Cases and Materials on Employment Discrimination

Professor’s Updates

March 2013

Cases and Materials on Employment Discrimination

Eighth Edition, 2013

Michael J. Zimmer

Charles A. Sullivan

Rebecca Hanner White

All professors and students using the Casebook are permitted

to download and reproduce these Updates in whole or in part.

Page 15, add in Note 2, Getting Inside the Employer’s Mind to Prove Age Discrimination, before Cox cite:

Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 605-06 (7th Cir. 2012) (inquiry about plaintiff’s retirement plans and promise that he would receive severance pay if he decided to retire was not connected with his age as opposed to his fall-off in performance; in any event, the lapse of two years between this comment and plaintiff’s termination “obviates any connection between the comment and discharge when there is an intervening, legal reason for the termination,” which was the external complaints about plaintiff’s performance).

Page 34, add at end of Note 2, It’s All Pretext:

See also Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (“Where a plaintiff offers remarks as direct evidence, we apply a four-part test to determine whether they are sufficient to overcome summary judgment, [which looks to whether the remarks are] ‘1) age related; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.’ . . . Where a plaintiff offers remarks as circumstantial evidence alongside other alleged discriminatory conduct, however, we apply a more flexible two-part test. In that circumstance, a plaintiff need only show (1) discriminatory animus (2) on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker.”) (citations omitted).

Page 37, add in third full paragraph after Sheppard cite:

; Davis v. City of Charlottesville Sch. Bd., 2012 U.S. App. LEXIS 24711 (4th Cir. Nov. 29, 2012) (finding sexual harassment complaint sufficient when it plead an attempted sexual assault by a co-worker, reporting to the employer, and a subsequent intimate touching),

Page 52, add in Note 4, Methods of Proving Pretext before Lott cite:

Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1307 (11th Cir. 2012) (a jury question as to discrimination when the decisionmaker, after terminating an employee for misconduct, says that the employee is exceptional, did nothing wrong, did everything right, and should not have been fired);

Page 59, add at the end of Note 2. Whose Motive/Intent?:

King v. Volunteers of Am., N. Ala., Inc., 2012 U.S. App. LEXIS 25864, *14-15 (11th Cir. Dec. 19, 2012) (statements by a manger that she would engineer plaintiff’s termination and that the decisionmaker rubber-stamped her recommendations present strong circumstantial evidence that she caused the termination; a subsequent investigation that upheld the validity of the reprimands was not sufficient to negate the causal link between this animus and the termination when the manager “engineered at least some of the reprimands that were ultimately the basis for King's termination—the very definition of proximate cause.”).

Page 87, add at the end of Note 14, Has Desert Palace Trumped McDonnell Douglas?:

Tabor v. Hilti, Inc., 703 F.3d 1206, 1217 (10th Cir. 2013) (rejecting summary judgment when the decisionmaker “explicitly stated a view that women have inferior knowledge of tools and inferior ability to sell tools. These statements spoke directly to central requirements of the job for which Ms. Tabor was interviewing, and he made them during a discussion about her fitness for the position.”). Cf. Rapold v. Baxter Int'l, Inc., 2013 U.S. App. LEXIS 2078, *24-26 (7th Cir. Jan. 30, 2013) (when each party claimed that the adverse employment action at issue was caused by a single motive (discrimination or a nondiscriminatory reason), the district court was within its discretion to deny a mixed-motive instruction and, in any event the failure to instruct was not prejudicial).

Page 90, add in third paragraph of Note On Evidence Issues About Admissions Testimony after Barner cite:

Cf. Back v. Nestlé USA, Inc., 694 F.3d 571, 577-78 (6th Cir. 2012) (while evidence that a Human Resources Director’s said there was a plan to get rid of the three oldest employees would be admissible since it was made within the scope of his employment, the particular statement was actually hearsay within hearsay since the Director was saying that “higher management” had made the statement and there was no showing that the unidentified declarants were speaking on a matter within the scope of their employment).

Page 97, add at end of Note 1. The Holding:

See also Sims v. MVM, Inc., 704 F.3d 1327, 1337 (11th Cir. 2013) (even assuming arguendo that the Staub standard with respect to agency principles governs employer vicarious liability in ADEA cases, plaintiff could not satisfy the ADEA’s but-for causation standard).

