Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2000

Employment Discrimination by Peter Reed Corbin* and

John E. Duvall**

The 1999 survey period was another active year for employment discrimination litigation in the Eleventh Circuit and before the United States Supreme Court.¹ In addition to the many cases decided by the Eleventh Circuit, the Supreme Court rendered several key decisions defining the scope of the Americans with Disabilities Act and redefining the concept of sovereign immunity. The Court also set standards for punitive damages awards under Title VII. Each of these decisions are discussed in detail below.

I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

A. Jurisdiction

Since its inception in 1964, Title VII has never applied to small employers. Indeed, it excludes from the definition of "employer" those employers with fewer than fifteen employees.² In Scarfo v. Ginsberg,³ the issue before the Eleventh Circuit was the following: in situations in which there is a dispute over whether a defendant meets the definition of "employer" under Title VII, is this a question to be resolved by the jury or by the court? Defendants were several corporations, all owned or partially owned by the same individual. None of these corporations individually employed the requisite fifteen employees, but if all the corporations were grouped together as a single employer, clearly Title VII would apply. Even though the facts were disputed as to whether the various corporations were so interrelated as to constitute a single employer, the district court made factual findings on this issue because it related to subject matter jurisdiction. Finding that defendants did not constitute a single employer, the district court dismissed for lack of jurisdiction.⁴ In a split decision, the Eleventh Circuit affirmed and held that the issue of whether defendants constituted an employer within the definition of Title VII was a "threshold jurisdictional issue."⁵ The court further found that when faced with factual disputes concerning the issue of subject matter jurisdiction, it was proper for the district court, rather than the jury, to weigh the evidence and serve as the factfinder.⁶

B. Theories of Liability and Burdens of Proof

1. Direct Evidence. In the typical disparate treatment case under Title VII, the plaintiff proceeds under one of two basic models of proof: (1) direct evidence of discriminatory intent; or (2) the familiar McDonnell Douglas circumstantial evidence model.⁷ In two cases decided during the survey period, the Eleventh Circuit grappled with the issue of what constitutes direct evidence of discrimination. Interestingly, although the intent was to settle a confusing area of the law, the court ended up merely confusing the issue even more.

In the first case, Schoenfeld v. Babbitt,⁸ plaintiff brought claims of race and gender discrimination against the United States Department of Interior, Fish and Wildlife Service relating to the Service's refusal to hire plaintiff for a biologist position. The district court granted summary judgment for the Service on both claims.⁹ On appeal the Eleventh Circuit addressed whether plaintiff had presented direct evidence of discrimination. The court found that direct evidence of discrimination is evidence that, ' "if believed,' " proves the issue of discrimination ' "without inference or presumption.' "¹⁰ Relying on its prior decision in Carter v. City of Miami,¹¹ the court concluded that direct evidence was composed of' "only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor."¹² The alleged direct evidence consisted of three different statements made by persons involved in the hiring process.¹³ The Eleventh Circuit agreed that "[a]lthough these statements suggest discrimination, they are not the type of 'blatant remarks' from which discrimination can be found without the aid of an inference."¹⁴ However, because the court also found that plaintiff had presented sufficient circumstantial evidence of gender discrimination to create a disputed issue of material fact, it remanded that portion of the case for trial.¹⁵

