Title VII

The Equal Pay Act Does Not Prohibit Discriminatory Job Assignments

Robert C. Lockwood
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Equal Pay Act Wage Discrimination
The Equal Pay Act Does Not Prohibit Wage Discrimination Resulting from Job Assignments

Recent decisions from the United States District Court for the Northern District of Alabama demonstrate that the Equal Pay Act cannot be used to sue employers for wage disparities caused by discriminatory work assignments.  See Crosby v. Massey Hauling, Co., No. 2:16-cv-00383-RDP, 2016 WL 6082047 (N.D. Ala. Oct. 18, 2016).

Generally, the Equal Pay Act prohibits wage discrimination on the basis of gender.  An employer cannot discriminate “between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex …for equal work ….”  29 U.S.C. 206(d)(1).  In Crosby, the plaintiff was a female truck driver.  Her employer paid truck drivers based upon the materials hauled in the trucks.  Most of the employer’s trucks were coal trucks, but the employer also used about seven dump trucks. The coal truck assignment were more lucrative for drivers than dump truck assignments.  The Plaintiff alleged that she suffered wage discrimination because her employer always assigned her to dump truck jobs, while allowing men to drive the coal trucks.

United States District Court Judge R. David Proctor dismissed the plaintiff’s Equal Pay Act claim.  He relied heavily upon an earlier opinion by Senior United States District Court Judge C. Lynwood Smith, Jr. in Caetio v. Spirit Coach, LLC, 992 F.Supp.2d 1199 (N.D. Ala. 2014).  Judge Smith found that “the Equal Pay Act does not provide relief for allegations of discriminatory work assignments.”  Caetio, 992 F.Supp.2d at 1213.  Because the Plaintiff in Crosby was seeking to recover for disparities in pay caused by discriminatory work assignments between coal trucks and dump trucks, Judge Proctor dismissed the Equal Pay Act claim.

Judge Proctor’s decision was only a minor win for the employer.  The plaintiff also filed a claim under Title VII of the Civil Rights Act of 1964 which generally prohibits gender discrimination. Potentially, discriminatory work assignments could violate Title VII.  The employer in Crosby did not seek dismissal of the Title VII claim, and that claim will proceed through the discovery process.

Prohibiting Dreadlocks Is Not Race Discrimination Under Title VII

Robert C. Lockwood
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Dreadlocks Race Discrimination
An Employer’s Decision to Prohibit Dreadlocks Does Not Constitute Race Discrimination

The Eleventh Circuit Court of Appeals has ruled that an employer does not commit race discrimination by prohibiting African-American employees from wearing dreadlocks.  See EEOC v. Catastrophe Management Solutions, No. 14-13482, 2016 WL 4916851.

Catastrophe Management Solutions (“CMS”) interviewed Chastity Jones for a position as a customer service representative.  During the interview, Ms. Jones wore a blue business suit and wore her hair in short dreadlocks.  During  a meeting after the interview, CMS’s Human Resources Manager offered a group of employees (including Ms. Jones) positions as customer service representatives.  After that meeting, Ms. Jones spoke to the HR Manager about scheduling issues, and the HR Manager informed Ms. Jones that CMS could not hire her “with the dreadlocks.”  Allegedly, the HR Manager said:  “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.”  When Ms. Jones refused to cut her hair, the HR Manager requested that Ms. Jones return her hiring paperwork.

CMS had a race-neutral grooming policy which read as follows:  “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines…. [H]airstyle should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable[.]”

The United States Equal Employment Opportunity Commission sued CMS for race discrimination under Title VII of the Civil Rights Act of 1964.  The Eleventh Circuit recognized that the concept of “race” today might be different from the concept of race when Title VII was enacted in 1964.  Indeed:  “It may be that today ‘race’ is recognized as a ‘social construct’ … rather than an absolute biological truth.”  Catastrophe Management Solutions, 206 WL 4916851 at *7.  Nevertheless, the Court declined to adopt a more-contemporary concept of race:  “But our possible currently reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago.  ‘That race is essentially only a very powerful idea and not at all a biological fact is, again, an emerging contemporary understanding of the meaning of race.'”  Id.

Utilizing a contemporary concept of race, the EEOC argued that a ban on dreadlocks amounted to race discrimination:  “black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race.”  Id. at *9.  But, the Eleventh Circuit rejected that argument by relying upon cases from the 1970’s holding “that Title VII protects against discrimination based upon immutable characteristics.”  Id. at *8.

