For the week of April 28, 2008
In order to sufficiently support a prima facie case of gander discrimination under Title VII, an individual must show - among other things - that she suffered an "adverse employment action." The types of action that courts have deemed to be adverse for purposes of this burden include termination of employment, demotion that includes a decrease in salary, and denial of promotion to a position of increased salary and benefits.
The 2d U.S. Circuit Court of Appeals has determined that a denial of a transfer may be the objective equivalent of a denial of promotion, and therefore constitute an adverse employment action, even if the new position sought would not include an increase in pay or other tangible benefits. Beyer v. County of Nassau Police Dept., 2d Cir., No. 06-4930, April 23, 2008.
In that case, a female employee claimed gender discrimination when her repeated requests for transfer were denied. Natalie Beyer was a police detective with strong scientific background and experience. For 14 years, Beyer worked in the Serology Section of the Nassau County Police Department, analyzing blood and other crime scene evidence. During that time, Beyer observed progressive outsourcing of the Serology Section’s work. However, at the same time, the Latent Fingerprint Section (LFS) of the Department was becoming increasingly active, using advancing scientific techniques and computer-aided resources. None of the LFS work was being outsourced.
In 1999 and 2000, Beyer applied for posted LFS job openings for which she was "indisputably qualified." While the transfers sought would have been lateral and involved the same pay and title that Beyer held in Serology, evidence indicated that moving to LFS would have provided opportunities for advanced training and access to new techniques and technology. In addition, as LFS’ work was not being outsourced, positions there were more likely to remain in the Department over the long term. While Beyer was highly recommended for the positions by her supervisor and her Captain, all open LFS positions were given to male applicants. In May 2002, Beyer again applied for transfer to LFS, but the Department did not process her paperwork.
Beyer filed a complaint in 2002, alleging that the Department discriminated against her on the basis of her gender by denying the lateral transfer requests. Six months later, the Serology Department was closed. Beyer again asked to be transferred to LFS, but instead was assigned to a precinct squad, where her responsibilities included performing arrests, taking statements, interviewing witnesses, and processing paperwork. The position did not include opportunity to use scientific knowledge or experience.
While the district court granted defendants’ motion for summary judgment, the Second Circuit vacated that decision and remanded the case for further proceedings, finding that Beyer had suffered the "adverse employment action" necessary to support a prima facie case of gender discrimination under Title VII. The Court specifically held that a "reasonable trier of fact could conclude that the transfer sought and denied would have involved an objective and significant improvement in the terms, conditions, or privileges of her employment."
While subjective, personal disappointment is not enough to prove that a denial of transfer is sufficiently adverse to support a claim of discrimination under Title VII, evidence that a sought-after, but denied, transfer puts the employee in an objectively and materially better position may be sufficient. This analysis points out the importance of objective, fact-based job descriptions, which can be reviewed and analyzed by employers for the purposes of determining whether an employee’s sought-after position is objectively more advantageous than another, even when both are paid and categorized equally.
Monday, April 28, 2008
Tuesday, April 22, 2008
Issue: Sixth Circuit says Title VII’s anti-retaliation provision protects third parties
For the week of April 21, 2008
Most employers understand that Title VII of the Civil Rights Act prohibits retaliation against an employee who has initiated or participated in a proceeding under that Act. But they also should be aware that at least one federal appellate court has extended that precept to apply to third parties who are related to or associated with a party who has engaged in protected activity under Title VII. Thompson v. North American Stainless, LP, 6th Cir., No. 07-5040, March 31, 2008.
Eric Thompson was engaged to a fellow employee, Miriam Regalado, when Regalado filed a charge of gender discrimination with the EEOC in September 2002 Their relationship was common knowledge at their place of employment, North American Stainless (NAS), in Carroll County, Kentucky. On February 3, the EEOC notified NAS of Regalado’s charge. On March 7, 2003, Thompson’s employment was terminated.
