Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Reminder to Employers: Mishandling Complaints of Discrimination Can Be As Costly As Discrimination Itself

Posted: September 27, 2009 Filed under: Case Law, Employment Law

A divided panel of the United States Court of Appeals for the Ninth Circuit recently affirmed a jury verdict in favor of Muslim man of Moroccan national origin who accused his employer, internet company Go Daddy Software, Inc., of discrimination and retaliation. The jury concluded Go Daddy did not discriminate against the man but that it did retaliate against him after he complained of activity he reasonably believed was discriminatory.

The decision affirmed a trial court ruling upholding the verdict, even though the trial court reduced the amount of the verdict and declined to order that the employee be reinstated to a job at Go Daddy. The Ninth Circuit’s decision provides an opportunity to remind employers that mishandling employee complaints of discrimination can be as costly as discrimination itself.

The outcome in EEOC v. Go Daddy Software, Inc. can largely be attributed to technical legal rules that prevent parties from raising arguments for the first time on appeal and that prohibit appellate judges from making credibility determinations and weighing evidence.

The Ninth Circuit recognized the general rule that offhand comments, and isolated incidents, “unless extremely serious,” do not constitute discrimination, and it further recognized that a complaint about an isolated incident is not protected under anti-retaliation laws unless a “reasonable person” would believe that the isolated incident violated anti-discrimination laws. Determining what a reasonable person would believe requires “[l]ooking at all the circumstances, including the frequency of the discriminatory conduct[] [and] its severity.”

“All the circumstances,” the Ninth Circuit said, includes consideration of all hostile comments, including comments an employee may not have reported.

[I]f a person has been subjected to more than one comment, and if those comments, taken together, would be considered by a reasonable person to violate Title VII, that person need not complain specifically about all of the comments to which he or she has been subjected. Unreported comments, in other words, are relevant to the inquiry concerning the reasonableness of the belief that a violation has occurred. In such circumstances, a complaint about one or more of these comments is protected behavior.

Because the terminated employee had complained about discriminatory conduct only days before his termination, a “jury reasonably could have found that both Mr. Franklin and Ms. Slezak were aware of the protected activity [the complaint] and that their termination of Mr. Bouamama was in response to that activity.” Thus, Go Daddy ended up paying more than $200,000 to the former employee, as well as the substantial attorneys’ fees it incurred in defending the lawsuit. The trial court also has the authority to order Go Daddy to pay the attorneys’ fees of its former employee.

Lilly Ledbetter Saves the Day (Again)

Posted: September 16, 2009 Filed under: Uncategorized

Appellate courts (Supreme Courts and Courts of Appeals) rarely rehear a case once a decision has been made. The rules for obtaining a rehearing are strict, and courts generally have the discretion to deny a timely request for rehearing, even if the request has merit. Even rarer than rehearing are instances in which a court changes its opinion as the result of rehearing. So, when a court grants rehearing and changes its opinion about a particular case, the decision is noteworthy. Mikula v. Allegheny County of Pennsylvania is such a case.

Decided September 10, 2009, Mikula gives full effect to Congress’s intent to overturn the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 500 U.S. 618 (2007). Following Ledbetter, in which Justice Ruth Bader Ginsburg dissented and beseeched Congress to act, Congress passed the Lilly Ledbetter Fair Pay Act of 2009. The purpose of the Act was to reinstate the law regarding the timeliness of compensation claims as it was before the Ledbetter decision was handed down by the Supreme Court. Accordingly, the Act is retroactively applied to all cases pending on and after May 28, 2007, the date the Supreme Court issued its decision.

Ms. Mikula’s case was pending in the district court when the Supreme Court decided Ledbetter, so the trial judge dismissed Mikula’s pay discrimination claim on the basis of the Supreme Court’s decision. Ms. Mikula appealed, and the Third Circuit Court of Appeals affirmed that portion of the district court’s order (Mikula also asserted claims under the Equal Pay Act, a claim the Third Circuit initially sent back to the district court despite affirming dismissal of the discrimination claim). Although the Third Circuit’s original decision was made after Congress passed the Act, it initially believed that Mikula’s discrimination claim was still untimely because, it said, an unanswered request for a pay raise was not equal to “adoption of a discriminatory compensation decision.”

In a remarkable about-face, the Third Circuit wrote:

Despite our earlier decision, we now hold that the failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been explicitly denied.

The court reaffirmed, however, that an employer’s report following an investigation of a discrimination claim is not a “compensation decision.” The court justified its decision in this regard by observing that making an investigation report an adverse employment action “would have the unfortunate effect of encouraging employers to ignore such complaints [of discrimination].”

The Third Circuit’s decision does not represent a complete victory for Ms. Mikula; rather, it simply means that she will have an opportunity to go forward with her case. She still must prove that the employer’s decision to deny her request for a raise was motivated by her gender.

The Lilly Ledbetter Fair Pay Act of 2009 helps Ms. Mikula because it permits her to recover for discriminatory pay practices that resulted from the denial of her request for a raise. The employer’s denials of Mikula’s requests occurred outside the applicable limitations period; therefore, without the Act, Mikula’s discrimination claim would have been time-barred. After reviewing the law of pay discrimination as it stood immediately before the Supreme Court’s Ledbetter decision, which is what the Act reinstated, the Third Circuit concluded:

Mikula’s Title VII pay discrimination claim is timely as to paychecks that she received after June 20, 2006 (300 days before she filed her EEOC charge) if they reflect a “periodic implementation” of a previously made intentionally discriminatory employment decision or “other practice.”

