employment discrimination

Bostock v. Clayton County, Georgia

Issues

Does employment discrimination on the basis of an employee’s sexual orientation constitute a form of sex discrimination prohibited by Title VII of the Civil Rights Act?

This case consolidates two lawsuits, each containing a claim by an employee alleging that he was terminated by his employer because of his sexual orientation. These employees argue that Title VII of the Civil Rights Act, which proscribes discrimination “because of . . . sex,” inherently prohibits sexual orientation discrimination because one’s sexual orientation necessarily depends on one’s sex. To further support this argument, the employees contend that Title VII’s plain language, statutory and judicial history, and other provisions all support interpreting the statute to prohibit discrimination on the basis of sexual orientation. The employers counter that the plain meaning of “because of . . . sex” at the time of Title VII’s enactment, and courts’ reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. The case’s outcome will have heavy implications for LGBT workers and business’ bottom lines.

Questions as Framed for the Court by the Parties

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.

This case consolidates two cases: the first brought by Gerald Lynn Bostock (“Bostock”) and the second by Altitude Express, Inc. and Raymond Maynard (collectively “Altitude Express”).

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CBOCS West, Inc. v. Humphries

Issues

Can an employee alleging employer retaliation for racial discrimination complaints  bring  a claim under 42 U.S.C. § 1981 ("Section 1981"), as amended by the Civil Rights Act of 1991?

 

42 U.S.C. § 1981 ("Section 1981") provides that any “person within the jurisdiction of the United States” has the same right to "make and enforce" contracts, regardless of their skin color. Section 1981 protects parties from discriminatory treatment both at the time when contracts are formed, and in post-formation conduct. Section 1981 applies to many aspects of the employment relationship because that relationship is considered contractual; however, the extent of this protection is unclear. This case addresses the question of whether an employee can bring a claim for retaliation under Section 1981. Retaliation does not clearly come under the scope of Section 1981 because often it is based not on an employee's characteristic, such as race, but instead on an action taken by the employee, such as complaining about work conditions or discriminatory treatment. However, retaliation claims often overlap with, and are difficult to separate from, claims of discrimination. Should the Supreme Court decide that Section 1981 protects an employee from race-based retaliation, it will give employees greater flexibility in filing claims of retaliation, because they will not be subject to the filing deadlines and limits on damages found in Title VII of the Civil Rights Act of 1964, an alternate provision which does encompass retaliation claims.

Questions as Framed for the Court by the Parties

Is a race retaliation claim cognizable under 42 U.S.C. § 1981?

Herndrick Humphries, an African American, worked as an associate manager in a Cracker Barrel restaurant owned by CBOCS West, Inc. ("Cracker Barrel") for three years, until Cracker Barrel terminated his employment on December 5, 2001 for violation of company policy. See Humphries v. CBOCS West Inc., 474 F.3d 387 389-90 (7th Cir.

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Chamber of Commerce of the United States v. Whiting

Issues

Whether federal immigration law preempts Arizona’s statute that both sanctions employers who hire unauthorized workers by rescinding their business licenses, and mandates employer participation in E-Verify, a federal pilot program that verifies a prospective employee’s employment eligibility.

 

The state of Arizona passed the Legal Arizona Workers Act in 2007 (“LAWA”). The law authorizes the Arizona Attorney General and county attorneys to sue employers who knowingly or intentionally employed unauthorized workers such as illegal aliens as a means of combating illegal immigration. Congress, however, previously enacted the Immigration Reform and Control Act, which imposes different sanctions on employers for hiring illegal immigrants. The Chamber of Commerce of the United States, along with various business and civil rights organizations, claimed that federal law preempts LAWA, thus making it invalid. In addition, the Chamber of Commerce argued that LAWA fostered employment discrimination against “foreign-looking” individuals and unduly harmed businesses. However, those in support of LAWA claimed that the state has the authority under its “police powers” to enforce the statute and that it was not preempted by federal law. The Supreme Court’s decision in this case will shed light on the extent to which a state may enforce its own laws in an area that is also covered by federal law. Additionally, the Court’s ruling will affect the ability of states to use certain measures to deter employers from hiring illegal immigrants.

Questions as Framed for the Court by the Parties

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized workers is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized workers.” 8 U.S.C. § 1324a(h)(2).

2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.

3. Whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of workers. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

Congress first imposed sanctions for hiring unauthorized workers when it passed the Immigration Reform and Control Act of 1986 (“IRCA”), which criminalized the knowing or intentional hiring or continued employment of “unauthorized aliens” in the United States. See Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 980 (9th Cir.

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· Immigration Impact, Beth Werlin: Supreme Court to Hear Two Cases Affecting Immigrants, Including a Case Challenging a Recent Anti-Immigrant Law (Oct. 7, 2010)

· ABA Journal, Debra Cassens Weiss: Supreme Court Docket Has a 9th Circuit ‘Flavor’ (Oct. 5, 2010)

· Fordham Law Review, Maria Marulanda: Preemption, Patchwork Immigration Laws, and the Potential for Brown Sundown Towns

· U.S. Citizenship and Immigration Services: E-Verify—History and Milestones

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Crawford v. Metropolitan Government of Nashville

Issues

Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?

 

Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.

Questions as Framed for the Court by the Parties

Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?

In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. See Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx.

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Crawford v. Metropolitan Government of Nashville

Issues

Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?

 

Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.

Questions as Framed for the Court by the Parties

Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?

In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. See Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx.

