The Seventh Circuit today reverses dismissal of a union member's complaint that she was discriminated against in job referrals because of sex, in violation of Title VII. The court observes that she was not obliged to file an EEOC charge the first time she suffered discrimination, and was timely provided that she suffered one denial or more during the 300-day period before filing. The panel also notes that a failure of an applicant to register formally and repeatedly for openings does not necessarily bar a Title VII action.
Stuart v. Local 727, Int'l BrTherehood of Teamsters, No. 14-1710 (7th Cir. Nov. 14, 2014): Plantiff bus driver, who is licensed to drive commercial vehicles, sought to break into the lucrative field of ferrying movie production equipment and personnel. According to the plaintiff's complaint, though, while "[s]ome 250 to 300 drivers are members of the Division, ... apparently in its 70-year history the Division has never referred a female driver to any of the movie or television production companies that hire drivers for their courtesy vans."
In March 2010, Stuart put in her application, paid her Teamsters dues, and allegedly "explained to the union's business agent that she wanted to be on the Movie/Trade Show referral list, and he told her she was on the list (although the union's lawyer told us at oral argument that There is no such list)." In over four years, she received no referrals. She filed a charge of sex discrimination with the EEOC in October 2011.
Upon her filing a civil action and the union filing an answer, the district court judge dismissed the action sua sponte (i.e., on its own authority, without a motion) with prejudice, holding that (1) a union was not covered by Title VII for failure to refer a member for jobs, and that (2) in any event, Stuart waited too long to file her EEOC charge, knowing that the union had not referred her on any movie jobs for more than a year and thus exceeding the 300-day limitations period.
The Seventh Circuit reverses. The panel rejects the limitations basis summarily:
"There is no rule that a plaintiff who has been repeatedly discriminated against by her employer cannot challenge any of the discriminatory acts under Title VII unless she files her EEOC charge within 300 days after the first such act. Lewis v. City of Chicago, 560 U.S. 205, 213-14 (2010). That would be an absurd rule. It would require an employee to infuriate her employer or union by complaining about what might be an inconsequential act of discrimination that she did not expect to be repeated."
Alternatively, the timing of her action would be protected by the doctrine of equitable estoppel:
"By telling the plaintiff to stop inquiring about openings for drivers, because she would be notified of such openings without having to call Local 727's business agent, the agent, on the approach taken by the district judge, placed her in an impossible position: she could infuriate him by continuing to call him to inquire about openings and emphasize her interest in them; she could sue the local prematurely for discrimination (because she didn't at that time know that the Division had an ironclad policy against referring women); or she could simply forgo any remedy under Title VII. By impaling her on this three-pronged fork, the business agent prevented her from suing within 300 days for the union's failing to refer her. If contrary to what we believe to be the law, only an express refusal would be actionable, the agent prevented her from complying with the statute of limitations and so Local 727 is equitably estopped to plead the statute."
The district court also erred in holding that a union's failure to refer cannot violate Title VII, with the panel quoting the section of the statute making it unlawful for a union to "fail or refuse to refer for employment any individual" because of the individual's sex. 42 U.S.C. § 2000e-2(c)(2).
"If a failure to refer were a consequence merely of inadvertence, and if despite the occasional such failure women received a reasonable number of referrals from the employer, There would be no basis for inferring discrimination on the basis of sex. But the complaint alleges that the plaintiff made repeated, futile requests for referral by the Movie/Trade Show Division, until Local 727's business agent told her 'don't call us, we'll call you.'"
The panel finally notes its agreement with a decades-long line of cases that applicants may bring Title VII actions for failure to refer or hire even without filing formal applications for every position, provided that they did "everything reasonably possible to make known ... their interest in applying for a job" (internal quotation and citation omitted).