My regrets about the long delay between entries — a raft of depositions and a presidential election intervened. In the hopes of making things up, here are two Title VII cases from this week, both defense wins and both with opinions that simply could not mean what they say (at least, I hope not).
Lightner v. City of Wilmington, No. 07-1442 (4th Cir. Nov. 3, 2008): Based on the summary judgment record, this involves (in simplified form) a white male police officer with a 25-year-long spotless record who received harsher discipline for the same offense as an African-American female officer with a spottier record. The court affirms summary judgment for the city. The ground is that the plaintiff admitted in the course of the case that the city’s ulterior motive for the discipline was to retaliate against him for whistleblowing: “plaintiff stated his ‘adamant belief’ that his suspension was ‘in direct retaliation for [his] Internal Affairs investigation into the failure of certain traffic officers to appropriately report automobile accidents.'”
Writes the panel,
“In offering this explanation as to the real reason for the employer’s action, the plaintiff has undone his case. He has tried to take a statute aimed at discrete forms of discrimination and turn it into a general whistleblower statute, which of course Title VII is not. Title VII prohibits discrimination on the basis of specifically enumerated grounds: ‘race, color, religion, sex, or national origin.’ 42 U.S.C. § 2000e-2(a)(1) (2000). Its purpose to eliminate these invidious forms of discrimination is clear. It would vitiate Congress’s decision to single out these grounds as particularly deserving of protection if Title VII were interpreted as a general employment statute that protects employees from any wrongful discharge.”
Two possibilities occur to me. 1. Assuming that § 703(a) applies here (i.e., discrimination “because of such individual’s race”), wouldn’t the right question be whether he would have suffered the same fate if everything else was the same (including the whistleblowing) except for his race and sex; in other words, would they have gone after a black, female whistleblower with the same gusto? (Anyone wanna take a bet with me on that one?) 2. Assuming that § 703(m) applies (“a motivating factor”), then there is no inconsistency between the whistleblowing and the race-sex reasons that would require judgment as a matter of law for the city. Neither of these possibilities, unmentioned in the opinion (and in fairness, possible not raised by the plaintiff himself), would have the effect — as the opinion states — of “dilut[ing] the noble purposes for which Congress enacted” Title VII.
Andonissamy v. Hewlett-Packard Co., No. 07-2387 (7th Cir. Nov. 7, 2008): This is a typical affirmance of summary judgment in a multifaceted case challenging a termination under several federal acts (Title VII, § 1981, FMLA). I do not address the lion’s share of the opinion here, but want to put the spotlight on a stray line in the portion of the opinion affirming the judgment on retaliation. Here, the employee in making his complaints to human resources committed the common error of complaining about unfair treatment without specifically mentioning race or national origin as the cause. The anti-retaliation standards of Title VII and § 1981, as construed by the courts, require a more or less explicit reference to the protected classification to lasso it into “opposition” to discriminatory practices. Now note the rest of the analysis:
“In his deposition, Andonissamy admitted that he did not include his complaints about national origin discrimination in his correspondence with Lewis and human resources but planned to mention those complaints if anyone from the human resources department contacted him during an investigation. At best, this raises an inference that Andonissamy planned to engage in statutorily protected activity, but it does not amount to statutorily protected activity in its own right.” [Emphasis added.]
Could this really be true? If I tell my manager that I’m going to see my lawyer after work about filing an EEOC charge, could he really fire me with impunity before I make it to the lawyer’s office? If I tell my manager that I’m headed into a deposition for a co-worker with a Title VII case, could he fire me without consequences before I’m sworn in to testify? I’m fairly sure that the anti-retaliation section stretches at least that far (though we will know far more after we get a decision from the Supreme Court in the Crawford case). At best this is poor drafting or, at its most pernicious, it’s an excuse for employers to act even quicker to punish “troublemakers.”