KRUPIN O'BRIEN LLC ATTORNEYS AT LAW 1156 FIFTEENTH STREET, N.W. SUITE 200 WASHINGTON, D.C

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1 KRUPIN O'BRIEN LLC ATTORNEYS AT LAW 1156 FIFTEENTH STREET, N.W. SUITE 200 WASHINGTON, D.C TELEPHONE (202) FACSIMILE (202) American Bar Association Annual Meeting Washington, D.C. EEO UPDATE: DEVELOPMENTS IN TITLE VII DISCRIMINATION LAW Presented By: Alison N. Davis

2 Page 2 A. THE SUPREME COURT HAS HELD THAT EMPLOYEES CAN ASSERT HARASSMENT CLAIMS WHICH OCCUR OVER A LONG PERIOD OF TIME. On Monday, June 10, 2002, the Supreme Court in National Railroad Passenger Corp (Amtrak) v. Morgan, No , articulated the standard for an employee to assert a continuing violation. The Supreme Court stated that employees who allege discrete discriminatory or retaliatory acts may not recover for incidents that occur beyond the charge-filing period. They are bound by the limitations period for filing a charge. Employees, however, who allege a hostile work environment, have more leeway. They can recover for acts that occurred outside the 180- or 300-day period where the unfair treatment continued into the limitations period. Morgan, a black male, filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing. In addition, he alleged that he experienced a racially hostile work environment throughout his five years of employment. Among the alleged discriminatory acts were a termination for failing to follow orders, Amtrak s refusal to allow him to participate in an apprenticeship program, and numerous written counseling relating to absenteeism. He also alleged that managers made racial jokes, performed racially derogatory acts, and used various epithets. While some of the alleged discriminatory acts occurred within 300 days of Morgan filing his EEOC charge, many took place prior to that time period. The trial court granted Amtrak s motion for summary judgment in part holding that the company could not be liable for conduct occurring outside the 300-day period. The Ninth Circuit reversed holding that a plaintiff may sue on claims that would ordinarily be time barred so long as the claims are sufficiently related to incidents that fall within the charge filing period or are part of a systemic policy or practice of discrimination that took place, at least in part, within the period. Under Title VII, an employee must file an employment discrimination charge with the EEOC within 180 days of an unlawful employment practice allegedly occurring. In states where the local agency is authorized to offer relief for discriminatory employment practices, the employee must file within 300 days. Employees frequently seek to rely on events that fall outside the 180- or 300-day period to support their claims. Until recently, the Seventh Circuit and the Fifth Circuit used similar tests to determine when an employee could sue on claims outside the appropriate charge-filing period. In Galloway v. General Motors Service Parts Operation, 78 F.3d 1164 (1996), the Seventh

3 Page 3 Circuit held that a plaintiff may not base a claim on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to know the action was discriminatory before the statute of limitations had run. The Fifth Circuit applied a multifactor test: (1 ) whether the alleged acts involve the same type of discrimination, (2) whether the incidents are recurring or independent and isolated events, and (3) whether the earlier acts have sufficient permanency to trigger the employee s awareness of and duty to challenge the alleged violation. Berry v. Board of Supervisors, 715 F.2d 971, 981 (5 th Cir. 1983). The Ninth Circuit rejected both of these tests. To simplify the circumstances when a plaintiff can rely on a continuing violation to bring in events outside the limitations period, the Supreme Court crafted its own standard which differed from the Fifth, Seventh and Ninth Circuits. The Supreme Court distinguished between single or discrete acts of employment discrimination and hostile work environment claims. Discrete acts of employment discrimination are events such as a termination, failure to promote, denial of transfer, denial of a raise and refusal to hire. Each separate act is a potentially unlawful employment practice for which a timely charge must be filed. If the employee fails to file a timely charge, the right to recover for that discrete act is lost even if it relates to acts in a timely charge. The untimely discrete acts, however, can be used as background to support timely allegations of an unlawful discrete employment decision. In contrast, hostile work environment claims involve repeated acts, which occur over a series of days, or perhaps years. The majority of the Supreme Court concurred that the cumulative effect of the acts was the allegedly unlawful employment practice. For that reason, an employee only needs one act within the mandatory charge filing period to have a timely claim and an employer may be liable for all of the acts. In the past, employers have argued that there is no continuing violation where the employee should have discovered that a discriminatory act occurred prior to 180 or 300 days before the charge was filed. It is unclear from this opinion whether the Supreme Court has rejected this discovery rule in the case of hostile environment claims. Nevertheless, the Court did recognize that an employee should not be allowed to sleep on a claim and unreasonably delay in filing a claim. While an employee delays filing a charge, memories fade, witnesses disappear and documents are lost. These occurrences prejudice an employer s ability to defend a hostile environment claim and provide the employee an unfair advantage. Time will tell what an employer will need to do to prove that the employee s delay in filing a charge was unreasonable and prejudicial to the employer.

