Employer Will Have to Do Heavy Lifting After Court Denies Motion for Summary Judgment

In Crain v. Roseville Rehabilitation and Health Care, the United States District Court for the Central District of Illinois denied an employer’s motion for summary judgment dismissing a claim under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.  In Crain, Plaintiff alleged that her employer discriminated against her under the ADA because of her doctor-mandated weightlifting restrictions and failed to provide her with a reasonable accommodation.  The employer argued that Plaintiff was unable to perform the essential functions of her job as a Certified Nursing Assistant and Transportation Aide because job description required lifting up to fifty pounds.  Plaintiff contended that despite what was included in the job descriptions, her job, in practice, did not require her to do “heavy” lifting.

Under the ADA, employers must “make reasonable accommodations for the disabilities of an employee who can perform the essential functions of her job with or without accommodation.” 42 U.S.C. §§ 12112(b)(5)-(7). An essential job function is determined by considering several factors, including the “employer’s judgment as to which jobs are essential, written job descriptions . . . the work experience of past incumbents in the job, and/or the current work experience of incumbents in the job.”  Accordingly, in deciding whether lifting was an essential function of Plaintiff’s job, the Court analyzed not only the written job descriptions, but also evidence of how the job was performed in practice.  Because the employer could not refute evidence that in practice the job duties were inconsistent with the job description, the Court found that the “official job descriptions . . . [did] not tell the whole story.”

Job descriptions can be helpful in managing leave requests and defending ADA claims when they accurately describe the job’s essential functions. However, if the job description is inaccurate and does not reflect the current reality of the workplace, employers will be exposed to liability.  Employers should continuously revisit their job descriptions to ensure they accurately describe the duties actually performed.

Former Employee Advances Retaliation Claim Despite Execution of Settlement Agreement

An Ohio federal district court recently denied a former employer’s motion for judgment on the pleadings, holding that the plaintiff could proceed with her retaliation claim even though she signed a settlement agreement and general release. Bryant v. Central Community Health Board (Case no. 16cv00620 March 29, 2017).  This case focuses upon what is (and what is not) barred by a release agreement.   After Central Community Health Board (“CCHB”) terminated plaintiff’s employment in June 2012, she filed and eventually settled a discrimination lawsuit against CCHB.  Plaintiff executed the settlement agreement on April 10, 2015.  Prior to expiration of the seven-day revocation period set forth in the agreement, plaintiff alleged that her CCHB supervisor forwarded to plaintiff’s new employer an email conveying that plaintiff had violated professional boundaries with clients.  Her new employer subsequently terminated plaintiff’s employment.

In coming to its decision that the release did not bar the new claims, the Court noted that although any claims occurring before April 10, 2015, were barred by the settlement agreement, claims based on events after that date were not (even though she could have revoked the agreement and proceeded upon pre-existing claims).

As to the new claim, retaliation could exist despite her status as a former employee. The Court explained that although Plaintiff was no longer employed by CCHB, in the retaliation context, former employees were considered “employees” under Title VII. Plaintiff’s initial lawsuit constituted protected activity. Moreover, Plaintiff’s allegation that the April 14 email was sent in an effort to get her fired for filing a lawsuit against CCHB satisfied the causal nexus prong of her retaliation claim.

The decision highlights that execution of a settlement agreement does not bar future claims of discrimination or retaliation. As such, employers should be mindful about their communications concerning former employees in the wake of a settlement agreement. Supervisors should be educated that they cannot provide information to a worker’s new employer.  Only Human Resources can do so and, even, then, solely as permitted by the employer’s reference policy.  All should be told that they represent the company and that their opinions and desire to communicate about a worker are subject to the employer’s communication policies.

Appeals Court First To Hold Sexual Orientation Discrimination Covered By Title VII

The Seventh Circuit Court of Appeals held this week that sexual orientation discrimination is covered under Title VII of the Civil Rights Act.  The federal appellate court is the first to do so.  Just last week, we reported that the Eleventh Circuit held to the contrary.  For a complete analysis of the Seventh Circuit’s decision, see our firm’s article by clicking here.



