SCOTUS: A Reverse Discrimination Claim is Just Another Discrimination Claim

Yesterday, the Supreme Court issued a unanimous decision in Ames v. Ohio Dept. of Youth Services. No surprises here. The plaintiff in Ames was a heterosexual employee who was passed over for a job in favor of a lesbian woman. Ames claimed that she was discriminated against based on her sexual orientation. 

Justice Jackson

Some circuit courts (although, notably *not* the Third Circuit where I practice) had held that a plaintiff in a Title VII discrimination claim who is a member of a majority group must make an additional showing of "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." This created a higher evidentiary standard for plaintiffs in a majority group. 

The SCOTUS opinion, authored by Justice Jackson eliminated this extra requirement: "We hold that this additional 'background circumstances' requirement is not consistent with Title VII’s text or our case law construing the statute." And, "the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group." So, a reverse discrimination claim is just another discrimination claim. 

This was pretty much a foregone conclusion before the opinion even came out, but now it's official. Perhaps more interestingly, Justice Thomas (joined by Justice Gorsuch) signaled "In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool." The framework is currently used in disparate treatment claims based on circumstantial evidence (which is most of them), and McDonnell Douglas is one of the most cited SCOTUS decisions ever. 

New Third Circuit Religious Accommodation Case - Beards and Air Masks

An interesting new precedential decision from the Third Circuit in Smith v. City of Atlantic City was published on May 30, 2025. The fire department prohibited a Christian employee from growing a beard of any length in violation of his religious beliefs. 

Not official use.

The plaintiff was classified as a firefighter but actually worked as an Air Mask Technician. Accordingly, he had not actually fought a fire since 2015 and instead served on scene away from the smoke and assisted the firefighters with their "self-contained breathing apparatuses" (SCBAs). The plaintiff himself could not properly wear a SCBA with a beard because the beard would preclude a seal from forming. 

Would allowing him to grow a beard impose an "undue hardship?" The Third Circuit vacated the entry of summary judgment for the employer:

It is telling that no Air Mask Technician has been called to engage in fire suppression for several decades . . . The City can only theorize a vanishingly small risk that Smith will be called in to engage in the sort of firefighting activities for which an SCBA is required. There are no other personnel—whether administrators or active firefighters—who are seeking an accommodation relating to the SCBAs, so the risk that the City will be unable to respond to an emergency safely is all the more unlikely. 

Thus the plaintiff may proceed on his Title VII religious accommodation claim (and also a constitutional Free Exercise Clause claim).

SCOTUS sheds light on discriminatory job transfer claims under Title VII

The Supreme Court published its opinion in Muldrow v. City of St. Louis. The syllabus succinctly describes the holding as:

An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.

Some Circuit Courts had been applying a heightened standard, requiring "significant" harm. The facts in this case are illustrative of the kinds of close calls that will now come out in favor of the plaintiff/employee. The plaintiff was a police officer in the police department's Intelligence Division, who was transferred to a uniformed job in the Fifth District:

Justice Kagan

While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, Muldrow now supervised the day-to-day activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters; she also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made Muldrow’s workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a “rotating schedule” that often involved weekend shifts.

This was sufficient to meet the Supreme Court's new "some harm" standard - as Justice Kagan notes "with room to spare."

SCOTUS clarifies "undue hardship" standard for religious accommodation under Title VII

Awe man, how embarrassing. It turns out that some of us (by which I mean basically all of us) have been getting it wrong for 46 years! You see, Title VII requires employers to reasonably accommodate an employee's sincerely held religious beliefs unless doing so would impose an "undue hardship."

Well, apparently we've been misinterpreting a 1977 Supreme Court decision (Trans World Airlines, Inc. v. Hardison) to interpret "undue hardship" as meaning "more than a de minimis cost." In fairness to us, the Supreme Court decision in question literally says, “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Or, if you like ellipses to really drive it home, "more than a de minimis cost . . . . is an undue hardship."

Justice Alito

No, no, no, says SCOTUS. Yesterday, the Supreme Court issued its opinion in Groff v. DeJoy. Now, despite my sarcasm, it has always been odd that "undue hardship," meant "more than de minimis" for religious accommodations, but something far more substantial under the ADA's disability  accommodation provisions. And, as the Court noted yesterday, "de minimis" means something far less than the plain language understanding of the phrase "undue hardship."

