Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2010

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

The United States Supreme Court continued to be extremely active in the realm of employment discrimination during the 2009 survey period.¹ The Court decided five significant employment cases during 2009. Perhaps the most significant was the decision in Gross v. FBL Financial Services, Inc.,² in which the Court handed employers a huge victory as to the burden of proof necessary to establish age discrimination claims pursuant to the Age Discrimination in Employment Act of 1967 (ADEA).³ On the other hand, employees were the clear winner in Crawford v. Metropolitan Government of Nashville,⁴ in which the Court expanded the scope of potential retaliation claims pursuant to Title VII of the Civil Rights Act of 1964 (Title VII).⁵ Finally, in Ricci v. Deste-fano,⁶ the Court, in upholding the use of test scores for promotion to lieutenant and captain within the New Haven, Connecticut Fire Department, held that the city could not lawfully engage in disparate treatment discrimination in order to avoid a good faith concern that its test for promotion resulted in disparate impact discrimination.⁷

In stark contrast to the Supreme Court, the most significant trend during the survey period for the United States Court of Appeals for the Eleventh Circuit was the huge decrease in the number of employment discrimination cases handed down by the court during the survey period. In recent years, the court has followed a trend of handing down fewer and fewer published employment discrimination opinions; however, this trend had been offset by the significant increase in unpublished decisions handed down by the appellate court. While the trend toward fewer published decisions continued during the 2009 survey period (indeed, there was only one published Title VII opinion during the entire survey period, and only three published employment discrimination decisions overall), there was also a marked decrease in the number of unpublished discrimination opinions during the survey period. In 2008 the Eleventh Circuit handed down approximately eighty-five unpublished Title VII opinions and approximately one hundred twenty unpublished employment discrimination opinions overall;⁸ in 2009 the number of unpublished opinions dwindled to only twenty-six unpublished Title VII opinions and forty-five unpublished employment discrimination opinions overall—or approximately one-third of the number of cases handed down the previous year. This is an indication that the law in this area is becoming so well established that not only are there fewer and fewer unanswered questions for the appellate court to address, but practitioners have greatly diminished the number of appeals they are pursuing above the trial court level.

I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

A. Theories of Liability and Burden of Proof

1. Disparate Treatment. In Ricci v. Destefano,⁹ the United States Supreme Court was confronted with a challenge to the test for promotion to the rank of lieutenant or captain within the Fire Department of New Haven, Connecticut. Despite the City of New Haven's efforts to make sure that it developed a promotion test that was fair, job-related, and nondiscriminatory (including the hiring of an outside consultant to achieve this result), the actual test results brewed a firestorm of debate. White candidates clearly outperformed minority candidates. For instance, of the ten candidates eligible for promotion to lieutenant as a result of the test, all ten were white. Of the nine candidates eligible for promotion to captain, seven were white and two were Hispanic. No black candidate was included in the group eligible for promotion to either position.¹⁰ After several public hearings and much debate,¹¹ the city threw out all of the test scores because of a concern that the test had a discriminatory impact on the black candidates.¹² The white and Hispanic firefighters who were due a promotion based upon the test results then sued the city under both Title VII¹³ and the Equal Protection Clause of the Fourteenth Amendment,¹⁴ alleging that they had been discriminated against on account of their races. The district court granted summary judgment for the defendants, and the United States Court of Appeals for the Second Circuit affirmed this decision.¹⁵

The Supreme Court accepted it as a given that the city—however well intentioned its actions—had discriminated against the white and Hispanic firefighters on account of their race when it threw out the test results.¹⁶ The question before the Court, however, was whether the city had "a lawful justification for its race-based action."¹⁷ The firefighters, of course, argued that such disparate treatment discrimination could only be permitted if the test, in fact, violated Title VII's disparate impact provision. The city, on the other hand, argued that its actions were justified as long as it had a good faith belief that the test was discriminatory in impact. The Supreme Court rejected both arguments and adopted a middle ground.¹⁸ The Court held that before an employer can engage in intentional disparate treatment discrimination for the purpose of avoiding unintended disparate impact discrimination, the employer must have "a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."¹⁹ Because there was no genuine dispute that the city did not have a strong basis in evidence to believe that its promotion test was unlawful under a disparate impact theory, the Supreme Court remanded the case and directed that summary judgment be entered for the firefighters whose test results had been voided.²⁰

