Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 1995

Employment Discriminationby Peter Reed Corbin^* and John E. Duvall^**

Perhaps the most surprising development during the 1994 survey period is what did not happen, as opposed to what did happen.¹ The anticipated stampede of decisions under the Americans With Disabilities Act of 1990² (the "ADA"), has not yet happened, at least at the circuit court of appeals level. Not a single ADA case was handed down by the Eleventh Circuit during the survey period. Since, at last count, there were over 30,000 ADA charges pending³ at the administrative charge level, this most certainly will change in the very near future. The year 1994 will also be remembered as the year that the United States Supreme Court finally resolved the issue of whether the Civil Rights Act of 1991 is to be retroactively applied.⁴ By determining that the statute is not retroactive, the Court restored certainty to an issue which had spawned literally multitudes of conflicting decisions throughout the United States. In another extremely important opinion, the High Court also addressed the "after-acquired evidence" defense, placed considerable limitations on the defense, and thereby reversed what had become a substantial body of authority endorsing the doctrine.⁵ Not to be completely outdone, the United States Court of Appeals for the Eleventh Circuit also handed down several significant decisions, especially in the area of consent decrees and affirmative action plans,⁶ as well as the parties' respective burdens of proof under the Equal Pay Act.⁷

I. Title VII of the Civil Rights Act of 1964

A. Theories of Liability and Burdens of Proof

Disparate Treatment Cases. Until the Supreme Court's recent decision in St. Mary's Honor Center v. Hicks,⁸ the analytical framework in the typical disparate treatment case (i.e., those cases where there is no direct evidence of discrimination), had been as constant as the North Star. As provided in the Supreme Court's 1973 decision in McDonnell Douglas Corp. v. Green,⁹ and reaffirmed in Texas Department of Community Affairs v. Burdine,¹⁰ the plaintiff bears the initial burden of establishing a prima facie case of discrimination.¹¹ If the plaintiff satisfies this initial burden, then the defendant must meet the "exceed- ingly light" burden¹² of articulating "some legitimate, nondiscriminatory reason" for its employment decision.¹³ It is at this stage of the inquiry that the Supreme Court modified the analytical framework somewhat in Hicks. Prior to Hicks, if the plaintiff could then establish that the employer's profferred reason was false, or pretextual, then a judgment for the plaintiff was automatic.¹⁴ However, in Hicks, the Court ruled that, after the defendant meets its burden of production, the "McDonnell Douglas framework—with its presumptions and burdens—is no longer relevant."¹⁵ Instead, the Court continued, the "sole inquiry" at that point becomes whether the plaintiff has established that the defendant "intentionally discriminated" against the plaintiff for an "impermissible reason."¹⁶

Although the Hicks standard has been criticized in some circles as unduly favoring employers in the face of long-established precedent, the Hicks standard was of no benefit to the employer in Batey v. Stone.¹⁷ A race discrimination case alleging the discriminatory failure to promote, the district court in Batey granted summary judgment for the employer, the Anniston Army Depot ("ANAD"), located in Anniston, Alabama.¹⁸ Plaintiff, a white female, had worked as a civilian with the Army since 1958, and had worked her way up to Chief of the Production, Planning & Control Division in supply, a GS-12 position she had obtained in October, 1988. She was the first female to hold this position. The other division chiefs within the supply unit were all males. The primary litigation issue concerned the creation of a new position, Acting Director of Supply, a GM-13 position. The creation of this new position allegedly abolished the Deputy Director of Supply position. The new position was awarded to a male, Fred Fomby, the Chief of General Supply, on the theory that the new job description for the Acting Director position had merged the job description of Chief of General Supply (Fomby's position) with that of Deputy Director of Supply (the position allegedly abolished).¹⁹

On appeal, the Eleventh Circuit reversed, finding that a material issue of fact remained as to whether the promotion decision had been undertaken with discriminatory intent.²⁰ The court found that, on the basis of the evidence, it was unclear why the Deputy Director position had been merged with General Supply (Fomby's position) rather than Production, Planning & Control (plaintiff's position), since there was evidence in the record that the Chief of Production, Planning & Control was better suited for the new position.²¹ In short, the court found that the evidence raised the question as to whether the matrix utilized in filling the new Acting Director position had been "fixed" to select a predetermined candidate, and thereby favor the male (Fomby) over the female (plaintiff).²²

