Crystal Henley enrolled in the Kansas City Police Academy in September 2005. By November 8, she was forced to leave and was not able to complete her training to become a police officer.   During her short time at the Academy, Henley claims she was treated more harshly than male trainees, subject to sexual harassment, and even physical assault.   

Almost five years later, in October 2010 Henley filed a lawsuit against the Kansas City Board of Police Commissioners and several of the employees and officials of the police academy, alleging sex discrimination and harassment in violation of her right to equal protection under the Constitution.   The defendants asked the court to dismiss the suit because Henley had failed to first file an administrative charge with the EEOC, as is required to pursue a discrimination and harassment claim under Title VII.   The reason she could not file an EEOC charge, of course, was because too much time had passed—a complainant has only 300 days after the alleged discriminatory conduct. The District Court agreed with the defendants that Henley failed to exhaust her administrative remedies, reasoning that Henley could not “circumvent Title VII requirements by only pleading violations of the Equal Protection Clause [of the Constitution].”  

The Court of Appeals reversed the dismissal of Henley’s gender discrimination claims.  (See ruling here)   While acknowledging that Title VII procedures must be followed for violations of its terms, in Henley’s case, she was relying upon the Equal Protection Clause as the source of her right to be free from gender based discrimination.    If a right is secured by the Constitution independent of Title VII, the Court reasoned, a plaintiff does not have to rely upon Title VII’s remedies to pursue such a claim.   

The Court did not find that Henley actually asserted a plausible claim for gender discrimination based upon the Equal Protection clause. The case was remanded back to the district court to consider that question.   Actually proving the defendants violated her Constitutional rights may be an uphill battle. Nonetheless, this ruling opens new doors gender based discrimination claims for public employees. The most significant practical impact is that potential claims once considered stale because more than 300 days had passed may have new life because of longer limitations periods for Constitutional claims. Public employers should be alert that this case presents yet another employment risk when taking adverse action against employees. 

Very seldom is there overt evidence an employer discriminated on the basis of race, sex, disability, etc.   Most of the time plaintiff employees have to prove their claim by showing they were treated less favorably than similarly situated employees who were not in the protected class.   For example, if there is evidence the employer imposed lesser discipline on white employees than a black employee for similar conduct, it may be sufficient to create an inference the black employee was treated differently because of race. A hotly contested issue in most discrimination cases— in discovery, at the summary judgment stage, and during trial—involves determining whether the circumstances of these “other” comparator employees are similar enough to the plaintiff’s circumstances to justify using them as evidence of unlawful discrimination.

In a recent Eighth Circuit decision (Davis v. Jefferson Hosp. Assoc.), the Court reaffirmed the long-standing rule that comparing the plaintiff to any other employee outside the protected class is not enough. Rather, he must show the other employees are “similarly situated in all relevant aspects.”    The individuals used for comparison “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.”

The plaintiff in Davis was a staff physician at Jefferson Hospital.   The hospital’s credentialing committee investigated the plaintiff because of complaints of abusive and offensive behavior toward staff and patients, as well as problems with quality of care issues, such as keeping accurate and timely charts and responding to calls for patient assistance.   The credentials committee ultimately recommended the plaintiff’s privileges be revoked after finding his treatment in four patient death cases fell below the standard of care. The hospital’s board voted unanimously to revoke the plaintiff’s privileges, citing three reasons: poor quality of patient care, improper medical documentation, and unprofessional behavior.  

Plaintiff, who is black, sued the hospital for race discrimination. In support of his claim, plaintiff presented evidence that three non-African-American physicians used used profanity and made derogatory comments in front of hospital staff, but were not subject to discipline or a corrective action plan like he was.    Plaintiff also produced affidavits of eleven other persons who testified that white physicians had also behaved inappropriately toward hospital staff but were not disciplined.    The court ruled that this evidence was not enough to generate an inference plaintiff was discriminated against because of his race, because there was no evidence that any of the white physicians in question had record keeping or quality of care issues as did plaintiff.    In other words, while these other physicians had acted unprofessionally without discipline, the fact that they lack similarity in two of the other reasons for plaintiff’s discharge was not enough to prove race was a motivating factor. Case dismissed.

Takeaway from the Davis case:  when terminating an employee or taking other adverse action, it is important to identify and document at the time all the reasons for the action.    That is the best way to determine whether you are treating similarly situated employees in a consistent manner, and avoids the problem of identifying reasons after the fact.

