Claims of sexual harassment typically involve the behavior of fellow employees.   But, an employer’s potential liability for sexual harassment also extends to conduct by a non-employee, such as a customer, client, or patient, that creates a hostile work environment.

The principle of employer liability for harassment by a non-employee third-party presents particular challenges to the long term care industry.   The problem occurs when the harasser is a resident or patient with dementia or other diminished mental capacity.   Physical violence or sexually inappropriate is sometimes associated with Alzheimer’s or other forms of dementia.   In many cases, courts have recognized behavior that might qualify as sexual harassment in other contexts does not create a hostile work environment for care facility employees directly caring for such patients, because the employee should reasonably expect it to occur.  The unique circumstances involved in caring for dementia patients essentially makes tolerating at least a certain level of bad behavior part of the job.

However, a recent case from the Fifth Circuit (covering Texas, Louisiana, and Mississippi) shows that long term care employers do not always get the benefit of the doubt when it comes to a dementia patient’s alleged sexual harassment of a care center employee.   The case is Gardner v. CLC of Pascagoula, LLC, (5th Cir. 2-7-2019).  The plaintiff in Gardner was a Certified Nursing Assistant (CNA) at an assisted living facility.   She was experienced in working with mentally disabled patients, and was trained in de-escalation and defense tactics for aggressive patients.  Gardner often worked with patients who wither “either physically combative or sexually aggressive.”

The harasser was an elderly resident who lived at the facility for eight years.   Gardner worked with him for three of those years.  The resident had a reputation for groping female employees and becoming physically aggressive when reprimanded.   He was diagnosed with dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.   He was reported to have a “long history” of violent and sexual behavior toward both patients and staff.

Gardner alleged she experienced on a daily basis the resident physically grabbing her and repeatedly making sexual comments and requests.   She documented the resident’s behavior in his chart and routinely complained to supervisors about it. The resident was at one time transferred to a different wing of the facility because of his behavior, but the employer refused the Gardner’s request to be reassigned so she would not have to care for him.  When she attempted to discuss her concerns about the resident’s behavior with her supervisor, there was evidence Gardner’s supervisor laughed and told her to “put [her] big girl panties on and go back to work.”

The facility terminated Gardner after an incident that occurred while she was helping the resident in question attend a therapy session.   As Gardner was trying to help the resident out of bed, he tried to grope her, then punched and pushed her.  Although Gardner disputed it, the facility claimed she swung her fist over the resident’s head and her arm brushed the top of his head in the process.  As she left the resident’s room Gardner uttered an expletive about refusing to do anything else for the resident.  Gardner sustained serious enough injuries in the incident that she went to the ER and ended up missing three months of work. Shortly after returning from leave, the facility fired her for insubordination (refusing to work with the resident), attacking the resident, and violating his rights by swearing in front of him.

The trial court dismissed Gardner’s hostile work environment claims.  The court reasoned that the resident’s “harassing comments and attempts to grope and hit are [not] beyond what a person in Gardner’s position should expect of patients in a nursing home.”  However, the Court of Appeals reversed the grant of summary judgment, concluding that “the evidence of persistent and often physical harassment…is enough to allow a jury to decide whether a reasonable caregiver on the receiving end…would have viewed it as sufficiently severe or pervasive, even considering the medical condition of the harasser.”  The facts significant to the court of appeals seemed to be the frequency of the resident’s conduct (daily), its severity (physical sexual assault and violent outbursts), and its impact on Gardner’s employment (she was on medical leave for three months because of the injuries she sustained in the altercation).  It probably didn’t help that a supervisor was dismissive of Gardner’s concerns.

While the facts in Gardner may show extreme and unusual patient behavior, it nonetheless establishes a troubling precedent for long term care facilities where dementia patients live.   Unlike an employee who can be abruptly terminated, residents in care facilities, particularly those receiving Medicaid benefits, have rights that prevent them from being immediately discharged.   Sometimes such residents have the right to hearing before an administrative law judge, who may or may not agree the patient can be evicted, or who may delay the eviction.  In the meantime, these residents must be cared for.  Depending upon the size of the facility and the number of care giving employees, simply reassigning an employee away from the difficult resident on a permanent basis could be quite difficult.    Long term care facilities will have to be more attentive than ever to balancing the rights of caregiving employees to be free from harassing conduct while also providing adequate care for difficult residents whose bad behavior is often the result of their medical condition.