But, hey, the past is the past. Let's cut to the chase, what does "undue hardship" really mean in the context of a religious accommodation defense? 

• "We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business."
• "[C]ourts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”

The fundamentals remain unchanged: An employer must reasonably accommodate an employee's sincerely held religious beliefs unless it imposes an undue hardship. Now, however, the bar has been raised for what counts as an "undue hardship."

Third Circuit on religious accommodations and undue hardship analysis

A fascinating precedential split opinion from the Third Circuit in Groff v. DeJoy.  

Background

A mail carrier for the U.S. Postal Service ("USPS") was also a Sunday Sabbath observer who believed that Sunday was a day for worship and rest. The USPS, however, believes that Sunday is a day for delivering packages under a contract with Amazon. So, we have a conflict between the employee's religious beliefs and the employer's work requirements. It's time to bring in the Title VII reasonable accommodations analysis! 

The USPS allowed the employee to swap shifts with his coworkers. There was just one problem: the coworkers wouldn't swap. The employee was unable to find someone to swap on 24 Sundays over a 60-week period. The employee faced discipline for missing shifts, and ultimately resigned citing the lack of "accommodating employment atmosphere" that would "honor [his] personal religious beliefs."

Two fascinating questions with close calls:

1. Did the employer offer a reasonable accommodation? 

Here, the majority concluded that the employer did not provide a reasonable accommodation. In line with prior Third Circuit precedent, the Court held that the accommodation must eliminate the conflict between the employee's religious beliefs and the job requirement. Here, the swapping simply did not resolve the conflict because the employee could not find anyone to swap. Other circuits, however, have concluded that the word "reasonable" means that the accommodation need not totally eliminate the conflict. 

2. Did the employer establish an undue hardship defense?

Okay, the swapping option was not a reasonable accommodation, but that does not mean the employer violated Title VII. The employer can still prevail by showing that it would incur an "undue hardship," which in the context of religious accommodation merely means more than a "de minimis" cost. The Court held:

Exempting Groff from working on Sundays caused more than a de minimis cost on USPS because it actually imposed on his cowork

Not official use.

ers, disrupted the workplace and workflow, and diminished employee morale at both [locations where he worked].

In dissent, Judge Hardiman disagreed noting that:

[N]either our Court nor the Supreme Court has held that impact on coworkers alone—without showing business harm—establishes undue hardship.

Judge Hardiman essentially tees this up as a novel issue of whether damage to employee morale is sufficient to establish undue hardship.  

SCOTUS Review?

Just me speculating here - but we have a precedential circuit court decision that addresses two issues. The first issue - whether a reasonable accommodation must totally eliminate the conflict between the religious belief and the job requirement - is a circuit split. The second issue - whether damage to employee morale for coworkers having to pick up shifts on Sundays is an undue hardship - is (at least as portrayed by Judge Hardiman) a novel issue, which I suspect the current SCOTUS would like to take a look at. This could be an interesting case for SCOTUS review...

5th Circuit: One N-word is enough to create a hostile work environment

Under Title VII, a hostile work environment claim requires harassment that is "severe or pervasive." A single incident can be severe enough to meet this standard. Ordinarily though, a single incident of verbal (as opposed to physical) harassment will not meet this standard. 

Not official use. 

Last week, in Woods v. Cantrell, the Fifth Circuit held that a supervisor calling his subordinate a "Lazy Monkey A__ N_____" in front of his co-workers was severe enough to state claim. I've published the racial epithet as it appears in the (very short) opinion, which includes a footnote, "The racial epithet is not further spelled out anywhere in the record." 

The Court relied in part on a case I wrote about when then-Judge Kavanaugh was nominated to SCOTUS in which he noted "No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African–Americans" (similarly concluding that a single use of the N-word by a subordinate would create a hostile work environment). 

New EEOC guidance on COVID vaccines: employer mandates and incentives

At long last, we have the updated EEOC guidance on COVID-19 vaccinations. The two big questions I keep getting are:

• Can employers require employees to get the vaccine? 
• Can employers incentivize employees to get the vaccine. 

The answers are generally yes and yes - but, as always, with a few caveats. 

Mandates (where the employer is *not* administering or contracting with someone else to administer the vaccine to the employee)

Not official use.

