There’s really been a drought of EEO opinions worth writing about lately, but today we get two: the Fourth Circuit reversing and remanding summary judgment in a Title VII race-and-sex harassment case brought by the EEOC, and the D.C. Circuit weighing in on whether the ADA Amendments Act is retroactive to pending cases (the answer will not surprise you).
EEOC v. Central Wholesalers, Inc., No. 08-1181 (4th Cir. July 21, 2009): Ms. La Tonya Medley (an African-American woman) suffered — as the panel describes it — “a steady stream of racial and gender epithets” by four white male co-workers who “engaged in inappropriate racial and gender-based conduct” over a two-month period. The full description of the events awaits your perusal, but it included daily use of language (although the panel gingerly publishes only a censored version of the co-workers’ words, i.e., “b***h,” “n****r”); workplace pornography; and ethnic/sexual jokes. A pornographic screensaver (these people still use “screensavers”?) was removed from a PC in a co-worker’s cubicle, only to be replaced by another. Workplace inspections failed to turn up evidence of pornography; after the inspections, the stuff would reappear. A Halloween decoration was decked out with a male member. When she complained to her co-workers and supervisors, the onslaught only worsened.
Finally, on November 10, 2004, Medley encountered “blue-colored dolls with mop-heads in [her co-workers’] offices … hanging by nooses tied around their necks.” Horrified, she left and wrote e-mails to two managers and insisted on the situation being corrected. Medley never returned to work after that.
The district court granted summary judgment. It held that the alleged harassment was either not gender-specific, or else not severe or pervasive. It also held that there was no employer liability for the race harassment because the employer supposedly had no opportunity to take corrective action before she vacated the offices in November.
The panel reverses summary judgment (and affirms a denial of attorneys’ fees to the employer), finding that the EEOC presented a genuine issue of material fact on each of the elements of its hostile work environment claim. Most notably, the court holds that (1) the regular use of the word “bitch,” about women generally or the employee in particular, supports an inference that the harassment is based on sex; (2) the habitual use of race and gender epithets could be found severe or pervasive; and (3) the employer’s failure to take progressive steps to reprimand, demote or suspend the offenders was evidence that its corrective efforts were ineffective.
Lytes v. D.C. Water and Sewer Auth., No. 08-7002 (D.C. Cir. July 21, 2009): Resolution of whether an employee with chronic degenerative disc disease was “disabled” for purposes of the ADA (because of a lifting restriction) depended in turn on whether the ADAAA of 2008 applied to the claim. The employee had been terminated in 2003, but Act went into effect while this appeal was pending. The panel holds that the Act only applies to claims arising on or before the effective date of January 1, 2009:
“We agree with the Authority’s principal point: By delaying the effective date of the ADAA, the Congress clearly indicated the statute would apply only from January 1, 2009 forward. If the Congress intended merely to ‘clarify’ the ADA, then its decision to delay the effective date would make no sense; it would needlessly have left the ADA unclear for the more than three months between enactment of the ADAA on September 25, 2008 and its going into effect on January 1, 2009. Nothing on the face of the statute indicates the Congress intended this peculiar scenario. If, in contrast, the Congress intended the Amendments to have a purely prospective effect, then its decision to delay the effective date of the ADAA makes sense. Indeed, we can imagine no reason for the Congress to have delayed the effective date other than to give fair warning of the Amendments to affected parties and to protect settled expectations.”
The panel also notes that, even without the presence of the effective date, courts ordinarily presume prospective-only scope under Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), and noted several courts including the Fifth Circuit that had already so held with respect to the ADAAA (EEOC v. Agro Distribution, LLC, 555 F.3d 462, 470 n.8 (5th Cir. 2009)).
No definitive word, though, on whether the new or old act applies to claims for prospective relief only.