For an industry that already faces a challenging regulatory and legal environment, the prospect of more sexual harassment jury trials arising out of the behavior of dementia patients is not a welcome development.

It is a truism that employers prefer to win discrimination cases on summary judgment rather than go to trial.    In most cases, winning on summary judgment means convincing the judge there is not enough evidence that would allow the plaintiff to prove “pretext.”   (Pretext: “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Merriam-Webster Online Dictionary).    With pretext, the plaintiff goes to trial; without pretext, the plaintiff goes home and the employer wins.

Continue Reading Recent Ruling from Eighth Circuit Shows an Employer’s Shifting Reasons for Decision May Not Be Evidence of Pretext

Employers that accommodate employees’ temporary disabilities should consider extending the practice to nursing mothers returning to work following maternity leave.   That’s the lesson of a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit  (Hicks v. City of Tuscaloosa, Alabama, 11th Cir., 9/7/2017)    In Hicks, a City police department’s insistence that an officer return to the beat rather than to allowing her work a temporary desk job resulted in a substantial plaintiff verdict.

Continue Reading Court Affirms Six-Figure Verdict to Nursing Mother Who Quit Because of Employer’s Failure to Provide Suitable Breastfeeding Accommodation

Whether Title VII protects employees from discrimination based upon sexual orientation is one of the most contentious employment law issues being litigated in the federal courts today.    EEOC contends Title VII covers sexual orientation, and a handful of district courts have agreed.  But, as of today, every U.S. Court of Appeal to consider the question has ruled that sexual orientation is not a protected status under Title VII.

The Eleventh Circuit is the most recent to weigh in, with a new opinion issued March 10. (Evans v. Georgia Regional Hospital, No. 15-15234).    In a 2-1 ruling, the court held that a female security officer who alleged she was discriminated against because she was a lesbian could not sue for sex discrimination under Title VII.   District Court Judge Martinez, sitting by designation, wrote the opinion of the court, which is not particularly noteworthy and breaks no new ground in its analysis of the issue.   What makes this ruling interesting, however, is the other two judges on the panel wrote separate opinions: Judge Pryor a special concurrence, and Judge Rosenbaum a dissent.  Both the special concurrence and the dissent articulate in a fairly clear way the legal analysis supporting the competing arguments for and against extending Title VII coverage to include sexual orientation.   In so doing, these judges have drawn a map for other circuits and perhaps the Supreme Court to follow, regardless on which side those other courts will rule.

Approximately twenty one states, including Iowa, have amended their civil rights statutes to cover sexual orientation as a protected status.   The language of Title VII, on the other hand, remains essentially the same as when Congress passed the law in 1964.  It prohibits an employer from discrimination in employment because of a person’s “race, color, religion, sex, or national origin.”    Even though Congress has not amended Title VII to include sexual orientation as one of the protected statuses, proponents of broader coverage contend sexual orientation discrimination is a form of sex discrimination, and is therefore already covered under the law.

How does discrimination because of “sex” include “sexual orientation”?   The argument traces its origins to a 1989 Supreme Court decision, Price Waterhouse v. Hopkins.  The Supreme Court ruled Price Waterhouse violated Title VII when it refused to offer partnership to a female senior manager, based in part on the male partners’ beliefs that she was too aggressive and did not act sufficiently feminine.   Price Waterhouse established the rule that an employer may not make employment decisions based upon “sex stereotypes.”  (A more thorough discussion and analysis of the expanding notions of sex discrimination under Title VII is contained in my article published in the January 2017 edition of DRI’s For The Defense, “Pushing the Boundaries of Sex Discrimination Under Title VII: Does Discrimination “Because of Sex” Cover Gender Identity and Sexual Orientation”).

