Daily Developments in EEO Law
by Paul Mollica (c) 2006
Tuesday, January 31, 2006
Circuit Judge Alito joins his last opinion before Confirmation Tuesday: Armstrong v. Burdette Tomlin Memorial Hospital, No. 03-3553 (3d Cir. Jan. 30, 2006). The panel unanimously reverses a jury verdict for an employer (?!) in a disability discrimination case and remands for a new trial.
The employee, with a back and neck injury, worked at the hospital as a stock clerk. Although deemed (on paper) a satisfactory employee, he received flak from his supervisor, who (reportedly) called him a "cripple," unfairly increased his workload, threatened him with retaliation if he lodged complaint and demanded to know when he would retire. He was then shifted to linen duty, over his objections that it violated his medical restrictions (lifting, etc.) and which he found more strenuous then his stockroom duties.
With Armstrong demanding a return to his old stockroom duties, the hospital pushed back that he could either take disability or resign. He acquiesced to the former, but eventually found himself fired when he did not return from leave. Armstrong then sued the supervisor and the hospital for violations of the New Jersey Law Against Discrimination (LAD), alleging age and disability discrimination, reasonable accommodation (said to track, for relevant purposes, the federal ADA), and the FLSA.
There were two trials. The plaintiff prevailed in the first ($50,000 verdict), but the court granted a new trial (for reasons unexplained in the opinion). At trial number two, the employer and supervisor Kraus prevailed. (The age and wage & hour cases went nowhere for the plaintiff.) But on appeal, the panel reversed the disability-based claims. It found, on plaintiff's reasonable accommodation claim, that the special interrogatories misdirected the jury into believing that it was part of the employee's burden to request a specific accommodation. Thus, the jury was diverted from inquiring into whether the employer thwarted the "interactive process" that the ADA requires when an employer obtains notice of the disabled employee's requirements.
"In light of these instructions, there is a substantial likelihood that the jury incorrectly thought Armstrong had the burden of identifying and requesting from the Hospital a specific reasonable accommodation when, in fact, he only had to show he requested an accommodation in order to satisfy the second prong of his failure to accommodate claim. As Armstrong's failure to accommodate claim was denied because he was erroneously forced to demonstrate an element that he did not need to prove, we must reverse and remand unless this error was harmless. In other words, the Defendants could still prevail if we conclude that Armstrong could not establish either the third or fourth elements of his case - his employer did not make a good faith effort to assist, or he could have been reasonably accommodated."
Further, the panel found that a different and equally erroneous instruction on the disability discrimination claim shifted the burden on the employee, when (under N.J. law) the employer bears the burden of proof when its proffered justification for its decision is the employee's physical inability to perform the essential functions of his job. Thus, Armstrong returns on remand for what may be a third trial (if a settlement doesn't materialize).
Thanks Judge Alito! Best wishes on your new job!
Friday, January 27, 2006
The Fifth Circuit reverses summary judgment for the benefit of nine plaintiffs in a racial hiring case. Dean v. City of Shreveport, No. 04-31163 (5th Cir. Jan. 24, 2006). As one might expect, though, the beneficiaries are white applicants for municipal firefighter jobs who were frustrated by a 1980 federal consent decree. The opinion hashes predictably over the compelling interest/narrow tailoring requirements of federal Equal Protection, finding deficient the district court's determinations on both. The district court is held to err by (1) measuring compelling interest from the vantage point of 1980, rather than 2000; (2) failing to evaluate the efficacy of alternative remedies fro the year 2000; (3) failing to construe ambiguous language in the consent decree regarding the "appropriate work force," or to define the "relevant labor market" or "qualified applicant"; and (4) failing to scrutinize the duration of the decree (described in the opinion as "breathtakingly long"). The court also holds that one mechanism deployed in the decree -- the racial grouping of test scores -- violates the express language in Title VII, 42 U.S.C. § 2000e-2(l).