Earlier this week Iowa District Court Judge Robert Blink granted judgment for the State of Iowa in a high profile class action race discrimination lawsuit.   (Pippen v. State of Iowa, link here). The plaintiffs alleged that 37 departments in the State’s executive branch maintained hiring and promotion practices that had an adverse disparate impact on African Americans. The plaintiffs claimed the State favored white applicants and employees over equally or even better qualified black applicants and employees in hiring and promotion decisions.    The class included approximately 6,000 employees, former employees, and applicants, and sought over $70 million in damages.

Although the State won the case in the trial court, the plaintiffs plan to appeal. More importantly, it appears the plaintiffs’ lawyers in Pippen view the case as an opportunity to fundamentally reshape the landscape of discrimination litigation in this state. Indeed, Judge Blink noted in his opinion that one of the stated purposes of the plaintiff class was to “broaden the horizons of Iowa’s legal landscape premised on their belief in our state’s progressive stance on civil rights.”   

There are three novel aspects of the case that warrant close scrutiny during the appellate process because of the potential impact on future discrimination cases: 1) the scope of the class; 2) the nature of the challenged employment practices; and 3) the type of evidence the plaintiffs relief upon, most particularly the concept of so-called “implicit bias.” 

The first unique aspect of the case was its scope: it covered every executive branch department.    Each of the 37 departments exercises its own hiring authority. There are more than 700 diverse job classifications and 2000 supervisors that have authority in the hiring process. The sheer number of different hiring and evaluation processes within each department, and for each job, made the case unwieldy. 

The “glue” the plaintiffs relied upon to tie these various processes together was the State’s statutory merit based employment system. The goal of the merit system is to hire and promote employees solely on the basis of merit and fitness, as ascertained by examinations or other appropriate screening methods.    There is another agency, the Department of Administrative Services (DAS) which oversees the merit employment system for all executive branch departments.   In Wal-Mart v. Dukes, the famous employment class action case the U.S. Supreme Court decided last year, the Court ruled that a proposed class of millions of current and former employees at thousands of Wal-Mart Stores across the United States was too large and disparate to qualify as a class action.   Notably, Judge Blink had already ruled that the plaintiff class in Pippen satisfied the criteria to proceed as a class action, notwithstanding the Wal-Mart decision.

The second novel aspect was the nature of the employment practice the plaintiffs claimed was discriminatory.    Disparate impact is a form of unintentional discrimination.    The plaintiffs are required to prove that a particular employment practice that is racially neutral on its face—say a test–impacts African Americans more adversely than whites.    In this case the “particular” employment practice at issue was not particular at all.   The plaintiffs did not claim a single test, screening mechanism, or interview process had disparate impact.   Rather, they alleged a systemic failure within the executive branch to adequately enforce the state’s merit based employment system.   Specifically, the plaintiffs attacked the fact that lower level managers have discretion to make subjective judgments about an applicant’s qualifications.  In essence, Plaintiffs claim the State should have done more to ensure that individual managers were complying with the policies requiring equal opportunity. Unlike most discrimination cases that are based upon the commission of an act, Pippen was based upon the State’s alleged omissions.

The third and most troubling aspect of the case (from an employer’s perspective) was the type of evidence the plaintiffs relied upon to prove that the discretion afforded to supervisors resulted in a disparate racial outcome. That evidence was the concept of “implicit bias”.    Plaintiffs presented the testimony of Dr. Anthony Greenwald, a psychology professor at the University of Washington.    Dr. Greenwald coined the term “implicit bias”, which the court characterized as “a state of racial inclination which is manifested without the person’s slightest appreciation that they are acting on it.”   Dr. Greenwald apparently claims that even people who do not intend to discriminate are likely to have implicit bis, and “unthinkingly they may discriminate without recognizing they are doing that.”   Dr. Greenwald opined that most groups who have been tested “showed a 70 percent automatic preference for whites over blacks.”    His opinion is apparently based upon a test called the “Implicit Association Test”, a computer based test that requires a subject to associate a verbal or visual stimulus viewed on a monitor with either “pleasant” or “unpleasant” words. 

Judge Blink rejected Dr. Greenwald’s opinion that implicit bias of supervisors tainted most of the subjective discretionary employment decisions in the State’s executive branch.  It is not clear whether the State challenged the admissibility of Dr. Greenwald’s opinions, and given that the trial was to the court and not a jury such challenge may have been fruitless anyway.   But, this is not the last time employers will see attempts to use so-called implicit bias to prove discrimination, both in class actions and otherwise.    Novel expert testimony is often rejected when it is first tried, but if plaintiff’s lawyers keep trying, they ultimately may find a court that will admit such evidence.   This type of testimony could be particulary damaging in a jury trial.  If employers can be held liable for discrimination based upon the subconscious thoughts of their managers, that the managers themselves don’t know exist, it will turn discrimination litigation completely on its head.  

