Labor and Employment

• Publication year: 2022

Labor and Employment

W. Jonathan Martin II

Patricia-Anne Brownback

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Labor and Employment

W. Jonathan Martin II^*

Patricia-Anne Brownback^**

I. Introduction

This Article focuses on recent cases concerning federal labor and employment laws.¹ The following is a discussion of those opinions.²

II. Title VII of Civil Rights Act

Title VII of the Civil Rights Act (Title VII)³ does not allow employers to discriminate based on the protected classes of: race, color, religion, sex, or national origin.⁴ This includes limiting, segregating, or classifying employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."⁵ For employees to prove disparate impact under Title VII, they must demonstrate that the

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employer used a particular employment practice on the basis of one of the above protected classes and the employer cannot show that the alleged practice is job related and related with business necessity.⁶ "[T]he plaintiff in an employment discrimination lawsuit always has the burden of demonstrating that, more probably than not, the employer took an adverse employment action against him on the basis of a protected personal characteristic."⁷ Generally, employees are unable to utilize the "traditional framework" of direct evidence to prove their case, so the Supreme Court of the United States developed a three-part, burden-shifting analysis to "make matters somewhat easier for plaintiffs in employment discrimination suits" using circumstantial evidence.⁸

Under the McDonnell Douglas framework, one must first present a prima facie case of discrimination.⁹ Once a plaintiff meets this initial burden, the burden of production shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employe[r]'s [action]."¹⁰ After this, the plaintiff, who retains the burden of persuasion throughout, must then "show by a preponderance of the evidence that the defendant's legitimate reasons were not the reasons that actually motivated its conduct, that the reasons were merely a 'pretext for discrimination.'"¹¹

A. Adverse Action under Title VII

In Davis v. Legal Services Alabama, Inc.,¹² the United States Court of Appeals for the Eleventh Circuit held, as a matter of first impression, a paid suspension alone was not an adverse action for the purposes of Title VII and Section 1981 claims.¹³ Arthur Davis, an African American, became the Executive Director of Legal Services Alabama (LSA) in 2016 and started having issues with his employees shortly after he began. Subsequently, some of the employees complained to LSA's Executive Committee. The Executive Committee voted to suspend Davis with pay pending investigation into the complaints. Following the suspension, LSA posted a security guard outside of the office and hired a political consultant, who happened to be a foe of Davis, to handle any public

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relations related to the matter. Four days after notification of his suspension, Davis submitted his resignation. He filed suit alleging race discrimination under 42 U.S.C. § 1981 and Title VII. The United States District Court for the Middle District of Alabama determined that Davis was not subject to an adverse action. This was fatal to his claims as Davis could not overcome the initial burden¹⁴ under the McDonnell Douglas burden-shifting analysis.¹⁵

Here, the question considered by the court was whether a simple paid suspension was an adverse action under Title VII or section 1981.¹⁶ Consistent with every other circuit, the court held that it was not, reasoning that a paid suspension is a "useful tool for an employer to hit 'pause' and investigate when an employee has been accused of wrongdoing."¹⁷ Here, Davis did not disagree. However, Davis argued that his suspension was not just a simple paid suspension. Davis argued that the paid suspension was converted into an adverse action because LSA also disclosed the suspension to the political consultant; the suspension occurred days before a high-profile LSA reception with the State Bar; the Executive Committee issued a suspension letter; and LSA placed a guard outside the building.¹⁸ The Eleventh Circuit disagreed, concluding that there was no evidence that any of these actions were intended to embarrass Davis, or that any of LSA's actions were out of the ordinary from their normal practice.¹⁹ Therefore, the paid suspension was not an adverse action and his claim failed.²⁰

B. Religious Discrimination

In Bailey v. Metro Ambulance Services, Inc.,²¹ the Eleventh Circuit affirmed the United States District Court for the Northern District of Georgia's grant of summary judgment for the plaintiff, Bataski Bailey's claims of religious discrimination, religious failure to accommodate, and retaliation.²² Bailey applied online for a part-time paramedic position

