Kentucky Employment Law Blog

How Did Sex Discrimination Get Included in the Civil Rights Act?

The Civil Rights Act of 1964 became law on July 2, 1964. Its principal genesis was to secure for African-Americans full equality under our Nation's laws. It also prohibited sex discrimination in employment, an amendment proposed by a reactionary Virginia congressman, Howard Smith, who at the time was Chair of the House Rules Committee. 

In the July 21, 2014, edition of The New Yorker, Louis Menand reviews and discusses two recently-published books commenorating the 50 year anniversary of the Civil Rights Act, "The Sex Amendment: How Women Got In On the Civil Rights Act." The books are "The Bill of the Century" by Clay Risen and "An Idea Whose Time Has Come" by Todd Purdom. 

The review is interesting reading and some of the factual tidbits show how things change very quickly, even where their gestation, as with racial and gender equality, is very long. Those tidbits include the following:

•  In 1956, when Dwight Eisenhower, a Republican, soundly thrashed Adlai Stevenson in the second straight Presidential election, Stevenson, a Democrat from Illinois, carried only seven states, Missouri, Arkansas, Mississippi, Alabama, Georgia, South Carolina and North Carolina, all of which had laws mandating racial segregation.
  
  
• In the 1960 Presidential campaign, Jackie Robinson, then the most admired African-American in the country, campaigned for Richard Nixon. When it was suggested by Nixon's running mate, Henry Cabot Lodge Jr. of Massachusetts, that Nixon might select an African-American for his campaign, John F. Kennedy condemned the suggestion as "racism at its worst."
  
  
• The Kennedy campaign did surreptiously intervene on behalf of Martin Luther King, Jr. when Dr. King was sentenced to four months hard labor in Atlanta. The campaign spread word of these actions among black voters and Kennedy received about 70% of the African-American vote in the 1960 election. No gratitude was shown, however, and the Kennedy administration put civil rights on the back-burner until events forced its hand.
  
  
• The spring of 1963 brought the graphic images of the Birmingham, Alabama police commissioner Eugene "Bull" Connor turning fire hoses and attack dogs on young protestors, some of them children. After Alabama Governor George Wallace's famed and staged "stand in the schoolhouse door" at the University of Alabama in June 1963, the international embarrassment for our Nation combined with the obvious moral imperative caused the Kennedy administration to send the bill that became the Civil Rights Act to Congress on June 19, 1963.
  
  
• Republicans in Congress settled on what seems now the remarkable strategy of proposing their own and  maximalist civil rights legislation; they perceived advantage in putting Democrats in the position of watering-down civil rights legislation.
  
  
• The Republican strategy made some sense: James Eastland, a Democratic Senator from Mississippi and Chair of the Senate Judiciary Committee, described the civil rights bill as a "complete blueprint for a totalitarian state."
  
  
• Faced with the possibility of a discharge petition, Congressman Smith proposed the one-word "sex" amendment during debate on February 8, 1964. Liberal Democrats in the House reacted furiously, believing it to a cynical ploy to poison the bill's future. 
  
  
• Congressman Smith, it turns out, had supported an Equal Rights Amendment (ERA) to the Constitution since 1945. He was friends with a woman named Alice Paul, who had been a militant suffragist to the point of chaining herself to the White House fence and burning President Wilson's speeches in public. The review mentions a biography of Alice Paul, "Alice Paul: Claiming Power" (Oxford) by J.D. Zahniser and Amelia R. Fry. After the Nineteenth Amendment secured for women the right to vote in 1920, Paul and other activists turned their attention to the ERA. In 1923 and every year after that an equal rights bill had been introduced in Congress. Anti-union conservatives believed that the ERA would favor business; Smith was one of them, as textile mills in his district employed large numbers of women.
  