Summary judgment in favor of the employer did not fair any better upon reaching the Eleventh Circuit in Turnes v. AmSouth Bank, A/A.²³ However, unlike Batey, the court focused its decision upon whether the employer had adequately met its burden of production under the Burdine framework.²⁴ Plaintiff, a black male, had applied for a position as a loan collector at defendant bank. The bank hired several loan collectors, all of whom were white, and all of whom had less collection experience than plaintiff. The bank maintained that it had a policy requiring its employees to have "clear credit." However, no credit check was performed on plaintiff until after he had filed his discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). The credit check revealed that plaintiff had a poor history of paying on a loan and also had overdrawn his checking account on numerous occasions.²⁵ The district court granted summary judgment in the bank's favor on the basis of this evidence.²⁶

On appeal, the Eleventh Circuit reversed, finding that defendant could not rely on the credit history evidence to meet its burden of production, since it had no knowledge of this information at the time it rejected plaintiff's application.²⁷ Even though the court acknowledged that the employer's intermediate burden was one only of production, not persuasion, the court found that this burden could not be met with a "hypothetical justification for its decision."²⁸ Accordingly, the court found that plaintiff's prima facie case stood unrebutted.²⁹ However, the court remanded the case to resolve the issue of whether defendant could meet its burden of establishing a Mt. Healthy defense, i.e., whether defendant could show that it would not have hired plaintiff even absent its discriminatory motive.³⁰

The third typical disparate treatment case during the survey period, Wilson v. AAA Plumbing Pottery Corp.,³¹ produced a very divided opinion among the panel hearing the case. Plaintiff was a security guard with AAA Plumbing Pottery Corp. Several years after plaintiff was hired, AAA stopped employing security guards, and transferred plaintiff to a full-time janitor position. In 1990, after working as a full-time janitor for approximately five years, AAA fired plaintiff after deciding to contract for its janitorial services. AAA then entered into a one year contract with an African-American owned company to perform its janitorial services after firing plaintiff. After terminating its relationship with the janitorial service, AAA then gave the janitorial job to one of its own employees, a white female.³² Following a bench trial, the district court found that defendant had not discriminated against plaintiff in abolishing the full-time security guard and janitor position, but found that AAA had discriminated against plaintiff on account of his race by failing to offer him at least a part-time janitorial job at the same rate of pay for which it could have contracted the services.³³ Key to the court's decision was the fact that AAA had accommodated a white supervisor by transferring him to the job of watchman when he could no longer perform his supervisory duties for health reasons.³⁴ On appeal, the panel majority, in an opinion authored by Circuit Judge Hatchett, found that the district court's decision was not clearly erroneous,³⁵ assertedly applying the rule announced in Mitchell v. Worldwide Underwriters Insurance Co.³⁶

In a vigorous dissent, Circuit Judge Edmondson reasoned that the panel majority's opinion struck at the heart of a "core business decision"; that is, whether a business decides to "staff itself with full-time employees, part-time employees, independent contractors or some mix . . . ."³⁷ The dissent was critical of the district court and the panel majority for seemingly requiring, as a matter of law, that the employer create a new part-time janitor position as an accommodation to the terminated employee.³⁸ The dissent concluded that: "[t]he district court and this court seem to think that Title VII requires employers to offer minority employees an opportunity to 'match' an outside independent contractor's price for the work, before the employer may contract the job out lawfully. This law is new to me."³⁹ Clearly, the dissent would have reversed the district court's judgment, a decision which the authors wholeheartedly concur with.

Sexual Harassment. One case addressing the volatile issue of sexual harassment reached the court of appeals during the survey period. In Virgo v. Riviera Beach Associates, Ltd.,⁴⁰ plaintiff was employed as the general manager of the Sheraton Ocean Inn, located on the east coast of Florida, north of Miami. The Sheraton was owned by Riviera Beach Associates, a limited partnership, and managed by Sterling Group, who directly employed plaintiff. Plaintiff alleged that her superior...