Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Title VII’

Court Says Lactation Is Related to Pregnancy, Refrains From Saying, "Duh"

Tuesday, October 1st, 2013

Donna photo redwrote about a really stupid case out of Texas where a federal court said that “lactation is not pregnancy, childbirth, or a related medical condition,” and thus decided that “firing someone because of lactation or breast-pumping is not sex discrimination.”  I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really?

Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, “Well, duh,” has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII. EEOC reports this about the decision: “The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.”

Personally,  I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court’s ruling. I wouldn’t have had that much self-control.

I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn’t the restroom to do so.The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren’t large enough to be covered by Title VII.

I rarely get to say this, so: Hooray for common sense in the courts!

This article was originally posted on Screw You Guys, I’m Going Home on September 27, 2013.  Reprinted with permission.

About the Author: Donna Ballman‘s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently named the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. She is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 and 2012 ABA Blawg 100 best legal blogs and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

She has written for AOL Jobs and The Huffington Post on employment law issues, and has been an invited guest blogger for Monster.com and Ask A Manager. She has over 6000 followers on Twitter as @EmployeeAtty. She has taught continuing legal education classes for lawyers and accountants through organizations such as the National Employment Lawyers Association, Sterling Education Services, Lorman Education Services, Alison Seminars, the Florida Association for Women Lawyers, and community organizations.  Ms. Ballman has published articles on employment law topics such as severance, non-compete agreements, discrimination, sexual harassment, and avoiding litigation. She’s been interviewed by MSNBC, Forbes, the Wall Street Journal, Lifetime Television Network, the Daily Business Review, and many other media outlets on employment law issues. She was featured on the Forbes Channel’s “America’s Most Influential Women” program on the topic of severance negotiations and non-compete agreements.

EEOC loses battle (but not war) on discriminatory background checks

Wednesday, August 21st, 2013

Christian SchreiberWhen it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job.  Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.

The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks.  According to the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds.  Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness.  Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.

The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks.    These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks.   A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.

In 2011, California limited the use of credit checks in employment.  After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence.  However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.

In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?”  Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants.  Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence.  In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.)  Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.

These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants.   Advocates hope Freeman doesn’t signal that more bad news lies ahead.

This article originally appeared on CELA Voice on August 19, 2013.  Re-posted with permission. 

About the Author: Christian Schreiber is an active member of the California Employment Lawyers Association, where he serves on CELA’s Legislative Committee and Wage and Hour Committee.  He is also a member of the American Constitution Society, the Public Justice Foundation, and the Consumer Attorneys of California. Mr. Schreiber received his B.A. from UCLA in 1996.

Workplace Bullying vs. Workplace Harassment: Is There a Difference?

Friday, July 26th, 2013

Teresa Zerilli-EdelglassBack when my workplace nightmare first began in 1992, during an 11-year tenure at New York City Transit that ended in termination on the heels of a hard-fought federal court victory, there was no such thing as “workplace bullying”.  Bullying – or at least the term – was reserved for what one mean-spirited kid did to another in the schoolyard.  However, “bullying” has now become the catch phrase for every mean-spirited act that one human being commits against another, whether in the workplace or the schoolyard — or just about anywhere!

Just at the time when I was finally beginning to realize my American Dream, the harassment began. Over time, with no help in sight, it escalated to epic proportions, causing debilitating mental illness that would eventually render me incapacitated.  What I experienced back then was characterized as “harassment”. Today, this same treatment has evolved into “workplace bullying”, though legally speaking, it is still called harassment.  (Unless I’ve missed something, I’ve never heard of anyone filing a “workplace bullying” claim.) Still, if one is harassed, he is being bullied.  But are these terms legally interchangeable?  Is it just semantics that separates them?  Or do they, in fact, have different meanings.

We have traditionally associated workplace harassment with the unlawful behavior described under the various acts created by Congress to protect workers from unfair employment practices.  Legislative measures (such as Title VII of the Civil Rights Act of 1964) exist to protect workers from discrimination against age, gender, race/color, religion, national origin, disability, genetic information, pregnancy, and compensation.  It also prohibits sexual harassment and retaliation.  While this might sound like a fairly inclusive body of protection, do these seemingly well-intentioned laws really cover everything?  Should protection be afforded only to these “protected classes” for the specific violations they are designed to address?