• Employees who cannot get the vaccine due to a disability or religious belief may be entitled to an accommodation;
• Some possible accommodations: "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment;"
• Generally, employers have a defense to an accommodation claim where the employee poses a "direct threat" to health and safety - in this situation, the EEOC noted some factors: up-to-date CDC guidance, and "whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing;"
• Note that it gets more complicated where the employer is administering the vaccine, or contracting with someone else to administer the vaccine, to the employees. 

Incentives

• Full-throated "yes" from the EEOC on whether employers can offer incentives to employees and their family members to get vaccinated by their own doctor or pharmacy;
• But, if the vaccination is administered by the employer or its agent, then the incentive must not be "so substantial as to be coercive" (and good luck finding a good definition of what that means); and 
• GINA prohibits offering an incentive to the employee for the employee's family member to get vaccinated because it may require disclosure of the employee's family medical history.

Odd and Ends

• "[T]he employer is required to keep vaccination information confidential pursuant to the ADA;" and
• As you can probably tell from above, it is much more convoluted and difficult if the employer (or its agent) administers the vaccine.

As always, read the full guidance for additional information. 

Justices Gorsuch and Alito on inconsistent application of "undue hardship" under ADA and Title VII

I was juuuust talking about this in my employment law course. As luck would have it, we discussed both disability accommodation (under the ADA) and religious accommodation (under Title VII). I, of course, explained that an employer is not required to accommodate an employee (under either statute) if the accommodation would impose an "undue hardship" on the employer.  

Now, here's the weird part . . . under the ADA, "undue hardship" means "significant difficulty or expense in light of the employer's financial resources, the number of individuals it employs, and the nature of its operations and facilities." Under Title VII, it means "more than a de minimis cost." Same phrase. Different meanings. (quotes from Small, link below).

The miniscule bar for religious accommodations under Title VII was placed by the Supreme Court in Trans World Airlines, Inc. v. Hardison. The end result is that employers face a far more demanding obligation to accommodate disability compared to religion. Notably, both USERRA (in addressing an employer's obligation to restore a returning servicemember to their prior position) and the ACA (providing breaks for nursing mothers) utilize the ADA standard.  

Yesterday, the Supreme Court denied certiorari in (decided not to hear) Small v. Memphis Light, Gas & Water. Justices Gorsuch and Alito penned a dissent from denial of cert. They wanted SCOTUS to take this religious accommodation case and "correct" the "mistake" of Hardison. The de minimis standard remains the definition of "undue hardship" for religious accommodations... for now. The current SCOTUS lineup seems pretty favorable to religious accommodations though, so the de minimis standard's days may be numbered. 

Third Circuit: Firing for Facebook post provides defense to discrimination claim

 A short but interesting non-precedential opinion from the Third Circuit in Ellis v. BNY Mellon Corp. A white employee alleged that BNY Mellon discriminated against her by firing her for an offensive Facebook post, while not terminating black employees who also posted offensive things on social media. 

The Court concluded that not all offensive Facebook posts are created equal:

Not official use.

In response to a news story about a man who faced criminal charges for driving his car into a crowd of protesters, Ellis commented: “Total BS. Too bad he didn[’]t have a bus to plow thr[ough].” Neither supposedly-similar employee said anything as extreme. One expressed frustration with a white co-worker but did not threaten that co-worker with violence, let alone serious bodily harm or death. The other opined that men who hurt women should commit suicide. Though inappropriate and ill-advised, neither post encouraged mass violence against protesters, as Ellis’s did. Thus, no reasonable jury could find Ellis’s conduct comparable to that of her former colleagues.

I'm not sure I agree that "no reasonable jury" could find the posts comparably offensive, and that the plaintiff's post was more offensive as a matter of law. That said, the supposed comparators "worked in different positions, in different departments, had different responsibilities, and reported to different supervisors than Ellis did." So, it's unlikely Ellis would have made out a prima facie case even if the posts were deemed sufficiently comparable. 

Everybody panic! The EEOC just released its entirely unremarkable COVID vaccine guidance.

The long-awaited EEOC guidance on COVID-19 vaccines is here. Can employers require employees to get the brand new COVID-19 vaccine? Yes, but.... (you knew there was going to be a "but" right?).

Disability-Related Inquiries

If an employer administers the vaccine to its employees (or contracts with a third party to do it), then there's a small problem. The screening questions include disability-related inquiries. Employers (or their contractors) can only request such information if the questions are "job-related and consistent with business necessity." "To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others." We'll address that "direct threat" analysis below.