  
• Alice Paul founded the National Women's Party (NWP) in 1913, and it became, over the course of the next several decades, a lobbying group. Seeing the opportunity presented by the Kennedy administration's civil rights bill, Paul asked two NWP members from Virginia to lobby Congressman Smith; they wrote him in December 1963 asking him to add "sex" to the bill.
  
  
• The "sex" amendment was met with derision and ridicule when Congressman Smith introduced it. But the opposition was cowed by arguments offered by Martha Griffiths, a Congresswoman from Michigan, who pointed out that the failure to adopt the amendment would leave white women with no legal protection against employment discrimination.
  
  
• After passage of the Civil Rights Act, the "sex" amendment became known as "the Bunny Law," after a hypothetical case in which a man is turned down for a job as a Playboy Bunny. However, almost one-third of the charges received by the EEOC in its first year alleged sex discrimination.
  
  
• The EEOC proved reluctant to enforce the prohibition against sex discrimination. The National Organization for Women (NOW) had to secure a mandamus writ from the courts ordering EEOC to enforce the sex discrimination prohibition.
  
  
• In 1971, the Supreme Court ruled unanimously in Phillips v. Martin Marietta that the company's policy of not hiring women with children of preschool age violated Title VII. The plaintiff, Ida Phillips, a white woman, was represented by the NAACP's Legal Defense and Education Fund.

 And, of course, much has happened since. Sandra Day O'Connor became the first woman on the Supreme Court in 1983. Geraldine Ferraro became the first woman on a major party's Presidential ticket in 1984. Senator Eastland, who had called the civil rights bill the beginnings of a "totalitarian state," was reelected, hired many blacks as staffers to the Judicary Committee and worked closely with Ted Kennedy, until declining to run for re-election in 1978 when challenged by Republican Thad Cochran, who recently prevailed in a Republican primary based in significant part on the support of black voters, "It Looks Like African-Americans Really Did Help Thad Cochran Win." Howard Smith, however, lost his seat in the 1966 midterms.

Robert L. Abell
www.RobertAbellLaw.com

 

 

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The Gender Wage Gap: An Infographic

There exists a gender wage gap of 23 cents on the dollar; in other words, women make 77 cents for each dollar made by a man. Some say there are legitimate even good reasons for this disparity. In some instances, of course, this is true. But 25+ years of practicing employment law has taught me beyond a reasonable doubt that in the vast majority of instances there is no reason other than lingering vestiges or actual, daily practice of gender discrimination. 

Infographic World provides an excellent post on the Wage Gap in America.

In April, the Paycheck Fairness Act, a bill aimed at closing the illegal reasons for the gender wage gap, was blocked from passage by a filibustering minority of Senate Republicans led by Kentucky's own, Senator Mitch McConnell, see Paycheck Fairness Act Filibustered by Minority of Senate Republicans.

Robert L. Abell
www.RobertAbellLaw.com

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The Conduct of a Nondecisionmaker May Be Probative of Whether an Adverse Action Was Motivated by Discrimination

Anthony Rachells, despite having "received numerous sales awards, consistently exceeded company sales goals with the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers," was let go in a RIF following the acquisition of AT&T Wireless by Cingular Wireless. He claimed that he was terminated because of race discrimination. In support of this claim, Rachells sought to present evidence from two other Cingular employees who experience race discrimination in the course of their employment. The Sixth Circuit, in reversing a summary judgment, ruled once again that evidence of other discriminatory practices is relevant and admissible in support of a plaintiff's claim of individualized discrimination. Rachells v Cingular Wireless, No 12-4137 (October 17, 2013).

Rachells claimed that race discrimination was the reason he was terminated by Cingular Wireless in a RIF. He sought to introduce affidavits from two other Cingular employees regarding discriminatory practices they suffered. Cingular argued this evidence was not relevant because the two other employees "operated in a different business channel and generally had different co-workers and direct supervisors than did Rachells." The Sixth Circuit rejected this argument explaining as follows:

Indeed, "evidence of a ... discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment." Thus, even the conduct of a nondecisionmaker may be probative of whether an adverse action directed at a plaintiff was racially motivated. Moreover, "management's consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context." Factors affecting whether discriminatory atmosphere evidence is probative of discrimination in a particular case include: "the actor's position in the employer's hierarchy, the purpose and content of the conduct, and the temporal connection between the conduct and the challenge employment action, as well as whether the conduct buttresses other evidence of pretext."

