Summary of Discrimination Law

Summary of Discrimination Law, 1999

Elizabeth Rodgers

published by MCLE, Dec. 1999

Summary of Important Cases, 1999

1. Issues of Punitive Damages and Vicarious Liability,

A. Kolstad v. American Dental Association. 67 USLW 3682, 119 S.Ct. 2118 (1999) O=Connor, 5:4 opinion.

Court recognizes that under federal law, Title VII, established a two tier standard of liability, one for establishing a right to compensatory damages (intent required), and another, higher standard for warranting punitive damages; The court held that punitive damages may be awarded upon a showing of malice or reckless disregard of the plaintiff=s federally protected rights, without a showing of egregious or outrageous discrimination. '1981(a). The Court reaffirmed Smith v. Wade, 461 U.S. 30 (1983), AA jury may be permitted to assess punitive damages in an action...when the defendant=s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others; at least, the employer must discriminates in the fact of a perceived risk that its actions will violate federal law. (For punitive damages purposes, the court, at a minimum, requires recklessness in its subjective form, that is a subjective consciousness of a risk of injury or illegality and a criminal indifference to civil obligations, i.e. disregarding a risk of which he is aware. or Agross negligence@, in terms of a conscious indifference to consequences; knowledge of falsity or reckless disregard for the truth. The reckless indifference pertains to knowledge that the employer may be acting in violation of federal law, not its awareness that it was engaged in discrimination; punitive damages may not apply if theory of discrimination is novel, poorly recognized; or reasonably believes statutory defense applies.

2. Vicarious liability: In the punitive damages context, under federal Title VII law, the employer will not be vicariously liable for discriminatory acts of management, where the decisions are contrary to the employer=s good faith efforts to comply with law; (even if manager acting within scope of employment). Opinion signigicantly limits the Restatement(Second) of Agency '217(C), which provides that a principal could be liable for punitive damages if it authorizes or ratifies agent=s act; or acts recklessly in employing the malfeasing agent, or if agent employed in managerial capacity in the scope of employment; even if specifically forbidden acts or forbidden means of accomplishing the results. Keeton Torts ' 70. Court concerned that vicarious liability for malice and reckless conduct would penalize employers who educate themselves about the law, and emphasized the primary objective of Title VII is prophylactic to avoid harm.

B. Robert A Sarvis. et. al v. Boston Safe Deposit and Trust Company & Others.47 Mass. App. Ct. 86, 711 N.E. 2d 911 (1999) (vicarious liability of corporation for acts of its agents upheld under Mass.Civ. Rights Act, rejecting contrary Federal precedent). Recognizing Mass. civil rights statutes are to be liberally construed, state law claims with strict liability for acts of managerial action will be a better choice of law for plaintiffs. See also College Town v. MCAD, 400 Mass. 156 ( strict liability for managerial agents. (AWhatever application the (other Federal Circuit distinctions) receives in cases interpreting Title VII, we conclude that, in enacting G.L. c. 151B, ' 4, the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority, without an additional notice requirement...College‑Town is, in this case, vicariously liable for the acts of its agents‑‑its supervisory personnel. General Laws c. 151B, ' 4, prohibits discrimination by "an employer, by himself or his agent." Furthermore, G.L. c. 151B, ' 9, provides that "[t]he provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof...." It is clear that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority. A College Town at 593. ;

C. Davis v. Monroe County Bd. of Educ., 119 S.Ct. 1661, 143 L.Ed.2d 839, 67 USLW 4329, (1999) (vicarious responsibility for school boards for deliberate indifference to known and severe sexual harassment of students (Publication page references are not available for this document.) Damages liability is not imposed on fund recipient under Title IX based on agency principles or a negligence standard; rather, fund recipients may be liable in damages only where their own deliberate indifference effectively caused the discrimination. Education Amendments of 1972, ' 901(a), as amended, 20 U.S.C.A. ' 1681(a).

D. New case by Judge Lasker, U.S. D.C. adopting strict liability for pendant state claims.

Practice Impact:

In Federal Court:

$ Punitive Damages will in many cases be foreclosed if there is proof of good faith efforts to eradicate discrimination.

$ Discovery will almost have to include whether the employer had been making good faith efforts to enforce anti-discrimination policy; although good faith efforts may include include written policy alone.

$ Demand letters should put the employer on notice of the Aperceived risk that its actions will violate federal law.@

$ State court forum will continue to recognize strict liability for acts of managers, and state law claims may be successful when pendant to federal claims.