Two ways to avoid this issue altogether:

1. Make the screening questions (and therefore the vaccine) voluntary; or

2. Require the employee to show proof of vaccination from a third party that does not have a contract with the employer to administer the vaccine (like a pharmacy or health care provider).

Reasonable Accommodations and Direct Threat Analysis

Surely you saw this issue coming? Individuals with a disability or sincerely held religious belief that precludes them from getting vaccinated may be entitled to an accommodation. The ADA provides an exception if the employee with a disability (and therefore without a vaccine) would pose a direct threat to the health or safety of others, which cannot be eliminated or reduced by a reasonable accommodation. 

What's a "direct threat?" The EEOC identifies four factors:

1. the duration of the risk; 

2. the nature and severity of the potential harm; 

3. the likelihood that the potential harm will occur; and 

4. the imminence of the potential harm.

"A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite." By contrast, Title VII provides an exception for an employee with a religious objection if the accommodation imposes more than a "de minimis" cost or burden. 

If no accommodation is possible without posing a direct threat (disability) or more than de minimis cost (religion), then the employer may exclude the employee from the workplace. But, the EEOC notes, "This does not mean the employer may automatically terminate the worker." The guidance points to other EEO laws and rights - perhaps a hint at telework as an accommodation? Or, perhaps just a reminder that employers have obligations outside of the ADA and Title VII. 

Genetic Information Nondiscrimination Act (GINA)

Finally, it is not clear if the screening questions will include requests for genetic information covered by GINA. Juts one more thing to worry about for employers who administer the vaccines themselves (or through a contractor). 

10th Cir. recognizes intersectional discrimination ("sex-plus-age") cause of action

Title VII prohibits sex discrimination. But what about situations in which the employer discriminates against only some women? In SCOTUS's recent decision in Bostock, Justice Gorsuch gave the example of an employer with "a policy of firing any woman he discovers to be a Yankees fan;" concluding, such a termination would be "because of sex" in violation of Title VII. 

[Sidenote: Obviously employers should just fire *all* Yankees fans. Problem solved. ;-)]

Not official use.

The 10th Circuit recently issued its opinion in Frappied v. Affinity Gaming Black Hawk, LLC. The Court addressed "intersectional discrimination," and specifically whether Title VII permits a claim based on "sex-plus-age" discrimination. The female plaintiffs alleged that their employer discriminated against women over forty (i.e. not all women). 

The 10th Circuit became the first circuit court to recognize a cause of action for "sex-plus-age" discrimination under Title VII:

We hold that sex-plus-age claims are cognizable under Title VII. There is no material distinction between a sex-plus-age claim and the other sex-plus claims we have previously recognized for which the “plus-” characteristic is not protected under Title VII. Like claims for which the “plus-” factor is marital status or having preschool-age children, a sex-plus-age claim alleges discrimination against an employee because of sex and some other characteristic. It is thus a sex discrimination claim, albeit one that alleges that the discrimination was based only in part on sex . . . . Like any other sex-plus plaintiff, a sex-plusage plaintiff must show unfavorable treatment relative to an employee of the opposite sex who also shares the “plus-” characteristic. For the female sex-plus-age plaintiffs in this case, the relevant comparator would be an older man.

Notably, the Court's ruling appears to be an extension of Bostock, so I expect other circuits to follow suit. 

SCOTUS: Title VII prohibits sexual orientation and gender identity discrimination

Yesterday, the Supreme Court decided Bostock v. Clayton County - the Supreme Court website has been having trouble, so this is a link to SCOTUSblog (which excluded the appendices to make the file smaller). 

The Court consolidated Bostock and a couple others to address both sexual orientation and gender identity. Long story short, Justice Gorsuch authored a textualist 6-3 majority opinion:

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

Many jurisdictions already recognized sexual orientation or gender identity as protected classes. Now, the entire nation is covered - at least employers with 15 or more employees (who are therefore covered by Title VII). 

There may be some employers that are covered by state laws but not Title VII. For example, Pennsylvania employers with 4-14 employees fall under the PHRA, but not Title VII. And, the PHRA protects "sex" but not expressly sexual orientation of gender identity. Pennsylvania courts could conclude that the PHRA does not apply to sexual orientation and gender identity. Given Bostock, and my read on PA appellate courts currently, I doubt that will happen. But, we may still see it in other states. 

Third Circuit: Lateral transfer is not an adverse employment action for discrimination claim

Hardly groundbreaking stuff here, but it is an issue that pops up from time to time. A disparate treatment employment discrimination claim requires an adverse employment action. 