In her dissent in the Evans case, Judge Rosenbaum contends Price Waterhouse “substantially broadened the scope of actionable discriminatory stereotyping under Title VII.   Before Price Waterhouse, Judge Rosenbaum noted that liability for sex stereotyping was “ascriptive”.  That means an employer could violate Title VII by ascribing certain characteristics to individual women based upon a stereotype, without considering whether any individual woman actually possessed the characteristics.   For example, an employer may assume women employees with young children have more family care obligations than men with young children, and as a result give more or better opportunities to men.

Price Waterhouse, however, recognized for the first time a form of what the judge calls “prescriptive” stereotyping.  Judge Rosenbaum explained that, under the prescriptive type, Title VII imposes liability if an employee does not satisfy the discriminator’s stereotyped “prescription” of “what the employee of that protected group should be or how the employee should act.” (emphasis added).   Unlike ascriptive,which attributes stereotyped characteristics to a female employee which she may or may not possess, prescriptive stereotyping treats the female employee less favorably because she fails to conform to the group’s prescribed stereotype.

As it relates to sexual orientation, Judge Rosenbaum contends one of the prescribed stereotypes of a woman is that she is sexually attracted only to men.   Therefore, if an employer terminates a lesbian because she is sexually attracted to women, the employer has acted based upon her failing to conform to the prescribed gender stereotype.  In this view, sexual orientation discrimination is by definition discrimination based upon a gender stereotype, which under Price Waterhouse is discrimination based upon sex.

Not surprisingly, Judge Pryor holds a more limited view of the doctrine of gender non-conformity.    The concurrence distinguishes between an employee’s gender-based “behavior” and her gender “status”.   Claims based upon gender non-conformity focus only on whether the employee’s behavior failed to conform to how the employer believes someone of that gender should act.  Judge Pryor rejects the dissent’s view that Title VII liability exists when an employee’s status deviates from the stereotype of what a person should be.     A person who experiences sexual orientation discrimination may also experience discrimination based upon the failure to conform to a gender stereotype.  But, it is also true one can occur without the other, and as such the concepts must be treated as legally distinct.    To treat the concepts as equivalent, Judge Pryor argues, imposes a false stereotype on gay individuals; namely, that their behavior always deviates from a certain prescribed gender stereotype.

Judge Pryor also rejects the dissent’s view that gender non-conformity, in and of itself, results in Title VII liability.    In the concurrence’s view, gender non-conformity under Price Waterhouse is not a revolutionary new doctrine, but is simply an evidentiary approach to proving sex discrimination.  In other words, an employer’s reliance on gender stereotypes is evidence the employer holds males and females to different standards of behavior.   Discrimination based upon gender non-conforming behavior is used as a proxy for discrimination because of sex.   But, a Title VII plaintiff must always prove that one of the enumerated statuses, in this case sex, is the basis for the employment decision.   Sexual orientation is not a protected status under Title VII; therefore, sexual orientation alone, without evidence the person’s behavior failed to conform to gender stereotypes, does not result in liability.

The competing approaches of the concurrence and dissent are ultimately based competing judicial philosophies.  Specifically, is establishing a new protected status under Title VII the role of Congress or the Courts?   Judge Pryor contends that, because Congress has not made sexual orientation a protected class, the arguments the dissent makes should be made to Congress and not the court.   Judge Rosenbaum disagrees.  During the fifty years since Title VII was enacted, the courts have expanded the meaning of discrimination because of sex more broadly that the law’s sponsors probably intended.  Based on this view, extending its meaning to cover sexual orientation is the next logical step.

The Eleventh Circuit’s opinion is not the last word on this subject.  There are similar cases pending in the Second and Seventh Circuits, and it is likely those courts will issue opinions later this year.  As Congress is not likely to amend Title VII any time soon, there is little doubt the Supreme Court will be asked to take up this issue soon.

The headline was Fox News agreed to pay $20 million to its former anchor Gretchen Carlson to settle a sexual harassment lawsuit against its former CEO Roger Ailes.   This is an extraordinary settlement, and not just because of the amount.   Fox News agreed to a public settlement (usually they are confidential); publicly apologized to Ms. Carlson (usually the employer denies the settlement is an admission of liability); agreed to pay only two months after the suit was filed; and paid even though Fox News itself was not a defendant in the case (Ms. Carlson sued only Ailes personally).

