Kentucky Employment Law Blog

Discrimination Based On Advocacy For or Association With Co-Worker

Discrimination against an employee based on his or her advocacy for or association with a co-worker of a different race is a violation of Title VII of the 1964 Civil Rights Act. This is because a white employee discriminated against because of his or her association with an African-American co-worker is discriminated on the basis of his or her race, because the discrimination stems from disapproval of the interracial association and therefore on the employee’s own race. The Sixth Circuit recently held in Barrett v. Whirlpool Corporation, No. 08-5307 (February 23, 2009), that the degree of association or advocacy was immaterial to the employee's claims.  

A violation could be shown if an employee shows that (1) she was discriminated against at work, (2) because she was associated with members of a protected class, regardless of the degree of association. Similarly, the degree of advocacy is irrelevant to such a claim. While the court acknowledged that “as with association, severe or pervasive discriminatory harassment [is] more likely to correlate with more vigorous advocacy, it is unnecessary as long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees."  Furthermore, the court added that in assessing the proof of whether an actionable hostile work environment existed “both types of impermissible harassment are considered in the aggregate to determine whether they were so severe or pervasive as to be actionable under the established hostile work environment standard.” However, the court cautioned that this does not include evidence of incidents of harassment directed at African-Americans but “only harassment that specifically targeted those who associated with and advocated for African-Americans would result in actionable hostile work environment claims for such individuals.”

The court ruled that a jury could find that one plaintiff, Nickens, was subjected to a severe or pervasive hostile work environment based on the following: she received a threat of physical violence for reporting racist language, she was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker, and the same relationship was allegedly used as a reason to prevent her from applying for improved job positions. Furthermore, she had reported nearly all the relevant incidents to one of two supervisors, who failed to take corrective action, while both participating in harassment of her directly. The court took care in this case to specify that a white employee discriminated against because of his or her association with an African-American is discriminated on the basis of his race, because the facts support a finding that the discrimination was based on disapproval of the interracial association and therefore on the employee’s own race.

Robert L. Abell
www.RobertAbellLaw.com

Fired Because of A Sick Family Member: Protection Against "Association Discrimination"

One of the most important benefits most people get from their jobs is health care insurance for themselves and their families.  This health insurance becomes of vital importance when a family member falls into a prolonged illness.  From the employer's perspective, especially where the employer is self-insured, a prolonged illness for an employee's family member becomes a cost liability which can create an incentive for the employer to rid itself of both the employee and their sick family member.  Where this occurs the Americans With Disabilities Act (ADA) may provide some protection for the employee and their family.

The ADA prohibits discrimination against an employee "because of the known disability of an individual with whom the [employee] is known to have a relationship or association."  This is commonly referred to as protection against association discrimination.  Two recent cases, one decided by the United States Court of Appeals for the Seventh Circuit DeWitt v Proctor Hospital, and Trujillo v Pacificorp  decided by the United States Court of Appeals for the Tenth Circuit illustrate this protection and in both cases the employer was self-employed.

In Dewitt, the employee's husband became ill with prostrate cancer.  The employer paid medical costs up to $250,000 per year before a "stop loss" policy kicked in.  Each quarter the employer had compiled a roster of all employees whose claims had exceeded $25,000.  When the bills for the employee's husband's treatment began mounting she was confronted about them and asked what type of treatment he was receiving and whether less expensive alternatives had been considered.  The hospital became concerned about the costs, its own overall financial situation and resolved to be "creative" in cutting costs.  And so the employee was fired. 

The Court ruled that a jury should consider the employee's claim of "association discrimination" in violation of the ADA.  It noted that the firing followed close in time expressions of concern to the employee regarding the costs of her husband's medical care and the employer's resolution to be "creative" in cutting costs.  Therefore, the court ruled that a reasonable juor could conclude the employer was concerned that the husband's illness could linger for years and at great cost to the employer and so therefore the employee was fired in violation of the ADA. 

