THE TEN TOP WEATHERVANE CASES OF TWENTIETH CENTURY EMPLOYMENT LAW INDIVIDUAL RIGHTS 

  Elizabeth A. Rodgers, Esq.

Rodgersm Powers & Schwartz, P.C.

18 Tremont Street

Boston, MA 02108

erodgers@theemploymentlawyers.com

 

 

 

Weathervane cases on Race Discrimination

 

 These two companion cases were the death knell to the separate but equal doctrine of Plessy v. Ferguson,163 U.S. 537 (1896), and foreshadowed the enormous changes to come in employment discrimination law.   In Sweatt v. Painter, the court held that a law school created for blacks, but located in Austin, with no library, and five designated faculty, located in Houston, was not the equivalent of the University of Texas Law School in Houston, with its distinguished faculty, experienced administrators, and influential alumni. The court noted the inequality of an education excluding whites, which consisted of most of the lawyers, witnesses, jurors, judges and other officials in the profession.  The court stated it did not have to reach a re-examination of Plessy; as a practical matter, the court pierced the fiction of separate but equal and found the two schools not equal. 

 

In the companion case, McLaurin, the court was faced with an even closer question: Mr. McLaurin, a black applicant with a Master Degree, had been denied access to a doctoral program in Education. Oklahoma law made it a misdemeanor to maintain, or operate, teach or attend a school at which both whites and Negroes are enrolled or taught. Initially, the lower court ordered that McLaurin be provided such a program if offered to any other group. The Oklahoma legislature responded by permitting admission of blacks but only on a segregated basis, defined as in separate classrooms or at separate times. The plaintiff was then admitted, but required to sit outside the class room in an anteroom; later, he was permitted in the classroom but isolated with bar around his desk, labeled "Reserved for Coloreds", and was not permitted to sit at same lunch table as whites.  Finally, he was permitted to sit in a separate row.

 

The Supreme Court held that the environment of education, even under the same roof and with same professors, was not equal where the plaintiff was isolated, shunned and excluded from the opportunity for full participation in association, discussion and membership.  The unanimous court did not cite the separate but equal doctrine of Plessy v. Fergusson, and foreshadowed the Court’s decision in  Brown v. Board of Ed., and lay the foundation for eliminating barriers for minorities and women in the workforce for fifty years. In the discussion of the hostile environment, there was no requirement of there being economic or tangible harm, or a severe or pervasive harm which has evolved in sexual harassment hostile environment cases. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift, 510 U.S. 17, 21 (1993); For progeny in First Circuit, see Contardo v. Merrill Lynch,  753 F. Supp. 406 (D. Mass 1990) (Atale of two offices@, the female and the male). See also, Ramos v. Davis and Geck, 167 F.3d 727 (1^st Cir. 1999)(death cubicle and shunning sufficient for constructive discharge on basis of age).

 

 

2.     Craig v. Boren, 429 U.S. 190 (1976), rehearing denied 429 U. S. 1124.

Weathervane case prohibiting sex discrimination.

 

In this “A Beer for boys” case, the Court was turned in the direction which led to the massive entry of women into the work force.

In Oklahoma in 1975, young women could buy beer at age 18, but males couldn’t buy beer until age 21. Ruth Bader Ginsburg selected this fact pattern to catch the attention of the court, and they bit: The Justices immediately understood the unfairness of depriving young men of the right to buy intoxicating liquor which girls could obtain legally.  The court held classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives, Id. at 429 U. S. at 197. Liberty, ever an intoxicating concept, began to spread: the new standard led directly to Cleveland v. LaFleur, 414 U.S. 632 (1974), which eliminated the longstanding mandatory eight month exclusion of pregnant women from teaching. The elimination of discrimination against pregnant women was a bumpy road, with the U.S. Supreme Court initially balking at recognizing pregnancy was sex linked, General Electric Co. v. Gilbert, 429 U.S. 125 (1976). The Massachusetts Supreme Judicial Court issued a decision recognizing the barriers held to pregnancy denied equal protection.  Massachusetts Electric Co. v. M.C. A. D.  375 Mass 160 (1978) but the Congress passed the Pregnancy Discrimination Act, which in turn spawned the broader FMLA, and finally MCAD maternity and pregnancy guidelines in 2000.  With the elimination of pregnancy discrimination, the doors opened for women in all walks of employment. But for the boys for beer case, women might still be fetching the beer but not the bacon.

