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Use of the Term “Boy” Creates Race Discrimination Problems

January 19, 2018Robert C. Lockwood

boy African American context Alabama Employment Law — Depending on context, calling an African-American employee “boy” might be discriminatory.

When dealing with workplace conduct, context is everything. Recently, the Eleventh Circuit affirmed dismissal of a race-based retaliation claim, even though a supervisor called an African-American employee “boy.”

At the outset, let me stress that employees should be strongly discouraged from using the term “boy” in the workplace. This term has created a very difficult area of the law. “[T]he use of the word ‘boy,’ when directed by a non–African American to an African–American, is potentially racially hostile.” Craig v. Alabama Power Co., 2010 WL 11561855 (N.D. Ala. Sep. 21, 2010). Even so, the Supreme Court has explained that a supervisor referring to an African–American plaintiff as “boy” “will not always be evidence of racial animus” and that such factors as “context, inflection, tone of voice, local custom, and historical usage” are consulted to assess whether it is evidence of discriminatory animus in a particular case. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).

The importance of context is evident in the Eleventh Circuit’s recent decision in Bell v. City of Auburn, No. 17-11597, 2018 WL 388484 (11th Cir. Jan. 12, 2018). In Bell, Shawn Bell claimed that the was terminated in retaliation for complaining to human resources that his supervisor called him “boy.” But, Mr. Bell was required to give deposition testimony as part of his law suit. During that deposition, Mr. Bell said that “the comment discredited his manhood, that he was a man, and that he did not think a man should talk to another man like that.” When asked if the supervisor was “being racial” when he called him boy, Bell answered: “No.”

To succeed on a retaliation claim, Mr. Bell was required to show that he subjectively believed that he was reporting racial discrimination when he complained to human resources. But, the Eleventh Circuit found that Mr. Bell’s own testimony demonstrated that he did not possess such a subjective belief. Instead of believing that the term insulted his race, Mr. Bell believed it insulted his manhood.

The City of Auburn may have dodged a bullet in the Bell case. To avoid these types of issues, I strongly recommend that employers discourage the use of the term “boy” in the workplace.

Employees Suing For Discrimination Can’t Ignore Bad Comparators

December 19, 2017Robert C. Lockwood

comparators discrimination Alabama Employment Law — Employees suing for discrimination can’t focus solely on comparator employees who were treated better. Instead, if comparator employees were also treated worse, there may be no viable claim for discrimination

United States District Court Judge Madeline Haikala recently dismissed a discrimination claim because the employee failed to show that the majority of comparators (i.e., similarly situated co-employees outside the protected class) were treated better than him. See Burton v. Miles College, No. 2:14-CV-02471-MHH, 2017 WL 6336327 (N.D. Ala. Dec. 12, 2017). Abraham Burton was employed by Miles College as an assistant dormitory director. He sued the college for gender discrimination and age discrimination, and claimed that Miles paid women and younger employees more than him.

In most employment discrimination cases, employees like Mr. Burton try to use circumstantial evidence to prove discrimination. Employees can sometimes succeed in a circumstantial case by offering evidence of “comparators” — similarly situated individuals of the opposite sex or similarly situated, substantially younger employees. Comparators must be “similarly situated in all relevant respects.” That is, they must work in the same position with the same experience and same supervisors. Usually, if an employee like Mr. Burton identified a comparator who was paid more favorably, a judge would find an inference that the difference in treatment was the result of discrimination.

Mr. Burton pointed to two comparators — a younger assistant dormitory director and a female assistant dormitory director — who were paid more than him. But, Judge Haikala refused to rely solely upon those comparators when determining whether discrimination occurred. Instead, she relied upon a case from the Third Circuit Court of Appeals to hold that “[a] plaintiff may not pick from a valid set of comparators only those who allegedly were treated more favorably, ‘and completely ignore a significant group of comparators who were treated equally or less favorably than [he].'” Burton, 2017 WL 6336327 at *3 (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 646-47 (3d Cir. 1998).

In this case, Miles College paid one female assistant dormitory director better than Mr. Burton, but paid five other female assistant dormitory directors worse than Mr. Burton. Similarly, the college paid one younger assistant dormitory director better than Mr. Buton, but also paid three substantially younger assistant dormitory directors better. Thus, Judge Haikala concluded: “These circumstances do not give rise to an inference of discrimination ….”

It will be interesting to see if other judges in Alabama adopt Judge Haikala’s rationale. For the time being, however, she has provided employers with an additional way to fight employment discrimination claims.

Supreme Court Won’t Review 11th Circuit LGBT Decision

December 11, 2017Robert C. Lockwood

Supreme Court LGBT Alabama Employment Law — The United States Supreme Court Declined to Hear an LGBT Discrimination Case

This morning, the United States Supreme Court announced that it would not review a decision from the Eleventh Circuit Court of Appeals, which held that sexual orientation is not protected by Title VII of the Civil Rights Act of 1964.

Jameka Evans is lesbian. After she was terminated from her position as a security guard, she filed a pro se (without a lawyer) lawsuit claiming that she was terminated because of her sexual orientation. Her case drew the attention of the Lambda Legal Defense and Education Fund and the United States Equal Employment Opportunity Commission, which helped her to argue the case as amicus curiae (friends of the court). A panel of the Eleventh Circuit ruled that Title VII of the Civil Rights Act does not protect against sexual orientation discrimination. But, consistent with numerous prior decisions, the Court also held that Ms. Evans could sue for discrimination based upon “gender nonconformity.”

Lambda Legal asked the Supreme Court to review the Eleventh Circuit’s decision, but the Court declined to do so this morning. Here’s an article from The Hill discussing the decision: Supreme Court Refuses to Hear LGBT Workplace Discrimination Case.

The Evans decision is consistent with a long line of precedent in the Eleventh Circuit. In fact, I previously discussed this issue here: LGBT Issues In the Workplace. Nevertheless, there may be a trend developing in other courts to protect sexual orientation under Title VII. In April, the Seventh Circuit Court of Appeals ruled that Title VII applies to such claims. Those types of conflicts between Circuit Courts of Appeals often lead to decisions by the Supreme Court. Thus, it is possible that the Supreme Court will be asked to review this issue again in the future.

Halloween Costume or Transgender Presentation?

October 31, 2017Robert C. Lockwood

Halloween transgender Alabama Employment Law 11th Circuit — An employee’s Halloween “costume” might actually be their attempt to present at work as transgender person.

Happy Halloween! To celebrate the occasion, I did a little research on the intersection of employment law and Halloween in the Eleventh Circuit, and decided to discuss Glenn v. Bumbry, 663 F.3d 1312 (11th Cir. 2011). Glenn involves a transgender employee who was born as a man, but presented at work as a woman on Halloween.

Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel (“OLC”) in 2005. When hired, Glenn was presenting as a man, but had been diagnosed with Gender Identity Disorder. In 2006, Glenn informed her direct supervisor that she was transsexual and in the process of becoming a woman. On Halloween, OLC employees were permitted to attend work wearing costumes. Thus, Glenn came to work presenting as a woman. The head of the OLC, Sewell Brumby, told Glenn that her appearance was not appropriate and told her to leave the office. “Brumby stated that ‘it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,’ and that a male in women’s clothing is ‘unnatural.'” In 2007, Glenn informed her supervisor that she would begin coming to work as a woman and was also changing her name. Brumby then terminated Glenn because he viewed the gender transition as “inappropriate,” “disruptive,” a “moral issue,” and “it would make Glenn’s coworkers uncomfortable.”

Glenn sued for sex discrimination and won at the trial level. Brumby appealed to the Eleventh Circuit Court of Appeals. In Glenn v. Bumbry, the Eleventh Circuit issued its first opinion finding that discrimination against a transgender person is impermissible. The Court found that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”

I previously discussed discrimination based upon gender stereotypes here. So, if your office permits employees to dress-up for Halloween, and one of your employees shows up dressed as a member of the opposite sex, they may be protected by Title VII of the Civil Rights Act of 1964.

Boss Have It Out For You? Too Bad, Says 11th Circuit

October 11, 2017Robert C. Lockwood

Boss Eleventh Circuit Alabama Employment Law Title VII discrimination — Even if the boss has it out for you, it is very difficult to win a gender discrimination law suit.

Does your boss have it out for you? The opening sentences of a recent Eleventh Circuit opinion summarize a dilemma confronting many employers:

George Dagnesses believed his boss had it out for him. She belittled him and accosted him, and regularly made negative remarks about men. When his boss eventually fired him, Dagnesses sued his former employer … for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ….

Dagnesses v. Target Media Partners, No. 16-17802, 2017 WL 4329719 (11th Cir. Sep. 29, 2017).

Mr. Dagnesses lost his law suit, even though he produced substantial evidence that his supervisor, Linda Coffman, was hostile towards him. She repeatedly belittled and second-guessed him, and on one occasion poked him the chest. Another female supervisor testified that Coffman’s treatment of Dagnesses made her uncomforatable, but did not believe Coffman disliked Dagnesses because he was a man.

Coffman terminated Dagnesses employment and provided evidence that her decision was based upon insubordination, inappropriate communication, failure to follow instructions and poor attitude. Dagnesses’ discrimination claim failed because he could not identify any similarly situated female employees, who engaged in similar misconduct, and were treated better than him.

The Eleventh Circuit’s analysis included one interesting bit of dicta that employees might attempt to use in the future. Dagnesses attempted to compare himself to a female employee who was “discharged due to dissatisfaction with the quality of her work.” The Court distinguished that female employee by saying that “quality of work” is a “lesser degree of misconduct” than “insubordination, inappropriate communication, failure to follow instructions and poor attitude.” If a future employer fires an employee for “quality of work,” but retains employees with “bad attitudes,” I would expect the employee to argue that they were terminated even though they engaged in a “lesser degree of misconduct” than employees who were retained.

George Dagnesses’ boss may have had it out for him. But, Dagnesses failed to prove that the reason she had it out for him was his gender. In short, a boss can treat employees poorly, but won’t violate Title VII unless the reason for his/her treatment is a bias against race, gender or another protected class.

Employee Can’t Sue for Getting the “Silent Treatment”

September 13, 2017Robert C. Lockwood

silent treatment discrimination Alabama Employment Law employee — An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you: “If you can’t say something nice, say nothing at all.” In the workplace, this is sometimes great advice. Rather than unleashing your true feelings on a co-worker, you can elect to ignore him. Nevertheless, you can’t make everybody happy. So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against. The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated. She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012. She then took disability leave in June and July 2012. Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs. Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work. In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign. But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions. As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.

Employer “Sick and Tired” of EEOC Charges Not Liable for Retaliation

August 21, 2017Robert C. Lockwood

"sick and tired" EEOC retaliation Title VII — Sometimes, an employer “sick and tired” of EEOC complaints can fire an employee without violating Title VII’s anti-retaliation provisions.

The Eleventh Circuit Court of Appeals recently found that an employer who was “sick and tired” of EEOC complaints was not liable for retaliatory discharge of an employee. Matthews v. City of Mobile, No. 16-13155, 2017 WL 3500052 (11th Cir. Aug. 15, 2017). Cassandra Matthews was employed by the City of Mobile, Alabama as a Public Safety Dispatcher II in the Mobile Police Department’s Communications Unit. When the City received 911 calls, Matthews was responsible for identifying emergencies, dispatching law enforcement officers and notifying officers of any updated information provided by callers.

On November 21, 2012, Matthews dispatched police officers to the scene of a fight. Immediately after dispatching officers, she took a personal phone call. A 911 operator attempted to inform Mathews that a weapon was reported at the scene. But, Matthews did not provide that updated information to the dispatched officers.

Thereafter, Matthews met with Mobile’s Chief of Police, Michael Williams. Williams transferred Matthews to a Traffic Unit while the Department conducted an investigation of her failure to update the officers. During the meeting, Williams mentioned EEOC complaints previously filed by Matthews and said that he was “sick and tired” of her EEOC complaints. Matthews testified that Williams had her EEOC complaints on his desk during the meeting. Matthews had filed: (1) an EEOC charge in October 2011; (2) a second EEOC charge in February 2012; (3) a federal discrimination law suit in May 2012; (3) a third EEOC charge in October 2012; and, (4) an internal complaint of harassment and discrimination in November 2012.

On January 24, 2013, Matthews received a hearing before a Trial Board of three members — each appointed by Chief Williams. That Board recommended her termination for neglect of duty.

The Eleventh Circuit found that Matthews’ termination was not retaliation for her EEOC complaints. Instead, the Court found that Matthews failed to demonstrate that the reason for termination (taking a personal call while on an emergency dispatch) was a false reason. The Court further found that Williams'”sick and tired” statements were essentially absolved by the involvement of the Trial Board. Even though Williams appointed the Trial Board, Matthews offered no evidence that the Board knew of her EEOC complaints, and the Court concluded that it would be impermissibly speculative to impute any such knowledge.

Matthews represents the extremely rare case where an employer can make reference to an employee’s EEOC charges during termination, and manage to avoid liability for retaliation. For other employers, my advice is to avoid any reference to past discrimination complaints if an employee engages in misconduct worthy of termination.

EEOC Cannot Revive Claim Barred By Statute of Limitations

August 8, 2017Robert C. Lockwood

EEOC statute of limitations — The EEOC cannot revive a discrimination claim that is barred by the statute of limitations.

The Eleventh Circuit Court of Appeals recently held that the United States Equal Employment Opportunity Commission (“EEOC”) cannot revive a discrimination claim that is barred by the statute of limitations. See Stamper v. Duval County School Bd., No. 15-11788, 2017 WL 3033148 (11th Cir. Jul. 18, 2017).

In 2007, Stamper filed a charge of race and disability discrimination. On February 26, 2009, the EEOC issued a dismissal and notice of rights (also known as a “right to sue letter”) concluding that it could not establish a violation of the statutes. Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act both required Stamper to file a law suit (if any) within 90 days of the right to sue letter. Yet, Stamper did not file suit.

Instead, on July 9, 2011, Stamper filed a request for reconsideration with the EEOC. On December 15, 2011, the agency sent Stamper a “Notice of Revocation,” which attempted to vacate the dismissal of her first charge and revoked the letter terminating processing of that charge. Stamper then filed a second charge of discrimination, and she received a second notice of right to sue on November 5, 2012. Stamper then filed suit within 90 days. A trial court found that her lawsuit was untimely and the Eleventh Circuit affirmed.

The Court relied upon the agency’s own regulations. In particular, 29 C.F.R. § 1601.19(b) allows the EEOC to reconsider a decision to dismiss a charge of discrimination. But, that regulation only affects the 90-day statute of limitations if the EEOC reconsiders within 90 days of its dismissal decision. In short, if the EEOC reconsiders within 90 days, the right to sue is revoked and the statute of limitations is re-set. But, if the EEOC reconsiders after 90 days, the right to sue is not revoked and the statute of limitations is not affected.

In this case, the EEOC reconsidered Stamper’s right to sue more than two years after the fact. As a result, the Eleventh Circuit found that it did not properly revive Stamper’s claims, and affirmed dismissal.

Employee Ordered to Pay Employer’s $235,000 Legal Bill

June 26, 2017Robert C. Lockwood

Fees frivolous employment discrimination claim — An employee was ordered to pay $235,249.80 in legal fees after filing a frivolous discrimination claim.

The Eleventh Circuit Court of Appeals just gave employees a reason to think twice before filing a frivolous law suit. The Court required an employee to pay his employer $235,249.80 for filing a frivolous employment discrimination claim. See Hamilton v. Sheridan Healthcorp, Inc., No. 16-10667, 2017 WL 2665040 (11th Cir. Jun. 21, 2017)(“Hamilton II“). This was the second time that Dr. Dwain Hamilton filed an appeal with the Eleventh Circuit.

In 2015, the Court affirmed dismissal of Dr. Hamilton’s discrimination claims against his employer, Sheridan Healthcorp. See Hamilton v. Sheridan Healthcorp, Inc., 602 Fed. App’x 485 (11th Cir. 2015)(“Hamilton I“). In Hamilton I, Dr. Hamilton claimed that he was transferred from a night shift position to day shift, and later terminated, because of his race. But, the trial court and the Eleventh Circuit both found that he was unable to establish a basic, prima facie, case of discrimination. Dr. Hamilton also attempted to claim that he was terminated in retaliation for complaining about discrimination. Yet, the Eleventh Circuit found that he offered no evidence to support that claim, and actually changed his testimony in an after-the-fact attempt to create a claim.

After prevailing, Sheridan Healthcorp asked the trial court to award it $235,249.80 in attorneys’ fees spent defending Hamilton I. Employers rarely win such requests, because fees can only be awarded if an employee’s claim is “frivolous, unreasonable, or groundless.” Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). Courts are usually reluctant to call any claim “frivolous,” but that’s exactly what the trial court did in Hamilton II. The Eleventh Circuit reviewed the trial court’s decision and affirmed in Hamilton II.

Hamilton II provides a warning to employees: Think carefully before filing that employment discrimination claim. If a court finds that claims are frivolous, then the employee is potentially on the hook for the employer’s legal fees.

Here’s One Strategy for Challenging EEOC Document Requests

April 11, 2017April 11, 2017Robert C. Lockwood

EEOC documents — In appropriate circumstances, employers can challenge the EEOC’s requests for documents

The United States Equal Employment Opportunity Commission is required to review many claims for discrimination, including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In the course of investigating discrimination claims, the EEOC frequently asks employers to produce documents related to the claim. If the employer refuses to produce documents, the EEOC can issue an administrative subpoena and ask federal courts for assistance in enforcing the subpoena.

A Wendy’s restaurant franchisee in Tennessee recently won a victory for employers in resisting a far-reaching document request. EEOC v. Southeast Food Svcs. Co, No. 3:16:MC-46-TAV-HGB, 2017 WL 1155040 (E.D. Tenn. Mar 27, 2017). In that case, the franchisee offered a promotion to an employee, but required the employee to sign a release of all potential claims in order to receive the promotion. Even though she possessed no claims, the employee refused to sign the release. As a result, the franchisee withdrew the promotion offer. Thereafter, the employee claimed that withdrawal of the promotion was discriminatory. The franchisee admitted the reasons for withdrawing the promotion, but denied any discrimination.

While investigating the employee’s claim, the EEOC submitted a document request and a subpoena seeking the identity and contact information of all: (1) current and former employees since December 4, 2012; (2) current and former employees who signed a release since December 4, 2012; and, (3) current and former employees promoted since December 4, 2012. When the franchisee refused to provide that information, the EEOC filed an application in federal court for enforcement of the subpoena.

The EEOC’s subpoena authority is broad. It can obtain any information that is : (1) related to unlawful employment practices; and, (2) relevant to the charge under investigation. 42 U.S.C. § 200e-8(a). Most disputes with the EEOC focus on the relevancy requirement. In the Wendy’s case, the Court found that the EEOC did not meet its burden of demonstrating relevance. While the request for information might be relevant to other potential claims, it was not relevant to this case, where it was undisputed that the promotion was denied for failure to sign the release.

The Tennessee court relied heavily upon the Eleventh Circuit’s decision in EEOC v. Royal Caribbean Cruises, 771 F.3d 757 (11th Cir. 2014). In that case, the Eleventh Circuit noted that the term “relevant” has been generously construed in the EEOC’s favor, but that it should not be so broadly construed as to render the relevancy requirement ” a nullity.” Id. at 760. The Eleventh Circuit recognized that, sometimes, broad-reaching requests might be necessary, “where statistical data is needed to determine whether an employer’s facially neutral explanation for the adverse decision is pretext for discrimination.” Id. at 761. But, like the Wendy’s court, the Eleventh Circuit found that expansion of an investigation for discovery of potential, other claims was not a “relevant” reason.

Employers should carefully consider whether to resist a request for documents from the EEOC. In many cases, the EEOC requests legitimate, “relevant” information related to a charge of discrimination, and employers should comply with information requests in those cases. But, in some cases, the EEOC is clearly attempting to expand the scope of an investigation beyond the parameters of a particular case. The Wendy’s case and the Royal Caribbean case provide employers with good arguments for contesting those types of subpoenas.

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