In Hyde v. K.B. Home, Inc.²¹ the Eleventh Circuit was confronted with the familiar issue of what constitutes an "adverse action" for purposes of disparate treatment liability under Title VII. The plaintiff brought an action alleging gender and pregnancy discrimination under Title VII. The district court had granted summary judgment for the employer, in part, because it found that the plaintiff had not suffered an adverse employment action.²² On appeal, the plaintiff argued that she had suffered the withdrawal of work assignments while taking intermittent Family Medical Leave Act (FMLA)²³ leave, and this constituted a sufficient tangible employment action under Title VII.²⁴ The Eleventh Circuit disagreed.²⁵ The court of appeals noted that the plaintiff's job title did not change, nor did she receive any reduction in pay.²⁶ Although the plaintiff was reassigned and had some responsibilities reduced while taking intermittent FMLA leave, the court noted that the employer had done so simply to take reasonable steps to ensure that its business operation was not interrupted.²⁷ Finding no "'serious and material change in terms, conditions, or privileges of employment,'"²⁸ the court of appeals affirmed.²⁹

2. Sexual Harassment. In Corbitt v. Home Depot U.S.A., Inc.,³⁰ the Eleventh Circuit's only published Title VII opinion during the survey period, the court was confronted with allegations of male-on-male sexual harassment. The plaintiffs were former Home Depot store managers in Mobile, Alabama, and Pensacola, Florida. Problems began to occur when Leonard "Lenny" Cavaluzzi became Home Depot's regional human resources manager. Within a month of Cavaluzzi's transfer to this position, he began making inappropriate sexual overtures to both of the plaintiffs. The overtures included numerous telephone calls of a sexual nature over a period of months. There were also unwanted physical touchings, which included massaging the plaintiffs' neck and shoulders, playing with their hair, hugging them, and on one occasion putting his hand on one plaintiff's thigh under a table. Both plaintiffs complained about Cavaluzzi's conduct with a store human resources manager. The manager spoke to Cavaluzzi several times, but Cavaluzzi's conduct did not change. The plaintiffs then made a formal complaint pursuant to Home Depot's sexual harassment policy. There were no incidents of harassment after this complaint was made. However, less than a month thereafter, both plaintiffs were terminated as the result of an investigation that allegedly uncovered questionable mark downs and discounted sales.³¹ The plaintiffs brought suit under Title VII, alleging hostile work environment sexual harassment and retaliation. The United States District Court for the Southern District of Alabama granted summary judgment for the defendant, finding that the alleged harassment was not sufficiently severe or persuasive to create a hostile work environment and that there was no causal connection between the plaintiffs' complaint of harassment and the investigation leading to their termination.³²

On appeal, the Eleventh Circuit initially noted that "we apply the same standards to heterosexual sexual conduct and homosexual conduct."³³ In analyzing the alleged harassing conduct, the court of appeals noted that some of Cavaluzzi's comments were "merely complimentary," whereas others were "clearly flirtatious."³⁴ The court also noted that "[a]lthough [the plaintiffs] may be subjectively more uncomfortable because a presumably gay man made the flirtatious comments, this does not factor into the objective component of the analysis."³⁵ The court reached a similar conclusion on the alleged touching incidents and agreed with the district court that the conduct at issue "was not sufficiently severe or pervasive."³⁶ However, the court did conclude that there was enough evidence to show that Cavaluzzi had participated in the investigations leading to the plaintiffs' terminations to create a genuine issue of material fact on the retaliation claim.³⁷

Accordingly, the retaliation claim was remanded for further proceedings, whereas the remainder of the district court's opinion was affirmed.³⁸ The Eleventh Circuit will review this case en banc.³...