Ailes adamantly denied the allegations when the lawsuit was filed, and still maintains his innocence.   But, in forcing Ailes out as CEO, followed by a settlement of this magnitude, Fox News is essentially admitting Ms. Carlson’s allegations about the culture of sexual harassment and retaliation at the network were true.1

As is often the case with big money settlements in high profile cases, there has been lots of commentary about its broader significance.  One prominent employment law blogger opined the settlement heralds a new era of sexual harassment claims, as aggrieved employees will expect big money for their claims as well.   Others are concerned Fox’s admission it had a problem in its workplace culture is evidence that sexual harassment remains pervasive despite years of awareness and anti-harassment training.

I’m not convinced the Fox News settlement is so consequential, at least for most employers.   The facts that make this case so noteworthy are unique–a former Miss American turned news anchor against a media icon who ran a right leaning and popular news network.

Nonetheless, there is a lesson here that is not necessarily new, but bears reminding.   That is, clear policies, effective procedures, and regular training are important to prevent harassment and protect the company from claims.  But, they make no difference if not followed when the alleged perpetrator is powerful, popular, or influential in the organization.   A common temptation for other managers and even boards of directors is to look the other way, deny, or cover it up when a figure like Ailes is accused of sexual harassment or other misconduct.   Since the Carlson lawsuit was filed, two former employees disclosed they received six and seven figure settlements years before from Fox for sexual harassment claims allegedly involving Ailes.   Yet, he continued as CEO apparently without consequence.   Even if Ailes could be given the benefit of the doubt after one such claim, two (and perhaps more) should have raised red flags there was a ticking time bomb in the CEO’s office.

Contrast the Ailes case with Hewlett Packard’s quick ouster of its prominent CEO after an investigation revealed he had engaged in an inappropriate relationship with an outside contractor.    HP’s stock fell over 8% the day after, but in the end the company maintained its integrity.   Whether Fox News can do so remains to be seen.

Image Credits: from Shutterstock, Creative Commons license, Young Business Woman Counting Money

Employment discrimination lawsuits are filed because something bad happened to an employee that the employee did not want. Usually it’s a termination, a demotion, or discipline. Sometimes it’s harassment. Other times a refusal or failure to hire or promote. It’s always something adverse. That’s why they are called “adverse employment actions”.

So, what happens in an employee applies for a transfer to a new position within the organization   He thinks it will be better for his career. Someone else gets the job, but that person doesn’t work out. Employee gets another opportunity and is moved into the new position.   Unfortunately, the employee is not well suited for job, and ultimately gets terminated.   Now he claims the employer discriminated against him by transferring him to the new position.    He can’t sue can he? He asked for the transfer.   

A recent ruling from the Sixth Circuit seems to stand the whole idea of “adverse employment action” on its head. In Deleon v. Kalamazoo County Road Commission (6th Circuit, January 14, 2014) the Court held a lateral transfer from one department to another qualifies as an adverse employment action, even though the Plaintiff had applied for the job nine months previously.

The Plaintiff, a 53 year old Hispanic male of Mexican descent, was employed by the Kalamazoo County Road Commission. For 13 years he served as an area superintendent, which involved supervising road maintenance activities, road crews, and overseeing repairs.

In 2008, a vacancy arose for the position of Equipment and Facilities Superintendent. Plaintiff applied for the position because he anticipated it would result in a pay increase and would be better for his career and advancement.    He was not offered the job, primarily because of his deficient computer skills. But, the person who took the job left shortly thereafter, and an external candidate offered the position declined it. Thus, nine months after Plaintiff had applied, the job was again open, and he was transferred there. 

Unfortunately for Plaintiff, the deficient computer skills that kept him from getting the job in the first place proved to be his undoing. Plaintiff’s first evaluation in the new position rated him acceptable in most critical areas but he was deficient in technology. He complained that he was unhappy with his new position.   He did not like the fact that the working condition exposed him to loud noises and diesel fumes.   Plaintiff inquired why he had been involuntarily moved from a position where he was performing well to one that was more hazardous. Plaintiff was later hospitalized for what he attributed to work induced stress and eventual mental breakdown. He took eight months of leave under FMLA because of his mental breakdown. By the time he was released to return to work, his employment had been terminated. Plaintiff alleged the transfer was a deliberate attempt to set him up to fail because of his race, national origin, and age.

