This is an outline of 1996 developments in employment discrimination
law. This outline focuses primarily on Eleventh Circuit law, although it
includes case law from other Circuits as well. It is by no means comprehensive,
but it provides some insight into the development of this ever-changing
area of the law. I have cited mostly to the slip opinion cites, but by
the time you read this, citations to F.3d, S. Ct., or F. Supp. should be
available for most of these cases.
In O'Connor v. Consolidated Coin Caterers, No. 95-354, slip op. (April 4, 1996), the Supreme Court rejected as the fourth element of a prima facie case under the ADEA that the plaintiff was replaced by a person outside of his protected class, that is, by a person under the age of forty. The Court found that "the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class." Id. Therefore, a plaintiff may present a prima facie case of age discrimination under the ADEA by showing that (1) he was over age forty, (2) he was qualified to do the job, (3) he was subject to an adverse employment action, and (4) he was replaced by a "substantially younger" person. Id.
In determining whether employees are similarly situated, a jury can consider the fact that the comparators were lower in the corporate hierarchy than plaintiff. It would not be contrary to law for an employer to require employees with more authority to conform to a higher standard of decency than those with less authority. Hargett v. Nat. Westminster Bank, USA, 78 F.3d 836 (2d Cir. 1996), cert. denied, __ U.S. __, No. 95-2071, 1996 WL 375941 (Oct. 7, 1996).
An employer had constructive knowledge of sexual harassment because all of the supervisors with whom the victims had regular contact were harassers and the employer failed to provide the victims with guidance as to how they could contact upper-level managers to complain of harassment. Splunge v. Shoney's, Inc., __ F.3d __, No. 95-6141, 1996 WL 544027 (11th Cir. Oct. 10, 1996).
The abusive investigation of a false claim of sexual harassment is not itself a form of sexual harassment actionable under Title VII. McDonnell v. Cisneros, No. 95-1864, slip op. (7th Cir. May 20, 1996).
Facially neutral "code words" can violate Title VII when circumstances indicate that racial (or sexual) implications were intended. This type of comment can be evidence of a hostile work environment if derogatory and insulting terms are pervasively used and directed at members of a protected class. Aman v. Cort Furniture Rental Corp., No. 95-5142, slip op. (3d Cir. June 5, 1996).
In McWilliams v. Fairfax County Bd. of Supervisors, No. 94-1607, slip op. (4th Cir. Jan. 9, 1996), the Fourth Circuit held that harassment that is sexual in nature, but committed by heterosexual males against a heterosexual male employee, is not harassment "because of sex." Therefore, the court held that the employee could not maintain a Title VII hostile work environment sexual harassment claim on such facts.
A supervisor's admission that he told racial jokes and used the "N" word was not direct evidence against a black job applicant when the remarks were not made about the applicant himself and were unrelated to the hiring decision. Allen v. City of Athens, __ F. Supp. __, No. CV95-H-1083, 1996 WL 501883 (N.D. Ala. Sept. 3, 1996).
"For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged action." Trotter v. Bd. of Trustees of Univ. Of Ala., No. 95-6465, slip op. at 3201 (11th Cir. Aug. 20, 1996).
"A constructive discharge will generally not be found if the employer is not given sufficient time to remedy the situation." Kilgore v. Thompson & Brock Management, No. 94-7018, slip op. (11th Cir. Sept. 5, 1996).
School district's refusal to give school bus drivers all of the unpaid leave they requested so that they could attend a religious observance was not religious discrimination in violation of Title VII. Requiring the school district to hire more drivers and pay drivers more to cover the absences would have imposed an undue hardship on the school district, which had suffered a budget deficit of over six million dollars the previous year. Favero v. Huntsville Ind. Sch. Dist., __ F. Supp. __, No. CIV A H-95-3547, 1996 WL 529309 (S.D. Tex. Aug. 9, 1996).
An arbitration clause in an employment agreement, which obligated the parties to arbitrate all claims arising out of federal, state, and local statutes, required a stay of an employment discrimination action. The Civil Rights Act of 1991 revealed express congressional approval of the use of arbitration to resolve Title VII disputes. Johnson v. Hubbard Broadcasting, Inc., __ F. Supp. __, No. CIV 4-96-107, 1996 WL 511585 (D. Minn. Sept. 3, 1996).
"When an employee knowingly and voluntarily releases an employer from liability for Title VII and § 1981 claims with a full understanding of the terms of the agreement, he is bound by that agreement. . . . However, the waiver of such remedial rights must be closely scrutinized." Puentes v. United Parcel Service, Inc., No. 95-4374, slip op. (11th Cir. June 20, 1996).
Title I of the ADA does not apply to former employees. Gonzales v. Garner Food Servs. Inc., No. 95-8533, slip op. (11th Cir. Aug. 2, 1996).