2. Renewed importance of EEOC

A. West v. Gibson 1144 L.Ed. 2d 196 (1999); Eeoc has authority under Title VII to award compensatory damages against federal agencies in employment discrimination cases.

1. See List of settlements by EEOC in 1999, ranging from $ million to $ million, in sex, age, race, and n.o. discrimination.

(ADA case regarding suitability of mentally disabled patients for community based placement). The court recited the broadest interpretation of discrimination and ruled that Adiscrimination by reason of ...disability@ was broad enough to encompass institutionalization resulting in separation of ...(protected) persons for no permissible reason. The court rejected an argument that similarly situated individuals had to be identified; Congress intended a more comprehensive view of the concept of discrimination. Analogizing to Oconnor v. consolidated Coin Caterers Corp, 517 U.S. 308, (1996) ( ADEA includes discrimination among persons over 40, and A the fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age@ . Oncale v. Sundowner Offshore Services Inc 523 U.S. 75 (1998) (workplace discrimination because of sex among same sex employees); and Jefferies vs. Harris County Community Action Assn. 615 F.2. 1025, 1032 (CA 5, 1980)(discrimination against black females in absence of discrimination against black men or white women). Legislative history recognized isolation and segregation of individuals with disabilities is a serious and pervasive problem. Stigmatizing injury often caused by racial discrimination is one of the most serious consequences of discriminatory ...action. Allen v. Wright 468 U.S. 737, (1984); AIn forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. Los Angeles v. Manhart 435 U.S. 702, 707 ( 1978).

Reversible error to rule for employer on handicap, but not on age; Reversible error to require smoking gun evidence of direct inquiry into medical expenses; Direct or circumstantial evidence may satisfy burden; Evidence of positive evaluations son ignored in weighing of conflicting evidence is for jury, not a court. Citing Blare v. Husky ; (no remarks, no close timing of adverse action, no deviation from prior policies; no escalation of discrimination as claim progressed; pretextual reason coupled with departure of all five managers over 40 held insufficient where demotions and voluntary departure of employees under 40 not compared ).

· Reversing district court on motion to dismiss, where officer’s allegation of discriminatory termination in complaint was sufficient to include failure to rehire, where failure to rehire was within scope of MCAD proceedings and probable cause finding, failure to amend was not argued at MCAD, and amendments are to be liberally allowed where parties on notice of claims.

· Agency findings should be upheld absent substantial prejudice to a party. Appealate Court may not determine facts anew, or judge credibility, or draw different inferences than MCAD.

· Suggesting that disparate treatment proof requires similarly situated employees be treated differently.

· Claims that adverse employment decisions have had a disparate impact on older employees are not cognizable under ADEA. Using Hazen Paper v. Biggins, 507 U.S. at 610-612, the court held that the purpose of the ADEA (to prevent stereotyping), the legislative history, and a concurring opinion by Justice Kennedy persuasive that the ADEA does not recognize causes of action where the employment decision is wholly motivated by factors other than age, even if the motivating factor is correlated with age. See 29 U.S.C. 623(f)(1).

· Also holding that MA Courts would not recognize Disparate Impact theory in age claims. The court distinguishes three Mass cases upholding disparate impact analysis:

· Cox v.NET&T Co. 414 Mass. 375, 385(1993)(holding disparate impact viable in handicap claim, although it too was a separate provision of 151 B, based on analogy to federal law: federal courts have recognized disparate impact claims under Section 504 of the Rehabilitation act of 1973; Notes separate age paragraph sec. 4(1B) after amendments in 1984. (however language of separate section is parallel to sec. 4 ( 1), as is handicap. See n.6).

· School Committee of Braintree v. MCAD 377 Mass 221, 228 (1978) (upholding disparate impact in sex based claims), distinguished as omitting age.

· Lynn Teachers Union v. MCAD 406 Mass. 515, (1990), as interpreting section 4(17)(a), to insulate bona fide seniority systems from claims of age discrimination, distinguished as warranting separate treatment of age claims.

Massachusetts Appellate court, reiterating disparate impact analysis in race case, dicta. School Committee of Braintree v. MCAD 377 Mass 221, 228 (1978).

A. Deposition of investigator at EEOC upheld where privilege does not protect factual information, communications subsequent to agency decision… (10/26/99 print out. U.S.E.D. Pa.

Mere opposition to inadmissible evidence insufficient, at SummaryJudgment where no Motion to Strike unsupported factual allegations was made; therefore, issue waived on appeal.

Motion to strike hearsay in employer affidavit upheld in numerous respects. Court disregarded hearsay, and reversed summary judgment for employer, finding sufficient evidence of pretext for triable issue of fact.