Supreme Court Tweaks Gender Discrimination Law

June 9, 2011

As company executives and human resource professionals know, discrimination charges continue to be a hindrance in the workplace, and continuing changes make navigating discrimination laws more difficult than ever.

The general law of gender discrimination may be summarized as: (1) an employer may not make employment decisions (hiring, promotions, terminations, etc.) based on gender; (2) an employer may not create or knowingly permit a workplace that is hostile based on gender; and (3) an employer may not retaliate against an employee who complains about discrimination. This means, for example, that an airline may not hire only men as pilots and only women as flight attendants, an employer may not allow a group of men to engage in pervasive behavior aimed at harassing women, and an employer may not terminate or otherwise punish someone who complains of such activities.

General rules, however, are only the starting point, as the courts are constantly re-defining and interpreting those rules. The two cases discussed below were decided by the Supreme Court this year and further define the rules as to who may claim retaliation and when an employer may be liable for discrimination carried out by employees.

Thompson v. North American Stainless, LP, involved a man ("Thompson") who was employed by North American Stainless (NAS). Thompson's fiancée, Miriam Regalado, was employed at the same NAS facility. Regalado filed a sexual harassment charge against NAS, and three weeks later, NAS terminated Thompson. Thompson then filed his own discrimination charge in which he claimed he was terminated in retaliation for Regalado filing her discrimination charge and that this violated Title VII (the federal law governing many types of discrimination claims). Thompson's claim ultimately ended up in federal court, where it was dismissed based on a conclusion that Thompson could not prove he suffered retaliation as a result of protected conduct in which he was engaged, given his allegation that he was terminated because of the charge his fiancée had filed.

The case made its way to the U.S. Supreme Court, which issued its opinion on January 24. The court concluded that Thompson could assert a claim of retaliation under Title VII, noting that otherwise persons might be unreasonably discouraged from filing discrimination claims, as most people would hesitate to assert a claim of discrimination if they knew that their fiancée could be terminated in response. The court refused to establish a "fixed class of relationships for which third-party reprisals are unlawful" but did note that terminating a "close family member" of the person making the claim of discrimination would "almost always" establish the bases for a claim of unlawful reprisal, while terminating "a mere acquaintance" would "almost never" establish an unlawful reprisal.

Because Thompson's claim was dismissed by the trial court before any proof was taken, the Supreme Court was required to assume that Thompson's termination was in retaliation for his fiancée's discrimination claim. Obviously, an employer will have an opportunity to establish that a termination was for other, valid reasons.

Staub v. Proctor Hospital involved an employee ("Staub") whose military reserve duty was resented by his immediate supervisor, causing the supervisor to undertake efforts to trump up reasons to justify terminating him. The supervisor, however, did not have power to terminate Staub, and the evidence established that the person who did have that power, and who made the termination decision, did not have any resentment or hostility toward Staub's military service. Based on these facts, the Supreme Court of the United States considered "the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision." The court determined that in such a situation the employer may be held liable if the supervisor's actions were motivated by discriminatory animus, were intended by the supervisor to cause an adverse employment action, and the supervisor's actions were a proximate cause of the adverse employment action. Although this case involved a claim of discrimination based on military service, the same reasoning would likely apply to a claim based on gender discrimination. This means, for example, that an employer may be liable for discrimination, even though the human resource department that made the termination decision had no discriminatory intent and had before it a record justifying termination, if the employee can show that the record was intentionally biased because the employee's first-line supervisor did not like women.

The holdings in Thompson and Staub reinforce three basic rules of employment law. First, keep good and accurate records so that you can demonstrate that there were legitimate bases for an employment decision. Second, investigate and understand all facts associated with an employment decision. Knowing that the person you are terminating is related to someone who recently filed a discrimination charge may not change your decision, but it will better inform your decision. Third, train your supervisors regarding discrimination and make sure they follow the law, or they will run the risk of being liable for their bad behavior.

Keith Moorman is a member in the Lexington office of Frost Brown Todd LLC, concentrating his practice in labor and employment matters.
 

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