The court then extended that rationale to find that “Title VII protects person in covered categories with respect to their immutable characteristics, but not their cultural practices.”  Id. at *9.  The court concluded:  “That dreadlocks are a ‘natural outgrowth’ of the texture of black hair does not make them an immutable characteristic of race.”  Id.  “[D]iscrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”  Id.

Catastrophe Management Solutions should not be interpreted as carte blanche authority for employers to terminate African-American employees on the basis of hairstyle.  In fact, the Eleventh Circuit recognized that “the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one ….”  Nevertheless, this case provides employers with increased protection if they possess a race-neutral grooming policy which is uniformly enforced without regard to race.

 

“Everybody’s Doing It” Does Not Prove a Title VII Claim

Robert C. Lockwood
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Race discrimination
Race discrimination is not proven by arguing that “everybody’s doing it.”

Judge Scott Coogler recently granted summary judgment in favor of an employer in a Title VII race discrimination case where the employee used a generalized claim of “everybody’s doing it” to try to prove her case.  See McGuire v. 3M Company, No. 6:14-cv-02015-LSC, 2016 WL 4073961 (N.D. Ala. Aug. 1, 2016).  Arzealar McGuire claimed that she was terminated by 3M Company because of her race.

As part of a typical Title VII case, an employee like Ms. McGuire is required to show that a “comparator” (typically another white employee) committed similar misconduct and was treated more favorably.  In this case, Ms. McGuire was terminated based upon her disciplinary history, which included three suspensions in 26 months.

To meet her burden of demonstrating a comparator, Ms. McGuire generically alleged that fourteen other other employees committed misconduct, but were not disciplined as severely.  But, she presented no documentation to back-up those claims.  Thus, Judge Coogler found that she could not meet her burden of proof:

The only evidence McGuire presents on these fourteen employees is her deposition testimony. However, McGuire either admits she does not know the disciplinary histories of thirteen of the employees or she does not provide any evidence of their disciplinary histories. Specifically, McGuire has not provided any evidence of an employee who was disciplined for sleeping on the job, making sexually inappropriate comments, falsifying overtime records, engaging in sustained attendance misbehavior, violating company badge policy, and leaving work in violation of the company’s relief policy. Because McGuire had an extensive disciplinary history and it contributed to her termination, a proper comparator should likewise have an extensive disciplinary history.

McGuire, 2016 WL 4073961 at *3.

Ms. McGuire’s tactic is one that we see frequently in employment discrimination cases.  Employees claim that “everybody’s doing it” and thus claim that multiple “oomparator” employees establish their discrimination claim.  Fortunately, many judges in Alabama have required more than such generalized claims in order to prove discrimination.  Instead, plaintiffs like Ms. McGuire are required to identify comparators who engage in similar misconduct and similar amounts of misconduct.

“Cleaning House” OK Under Title VII

Robert C. Lockwood
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Employer "Cleaning House" - Equal Employment Opportunity Claims
Cleaning House Does Not Violate Equal Employment Opportunity Provisions of Title VII

A managerial decision to “clean house” in order to eliminate workplace disruptions is a legitimate, nondiscriminatory reason for terminating an employee under Title VII.  Holmes v. Jefferson County Pub. Sch. Dist., No. 15-15198, 2016 WL 4056029 (11th Cir. 2016).  Holmes arose from the Information Technology department of the Jefferson County School District.  That department hired a black female, April Holmes, in 2009 and a black male, Kenneth Mitchell in 2011.  A white male, Kenneth Stubbs, had worked in the department for roughly 30 years.  In 2011, substantial conflicts arose between Ms. Holmes and Mr. Stubbs, leading to two meetings with the District’s Superintendent.

In 2012, a new Superintendent, Albert Cooksey, was elected.  Mr. Cooksey was aware of the conflicts in the IT department and decided, in his words, to “clean house.”  He terminated Ms. Holmes and Mr. Mitchell.  Mr. Cooksey retained Mr. Stubbs because of his greater level of experience and because Cooksey believed Stubbs was not a part of the conflicts.  Ms. Holmes sued and claimed that her termination was based upon her race in violation of Title VII of the Civil Rights Act of 1964.