Gay Man Entitled to Trial on Claims of Sex Stereotyping and Retaliation

Posted: September 13, 2009 Filed under: Uncategorized

On August 28, 2009, the Third Circuit Court of Appeals released an important opinion in Prowel v. Wise Business Forms, Inc., which determined that a gay employee was entitled to a jury trial on his claims of sex discrimination based on his claim of sex stereotyping and concomitant retaliation. The case is significant because federal anti-discrimination laws do not prohibit discrimination on the basis of one’s sexual orientation; yet, in Prowel, a gay man was able to assert a sex discrimination claim because he had been stereotyped “based on his sex.” The U.S. Supreme Court first recognized claims for gender stereotyping in a case involving a woman who was denied partnership in an accounting firm. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the woman was denied partnership because she used profanity, was not charming, and did not walk, talk, or dress in a feminine manner. A plurality of the Supreme Court concluded that, in prohibiting discrimination based on sex, Congress intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251.

The Prowel court relied on Price Waterhouse to conclude that, although employers can legally discriminate against gays and lesbians based on their orientation, “once a plaintiff shows that harassment is motivated by sex, it is no defense that it may also have been motivated by anti-gay animus. [Citation omitted.] In sum, ‘[w]hatever the sexual orientation of a plaintiff bringing a same-sex sexual harassment claim, that plaintiff is required to demonstrate that the harassment was directed at him or her because of his or her sex.’” An employee meets this burden when they demonstrate that “‘the[ir] harasser was acting to punish [their] noncompliance with gender stereotypes.’”

Mr. Prowel’s testimony, coupled with the fact he was laid off before typical male employees with worse performance records, was sufficient, the court said, to create an issue of fact for a jury.

The case is unintentionally humorous because the outcome results, at least in part, from outdated stereotypes. Testimony described the “typical” straight male employee as:

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn’t drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn’t.

According to the Third Circuit, Prowel was not typical:

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with “pizzazz.”

In summary, employers may not argue that because an employee is homosexual, they are precluded from bringing a gender stereotyping claim.

There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not. As long as the employee — regardless of his or her sexual orientation — marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred “because of sex,” the case is not appropriate for summary judgment. For the reasons we have articulated, Prowel has adduced sufficient evidence to submit this claim to a jury.

County Faces Trial for Alleged Reverse Discrimination

Posted: September 13, 2009 Filed under: Case Law, Employment Law

Earlier this summer, the 11th Circuit Court of Appeals, the federal appellate court that resolves appeals from U.S. District Courts in Florida, Alabama, and Georgia, affirmed the trial court’s order finding that DeKalb County, Georgia CEO, Vernon Jones, and other DeKalb County employees were not immune from liability for reverse discrimination. In Bryant v. CEO DeKalb Co. Vernon Jones, the court of appeals concluded that Jones’s policy of promoting a “darker administration” to reflect “the new DeKalb County,” if proven to be the motivating factor behind adverse employment actions, would constitute violations of clearly established statutory or constitutional rights. Government officials are sheltered from liability for civil damages resulting from performance of their discretionary functions only if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The policy behind the doctrine of qualified immunity is the product of balancing the need to hold officials accountable when they act irresponsibly against the need to protect officials from harassment and distraction when they perform their duties reasonably. To receive immunity, an official must establish that s/he was engaged in a “discretionary function” at the time they committed the allegedly unlawful act. If that burden is met, the plaintiff must then establish that the official is not entitled to immunity. To do this, the plaintiff must show that the official violated a constitutional or statutory right and that the right was clearly established at the time of the alleged wrongful act. Courts must view all evidence and inferences from the evidence in the light most favorable to the plaintiff in deciding whether the plaintiff has met her burden.

The 11th Circuit’s opinion explores in detail what an employee must show to establish a hostile work environment claim. One of the elements – that the harassment “was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment” – requires that the harassment be considered hostile and abusive by both a “reasonable person” and by the victim. Thus, a sensitive victim has no recourse if a reasonable person would not find the environment hostile and abusive. In determining what a reasonable person would perceive, the court looks to (1) the frequency of the discriminatory conduct, (2) the severity of the discriminatory conduct, (3) whether the conduct is physically threatening or humiliating or is merely offensive, and (4) whether the conduct unreasonably interferes with the employee’s work performance.

Because one of the plaintiffs in Bryant had voluntarily quit, the 11th Circuit also reviewed the legal requirements for establishing a “constructive discharge” claim. The court did not establish new law in this regard; rather, it simply reaffirmed that “the plaintiff must show ‘the work environment and conditions of employment were so unbearable that a reasonable person in that person’s position would be compelled to resign.’” The Court reiterated, “[e]stablishing a constructive discharge claim is a more onerous task than establishing a hostile work environment claim.” Employers may defeat a constructive discharge claim, if the plaintiff has not quit in reasonable response to adverse action, by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints, and (2) that the plaintiff unreasonably failed to avail herself of the employer-related remedial apparatus.

Upon reviewing these well-established rules, the court of appeals wrote that it was “careful not to gild the lily” but that the plaintiffs had produced “shocking evidence” of an “overt and unabashed pattern of discrimination.” Because the question is not whether an official “actually knew, or should have known” that their actions were unlawful, but, instead, is “whether reasonable officials occupying their positions would have known that their actions were unlawful,” the court concluded that reasonable officials would have known that race discrimination is unlawful.

The opinion also contains discussion of retaliation (a black employee suffered retaliation for not participating in the discrimination) and the doctrine of “legislative immunity.”

Admitted: Florida, Kansas, New Mexico (inactive)