Thompson then filed a charge with the EEOC, claiming retaliation. After the EEOC found "reasonable cause" to believe that NAS had violated Title VII, Thompson filed a lawsuit in federal court. NAS moved for summary judgment, arguing that Thompson’s claim - that the sole motivation for his termination was his relationship with Regalado – was insufficient to support a cause of action for retaliation under Title VII. The lower court agreed, and dismissed the claim. On appeal, the Sixth Circuit reversed, holding that reprisals against a related third party could deter an employee from exercising protected rights under Title VII and, therefore, that Thompson’s claim could go forward.
The Court’s holding is noteworthy in one important respect: there is no allegation that Thompson himself took any specific action protected by Title VII, either to oppose any unlawful employment practice, or to participate in any manner in the proceeding related to Regalado’s charge, both of which is protected under the plain language of Title VII. In this case, the Court clearly went beyond the literal language of the statute, and explained its position by stating that the decision supported the "broader context of the statute as a whole." The Court found that a narrow reading of the statute would defeat the "plain purpose" of Title VII, because an employer’s retaliation against a family member after an employee files an EEOC charge would dissuade other reasonable employees from taking such action in the future. The Court also cited the EEOC’s Compliance Manual, which states that a person claiming retaliation does not have to be the same person who conducted the protected activity, but need only be "closely related to or associated with" the person exercising statutory rights under the Act.
Other courts to have gone beyond a literal reading of Title VII have held that the Act’s anti-retaliation language protects former employees, and also have held that it prohibits indirect discrimination (in one case, against a white employee with a bi-racial child). However, the Sixth Circuit’s decision to create a specific claim for third-party retaliation is a first, and forms a split with other Circuit Courts of Appeal to have directly addressed the issue. The Third, Fifth, and Eighth Circuits all have rejected third-party claims, expressing concern that extending such protection could "open the floodgates" from relatives and associated filing retaliation claims.
While this holding currently is limited in geographic scope (the Sixth Circuit includes federal courts in MI, OH, KY, and TN), it may create an impetus for other courts to fall in line with the rationale. Regardless of its effect, the case is a reminder that employers should document work-related issues upon which terminations are based, in order to support those terminations in the event of future litigation.
Most employers understand that Title VII of the Civil Rights Act prohibits retaliation against an employee who has initiated or participated in a proceeding under that Act. But they also should be aware that at least one federal appellate court has extended that precept to apply to third parties who are related to or associated with a party who has engaged in protected activity under Title VII. Thompson v. North American Stainless, LP, 6th Cir., No. 07-5040, March 31, 2008.
Eric Thompson was engaged to a fellow employee, Miriam Regalado, when Regalado filed a charge of gender discrimination with the EEOC in September 2002 Their relationship was common knowledge at their place of employment, North American Stainless (NAS), in Carroll County, Kentucky. On February 3, the EEOC notified NAS of Regalado’s charge. On March 7, 2003, Thompson’s employment was terminated.
Thompson then filed a charge with the EEOC, claiming retaliation. After the EEOC found "reasonable cause" to believe that NAS had violated Title VII, Thompson filed a lawsuit in federal court. NAS moved for summary judgment, arguing that Thompson’s claim - that the sole motivation for his termination was his relationship with Regalado – was insufficient to support a cause of action for retaliation under Title VII. The lower court agreed, and dismissed the claim. On appeal, the Sixth Circuit reversed, holding that reprisals against a related third party could deter an employee from exercising protected rights under Title VII and, therefore, that Thompson’s claim could go forward.