In Anderson v. The Mercer Cty. Sheriff Department, the Third Circuit held that a sheriff department employee who was transferred to criminal court security did not suffer an adverse employment action. It was a lateral transfer:

[I]t did not cause a significant change in her employment status. Approximately fifteen other officers were transferred at this same time, and Anderson does not allege that her responsibilities at the criminal courthouse were significantly different from the functions of other sheriffs.

She tried to bolster her claim by alleging that the courthouse was contaminated with asbestos, and she had a doctor's note that it would be detrimental to her health. No dice. The asbestos-related symptoms did not arise until 2012, about two years after the transfer.  

USWNT discrimination case (mostly) dismissed

Things have been a little hectic lately, so I'm sorry it took me so long to get to this. 10 days ago, the district court mostly dismissed U.S. women's soccer team's equal pay act and Title VII lawsuit. You can read the opinion in Alex Morgan, et. v. United States Soccer Federation, Inc. here.  

I use this case as my go-to discussion topic for Equal Pay Act claims in my employment law classes. Ya know what argument no one has ever made in any of my classes? That the men's and women's teams actually get paid the same rate. And yet, per the opinion:

It is undisputed that, during the class period, the WNT played 111 total games ad made $24.5 million overall averaging $220,747 per game. By contrast, the MNT played 87 total games and made $18.5 overall, averaging $212,639 per game. 

 

Thus, the shocking conclusion was that the women actually made more on a per game basis. This allowed the Court to effectively duck the most contentious issues - do the USWNT and USMNT perform substantially equal work? If so, does a legitimate factor other than sex account for the difference? 

You can read criticism of this conclusion at Volokh here. The gist of which is that the women only earned equal (actually, slightly higher) compensation by winning a lot more games than the men, triggering myriad bonuses. In the context of an Equal Pay Act claim, I'm not sure this criticism is compelling - the EPA framework requires a showing of substantially equal work for lower pay. If the argument is that the women do much better work (i.e. win more games) and only make a little bit more . . . I mean, that just doesn't really align with the framework. 

Now, it could make a decent Title VII claim, and the women did have a Title VII claim too. The Court basically ignored the Title VII discriminatory compensation issue though, with a (paraphrase) "see EPA analysis above." Ultimately, the USWNT has a few surviving claims under Title VII based on:

(1) travel conditions (specifically, charter flights and hotel accommodations), and (2) personnel and support services (specifically, medical and training support). 

Frankly, the USWNT may have preferred to have the suit dismissed in its entirety to make it easier to appeal now. Anyway, I'm sure this issue is not going away any time soon, but we finally have a ruling from the trial court on the main claims.  

Today is the day! SCOTUS args on sexual orientation and gender identity discrimination

SCOTUS is back for a new season, and oral arguments kicked off yesterday. We've got a great double feature lined up for today:

Bostock v. Clayton County, Georgia (SCOTUSblog page) and Altitude Express Inc. v. Zarda (SCOTUSblog page):
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (SCOTUSblog page):
Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Asking a court that leans heavy on textualism and originalism to re-imagine a 1964 sex discrimination statute to cover sexual orientation and gender identity might be a tall order. That said, the Court has issued a string of gay rights-friendly opinions lately, ranging from Lawrence v. Texas in 2003 to Obergefell v. Hodges in 2015. So, we'll see.

Do you want my entirely useless prediction? Of course you do. Chief Justice Roberts cobbles together a compromise position that reaffirms that sex stereotyping violates Title VII, but that Title VII does not cover sexual orientation per se. The four-justice liberal bloc concurs but writes separately to note that they would hold that Title VII does cover sexual orientation per se. In Harris Funeral Home, the Court holds that Title VII covers gender identity per se.

Don't take that to Vegas.

Finally, two reminders:

• These cases only matter because Congress has not amended Title VII to expressly cover (or not) sexual orientation or gender identity - Congress can moot these cases at any time and effectively reverse them after the fact; and

• Many state and local laws prohibit sexual orientation and gender identity discrimination - these cases do not change that. 

Third Circuit: Handful of Facebook posts did not create a hostile work environment

In Oncale v. Sundowner Offshore Svcs., Inc., Justice Scalia wrote that Title VII is not "a general civility code for the American workplace." To establish a claim for a hostile work environment, a plaintiff must establish "severe or pervasive" harassment. The Third Circuit just issued an interesting opinion addressing that issue in the context of Facebook posts.

