Employment Discrimination

• Publication year: 2017

Employment Discrimination

Peter Reed Corbin

John E. Duvall

[Page 981]

Employment Discrimination

by Peter Reed Corbin^*

and John E. Duvall^**

The field of Employment Discrimination continued to be alive and well during the 2016 survey period.¹ Although the United States Court of Appeals for the Eleventh Circuit continued its recent trend of issuing the vast majority of its employment discrimination cases as unpublished opinions (often per curiam opinions affirming a summary judgment for the employer), the court of appeals rendered far more published opinions during the survey period than has recently been its practice. The Eleventh Circuit issued six published Title VII opinions, and fifteen published employment discrimination opinions overall. For instance, in Villarreal v. R.J. Reynolds Tobacco Co.,² the Eleventh Circuit, en banc, held that job applicants cannot sue an employer for disparate impact discrimination under the Age Discrimination in Employment Act.³ In Peppers v. Cobb County,⁴ the court of appeals rendered a significant opinion on the

[Page 982]

concept of joint employers for purposes of Title VII and the various employment discrimination statutes.⁵ Finally, in Quigg v. Thomas County School District,⁶ the Eleventh Circuit rejected the utilization of the familiar McDonnell Douglas model of proof at the summary judgment stage in Title VII mixed motive actions.⁷

The Supreme Court of the United States also made its contribution during the survey period. In Green v. Brennan,⁸ the Court decided when the statute of limitations begins to run in the context of a constructive discharge claim.⁹ In CRST Vann Expedited, Inc. v. Equal Employment Opportunity Commission,¹⁰ the high court, in the midst of affirming a $4 million attorney fee award to the defendant employer, decided that a defendant does not need to obtain a favorable ruling on the merits in order to become a "prevailing party" under Title VII.¹¹

I. Title VII of the Civil Rights Act of 1964

A. Coverage under the Act

1. Joint Employers.

Title VII of the Civil Rights Act of 1964¹² prohibits certain forms of discrimination against employees by employers. In Peppers v. Cobb County,¹³ the issue was whether the defendant could be drawn within the scope of the Act's coverage through application of the joint employer theory. The plaintiff was a retired criminal investigator with the Cobb Judicial Circuit District Attorney's Office. After he learned that a less experienced female in the office was earning a substantially higher salary (approximately $15,000 more a year) than he was making for performing the same job, the plaintiff brought a lawsuit under both Title VII (alleging gender discrimination) and the Equal Pay Act.¹⁴ However, the defendant that the plaintiff chose to sue was not the Cobb County District Attorney's Office; rather, he brought suit against Cobb County. Finding that the county and the district attorney's office were not joint

[Page 983]

employers, the district court granted summary judgment for the defendant.¹⁵

On appeal, the Eleventh Circuit closely examined the nature of the relationship between the district attorney's office and the county. The court noted that under the Georgia constitution, the district attorney's office was a separate legal entity, and that the county was responsible only for approving the district attorney's annual budget.¹⁶ Applying past precedent, the court of appeals reasoned that the joint employer issue turned on (1) the degree of control that the alleged joint employer had over the employee; and (2) whether the alleged joint employer "had the power to hire, fire, or modify the terms and conditions of the employee's employment."¹⁷ The Eleventh Circuit went on to conclude:

The long and short of it is that the District Attorney alone filled nearly all the roles traditionally filled by an employer. Indeed, Cobb County had no more control over the nature, power, and functions of the investigators than it had the authority to determine which cases and prosecutions the District Attorney's Office ought to pursue.¹⁸

Agreeing with the district court that a joint employer relationship had not been established, the court of appeals affirmed.¹⁹

2. Sovereign Immunity.

In Longo v. Seminole Indian Casino-Immokalee,²⁰ the Eleventh Circuit decided that a casino operated by the Seminole Tribe of Florida was immune from suit under Title VII.²¹ An employee had filed a lawsuit against the casino alleging gender discrimination and retaliation under Title VII. The district court granted the defendant's motion to dismiss on the ground that the tribe was a federally recognized tribe entitled to sovereign immunity.²² On appeal, the Eleventh Circuit noted that whether a tribe was "federally acknowledged" was determined by whether it was included on a list published by the Bureau of Indian Affairs.²³ Since the Seminole Tribe was included on the Bureau's list, the