4 Page 4 B. THE SUPREME COURT HAS ARTICULATED THE STANDARD FOR THE SUFFICIENCY OF AN EMPLOYMENT DISCRIMINATION COMPLAINT In Swierkiewica v. Soremaq N.A. No , the Supreme Court finally settled the issue of the degree of factual specificity an employee must include in an employment discrimination complaint. Ultimately, to prove an employer has discriminated against an employee, the employee can rely on either direct or circumstantial evidence. Direct evidence explicitly shows the employer s intent to discriminate. For example, an which states that the manager did not hire an applicant because customers preferred women. In contrast, circumstantial evidence relies on inferences to prove discrimination. Where the employee has no direct evidence of discrimination, to prevail, an employee must first prove: (1) membership in a protected group, (2) qualification for the job position at issue, (3) an adverse employment action, and (4) circumstances that support an inference of discrimination. Prior to the Supreme Court s ruling, some courts had rejected lawsuits when the employee failed to allege facts to support each of those criteria in the initial filing. Now, courts must allow an employee to have his day in court even when the complaint is comprised of conclusory allegations of discrimination. An employee does not have to present all of the facts which support his claim at the outset of the lawsuit. In Swierkiewica, the employee alleged that he was fired because of his national origin in violation of Title VII and age in violation of the Age Discrimination In Employment Act. He included in his complaint allegations regarding the events leading to his termination, provided relevant dates and included the ages and nationalities of at least some of the relevant persons involved with his termination. The employer argued that those allegations were insufficient for a jury to find in favor of the employee, and therefore the case should be dismissed. The United States District Court for the Southern District of New York held that the plaintiff failed to allege a prima facie case in that the alleged circumstances did not support an inference of discrimination. The Second Circuit affirmed on the grounds that an employment discrimination plaintiff must allege facts that constitute a prima facie case of discrimination in accordance with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Supreme Court, however, found the plaintiff s allegations gave the employer fair notice of the employee s claim and the grounds upon which they rested. The plaintiff simply had to include a short and plain statement of the claim showing that he was entitled to relief. The plaintiff did not need to include facts sufficient to establish a prima facie case. Therefore, the employee could proceed.

5 Page 5 C. POST-9/11 THE EEOC HAS MADE NATIONAL ORIGIN AND RELIGIOUS DISCRIMINATION CLAIMS OF MUSLIMS, ARABS, SOUTH ASIANS AND SIKHS A PRIORITY. In the wake of the 9/11 attack on the World Trade Center and the Pentagon, the Equal Employment Opportunity Commission (EEOC) has seen an increase in the number of charges alleging discrimination based on national origin and/or religion. The EEOC has introduced a new tracking system to gather data regarding how many charges are being filed under Title VII by individuals who believe they have experienced backlash discrimination. As of May 7, 2002, the EEOC field offices had received 488 of such charges. Discharge has been alleged in 301 of the 488 charges, and harassment has been alleged in 194 of the 488 charges. Between September 11, 2001 and May 7, 2002, the EEOC received 497 charges on the basis of Muslim religion; 304 more charges than over the same time period last year. In an effort to combat the perceived backlash against Muslims, Arabs, South Asians and Sikhs, on May 15, 2002, the EEOC issued two fact sheets, for employers and employees, to address frequently asked questions about the employment of members of or perceived members of these communities. The fact sheet which is directed to employers addresses questions about hiring and other employment decisions, harassment, religious accommodation, temporary assignments, background investigations, and where employers can go for guidance. The employee fact sheet provides similar information, but also instructs employees how to file a discrimination charge. D. FRONT PAY IS NOT SUBJECT TO THE STATUTORY 1981a CAP. Under section 706(g) of Title VII, the court can award to a prevailing plaintiff remedies, such as injunctive relief, reinstatement, back pay and lost benefits. Amendments to the original Civil Rights Act created the view that the court could award front pay for the period between the judgment and reinstatement as well as in lieu of reinstatement. In 1991, Congress expanded the remedies available under Title VII to include compensatory and punitive damages by enacting section 1981a. Damages under section 1981a, however were subject to a cap which varied with the size of the employer. In Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001), the plaintiff proved that she had been subjected to coworker sexual harassment of which her supervisors were aware, and that the harassment resulted in a medical leave of absence for psychological assistance and her eventual dismissal for refusing to return to the workplace. The United States District Court for the Western District of Tennessee awarded Sharon Pollard