Second Circuit Finds Allegations of Gender Stereotyping Sufficient to Permit Claim to Move Forward

In Christiansen v Omnicom Grp., Inc. (Docket No. 16-748), Plaintiff alleged that his supervisor drew a picture of him in tights and a low-cut shirt “prancing around,” and made a poster depicting plaintiff’s head attached to a female body clad in a bikini, which resulted in one co-worker referring to plaintiff as a “submissive sissy.”  In addition, the supervisor allegedly told other employees that plaintiff “was effeminate and gay so he must have AID[S].” 

The question presented was whether the supervisor’s conduct violated Title VII’s prohibition against gender (but not necessarily sexual orientation) discrimination.  In reversing the District Court’s ruling, the Second Circuit discussed at length the difference between sexual orientation discrimination (which is not prohibited by Title VII) and gender stereotyping (which is considered gender discrimination and thus banned by Title VII).  The Court reasoned that the sexual orientation of the plaintiff was immaterial to the reasons behind the supervisor’s conduct.  Most of the behavior, the Court concluded, had more to do with how he perceived that a man is supposed to act; regardless of that person’s sexual preference.   The Court relied upon the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins.  In that case, a female was denied partnership because she did not act feminine enough (which had nothing to do with her sexual orientation).  Thus, the Second Circuit stated, “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.”  The Court went on to note that prior decisions merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.

As the Court noted, there is a fine line oftentimes between sexual orientation discrimination and gender stereotyping.  Employers should strongly consider training for supervisors to understand the nuances involved in this developing area of the law so as to minimize future liability.


11th Circuit: Sexual Orientation Discrimination is Not Actionable Under Title VII

On March 10, 2017, the Court of Appeals for the Eleventh Circuit in Evans v. Georgia Regional Hospital held that sexual orientation discrimination is not actionable under Title VII.

In Evans, the plaintiff was a security officer at Georgia Regional Hospital.  During her employment, the plaintiff claimed she was discriminated on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly manner.”  The plaintiff, although gay, “did not broadcast her sexuality,” though it was “evident that she identified with the male gender, because of how she presented herself” (e.g., she wore a male uniform, a male haircut and men’s shoes).  The plaintiff alleged she was discriminated against because of her sexual orientation and gender non-conformity, and retaliated against after she complained to her employer about the alleged discrimination.

While the appellate court found that discrimination based on gender non-conformity is actionable, it held that “binding precedent forecloses” an action based on sexual orientation discrimination under Title VII.  The appellate court reasoned that it was “bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”  The Court noted that a vast majority of the other circuits have held that sexual orientation discrimination is not actionable under Title VII, namely, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits.

While sexual orientation claims are not actionable under Title VII, many state and local laws prohibit discrimination on the basis of sexual orientation.  In addition, the EEOC has taken the position that all complaints of discrimination on the basis of sexual orientation are sex discrimination claims under Title VII, at least for claims against the federal government.  See https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.

Employer Granted Summary Judgment on Claims of Hostile Work Environment by Equal Opportunity Harasser

A federal district court in Alabama granted an employer’s motion for summary judgment regarding a former general manager’s hostile work environment claims.  Thrower v. Yedla Management Co. Plaintiff, a Caucasian female, alleged that during her employment, the Purchasing Manager mistreated her on the basis of gender and race, creating a hostile work environment by excessively questioning her decisions and yelling and cursing at her.  She made complaints to her superior but alleges no action was taken.  Six months into her employment, she was terminated.

Plaintiff was unable to offer any evidence that she was mistreated due to her race or gender.  The record established that her manager treated virtually all coworkers unpleasantly.  As the court noted, “Title VII was never intended to protect employees from all unpleasant and rude conduct in the workplace.”  Because Plaintiff could not establish that male or non-white employees were treated more favorably, the hostile work environment claim was dismissed.

The evidence in this case showed that the manager did not treat Plaintiff differently due to her gender or race.  However, employers should not ignore “equal opportunity harassers.”  Such behavior leads to disgruntled employees who likely will assert claims that employers necessarily have to defend at great expense.

Federal Discrimination Claim Tossed Where Plaintiff Unable to Establish Prima Facie Case

A Louisiana federal district court granted a company’s motion for summary judgment regarding a former employee’s Title VII race discrimination, harassment, and retaliation claims.  Cassimere v. Fastorq LLC. Plaintiff, an African-American male, alleged that during his employment, he was, among other things, issued disciplinary write-ups while non-African American employees were not and that the company retaliated against him for filing an EEOC charge.

