AOC in employment-law news: the Architect of the Capitol loses two Title VII appeals in the past week, both cases involving claims of denial of promotions due to national origin. Both shared the detail that supervisors allegedly mocked the plaintiffs because of their accents.
Federal courts seldom pause on the second stage of the McDonnell Douglas burden-shifting test, whee the employer proffers its allegedly legitimate, non-discriminatory reason for taking adverse action against an employee. But in this case, the D.C. Circuit holds that it is not enough for the employer to simply advance a facially-neutral process without showing how it was specifically applied to the employee. This case could have special application in promotion and other processes involving large numbers of people and subjective criteria.
When a former supervisor - later reassigned - tells an employee that they were not promoted because "[y]ou're not white" and "you're not female," can the statement be used to prove a discriminatory motive over a hearsay objection? A panel of the Ninth Circuit holds 2-1 that the statement is admissible against the employer as a party admission.
The Eleventh Circuit heightens the probability of Supreme Court review of a long-festering circuit split: just how "similarly situated" must a Title VII plaintiff be to a comparator employee in the workplace to establish a prima facie case of discrimination? The en banc court holds 9-3 that a plaintiff must demonstrate, at the first stage of the analysis, that she and the comparators were "similarly situated in all material respects."
The Fourth Circuit reverses summary judgment in a Title VII retaliation case, where the plaintiff's direct boss allegedly declared that she "wanted someone of a different race" in the job, then proceeded to subject her to "constant surveillance, badgering, and criticism." When the plaintiff "told the City that she intended to file a formal grievance" about the hostile work environment, the defendant fired the plaintiff the very next day.
There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
The First Circuit affirms a $2.6 million judgment for race discrimination against the Massachusetts Bay Transportation Authority, where the jury was presented with direct evidence involving "[t]hree of the MBTA's supervisory staff who either concurred in [plaintiff]'s dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her."
A Black employee who is denied a transfer and told by her supervisor that another manager "wanted a Korean in that position" - and is then fired a week after complaining about race discrimination - presents a triable case of Title VII discrimination and retaliation, so holds the Eleventh Circuit.
The Seventh Circuit reverses and remands a Title VII claim for trial that it describes as a potentially "strong case of race discrimination." In particular, it reminds district courts that the "same actor" inference - that a manager who hires Black employees is unlikely to be biased against them - is at most an argument for trial, not a rule for deciding summary judgment.
May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of "race"? The panel unfortunately holds that "race" under Title VII is limited to "immutable" physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.