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This is an outline of 1996 developments in employment discrimination
law. This outline focuses primarily on Eleventh Circuit law, although it
includes case law from other Circuits as well. It is by no means comprehensive,
but it provides some insight into the development of this ever-changing
area of the law. I have cited mostly to the slip opinion cites, but by
the time you read this, citations to F.3d, S. Ct., or F. Supp. should be
available for most of these cases.
A. Age Discrimination in Employment Act ("ADEA")
1. ADEA Prima Facie Case.
In O'Connor v. Consolidated Coin Caterers, No. 95-354, slip op.
(April 4, 1996), the Supreme Court rejected as the fourth element of a
prima facie case under the ADEA that the plaintiff was replaced by a person
outside of his protected class, that is, by a person under the age of forty.
The Court found that "the fact that a replacement is substantially
younger than the plaintiff is a far more reliable indicator of age discrimination
than is the fact that the plaintiff was replaced by someone outside the
protected class." Id. Therefore, a plaintiff may present a
prima facie case of age discrimination under the ADEA by
showing that (1) he was over age forty, (2) he was qualified to do the
job, (3) he was subject to an adverse employment action, and (4) he was
replaced by a "substantially younger" person. Id.
B. Title VII
1. Comparators.
a. Employees lower in corporate hierarchy not similarly situated.
In determining whether employees are similarly situated, a jury can
consider the fact that the comparators were lower in the corporate hierarchy
than plaintiff. It would not be contrary to law for an employer to require
employees with more authority to conform to a higher standard of decency
than those with less authority. Hargett v. Nat. Westminster Bank, USA,
78 F.3d 836 (2d Cir. 1996), cert. denied, __ U.S. __, No. 95-2071, 1996
WL 375941 (Oct. 7, 1996).
2. Sexual Harassment.
a. Constructive knowledge of sexual harassment.
An employer had constructive knowledge of sexual harassment because
all of the supervisors with whom the victims had regular contact were harassers
and the employer failed to provide the victims with guidance as to how
they could contact upper-level managers to complain of harassment. Splunge
v. Shoney's, Inc., __ F.3d __, No. 95-6141, 1996 WL 544027 (11th Cir.
Oct. 10, 1996).
b. Abusive investigation of sexual harassment is not harassment itself.
The abusive investigation of a false claim of sexual harassment is not
itself a form of sexual harassment actionable under Title VII. McDonnell
v. Cisneros, No. 95-1864, slip op. (7th Cir. May 20, 1996).
c. Code words and sexual harassment.
Facially neutral "code words" can violate Title VII when circumstances
indicate that racial (or sexual) implications were intended. This type
of comment can be evidence of a hostile work environment if derogatory
and insulting terms are pervasively used and directed at members of a protected
class. Aman v. Cort Furniture Rental Corp., No. 95-5142, slip op.
(3d Cir. June 5, 1996).
d. No hostile work environment claim for harassment of heterosexual
male by heterosexual male.
In McWilliams v. Fairfax County Bd. of Supervisors, No. 94-1607,
slip op. (4th Cir. Jan. 9, 1996), the Fourth Circuit held that harassment
that is sexual in nature, but committed by heterosexual males against a
heterosexual male employee, is not harassment "because of sex."
Therefore, the court held that the employee could not maintain a Title
VII hostile work environment sexual harassment claim on such facts.
3. Direct Evidence
a. Discriminatory comment, unrelated to decision, not direct evidence.
A supervisor's admission that he told racial jokes and used the "N"
word was not direct evidence against a black job applicant when the remarks
were not made about the applicant himself and were unrelated to the hiring
decision. Allen v. City of Athens, __ F. Supp. __, No. CV95-H-1083,
1996 WL 501883 (N.D. Ala. Sept. 3, 1996).
b. Must be statement of decisionmaker to constitute direct evidence.
"For statements of discriminatory intent to constitute direct evidence
of discrimination, they must be made by a person involved in the challenged
action." Trotter v. Bd. of Trustees of Univ. Of Ala., No. 95-6465,
slip op. at 3201 (11th Cir. Aug. 20, 1996).
