Category Archives: Title VII of the Civil Rights Act of 1964

Fifth Circuit applies hostile work environment to age claims

Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quent­ly arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civ­il Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­er­al law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit direct­ly held recent­ly that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dedi­ol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

Con­tin­ue read­ing Fifth Cir­cuit applies hos­tile work envi­ron­ment to age claims

US Supreme Court Rules for Employee on “Cat’s Paw” Theory

The Unit­ed States Supreme Court recent­ly unan­i­mous­ly issued a major vic­to­ry for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­o­ry in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Schol­ar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Ali­to wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the deci­sion.

What is the “Cat’s Paw” Sce­nario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­o­ry? Does it explain why my cat, pic­tured at the left, is star­ing so intent­ly at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by anoth­er to gain an end.” The term aris­es out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Con­tin­ue read­ing US Supreme Court Rules for Employ­ee on “Cat’s Paw” The­o­ry

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

A few days ago, I post­ed my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N-word could cre­ate a racial­ly hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chica­go Tran­sit Author­i­ty, – F.3d –, – WL — (7th Cir. August 23, 2010), which rais­es the sim­i­lar issue: Can a sin­gle instance of sex­u­al harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the cir­cum­stances.

Ms. Berry is Sex­u­al­ly Harassed in a Sin­gle Inci­dent

Cyn­thia Berry was an employ­ee at the Chica­go Tran­sit Author­i­ty. She was on her break and sat at a pic­nic style table with three male co-work­ers. A fourth male co-work­er, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offend­ed by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seat­ed. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-work­ers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The oth­er three male co-work­ers got up from where they were seat­ed at the pic­nic table and moved to the oth­er end of the table. Then:

Berry says Carmichael remained where he was seat­ed and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the oth­er end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­i­ng Mar­shall to think he could order her around, she remained seat­ed, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry land­ed off-bal­ance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­i­ng to avoid any men, she lay down in a bus for the rest of her shift.

 

Con­tin­ue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chica­go Tran­sit Author­i­ty

Can you be sexually harassed behind your back?

It might be obvi­ous, but it seems a bit dif­fi­cult to win on a claim for sex­u­al harass­ment where all of the harass­ment occurs behind your back (and by “behind your back”, I mean sit­u­a­tions where the harass­ing behav­ior occurs when the com­plain­ing employ­ee is not phys­i­cal­ly present to expe­ri­ence or hear what is hap­pen­ing).

The Fourth Cir­cuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unan­i­mous deci­sion writ­ten by Judge Roger Gre­go­ry in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Cir­cuit didn’t have much dif­fi­cul­ty reach­ing the con­clu­sion that, for any claim alleg­ing a hos­tile work envi­ron­ment (includ­ing sex­u­al harass­ment), you can’t suc­ceed if all of the mis­con­duct about which you com­plain occurred at work when you were not at work.

Twen­ty Eight Years of Lit­i­ga­tion!!!

This case grows out of an incred­i­bly long his­to­ry of lit­i­ga­tion (includ­ing sev­er­al dif­fer­ent law­suits and appeals (some of which were suc­cess­ful)) filed by Ms. Pueschel against her employ­er, the Fed­er­al Avi­a­tion Admin­is­tra­tion (“FAA”). The lit­i­ga­tion start­ed in 1981 and end­ed with this Fourth Cir­cuit deci­sion in 2009 (I am not kid­ding, and I am not sure this deci­sion marks the end of all of her lit­i­ga­tion).

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Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

I pre­vi­ous­ly wrote about the Supreme Court’s retal­i­a­tion deci­sion in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), in which the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) deci­sion.

National Basketball Association I want­ed to set out some addi­tion­al thoughts about Burling­ton North­ern, because it address­es an issue that has trou­bled the courts in inter­pret­ing the fed­er­al anti-dis­crim­i­na­tion laws: When is an employer’s con­duct seri­ous enough in dis­ad­van­tag­ing an employ­ee so that the employ­ee has a claim under the employ­ment dis­crim­i­na­tion laws? The answer is easy when the employer’s deci­sion affects the employee’s pock­et book, like with ter­mi­na­tion, fail­ure to hire, demo­tions, and the like. The answer has been much hard­er when the employer’s con­duct didn’t direct­ly affect the employee’s pock­et book.

NBA ref­er­ees strug­gle with a sim­i­lar issue: where is there enough phys­i­cal con­tact on the court to jus­ti­fy call­ing a foul on a play­er. So let’s explore some par­al­lels between these employ­ment dis­crim­i­na­tion issues and the NBA’s “no blood no foul” rule.

