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Advocacy & Compliance News

Legal Watch - August 27, 2015
August 27, 2015

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP


Statistics Alone Can Be Enough to Prove Discriminatory Intent in Employment Under the Civil Rights Act of 1866

The United States Court of Appeals for the Second Circuit recently ruled, in a class action brought on behalf of a group of Black and Hispanic sanitary workers in New York City who claimed discrimination on the basis of race and national origin with regard to promotion to supervisory positions, that statistics alone may be used to prove discriminatory intent. The court made that decision as a matter of first impression, as it had not ruled on that issue in the past. Nonetheless, the court dismissed the class action claims of the group of minority employees in Question, ruling that the statistics they presented reached only employment levels without sufficient other statistic to back up their case (Burgis v. NYC Department of Sanitation (2015 BL 245526, 2nd Cir., No. 14-1640, 7/31/15)).

The plaintiffs submitted statistical evidence which showed that the percentage of Black and Hispanic workers who occupied supervisory positions was less than the percentages in the general population and much less than the percentages in rank and file sanitation positions. For example, the plaintiffs provided statistics showing that the sanitation worker workforce was 56 percent white and 44 percent minority, and the supervisory workforce was 80 percent white and 20 percent minority.

The court, in dismissing the claim, held that statistics can be used if they are so overwhelming that they dispel any other explanation. However in this case, the court ruled that the statistics did not show the number of supervisory openings, the percentages (minority and non-minority) of those chosen, the number and percentages of minority and non-minority applicants or the percentage of minority and non-minority in the applicant pools.     


Adjunct Professor’s Reduction in Teaching Load From Four to Two Courses Following Medical Procedure Subject to ADA Jury Trial

An adjunct professor’s claimed Americans with Disabilities Act violation dismissed by a federal trial court is reversed and must go to a jury for decision, according to a new federal appeals court decision that concluded the community college may have “regarded” him as disabled when it reduced his course load (Silk v. Moraine Valley Community College (2015 BL 244009 7th Cir., No. 14-2405, 7/30/15)).

Upon return from leave for a triple heart bypass procedure in 2010, the adjunct was told after 14 years of teaching that during his leave the college discovered that his teaching was deficient. He was typically assigned four courses in the spring semester, but the college told him that he was being put on the do-not-hire list as a result of the deficiencies discovered by the liberal arts department. He went to human resources and was assigned two courses in the career programs department. He was fired again two years later when the liberal arts dean noticed him on campus and his teaching was again judged deficient by the careers programs department dean.

In ruling that the adjunct professor had a right to a jury trial over his 2010 diminished case load which may have been a result of the perception of a disability, the court upheld the first termination, which was based on evidence that he was using the wrong textbook, his classes were poorly attended, and students played video games and talked on the phone while he was teaching. The court also upheld his second termination because there was no evidence the decision maker even knew of his heart condition.

The college initially argued that his alleged disability, the triple bypass procedure, was transitory and minor and not covered by the ADA. The court rejected that argument, holding that his disability was his heart condition not the bypass procedure and he was entitled to a jury trial over whether the college regarded him as disabled when it reduced his course load. 


Continuing Violation Theory Revives a Hostile Environment, Sexual Harassment Claim Filed More Than 300 Days After Alleged Sexual Assault

A federal district court judge recently denied summary judgement to an employer that argued that since the plaintiff’s EEOC claim was filed more than 300 days after the alleged sexual assault on the job, the claim must be dismissed. The judge held that in a hostile environment sex harassment case there is more than one discreet act, and if any of the acts occurred within 300 days of the EEOC filing, the filing is timely (Johnson v. Amherst Nursing Home Inc. (2015 BL 259032, D. Mass., No 13:14-30100-MGM, 8/11/15)).

In this case, the plaintiff alleged she was sexually assaulted on the job in August 2012. She complained of the assault to management and claimed that she was assured that the police would be contacted. That did not occur, and she claimed she was forced to resign in September2012. In July 2013, she filed a charge of discrimination and sex harassment with the EEOC and the Massachusetts State authorities.

The court, in siding with the plaintiff, held that a hostile environment claim is different than a discreet act because it involves a “series of acts” which taken together constitute an unlawful employment practice. Here, the plaintiff claimed that she was harassed by the company and coworkers because she raised the complaint in the first place and that the company did nothing to remedy the situation before she left. The judge concluded that at least some of the alleged hostile environment occurred during the 300 days prior to the charge filing.  


U.S. Court of Appeals Rules That a “Paid Suspension” Is Not an “Adverse Employment” Action Covered by Title VII Antidiscrimination Provisions

The U.S. Court of Appeals for the Third Circuit recently upheld a trial court determination and sided with other appeals court circuits in ruling that a “paid suspension” is not an adverse employment action protected by Title VII. The case involved a female employee who was suspended with pay pending an investigation of time card fraud and ultimately terminated for falsification of time cards (Jones v. Southeastern Pa. Transportation Authority (2015 BL 258874, 3rd Cir., No. 14-3814, 8/12/15)).

The appeals court ruled that its decision was one of first impression at the Third Circuit but that it agreed with other circuits that paid suspensions do not violate either Title VII or the applicable Pennsylvania state antidiscrimination statute. The court reasoned that a paid suspension is not a refusal to hire nor a termination, nor by design does it change compensation. The court ruled that it does not adversely alter the terms of employment, as even without the suspension employees are subject to rules and adverse action for violation of applicable rules.

The court also dismissed the plaintiff’s sex discrimination allegations related to her termination, holding that the rational for termination — falsifying time cards — had nothing to do with sex. Her allegations that similarly situated male employees were treated differently was not born out by the facts presented.   


"Old Short Blond Girl” Comment May Be Enough to Prove Age Discriminatory Intent of Decision Maker

A U.S. court of appeals recently held that ageist remarks of a plaintiff’s indirect supervisor are enough to allow the plaintiff to proceed to jury trial on her age discrimination claim if the evidence supports the conclusion that the indirect supervisor was part of the decision making process to fire her (Thomas v. Heartland (2015 BL 260232, 8th Cir., No. 14-1349, 8/13/15)).

The plaintiff claimed that the indirect supervisor described her in the past as the “old short blond girl.” The plaintiff was 53 at the time of her discharge, which was for allegedly falsifying mileage reimbursement statements. The plaintiff claimed she was discharged because of her age. The court concluded that if the indirect supervisor was involved in the decision to terminate the plaintiff, the comments, if made, were sufficiently related to the plaintiff and to the decision making process to be “direct evidence” of discrimination.