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Discrimination and the Policies ofWorkplace Management

The most important employment law statutes, in terms of popular recognition and case coverage, are those that protect against class-based discrimination. Title VII of the Civil Rights Act of 1964 forbids discrimination based on race, ethnicity, national origin, religion, and sex.[1] The Age Discrimination in Employment Act (ADEA) protects those more than forty years old,[2] while the Americans with Disabilities Act (ADA) covers disabled workers.[3] The Equal Pay Act requires commensurate compensation between employees of different sexes.[4] In terms of enforcement, all of these statutes focus on private causes of action brought by the victims of discrimination.[5]

Not surprisingly, Supreme Court decisions and scholarly commentary on employment discrimination have focused on litigation-oriented concerns. Considerable time and attention has been paid to fleshing out the basics when it comes to who can bring a Title VII claim, what they need to prove to survive motions to dismiss and summary judgment, and what damages they are entitled to receive.[6] Despite the depth of precedent that the Roberts Court inherited when it comes to Title VII litigation, the work continues, even when it comes to basic questions such as the standard of proof.[7] [8] [9]

The foundation for the Roberts Court’s discrimination jurisprudence was laid in two Rehnquist Court cases, Burlington Indus., Inc. v. Ellerth20 and Faragher v. City of Boca Raton,21 in which the Court recognized an affirmative defense for Title VII defendants. This defense paved the way for a legally-sanctioned approach to internal human resources policies. In both cases, the Court held that an employer could be subject to vicarious liability for hostile environments created by an employee’s supervisor. However, the cases also provided for an affirmative defense comprised of two necessary elements: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise"[10] The Court further suggested the promulgation and implementation of an official antiharassment policy could help establish “reasonable care.”[11]

Both Faragher and Ellerth were fairly short and focused on the relevant legal doctrine. More importantly, they layered the doctrine with a concern for its ramifications on day-to-day employment practices. The Faragher opinion specifically justified the standard based on its impact outside of litigation. It argued that “[a]lthough Title VII seeks to make persons whole for injuries suffered on account of unlawful employment discrimination, its primary objective, like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm.”[12] By providing guidance on how to manage hostile workplace complaints internally, the Court set up a system of private enforcement that would precede and shape the litigation process.

The Roberts Court has continued the work of Faragher and Ellerth by bolstering private enforcement of public antidiscrimination laws. To some extent, this has meant expanding the reach of those laws to protect employees who are involved in enforcement. The Court’s decision in Burlington Northern and Santa

Fe Ry. Co. v. White25 concluded that Title VII’s antiretaliation provisions were not confined to those retaliatory actions that are related to employment or that occur at the workplace.26 The Court also held that an employer’s actions could be considered retaliation if “they could well dissuade a reasonable worker from making or supporting a charge of discrimination,”27 and unanimously affirmed the jury’s award of $43,500.28

Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee29 is another proplaintiff retaliation decision. In Crawford, the employer had received complaints about inappropriate sexual behavior by the newly hired employee relations director for the school district.30 The matter was routed through the human resources department,31 and the assistant human resources director contacted employees in the director’s department pursuant to her investigation. One of those employees, Vicky Crawford, reported to the assistant human resources director that the employee relations director had sexually harassed her and her fellow employees.32 To this point, however, Crawford had brought no formal complaint either internally, with the Equal Employment Opportunity Commission, or with a state civil rights agency. After the investigation, the employer took no disciplinary investigation against the director but terminated Crawford.33 She brought suit under Title VII’s antiretaliation provisions, which prohibit employers from discriminating against an individual “because he has opposed any practice made an unlawful employment practice,” known as the opposition clause, or “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing,” known as the participation clause.34

The Court held in favor of Crawford, finding that the opposition clause protection “extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investi- gation.”35 The employer in Crawford argued that lowering the bar for retaliation [13] [14] [15] [16] [17] [18] [19] [20] [15] [22] [23]

claims would discourage employers from investigating claims in the first place. The Court expressed skepticism on this point.[24] More importantly, however, the Court worried that a contrary holding would considerably weaken the affirmative defense, as it would undercut the mutual incentives that provide for its operation. As the Court described:

The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of ... preventive or corrective opportunities provided by the employer.” Ellerth, supra, at 765, 118 S.Ct. 2257. Nothing in the statute’s text or our precedent supports this catch-22.[25]