The Court dismissed Plaintiff’s claim because he failed to establish a prima facie case of race discrimination.  First, Plaintiff failed to offer evidence that the disciplinary write-ups he received affected the terms and conditions of his employment and therefore failed to establish he suffered an adverse employment action.  Further, instances cited by Plaintiff in his EEOC charge to show preferential treatment of Caucasian employees involved completely different alleged violations of company policy.  Defendant also presented uncontroverted evidence that the four employees cited held different jobs than Plaintiff.  Therefore, Plaintiff was unable to establish that the comparators were similarly situated or treated differently under nearly identical circumstances.

With regard to the retaliation claim, Plaintiff offered only his own conclusory testimony that he was released for filing a complaint.  Even though plaintiff was terminated as part of a reduction in force within months of having asserted his complaint, the court ruled that mere temporal proximity “will not always be enough for a prima facie case.”

Many disgruntled former employees file claims against their former employer that have no basis in fact or law.  Nevertheless, employers must mount a legal defense to these claims — meritorious or not.  In order to be in a position to present the best possible defense it is always recommended that all personnel decisions be supported by legitimate business reasons, and, of course, be documented.


Direct Evidence of Racist Remarks Dooms Employer Motion for Summary Judgment

A federal court in Tennessee denied an employer’s motion for summary judgment on an African-American employee’s race discrimination and hostile work environment claims under Title VII and state law.  The decision was based in large part on the sheer volume of several supervisors’ alleged use of offensive, intimidating remarks.  The record included evidence of frequent use of the “N word” in jokes and stories, a statement that the company hired African Americans during Black History month and fired them for Christmas as well as a pattern of other offensive, and racially derogatory statements by supervisors.  The employee also claimed that he was: (a) denied equal pay raises and promotion opportunities by the same supervisors who made the offensive remarks, and (b) retaliated against after filing a charge with the Equal Employment Opportunity Commission.

Although the employer denied plaintiff’s allegations, the Court ruled there were genuine issues of material fact as to the frequency, content, and volume of alleged discriminatory conduct.  As a result, the Court denied the employer’s motion on the discrimination and harassment claims.

With regard to the retaliation claim, plaintiff pointed to six alleged retaliatory acts taken against him after he filed his EEOC charge, including his first written reprimand, locking him out of the timekeeping system, and harassment so extreme that he was forced to quit.  Viewing the allegations in the light most favorable to plaintiff (as courts do on summary judgment) – including the pattern of offensive supervisory conduct – the court denied the employer’s motion on the retaliation claim permitting the case to go to trial.

This case serves as a reminder that employers must train all supervisors and managers regarding workplace harassment and the liability that can be imposed on the company resulting from their remarks and conduct.

Failure to Accommodate Religious Belief Claim to Move Forward

Religious discrimination claims by a delivery driver for a catering company who was terminated the day after being sent home for wearing a religious head covering survived summary judgment due to the temporal proximity between the events.  In EEOC v. Triangle Catering, LLC, the Western District of North Carolina held that the temporal proximity between the employer telling the driver to remove his religious head covering and his termination the following day created a reasonable inference that the driver’s need for a religious accommodation was a motivating factor in his termination.  Likely, the employer felt blindsides by the worker because the driver, a Rastafarian male, did not wear his religious head covering to his interview.  On his second day of work, he wore the head covering and the co-owner of the employer abruptly asked him to remove it.  The driver advised the co-owner of its religious purpose.  Nevertheless, the co-owner sent the driver home and said she would discuss next steps with the other owner.  The following day, the employer terminated the driver.  The termination notice referred to the “hat situation.”


The Court held that genuine issues of material fact existed regarding the sincerity of the driver’s religious beliefs, as he did not wear the head covering to the interview.  Further, the termination notice described “the confrontational and disrespectful way in which [the driver] handled the hat situation,” but the co-owner testified nothing confrontational or disrespectful occurred.  In addition, the employer argued that accommodating the driver’s religious practice would be an undue hardship because the head covering violated applicable health codes and regulations.  However, in presenting the argument, the employer failed to cite to any health codes or regulations that would be violated.  Thus, the Court found the employer’s argument unavailing. 


