Atlanta Employment Lawyer Blog

The U.S. Court of Appeals for the Second Circuit recently revived an engineer’s job bias claim, determining that it was error for the trial court to require the jury find “personal knowledge of an alleged protected activity” in order to establish causation in a retaliation claim. The court also explained that it is not necessary for an employee to show that an employer’s reason for taking adverse action was “pretext” to prove discrimination and cautioned District Courts against using jury instructions with this language.

Title VII and other discrimination laws prohibit retaliation in the workplace. “Retaliation” refers to almost any negative action by your employer against you in response to your complaint about discrimination, or for participating as a witness in someone else’s discrimination case.

In Henry v. Wyeth Pharms. Inc., an employee – Howard Henry – filed a claim for race discrimination based on several different claims of bias. In a separate cause of action for retaliation, Henry asserted that he was demoted as a result of his discrimination claim. The trial court instructed the jury that “personal knowledge of an alleged protected activity” was needed to establish causation. The 2d Circuit disagreed, finding the instruction constituted reversible error.

Writing for the court, Judge Pierre N. Leval noted, “Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.” As such, an employee need not prove that the specific person who carried out the adverse action knew of the employee’s protected status. Rather, a causal connection is demonstrated when the agent who decides to impose the adverse action – such as firing or demotion – does so at the encouragement of a superior who does have knowledge of the protected status.

Additionally, the trial court also erred in instructing the jury on the concept of “pretext.” Pretext typically implies a “conscious intention” to deceive. Leval explained that Title VII does not require employees show that an employer’s stated reason for an adverse action constituted “pretext.” As such, Leval cautioned district courts not to provide this instruction in the future.

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A recent Ninth Circuit court opinion held that a worker whose vision affected her ability to walk and drive after dark was entitled to protection under the Americans with Disabilities Act.

The ADA prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment. This includes requiring your employer to make an effort to reasonably accommodate your disability. Reasonable accommodations can be something as simple as changing your work time by a few minutes or altering your workspace to be more accessible. A failure or refusal to make reasonable accommodations may constitute a violation of the ADA.

In Livingston v. Fred Meyer Stores, Inc., an employee – Michelle Livingston - requested a schedule modification to avoid working after dark. She suffered from depth perception difficulties in low light that made it difficult to walk or drive a vehicle safely after dark. Livingston’s work schedule had been adjusted to accommodate her in previous years. However in 2006, Livingston’s employer refused to modify her schedule and terminated her for refusing to work after dark. Livingston subsequently filed a claim claiming her employer failed to make reasonable accommodations and terminated her in violation of the ADA. The trial court granted summary judgment in favor of the employer, noting that Livingston just needed to “exercise extra care while walking.”

The U.S. Court of Appeals for the Ninth Circuit appellate court reversed, finding that determined that despite Livingston’s ability to perform her job duties without issue during the day, her night vision impairment kept her from performing the same tasks as an average person at night, and hence in accordance with the Equal employment Opportunity Commission regulation, 29 C.F.R. Sec. 16302(i), was “substantially limited in the major life activity of seeing.”

As such, a triable issue of exists regarding Livingston’s disability bias claims.

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A recent Seventh Circuit opinion held that honoring a patient’s racist request constituted a violation of a black nursing assistant’s rights under Title VII of the 1964 Civil Rights Act.

In Chaney v. Plainfield Healthcare Ctr., a nursing home patient requested that a black nursing home assistant refrain from providing her care. The nursing home honored this request. In her claim based on race discrimination, the healthcare assistant argued that the daily reminder on the assignment sheet not to enter the patient’s room or provide care, along with co-workers racist’s comments created a “hostile work environment.” A unanimous appeals panel agreed.

Writing for the court, Judge Anne Claire William reasoned that a racial preference policy violates a worker’s right to a non-discriminatory workplace under Title VII. By honoring the patient’s requests, the nursing home created an environment adversely impacting the nursing assistant. The court distinguished this case from those cited by the defense allowing sex-based preferences in health care settings. Where gender based preferences are allowed, often privacy concerns exist – such as dressing and undressing – that do not apply to race.

The court also rejected the nursing home’s argument that it was trying to comply with state and federal regulations regarding the need to honor patients’ wishes regarding health care – holding that Title VII would preempt any state law requiring an employer to institute a race-based work practice and that “Title VII does not …contain a good-faith ‘defense’ that allows an employer to ignore the statute in favor of conflicting state law.”

Finally, the court dismissed the nursing home’s claim that “customer preference” could serve as a defense to claims of discrimination. Cases showing gender based bona fide occupational qualification (BFOQ) exceptions to Title VII for long-term care were not applicable.

Title VII prohibits workplace discrimination against employees on the basis of their race, color, national origin, and religion. Policies favoring a worker’s right to be free from discrimination trump patient or customer requests where those requests create a discriminatory environment.

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In order to ensure that employees are not scared to complain about work place discrimination, federal law, including Title VII and other discrimination laws, prohibit retaliation. Not all retaliatory actions are covered, but if you are the victim of any negative action as the result of making a complaint or participating as a witness in someone else’s discrimination case, you may be able to file a retaliation claim.

In a recent case, the U.S. Court of Appeals for the District of Columbia Circuit determined that a management analyst for the Secret Service could maintain her action for retaliation against the Department of Homeland Security.

In Mogenhan v. Napolitano, a woman who suffered severe migraines filed a discrimination complaint asserting that she received lower employment rating scores based on her sex and disability. Within 20 days of her filing her complaint with the EEOC, Mogenhan’s supervisor, John Machado, placed the complaint on the Secret Service intranet so that everyone could – and did - access the document. He also increased Mogenhan’s workload to five or six times that of other employees. He explained to her that it was to “keep [her] too busy to file complaints.”

The court determined that Mogenhan did not have a claim for disability discrimination, however it held that the actions of Mogenhan’s supervisor could constitute “retaliation.”

Here, the court reasoned that a reasonable jury could find that posting an EEO complaint where everyone could see it could “chill a reasonable employee from further protected activity.” Additionally, the court held that reasonable employees might be dissuaded from filing discrimination complaints if they thought an employer would “retaliate by burying them in work.” Citing with favor Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 98 FEP Cases 385 (2006), the court noted that an employee need only establish a material adverse action to sustain an action for retaliation. Here, the allegations met this burden.

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