The short answer: no.

An obvious gaping hole in employment law still remains; the door is wide open for a cornucopia of offenses screaming to be addressed.  For instance, what about the fat person, the ugly (or pretty) one, the smelly one or the annoying one?  And how about the once untouchable white guy who gets wrongfully kicked around?  These folks have no real recourse except to complain to their supervisors, who, in all likelihood are ill-equipped to handle such matters.

When I worked for New York City Transit, I witnessed bullying like it was for sport.  In fact, it was the managerial style of choice. When one of “the men” as they referred to themselves, got out of line in any way believed to be even remotely threatening, he would likely pay for it lest he fell back in line posthaste.  God forbid, he resisted for he would be shipped off to the most undesirable location, usually the place no one wanted to be and that would make his life a living hell.  In fact, that same threat was deviously employed on job interviews.  One was pretty much forced to say he was okay with working at any one of the numerous locations in the system, albeit an outright lie.  Then, once he conceded to being the flexible, indispensable best man for the job, he might well find himself in one of our little “Siberias” anyway because, after all, he said he was willing to go there.  A real Catch 22, for sure.

Was this modus operandi unto itself harassment in the legal sense – or was it simply bullying? Well, unless one individual of a particular protected class, let’s say an employee over 40 amidst a group of twenty-somethings was singled out, it wouldn’t be classified as unlawful; however, it is not less wrong and must be treated as such.  Working forever shrouded in fear of retribution is unacceptable.

Since having written Thrown Under the Bus: The Rise and Fall of the American Worker, it is amazing how many folks have felt compelled to come forward to share their workplace horror stories with me.  They, too, attest that it is the bully’s way or the highway – with no help in sight.  I pray that my book serves to lend some insight to ways in which to successfully navigate “the system” without undue repercussion.

In a nutshell, the message is this: workplace harassment has evolved to a new form of the same called ‘workplace bullying’, the catch-all phrase for the ubiquitously inappropriate treatment of anyone and everyone where such behavior rises to the same egregious level of currently actionable legal claims under the law. If you can prove that which you claim to have occurred as having risen to the same degree of unlawfulness as prescribed by Congress, you shouldn’t need to be part of a protected class, just an aggrieved employee of any stripe with a legitimate claim.

Printed with permission

About the Author:  Teresa Zerilli-Edeleglass is the author of Thrown Under the Bus: The Rise and Fall of the American Worker, the provocative true story that begs the question: Is the American Dream ours for the taking, or can it just be taken away?  Ms. Zerill-Edelglass earned a Bachelor of Science degree from St. John’s University in 1989 and an Executive Masters in Public Administration from Bernard Baruch College in 1992. It was in 1988 that the opportunity presented itself for Ms. Zerilli-Edelglass to switch gears from the private to the public sector, one she enthusiastically embraced. No sooner had all of her hard work finally begun to pay off when everything suddenly went up in smoke, laying the groundwork for ‘Thrown’.  Thrown Under the Bus: The Rise and Fall of the American Worker is available online at AmazonBarnes & Noble, and through the author’s website.