 

3.     Watson v. Forth Worth Bank & Trust , 487 U.S. 977, 990-991 (1988)

Prohibiting discrimination by subjective decision making

 

Watson involved denial of opportunities for promotion and advancement by reason of race discrimination, by subjective or discretionary employment practices not governed by any fair procedures or equally applied standards.

 

If an employer’s undisciplined system of subjective decision making has precisely the same effect as a system pervaded by impermissible intentional discrimination, the employer’s practices may be said to adversely affect an individual’s race, color, religion, sex, or national origin. 42 U.S. C. s 2000 e 2(a)(2). We conclude, therefore, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases. Applied in Contardo v. Merrill Lynch, Pierce Fenner & Smith Inc.,753 F. Supp. 406 (D. Mass. 1990), (a Tale of Two Offices), to a subjective system denying female broker of substantial access to lucrative bonus and sales programs. The defense of a sound discretion was found to be a pretext for race discrimination in the form of pervasive indifference to and denial of the rights of female employees to enjoy equal opportunities with their male counterparts. Under disparate impact, proof of intent was not required. This case helped end pervasive and habitual institutional discrimination against women by undisciplined discretionary decisions in a work place dominated by men.  $250,000 punitive damages awarded.

 

4.       Albermarle v. Moody Paper Co. , 422 U.S. 405, 425 (1975)

          Weathervane case on Disparate Impact Theory;

          Anchor case on presumptive continuing violation for up to two years back pay.

 

This case foreshadowed the increasingly difficult proof of disparate impact.  Officially, it confirmed that a practice having disparate impact must be job related, must be clearly related to the skills, knowledge or ability required for successful performance on the job and be necessary to the safe and efficient performance of the job.   Griggs v. Duke Power Co, 401 U.S. 424 (1971) had prohibited employment discrimination discriminatory in operation, without proof of intent. Albermarle suggested need for proof of significant pattern, and statistical significance was then required in Hazelwood School District v. United States, 433 U.S. 299, 306-308 (1977).  Because statistical significance was very difficult to prove with less than 100 in a sample, and because courts increasingly looked to smaller groups affected by individual decision makers,  Albermarle’s requirement of significant difference in pattern heralded the failure of most disparate impact cases thereafter.

 

This case is also an anchor case for the continuing validity of granting presumptive back pay for two years prior to filing at EEOC, without a showing of bad faith. The court held that back pay should be denied only for reasons which would not frustrate the central purpose of eradicating discrimination throughout the economy and making persons whole for injuries suffered; 422 U.S. at 421-422; (reversing appellate decision conditioning back pay on showing of bad faith

 

The court also confirmed that Title VII permits award of back pay starting two years before the date of the filing of plaintiff’s complaint with the EEOC up until the date of judgment. The two-year back pay cut off in the statute, discussed and upheld here, is an important case on the continuing violation issue.  see Scarfo v. Cabletron Sys Inc., 54 F. 3d 931, 954 (1st Cir, 1995). Held even more clearly in  Bazemore v. Friday, 478  U.S. 385, 395(1986) (serial violations, for 20 +years , regardless of year in which they began, each constituted a separate actionable wrong) (Romero v. Abogados de Puerto Rico, 204 F.3d 291 (1^st Cir. 2000). (same). See, variation, Thomas v. Eastman Kodak,  183 F.3d 38,54  (1st Cir 1999).

 

5.      Hazen Paper Co.  v. Biggins,  507 U.S. 604 (1993)

      Kimel v. Florida Board of Regents, 120 S.Ct. 631 (January 11, 2000)

     Pivotal cases on Age Discrimination          

in this hotly contested case, the Supreme Court analyzed the Age Discrimination in Employment Act,  and held that damages are doubled if willful, if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.  Need not show outrageous conduct, or direct evidence of employer’s motivation, or prove that age was the predominant, rather than a determinative factor in employment decision. This opinion has been  followed in securing million dollar verdicts for victims of age discrimination.  (e.g. Ground Round; Kelly v. Airborne Freight) As a result, there were large jury verdicts coupled with a reckless standard.