Ultimately, the Crawford Court—unanimous in result[26]—was moved by concerns about its Faragher-Ellerth affirmative defense. A strict textual reading of the statute is more equivocal than the Court allows, as an employee testifying about her boss’s behavior is not necessarily “opposing” it, particularly if given to a human resources official as part of an official investigation. Her report about the director’s behavior was arguably part of her work duties; it was not an individual effort on her part to vindicate the wrongs that she and others had suf- fered.[27] The weakness of the Court’s textual argument heightens the importance of the Court’s policy arguments. And those arguments rest on the protection of the Faragher-Ellerth defense. As the Court notes in its opinion, “Ellerth and Faragher have prompted many employers to adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct.”[28] If internal investigations were not protected, then “knowledgeable” employees—including those already represented by counsel—would logically (and reasonably) refuse to participate in such investigations. In order to protect human resources departments in conducting their j obs with propriety and dispatch, the Court protected individuals who work with human resources departments. Crawford—who had not complained or filed a charge, yet provided straightforward testimony to human resources personnel when called upon to do so—was in this respect an ideal employee. It should not be surprising that the Court insured that she and those like her would not be left out of the new antidiscrimination regulatory structure.

In its own, somewhat idiosyncratic way, the facts of Ricci v. DeStefano[29] are also about the scope of the antidiscrimination laws in the context of employer enforcement. The employer is a public entity, which makes its direct ramifications for the private sector more limited. But as an analysis of the interaction between antidiscrimination goals and workplace enforcement, the majority’s opinion offers strong support for institutional workplace actors. In Ricci, white firefighters and one Hispanic firefighter sued New Haven and its officials, alleging that the city violated Title VII by refusing to certify results of promotional examination. New Haven had commissioned the examination in order to create a pool of potential candidates for the rank of lieutenant and captain.[30] The city paid a human resources consultant, Industrial/Organizational Solutions, Inc. (IOS), $100,000 to create the test. The Court described the test-design process in some detail, emphasizing how the materials were designed to be free from racially discriminatory impact.[31]

The tests were challenged after white and Hispanic candidates, but no African American candidates, qualified for the next set of available positions. The city’s civil service review board voted not to certify the results of the test citing, among other things, fear of potential disparate impact liability.[32] A suit was indeed filed, but by the white and Hispanic firefighters who had been in line for the promotion based on the test results.[33] They argued that the city’s refusal to certify the test was discriminatory treatment under Title VII. The Court agreed. It held that “race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”[15]

The Court set up two alternative paths for finding a strong basis in evidence for discriminatory impact liability. First, the employer may have a strong basis in evidence to believe that examinations were not job-related and consistent with business necessity. Or second, the employer may have a strong basis in evidence to believe there existed an equally valid, less-discriminatory alternative to the examinations. In a somewhat surprising move, the Court did not remand to the lower courts to determine whether New Haven met this standard; instead, it ruled that the city had failed to do so and thus was in violation.[35] The Court found that there was “no genuine dispute” that the examinations were job- related and consistent with business necessity, as they were based on IOS’s “painstaking analyses” of the officer positions as gleaned through source material and direct observation.[36] Candidate complaints about the test questions were reviewed and, in one case, acted upon.[37] The city was also entitled to a follow-up report from IOS analyzing the validity of the results.[38] All of these factors point to the reasonable and good-faith efforts of the human resources consultants who managed the testing process. The Court then fended off arguments that a better alternative set of testing instruments were available. Critics of the test argued that the oral portion should have been more heavily weighted; the city could have interpreted its internal procedures differently; and an alternative testing method such as an “assessment center process” would have been superior.[39] Essentially, the Court rejected these alternatives as ex post efforts to rejigger the results, without proof that they were better testing instruments.[40]

New Haven’s predicament elicits some sympathy.[41] Neither option—keeping the test or rejecting it—was ideal, and the city spent significant time and expense to avoid the very result the test produced. And facially, at least, the city had a strong statistical basis for concern that the test had had a discriminatory impact. A Court predisposed simply to promote employer discretion would presumably have given the city room to maneuver here. Instead, by requiring a “strong” basis for holding itself liable, the Court seems to set up a Scylla-and-Charybdis scenario for future employers. As Justice Ginsburg argued, “The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture"[42] The Ricci test does have some flexibility and ambiguity, in that a “strong basis” does not mean certain liability.[43] But in the narrative of the Court’s opinion, the most trustworthy player would seem to be IOS. Ricci reasserts the role of human resources professionals in managing the hiring and promotion process, and it gives such professionals deference in doing their jobs.