Page 99, add before Lewis cite in Note 3, Gross’s Effect on Other Antidiscrimination Statutes:

Palmquist v. Shinseki, 689 F.3d 66, 73-74 (1st Cir. 2012) (while the Rehabilitation Act borrows its remedial scheme from Title VII, it does not borrow the causation standard set out in Section 2000e-2(m); instead, the Rehabilitation Act borrows the causation standard from the ADA, which uses very similar causation language to the ADEA and therefore should be construed the same way);

Page 99, add at end of second full paragraph:

See Blasdel v. Northwestern Univ., 687 F.3d 813, 820 (7th Cir. 2012) (while not a “presumption,” the same actor proof undermined any inference that of prejudice against female scientists by the person who hired plaintiff).

Page 102, add at end of first full paragraph:

Blasdel v. Northwestern Univ., 687 F.3d 813, 822 (7th Cir. 2012) (“There is no indication that any member of the medical school's appointments, promotion, and tenure committee, or the dean, or the provost discriminates against women scientists. In the seven years that the dean had been in office when he recommended against giving Blasdel tenure, the percentage of tenure track female faculty in the medical school had increased from 20.5 to 25.4 percent and their rate of obtaining tenure had exceeded that of the male faculty.”).

Page 220, add at end of carryover Note 2, Retreating from Watson?:

See Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013) (plaintiff made out a prima facie case of disparate impact of the GDCP system by showing that the promotion rate for male sales representatives in was substantially and significantly greater than that for female representatives, which she alleged was the result of managers and supervisors exercising discretion under the system in a discriminatory fashion by choosing to assign (or sometimes not assign) the subjective GDCP ratings differently for male and female employees; plaintiff was not required to show an impact on “otherwise qualified” employees when managers often used their discretion to waive GDCP minimum requirements to promote male employees with low or no ratings, while requiring female employees to obtain a specified rating before applying for promotion).

Page 249, add a new Note 12A:

12A. Unemployment and Credit Scores. There is also some concern as discrimination on the basis of being unemployed or of having low credit scores (probably correlated phenomena). While there have been limited efforts on the state level to address “currently employed” requirements directly, e.g., N.J. Stat. § 34:8B-1, both grounds could be the basis of a disparate impact challenge. See generally Lea Shepard, Toward a Stronger Financial History Antidiscrimination Norm, 53 B.C. L. Rev. 1695 (2012); Jennifer Jolly-Ryan, Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the "Currently Employed" Requirement, 18 Mich. J. Race & L. 189 (2012).

Page 279, add in Note 3. Why Isn’t Baylie a Systemic Case? before first Davis cite:

Daniels v. UPS, 701 F.3d 620, 632-33 (10th Cir. 2012) (individual plaintiffs cannot bring pattern-or-practice claims—only the U.S. Attorney General or a certified class can do so); Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 147 (2d Cir. 2012) (rejecting the pattern-or-practice method of proof in private suits outside the class action context);

Page 281, add at end of last full paragraph:

Further, in an individual disparate impact claim (not involving a class action) the plaintiff must have been affected by the challenged policy. If she would have been denied the benefit in any event, she lacks standing to attack the practice. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1221 n.7 (10th Cir. 2013).

Page 283, add in first full paragraph before McDowell cite:

Hunter v. UPS, 697 F.3d 697, 703-04 (8th Cir. 2012) (no sufficient evidence that employer’s recruiter knew of plaintiff’s transgender status at time of the interview when plaintiff was using the name Jessica “yet came to the interview with his breasts bound, a short haircut, and wearing clothing and shoes he purchased from the men's department” because these facts are not exclusive to transgendered or gender non-conforming individuals . . . Many fashion trends have called for women to wear short haircuts, men's clothes, or men's shoes.”);

Page 311, add in Note 9 Is Ricci Limited to End-Game Decisions? before Zisk cite:

See Maraschiello v. City of Buffalo Police Dep't, 2013 U.S. App. LEXIS 4057, *22-23 (2d Cir. Feb. 27, 2013) (“Even if it were determined that the City's choice to adopt a new test was motivated in part by its desire to achieve more racially balanced results . . . Maraschiello cannot demonstrate that the generalized overhaul of departmental promotional requirements amounted to the sort of race-based adverse action discussed in Ricci. Indeed, Ricci specifically permits an employer to ‘consider[], before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of race.’").