This case serves as a reminder that adverse action taken on the heels of protected activity is likely to result in a meritorious retaliation claim.  In addition, documentation should accurately reflect the events as they occurred. 




Second Circuit Holds “Hispanic” Is a Race Under Section 1981 and Title VII

On February 16, 2016, the Second Circuit issued an opinion holding that “Hispanic” is a race for the purposes of both Section 1981[1] and Title VII.[2] Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016).  Judge José A. Cabranes, writing for the panel, began by stating that the case “asks us to resolve a vexed and recurring question:  what does it mean to be Hispanic?” Id. at 598.

The facts are these:  Andrew Hardwick was the first black mayor in the Village of Freeport.  As part of his “vision for Freeport,” he wanted to replace the Freeport Police Department’s all-white command staff.  The Freeport Chief of Police position is a civil service position, and to apply, one must take a promotional examination.  Those with the three highest scores were eligible for selection by Mayor Hardwick, who had sole control over the appointment.  The eligible candidates were:  Christopher Barrella, a white Italian-American born in the United States, who had the highest score; Lieutenant Wayne Giglio, also white, who received the second-highest score; and Lieutenant Miguel Bermudez, born in Cuba and self-identified as white, who earned the third-highest score.  Chief Hardwick identified Bermudez as his preferred candidate; the two had known each other for over 25 years.

Barrella believed that he was best qualified, having received a master’s degree in criminal justice and a law degree.  He also had longer “time in rank” as a lieutenant than Bermudez, who had not completed college.  As noted, Barrella was the high scorer on the promotional examination.

Chief Hardwick promoted Bermudez to chief.  He never interviewed Barrella or reviewed Barrella’s application, resume, or personnel file.  Barrella filed a charge with the EEOC, alleging he had not been promoted because of his race (non-Hispanic white) and national origin (American).  After receiving a right-to-sue letter from the EEOC, he sued Hardwick and the Village of Freeport in federal court, alleging, inter alia, violations of section 1981 and Title VII.  The district court denied summary judgment as to all claims except the national-origin discrimination claim.  The case proceeded to a jury trial, and the jury’s verdict was in favor of Barrella, finding that Hardwick had intentionally discriminated against Barrella on the basis of race.  An appeal to the Second Circuit followed.

The Second Circuit rejected the federal government’s position that “Hispanic or Latino” is an ethnicity that could belong to any race.  The Court found this was at odds with both Hispanics themselves and with mainstream media.  Despite this confusion, the Court held that with respect to Section 1981, the existence of “Hispanic” as a race has been well established since the Supreme Court’s decision in Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987).  Indeed, the Court pointed to its own precedent holding as much, Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc).

Despite this “longstanding clarity,” the Court noted that whether “Hispanic” is a race for purposes of Title VII was a question of first impression.  It also noted that although Title VII and Section 1981 overlap in many ways, they differ significantly in others, such as “statutes of limitations, employers’ respondeat superior liability, the cognizability of claims against individuals (as opposed to organizations), and whether a plaintiff must show that discrimination was intentional.”  814 F.3d at 606 n.37.  The Court identified the question whether “Hispanic” was a race as a question of law inasmuch as it is a question of statutory interpretation.  Despite the differences between the statutes, the Court noted that it analyzes claims of racial discrimination identically under Title VII and Section 1981 and saw no reason to change that analysis with respect to how it defines race in the context of those statutes.  Accordingly, it held that, as with Section 1981, “Hispanic” is a race for purposes of Title VII.

Notwithstanding its legal holding, the Court vacated the district court’s judgment and remanded for a new trial because the district court erred in admitting lay opinion testimony that impermissibly speculated about Mayor Hardwick’s reasons for promoting Bermudez.  Because “[t]he line between legitimate politics and illegitimate racial discrimination can be difficult to draw in practice,” id. at 615, the Court assessed this case as factually close, such that admission of the lay opinion testimony prejudiced defendants, necessitating a new trial.

In sum, the Court rejected defendants’ argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination.  This is so regardless of whether the claim is brought under Section 1981 or Title VII.

[1] 42 U.S.C. § 1981.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.