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Engquist v. Oregon Department of Agriculture

Issues

Should the class-of-one theory under which state actors may be sued for arbitrary discrimination against individuals apply equally to public employers with regards to their hiring, firing, and other decisions, or should public employers be exempted from such claims due to the subjective nature of employment decisions?

 

Under what is known as the class-of-one theory, an individual plaintiff can bring an Equal Protection claim against a state actor for "irrational and wholly arbitrary treatment." The person is a "class-of-one" when she alleges that the government is subjecting only her to differing and unique treatment compared to others similarly situated. This differs from a traditional Equal Protection claim, in which a person alleges discriminatory acts by the government against an entire group of people treated differently because of a protected characteristic like race. Anup Engquist brought such a claim against her employer, the Oregon Department of Agriculture, alleging that it arbitrarily failed to promote her to a position for which she was qualified, allowed a supervisor with whom she had an acrimonious relationship to harass and degrade her, and eventually laid her off. The Ninth Circuit Court of Appeals, in overturning the District Court that found in her favor on the Equal Protection claim, held that the class-of-one theory is inapplicable to decisions made by state employers with regard to their employment decisions. Engquist has appealed the decision to the Supreme Court, arguing that there is no basis in the Equal Protection Clause for a limitation on class-of-one claims in the employment context. The Oregon Department of Agriculture and the Ninth Circuit assert that class-of-one cases are appropriate when the government is acting as regulator, but not as employer.

Questions as Framed for the Court by the Parties

The Ninth Circuit below vacated the jury's verdict in favor of Petitioner Engquist and created a divisive split with the seven Circuits that apply the "rational basis" analysis to public employees who claim their termination was a result of unequal treatment, even if that treatment did not result from the employee's membership in a suspect class. The question presented is:

Whether traditional equal protection "rational basis" analysis under Village of Willowbrook v Olech, 528 US 562, 120 S Ct 1073, 145 L Ed 2d 1060 (2000), applies to public employers who intentionally treat similarly situated employees differently with no rational bases for arbitrary, vindictive or malicious reasons?

In Engquist v. Oregon Department of Agriculture, the Supreme Court will resolve a circuit split regarding whether an individual government employee can bring an Equal Protection claim against her employer, a state government agency, for treating her differently than other similarly-situated employees.

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Federal Express Corporation v. Holowecki

Issues

Whether filing an “Intake Questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging illegal age discrimination under the Age Discrimination in Employment Act has the same legal effect as filing the EEOC’s form titled “Charge of Discrimination.”

 

In 2001, Patricia Kennedy filed an “intake questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging age discrimination by her employer, Federal Express Corporation (“FedEx”), against her and other couriers. Because she did not file a formal “charge” document, the EEOC did not notify FedEx, investigate the claims, or begin conciliation efforts. Five months later, Kennedy, along with thirteen other past and present FedEx couriers over the age of forty, filed suit over this issue in federal court. The trial court granted FedEx’s motion to dismiss, ruling (among other things) that Kennedy could not sue because she never filed a timely charge with the EEOC as required by the Age Discrimination in Employment Act (“ADEA”). The U.S. Court of Appeals for the Second Circuit reversed, holding that Kennedy’s intake questionnaire is a “charge” for the ADEA’s purpose because it manifests her intent to activate the EEOC’s investigation and conciliation process.

 

    Questions as Framed for the Court by the Parties

    Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

    The Federal Express Corporation (“FedEx”) engages in the business of package transportation and delivery. Brief in Opposition to the Petition for Writ of Certiorari at 1. FedEx implemented new employee policies in 1994 and 1995. Holowecki v. Federal Express Corp., 440 F.3d 558, 562 (2d Cir. 2006). One of the policies required supervisors and couriers to set goals for the number of deliveries on each route. Id. Initially, couriers who met the goals received bonuses. Id.
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    Ledbetter v. Goodyear Tire & Rubber Co.

    Issues

    Whether a claimant alleging illegal pay discrimination under Title VII of the Civil Rights Act of 1964 may use evidence of an allegedly discriminatory act from outside the statutory time limit to prove that pay she received within the statutory period was illegally discriminatory.

    Lilly Ledbetter sued her employer, Goodyear Tire and Rubber Company, under Title VII of the Civil Rights Act of 1964, alleging illegal pay discrimination. Prior to filing suit, Ledbetter filed a complaint with the Equal Employment Opportunity Commission, as required under Title VII, and thereby set the statutory period of her suit to 180 days before she filed the complaint with the Commission. At trial, Ledbetter relied on evidence of allegedly discriminatory salary reviews that occurred before the statutory period to prove that the amount of the paychecks that she received within the statutory period were discriminatorily low. The jury found that Goodyear had paid Ledbetter a lower salary because of unlawful sex discrimination, in violation of Title VII. Goodyear appealed, arguing that Title VII’s statutory time period should limit Ledbetter’s evidence to the two incidents of allegedly discriminatory conduct that occurred within the statutory period. Further, Goodyear argued that it did not illegally discriminate against Ledbetter during either incident. The Eleventh Circuit agreed, and dismissed the case. The Court’s decision in this case will affect employees’ ability to file equal pay claims under Title VII, as well as employers’ ability to defend themselves against such claims.

    Questions as Framed for the Court by the Parties

    Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.

    Lilly Ledbetter began working at Goodyear Tire and Rubber Company’s Gadsden, Alabama tire plant in a supervisory role in 1979. Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d 1196, 1173 (11th Cir. 2005).

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