The trial Court granted Defendant’s Motion for Summary Judgment on the basis that Plaintiff did not suffer an adverse employment action. The Court of Appeals reversed, but with one judge dissenting.    In evaluating whether the transfer was an adverse employment action, the majority discounted the fact that Plaintiff had previously sought the job, concluding that the conditions at the time the transfer actually occurred made it involuntary.   The majority pointed to the fact that Plaintiff did not receive the raise he expected, and was not satisfied with the more hazardous working conditions.   The test, according to the majority, was not whether the employee requested or did not request the transfer, but whether the conditions of the transfer would have been objectively intolerable to a reasonable person.

The dissenting judge disagreed that Plaintiff’s transfer could be considered an involuntary one.   According to the dissent, giving an employee what he wanted, and in what he persisted in seeking when at first he did not succeed, cannot an adverse employment action.  

Unfortunately, rulings like this one contribute to employer cynicism about the employment discrimination laws and tend to undermine what the law seeks to accomplish.   The dissent pointed out this perverse result, noting that an interpretation of the law “that subjects employers to liability coming and going—whether after granting employee requests or denying them-will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace.”     

U.S. District Judge Linda Reade has become the scourge of the EEOC.   On August 1 Judge Reade entered an order sanctioning EEOC nearly $4.7 million for attorney’s fees and expenses CRST Van Expedited incurred to defend itself against a largely frivolous complaint alleging that as many as 270 female employees were subject to a pattern and practice of sexual harassment.

This is the second time Judge Reade has ordered sanctions in this case.     She sanctioned EEOC $4.5 million in 2010 after granting summary judgment to CRST on the pattern and practice claim, dismissing 154 of the individual claims because of lack of evidence or the EEOC’s failure to investigate, and dismissing 98 claims as a discovery sanction. 

 

The Eighth Circuit reversed the attorney fee award in 2012. The court of appeals found that Judge Reade should not have granted summary judgment with respect to claims of two of the individual plaintiffs. The court found there were genuine factual disputes on the two claims and therefore they were entitled to a trial.   Because two plaintiffs remained, the court concluded CRST was not a “prevailing party”, at least not yet.   The court left open the possibility CRST could pursue its fee claim after the final two claims disposed. 

 

The case was remanded back to Judge Reade to litigate the claims of the two remaining plaintiffs.   After remand, EEOC withdrew its claim on behalf of one of the remaining plaintiffs, and agreed to a $50,000 settlement for the other.   Notably, the settlement agreement did not preclude CRST from pursuing attorneys’ fees and costs.  

 

CRST claimed it was entitled to recover attorneys’ fees because, with the exception of a single settlement, it prevailed on all the other claims.   EEOC contended, on the other hand, that its recovery on behalf of one of the plaintiffs was enough to defeat CRST’s “prevailing party” status.  Judge Reade concluded a single settlement of $50,000 after claiming as many as 270 plaintiffs were sexual harassment victims, plus the unreasonable pursuit of multiple groundless claims, warranted a finding that CRST was a “prevailing party.”

 

Although it is likely EEOC will appeal this award, it is refreshing that a judge recognized and appropriately responded to the EEOC’s aggressive tactics and the failure to follow the law it is charged with enforcing.    Unfortunately, EEOC’s advantage in resources compared to many private litigants allows them to sometimes get away with these tactics.  Many defendants can’t afford to fight these battles and therefore settle even questionable cases simply to avoid going head to head with EEOC.  Hopefully this ruling will cause EEOC to be more circumspect about the claims it pursues, and perhaps may embolden employers to fight back when the agency overreaches.

Hard to believe it’s August already.   It has been a busy summer in the employment law world while we have been away, and there is a lot to catch up on for Iowa employers.  For starters, here is a re-cap of three of the summer’s significant court decisions and one notable but not so significant one.   Almost all of these case are good news for employers.   We plan to follow-up in coming posts with more details and analysis.