But the court springs a surprise in the closing pages. Article I, Section 3 of the Louisiana state constitution, the panel holds, sweeps even broader than the fourteenth amendment and prohibits any racial classifications -- whatever the justification. So the preceding 20 pages of federal constitutional analysis becomes entirely superfluous to this fiat:
"Decisions of the Supreme Court of Louisiana bind us with regard to the meaning of Louisiana constitutional provisions. Those decisions make abundantly clear that Article I, Section 3 of the Louisiana Constitution provides far greater protection against racial discrimination than does its federal counterpart. See, e.g., La. Associated Gen. Contractors, Inc. v. State, 669 So. 2d 1185, 1196 (La. 1996). Under the United States Constitution, classifications based on race are permissible if they are narrowly tailored to serve a compelling government interest. See Paradise, 480 U.S. at 166-67. However, under the Louisiana Constitution, classifications based on race "shall be repudiated completely, regardless of the justification." La. Associated Gen. Contractors, Inc., 669 So. 2d at 1198. Under Louisiana law, once it is determined that a classification based on race has been drawn, the inquiry is over Article I, Section 3 of the Louisiana Constitution has been violated. See id. Here, the City's hiring process unquestionably classifies according to race. The City separates white and black firefighter applicants when deciding which applicants will proceed to phase two of the hiring process. The City's actions violate Article I, Section 3 of the Louisiana Constitution. Also, even if on remand the district court determines that the consent decree survives strict scrutiny under the United States Constitution, an outcome which is far from certain, the Louisiana Constitution is not preempted because the decree was entered into voluntarily. Therefore, we reverse the district court's dismissal of Appellants' Louisiana constitutional claim."
So in future federal cases, I await the creative reuse of that state's constitution to trump other federal laws, starting with Article 27's freedom to hunt andfish ("The freedom to hunt, fish, and trap wildlife, including all aquatic life, traditionally taken by hunters, trappers and anglers, is a valued natural heritage that shall be forever preserved for the people"). No wonder the ivory-billed woodpeckers moved to Arkansas.
Wednesday, January 25, 2006
The Sixth Circuit joins the Fifth Circuit in holding that Title VII class actions involving compensatory damages may not proceed under the no-notice, no-opt-out Fed. R. Civ. P 23(b)(2). Reeb v. Ohio Dep't of Rehab. and Correction, No. 04-3994 (6th Cir. Jan. 24, 2006)).
The case (involving a putative class of female employees at a correctional facility) was before the Sixth Circuit on interlocutory review for the second time -- the first time, remanded in an unpublished order for more "rigorous analysis" of the Fed. R. Civ. P. 23(a) elements. Although the panel majority opinion (signed by Judge Batchelder) briefly revisits the Rule 23(a) elements (and, again finding the district court's analysis too cursory), it ultimately leapfrogs that issue to decide as a matter of law that "certification of a plaintiffs' class under Rule 23(b)(2) is improper in a Title VII case in which the plaintiffs seek individual compensatory damages."
The panel majority relied extensively on Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), the oft-cited case that concluded that the provision of jury trials and compensatory relief in the 1991 Civil Rights Act made Rule 23(b)(2) certification impracticable ("because of the individual attention required for determining whether non-class-wide compensatory or punitive damages may be awarded"). It adopted in whole the Allison standard that where the "predominant" relief is monetary, rather than injunctive, class members must receive notice and an opportunity to opt out.
Though noting that two circuits (the Second and the Ninth) had rejected this view, the majority staked its lot with Allison:
"Accordingly, we hold that, because of the individualized nature of damages calculations for Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunctive relief, and individual compensatory damages are not recoverable by a Rule 23(b)(2) class. The district court therefore abused its discretion in certifying this class under Federal Rule of Civil Procedure 23(b)(2). We emphasize, however, that this holding does not foreclose all Title VII class actions. Plaintiffs now have the choice of proceeding under Rule 23(b)(3) in an action for money damages or in an action under Rule 23(b)(2) for declaratory or injunctive relief alone or in conjunction with compensatory and punitive damages that inure to the group benefit. And, as always, plaintiffs remain free to bring Title VII actions as individuals."
Judge Keith filed a vigorous dissent, concluding with these words:
"This holding eliminates class actions' power as a tool to address systemic workplace discrimination and turns the clock back on civil rights. I cannot endorse this holding because it curtails the relief available to Title VII plaintiffs. This holding will obstruct employees' ability to eradicate an employer's discriminatory workplace policies and practices. I vigorously dissent. It is unfortunate that the majority has chosen this case to roll back the clock on years of workplace based civil rights legislation."