[Page 984]

Eleventh Circuit held that it was bound by the Bureau's determination, and affirmed the district court's dismissal on grounds of sovereign immunity.²⁴

B. Disparate Treatment—Burden of Proof

1. Mixed Motive.

In Quigg v. Thomas County School District,²⁵ a case of first impression, the Eleventh Circuit determined the appropriate burden of proof in a mixed motive case relying on circumstantial evidence (as opposed to direct evidence of discrimination).²⁶ The plaintiff was employed as the superintendent of the Thomas County School District. After several years of a tumultuous relationship with several school board members, the school board voted five to two against renewing the plaintiff's contract. There was evidence that, following the vote, one of the school board members had remarked that the plaintiff "needed a strong male to work under her to handle problems, someone who could get tough."²⁷ The plaintiff then filed a gender discrimination and retaliation lawsuit pursuant to both Section 1983 of the Civil Rights Act of 1866²⁸ and Title VII. The district court granted summary judgment for the school board.²⁹

On appeal, the primary issue before the Eleventh Circuit was the proper burden of proof in the plaintiff's mixed motive gender discrimination claim. The court of appeals found that, at least at the summary judgment stage, the proper framework was not the traditional McDonnell Douglas test adopted by the Supreme Court,³⁰ but rather, the test annunciated by the United States Court of Appeals for the Sixth Circuit in White v. Baxter Healthcare Corp.³¹ Under that test, in order to defeat summary judgment in a mixed motive claim, the plaintiff need only present evidence sufficient to show that (1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] "was o motivating factor" for the defendant's adverse employment action.³² In applying the test, the Eleventh Circuit found that there was

[Page 985]

a disputed issue of material fact as to whether the plaintiff had been discriminated against on account of her gender, and remanded the case for consideration of this issue, as well as the defendant's "same decision" defense (namely, whether the defendant would have taken the same action notwithstanding its partial discriminatory motive).³³

2. Failure to Hire.

In EEOC v. Catastrophe Management Solutions,³⁴ the issue was whether the defendant discriminated against an African-American job applicant when it failed to hire her pursuant to its race-neutral grooming policy when she refused to cut her dreadlocks. The defendant was a claims processing company in Mobile, Alabama that provided customer service support to insurance companies. The applicant applied for a customer service representative position, and came to her job interview "dressed in a blue business suit and wearing her hair in short dreadlocks."³⁵ The defendant initially offered the applicant a job, but then rescinded the job offer when she would not comply with the defendant's race-neutral grooming policy by cutting her hair. The Equal Employment Opportunity Commission (EEOC) brought suit on the applicant's behalf, alleging race discrimination pursuant to Title VII. The district court granted the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).³⁶

On appeal, the Eleventh Circuit clarified that the EEOC was bringing only a disparate treatment claim, and not a disparate impact claim alleging that the race-neutral grooming policy had a discriminatory impact on African-Americans.³⁷ The EEOC's theory was that the defendant's application of its grooming policy constituted racial discrimination on its face "because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent."³⁸ In rejecting this argument, the Eleventh Circuit concluded as follows:

Critically, the EEOC's proposed amended complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons, and in fact stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race. That dreadlocks are a "natural outgrowth"

[Page 986]

of the texture of black hair does not make them an immutable characteristic of race.³⁹

Noting that the EEOC's position ran "headlong into a wall of contrary caselaw,"⁴⁰ the court of appeals noted that it was tasked with simply interpreting the law, and not "with grading competing doctoral theses in anthropology or sociology."⁴¹ After noting the court's respect for the plaintiff's "[intensively] personal decision and all [that] it entails,"⁴² the court of appeals affirmed the district court.⁴³

In Calvert v. Doe,⁴⁴ an interesting unpublished decision, the plaintiff lost his primary argument on appeal, but still managed to gain a reversal of the employer's summary judgment ruling below.⁴⁵ The plaintiff had previously filed a Title VII race discrimination claim...