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with Metro Ambulance Services, Inc. (AMR). On his application Bailey selected that he had never been fired or asked to resign from a job. Bailey was subsequently hired and during orientation Bailey was informed that his facial hair, a goatee, was in violation of the grooming policy for emergency transports. Bailey was a practicing Rastifarian, and an important part of the religion is growing facial hair because it is seen as sacred.²³

Bailey disagreed with the policy and took his concerns up the chain from his lieutenant to Human Resources.²⁴ Bailey was told that if he wanted to keep the facial hair that he could work on the non-emergency transport side for AMR.²⁵ Unhappy with this response, Bailey threatened suit. Upon learning of the threat of litigation, AMR's in-house counsel started to conduct due diligence on Bailey by googling him. During this investigation, the in-house counsel found a lawsuit Bailey brought against his former employer for wrongful termination. Bailey submitted a declaration stating that he was terminated from the Company, which was inconsistent with his answer on his application for AMR. Because Bailey refused to work non-emergency and he was not in compliance with the grooming policy to work emergency transports, he was placed on unpaid leave. Eventually, Bailey was terminated for falsifying information on his application. Bailey sued, and the district court granted summary judgment on all of his claims.²⁶

On appeal, the Eleventh Circuit affirmed.²⁷ The court held that the option for working non-emergency transport was a reasonable accommodation because Bailey's salary, hours, and duties would all have remained the same.²⁸ Lastly, the court agreed with the district court that Bailey could not maintain a claim of retaliation because Bailey failed to demonstrate that his protected activity, suing his former employer, was the but-for cause of his termination.²⁹ AMR had a history of terminating employees who falsified information on their application, including employees who were not Rastafarians and employees who did not request accommodation for their religious beliefs.³⁰

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C. Retaliation

In Babb v. Secretary, Department of Veterans Affairs,³¹ the Eleventh Circuit revisited claims asserted by Babb for Title VII retaliation and hostile work environment.³² Previously, the Supreme Court granted certiorari in Babb v. Wilkie,³³ and reversed the Eleventh Circuits prior ruling on Babb's age discrimination claim.³⁴ On remand, the Eleventh Circuit remanded that claim and the gender discrimination claim and affirmed summary judgment on the Title VII retaliation and hostile work environment claim.³⁵ Subsequently, the Eleventh Circuit granted rehearing on the latter issues because Babb argued that the prior precedent relied upon by the court for the Title VII retaliation claim was invalidated by the Supreme Court decision, and an intervening decision undermines the grant of summary judgment for the hostile work environment claim.³⁶

Plaintiff Norris Babb was a clinical pharmacist for the VA medical center in Florida.³⁷ The VA instituted a new promotions program, which Babb and her colleagues believed discriminated on the basis of age and gender. Babb alleged that her "advanced scope" designation that made her eligible for promotion was taken away; she was denied training opportunities and was passed over for positions in the hospital's anti-coagulation clinic; and her holiday pay was reduced when she was placed in a new position.³⁸ She relied on evidence that supervisors made age-based comments to support her allegations that these personnel decisions were based at least in part on her age.³⁹

The Supreme Court determined that "age need not be a but-for cause of an employment decision in order for there to be a violation of [the federal sector provision under The Age Discrimination in Employment Act (ADEA)]."⁴⁰ The key statutory language in the ADEA that the Court relied on was that plaintiffs must only show that "'age discrimination plays any part in the way a decision is made.'"⁴¹ With this determination and reliance on that language, Babb argued that the

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Eleventh Circuit's precedent in Trask v. Secretary, Department of Veterans Affairs,⁴² which addresses the federal sector provision under Title VII, must also be overturned.⁴³ The relevant language in Title VII states: "[a]ll personnel actions affecting employees . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin."⁴⁴ This language mirrors that in the ADEA statute. Thus, the Eleventh Circuit held that the Supreme Court's analysis of the causation standard in its Babb decision should also apply to Title VII retaliation claims.⁴⁵ The grant of summary judgment on the Title VII claim was vacated and the claim was remanded for adjudication under the new, correct standard.⁴⁶

As for Babb's hostile work environment claim, she contended that the...