Supreme Court Narrows Definition of "Supervisor" Under Title VII

Monday, July 1st, 2013

sheppard mullinEarlier this week, the United States Supreme Court narrowed the definition of “supervisor” for purposes of employment-related claims.  Specifically, on Monday, June 24, 2013, the Supreme Court ruled in Vance v. Ball State University, et al., that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.”  The Court’s 5-4 decision resolves a circuit split concerning the extent of authority an employee must exercise and be granted to be classified as a “supervisor.” The term “supervisor” is not defined in Title VII.  Instead, it was adopted by the Supreme Court as a way to identify those individuals whose actions could give rise to vicarious employer liability in the two earlier decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).  As established in Ellerth and Faragher, the standard to determine the employer’s liability is different based on whether or not the alleged harasser held a “supervisor” position.  First, where the alleged harasser is only the individual’s co-worker (and not a supervisor), the employer is liable only if it was negligent in failing to prevent the harassment from taking place.  Conversely, where the alleged harasser is the individual’s supervisor, and the harassment results in an adverse tangible employment action, the employer will be strictly liable.  However, if no tangible employment action is taken, the employer can avoid liability if it can demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and eliminate harassment, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or remedial opportunities provided by the employer. Despite the central focus in Ellerth and Faragher on the status of the alleged harasser, neither case presented the Court with the question of what degree of authority an individual must have imbued to him or her so as to be classified as a “supervisor.”  This precise issue reached the court in Vance, and provided the Supreme Court with its first opportunity to address this matter.  In Vance, an African American woman (Maetta Vance) claimed that a white Ball State University employee (Saundra Davis) created a racially hostile work environment in violation of Title VII.  The trial court held that the University could not be liable for Davis’ alleged harassment because she did not have authority to “hire, fire, demote, promote, transfer, or discipline” Vance and, therefore, was not a supervisor.  The U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision and Vance appealed to the Supreme Court. In holding that “the authority to take tangible employment actions is the defining characteristic of a supervisor,” the Supreme Court rejected guidance issued by the Equal Employment Opportunity Commission (“EEOC”) – and adopted by several other circuit courts –that links supervisor status, in part, to an employee’s ability to direct another’s daily tasks.  Accordingly, according to the Majority decision, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Rather than adopt the EEOC’s definition of a supervisor, which the Supreme Court characterized as “nebulous,” “vague” and “a study in ambiguity,” the Supreme Court emphasized that its own definition is “easily workable.”  Significantly, the Supreme Court explained that, because of its newly-announced definition, parties will be able to determine whether an alleged harasser was a supervisor even before litigation commences, thereby permitting the parties to assess a case’s strength, and to potentially resolve a dispute, before filing suit.  Furthermore, where parties fail to reach an early resolution, the Supreme Court’s framework “can be applied without undue difficulty at both the summary judgment stage and at trial” and will “very often [resolve the question of supervisor status] as a matter of law before trial.”  Indeed, the Supreme Court noted that its definition permits supervisory status to generally be determined by “written documentation,” as opposed to the EEOC’s approach, which requires litigants to engage in a “highly case-specific evaluation” of a number of factors including how often the alleged supervisor directs an employee’s daily activities and how many tasks the individual directs. Conclusion The Supreme Court’s ruling in Vance narrows the class of employees whose actions can potentially hold an employer vicariously liable for creating a hostile work environment under Title VII.  Based on the Supreme Court’s indication that supervisory status generally can be determined through written documentation, employers should review the job descriptions of individuals in supervisory roles to ensure their accuracy.  Additionally, employers should identify which of their employees are vested with the authority to take tangible employment actions and provide them with anti-harassment training which is targeted to the workplace issues that supervisors are likely to encounter.

This article was originally posted on Sheppard, Mullin, Richter & Hampton LLP’s Labor & Employment Law Blog.  For more information, please visit: http://www.laboremploymentlawblog.com/.

About the Authors:

Gregg A. Fisch is a partner in the Labor & Employment Practice Group in Sheppard, Mullin, Richter, & Hampton LLP’s  Century City office

Jonathan Sokolowski is an associate in the Labor and Employment Practice Group in Sheppard, Mullin, Richter, & Hampton LLP’s New York office.

Catholic Teacher Fired for Having a Baby

Thursday, February 2nd, 2012

Katherine LazarowIn one way or another, we agree to contracts with fixed terms every day: before downloading music on iTunes, buying a cell phone plan, or taking out a student loan. More and more, another area in which the terms of contracts may be non-negotiable is in the area of employment, as individuals desperate for a job agree to an employer’s conditions or risk not being hired. But what if—in addition to a set number of vacation days and an agreement not to publically disparage the employer—potential employees were also asked to commit to other, more fundamental provisions?

In fact, many employees already do.

For example: When Christa Dias of Cincinnati, Ohio, was hired as a part-time technology teacher in 2008 at Holy Family School, and in 2009 at St. Lawrence Catholic School, she had to sign employment contracts agreeing to comply with the teachings of the Roman Catholic Church.

Ms. Dias is not, herself, Catholic.

In October 2010, shortly after Ms. Dias asked for maternity leave, she was fired from both schools for breaching her employment contracts. Her violation? Well, it’s confusing.

