Eleventh Circuit Court Requires Comparables "Similarly Situated in All
Respects"
December 2008
Several courts, including the U.S. Supreme
Court, recently have issued employee-friendly decisions in the discrimination
litigation area. These decisions will be a harbinger of things to come if the
Civil Rights Act of 2008, proposed in January 2008 by Senator Edward Kennedy
with the support of, among others, Senator Barack Obama, becomes law in 2009.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
The Civil Rights Act of 2008 includes employee-friendly reforms across the
gamut of labor and employment law, including the Equal Pay Act, Fair Labor Standards
Act, the Age Discrimination in Employment Act, and Title IX.
Supreme Court Gives Green Light for Retaliation Claims
The Supreme Court has authorized workers to bring retaliation claims under
a Reconstruction-era civil rights statute prohibiting race discrimination, even
though the law itself makes no mention of a retaliation cause of action. In
CBOCS West, Inc. v. Humphries, No. 06-1431, 128
S. Ct. 1951 (May 27, 2008), the Court held by a 7-2 vote that 42 U.S.C. § 1981
creates a cause of action not only for racial discrimination, but for retaliation
against an employee who asserts rights under the statute.
The plaintiff in this case, Hedrick G. Humphries, worked as an assistant
manager for the Cracker Barrel restaurant chain. He brought a lawsuit alleging
termination because of race and because he complained about racial discrimination.
Mr. Humphries asserted claims under both Title VII of the Civil Rights Act of
1964 and § 1981, a post-Civil War statute prohibiting discrimination with regard
to the right to "make and enforce contracts." The statute is derived from the
Civil Rights Act of 1866, which implemented the Thirteenth Amendment, abolishing
slavery.
Like Title VII, § 1981 protects employees from race discrimination, but unlike
Title VII, it does not specifically prohibit retaliation. The Supreme Court
agreed to hear this case after the Seventh Circuit Court of Appeals found that
the plaintiff was entitled to proceed on a retaliation theory.
The ruling is significant because § 1981 has a longer statute of limitation
than Title VII (and, unlike Title VII, contains no limitation on the amount
of punitive and pain and suffering damages). In addition, a plaintiff must file
a charge of discrimination with the Equal Employment Opportunity Commission
(EEOC) prior to suing in federal court under Title VII within 300 days of the
alleged discriminatory act. In contrast, under § 1981, a plaintiff need not
file a charge and can file a lawsuit within 4 years of the alleged violation.
Two Federal Appellate Courts Validate "Associational" Discrimination Theory
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
against employees based on race, color, religion, sex, or national origin. Title
VII also prohibits discrimination against employees who have opposed any practice
that is an unlawful employment practice under Title VII, or who have made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing involving an alleged violation of Title VII. Two recent
cases, however, demonstrate that Title VII also may provide an employee with
the right to allege discrimination or retaliation based, not only on his or
her own protected characteristics or activity, but on the employee's "association"
with another individual who comes within a protected classification or who has
engaged in protected activity.
In Holcomb v. Iona College, 06-3815-CV (2d
Cir. Apr. 1, 2008), a Caucasian former assistant basketball coach alleged that
he was terminated because his spouse is African-American. Reversing the district
court, the United States Court of Appeals in New York agreed that this allegation
was sufficient to state a claim of "associational" discrimination under Title
VII. The court stated:
[W]here an employee is subjected to adverse action because an employer disapproves
of interracial association, the employee suffers discrimination because
of the employee's own race.
While acknowledging that the employer asserted that its termination decision
was unrelated to the plaintiff's marriage, the court held that the plaintiff
pointed to sufficient evidence (if credited) of discriminatory animus, including
specific alleged statements of dissatisfaction with the assistant coach's interracial
marriage by the administration, for a jury to consider whether "Holcomb has
established by a preponderance of the evidence that his termination was the
result of racial discrimination." The court's holding also points out that a
plaintiff who brings a claim under Title VII does not have to show that discrimination
was the employer's sole motive in order to obtain relief.