4. Constructive Discharge.
a. No constructive discharge if employee does not give employer time
to remedy problem before quitting.
"A constructive discharge will generally not be found if the employer
is not given sufficient time to remedy the situation." Kilgore
v. Thompson & Brock Management, No. 94-7018, slip op. (11th Cir.
Sept. 5, 1996).
5. Reasonable accommodation of religion.
School district's refusal to give school bus drivers all of the unpaid
leave they requested so that they could attend a religious observance was
not religious discrimination in violation of Title VII. Requiring the school
district to hire more drivers and pay drivers more to cover the absences
would have imposed an undue hardship on the school district, which had
suffered a budget deficit of over six million dollars the previous year.
Favero v. Huntsville Ind. Sch. Dist., __ F. Supp. __, No. CIV A
H-95-3547, 1996 WL 529309 (S.D. Tex. Aug. 9, 1996).
6. Arbitration agreement can stay Title VII action.
An arbitration clause in an employment agreement, which obligated the
parties to arbitrate all claims arising out of federal, state, and local
statutes, required a stay of an employment discrimination action. The Civil
Rights Act of 1991 revealed express congressional approval of the use of
arbitration to resolve Title VII disputes. Johnson v. Hubbard Broadcasting,
Inc., __ F. Supp. __, No. CIV 4-96-107, 1996 WL 511585 (D. Minn. Sept.
3, 1996).
7. Employee may release employer from Title VII liability
"When an employee knowingly and voluntarily releases an employer
from liability for Title VII and § 1981 claims with a full understanding
of the terms of the agreement, he is bound by that agreement. . . . However,
the waiver of such remedial rights must be closely scrutinized." Puentes
v. United Parcel Service, Inc., No. 95-4374, slip op. (11th Cir. June
20, 1996).
C. Americans with Disabilities Act ("ADA")
1. Title I of ADA does not apply to former employees.
Title I of the ADA does not apply to former employees. Gonzales v.
Garner Food Servs. Inc., No. 95-8533, slip op. (11th Cir. Aug. 2, 1996).
2. Withdrawal of accommodation under ADA raises issue of pretext.
Withdrawal of a reasonable offer of accommodation after it has been
accepted gives rise to an inference of pretext and intentional discrimination
under the ADA. Valentine v. American Home Shield Corp., __ F. Supp.
__, No. C 95-3030-MWB, 1996 WL 506506 (N.D. Iowa Aug. 30, 1996).
3. Reassignment not required as reasonable accommodation under ADA
if it would violate collective bargaining agreement
Reasonable accommodation does not require reassignment of disabled employee
in derogation of collectively bargained seniority rights of other employees.
Eckles v. Consolidated Rail Corp., No. 95-2856, slip op. (7th Cir.
August 14, 1996).
4. The Eleventh Circuit has stated the elements for an ADA claim.
The ADA provides that no employer with 15 or more employees "shall
discriminate against a qualified individual with a disability because of
the disability of such individual . . ." in regard to their employment.
42 U.S.C. § 12112(a) (1994). To establish a prima facie case of discrimination
under the ADA, the plaintiff must prove: (1) that she has a disability,
(2) that she is a qualified individual, and (3) that she was subject to
unlawful discrimination because of her disability. Morisky v. Broward
County, No. 95-4808, slip op., (11th Cir. April 11, 1996).
5. Vague statements of disability are not enough to put employer on
notice for ADA claim.
"Vague or conclusory statements revealing an unspecified incapacity
are not sufficient to put an employer on notice of its obligations under
the ADA." Morisky v. Broward County, No. 95-4808, slip op.
(11th Cir. April 11, 1996).
6. Disabled employee must ask for specific accommodation.
Under the ADA, an otherwise qualified individual with a disability who
is able to perform the essential functions of the job with reasonable accommodation
is entitled to a reasonable accommodation. However, in general, "it
is the responsibility of the individual with a disability to inform the
employer that an accommodation is needed." 29 C.F.R. § 1630,
App. § 1630.9 (1994); see also, Whillock v. Delta Air Lines,
Inc., 1:93-CV-2712-FMH, slip op. at 15 (N.D. Ga. Aug. 15, 1995) ("Under
the ADA, Plaintiff must offer Defendant a suggestion of a reasonable accommodation
which would allow her to perform the essential functions of her job.").
