Legal Watch
June 3, 2005

Federal Agencies Review Systemic Employment Bias; Court Rules Against Professor in First Amendment Rights Case; Former Employee’s Pregnancy Discrimination Suit Proceeds to Trial
By Ira Michael Shepard, CUPA-HR general counsel

EEOC, DOL, DOJ Step Up Review of Systemic Employment Bias
The directors of three federal agencies have renewed their commitments to investigate and prosecute systemic employment discrimination and to coordinate their efforts with other agencies. The agencies involved are the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP), the Equal Employment Opportunity Commission (EEOC), and the Civil Rights Division of the Department of Justice (DOJ).

The OFCCP is increasing its emphasis on systemic discrimination cases by directing agency resources toward such cases and involving the DOL’s Solicitor’s Office in the process at an earlier stage. The OFCCP also has added a team of statisticians and a testing expert to conduct audits and analyze cases for potential systemic discrimination. The agency is expected to issue final guidance on the standards for evaluating compensation systems and guidelines for federal contract employers to conduct self-audits (see Legal Watch, April 2005). In coordination with the EEOC and other agencies, the OFCCP is developing a revision of the definition of “job applicant,” and hopes to complete that task by the end of this year.

The EEOC has established several task forces to review the issue of systemic employment bias and has set up a nationwide telephone call center. One task force, headed by one of the commissioners, will examine how systemic or “pattern of practice” cases are handled by the agency. Another task force, co-chaired by EEOC Vice Chair Naomi Earp, will take a “comprehensive look” at race discrimination cases brought to the EEOC. The EEOC’s new call center was launched in March 2005 amid some controversy because the $4.9 million project was outsourced to a private contractor and is not staffed by EEOC employees. The agency plans to use the data collected from the nationwide call center to assess the EEOC workload and the types of problems experienced by employees nationally.

The Civil Rights Division of the Department of Justice is taking an “aggressive” approach toward litigating systemic discrimination cases in the public sector. In the past year, more systemic bias cases have been filed by the DOJ than in any year since 1996, almost reaching the all-time record. The director of the agency has made a commitment to not allow cases referred to the DOJ by the EEOC to “linger,” and to file a lawsuit if the parties cannot reach a resolution. In addition, the agency considers it good public policy to make public the terms of settlements and will do so as a matter of policy, despite requests by employers to keep such terms confidential.

College’s Educational Interests Outweigh Professor’s First Amendment Rights
In Hudson v. Craven, the U.S. Court of Appeals for the Ninth Circuit has upheld the dismissal of an adjunct professor who was terminated after accompanying a group of community college students to antiglobalization protests at the 1999 World Trade Organization (WTO) meetings in Seattle. The appeals court found that the college’s legitimate safety and teaching concerns outweighed the instructor’s First Amendment speech and associational rights.

Under Supreme Court case precedent, the appeals court evaluated the balance between the interests of a teacher to comment upon matters of public concern as any other citizen, and the interests of a public educational institution (and employer) to efficiently provide educational services. The Supreme Court has determined that when the government is an employer, it has broader powers to regulate speech than it does over citizens in general.

Two years after the plaintiff was hired as an adjunct economics instructor at a college in Vancouver, Washington, the WTO scheduled its 1999 meetings in Seattle. Antiglobalization protestors planned a rally to coincide with the WTO meetings and some of the plaintiff’s students suggested the class attend the public rally. The plaintiff felt that the rally organized by the AFL-CIO would be a good opportunity for her students to hear points of view not otherwise available to them through the mainstream media.

Although he attended the anti-WTO protests himself, the defendant (who serves as head of the college’s economics department), opposed the plaintiff’s plans to attend the rally with her students because news accounts warned about the potential for violence and he worried about the risk to the students and potential liability for the college. He also worried about the “marginal” educational benefit, combined with access to the teacher for “schmoozing” that was unavailable to students who did not attend. He told her that it would be “fine” for her or the students to attend the WTO rally independently, without any affiliation with the college, and threatened to terminate her if she attended the rally with her students.

The plaintiff organized bus transportation for some of her students to accompany her to the rally, but did not formally call it a college-sponsored field trip. Even though students were not pressured to attend the rally, she advised those that did to “observe information” because “it might be on the test,” and she included two essay questions about the rally on the final exam. Shortly afterward, the defendant recommended nonrenewal of her contract.

The appeals court notes that the plaintiff’s First Amendment claims are very narrow and “involve her right to associate with a small group of students during a specific time frame for the particular purpose of attending an anti-WTO rally” that was clearly political in nature. The court states that any actual curtailment of her First Amendment rights was minimal in that she was free to attend the rally on her own, free to communicate her views on the WTO to her students or to anyone else, and free to associate with her students in the classroom on these issues. The court further notes that the college would have run afoul of the First Amendment had the plaintiff been barred from participating in anti-WTO advocacy or barred from general meetings outside the classroom with students interested in WTO issues.

Timing of Termination Precludes Dismissal of Pregnancy Discrimination Case
A federal district court in Maryland has ruled that a Title VII pregnancy discrimination case can proceed toward trial because the company decided to terminate the employee too close in time to the employee’s pregnancy announcement. The court ruled in Canavan v. Rita Ann Distributors and Amerisource Bergen Corporation that the plaintiff had established a prima facie case of pregnancy discrimination because: (1) she was pregnant, (2) she was performing her job satisfactorily, and (3) she was fired, while two non-pregnant coworkers in the same job position were not. The plaintiff is seeking reinstatement, an award of back pay, compensatory and punitive damages, and injunctive relief.

The Court ruled that the company’s explanation for the plaintiff’s discharge is pretextual because of: (1) the proximity in time between her informing the company of her pregnancy and her termination; (2) the shifting explanations provided by the company; and (3) the absence of any firm policy or guidelines indicating that geographic proximity is an essential factor in hiring merchandisers or delineating how close a merchandiser must live to territory stores.

The plaintiff had worked as a merchandiser for a cosmetics distribution company for less than a year when she became pregnant. She waited two months to inform her employer about the pregnancy out of fear that she would be terminated because of the experience of another coworker who had cancer and was changed from full-time to part-time because the company did not want to pay health insurance coverage. The plaintiff had taken over the merchandising route of her sister, who had been promoted to merchandising supervisor when the company was expanding. But at the time she became pregnant, the company was experiencing financial problems and had begun downsizing.

When the plaintiff informed the company’s HR coordinator that she was pregnant and wanted to schedule maternity leave, she expressed her fear of being fired. The HR coordinator reassured her that she would not be fired, and told her how to apply for leave benefits. She told her supervisor the next day that she was pregnant, and was assured again that she would not be fired. Six days later the company’s president inquired if any merchandising supervisor positions had been eliminated yet as had been previously requested as part of the downsizing, and the plaintiff’s supervisor was told to eliminate one manager position immediately. The supervisor eliminated the position of the plaintiff’s sister, demoting her to merchandiser, and in the process, terminated the plaintiff only eight days after she had informed the supervisor of her pregnancy.

The supervisor insisted that her decision was “based solely on geography and expenses” and that she had told the plaintiff that her termination was due to downsizing. The supervisor’s logic was that the area was close to where the plaintiff’s predecessor lived and had previously serviced. The supervisor said she was following the vice president’s advice to select the employer with superior experience. The company also contends that the president and vice president were not aware of the plaintiff’s pregnancy when they directed the supervisor to reduce her staff.