Ms. Dias alleges that the schools first informed her she was being dismissed “for becoming pregnant outside of marriage,” but upon realizing that this might violate federal and state anti-discrimination laws, the schools quickly changed their tune. They now claim that they fired her for having undergone artificial insemination, which the Church views as a grave immoral act, and, they say, is in direct violation of her employment agreements, which require employees to “comply with and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church,” part 1F. (According to Catechisms 2353, 2366, and 2376, premarital sex and pregnancy outside of marriage are frowned upon, but only artificial insemination is labeled “gravely immoral.”)

In response, Ms. Dias filed an employment discrimination suit against the two schools and the Archdiocese of Cincinnati in the U.S. District Court in April.

Does Ms. Dias have a case? Are these employment contracts enforceable? If a teacher can be fired for engaging in behavior that violates Catholic teachings, can she lose her job for using birth control? What if she has an abortion? How do courts balance employment discrimination laws against the First Amendment’s protection of religious freedom? Questions the press did not tackle. LASIS will.

Title VII of the Civil Rights Act of 1964 forbids employers from firing employees because of race, color, religion, sex, or national origin. In 1978, through the Pregnancy Discrimination Act, Congress amended Title VII to include pregnancy discrimination within the definition of sex discrimination; women can’t be fired solely because they’re pregnant.

To make a case of sex discrimination based on pregnancy, a woman must show that she was pregnant, she was qualified for the job, she was fired, and there is a connection between her pregnancy and the termination of her employment. If she makes her case, then the burden shifts to the employer to provide a nondiscriminatory justification for firing her, maybe because she bribed her students, fell asleep in class, or posted inappropriate comments on Facebook. You can figure out how things play out from here. If the employer can’t come up with a legitimate reason for firing the employee, she wins. But if the employer offers a legitimate reason, the employer wins . . . unless the teacher proves that the school’s explanation was merely an excuse to hide its discriminatory conduct.

If she weren’t working for religious institutions, it appears that Ms. Dias would have a clear case of sex discrimination: she was pregnant, by all accounts she performed her job well, she was fired, and there is a connection between her termination and pregnancy.

But Ms. Dias did work for religious institutions, and so we continue our way through this legal maze, and ask: When a religious institution claims that it fired an employee for a religious reason, should courts look into whether the stated reason is just a pretext to hide its discriminatory conduct? This investigation into the employer’s motivation can entangle the government in religious issues, and some courts are not so keen to engage in this inquiry. For example, in 1991 the 3rd U.S. Circuit Court of Appeals held that, under the First Amendment, a court must accept a church’s religious justification for dismissing an employee without question. Fortunately for Ms. Dias, the Sixth Circuit is more willing to explore whether an employer’s stated reason for firing its employee is genuine.

In cases when a school initially told its teacher she was being fired for certain conduct and then changed its reason to a religious one, some courts are more likely to disbelieve the school’s “on-second-thought” religious reason for dismissal. This may bode well for Ms. Dias.

In addition, the provision of Ms. Dias’ employment contract in which she agreed to follow the teachings of the Catholic Church doesn’t necessarily doom her case. Employment contracts and handbooks requiring employees to follow specific church teachings are common in religious schools, but the terms of the contracts are still subject to Title VII. A court will refuse to enforce a contract if an employee can show that it was not applied equally to men and women, in which case the court will view the policy as a ploy to engage in sex discrimination.

In a 1999 6th U.S. Circuit Court of Appeals case, the court explained that for a school to enforce its policy against premarital sex solely by observing the pregnancy of its female teachers would constitute a form of pregnancy discrimination. So Ms. Dias can win if she demonstrates that the schools only enforced this provision against women. The fact that in 2002 the Archdiocese of Cincinnati suspended, rather than fired, a teacher (who was also a priest) accused of sexual misconduct with two male students might weigh in her favor. We think it’s safe to wager that this kind of behavior went against church teachings and would have been prohibited under his employment contract.

Now let’s take things a step or two further. Could an employer of a religious institution regulate whether an employee uses birth control? Has an abortion?

Unlike premarital sex or artificial insemination, which may result in pregnancy, these activities are private matters that are probably difficult for an employer to discover. But suppose a teacher in a Catholic school confides in a coworker that she had an abortion and this coworker tells the school administration. Under Title VII, could the school fire the teacher, if the teacher agreed to these terms when she was hired? If the policy is applied equally to men and women, the answer will most likely be “yes.”

