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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.”

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