Withdrawal of a reasonable offer of accommodation after it has been accepted gives rise to an inference of pretext and intentional discrimination under the ADA. Valentine v. American Home Shield Corp., __ F. Supp. __, No. C 95-3030-MWB, 1996 WL 506506 (N.D. Iowa Aug. 30, 1996).
Reasonable accommodation does not require reassignment of disabled employee in derogation of collectively bargained seniority rights of other employees. Eckles v. Consolidated Rail Corp., No. 95-2856, slip op. (7th Cir. August 14, 1996).
The ADA provides that no employer with 15 or more employees "shall discriminate against a qualified individual with a disability because of the disability of such individual . . ." in regard to their employment. 42 U.S.C. § 12112(a) (1994). To establish a prima facie case of discrimination under the ADA, the plaintiff must prove: (1) that she has a disability, (2) that she is a qualified individual, and (3) that she was subject to unlawful discrimination because of her disability. Morisky v. Broward County, No. 95-4808, slip op., (11th Cir. April 11, 1996).
"Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." Morisky v. Broward County, No. 95-4808, slip op. (11th Cir. April 11, 1996).
Under the ADA, an otherwise qualified individual with a disability who is able to perform the essential functions of the job with reasonable accommodation is entitled to a reasonable accommodation. However, in general, "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." 29 C.F.R. § 1630, App. § 1630.9 (1994); see also, Whillock v. Delta Air Lines, Inc., 1:93-CV-2712-FMH, slip op. at 15 (N.D. Ga. Aug. 15, 1995) ("Under the ADA, Plaintiff must offer Defendant a suggestion of a reasonable accommodation which would allow her to perform the essential functions of her job.").
The ADA allows inquiry into an applicant's ability to perform job-related functions. It also allows employer to require a former employee with a recent known disability, who is applying for re-employment, to furnish a medical certification as to the ability to work, with or without reasonable accomodation, provided that such certification is relevant to an assessment of the individual's ability to perform essential job functions. Grenier v. Cynamid Plastics Inc., No. 95-1313, slip op. (1st Cir. Nov. 27, 1995).
An employee who failed to sign a release to enable her employer to consult her doctor and otherwise failed to provide information needed to accommodate her disability cannot recover under the ADA. Beck v. Univ. of Wisc. Bd. of Regents, No. 95-2479, slip op. (7th Cir. Jan. 26, 1996).
A former employee established a prima facie case of disparate impact age discrimination under the ADEA based on her employer's salary restructuring. Data presented by the employee showed that less than five percent of employees under age forty received wage reductions of three dollars pre hour or more, while seventy-five percent of those over age forty received comparable reductions. The employer failed to articulate any reason other than age to explain the policy's disparate impact. Camacho v. Sears Roebuck de Puerto Rico, __ F. Supp. __, No. CIV 94-2055(PG), 1996 WL 535394 (D.P.R. Sept. 17, 1996).
The Eleventh Circuit recently affirmed the district court's denial of a Rule 12(b)(6) Motion to Dismiss plaintiff's claim of intentional infliction of emotional distress when he alleged that he reported dangerous work conditions and was thereafter harassed and ultimately terminated. Harris v. Procter & Gamble Cellulose Co., No. 95-8602, Slip op. (11th Cir. Jan. 22, 1996).
The Supreme Court has held that a punitive damages award may be so "grossly excessive" as to violate the Due Process Clause of the Fourteenth Amendment. BWM of North America, Inc. v. Gore, No. 94-896, slip op. (May 20, 1996) (voiding an Alabama state court's award of punitive damages against BMW for failing to disclose that it repainted a new $40,000 car, thereby reducing its value by $4,000).
"At the summary judgment stage, our inquiry is whether an ordinary person could reasonably infer discrimination if the facts presented remained unrebutted." Jameson v. Arrow Co., No. 94-8772, slip op. (11th Cir. Feb. 28, 1996).
An employee who raised fact issues as to four of the employer's six proffered reasons for his termination failed to survive summary judgment in an ADEA action, when the four disputed reasons were neither so intertwined nor so fishy so as to call into doubt the two credible reasons. Wolf v. Buss America, Inc., 77 F.3d 914 (7th Cir. 1996), cert. denied, __ U.S. __, No. 96-92, 1996 WL 411488 (Oct. 7, 1996).
An official is entitled to qualified immunity at the summary judgment stage if both a lawful and unlawful motive are present and a jury could find that the official would have made the same decision absent the unlawful motivation. Foy v. Holston, No. 95-6227, slip op. at 3565 (11th Cir. Sept. 17, 1996) ("Where the facts assumed for summary judgment purposes in a case involving qualified immunity show mixed motives (lawful and unlawful motivations) and pre-existing law does not dictate that the merits of the case must be decided in plaintiff's favor, the defendant is entitled to immunity.").