6 Page 6 $300,000 in compensatory damages. Although the Court expressed its desire to award Pollard front pay, it felt constrained by the cap in section 1981a. The Sixth Circuit affirmed the award. On June 4, 2001, the Supreme Court ruled that front pay is not subject to the 1981a cap. The Supreme Court did not see a logical difference between front pay, which is awarded for the period between the judgment date and reinstatement, and front pay which is awarded when there is no reinstatement. Regardless of the reason underlying an award of front pay, it is subject to section 706(g), not section 1981a. Therefore, front pay is not an element of compensatory damages, and not subject to the statutory cap. E. THE SUPREME COURT DETERMINES WHETHER AN UNVERIFIED COMPLAINT TO THE EEOC TOLLS THE CHARGE FILING PERIOD. The Supreme Court settled the debate regarding the timeliness of an unverified charge in Edelman v. Lynchburg College, 122 S. Ct (2002). On November 14, 1997, Larry Edelman faxed a letter to an EEOC field office claiming that Lynchburg College denied him tenure on June 6, 1997 because of his gender, national origin and religion. The letter was not by oath or affirmation. On November 26, 1997, Edelman s attorney requested by letter an interview with an EEOC investigator. Thereafter, on April 15, 1998, 331 days after the June 6, 1997 tenure denial, the EEOC received a verified Form 5 Charge of Discrimination. After the EEOC issued a notice of right to sue, Edelman filed suit in state court. The College removed to federal court and moved to dismiss for lack of subject matter jurisdiction. The United States District Court for the Western District of Virginia dismissed the Title VII claim on the grounds that there was no timely filing to which the verified Form 5 Charge of Discrimination could relate. The Court of Appeals for the Fourth Circuit affirmed on the grounds that the charge had to be verified within the limitations period (180 days or 300 days in a deferral state). The Supreme Court disagreed with the Fourth Circuit s assumption that section 706(b) and (e)(1) were meant to be read together to define a charge. Section 706(b) requires charges to be in writing under oath or affirmation. Section 706(e) provides the time period in which a charge must be filed. Neither section 706(b) nor section 706(e) defines a charge. In the Supreme Court s opinion, Title VII and the regulations only require that the charging party verify the charge before the employer is required to respond. So long as a complaint is made to the EEOC within the limitations period, the verification will relate back. F. AN ADVERSE EMPLOYMENT ACTION DOES NOT RELATE SOLEY TO AN ULTIMATE EMPLOYMENT DECISION.

7 Page 7 To establish a prima facie case of retaliation, a plaintiff must show: (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. The concept of protected activity is understood by most. However, adverse employment action continues to be defined. 1. The Eleventh Circuit weighed in on defining an adverse employment for purposes of a plaintiff making out a prima facie case of retaliation. In Shannon v. BellSouth Telecommunications, Inc., F.3d, No , 2002 WL (11 th Cir., 05/31/2002), the plaintiff, who used his lunch break to attend Sunday school, alleged that his employer retaliated against him for complaining about religious discrimination by among other actions: (1) reassigning him to a different geographic location, blackballing him from overtime, and (3) sending him home for wearing a nonregulation uniform. The Court found that although in isolation some of the alleged employment actions did not rise to the level of adverse employment allegation, collectively the total weight of them constituted an adverse employment action. 2. In Jacob-Mua, et al. v. Veneman, 289 F.3d 517 (8 th Cir. 2002), the plaintiff, a white employee, alleged that the United States Department of Agriculture retaliated against him after he expressed concern about the agency s indifference to race relations. He alleged that thereafter his job was eliminated, and he was demoted and transferred from Lincoln, Nebraska to Moscow, Idaho. The Eighth Circuit found that plaintiff s job was eliminated in the ordinary course of business, he was offered a substitute position, and he did not suffer a loss in grade or pay when he transferred to Idaho. Thus, he failed to prove an adverse employment action. 3. The Fifth Circuit takes the view that adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensation. In Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642 (5 th Cir. 2002), a female former university employee alleged that the university retaliated against her because of her complaint about sex discrimination. In particular, she alleged that the university changed her locks, restructured office procedures, removed many of her job responsibilities and changed her title from Office Manager to Administrative Assistant. The Court found that the plaintiff did not suffer an adverse employment action because she was demoted from Office Manager to Administrative Assistant and her job duties never were restored in practice.