Trujillo v. Pacificorp presents a similar sad story.  The Trujillos, husband and wife, both worked for Pacificorp and had for many years, he for 25 and she for 8 years.  Their son developed a brain tumor that metasized into his spine.  Aggressive and costly (in excess of $62,000) experimental chemotherapy was undertaken but was unsuccessful.  Pacificorp designated claims exceeding $50,000 as high-dollar and healthcare costs for each employee were factored into the plant's budget line item for labor costs. 

Eleven days after the Trujillos' son suffered a relapse and began the final chemotherapy regiment the employer began an investigation into alleged time theft by the Trujillos.  The evidence showed that the company did not use a time clock, that supervisors usually approved employees' time sheets based on their observations during the work day, that time sheets were somtimes filled out in advance, that supervisors sometimes allowed employees to leave early but to record a full shift, and that employees frequently used a "piggyback" procedure to pass through a security gate in which one employee would use his security card to get the gate to open and other employees would walk in as well.  Nonetheless, Pacificorp accused both of the Trujillos with time theft and terminated them.

The court ruled that evidence that Pacificorp had general concerns about the rising cost of healthcare, that the claims for the Trujillos' child were considered "high dollar," that there was only one other "high dollar" claim during the relevant time frame on which the employer kept close tabs, that insurance costs were factored into the budget line item for labor costs of each employee, and that the investigation regarding the Trujillos' alleged time theft was one-sided and incomplete was enough for a jury to find in their favor at trial. 

The DeWitt and Trujillo cases also illustrate general problems that arise from the United States' system of employer-based healthcare insurance.  It seems reasonable for employers to be concerned about rising healthcare costs and the effects those costs have on their ability to compete in their business fields.  And yet it is horribly unfair to fire an employee because they have an ill family member that is generating substantial insurance costs for the employer.  The current system and the ADA mandate that cost be borne solely by the employer who is unlucky enough to employ an individual unlucky to have a family member suffering from a serious illness.  One might reasonably suggest that a single-payer system in which the costs were borne more widely would be more equitable and fair to both the employer and the employee.  It may also eliminate the impulse for "association discrimination" behind both of these cases. 

Robert L. Abell
www.robertabelllaw.com

Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII

    Does Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action?  "Yes" answered the Sixth Circuit Court of Appeals in its decision Thompson v. North American Stainless, LP (decided March 31, 2008).  This case appears to the first decision by a court of appeals holding unambiguously that a victim of third-party retaliation has a cause of action under Title VII. 

    The plaintiff, Thompson, was engaged to a co-worker, Regalado, an engagement well-known throughout the workplace, and she filed a gender discrimination charge with the EEOC.  Slightly more than three weeks after the employer learned of Regalado's charge, it fired Thompson, her fiancee. 

    The Sixth Circuit reversed a summary judgment granted by the district court reasoning that allowing such third-party retaliation would undermine the purposes of Title VII.  The court conceded that a literal reading of the applicable statutory language may not authorize a cause of action for third-party retaliation.  However, the court likewise and correctly recognized that courts are charged, as the Supreme Court has observed on numerous occasions, to go beyond a statute's literal language when necessary to avoid a result at odds with its plain purpose.   The purpose of Title VII's anti-retaliation provision, the court reasoned, was to prohibit employer actions that would dissuade a "reasonable worker" from filing a charge of or reporting on discrimination.  Since firing a family member or other close association would likely have such effect, the court concluded that Title VII must be construed to authorize a direct cause of action for third-party retaliation. 

    As a practical matter, the Sixth Circuit's holding should not open a new avenue of potential liability for employers.  Title VII's anti-retaliation provision prohibits conduct likely to deter a "reasonable worker" from making a charge or report of discrimination.  An employee who has made a charge of discrimination and then has their spouse fired in retaliation would certainly have a cause of action for retaliation.  It would seem to make little, if any, different then in terms of potential employer liability whether the cause of action for retaliation is by the third-party spouse or the employee who has made the discrimination charge. 

Robert L. Abell
www.robertabelllaw.com