The majority’s decision in Wal-Mart Stores, Inc. v. Dukes[44] is the flip side of its trust in private actors: namely, distrust in the courts’ ability to handle human resources matters. The Dukes case involved a Title VII class action brought by three named plaintiffs on behalf of 1.5 million current and former female employees ofWal-Mart stores across the country. At issue was Wal-Mart’s decentralized and highly discretionary employee management and promotion system. Lower-level managers have discretion to set pay within certain ranges, while higher-l evel executives set the ranges for managers and other salaried employees.[45] Promotions are also made at lower levels, and managers have significant discretion in selecting candidates for management training and further promotions.[46] Plaintiffs alleged this common personnel practice was the common factor that should allow for a class-action suit.

The Dukes Court was unanimous in rej ecting the lower court’s certification of the class. The four dissenters would have allowed the plaintiffs to try again under a different subsection of the class-action rule,[47] while the majority held the class could not meet the initial commonality requirement.[48] According to the majority, it was possible that some number—possibly even a large number—of female Wal-Mart employees had individual Title VII claims based on their mistreatment at the hands of particular supervisors. For the claims to be triable as a class action, however, the plaintiffs had to share a “common contention” that was “of such a nature that it is capable of classwide resolution.”[49] As the majority pointed out, “Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.!’[50]

The dissent seemed comfortable with the notion that a policy of great discretion on the part of lower-level supervisors could be the root cause of discrimination, arguing that “[a] system of delegated discretion ... is a practice actionable under Title VII when it produces discriminatory outcomes![51] The majority rejected the dissent’s approach as giving the plaintiff’s case too much credence. It found the plaintiff’s anecdotal evidence to be far too thin to support a class- based inference of discrimination.[52] It held that the statistical evidence was insufficient to prove discrimination against the members of the class.[53] And it rejected plaintiffs’ sociological evidence that Wal-Mart had a “strong corporate culture” that rendered it “vulnerable! to gender bias.[54] The majority cannot gainsay the fact that a purely discretionary system may be a vehicle for discrimination. But it can, however, require the plaintiffs to show just exactly how that discretion was warped in a particular case. That a grant of discretion to lower-level supervisors “can! form the basis of Title VII liability does not mean that “every employee in a company using a system of discretion has such a claim in common! As the Court explained, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.”[55]

This hits at the crux of the Court’s theory of the case. Discretion cannot be enough; there must be some discriminatory inference strong enough to extend across the class of plaintiffs. And that’s because, according to the majority, “left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.”[15] The Court’s defense of discretion, even in the face of disparity and some limited but noxious anecdotal evidence, has larger ramifications. By protecting the role of discretion in personnel decision making, the Court preserved a certain approach to human resources management against a class-action attack. More importantly, the Court affirmed the notion that, even in the face of anecdotal and statistical evidence to the contrary, the bad faith of individual managers cannot be presumed. Instead, the opinion assumes that discretion will be used appropriately until proven otherwise. It keeps courts out of the business of mandating changes to discretionary personnel practices, and instead keeps them focused on the rotten actors who use discretion improperly. As such, they work with human resources professionals to police a personnel system, rather than mandating that such professionals use a system that creates a nondiscriminatory result. Perhaps most importantly, it keeps the courts from providing intrusive injunctive relief, on a nationwide basis, that would change an employer’s personnel policy from one of discretion to another, court-mandated system.