The Eleventh Circuit found that Mr. Cooksey’s desire to “clean house” was a legitimate, nondiscriminatory reason for terminating Ms. Holmes. The court also found that Ms. Holmes failed to meet that reason “head on” and rebut it.  Indeed, the court found “Ms. Holmes does not dispute that there was conflict within the department.  Nor does she dispute that Mr. Stubbs had more experience than she did.”

The court recognized that termination of the department’s two black employees, while retaining the lone white employee, was a potential issue.  Nevertheless, the court found that “the sample size is too small to conclude without more that this shows causation rather than coincidence.  Further, the record demonstrates that the first person Mr. Cooksey recommended to fill one of the recently vacant IT technician positions was African-American.”

Holmes recognizes that an employer’s desire to limit workplace disruptions is a valid defense to Title VII claims.  Obviously, that defense is rebuttable by the employee, so employers should not generically rely upon a desire to “clean house” as a defense in all Title VII claims.  Instead, if an employer possesses adequate documentation of the workplace disruptions, it will possess a good starting point for obtaining dismissal of the Title VII claims.

Judge Acker Continues To Limit Wrongful Termination Claims

Robert C. Lockwood
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Wrongful Termination
Wrongful Termination Claims

In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon  , Judge Acker Softens Position.  In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.  Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.

On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims.  So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.

Undeterred, Judge Acker issued a new opinion last Friday:  Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016).  Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage.  Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete.  As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation.  Effectively, he found that each of those claims cancelled the others out.

Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis.  For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.

 

Title VII or a Bull Fight?

Robert C. Lockwood
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Title VII or Bull Fight?
Sometimes Title VII litigation is like a bull fight.

In an entertaining opinion, Judge Virginia Emerson Hopkins used a bull-fighting analogy in the course of denying a motion to dismiss employment discrimination claims.  See Harris v. Koch Foods of Ashland, LLC, No. 1:15-CV-2181-VEH, 2016 WL 3997247 (N.D. Ala. Jul. 26, 2016).  Tracy Harris sued her employer for violations of Title VII and the Equal Pay Act.  Judge Hopkins entered her opinion after Koch moved to dismiss the third complaint filed by Harris.

Like a matador waving her red cape, Harris’s filing of a new complaint induced Defendants … to charge in with a partial motion to dismiss in the hope that they could gore a count or two.  But la matadora is too swift, or at least the bulls charged too soon.  The motion will be DENIED.

Judge Hopkins’s opinion proceeds to take swipes at both parties — criticizing a “bizarre argument” by the defendants, while calling certain assertions by the plaintiff “ludicrous” and “laconic.”  At the end of the day, however, Judge Hopkins found sufficient detail and legal merit in Ms. Harris’s third complaint to survive the motion to dismiss.

An Employer’s Demand That More Work Be Performed is Not Discriminatory

Robert C. Lockwood
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businessmen-42691_640

The Eleventh Circuit Court of Appeals recently held that “[a]n employer’s demand that more work be done — even if unjustified — is not discriminatory.”  Schrock v. Publix Super Markets, Inc., No. 15-14631, 2016 WL 3425124 at *2 (11th Cir. Jun. 22, 2016).  Employers might be tempted to overreact:  “Great! I can load up my employees with huge amounts of work and it will never be discriminatory.”  Nevertheless, I suggest that employers should proceed cautiously.

Context is everything.  The Eleventh Circuit’s issued its holding when discussing a Title VII retaliation claim.  To successfully state a claim for retaliation, an employee must be opposing conduct by the employer which violates Title VII.  And, the employee must have a good faith, reasonable belief that the employer’s conduct violates Title VII.

In Schrock, the employee complained to her supervisors that she was being required to manage a bakery without sufficient time to do so.  When she was later terminated from employment, she claimed that her employer was retaliating for her complaints about being overworked.  She apparently never claimed that she was overworked because of her race, gender or other protected characteristic.  Therefore, she could not successfully pursue a retaliation claim, because a mere complaint about overwork is not protected by Title VII.

The employee in Schrock might have possessed a better claim if she complained:  “You are overworking me because I am African-American.”  But, Title VII will not provide an employee with protection for merely saying:  “You are working me too much.”

 

Constructive Discharge Claims Just Got Easier for Employees

Robert C. Lockwood
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Supreme Court

Yesterday, the United State Supreme Court released a decision which makes it easier for employees to win constructive discharge claims.  See Green v. Brennan, No. 14-613, 2016 WL 2945236 (May 23, 2016).  A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that any reasonable person would be compelled to resign their job.