The case is Chinery v. American Airlines, and it is a not precedential opinion. The harassment seems to have stemmed from a union leadership dispute that got a little ugly on Facebook. Here's how the Court described the Facebook posts (I try to avoid bloc quotes, but you really have to read the actual posts to get the full picture):

• One flight attendant, who made negative comments towards those opposed to the Union contract, posted a picture of a broken record on Wingnuts (a Facebook group). Chinery believed that the picture was an immediate reaction to something she posted on Facebook and was in response to the complaints she made to American’s human resources department about him.  

• During the campaign, a second flight attendant posted, “[T]his is war. [The incumbent union leaders] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with :(.” (asterisks in original). Chinery interpreted this post as a personal threat since it referenced her campaign. 

Not official use.

• A third flight attendant made multiple harassing posts: (1) in response to a post about the campaign, he wrote “it’s your cunstitutional [sic] right to vote NO [to the Union challengers]”;  (2) he mocked her use of flashcards to study the Union contract and then wrote “[t]old ya I can’t cunt [sic] to potato,” which Chinery contends was an offensive reference to her gender;  (3) he wrote posts calling those opposed to the collective bargaining agreement “cavalier harpies” and “shrews of misinformation,” adding “[h]ave any of them LOOKED in a mirror? Tuck your shirt in fat ass . . . Fix your hair . . . How bout [sic] a tie? A little lipstick?”;  (4) he posted a picture of a “bedazzled” vagina, which Chinery believed was directed at her friend for defending Chinery on Facebook; (5) according to Chinery, he posted a picture of the Wicked Witch of the West with the caption “I don’t have time for basic bitches,” which she argues was about her. 

• About nine months after the election ended, Chinery was ordered to attend a disciplinary meeting based on allegations that she had taken a video of one of American’s vendors without permission. The meeting was rescheduled, and after a fourth flight attendant learned about the delay, he wrote on his personal Facebook page, “HOLY SHIT! I knew it!! Flipper has NOT had her meeting yet!” Chinery claims that “Flipper” is a derogatory term and that the comment was about her.

Not enough! The Court rejected the plaintiff's argument that the harassment was pervasive because social media is public and permanent. The Court recognized that some of the posts were "offensive" but "offhand comments and isolated incidents" are insufficient to create liability. Finally, the plaintiff alleged that the employer failed to enforce its own social media policy. That may be relevant when assessing respondeat superior liability - but it does not show severe or pervasive harassment.

Ultimately, the Third Circuit affirmed summary judgment for the employer. This may just be my subjective perception - but it seems like courts are becoming more hesitant to toss cases based on a lack of "severe or pervasive" harassment. Although this case is not precedential, it shows that plaintiffs still must clear that hurdle.

HT: Eric Meyer - When do (or don’t) Facebook posts create a hostile work environment?

Well, at least compensatory and punitive damages are capped in discrimination cases, right? Not so fast, Pennsylvania employers!

What's the worst case scenario in a discrimination claim? In terms of liability, federal discrimination claims under the ADA and Title VII have a statutory cap for compensatory damages (like emotional distress) and punitive damages combined. See, 42 USC s1981a.

It depends on the size of the employer:

• <101 employees: $50,000
• 101 - 200 employees: $100,000
• 201-500 employees: $200,000
• >500 employees: $300,000

In Pennsylvania (and I suspect other jurisdictions as well), plaintiffs can get around that cap by allocating damages to a state discrimination statute.

Not official use.

The PHRA does not allow for punitive damages. Hoy v. Angelone, 720 A.2d 745, 749 (Pa. 1998) But, it allows for unlimited emotional distress damages. Let's say a jury verdict in a sex discrimination case includes:

• $2 million in emotional distress; and 
• $300,000 in punitive damages.

The employer has more than 500 employees. Now, the employer hopes that the $2.3 million gets knocked down to $300,000 (the statutory cap), right! What a relief that would be!

Not so fast! The Court could allocate the emotional
distress to the PHRA claim, and the punitive damages to the Title VII claim. The result would be $2 million for emotional distress under the PHRA, and $300,000 (the statutory cap) in punitive damages under Title VII. Instead of a $300,000 total, the employer is still getting hit with the full $2.3 million total! 