 

This case also served as a weathervane on the continued judicial trend to diluting or eviscerating disparate impact theory litigation.  In dicta, here the Supreme Court suggested that the ADEA only prohibits intentional discrimination, Hazen, 507 U.S. at 610, and three circuits have precluded recovery under the ADEA on disparate impact:  Mullin v. Raytheon, 164 F. 3d 696 (1st Cir. 1999); EEOC v. Francis W. Parker School, 41 F.3rd 1073 , 1076-78 (7th Cir., 1994); questioned in Gantt v. Wilson Sporting Goods Co.,143 F. 3d 1042 (6th Cir.,1998);  while three circuits have recognized the continued viability of disparate impact in ADEA cases. Mangold v. California Public Utilities Comm’n, 67 F. 3d 1470, 1473 (9th Cir. ,1995); Broaddus v. Forida Power Corp.,145 F. 3d 1283, 1285 (11th Cir.,1998); Smith v. City of Desmoines, 99 F. 3 1466, 1470 (8th Cir. 1996).

 

            The recent case of Kimel v. Florida Board of Regents also bears watching. Kimel v. Florida Board of Regent, 120 S.Ct. (January 11, 2000).  In Kimel, the Supreme Court held that states retain their Eleventh Amendment immunity from ADEA actions because Congress exceeded its authority under Section 5 of the Fourteenth Amendment when it attempted to abrogate states’ immunity.  The breadth of the Eleventh Amendment and the scope of the Commerce Clause are thus back in play.  

 

 

6.       O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996)

        Weathervane case on broadening categories of discrimination

 

Here the Supreme Court ruled that the age of an employee’s replacement is irrelevant even when the employee has been replaced by another member of the protected class, as long as the plaintiff was replaced because of her age; this will be a crucial case, given the demographics of our aging population. Discrimination against employees in late 50=s in favor of employees in 40=s will not be permitted.  Also, this case  exemplifies the trend away from rigid interpretations of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). with its prima facie case, and back towards the general principle that evidence which gives an inference of discrimination is permissible, without rigid categories.  This type of broadening of statutory prohibitions based upon the statutory purpose was reflected in later cases, such as Oncale v. Sundowner Offshore Services Inc., 118 S.Ct. 998(1998)  Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.@ (same sex harassment is actionable). Deffenbaugh-Williams v. Wal-Mart Stores Inc. 156 F. 3 581 (5^th Cir. 1998), (discharge of a white female due to her romantic relationship with a black male employee actionable). This type of liability is expected to apply to claims of discrimination based upon association with a handicapped family member.

 

7.       College-Town v. MCAD, 400 Mass. 156 (1987)

  Pivotal case establishing strict liability for supervisory conduct.

  and finding violation for failure to investigate in fair manner.

This Massachusetts case created strict liability for those cloaked by the employer with authority to act. This case also led the way in recognizing duty to investigate harassment without deference to the harasser and without intimidation of the witnesses.  It recognized the logical and traditional agency principles, that a corporation only acts through those to whom it has given authority, and a corporation would rarely authorize unlawful acts; therefore to require the corporation to have authorized the unlawful act would shield most corporations from liability for all the unlawful acts of its agents.  Instead, the Massachusetts Supreme Judicial Court held the corporation strictly liable for supervisory acts that harassed women or retaliated against them.  The fear of strict liability, contributed to the development of pervasive preventative measures, including passage of the statutory requirement of annual notices, and the introduction of mandatory harassment training programs throughout industry. 

 

The Massachusetts court clearly rejected the U.S. Supreme Court  majority opinion in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). College town followed the four judges dissenting from Meritor and appears to have followed the D.C. Circuit decision, upholding a hostile environment based on sex, which had been penned by one of the architects of the attacks in the 1940's and 1950's on race discrimination. Judge Spottswood W. Robinson.  (Meritor, the majority opinion, while recognizing sexual harassment as actionable, was the first step in unhinging federal  discrimination law from agency law) 

 

College-Town also created a duty to investigate eleven years before Ellerth and Faragher, below.