  • [1] 42 U.S.C. §§2000e-2000e-17 (2012). See also 42 U.S.C. § 1981 (2012).
  • [2] 29 U.S.C. §§ 621-634 (2012).
  • [3] 42 U.S.C. §§ 12101-12213 (2012).
  • [4] 29 U.S.C. § 206(d) (2012).
  • [5] In addition, the1991 Civil Rights Act provided for juries, compensatory damages, and punitivedamages in Title VII cases. 42 U.S.C. § 1977A(b) (2012) (compensatory and punitive damages), id.§ 1977A(c) (jury trial).
  • [6] The Court’s decision in McDonnell-Douglas v. Green, 411 U.S. 792 (1973), which establishedthe requirements for a prima facie case under Title VII, has been cited in more than thirty-fivethousand cases.
  • [7] See, e.g., Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (holding that a mixed-motives jury instruction is never proper in ADEA case).
  • [8] 524 U.S. 742 (1998).
  • [9] 524 U.S. 775 (1998).
  • [10] Id. at 765; Faragher, 524 U.S. at 807.
  • [11] Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.
  • [12] Faragher, 524 U.S. at 805-06 (quotations and citations omitted).
  • [13] 548 U.S. 53 (2006).
  • [14] Burlington, 548 U.S. at 57.
  • [15] Id.
  • [16] Id. at 58, 70-73.
  • [17] 555 U.S. 271 (2009).
  • [18] The discussion of facts was taken from Crawford v. Metropolitan Government of Nashville andDavidson County Tennessee, 211 F. App’x. 373, 374-75 (6th Cir. 2006), which has a more extensivenarrative of the events in question.
  • [19] The employee relations director would normally have been responsible for investigating suchcomplaints. Id. at 374.
  • [20] Id. at 375.
  • [21] Id.
  • [22] 42 U.S.C.A. § 2000e-3 (2006).
  • [23] Crawford, 555 U.S. at 273.
  • [24] Id. at 278.
  • [25] Id. at 279.
  • [26] Justices Scalia and Alito concurred in the judgment.
  • [27] Moreover, the Court did not determine whether the director’s conduct was actually a violationof Title VII.
  • [28] Id. at 278-79.
  • [29] 557 U.S. 557 (2009).
  • [30] Id. at 564.
  • [31] Id. at 565 (noting that IOS “oversampled minority firefighters to ensure that the results ...would not unintentionally favor white candidates” and “sixty-six percent of the [evaluation] panelists were minorities, and each of the nine three-member assessment panels contained two minoritymembers”).
  • [32] 42 U.S.C. § 2000e-2(k) (2012).
  • [33] Ricci, 557 U.S. at 562-63.
  • [34] Id.
  • [35] Id. at 631 (Ginsburg, J., dissenting) (“When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance.”).
  • [36] Ricci, 557 U.S. at 587.
  • [37] Id. at 588. The Court also noted that an outside advisor “suspect[ed] that some of the criticisms ... [leveled] by candidates were not valid.” Id.
  • [38] Id. at 589.
  • [39] Id. at 589-92.
  • [40] Id. The Court is particularly dismissive of the alternative testing method evidence, as it was provided by a direct competitor of IOS. The competitor’s witness admitted that he had not studied thetest in detail, and offered praise for the test at points. He also made it clear he was angling for futurework; in fact, the competitor ended up getting significant business from the city after it had rejectedIOS’s efforts. Id. at 591-92. Such mixed testimony was insufficient, in the Court’s eyes, to create anissue of material fact.
  • [41] Id. at 644 (Ginsburg, J., dissenting) (“This case presents an unfortunate situation. .”); LukeAppling, Recent Development, Ricci v. DeStefano, 45 Harv. C.R.-C.L. L. Rev. 147, 147 (2010) (“InMarch 2004, the City of New Haven, Connecticut faced a difficult choice.”).
  • [42] Id. at 629 (Ginsburg, J., dissenting); see also id. (Ginsburg, J., dissenting) (noting “the discordance of the Court’s opinion with the voluntary compliance ideal”).
  • [43] Id. at 581 (rejecting the rule that “an employer in fact must be in violation of the disparate-impact provision” because such a rule would “bring compliance efforts to a near standstill”).
  • [44] 131 S. Ct. 2541 (2011).
  • [45] Id. at 2548.
  • [46] Id.; see also id. at 2554.
  • [47] Id. at 2561-6 (Ginsburg, J., concurring in part and dissenting in part).
  • [48] Dukes, 131 S. Ct. at 2556-57.
  • [49] Id. at 2551.
  • [50] Id. at 2552 (emphasis in original).
  • [51] Id. at 2567 (Ginsburg, J., concurring in part and dissenting in part).
  • [52] Dukes, 131 S. Ct. at 2556.
  • [53] Id. at 2555-56.
  • [54] Id. at 2553-54.
  • [55] Id. at 2554.
  • [56] Id.
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