8 Page 8 G. POST FARAGHER AND ELLERTH CASES 1. To prove a hostile work environment, a plaintiff must prove that the workplace was permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). It is important to consider the totality of the circumstances to determine that the workplace is hostile and abusive. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).In Cerros v. Steel Technologies, 288 F.3d 1040 (7 th Cir. 2002), the plaintiff, a Hispanic employee, alleged that he was subjected to a hostile work environment based upon his race. The district court found that plaintiff was subjected to verbal harassment, including supervisors and coworkers overtly espousing an offensive philosophy, if it ain t white it ain t right. There was racist graffiti painted on the bathroom walls. Plaintiff also alleged that he was denied training opportunities. The employer did not conduct an investigation of the alleged harassment until plaintiff filed a charge. The Seventh Circuit found the allegations were sufficient for the plaintiff to have the opportunity to prove that the acts were sufficiently severe and pervasive to rise to the level of a statutory violation. All of the derogatory names directed as Cerros as well as all of the graffiti on the bathroom walls, coupled with more information about the frequency or how long the abuse endured might well demonstrate sufficient severity and pervasiveness to violate Title VII. The Court further stated that there is no magic number of slurs that indicate a hostile work environment, but an unambiguously racial epithet can fall on the more severe end of the spectrum. Title VII does not guarantee a happy workplace, but it does provide protection for employees who suffer from discriminatory terms and conditions of employment through a work environment that is permeated with racial epithets which an employer tolerates. 2. In Gorski v. New Hampshire Dept. of Corrections, F.3d, 2002 WL (1 st Cir., May 24, 2002), the plaintiff alleged pregnancy discrimination and sexual harassment. The United States District Court for New Hampshire granted the employer s motion to dismiss on the basis that the sporadic abusive language was not extreme enough to alter the terms or conditions, and there was no allegation of physically threatening or humiliating conduct. The First Circuit held that evidence of sexually charged or salacious behavior is not necessary to plead a hostile work environment claim. According to the Court, notice pleading does not require a recitation of detailed evidence in support of claim. Therefore, the district court improperly assumed that the facts alleged in the Complaint were the sum total of plaintiff s evidence.

9 Page 9 3. In Hall v. Bodine Elec. Co., 276 F.3d 345 (7 th Cir. 2002), a female employee filed a claim of sex discrimination, hostile work environment and retaliatory discharge. During the course of investigating her complaint, the court found that she had engaged in the same harassing conduct of the co-worker about whom she complained. As a result, both the complainant and the alleged harasser were fired. First, the Court found that the alleged harasser was not a supervisor even though he oversaw aspects of her performance. He was not entrusted with authority to hire, fire, demote, promote, transfer or discipline. Therefore, the Faragher/Ellerth vicarious liability standard did not apply. To prevail, the plaintiff had to prove the employer knew or should have known about the harassment. Further, the Court held that Title VII does not require employers to institute formal sexual harassment policies so long as the employer provides an effective channel for complaining. In this case, once the employee complained, the employer conducted an investigation in an effective and expeditious manner. H. SAME-SEX SEXUAL HARASSMENT CLAIMS AFTER ONCALE. 1. In EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6 th Cir. 2001), the EEOC brought suit on behalf of several male employees who alleged that their male supervisor engaged in sexually harassing. Among the allegations was that the supervisor grabbed their genitalia. The Court found that the use of vulgarity was common in the workplace. Moreover, there was no sexual desire or hostility associated with the conduct. Consequently, the conduct was not actionable as sexual harassment. 2. In Nichols v. Azteca Restaurant Enter. Inc., 256 F.3d 864 (9 th Cir. 2001), the male employee alleged that his coworkers and supervisors harassed him because he was too effeminate. The Court stated that both men and women can bring gender claims under Title VII when discrimination occurs because a plaintiff is viewed as not living up to a specific sexual stereotype. In this case, the work environment was objectively hostile and the plaintiff perceived the work environment as hostile. The fact that the plaintiff never sought mental health treatment did not preclude a finding that he subjectively perceived a hostile work environment. Therefore, the Court reversed the lower courts ruling in favor of the employer. 3. The EEOC was allowed to proceed with same-sex hostile work environment and retaliation claim against an operator of an Arby s Restaurant. See EEOC v. Pentman, LLC, No. 2:01CV00043 (W.D. Va., April 12, 2002). The EEOC

10 Page 10 alleged that the female supervisor made graphic comments, asked questions about sex, having sex with the female employees boyfriends, and slapped and touched their bodies. After the female employees complained, she allegedly forced them to stay late and do extra chores, including those of male employees, and to scrub floors with a toothbrush. In response, the employer claimed that the supervisor was an equal opportunity harasser and moved to dismiss. The Court found that there was evidence that the harassment was directed more at women than men. Same-sex harassment is actionable so long as the offensive conduct is because of sex.