The issue in Green concerned the time limitations period in constructive discharge claims.  Generally, employees are required to file a charge of discrimination with the EEOC within 180 days of the last discriminatory act.  Under that general rule, some courts required employees to file their EEOC charge within 180 days of the last “bad act” by the employer.  Other courts permitted the employee to file within 180 days of deciding to resign.  Typically, the resignation decision occurred later than the last “bad act” and employees in some courts found their claims barred by the limitations period.

In a 6-2 decision, the Supreme Court found that the limitations period begins to run on the date that the employee declares his resignation — not on the date of the last discriminatory act.  As a result of that decision, employers and employees now have clarity on the limitations period in constructive discharge cases.  But, employees are also given a longer limitations period, which removes one potential defense for employers.

EEOC Weighs In On Transgender Bathrooms

Robert C. Lockwood
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The United States Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet on Bathroom Access for Transgender Employees.  It can be found here: Fact Sheet On Bathroom Access for Transgender Employees

The EEOC’s Fact Sheet seems to be a response to laws recently passed by States and even local governments.  Among other things, those laws restrict the ability of transgender people to use restrooms consistent with their gender identity.  Thus, the EEOC plainly warns that “state law is not a defense” to a transgender discrimination claim under Title VII of the Civil Rights Act of 1964.

Other than providing a warning to governmental entities, the Fact Sheet basically provides a summary of the EEOC’s previous rulings on transgender discrimination, which hold:

 

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

In addition to the EEOC’s Fact Sheet, President Obama’s Executive Order 13672 prohibits transgender discrimination by federal contractors.  The Department of Labor’s Fact Sheet interpreting that order provides:

Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.

That fact sheet can be found here:  DOL Fact Sheet on LGBT Discrimination

 

I previously discussed LGBT issues here:  EMERGING LGBT ISSUES IN THE WORKPLACE.  The EEOC is clearly looking to enforce Title VII to prohibit discrimination on the basis of gender identity or sexual orientation.  At this point, the best advice for employers is to ensure that transgender employees are provided equal access to restrooms consistent with their gender identity.

 

Mishandling Company Funds Is Grounds For Termination

Robert C. Lockwood
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Cash

The Eleventh Circuit Court of Appeals recently recognized that repeated mishandling of company funds in a short time period is a legitimate basis for terminating an employee.  Chukes v. Sailormen, Inc., No. 15-12192, 2016 WL 1534071 (11th Cir. Apr. 15, 2016).

Chukes began work as an Assistant Manager for a Popeye’s restaurant franchise in September 2012.  By October 26, 2012, her restaurant’s safe was short on cash at least three occasions.  On that date, the franchise suspended Chukes and launched an investigation into the missing funds.  The supervisor conducting the investigation testified that he intended to convert the suspension to termination if the investigation determined that Chukes was responsible for the shortages.

The day after her suspension, October 27, 2012, Chukes claimed that another employee was terminated after rejecting sexual advances by a co-worker.  Thereafter, the supervisor conducting the investigation determined that Chukes was taking money from the safe, and Chukes’ employment was terminated.  Chukes sued for discrimination and retaliation under Title VII of the Civil Rights Act of 1964.  Those claims were dismissed in the United States District Court and the Eleventh Circuit affirmed dismissal.

Chukes tried to claim that her termination was discriminatory because funds were missing following the shift of another manager.  The Eleventh Circuit rejected that argument and relied upon the requirement that “the quantity and quality of the comparator’s misconduct be nearly identify to prevent courts from second-guessing employer’s reasonable decisions and confusing apples and oranges.”  The comparator had worked as a manager for years and money was only found missing once during his tenure.  In contrast, money was found missing three times during Chukes’s two-month employment period.

Federal courts regularly reject attempts by employees to compare their misconduct to that of other employees who are not terminated, because the comparator employees are not “nearly identical.”  Indeed, the “nearly identical” standard also played a role in a recent decision dismissing claims against Hyundai in Alabama: Eleventh Circuit Affirms Dismissal of Retaliation Claim Against Hyundai  Thus, the Chukes and Hyundai cases demonstrate the importance of implementing uniform standards of punishment for similar conduct by similar employees.