This plaintiff-friendly allocation method received the express approval of the Third Circuit Court of Appeals in Gagliardo v. Connaught Labs., 311 F.3d 565 (3d Cir. 2002). Suddenly, that cap is not quite as useful as many employers think it is.  

SCOTUS: Title VII charge process is procedural, not jurisdictional

Before would-be plaintiffs file employment discrimination lawsuits under Title VII (race, color, sex, religion, and national origin), they must first exhaust their administrative remedies. Put another way, they must go to the U.S. Equal Employment Opportunity Commission (EEOC) and file a charge first.

Today, the Supreme Court issued a unanimous decision, with an opinion from Justice Ginsburg ("Notorious RBG" as the cool kids call her) in Fort Bend County v. Davis:

Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional . . . Prerequisites to suit like Title VII’s charge-filing instruction are . . . properly ranked among the array of claim-processing rules that must be timely raised to come into play.

Great. What does that mean?

In short, it means that an employer-defendant in a Title VII case can waive the requirement by not raising it fast enough. In this particular case, the plaintiff had not included "religion" on its EEOC charge, but did include other types of claims (retaliation and sexual harassment). The plaintiff filed a lawsuit based on religious discrimination, retaliation, and sexual harassment. After litigating the case for 3-4 years, all of the claims were dismissed . . . except the religion claim, which was remanded from the appellate court back down to the trial court.

The defendant asked the trail court to dismiss the religion claim because it had never gone through the EEOC charge process. Too late!* The plaintiff can proceed with the religious discrimination claim despite not including it in the EEOC charge. That's the bottom line of today's ruling. 

This sets a particularly tricky trap for employers here in the Third Circuit. On the one hand, Title VII plaintiffs are not required to plead administrative exhaustion with particularity. On the other hand, as of today, defendants can be held to have waived a failure to exhaust administrative remedies defense by not raising it soon enough. Do you see why that creates a problem for employers?

This also creates some side issues, that I have not yet looked into (but probably will have to now!):

• How specific does a defendant need to be to preserve this defense? Does a generic affirmative defense in an Answer ("Plaintiff failed to exhaust administrative remedies") sufficient?

• How late is too late to raise the issue?

 * Actually, the trial court did dismiss the claim, but the 5th Circuit reversed and today SCOTUS sided with the 5th Circuit.

It's Happening! SCOTUS to hear sexual orientation and transgender workplace discrimination cases!

Yesterday, the Supreme Court granted certiorari in three cases.

First, the Court consolidated Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, GA. The issue presented is:

Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

 About a year ago, I posted about Altitude Express, and asked "Will this be the case that gets the Supreme Court to weigh in?" Welp, I guess it was. 

Notably, the Supreme Court also granted cert on a separate case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC:

The petition for a writ of certiorari is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

 A slight re-wording from the actual petition - perhaps the "limited" review refers to the exclusion of a RFRA issue presented at the circuit court level?

It will be a while before we get a ruling. Of course, in the meantime, Congress can moot these cases any time it wants. These cases turn on statutory interpretation - Congress could amend Title VII to clearly include/exclude sexual orientation and/or gender identity.

11th Circuit on "similarly situated" comparators

In my experience, very few discrimination cases include "direct evidence" - the proverbial smoking gun. Instead, plaintiffs rely on circumstantial evidence to imply discriminatory intent. The most common way to do this is for the plaintiff to point to other employees (outside of the plaintiff's protected class) who did not receive the same adverse employment action.

Not official use. 

To draw a valid comparison, the plaintiff and the comparators must be "similarly situated." That just makes sense. A different supervisor treating a different person with a different job under different circumstances differently is hardly evidence of discriminatory intent on behalf of the employer. The 11th Circuit's opinion in Lewis v. City of Union City answers the question: just how similarly situated do they have to be?

The majority opinion of the en banc panel concluded that comparators must be "similarly situated in all material respects." The Court describes this standard as the "sweet spot" between the too-lenient "comparison that is not useless" standard and the too strict "nearly identical" standard.

Although the analysis will depend on the circumstances of each case, the comparator will "ordinarily"

• "have engaged in the same basic conduct";
• "been subject to the same employment policy, guideline, or rule";
• "have been under the jurisdiction of the same supervisor";
• "share the plaintiff's employment or disciplinary history."

To wrap-up, "comparators must be sufficiently similar, in an objective sense, that they cannot reasonably be distinguished." (internal quotations omitted). It is important to note that the test varies (in some cases fairly significantly) from circuit to circuit.