Page 329, add in Note 3, Proving the Harassment Was “Because of Sex” before Redd cite:

Barrows v. Seneca Foods Corp., 2013 U.S. App. LEXIS 3841, *8-9 (2d Cir. Feb. 25, 2013) (a reasonable jury could find that men were the primary targets of the conduct, and could also consider that some “vulgar comments were sex-specific and that [the harasser] frequently touched male-specific (and sex-related) body parts”);

Page 356, add in Note 5, The Question of Accommodation before “but see”:

Young v. UPS, 2013 U.S. App. LEXIS 530 (4th Cir. Jan. 9, 2013) (an employer policy limiting light duty accommodations to employees injured on the job or disabled under the ADA did not violate the PDA’s command to treat pregnant workers the same as those similarly limited in their ability to work). See generally Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 U.C. Davis *** (2013) (the PDA’s second sentence mandates equal accommodations for pregnant women with any accommodations offered other employees for any reason, entirely without an intent requirement; thus, accommodations offered for worker limitations pursuant to the ADAAA must also be offered to pregnant women); Nicole Buonocore Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, SSRN, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2215882 (exploring the similarities and differences regarding legal treatment of the disabled and caregivers).

Page 365, add in last paragraph before Hernandez cite:

Rivera v. Rochester Genesee Reg'l Transp. Auth., 702 F.3d 685 (2d Cir. 2012) (Puerto Rican and African American plaintiffs established triable cases of national origin and racial harassment by each testifying to several instances where epithets like "spic," Taco Bell," and “nigger” were used; there was also evidence about extensive bullying and physical harassment which could be found by a jury to be connected to the slurs);

Page 369, add at the end of first full paragraph in carryover Note 1, How Bad Is Bad Enough?:

Gerald v. Univ. of P.R., 2013 U.S. App. LEXIS 1925, *21-24 (1st Cir. Jan. 28, 2013) (testimony that her supervisor grabbed plaintiff’s breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him could be found sufficiently egregious to be actionable).

Page 373, add after Fuller cite:

See generally Ann C. McGinley, Reasonable Men?, 45 Conn. L. Rev. 1, 1 (2012) (“propos[ing] a shift to a new universal standard for determining whether workplace behavior is sufficiently severe or pervasive to create a hostile working environment. This standard inquires whether the victim's response is a reasonable one considering not only the various identity factors of the victim, but also the workplace, and the social and individual context in which the harassing behavior occurs.”).

Page 374, add at end of second to last paragraph:

But see Gerald v. Univ. of P.R., 2013 U.S. App. LEXIS 1925, *19-20 (1st Cir. Jan. 28, 2013) (rejecting defendant’s argument that plaintiff failed to prove the alleged harassment was unwelcome: “We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work”).

Page 398, add in second full paragraph before “This is the approach”:

See also Summa v. Hofstra Univ., 2013 U.S. App. LEXIS 3677, *15-17 (2d Cir. Feb. 21, 2013) (although a university had an obligation to control the harassing behavior of its football players, once it was informed about their conduct towards a female team manager, it met its obligations by having its coaches address inappropriate behavior when it occurred, including removing an offender from the football team).

Page 428, add at end of Note 3, Who’s A Minister?:

In the wake of Hosanna Tabor, the Sixth Circuit in Cannata v. Catholic Diocese of Austin, 700 F.3d 169 (5th Cir. 2012), held that, although plaintiff was neither ordained nor formally trained in religion, his role as Music Director in charge of the music in the church’s liturgy and his playing the piano at Mass brought him within the ministerial exception.

Page 486, add before last sentence on the page:

The Supreme Court granted certiorari to resolve this question in Nassar v. Univ. of Tex. Southwestern Med. Ctr., 674 F.3d 448 (5th Cir. 2012), cert. granted, 133 S. Ct. 978 (2013).

Page 487, add before Henny cite in first full paragraph: