Download 9 th Circuit, March 8, 2007

EEO UPDATE
April 2008
Thomas M. Daniel
Burlington Northern and Santa Fe
Railway v. White
(U.S. Supreme Court, 2006)
 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 caseby-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.
 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
(9th 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
(9th 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.
(9th 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
(8th 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
(9th 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.
(9th 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 11th 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
(9th 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
(9th 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.