7. Under the ADA, an employer may require medical certification that
an employee or applicant is physically able to do the work.
The ADA allows inquiry into an applicant's ability to perform job-related
functions. It also allows employer to require a former employee with a
recent known disability, who is applying for re-employment, to furnish
a medical certification as to the ability to work, with or without reasonable
accomodation, provided that such certification is relevant to an assessment
of the individual's ability to perform essential job functions. Grenier
v. Cynamid Plastics Inc., No. 95-1313, slip op. (1st Cir. Nov. 27,
1995).
8. Employee must provide information needed to accommodate disability.
An employee who failed to sign a release to enable her employer to consult
her doctor and otherwise failed to provide information needed to accommodate
her disability cannot recover under the ADA. Beck v. Univ. of Wisc.
Bd. of Regents, No. 95-2479, slip op. (7th Cir. Jan. 26, 1996).
D. Age Discrimination in Employment Act ("ADEA")
1. Disparate impact established under the ADEA.
A former employee established a prima facie case of disparate impact
age discrimination under the ADEA based on her employer's salary restructuring.
Data presented by the employee showed that less than five percent of employees
under age forty received wage reductions of three dollars pre hour or more,
while seventy-five percent of those over age forty received comparable
reductions. The employer failed to articulate any reason other than age
to explain the policy's disparate impact. Camacho v. Sears Roebuck de
Puerto Rico, __ F. Supp. __, No. CIV 94-2055(PG), 1996 WL 535394 (D.P.R.
Sept. 17, 1996).
E. State law claims.
1. Intentional infliction of emotional distress.
a. Allegations of harassment for reporting dangerous work conditions
is enough to survive summary judgment on claim of intentional infliction
of emotional distress.
The Eleventh Circuit recently affirmed the district court's denial of
a Rule 12(b)(6) Motion to Dismiss plaintiff's claim of intentional infliction
of emotional distress when he alleged that he reported dangerous work conditions
and was thereafter harassed and ultimately terminated. Harris v. Procter
& Gamble Cellulose Co., No. 95-8602, Slip op. (11th Cir. Jan. 22,
1996).
2. Punitive Damages Under State Law May Be Excessive
The Supreme Court has held that a punitive damages award may be so "grossly
excessive" as to violate the Due Process Clause of the Fourteenth
Amendment. BWM of North America, Inc. v. Gore, No. 94-896, slip
op. (May 20, 1996) (voiding an Alabama state court's award of punitive
damages against BMW for failing to disclose that it repainted a new $40,000
car, thereby reducing its value by $4,000).
F. Summary judgment standard.
1. Ultimate issue on summary judgment is whether jury could infer discrimination.
"At the summary judgment stage, our inquiry is whether an ordinary
person could reasonably infer discrimination if the facts presented remained
unrebutted." Jameson v. Arrow Co., No. 94-8772, slip op. (11th
Cir. Feb. 28, 1996).
2. Employee must show all of defendant's proffered reasons to be pretextual
to survive summary judgment.
An employee who raised fact issues as to four of the employer's six
proffered reasons for his termination failed to survive summary judgment
in an ADEA action, when the four disputed reasons were neither so intertwined
nor so fishy so as to call into doubt the two credible reasons. Wolf
v. Buss America, Inc., 77 F.3d 914 (7th Cir. 1996), cert. denied, __
U.S. __, No. 96-92, 1996 WL 411488 (Oct. 7, 1996).
3. Qualified immunity and mixed motive at summary judgment.
An official is entitled to qualified immunity at the summary judgment
stage if both a lawful and unlawful motive are present and a jury could
find that the official would have made the same decision absent the unlawful
motivation. Foy v. Holston, No. 95-6227, slip op. at 3565 (11th
Cir. Sept. 17, 1996) ("Where the facts assumed for summary judgment
purposes in a case involving qualified immunity show mixed motives (lawful
and unlawful motivations) and pre-existing law does not dictate that the
merits of the case must be decided in plaintiff's favor, the defendant
is entitled to immunity.").
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