The Court’s holding is noteworthy in one important respect: there is no allegation that Thompson himself took any specific action protected by Title VII, either to oppose any unlawful employment practice, or to participate in any manner in the proceeding related to Regalado’s charge, both of which is protected under the plain language of Title VII. In this case, the Court clearly went beyond the literal language of the statute, and explained its position by stating that the decision supported the "broader context of the statute as a whole." The Court found that a narrow reading of the statute would defeat the "plain purpose" of Title VII, because an employer’s retaliation against a family member after an employee files an EEOC charge would dissuade other reasonable employees from taking such action in the future. The Court also cited the EEOC’s Compliance Manual, which states that a person claiming retaliation does not have to be the same person who conducted the protected activity, but need only be "closely related to or associated with" the person exercising statutory rights under the Act.
Other courts to have gone beyond a literal reading of Title VII have held that the Act’s anti-retaliation language protects former employees, and also have held that it prohibits indirect discrimination (in one case, against a white employee with a bi-racial child). However, the Sixth Circuit’s decision to create a specific claim for third-party retaliation is a first, and forms a split with other Circuit Courts of Appeal to have directly addressed the issue. The Third, Fifth, and Eighth Circuits all have rejected third-party claims, expressing concern that extending such protection could "open the floodgates" from relatives and associated filing retaliation claims.
While this holding currently is limited in geographic scope (the Sixth Circuit includes federal courts in MI, OH, KY, and TN), it may create an impetus for other courts to fall in line with the rationale. Regardless of its effect, the case is a reminder that employers should document work-related issues upon which terminations are based, in order to support those terminations in the event of future litigation.
Issue: Retaliation claim cannot be premised on personality conflicts and petty slights
For the week of April 14, 2008
Title VII of the Civil Rights Act prohibits retaliation against an employee who has initiated or participated in a proceeding protected under that Act. Such retaliation typically consists of an adverse employment action taken against the individual by the employer. As one element of a prima facie case of retaliation, the employee must show the alleged retaliatory action was "materially" adverse. This element requires courts to determine whether the challenged action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." To this end, courts consistently have held that in order to be materially adverse, an action has to have a significant impact on the individual’s employment.
The 8th U.S. Circuit Court of Appeals recently held that incidents of "ostracism" complained of by a university professor amounted to no more than "nonactionable petty slights" that did not support a claim of retaliation. Recio v. Creighton University, 8th Circ. No. 07-2460, April 8, 2008.
In 1994, Nebraska’s Creighton University hired Dr. Roxana Recio as an Associate Professor of Spanish in the school’s Department of Modern Languages and Literature. Recio is a naturalized citizen of Spanish origin. In 2004, another female professor in the department complained about sexually inappropriate communications from Recio. In spite of a recommendation for termination made by the University’s Sexual Harassment Committee, Recio was placed on one-year probation by Creighton’s President, and was directed to complete certain conditions of the probation, including psychological counseling and no contact with the other professor. Recio completed that probation with no violations of the conditions imposed.
On July 14, 2004, Recio filed a charge of discrimination, alleging that the imposition of probation was based on her Spanish national origin. On May 10, 2005, she filed a second charge, alleging that Creighton had retaliated against her for filing that initial charge.
In May 2006, Recio filed a lawsuit alleging that Creighton had retaliated against her for filing the 2004 charge. She set forth numerous alleged acts of retaliation, including issues related to the duration of her probation, denying to her certain teaching and training opportunities, shunning by faculty, and keeping the temperature of her office too cold. The district court granted a motion for summary judgment filed by Creighton, and the decision was upheld on appeal by the Eighth Circuit.
In deciding that Recio had not set forth the "materially adverse" actions necessary to support the retaliation claim, the Eighth Circuit first addressed the issues related to Recio’s probation, teaching, and training. While Recio complained that the school twice extended her probationary period, the Court found that those extensions were based on the fact that Recio spent the summers of 2004 and 2005 in Spain, and that the period was extended to accommodate her schedule. Recio’s complaints about the teaching schedule similarly were related to her trips. Further, the fact that the school disallowed Recio from teaching on her preferred schedule, without any indication that the new schedule change created a material disadvantage to her, was deemed not to have been retaliation.