Monday, January 23, 2006
It's difficult to conceive of how a physician who was denied privileges on the avowed ground that he was too "old" does not at least get a jury trial on his ADEA claim. But in Baqir v. Principi, No. 04-2369 (4th Cir. Jan. 20, 2006), the panel unanimously dismissed race, religion and national origin claims, but split on the ADEA claim. The majority opinion (signed by Judge King) summarized the following evidence:
Specifically, Baqir points to [Chief of Medicine, Dr. Lewis] Elliston's statements following the November 5, 1999 Board meeting at which it was decided to deny Baqir's request for privileges in interventional cardiology. According to [Dr. Marriyam Moten, then Chief of Cardiology] Moten, Elliston informed her on November 12, 1999, that Baqir (who was then fifty-three years old) was to be terminated because of his age. Accepting Moten's statements as true, as we must at the summary judgment stage, Elliston told her "that 'age [was] the major and only factor'' for Baqir's discharge, and that 'interventional cardiology is meant for people in their thirties.'"
Though admitting that such comments were "direct" evidence that would ordinarily unlock an ADEA mixed-motive framework, the court majority nevertheless found that the employer could establish its affirmative defense against plaintiff as a matter of law. Plainly put, "Based on the unrefuted evidence that Baqir could not perform his job duties as an interventional cardiologist at a level that met the VA's legitimate expectations, see supra Part IV.A, the VA has demonstrated that it would have terminated Baqir absent any age-based animus. Baqir therefore cannot proceed with his ADEA illegal discharge claim."
But the partial dissent (by Judge Gregory) demurred: "[W]here, as here, a single illegitimate reason was the actual basis for the employer's decision, the fact that an alternative legitimate basis might also have existed is without consequence. In the present case, Baqir's evidence is that the VA did not consider his performance at all at the time it made its decision. Therefore, the VA cannot prevail at the summary judgment stage through evidence that legitimate considerations motivated its decision instead. Rather, the VA's evidence creates an issue of fact regarding what its motives were."
Wednesday, January 18, 2006
Not an employment case, but an important decision for class action attorneys of all stripes: Murray v. GMAC Mortgage Corp., No. 05-8035 (7th Cir. Jan. 17, 2006) . The case -- brought under the Fair Credit Reporting Act -- challenged a mass solicitation (1.2 million addressees) by a lender alleged to have violated the act by obtaining the consumer's credit history (without consent), then failing to make what the statute terms a "firm offer of credit" or to notify her of her right to close her credit records. Statutory damages of $100 to $1000 may be awarded in such cases, although a plaintiff may opt to obtain compensatory damages instead which may exceed the $1000 ceiling. Although the parties apparently reached a settlement, the district court refused to preliminarily approve the accord on the ground that the representative plaintiff was not adequate per Rule 23(a)(4).
The Seventh Circuit (in a decision signed by Judge Easterbrook) rejected all four bases for the decision below. The first argument -- that Ms. Murray's counsel ought to have settled her individual claim directly -- would logically bring an end to call consumer class actions, because there is hardly any such case where the class representative could not settle individually. The Seventh Circuit panel further noted that using class allegations to leverage a larger individual settlement would be "unethical . . . as well as unrealistic," because another victim could easily pick the case up within the limitations period and start over.
Second, the court rejected the district court's contention that by foregoing potentially greater compensatory damages, the representative was not adequate. To require a class representative to seek all possible remedies, or none at all, would make consumer class actions "impossible."
"Refusing to certify a class because the plaintiff decides not to make the sort of person-specific arguments that render class treatment infeasible would throw away the benefits of consolidated treatment. Unless a district court finds that personal injuries are large in relation to statutory damages, a representative plaintiff must be allowed to forego claims for compensatory damages in order to achieve class certification. When a few class members' injuries prove to be substantial, they may opt out and litigate independently. See Jefferson v. Ingersoll International, Inc., 195 F.3d 894 (7th Cir. 1999). Only when all or almost all of the claims are likely to be large enough to justify individual litigation is it wise to reject class treatment altogether. Cf. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995)."
Third, the district court thought that a company ought not be put at risk of a billion dollars' exposure for what he deemed "technical violations" of FCRA. But the Seventh Circuit held that the class remedy was the product of an act of Congress which, providentially or not, imposed just such large risks on creditors who sought to make use of confidential consumer credit reports.
"The district judge sought to curtail the aggregate damages for violations he deemed trivial. Yet it is not appropriate to use procedural devices to undermine laws of which a judge disapproves. See Alaskairlines, Inc. v. Brock, 480 U.S. 678, 686 (1987); United States v. Albertini, 472 U.S. 675, 680 (1985); Jaskolski v. Daniels, 427 F.3d 456, 461-64 (7th Cir. 2005). Maybe suits such as this will lead Congress to amend the Fair Credit Reporting Act; maybe not. While a statute remains on the books, however, it must be enforced rather than subverted."