One piece of this evidence were complaints by other African-American employees that their performance evaluations were tainted by race discrimination. There was no response to these "multiple complaints of discrimination," and the Sixth Circuit asserted that "this failure to investigate could be construed by a reasonable jury as willful and action and condemnation of such discriminatory conduct." Furthermore and significantly the Sixth Circuit observed that evidence regarding this nonresponse was "not rendered irrelevant simply because those events predated the RIF by a year and a half."

The Sixth Circuit's opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.

The Rachells case was discussed in two previous posts: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability" and Who Are Comparable Employees In A RIF Case?

Robert L. Abell
www.RobertAbellLaw.com

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Who Are Comparable Employees In A RIF Case?

A prima facie case of discrimination in a RIF case has a modified fourth element: the plaintiffs must provide "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Geiger v. Tower Auto, 579 F3d 614, 622 (6th Cir 2009). One way to meet this proof requirement is to identify a group of comparable employees who were retained head of the plaintiff. The Sixth Circuit analyzed this issue in Rachells v. Cingular Wireless, No 12-4137 (October 17, 2013), a race discrimination case where summary judgment granted the employer was reversed.

Anthony Rachells work as a sales rep for Cingular Wireless and "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers." In October 2004, Cingular acquired AT&T Wireless. The acquisition left nine sales representatives in the merged company, five from AT&T and four from Cingular. A RIF required five of the sales reps be let go. Rachells, a top performer and the lone African-America among the group, was one and he filed suit claiming race discrimination following his termination.

Rachells argue that the comparative ors were limited to the for Cingular employees; Cingular contended that all nine must be considered. The Sixth Circuit agreed with Rachells, concluding as follows: "employees comparable to Rachells must have equivalent positions, be subject to the same decision-making processes, and subject to evaluation by the same decision-makers." Because the Cingular and the AT&T sales reps were subject to different performance review criteria and their performance reviews were conducted by different persons, the Sixth Circuit ruled that "the record does not support including the AT&T candidates in the peer group with which Rachells is to be compared."

The Sixth Circuit opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.

The Sixth Circuit's decision in Rachells v Cingular Wireless was also discussed in a previous post: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability," Sixth Circuit Observes In Reversing Summary Judgment. 

Robert L. Abell
www.RobertAbellLaw.com

"It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated to Demonstrated Sales Ability," Sixth Circuit Observes in Reversing Summary Judgment

Anthony Rachells "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his ... Cingular peers." The next year, 2004, Cingular acquired AT&T Wireless and decided to reduce its merged salesforce from 9 to 4. Rachells looked good to survive the RIF: he "exceeded his 2004 sales goals by a greater margin than in 2003." But it was not to be and Rachells, the lone African-American among the sales group, was terminated. Rachells suit for race discrimination arising from his discharge. In reversing the summary judgment granted by the district court, the Sixth Circuit expressed skepticism about Cingular's contentions that Rachells' demonstrated sales abilities were irrelevant to his continued employment: "it strains credulity to imagine that the qualifications for a sales position ... are unrelated to demonstrated sales ability." Rachells v. Cingular Wireless, No. 12-4137 (October 17, 2013).

Cingular's position seems almost absurd: claims to have engaged in a process to select the best four of nine salespeople but also claims that the candidates'"demonstrated sales ability" was irrelevant to the process. Most disturbingly, it succeeded in selling this counter-intuitive position to a credulous district court judge that granted it summary judgment.

District Judge Algenon Marbley wrote the opinion for the Sixth Circuit; he was joined by Circuit Judges Guy Cole and Bernice Donald.