In Wright v. Southland Corp.,¹⁶ the Eleventh Circuit adopted a different definition of direct evidence of discrimination. Plaintiff brought claims under both the ADEA and Title VII, alleging that he was discharged because of his age and was retaliated against for filing an EEOC charge. The district court granted summary judgment for defendant on both claims.¹⁷ On appeal, in a lengthy and scholarly opinion authored by Judge Tjoflat, the court attempted to clarify the definition of direct evidence (an issue that the court noted had "baffled courts and commentators for some time"),¹⁸ but the end result is that the issue is now confused even more. The court referred to the definition of direct evidence from Schoenfeld as the "dictionary definition" of direct evidence.¹⁹ However, the court adopted an entirely different definition that it labeled the "preponderance definition" of direct evidence.²⁰ Under this definition, direct evidence is evidence "from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic."²¹ This is a much lower threshold than the "blatant remark" type of direct evidence required in Schoenfeld and, indeed, would mean that the vast majority of employment discrimination suits involve direct evidence of discrimination. Interestingly, however, although the other judges on the panel in Wright concurred in the result (finding that there was sufficient disputed evidence to warrant reversal of summary judgment), both judges expressly stated that they did not join Judge Tjoflat's opinion.²² Accordingly, it is questionable as to what, if any, precedential value this case has.

2. Sexual Harrassment. Two cases decided during the survey period addressed the ever-troublesome issue of sexual harassment in the workplace. The first case, Dees v. Johnson Controls World Services, Inc. ,²³ addressed the issue of whether defendant took adequate remedial measures in response to a complaint of sexual harassment. Plaintiff was employed as an office coordinator within defendant's fire department. Defendant had a contract with the United States Navy to provide fire protection, security, and related services to the submarine base located at Kings Bay, Georgia. Over a period of three years, plaintiff was subjected to a continuous barrage of sexual harassment by the fire chief and assistant chief. The harassment took a variety of forms, including sexually explicit stories, jokes, comments about body parts, and physical harassment. Plaintiff finally lodged a formal complaint with the Human Resources Department, which, after an ensuing investigation, resulted in plaintiff being transferred to a new position with no loss in salary or benefits and both harassers being fired. In response to plaintiff's subsequent sexual harassment action under Title VII, the district court granted summary judgment, finding that defendant was not liable because it had taken prompt remedial action.²⁴ On appeal, however, the Eleventh Circuit focused on evidence that defendant had notice of the harassing conduct well before plaintiff's formal complaint and had taken no action (such as a comment from a Human Resources employee that the alleged harassers were "up to their old tricks again" and that the same type of complaints involving the same individuals had been investigated several years earlier).²⁵ Finding the issue of prior notice to be a disputed issue of material fact, the Eleventh Circuit reversed and remanded the case for further proceedings.²⁶

In the second case, Mendoza v. Borden, Inc.,²⁷ the Eleventh Circuit, in an en banc decision, addressed the level of proof necessary to support a claim for sexual harassment based on a hostile environment. The district court granted defendant's Rule 50(b) motion for judgment as a matter of law.²⁸ Referring to the Supreme Court's decision in Harris v. Forklift Systems, Inc.,²⁹ the court noted that hostile environment claims include both a subjective and an objective component.³⁰ With respect to the objective component, the court identified the following four factors that the Supreme Court said should be considered in determining whether the harassment was sufficiently pervasive to alter an employee's terms or conditions of employment: "(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance."³¹

The court found factors two, three, and four to be completely absent.³² The court also found that factor one was for the most part lacking.³³ The court summarized the evidence as follows:

(1) one instance in which [the harasser] said to [plaintiff] "i'm getting fired up"; (2) one occasion in which [the harasser] rubbed his hip against [plaintiff's] hip while touching her shoulder and smiling; (3) two instances in which [the harasser] made a sniffing sound while looking at [plaintiff's] groin area and one instance of sniffing without looking at her groin; and (4) [the harasser's] "constant" following and staring at [plaintiff] in a "very obvious fashion."³⁴

The court noted that other circuits had found that more severe harassing conduct failed to meet the threshold of what was considered sufficiently severe or pervasive to alter the terms or conditions of employment.³⁵ Thus, the court agreed that the district court had properly entered judgment as a matter of law.³⁶

In a stinging and emotional dissent, Judge Tjoflat (joined by three other judges) criticized the majority opinion as a "model of how not to reason in hostile environment sexual harassment cases."³⁷ Exemplary of Judge Tjoflat's theme is the following:

It is a mystery to me how the court could...