Finally, the district court criticized the individual plaintiff, Murray, who (with her family and counsel) had filed scores of similar cases. The imputation of improper behavior (the judge labelled her a "professional plaintiff") did not survive appeal. "What the district judge did not explain, though, is why 'professional' is a dirty word. It implies experience, if not expertise. The district judge did not cite a single decision supporting the proposition that someone whose rights have been violated by 50 different persons may sue only a subset of the offenders. Neither does GMACM."
For good measure, the Seventh Circuit ordered that this case be assigned to another judge on remand (Circuit Rule 36, usually invoked only in cases where the district court judge had tried the case on the merits), and urged that the Northern District of Illinois consolidate all of the plaintiff's FCRA cases to a single judge. It also opined -- possibly heading off another appeal -- that the proposed class settlement negotiated in this case would very likely flunk the Rule 23(e) standards of fairness and adequacy, as it reportedly awarded $3000 to the named plaintiff, pocket change to absent class members (less than a dollar per capita), and a fee for the lawyers.
"[I]f the reason other class members get relief worth about 1% of the minimum statutory award is that the suit has only a 1% chance of success, then how could Murray personally accept 300% of the statutory maximum? And, if the chance of success really is only 1%, shouldn't the suit be dismissed as frivolous and no one receive a penny? If, however, the chance of success is materially greater than 1%, as the proposed payment to Murray implies, then the failure to afford effectual relief to any other class member makes the deal look like a sellout."
Not much future in this settlement, it appears.
Monday, January 16, 2006
Here's a successful plaintiff's ADA case apt to get attention for all the wrong reasons: Arrieta-Colon v. Wal-Mart Stores, Inc., No. 04-2614 (1st Cir. Jan. 13, 2006). Mr. Arrieta-Colon's condition -- Peyronie's Disease -- required (for normal sexual functioning) a penile implant, which regrettably gave the employee the appearance of having a perpetual erection. He and his spouse (also an employee) were both the targets of insensitive, unrelenting jokes about their sexual relations and Mr. Arrieta-Colon's supposed use of a "pump." The supervisors themselves admitted to participating in and abetting the cruelty. When he requested and received a transfer to get away from the harassment, the store manager reassigned him to an afternoon shift, which only exacerbated the humiliation (the plaintiff was harassed in front of customers). Complaints to management went nowhere; no corrective measures were taken.
The jury awarded the plaintiff $76,000 compensatory and $160,000 punitive damages for the harassment. The leading issue on appeal -- the judge's failure to give a Faragher/Ellerth instruction -- foundered because the employer presented insufficient evidence at trial of either prong of the defense (proof of an anti-harassment policy, failure of the employee to reasonably avail himself of the procedures). Litigation failure by the defense also prevented reconsideration of a second error, namely, whether the employee was disabled at all within the meaning of the ADA. Here, the employer failed to renew its Fed. R.Civ. P. 50 motion at the close of the evidence, fatal to appellate review, and the court of appeals refused to exercise its "residual discretion" to examine the record for an absence of evidence on this point. The mockery, involving supervisors together with co-workers, met the legal standard of "severe or pervasive," and it not warrant review. Finally, all damages were affirmed.
Friday, January 13, 2006
It is well-established that an employee charging Title VII/ADA/ADEA retaliation for filing a charge with the EEOC (or equivalent state or local agency) need not ultimately prevail on the merits of the discrimination claim to state a claim for retaliation. It is the act of filing a good-faith charge, not the merits of the claim, that constitutes the protected activity. But what if the charge, on its face, fails to present a recognizable claim of discrimination under federal law. Might that excuse any retaliation that follows from filing the defective charge? Apparently, yes, says the Third Circuit in Slagle v. County of Clarion, No. 04-2622 (3d Cir. Jan. 12, 2006) .