 

8.      Burlington Industries v. Ellerth, 118 S. Ct 2257, 2265 (1998);  Faragher v.  City of Boca Raton, 118 S.Ct. 2275, 2292-93 (1998);

Pivotal federal case on affirmative defense to prevent, investigate, deter and remedy harm.

 

Markedly and expressly cutting federal discrimination law loose from agency law, the federal court found it unacceptable to hold a corporation liable for conduct of its supervisory employees if there were no tangible harm, a prior, enforced preventative policy, and an effective grievance internal system which the plaintiff failed to use.  In the context of sexual harassment hostile environment claims, the employers were given affirmative defenses for the first time,  which is the first step in the federal courts of  institutionalizing a duty to prevent, investigate and remedy harm.

The court held that if the plaintiff was sexually harassed by his or her supervisor and the harassment resulted in tangible employment action (such as discharge, demotion or undesirable reassignment. then defendant is liable for the harassment, regardless of the existence of a policy against sexual harassment, any remedial actions taken by employer, number of complaints made by employee and the severity of the harassment; Faragher, at 118 S.Ct. 2275, 2292-2293; Burlington v. Ellerth, at 118 S.Ct. at 2265. Oncale, at 118 S.Ct at 1001).

 

            However, if no tangible adverse action was actually taken, or if harasser did not have the power to effect a tangible employment action, then the sexually harassing conduct must be severe or pervasive in order to be actionable. The court identified factors such as frequency, severity, whether or not physically threatening or humiliating, and whether or not the harassment unreasonably interfered with plaintiff’s job performance. In the absence of tangible harm, the  employer is now entitled under federal law, to an affirmative defense where it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and the employee unreasonably failed to take advantage of opportunities provided by the employer.  This was a weathervane case foreshadowing holding that punitive damages are not available where decisions run contrary to the employer’s good faith efforts to comply with Title VII. Kolstad v. American Dental Assn.,

 

9.     Price Waterhouse v. Hopkins, 490 U.S. 228 (1989);  

       Weathervane case on sexual stereotyping and jury instructions on motive.

 

Gender comments, pervading the decision not to select a top performing woman for partnership in a large accounting firm, were sufficient for a jury to conclude that gender was a motivating factor in the decision where they evidenced sexual stereotyping; e.g. regarding appearance, aggressiveness, career devotion or childbearing assumptions.  This broad look at stereotypes included as actionable the acts of partners who may have been unaware of that (stereotyped gender biased) motivation was at work.  This theory of conscious or unconscious motivation has been reexamined and applied in a thoughtful opinion on race discrimination in Thomas v. Eastman Kodak, 183   F.3^rd 38, 59 (1999). This recognition of unconscious stereotypes, like the theories of reckless disregard, created new opportunities for discrimination to be an insurable act and will lead to massive changes in practice as Employer Practices Liability Insurance takes hold.

 

Price Waterhouse case is a weathervane case for jury instructions where there is evidence of stereotyping and direct evidence, broadened to all cases where a jury finds that the prohibited discrimination was a motivating factor. This has led to jury instructions such as:

 “Plaintiff must prove by a preponderance of the evidence that  sex (or the protected characteristic) played a motivating part in Defendant's decision to  take the adverse employment action.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Seman v. Coplay Cement Co., 26 F.3d 429 (3rd Cir. 1994). If so, the burden shifts to the defendant to prove that it would have made the same decision anyway. 

 

The Second Circuit has led the way in holding that plaintiffs are not required to have direct evidence to entitle them to the Price Waterhouse instruction.  Plaintiffs who have sufficient evidence to show that from the start age played a role are entitled to the motivating factor instruction, which puts the ultimate burden on the defendant.  Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d 171 (2^nd Cir 19923; Tyler v. Bethlehem Steel Corp., 958 F.2d 1176.  Those courts are increasingly noting that legal jargon such as prima facie case or burden shifting should not be put to the jury, but should focus on the ultimate issue of whether or not the defendant acted because of the plaintiff’s (age, sex). Loeb v. Textron, 20 F.E.P. Cases (1^st Cir. 1979).