Implicit bias was really the heart of the plaintiffs’ claim in Pippen, and it will be important for defendants to vigorously oppose the admission of this type of expert testimony in future cases.  Judge Blink’s opinion provides a road map for doing just that.

For additional commentary and analysis of the Pippen case, I recommend the following:

Workplace Class Action Blog

Stephanie Thomas, The Proactive Employer

Nyemaster Blog

Boston Employment Discrimination Blog

Des Moines Register

Two years ago, Judge Linda Reade of the U.S. District Court for the Northern District of Iowa made headlines when she dismissed an EEOC lawsuit on behalf of 270 current and former female long haul drivers of Cedar Rapids based CRST Van Expedited.   What was notable about the decision was not so much the dismissal itself as the order that EEOC pay $4.5 million of the Defendant’s attorneys fees.   (See our post about the decision here).

The blockbuster sanction against EEOC ended with a whimper last week, when a three judge panel of the Eighth Circuit reversed the attorney fee award.   

While the attorney fee reversal is no doubt a significant blow to the Defendant, CRST actually prevailed on most aspects of the appeal.   The attorney fee award was reversed because the Court of Appeals also ruled Judge Reade should not have granted summary judgment with respect to claims of two Plaintiffs, and thus was no longer a "prevailing" defendant.  However, the grant of summary judgment was affirmed on the dismissals of 268 other purported plaintiffs. 

Other than the attorney fee issue, there are two important takeaways from the Circuit Court’s opinion.   First, the Court of Appeals held the claims of 67 plaintiffs were properly dismissed because EEOC did not investigate their claims or provide CRST the opportunity to conciliate before filing suit.   The Eighth Circuit agreed with Judge Reade that Title VII does not allow EEOC to use the discovery process in a lawsuit to fish for new complainants who had never filed an administrative charge. Unless the employer is given notice of the identity of claimants and provided the opportunity to conciliate with respect to those particular claimants during the administrative phase of the process, no lawsuit will be permitted.  

Second, the court affirmed Judge Reade’s holding that the claims of three plaintiffs were barred because they failed to disclose the existence of their sexual harassment claim when they filed for bankruptcy protection. The Court relied upon the doctrine of judicial estoppel, which holds that judicial acceptance of a party’s position in one proceeding bars that party from taking an inconsistent position in another proceeding. In short, by failing to disclose the existence of the sexual harassment claim in the bankruptcy petition, the plaintiffs could not then claim in another court they had a such claim.  The panel did not, however, extend the bar of judicial estoppel to claims the EEOC was pursuing in its own name, even if based upon conduct of the individual plaintiffs who were subject to judicial estoppel. 

This case is not yet over. The two plaintiffs whose cases were reinstated will now have the opportunity to prove their claims in court.   The decision must still be seen as a victory for CRST, however, because the scope of the case is much more manageable than it was before. 

We have written many times here about an employer’s obligation to reasonably accommodate an employee’s sincerely held religious beliefs, so as not to unlawfully discriminate on the basis of their religion. Indeed, according to EEOC statistics, claims of religious discrimination by employees are increasing at a higher rate than most other forms of discrimination.

Much less discussed, however, is an employer’s right to the free exercise of religion in the face of employment laws that conflict with religious tenets.    There are countless institutions in the U.S., including hospitals, schools, charities, fraternal organizations, and colleges and universities, that are affiliated with a religious organization.   Collectively, these institutions employ hundreds of thousands (if not more) people.  Not all of these employees practice the religion with which their employer is affiliated, and many of them serve people of all backgrounds and faiths.   Thus, there can be tension when the law grants rights to employees that conflict with the rights of their religiously affiliated employers to adhere to religious teachings.   Jesus famously declared that we should “render unto Ceasar what belongs to Caesar, and to God what belongs to God."   But how are these conflicts worked out in light of modern day employment laws?

Just this month, a pair of significant government decisions spotlight the potential conflicts between religious employers and secular laws.    On January 12, the Supreme Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that a Lutheran School’s decision to terminate a teacher cannot be challenged under the Americans with Disabilities Act (ADA). The Court unanimously ruled the Lutheran School was exempt from the ADA under what is known as the “ministerial exception”.   In essence, a religious institution has a First Amendment right to decide who is or is not suitable to serve its ministerial functions without court interference. 

