I frequently tell clients: “There’s a difference between what you know and what you can prove.” A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.” Even so, the maxim is really the foundation for our court system. Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court. The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).
In Mells, an employee sued for racial discrimination arising from denial of a promotion. The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants. Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel. Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.
The Eleventh Circuit rejected that argument: “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.” The Court found no evidence that the interview panel was biased or swayed by the supervisor. As a result, the Court affirmed dismissal of her claims. Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.
Mells provides two lessons. First, it demonstrates the benefits of using interview panels in hiring and promotion decisions. If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel. Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.
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.
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. SeeMcGuire 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.