There, plaintiff Slagle (a jail guard) was subject to disciplinary action for allegedly (1) filching an HIV test for personal use, and then failing to cooperate in an investigation; (2) making inappropriate comments to a female inmate; and (3) sexually harassing a female correctional officer. The guard then filed the following charge with the EEOC: "the Respondent discriminated against me because of whistleblowing, in violation of my Civil Rights, and invasion of privacy." The Commission dismissed the charge even weeks later for failure to state a claim under statutes enforced by the Commission. The guard was thereafter terminated (for "gross" insubordination, allegedly lying about taking an unauthorized vacation day, and failing to appear at work), and he filed a second charge alleging Title VII retaliation. (A third charge was eventually filed as well alleging gender discrimination.)
Under section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), an employer is prohibited from discriminating against an employee that "has made a charge . . . or participated in manner in an investigation, proceeding, or hearing under this subchapter." Did Slagle's charge fall into this participation clause? The court held that a "charge" claiming only "general complaints of unfair treatment," even though duly filed with the EEOC, is not a protected act -- relying on the phrase "under this subchapter." While the court "require[s] only that the plaintiff file a formal complaint that alleges one or more prohibited grounds in order to be protected under Title VII," it held that it "cannot dispense with the requirement that the plaintiff allege prohibited grounds." The court found support for its decision from cases in the Ninth and Fourth Circuit: Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) and Balazs v. Liebenthal , 32 F.3d 151, 159-60 (4th Cir. 1994).
Thursday, January 12, 2006
A plain-vanilla farming of a jury award of $350,000 includes an interesting tidbit about the potential relevance of ethnicity in a sex discrimination case. Farfaris v. Citizens Bank and Trust of Chicago, No. 05-2082 (7th Cir. Jan. 11, 2006) . The employee Jennifer Farfaras was repeatedly groped, fondled and propositioned by the president and majority shareholders of the employer bank. (I'll spare the details here, but they were pretty disgusting.) Her suit named the three instigators (individually, for assault, battery and intentional infliction of mental distress) and the bank for Title VII violations (discrimination and harassment). All were found liable (except, oddly enough, a verdict was returned for the bank in the sex harassment claim).
On appeal, the defendants objected to the submission into evidence at trial of their references to Farfaras's Greek heritage. References to national origin have nothing to do with sex, so they argued. The Seventh Circuit backs the trial judge's decision, finding that the ethnic comments reinforced the sexual offenses: "In the instant case, however, the comments concerning Farfaras's Greek ancestry were intertwined with sexual harassment. The defendants used her heritage as a qualifier in the course of their harassment ('[H]e would tell me again about me being the most beautiful Greek woman that he's ever met, and he told me that, again, most Greek women are-look like Greek men[.]'), as a method of belittling Farfaras and leaving her susceptible to sexual attacks (insulting Greek Town directly before crudely propositioning Farfaras to have sex on the defendant's boat), and claiming that her country of origin was the only thing keeping her from him ('[I]f only I was a little younger and Greek.'). We find that the district court acted properly in allowing this testimony."
Wednesday, January 11, 2006
For the D.C. Circuit, freshly-appointed Judge Janice Rogers Brown has authored three straight opinions narrowly reversing summary judgment (in part) for employment-discrimination plaintiffs, while (in all three cases) telegraphing how the employer might eventually prevail on remand. First came Jones v. District of Columbia Dep't of Corrections , 429 F.3d 276, 96 FEP 1441 (D.C. Cir. 2005) and Smith v. District of Columbia , No. 04-7082 (D.C. Cir. Dec. 6, 2005). Now comes Holcomb v. Powell, No. 04-5216 (D.C. Cir. Jan. 10, 2005) , a Title VII race and retaliation claim against the FDIC.
In a nutshell, a qualified African-American candidate for promotion lost out to a white candidate (ironically, for a job tracking agency EEO complaints), and after filing an EEO complaint found herself assigned to sub-grade work duties for nearly two years. Summary judgment was entered on both the discrimination and retaliation claims. On appeal, the panel affirmed summary judgment on the former, rejecting the employee's argument that the FDIC materially misrepresented her qualifications in the summary judgment motion (tethered to a miscellaneous record of circumstantial evidence).
But the court found that the district court erred in granting summary judgment on the ground that the plaintiff failed to present a prima facie case of retaliation. While the district court found no adverse employment action, the court of appeals found that "an extraordinary reduction in responsibilities that persisted for years" -- a Grade 11 professional performing Grade 5 clerical work -- met the objective standard of "adverse." The court of appeals also found causation, as she repeatedly engaged in protected activity for the entirety of her duration in her job in the "netherworld."
