lower courts had upheld the City of New Haven, Connecticut in failing to certify the results of a civil service promotional examination for firefighters on the grounds that the City was concerned that it would be sued for disparate impact race discrimination if it promoted any firefighters based on the test because mostly white and Hispanic firefighters passed the exam and only 9 of the 27 African-American firefighters passed. Because the City’s decision was based entirely on the race of the successful and unsuccessful test takers, it necessarily implicated the intentional discrimination provisions of Title VII of the Civil Right Act. The Court held that “race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” The employer cannot justify its actions based solely on the fact that the potential plaintiffs can prove only a prima facie case of discrimination; rather, the employer must also consider its potential defenses before making a race-conscious decision. Because that “strong evidence” was lacking in this case, the Court not only reversed summary judgment for the City it directed that the plaintiffs were entitled to summary judgment on liability.

The Background

According to the Court’s decision, the City Charter required the City to promote firefighters into officer positions based on how they ranked on promotional examinations. The examination consisted of both written and oral portions and required a certain amount of prior job experience and education. The experienced consulting firm hired to design the test analyzed the jobs at issue by interviewing, questioning and observing the incumbent officers.

At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates. . . .

For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. [Each test consisted of 100 questions and] was written below a 10th grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.

IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.

All of the assessors were from outside Connecticut and received special training. “Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members” (i.e., one white, one Hispanic and one black).

Following the November 2003 examinations, 34 out of the 77 (or 44%) of the candidates passed the lieutenant examination: 25 out of 43 [58%] whites, 6 out of 19 [ 31.5%] blacks, and 3 out of 15 [20%] Hispanics. Because there were 8 vacancies at the time of the examination, the top ten scores were eligible for immediate promotion. All of them were white.

As for the captain exam, 22 of the 41 (or 54%) of the candidates passed: 16 out of 25 whites (64%), 3 out of 8 blacks (37.5%), and 3 out of 8 Hispanics (37.5%). Because there were seven captain vacancies at the time of the examination, 9 candidates were eligible to be considered for an immediate promotion to captain—7 whites and 2 Hispanics.

Although the City had a contractual right to a technical report from the consultant analyzing the test results, instead the City immediately objected to the facial racial disparity in the results. The City told the Civil Service Board that the test results had a disparate impact. Some firefighters – without knowing how they scored – advocated certifying the test results because they had spent a lot of money buying studying materials and a lot of time studying and a new test would take years to develop and administer. Others objected on the grounds that the study materials were too long and expensive. Some suggested that a validation study be conducted.

The Board ultimately requested the consultant to explain how the test had been developed and conducted and also requested an outside panel of experts to review the situation. One of those experts was a competitor of the consultant and he opined that the test results were not surprising, criticized the lack of local input into the test questions and suggested the use of an assessment center which required the candidates to demonstrate their knowledge instead of merely answering questions on a test or in an interview. Another witness – who was black – from the Department of Homeland Security said that the test reviewed relevant and job related information. He suggested that the disparity was somewhat related to the fact that more white candidates took the exam than black candidates. The final “expert” was a college professor who know nothing about firefighting, but who opined that “regardless of what kind of written test we give in this country . . . we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case.” Although the results may have been influenced by the fact that the job analysis surveys were initially completed mostly by white firefighters, “no matter what test the City had administered, it would have revealed “a disparity between blacks and whites, Hispanics and whites,” particularly on a written test.” The Board deadlocked on whether to certify the test results, which meant that the results were not certified.

The Litigation

The plaintiffs – 17 white firefighters and 1 Hispanic firefighter – filed suit under §§ 1983 and 1985 and under Title VII against the City and other defendants. The District Court granted summary judgment to the defendants and it was affirmed on appeal. The Second Circuit then considered whether to reconsider the decision en banc, but voted 7-6 against reconsideration.

The issue as framed by the Supreme Court:

The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.

While the lower courts found that intentional discrimination could be excused in order to potentially avoid disparate impact liability under Title VII, the Court did not think that this was necessarily so. The plaintiffs argued that it should never be a defense to intentional racial discrimination that the employer was attempting to avoid unintentional discrimination. The defense argued that good faith efforts to avoid unintentional disparate impact should excuse intentional race discrimination. The court found both parties’ arguments to be simplistic and unrealistic. It rejected racial quotas or employer practices seeking a preferred racial balance. It also refused to prefer the disparate treatment provisions of Title VII over the disparate impact provisions.

If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.
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We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.

In reaching a compromise, the Court considered decisions in other areas where it had permitted intentional discrimination. “The Court has held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “‘strong basis in evidence’” that the remedial actions were necessary.”

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. . . . And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In this case, the City defended its actions on the grounds that the test results had a disparate impact on a racial class (i.e., a neutral practice has a statistically disproportionate affect on a particular group). However, the Court pointed out that the disparate statistics constituted only a prima facie case and that the employer could have defended the results by showing that the test was job related and consistent with business necessity. At that point, the plaintiffs would have had to show that “the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” In this case, there was no dispute that the group opposing the test results could have met a prima facie case and there was overwhelming evidence that the City could have met its burden of showing the job-related/business necessity defense. There was, however, a question about whether a reasonable alternative existed. The Court rejected challenges that weighing the written and oral portions of the exam differently might have produced different results or that utilizing an assessment center would have been available to the City at the time or produced a different result.

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, . . . and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.
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On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.

The Court did not address the plaintiffs’ Equal Protection arguments and did

not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. . . . Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference

While employers may consider how to make its employment testing and processes more fair, “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

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NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.