Just as the Supreme Court’s decision was sinking in, on January 20, the U.S. Department of Health and Human Services issued a final rule mandating that employer provided health insurance cover abortion, sterilization, and contraception, all with no co-pay or other out-of-pocket cost to the employee. The HHS rule contains an exception for religious institutions, but defines that term very narrowly.   The only religiously affiliated employers who can opt out of the mandatory coverage are those primarily employ and serve people of the same faith. As a practical matter, this rule does not accommodate religiously affiliated hospitals, charities, and educational institutions.   Indeed, one commentator complained the exception is so narrow that Jesus himself would not qualify for it.

In a thoughtful piece, law professor David Skeel writes that while the HHS rule flouts the spirit of Hosanna-Tabor, it may very well comply with its letter, if narrowly construed.  In other words, while the Court’s ruling was on the side of greater religious accommodation, it is possible to interpret the opinion as applying only to those religious organizations whose purpose is the “inculcation of religious values”.   Such a construction would apply to churches and some Catholic schools, but would leave out hospitals and other institutions that serve the general public.  Unfortunately, the administration’s decision to draw the religious exemption in the HHS rule as narrowly as possible only invites litigation, and ensures these issues will be battled in the courts for years to come.  Professor Skeel believe the courts are the worst place to resolve these difficult accommodation issues.   He proposes that the better approach is to hash them out legislatively, or even better, allow the affected groups to work out in good faith practical accommodations. Amen.

Last week a federal judge in the Southern District of New York Judge dismissed the EEOC’s long running sex and pregnancy discrimination lawsuit against financial media company Bloomberg, LP.    EEOC claimed Bloomberg engaged in a “pattern and practice” of discrimination against pregnant women and mothers returning from maternity leave by reducing their pay, demoting them in title, removing responsibilities, and subjecting them to stereotypes about female caregivers.

What is notable about the case is not the judge’s conclusion based upon the evidence, but the fact that she took the unusual step of offering some “concluding remarks” highly critical of the EEOC’s approach to the case.   Judge Preska wrote: “[a]t bottom, the EEOC’s theory of this case is about so-called “work-life balance”…"It amounts to a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance."   But, she noted, despite the fact that it may be desirable, the law does not mandate “work-life balance”. “The law simply requires fair treatment of all employees. It requires holding employees to the same standards.”   In a company like Bloomberg, which explicitly makes all-out dedication to the company its expectation, “making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers….”    As a final bombshell, the judge concluded:

Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most “family-friendly” company. The fact remains that the law requires only equal treatment in the workplace. Employment consequences for making choices that elevate non-work activities (for whatever reason) over work activities are not illegal.

Predictably, Judge Preska’s opinion unleashed a firestorm of both support and criticism.  One commentator claimed the judge has “contempt for women with kids who have ambition”, while others recognized the fact that the balance between work and family is ultimately a personal decision that all employees make, regardless of gender. 

Coincidentally, the Bloomberg decision follows closely on the heels of an announcement by the Iowa Attorney General that the State paid $180,000 to settle a sex discrimination lawsuit by employee who alleged she was terminated because of family care obligations.  The plaintiff alleged her boss (also a woman) made unfavorable comments about the work commitment of mothers with children.  The reasons given for the termination was that the plaintiff lacked dedication to her job because she was unwilling to work the necessary long hours.  She claimed she was replaced by a man who worked the number of hours she did without complaint from the supervisor. 

These two cases illustrate the increasing trend of family care discrimination claims.  Indeed, EEOC has made such claims an important part of its enforcement agenda.   Bloomberg is an important reminder, however, that equal treatment does not impose on employers the obligation to accommodate an employee’s personal life choices.  At the same time employers must ensure they avoid making decisions based upon gender stereotypes, and hold all employees, regardless of gender, to the same standards. 


Yesterday the U.S. Supreme Court issued an opinion Wal-Mart v. Dukes, an important case addressing issues involving both employment law and class actions.    There has been an incredible amount of coverage and analysis of this opinion in both regular and legal media outlets and blogs (including our own summary in the DRI Publication, The Court Reporter).   Rather than repeating any of it here, the following are a few of the sources where you can find both good background information as well as helpful analysis about the potential impact of this case from both a business and legal perspective: 

What Does Wal-Mart Ruling Mean for Class Actions: from WSJ Law Blog

Supreme Court Rejects Class Action Against Wal-Mart:  Connecticut Employment Law Blog

Justices Curbs Class Actions, from

Supreme Court Erects Major Barriers to Class Actions…: National Law Journal’s

Seven Key Points for Employers from the Wal-Mart v. Dukes Opinion: from Ohio Employer’s Law Blog;

What Wal-Mart’s High Court Win Means for Employers, Large and Small, from The Employer Handbook Blog




In a unanimous decision yesterday, the U.S. Supreme Court expanded the universe of employees who might be protected from retaliation under Title VII and other federal employment laws.