It then transpired that neither party below addressed the stage-three inquiry of pretext under McDonnell Douglas. Rather than attempt to sort out the issue on appeal, de novo, that panel held that "[t]he appropriate response is therefore to reverse the district court's grant of summary judgment, since Holcomb has established a prima facie case of retaliation, cf. Russell v. Principi , 257 F.3d 815, 819 (D.C. Cir. 2001), and, on remand, permit the parties to address these heretofore unconsidered matters before the district court."
Wednesday, January 4, 2006
Harassment of co-workers does not generally create a claim for bystanders (even of the same gender or race), but what about co-workers who are also family members. The latest case to consider such vicarious familial harassment says "no," in Cotton v. Cracker Barrel Old Country Store, Inc., No. 04-15404 (11th Cir. Jan. 4, 2006). According to the summary judgment record, the plaintiff (Kourtney Cotton, a seasonal cashier) went to work for the store and was, within two weeks, drawn into a creepy grab-and-kiss by the general manager (Carl Walker). She complained to the next level of management about the violation, the manager was investigated and reprimanded, and work schedules were readjusted to prevent future contact.
Before the stockroom incident, the employee's mother (Pam Cotton, who was not an employee, but accompanied her daughter to the job interview) also experienced harassment by the same manager. "Pam Cotton testified that, before Cotton was asked to interview for a position at Cracker Barrel, Walker had given Kourtney and her mother free food at the restaurant, put his hand on Pam Cotton's leg, and invited Pam Cotton to spend a weekend with him in Gulf Shores. Pam Cotton stated that, when Walker asked Cotton to interview for a position at Cracker Barrel, he said to Kourtney 'make sure you wear something sexy to the interview.' Cotton's mother stated that just before the interview Walker 'jokingly said . . . [Kourtney Cotton] can get all the hours she wants if [Pam Cotton] [went] out with [Walker], and stuff like that.' Pam Cotton also testified that, before the incident in the stockroom, Walker invited her to a Cracker Barrel storage building and promised to give her 'anything [she] wanted out of there.'"
The Eleventh Circuit affirms summary judgment on her the employee's harassment (and retaliation) claim. Because the case apparently proceeded solely on a theory that the employee suffered a "tangible employment action," the employee had to point some adverse job action caused by the harassment. A dispute over a decline in her work hours went nowhere, when it turned out that the schedules were set prior to the alleged harassment and by a different manager, severing any causal relationship. The prior harassment of the mom (as evidence of causation) was also rejected, on the ground that "Walker's actions are not sexual harassment of Cotton because they were not directed to her but rather her mother." This, despite the signs that Walker's approach to the mom was at least partially an effort to cozy up to daughter.
Tuesday, January 3, 2006
In ordinary parlance, an "affinity group" is a thing to be avoided, a term often associated with prison gangs and cults.
But at General Motors, an affinity group is apparently a feel-good extension of the corporate human resource function: "The program resulted from efforts to make diverse constituencies feel more welcomed and valued at GM, remove barriers to productivity for all employees, and increase market share and customer enthusiasm in diverse market segments. According to the [Affinity Group] Guidelines, Affinity Groups 'are typically created around an aspect of common social identity that influences how others see them at GM.' Affinity Groups are eligible to receive resources including the use of company facilities and equipment for group activities and funds to support the group's mission."
All of the recognized groups to date have precipitated around gender, ethnic and racial identities, but the company refuses funds to all religious groups. Moranski v. GM Corp., No. 04-1803 (7th Cir. Dec. 29, 2005) clarifies that nothing in Title VII makes sectarian affinity groups a mandatory incident of GM's grace. "Moranski argues that General Motors's refusal to grant Affinity Group status to any group that promotes or advocates a religious position means that it treats 'nonreligious' employees more favorably than religious employees. General Motors, however, has never recognized an Affinity Group that promotes or advocates any religious position, even one of religious indifference or opposition to religion. Nor, as Moranski acknowledges, would the Guidelines allow it to do so. The Guidelines preclude recognition of Affinity Groups based on any religious 'position,' including agnosticism, atheism, and secular humanism. The Guidelines also prohibit General Motors from recognizing, in Moranski's terms, a group organized on the basis of 'nonreligion.' Simply stated, General Motors's Affinity Group policy treats all religious positions alike-it excludes them all from serving as the basis of a company-recognized Affinity Group. The company's decision to treat all religious positions alike in its Affinity Group program does not constitute impermissible 'discrimination' under Title VII."