Tuesday, August 30, 2016

The Second Circuit on Coworker Cat's Paw Liability & the EEOC on Absolute Protection of Malicious EEO Complaints

In Vasquez v. Empress Ambulance Service, Inc., No. 15-3239-cv (2d Cir. Aug. 29, 2016), Andrea Vasquez alleged that she was fired in retaliation for complaining about sexual harassment by a coworker. According to Vasquez, she received unsolicited sexual photographs from a coworker and then promptly informed her supervisor. Within a few hours, however, the coworker had learned about Vasquez's complaint against him, and he allegedly provided Empress with false documents purporting to show that Vasquez had solicited him to engage in a sexual relationship. Vasquez alleged that Empress refused to consider any evidence she offered to produce in refutation, and she was immediately fired based on her coworker's fabricated accusations against her.

The court concluded that Empress could be held liable under Title VII of the Civil Rights Act of 1964 pursuant to the "cat’s paw" theory based on the allegedly biased actions of Vasquez's coworker. In a typical cat's paw case, an employer is liable when a biased lower-level supervisor causes a higher-level supervisor to take an adverse action against an employee, even though the higher-level supervisor does not act with discriminatory intent, such as when a manager unwittingly relies on a biased lower-level supervisor's recommendation in deciding to fire an employee. What makes Vasquez unusual is that the biased individual who caused the employer to take the final action was not an agent.

Wednesday, August 24, 2016

Ortiz v. Werner Enterprises: The Seventh Circuit's Muddled Attempt to Clarify Disparate Treatment Analysis

In an opinion by Judge Frank Easterbrook in Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016), the Seventh Circuit discarded the direct and indirect frameworks for analyzing claims of disparate treatment under federal EEO law. The court further clarified that there is no legal requirement that a plaintiff present a "convincing mosaic" of circumstantial and/or direct evidence in order to prevail:
The district court's effort to shoehorn all evidence into two "methods," and its insistence that either method be implemented by looking for a "convincing mosaic," detracted attention from the sole question that matters: Whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had remained the same.
Although it may be difficult to fault the Seventh Circuit for wanting to simplify and streamline the analysis of disparate treatment claims, I don't believe the court's effort is entirely successful. Good riddance to the "convincing mosaic" standard, but the court's rejection of the direct-indirect paradigm confuses me. For one thing, the Seventh Circuit failed to explain the relationship between its new unified approach and the burden-shifting frameworks established by the Supreme Court in McDonnell Douglas Corp. v. Green and Price Waterhouse v. Hopkins. Additionally, the Seventh Circuit neglected to address the different levels of causation that arise in EEO cases, but-for and motivating-factor causation.

Friday, August 19, 2016

EEOC v. R.G. & G.R. Harris Funeral Homes: Religious Freedom, Dress Codes, and Sex Stereotypes

Note: This post discusses the district court decision. These later posts discuss the oral argument on appeal and the appellate decision.

In this prior post, I discussed the conflict between interpreting Title VII of the Civil Rights Act of 1964 to permit sex-specific dress codes and interpreting the act to prohibit discrimination against LGBT individuals as a form of sex stereotyping. In EEOC v. R.G. & G.R. Harris Funeral Homes, No. 14-13710 (E.D. Mich. Aug. 18, 2016), that issue is finally front and center. In Harris Funeral Homes, the EEOC contended that the defendant discriminated against Amiee Australia Stephens, a transgender woman, by not allowing her to wear traditionally female attire to work. The EEOC did not challenge the defendant's sex-specific grooming policy and merely disputed which sex-specific attire Stephens would be required to wear.  As discussed below, this strategy appears to have doomed EEOC's case in the eyes of District Court Judge Sean Cox.

Friday, August 12, 2016

Why Ethical Vegetarianism Is a "Religion" Protected by Title VII

In Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, No. 16-00834 (E.D. Pa. Aug. 9, 2016), Judge Gerald Pappert dismissed Paul Fallon's claim that the defendant violated Title VII of the Civil Rights Act of 1964 by refusing to accommodate his objection to receiving a flu vaccination, because, in Judge Pappert's view, the objection was not based on a religious belief.

In this post, I focus on the implications of Fallon for vegetarianism or veganism that is tied to moral beliefs about the treatment of animals. (In general, vegetarianism is the practice of not eating meat, and veganism is the practice of not eating or otherwise using animal-derived products.) Pursuant to Fallon, if an employee requests an accommodation because of vegetarianism grounded in his own Hindu beliefs, he is protected under Title VII, but if an employee requests the same accommodation based on his own purely secular beliefs that it is morally wrong to exploit animals, then he is not protected by Title VII. In my view, this outcome is plainly inconsistent with EEOC policy and Supreme Court precedent.

Monday, August 8, 2016

Unlawfully Stereotyping Men as Sexual Predators

In Doe v. Columbia University, No. 15-1536 (2d Cir. July 29, 2016), the court vacated the dismissal of a male student's Title IX claim that he was subjected to sex discrimination when the university suspended him for an alleged sexual assault of a female student. The male student alleged that the university accepted his accuser's unsupported version of the facts over his, declined to contact his witnesses, and failed to follow its own procedures designed to protect accused students. The court concluded that the male student had plausibly alleged that the university was motivated by sex bias, because the university had been subjected to criticism for not taking seriously female students' complaints of sexual assault by male students and, therefore, the university was motivated to favor the accusing female student over the accused male student.

Thursday, August 4, 2016

Ortiz-Diaz v. HUD: The Adverse Action Standard and the Reasonable Person in the Plaintiff's Shoes

 In Ortiz-Diaz v. HUD, No.15-5008 (D.C. Cir. Aug. 2, 2016), the court affirmed summary judgment for the defendant on a Title VII claim of national origin discrimination, concluding that Samuel Ortiz-Diaz, a special agent in HUD's Office of Inspector General in Washington, D.C., was not subjected to a "materially adverse action" when he was denied a lateral transfer to a duty station in another city. The court explained that an employer's action is not materially adverse unless supported by a record of "objectively tangible harm" and that "purely subjective injuries" are not enough. The court acknowledged that denial of a lateral transfer might be materially adverse if the transfer would have increased promotion prospects, but Ortiz-Diaz's "bare assertion" was insufficient to establish the requisite harm.

In my view, the court's refusal to consider "subjective injuries," although likely consistent with circuit precedent, is contrary to the Supreme Court's decision in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006).