1.             Who is a "Supervisor", and Why Does it Matter Anyway?    Whether an employee is a supervisor can be important in many different contexts, but the one in Vance v. Ball State University  (U.S. Supreme Court, 6/24/13) involved an employer’s liability for race based harassment.    If the alleged harasser is a "supervisor", the employer in many cases is strictly liable for the harm caused by the harassment, regardless whether anyone else in management knew about it.   On the other hand, the employer is not liable if the harasser is not a supervisor, unless management knew or should have known about it.    According to the Supreme Court, a "supervisor" for purposes of determining legal liability for unlawful harassment includes only those employees who have the power to make tangible employment decisions, such as hiring, firing, reassignment, promotion, etc.  The ruling in this case also applies to any other unlawful harassment under Title VII, such as sex, national origin, or religion.   It probably applies to age and disability related harassment as well. 

2.       What is the standard for proving retaliation under Title VII:  In University of Texas Southwestern Medical Center v. Nassar (U.S. Supreme Court, 6/24/13), the Court held the plaintiff must prove the employer would not have taken adverse action against the employee “but for” the employee’s engagement in protected activity.    Before Nassar, some trial courts had applied a lesser burden on plaintiffs, requiring a them to prove only that the protected activity was "a motivating factor" in the employment decision.    There is a big difference a "but-for" standard compared to "a motivating factor."   With the latter, the employee must prove only that the unlawful reason played a part in the decision, whereas the former requires that it be the determining factor. 

3.       Punitive Damages are Not Recoverable under the Iowa Civil Rights Act.   The Iowa Supreme Court so ruled in Ackelson v. Manley Toy Direct, L.L.C.  (Iowa Supreme Court 6/21/13).   Employers should breathe a big sigh a relief with this ruling.

4.       Nelson v. Knight reprise.   Remember this case from last December involving the Fort Dodge dentist who fired one of his assistants because he was attracted to her?   The Iowa Supreme Court granted a motion to re-hear the case, which almost never happens.   The court then issued a new opinion, but the result was the same—no sex discrimination by the dentist.  The difference this time was three justices wrote a separate opinion the purpose of which seemed to be to limit the precedential value of the case going forward.    As we stated after the first opinion, the Nelson case is not likely to have significant impact on discrimination jurisprudence.   It’s not clear why the three concurring justice felt compelled to write a separate opinion after re-hearing.   

Last week, the co-founder of a Minnesota based organization called “Gender Justice” accused the Iowa football team of “pink shaming” its opponents and engaging in what she calls “cognitive bias.”    Jill Gaulder, who also happens to be a former UI professor, claims the infamous pink visitor’s locker room at Kinnick Stadium is “sexist”, “homophobic”, and may subject the University to legal liability under Title IX of the federal Civil Rights laws.

The pink locker room was the brainchild of legendary former coach Hayden Fry. When he took over the perennially losing program in 1979, Fry was looking for every edge available. He had once read that pink had a calming effect on people, and thought the pink locker room would calm the Hawkeye’s opponents. But, Gaulder claims Coach Fry also believed many people associate pink with girls’ bedrooms, and consider pink to be a “sissy” color.   Gaulder contends the pink walls send the message that it’s “bad to be a girl”, because femininity is supposedly associated with weakness.   

 

It’s easy to laugh off Ms. Gaulder’s claims as a publicity stunt. Most people understand the pink locker room is a joke designed to get attention and distract the opposing team. The anti-discrimination laws don’t protect people from being offended by a subliminal message associated with certain colors (assuming there was such a message here, which is debatable).   The law provides a remedy only when a person is subject to some concrete adverse action, or is denied a right or benefit because of gender (or other protected characteristic). Who are the victims here? The Michigan football team? Ohio State? Perhaps Minnesota, which has won only 3 games out of 16 played in Iowa City during the pink locker room era.    

