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.

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.

 

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