You may be thinking, “But doesn’t the fact that men can’t have abortions automatically make any policy against abortions discriminatory?” Not necessarily (!)

If the policy doesn’t target abortions specifically but rather requires employees to abide by Catholic teachings in general, it’s not discriminatory on its face. So the only way to maintain an employment discrimination claim is to show that, although the policy is “facially neutral,” it’s not applied equally to men and women. This can be demonstrated with proof that a male teacher who also violated the employer’s policy was not fired even though the school was aware of his misconduct as well.

But before you start breaking out the champagne for Ms. Dias: There is an ever-expanding exception to employment discrimination cases against religious institutions that may negate the possibility of Ms. Dias winning her case altogether. In 1972, the 5th U.S. Circuit Court of Appeals first recognized the “ministerial exception” to Title VII, holding that the Free Exercise and Establishment Clauses of the First Amendment prohibit the government from interfering in a church’s decision to fire a minister. Basically, religious institutions must be free to dismiss ministers for any reason, without worrying whether their decision will subject them to employment discrimination claims.

If the schools can prove that Ms. Dias served as a minister, she will be barred from bringing a Title VII claim. And courts have expanded the ministerial exception to include many employees who aren’t ordained ministers, as long as their primary duties are ministerial.

Unfortunately for Ms. Dias, the U.S. Supreme Court’s 2011 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission broadened the definition of ministers under the exception even further. In that case, the plaintiff, a teacher, instructed her students on mostly secular subjects with the exception of approximately 45 minutes each day, when she taught religion and led the students in prayer. The plaintiff also completed eight college-level theological courses in order to obtain the title of “called” teacher (as opposed to “lay” teacher). According to a unanimous Supreme Court, those activities were sufficient to label the teacher a minister and dismiss the suit based on the ministerial exception to employment discrimination claims.

In her complaint, Ms. Dias states that she worked as a technology coordinator, teaching computer classes and overseeing the computer systems at the schools. There is no indication that she instructed the students on religious topics or led them in prayer. So Ms. Dias will probably not be considered a minister and the school won’t be able to use the ministerial exception as a defense to her discrimination claim.

Regardless of the outcome of her case, Ms. Dias has no regrets about having artificial insemination, and is delighted with her little girl. “I would do it all over again for her,” she said.

This blog originally appeared in Legal as She is Spoke on January 25, 2012. Legal as She is Spoke is a blog produced by New York Law School’s Program in Law and Journalism. Reprinted with permission.

About the Author: Katherine Lazarow is a staff editor for the New York Law School Law Review, a member of the Justice Action Center, and an intern at the Urban Justice Center’s Mental Health Project. Katherine graduated from McGill University in Montréal with a Bachelor’s in Sociology.

It's A Long Road To Justice

Tuesday, December 7th, 2010

ellen simonFederal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

  • a record of military service
  • a bachelor’s degree in history
  • completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

  • a bachelor’s and doctoral degrees
  • authorship of a length book and numerous scholarly publications
  • a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII  And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

  • is a member of a protected class
  • objectively qualified for the position
  • considered for but is denied the promotion
  • an individual outside of plaintiff’s protected class is selected for the position

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

  • has no basis in fact
  • was not the actual reason, or
  • is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims — post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

  • Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
  • Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
  • Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the fact in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

  • informed him that 34 years on the job was enough
  • joked about whether he had taken up “antiquing or traveling or something like that”
  • suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs’ employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it  — a hostility on the federal bench to employment cases —is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it’s virtually certain that it’s going to be a long road to justice.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Turning the Other Cheek: Illegal Retaliation in the Workplace

Wednesday, October 6th, 2010

Piper HoffmanTurning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

Age Discrimination Gets Attention Of Congress

Friday, May 14th, 2010

Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of  “a motivating factor.” I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  — even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases — and our clients — to have these evidentiary matters settled once and for all.

image: www.conversantlife.com/files/imagecache/blog_wizard/files/blog_wizard/proof.png

*This post originally appeared in Employee Rights Post on May 9, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial

Wednesday, March 17th, 2010

Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital (“Hospital”) as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion.

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say “she’s too old to be working here anyway” in reference to Mora.

In the course of Mora’s lawsuit filed under the Age Discrimination in Employment Act, (“ADEA”) Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

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

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

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