 

But, Ms. Gaulder cannot be so easily dismissed to the extent she is trying to advance the proposition that employment decisions should not be based upon stereotypes, whether gender or otherwise.   Many courts, including our own Eighth Circuit, have recognized that an employer is liable under Title VII not just for employment decisions based upon gender, but also based upon stereotypes about how an employee of a particular gender should act.   To the extent that a person’s language, dress, or color choices impact employment decisions, employers are well advised to proceed with caution so as to avoid decision making based upon sterotypes.

Title VII requires an employee alleging unlawful discrimination or retaliation to file an administrative charge with the EEOC (or a similar a state or local agency with authority to seek relief) before bringing a suit in court.   EEOC is charged with investigating claims and pursuing conciliation between the employee and employer where appropriate. The purpose of the administrative scheme is to avoid litigation as a first step in the process. It allows a neutral third party to investigate the claim and work toward resolution. Litigation is a last resort for claims that cannot be resolved, or where the employee decides to retain private counsel and pursue the claim him or herself.

The Supreme Court has deemed that EEOC investigation and conciliation is essential to Title VII’s enforcement scheme, and therefore has strictly enforced its requirements.   It is not a mere procedural hoop through which a claimant has to jump. Courts have held that, unless EEOC has the opportunity to investigate and conciliate a particular claim, Title VII’s process would be frustrated.   Thus, for example, an employee may not file an EEOC charge alleging sex discrimination and then sue for sex discrimination and disability discrimination.   EEOC could not have investigated or conciliated the disability discrimination claim because it was not part of the charge, and therefore the employee barred from suing on such a claim.

Despite the strict enforcement of the administrative process, for many years there seemed to be a loophole in the Eighth Circuit for claims in which an employee alleged a retaliatory termination followed closely on the heels of the employee’s filing of a discrimination charge. In Wentz v. Maryland Casualty Co., (8th Cir. 1989), Wentz filed an EEOC charge alleging age discrimination, and was terminated one day later. He did not file a second charge alleging retaliation, but nonetheless in a subsequent lawsuit claimed his termination was in retaliation for filing the age discrimination charge.   In evaluating whether Wentz exhausted administrative remedies for the retaliation claim, the test applied was whether the claims in the lawsuit were “like or reasonably related to” charges that were timely filed with EEOC.   In the Wentz case, the court held the retaliation claim should not be dismissed because is “grew out of the discrimination charge filed with the EEOC.” 

The Eighth Circuit closed this loophole in a recent case involving almost identical circumstances. (Richter v. Advance Auto Parts (8th Cir. 8/1/2012)). Richter filed an EEOC charge on August 18, 2009. On the part of the form asking about the basis of the discrimination, she checked “race” and “sex”, but did not check “retaliation”. She informed a regional vice president about the EEOC charge on August 23, and was terminated on August 25.    Richter did not fie another administrative charge nor amend the charge that was filed August 18. Nonetheless, when she filed a lawsuit, she alleged her termination was in retaliation for filing the August 18, 2009 administrative charge.   The district court dismissed the retaliation claim for failure to exhaust administrative remedies, which was affirmed on appeal.

In its opinion in Richter, the court did not expressly state that Wentz was overruled, but in effect that is what occurred.  The Court said it had “considerably narrowed [its] view of what is ‘like or reasonably related’ to the originally filed EEOC allegations.”    Strict application of the statutory text requires an employee to file a charge for each discrete act of discrimination.  In other words, retaliation that occurs after an employee files an EEOC charge is separate and distinct from the discrimination alleged in the charge, and thus requires a new or amended charge.

One judge dissented, arguing that strict application of the exhaustion requirement in these circumstances was a “needless procedural barrier”, and there were policy reasons for following a standard that judges could apply more flexibly.  The majority rejected that view, concluding that strictly following the text was the best guarantee of evenhanded administration of the law. 

Richter is an important reminder to employers and defense counsel that the administrative charge still matters, and the failure to exhaust defense remains potent in the right circumstances.   Some may claim it is unfair for the employer to rely upon a techincal defense that avoids facing the merits of a retaliation claim.  However, given the expense and risks of defending these claims through trial, there is nothing unfair about expecting the employee to follow the law’s procedural requirements before suing.