In a similar vein, in Thompson v. North American
Stainless, LP, 07-5040 (6th Cir. Mar. 31, 2008), the United States Court
of Appeals in Cincinnati ruled that a male employee who was terminated following
his coworker fiancée's filing of a discrimination charge with the EEOC asserted
a prima facie case of retaliation under Title VII. Allowing that this holding
was not consistent with a "literal reading" of Title VII, the court stated that
its decision nevertheless was consistent with prior guidance from other circuits
and that any contrary finding would "defeat the plain purpose" of the statute.
The court relied on prior decisions which interpreted the protections afforded
by Title VII expansively, including Burlington Northern
& Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), where the Supreme
Court set forth a liberal standard for evaluating whether an employer's action
was retaliatory, as well as the EEOC Compliance Manual. The Court noted that
the EEOC Compliance Manual:
expressly states that a person claiming retaliation need not be the one
who conducted the protected activity. "Title VII … prohibit[s] retaliation
against someone so closely related to or associated with [emphasis italics]
the person exercising his or her statutory rights that it would discourage
that person from pursuing those rights."
The Court further reasoned that a contrary ruling would:
permit employers to retaliate with impunity for opposition to unlawful practices,
filing EEOC charges or otherwise participating in such efforts, as long
as that retaliation is only directed at family members and friends, and
not the individual conducting the protected activity
and that:
tolerance of third-party reprisals would, no less than the tolerance of
direct reprisals, deter persons from exercising their protected rights under
Title VII.
Standard Relaxed for Mixed Motive Race Discrimination Claims
Easing the way for plaintiffs to avoid summary judgment, the U.S. Court of
Appeals for the Sixth Circuit announced a new standard for "mixed motive" discrimination
claims under Title VII of the Civil Rights Act of 1964. In
White v. Baxter Healthcare Corp., No. 07-1626
(6th Cir. Jul. 3, 2008), a claimant alleged that an employment decision was
motivated by both legitimate (e.g., job performance) and impermissible (e.g.,
race discrimination) reasons. The court held that plaintiffs can avoid summary
judgment by producing evidence (1) of an adverse employment action, and (2)
that a protected characteristic under Title VII was a motivating factor for
the adverse action. By enunciating this standard, the Sixth Circuit created
a split among the U.S. Courts of Appeal regarding the proper standard for mixed
motive claims. This conflict ultimately may need to be resolved by the U.S.
Supreme Court.
Citing racially tinged statements and adverse personnel actions, plaintiff
sued under Title VII, claiming discrimination on the basis of race by denying
him promotion and by downgrading his performance review. In reviewing dismissal
upon summary judgment, the Sixth Circuit analyzed the plaintiff's failure-to-promote
claim under the traditional McDonnell Douglas
burden-shifting analysis.1 It found plaintiff had
satisfied his initial burden of demonstrating a
prima facie case of discrimination and that the employer's stated reasons
for its selection of the female candidate were nondiscriminatory.
However, the court held that the McDonnell Douglas
burden-shifting analysis did not apply in mixed-motive cases at the summary
judgment stage. Rather, the court held that a plaintiff can defeat summary judgment:
simply by showing that the defendant's consideration of a protected characteristic
was a motivating factor for any employment
practice, even though other factors also motivated the practice.
The court acknowledged that this lesser evidentiary burden at the summary
judgment stage was "not onerous" and should keep a case from trial "only
where the record is
devoid of evidence"
supporting the plaintiff's claim. The court also stated that it was "irrelevant"
whether the plaintiff presented direct or circumstantial evidence supporting
the claim.
Applying its new analytical framework, the court found that the plaintiff's
downgraded performance review constituted an adverse employment action and that
the plaintiff presented sufficient evidence demonstrating that his rating was
motivated, at least in part, by race. It noted that the supervisor's remarks
indicated that the supervisor possibly harbored racial animus.
Conclusion
This case reminds employers to avoid using overly subjective criteria when
making employment decisions, such assessments (e.g., "energetic" or "aggressive")
provide fodder for lawsuits. Supervisors and managers should be trained regarding
evaluation procedures. When preparing performance evaluations, employers should
ensure that employees are evaluated according to stated, formal criteria.
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