The NBA’s “No Blood No Foul” Rule

If you watch Nation­al Bas­ket­ball Asso­ci­a­tion games, you might be struck by how much phys­i­cal con­tact there is on the court and how rarely the ref­er­ees call per­son­al fouls over that phys­i­cal con­tact. Fans of the NBA have only a par­tial­ly kid­ding way to refer to the “stan­dard” by which the ref­er­ees decide how much con­tact will result in a per­son­al foul being called. It’s the “no blood no foul” rule. In oth­er words, the ref­er­ees will allow a lot of phys­i­cal con­tact, and will only call a foul when some­one gets blood­ied as a result of the con­tact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA ref­er­ees apply, regard­less of what is writ­ten in the Offi­cial Rules. The idea behind the “no blood no foul” rule is this: there is so much fast-paced hur­ley-burly con­tact on the bas­ket­ball court, much of which makes it more excit­ing for the fans, that call­ing a foul for any phys­i­cal con­tact (or a low­er defined lev­el of phys­i­cal con­tact) would slow down the game for fans and make the game less enjoy­able, unrea­son­ably impede the skill of the play­ers, and makes it impos­si­bly hard for offi­cials to iden­ti­fy “con­tact”. So the appear­ance of blood is a more “objec­tive” indi­ca­tion that the con­tact real­ly mat­tered and real­ly con­sti­tut­ed an unfair inter­fer­ence with the oth­er play­er.

The Supreme Court Strug­gles With “When is There a Foul”?

Courts for years have strug­gled with the employ­ment dis­crim­i­na­tion equiv­a­lent of the “no blood no foul” rule. For the courts, assum­ing unlaw­ful dis­crim­i­na­tion occurred: when is the con­se­quence of the dis­crim­i­na­tion seri­ous enough and objec­tive­ly dis­cernible so that courts will rec­og­nize a claim and inter­vene by acti­vat­ing the court’s process and poten­tial­ly award­ing dam­ages.

Except for sit­u­a­tions involv­ing hos­tile work envi­ron­ment, the courts have trans­lat­ed the NBA’s blood require­ment into a tan­gi­ble eco­nom­ic con­se­quence. Thus, much in the spir­it of the NBA, the courts have said eco­nom­ic harm must be demon­stra­ble as a result of dis­crim­i­na­tion, or else the courts won’t enter­tain the claim no eco­nom­ic con­se­quence, no legal vio­la­tion, case dis­missed.

Con­tin­ue read­ing Analy­sis: The “No Blood No Foul” Rule. When is an Employer’s Con­duct Severe Enough to Con­sti­tute Retal­i­a­tion?

US Supreme Court rules pay claims must be filed shortly after discriminatory decision; Ledbetter v Goodyear, 5/29/07

May 29, 2007: In Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007) (Find­Law site opin­ion), the Unit­ed States Supreme Court, in a 5–4 deci­sion, issued an impor­tant deci­sion in a sex dis­crim­i­na­tion case under Title VII of the Civ­il Rights Act of 1964, which sub­stan­tial­ly lim­it­ed the time peri­od avail­able to assert a claim for pay dis­crim­i­na­tion. The Supreme Court affirmed the deci­sion of the Eleventh Cir­cuit in Led­bet­ter v. Goodyear Tire and Rub­ber Com­pa­ny, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Dis­crim­i­na­tion and Low­er Pay, and the Tri­al Result

LillyLedbetter Led­bet­ter filed a charge of sex dis­crim­i­na­tion with the EEOC in 1998 and then lat­er in the year retired. She claimed that, years ear­li­er in her career at Goodyear, male super­vi­sors gave her bad per­for­mance reviews com­pared to what men received. She claimed that Goodyear award­ed rais­es based on those per­for­mance reviews, so that her pay rais­es were reduced as a result of the dis­crim­i­na­to­ry per­for­mance reviews.

Led­bet­ter went to tri­al and per­suad­ed the jury that the per­for­mance reviews, years before she filed her EEOC charge, were dis­crim­i­na­to­ry based on her sex, and the jury found her rights had been vio­lat­ed and award­ed her dam­ages based on her low­er pay­checks through­out her career. The tri­al judge entered a “judg­ment” in Ledbetter’s favor based on the jury’s ver­dict. So Led­bet­ter won at tri­al on her sex dis­crim­i­na­tion claim under Title VII. The Eleventh Cir­cuit Court of Appeals threw out the jury ver­dict and tri­al court judg­ment for Led­bet­ter, and entered a judg­ment in favor of Goodyear, based on her fail­ure to file her EEOC charge with­in 180 days of when the per­for­mance reviews had been con­duct­ed. The Unit­ed States Supreme Court affirmed, mean­ing that Goodyear won.

Con­tin­ue read­ing US Supreme Court rules pay claims must be filed short­ly after dis­crim­i­na­to­ry deci­sion; Led­bet­ter v Goodyear, 5/29/07