A retaliation claim is based upon an employer’s adverse action taken in response to an employee’s “protected activity”. Typically, protected activity includes things such as making a complaint of discrimination or harassment, or giving information in connection with a harassment investigation. Any adverse action against an employee (or even a former employee) because he engaged in “protected activity” subjects an employer to liability for damages and attorney’s fees.  

In Thompson v. North American Stainless, LP, the Supreme Court held that Title VII’s anti-retaliation protection extends to the fiancée of an employee who filed a charge of discrimination with the EEOC. Even though the fiancée himself engaged in no “protected activity”, the Court reasoned the company’s conduct could well dissuade a reasonable employee from herself filing a charge. In other words, if an employee knew her fiancée would be fired in response to her EEOC charge, she might not file the charge. 

The practical challenge this case presents for employers is identifying the zone of persons who might be affiliated with a complainant.   While acknowledging this difficulty, the Court nonetheless declined to establish a bright line to determine which relationships are protected and which are not. Justice Scalia, writing for a unanimous Court, stated:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

Two immediate takeaways from this case:

First, when going down the road of termination, employers need to inquire whether there is anyone affiliated with the employee to be terminated who has filed a charge of discrimination.  Who is affiliated? Certainly a spouse or other close family member; definitely a fiancée. After that, who knows?

Second, just because there is some affiliation does not mean the termination should not occur.   The terminated employee is still required to prove a connection between his termination and the protected activity of the other employee with whom he is affiliated.

For other commentary on this decision, I recommend the following:

Daniel Schwartz’s Connecticut Employment Law Blog

Eric Meyer, at The Employer Handbook

IIyse Schuman at Washington DC Employment Law Update

Russell Cawyer, Texas Employment Law Update


A jury in the U.S. District Court, Southern District of Iowa recently returned a verdict in excess of $50,000 to a female plaintiff alleging sex discrimination based upon gender stereotypes.   The plaintiff, who was a night auditor at a hotel, claimed she was terminated because she was more masculine than a typical female employee. She described herself as “slightly more masculine”; she preferred to wear loose fitting clothing as well as men’s button down shirts and slacks.   

There was evidence a manager for the employer made statements that its front desk staff should be “pretty” and have a “Midwestern” girl look. 

The trial court had previously granted summary judgment to the defendant on the grounds that the plaintiff presented no evidence she was treated differently than similarly situated male employees. However, the Eighth Circuit reversed and remanded for a new trial, holding that it was wrong to require a sex discrimination plaintiff to rely solely upon evidence showing the treatment of similarly situated male employees. (See our post here discussing the Eighth Circuit opinion).  

Notably, the jury found for the plaintiff only on her claim of retaliation, not gender discrimination.   Thus, even though the case was remanded to the trial court because of the gender discrimination claim, that is not how the plaintiff established liability.   We noted in our previous post that the Eighth Circuit’s decision expanded the boundaries of gender discrimination liability for employers. Even though the jury did not find gender discrimination, the fact that the plaintiff prevailed on any ground is likely to encourage more gender stereotyping claims of this type.

Last week the U.S. Supreme Court kicked off its 2010-2011 term.   There are at least three cases this term of interest to employment lawyers. The Delaware Employment Law Blog had three excellent postings (here, here, and here) analyzing the cases in some detail. All three cases address important questions concerning the scope of an employer’s liability under the anti-discrimination laws. 

The first case is from the Seventh Circuit, Kasten v. Saint-Gobain Performance Plastics Corp.  Kasten addresses whether an employee’s verbal complaints to his superiors about issues with a time clock is protected activity under the Fair Labor Standards Act, so as to protect the employee from retaliation.  The Circuit Court held that verbal complaints were not enough to protect an employee from retaliation; they had to be written.

The second case, Staub v. Proctor Hospital,(also from the Seventh Circuit) will decide the viability of the so-called “cat’s paw” theory of liability.  “Cat’s paw” applies when there is no evidence the decision maker had discriminatory motives, but others in the organization did. The issue involves the extent to which those with discriminatory motives influenced the decision maker. 

The third case is Thompson v. North American Stainless, from the Sixth Circuit.  The issue in Thompson involves so called "associational retaliation".  That is, to what extent is an employee is protected from retaliation not because of his own protected activity, but the protected activity of others. Specifically, the case involved an engaged couple who worked for the same employer.  The male employee claimed he was fired because his fiancee filed an EEOC charge alleging she was discriminated against.   The Sixth Circuit affirmed the trial court’s grant of summary judgment to the employer, holding that the male employee was not protected because his fiancee filed a charge of discrimination.

The opinions will most likely be issued in 2011.