Robert L. Abell
www.RobertAbellLaw.com

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Supreme Court Increases Barriers To Retaliation Suits Under Title VII; University of Texas Southwestern Medical Center v. Nassar

The Supreme Court in a predictably divided 5-4 decision heightened the proof requirements for a successful retaliation claim under Title VII in University of Texas Southwestern Medical Center v. Nasser issued this date. Justice Kennedy joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito wrote the Court's majority opinion. Justice Ginsburg joined by Justices Breyer, Sotomayor and Kagan dissented. 

The upshot of the Court's ruling is as follows:

Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

This ruling, while producing consternation in some quarters and while it will result it some meritorious claims being thrown out before trial by pro-corporation judges skeptical of if not hostile to any claim having to do with employment discrimination, essentially aligns caselaw under Title VII with the proof standard applicable to both discrimination and retaliation claims under Kentucky law. Juries can figure out when somebody's done wrong, although they might likely take pause at contemplating the byzantine instructions they will receive in federal cases presenting both discrimination and retaliation claims and offering different proof standards.

Of greater concern is the Court majority's overt hostility toward employment discrimination and retaliation claims and its unabashed expression of sympathy for corporate and business interests. After wading through statutory text and the usual legal analysis steps, the Court expresses alarm about the growing number of retaliation claims and states its purpose and intent:

In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If [the employee] were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the cost, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent's position were adopted here.

The Court does not explain the basis for its conclusion regarding a "significant risk of that consequence" but the Court majority clearly wishes to do what it can to limit the scope of Title VII, encourage the dismissal of claims by the lower courts and generally protect corporate and business interests. As Justice Ginsburg points out in her dissenting opinion, "the Court has seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the forece of the ban on retaliation.  

Robert L. Abell
www.RobertAbellLaw.com 

 

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Is It A Prerequisite In Discrimination Cases That A Comparator Have the Same Supervisor As The Plaintiff?

The Sixth Circuit has once again answered this question most recently in Louzon v. Ford Motor Company, No 11-2356 (June 4, 2013):

it is not a prerequisite in discrimination cases that a comparator have the same supervisor as the plaintiff.

In addition to reversing the summary judgment granted Ford by the district court, the Sixth Circuit also vacated a discovery order where the district judge had restricted "discovery based on this erroneous same-supervisor requirement" which the Sixth Circuit had previously ruled in Bobo v. UPS, 665 F3d 741 (6th Cir 2012), amounts to "an improper denial of discovery." 

The Sixth Circuit's decision in Louzon was also discussed in previous posts: How Important Is Whether A Comparator Was Working For the Same Supervisor? and Once Again, The Sixth Circuit Rules That A Similarly-Situated Comparator Need Not Have Worked For The Same Supervisor.

The Sixth Circuit's opinion in Louzon was written by Judge Karen Nelson Moore joined by Judge Jane Stranch and Senior Judge Joseph M. Hood of the U.S. District Court for the Eastern District of Kentucky.

Robert L. Abell
www.RobertAbellLaw.com 

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How Important Is Whether A Comparator Was Working For the Same Supervisor?

Employment discrimination cases often focus on a comparison of the treatment of the plaintiff and another similarly-situated employee. Very often trial court judges over-focus on an erroneous insistence that any similarly-situated employee have worked for the same supervisor; the string of reversals over the course of nearly two decades now illustrates the Sixth Circuit's ongoing efforts to combat this apparently widespread practice among federal district judges as discussed in this recent post: Once Again, The Sixth Circuit Rules That A Similarly-Situated Comparator Need Not Have Worked For The Same Supervisor. 

