EEO UPDATE April 2008 Thomas M. Daniel

 Unlawful retaliation under Title VII is not limited to discrete adverse job actions such as discharge, demotion, or reduction in pay. Instead, whether an employer's action is retaliatory is determined on a case- by-case basis.  Plaintiff must prove that a reasonable employee would find the employer's action materially adverse; that is, job action that would make a reasonable employee think twice about making or supporting a discrimination claim. Burlington Northern and Santa Fe Railway v. White (U.S. Supreme Court, 2006)

 Materially adverse – more than discharge, demotion, or pay cut – but not petty slights such as snubbing by supervisors or co-workers  Reasonable employee – objective standard; not a hypersensitive employee

The following actions were found to be retaliatory in prior cases decided under the standard the Supreme Court adopted in White’s case: giving an employee a less distinguished title; filing false criminal charges against an employee; denying tenure; denying a raise when it was an expected element of the employee’s salary; and significantly diminishing an employee’s responsibilities.

The following actions were found not to constitute retaliation in prior cases decided under more stringent standards than the one in White’s case and thus may present potential problems under the new standard: unfavorable evaluations or performance ratings that have a negative impact on promotion potential but didn’t result in actual denial of the promotion; decisions not to raise salary when the raise wasn’t an expected element of the employee’s salary; increased scrutiny of an employee’s work; changing locks to or within the occupational premises; refusing to restore lost leave time; failing to meet with an employee to set performance goals; instructing employees not to record certain tasks on a work log; and disposing of certain programs, files, or material prepared by the employee.

The following actions were not held to be retaliation in prior cases decided under the standard the Supreme Court adopted in White’s case: shunning employees; merely make an employee unhappy; publicly humiliating an employee; causing an employee to lose reputation; providing negative performance evaluations with no effect on promotion; failing to pay or comply with an unrelated court judgment or injunction; assigning an employee to a menial task, such as housekeeping, when such tasks occasionally had been performed before; declining to hold a job open for an employee; and badmouthing an employee outside the job context.

Sprint/United Management Co. v. Mendelsohn (U.S. Supreme Court, Feb. 22, 2008)  "Me, too" evidence of alleged discrimination from employees other than the one suing (and involving different supervisors) is not, per se, inadmissible.

State of Alaska v. EEOC (9 th Circuit, Nov. 8, 2007)  Government Employees' Rights Act, which allows high level state officials to sue for race and sex discrimination, declared unconstitutional because Congress made no findings of wide-spread discrimination against high level state officials when it enacted the law.

Pyramid Printing Co. v. Alaska State Commission for Human Rights (Alaska Supreme Court, March 16, 2007) 1.Female employee sexually harassed by general manager of small company need not accept reinstatement to mitigate damages 2.Award of additional damages for "vacation pay" affirmed 3.Human Rights Commission had authority to order company's owners to undergo sexual harassment training even though they didn't participate in the day-to-day operations of the business

Dukes v. Wal-Mart (9 th Cir. Dec. 11, 2007)  Largest class action in history certified – class of 1.5 million women in 3,400 stores  Sex discrimination alleged in (1) pay, and (2) promotions based on allegations of:  Excessive subjectivity in personnel decisions  Gender stereotyping  Statistical evidence of gender discrimination (employees are 2/3 female but only 1/3 are managers)  Anecdotal evidence from 120 women of sex discrimination

Dukes v. Wal-Mart (continued) Dissenting Judge (Kleinfeld) says this case potentially will reward women who are not victims of discrimination while depriving actual victims of discrimination of their actual due Violates Wal-Mart's right to due process because there will never be an individual adjudication of whether any woman was subjected to sex discrimination – all based on statistics

Gambini v. Total Renal Care, Inc. (9 th Circuit, March 8, 2007)  Terminating bipolar employee for violent outburst in meeting with her supervisors -- throwing Improvement Plan across the desk, cursing supervisor, walking out and slamming the door -- might be unlawful disability discrimination  If an employee's mental disability is a cause of employee's misconduct,  and the employer is aware of the employee's disability

Huber v. Wal-Mart Stores (8 th Circuit 2007)  Employer not required to give vacant position to disabled employee over better qualified candidate  ADA is not an affirmative action statute  (Cert. granted Dec. 7, 2007 Cert. dismissed Jan. 14, 2008)

Johnson v. Riverside Health Care System (9 th Circuit, Feb. 13, 2008)  Single racist outburst where physician allegedly called African-American doctor a "f_ _ _ing n_ _ _ _ _" was not sufficiently severe or pervasive to support a claim of a hostile work environment based on race.

El-Hakem v. BJY Inc. (9 th Cir. 2005)  CEO's persistent reference to Arab employee as "Manny," instead of his actual name (Mamdouh), even though employee strenuously objected, created racially hostile work environment.

Ash v. Tyson Foods, Inc. U.S. Supreme Court (Feb. 21, 2006)  Evidence that African-American plaintiff was called "boy" could be evidence of racial animus – must consider context, inflection, tone of voice, local custom, and historical usage  Court rejects 11 th Circuit standard in promotions case – disparity in qualifications must be "so apparent as virtually to jump off the page and slap you in the face"

Villaflores v. Alaska State Commission for Human Rights (Alaska Supreme Court, Nov. 16, 2007)  Applicant for a job who was Asian and over 40 cannot pursue discrimination claim when the person employer hired was also Asian and over 40.

Poland v. Chertoff (9 th Circuit, July 20, 2007)  Employer's decision made by independent and unbiased decision maker is nevertheless unlawful if employee proves that the decision was not actually independent because a biased subordinate influenced or was involved in the decision making process. ("Cat's Paw" Theory)

Jespersen v. Harrah's (9 th Circuit 2006 en banc)  Different grooming standards for male and female bartenders (only women were required to wear face powder, blush, mascara, and lip color) is not unlawful sex discrimination because  policy did not impose greater burden on women  and was not based on a stereotype of women as sex objects (such as requiring women to wear skimpy outfits).

EEOC v. NEA Alaska (9th Circuit 2005)  Sexual harassment need not be sexual in nature: Female victims of abusive boss who harasses employees – but harassment is not of a sexual nature – may nevertheless pursue a hostile environment sexual harassment claim where there is evidence that females were subjected to more harsh treatment than men.

EEOC Guidance on Work-Life Balance (2007) Purpose -- Avoiding sex and disability discrimination against workers with caregiving responsibilities. Stereotyping is the enemy – the main advice from the guidance is avoid stereotyping and assumptions based on the fact that an employee has caregiving responsibilities.  asking a female job candidate — but not a male — about children and childcare;  making performance evaluations after a worker becomes pregnant or assumes caregiving responsibilities (you should base all evaluations on documented facts);  making subjective assessments (you should be sure to have objective criteria for the assessments and follow them); and

 changing job duties or assignments after a worker becomes pregnant or assumes caregiving responsibilities (again, base these actions on documented facts and follow existing procedures).  Good intentions is not a defense:  The fact that an employer acted out of kindness toward an employee won’t help if unlawful stereotype motivated the act.