The Court then addressed the remaining allegations and found them to be lacking, as well. The facts that Recio claims to have gotten the "silent treatment" from co-workers and that she had been excluded from a photo of the Spanish faculty posted on the school’s website were labeled by the Court as "nonactionable petty slights" and were held to be insufficient bases for a claim of retaliation.
Employers should be aware of the distinction between the types of acts alleged by Recio and other acts that actually hinder a professional career – for instance, denying a professor the teaching opportunities that are required in order to obtain tenure – which could, in fact, be deemed to be materially adverse, and therefore could support a claim of retaliation. This case is a reminder that workplace behavior can create liability under certain circumstances, and that supervisors and managers should be trained to recognize those circumstances.
Title VII of the Civil Rights Act prohibits retaliation against an employee who has initiated or participated in a proceeding protected under that Act. Such retaliation typically consists of an adverse employment action taken against the individual by the employer. As one element of a prima facie case of retaliation, the employee must show the alleged retaliatory action was "materially" adverse. This element requires courts to determine whether the challenged action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." To this end, courts consistently have held that in order to be materially adverse, an action has to have a significant impact on the individual’s employment.
The 8th U.S. Circuit Court of Appeals recently held that incidents of "ostracism" complained of by a university professor amounted to no more than "nonactionable petty slights" that did not support a claim of retaliation. Recio v. Creighton University, 8th Circ. No. 07-2460, April 8, 2008.
In 1994, Nebraska’s Creighton University hired Dr. Roxana Recio as an Associate Professor of Spanish in the school’s Department of Modern Languages and Literature. Recio is a naturalized citizen of Spanish origin. In 2004, another female professor in the department complained about sexually inappropriate communications from Recio. In spite of a recommendation for termination made by the University’s Sexual Harassment Committee, Recio was placed on one-year probation by Creighton’s President, and was directed to complete certain conditions of the probation, including psychological counseling and no contact with the other professor. Recio completed that probation with no violations of the conditions imposed.
On July 14, 2004, Recio filed a charge of discrimination, alleging that the imposition of probation was based on her Spanish national origin. On May 10, 2005, she filed a second charge, alleging that Creighton had retaliated against her for filing that initial charge.
In May 2006, Recio filed a lawsuit alleging that Creighton had retaliated against her for filing the 2004 charge. She set forth numerous alleged acts of retaliation, including issues related to the duration of her probation, denying to her certain teaching and training opportunities, shunning by faculty, and keeping the temperature of her office too cold. The district court granted a motion for summary judgment filed by Creighton, and the decision was upheld on appeal by the Eighth Circuit.
In deciding that Recio had not set forth the "materially adverse" actions necessary to support the retaliation claim, the Eighth Circuit first addressed the issues related to Recio’s probation, teaching, and training. While Recio complained that the school twice extended her probationary period, the Court found that those extensions were based on the fact that Recio spent the summers of 2004 and 2005 in Spain, and that the period was extended to accommodate her schedule. Recio’s complaints about the teaching schedule similarly were related to her trips. Further, the fact that the school disallowed Recio from teaching on her preferred schedule, without any indication that the new schedule change created a material disadvantage to her, was deemed not to have been retaliation.
The Court then addressed the remaining allegations and found them to be lacking, as well. The facts that Recio claims to have gotten the "silent treatment" from co-workers and that she had been excluded from a photo of the Spanish faculty posted on the school’s website were labeled by the Court as "nonactionable petty slights" and were held to be insufficient bases for a claim of retaliation.
Employers should be aware of the distinction between the types of acts alleged by Recio and other acts that actually hinder a professional career – for instance, denying a professor the teaching opportunities that are required in order to obtain tenure – which could, in fact, be deemed to be materially adverse, and therefore could support a claim of retaliation. This case is a reminder that workplace behavior can create liability under certain circumstances, and that supervisors and managers should be trained to recognize those circumstances.
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