The Sixth Circuit reversed a summary judgment granted by a district court that erroneously insisted that any similarly-situated comparator must have worked for the same supervisor in Louzon v. Ford Motor Company, No 11-2356. The plaintiff, Moien Louzon, worked as a product engineer for Ford. Whether he worked for the same immediate supervisor as any similarly-situated comparator only served to evade the question of whether he had been subjected to unlawful discrimination as the Sixth Circuit explained:

Given the facts of this case, whether a comparator was working for the same supervisor should not be given significant weight. ... there are approximately 5000 product engineers in Product Development. "The general management structure in each organization is the product engineers report to supervisors who, in turn, report to managers. There are more than 300 managers in Product Development, all managing different departments within the separate business organizations. In other words, the employee-to-manager ratio among engineers in Product Development is approximately 16:1, and the employee-to-supervisor ratio much lower. If we were to accept Ford's suggestion that the same supervisor is required in this case, the pool of potential comparator force for Louzon would amount to no more than a few individuals. Such a requirement would render any plaintiff's burden virtually impossible, even at the prima facie stage.

The repeated insistence by some courts ultimately fails the logic test. Employment discrimination suits, as the federal courts have long ruled, must be brought against the employer not the individual supervisor. If the ultimate liability and responsibility for employment discrimination is against the company, it makes no sense whatsoever to focus solely upon the actions of a solitary supervisor. But as the continuing labors of the Sixth Circuit demonstrate this point has been slow in gaining traction among trial court judges.

Robert L. Abell
www. RobertAbellLaw.com 

 

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Once Again, The Sixth Circuit Rules That A Similarly-Situated Comparator Need Not Have Worked For The Same Supervisor

Is it required that a similarly-situated comparator have worked for the same supervisor? Once again and for at least the fourth time in a published decision the Sixth Circuit has ruled that "it is not a prerequisite in discrimination cases that a [similarly-situated] comparator have the same supervisor as the plaintiff." The most recent decision is Louzon v. Ford Motor Company, No 11-2356 (June 4, 2013). 

Back in a 1992 decision, Mitchell v. Toledo Hospital, 964 F3d 577 (6th Cir. 1992), the Sixth Circuit stated that "to be deemed 'similarly-situated', the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor." Since then the exasperated Court reiterated "we have since clarified Mitchell, explaining that the supervisor inquiry "does not automatically apply in every employment discrimination case." This point the Sixth Circuit has stated in a quartet of cases: Bobo v UPS, 665 F3d 741 (6th Cir 2012); McMillan v Castro, 405 F3d 405 (6th Cir 2005); Seay v. TVA, 339 F3d 454 (6th Cir 2003); Ercegovich v Goodyear Tire & Rubber, 154 F.3d 344 (6th Cir 1998). 

The Sixth Circuit's ruling is yet another installment in an ongoing effort to educate district court judges that case-by-case analysis of employment discrimination cases is necessary, not rote application of supposed rules. The district court's error here was all too common. Previous posts on this blog have dealt with the numerous decisions as to the "similarly-situated" issue: Is Whether A Comparator Is Similarly Situated A Jury Question?, Similarly-Situated In All Relevant Respects; The Sixth Circuit Reverses Based On the District Court's Limiting of Plaintiff's Discovery, Who Is A Similarly-Situated Comparator? The Sixth Circuit Again Clarifies, Can A Supervisor Be Similarly Situated To A Subordinate Employee?, "Similarly Situated" Employees Need Not Have the Same Supervisor.

Robert L. Abell
www.RobertAbellLaw.com 

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District Court Reversed Where It Refused To Allow Plaintiff Any Discovery and Granted Summary Judgment for Employer

Can a case be lost before a plaintiff ever has a chance to take any discovery? A federal district court in Maryland granted summary judgment to the Social Security Administration despite refusing to allow the plaintiff to take any discovery whatsoever. However, the Fourth Circuit Court of Appeals reversed and sent the case back to the district court where the plaintiff will at least have opportunity to develop a factual record in support of her claims. The case is Works v Colvin, No 12-1288 (April 24, 2013). 

Robert L. Abell
www.RobertAbellLaw.com