Supreme Court to hear arguments this week that could result in significant limitations on federal retaliation claims

On Wednesday, the Supreme Court is scheduled to hear arguments in University of Texas Southwestern Medical Center v. Nassar, No. 12-484, a case that could result in significant limitations on the ability of employees to prove retaliation under federal discrimination law. The case turns on the interpretation of amendments to Title VII of the Civil Rights of 1964 enacted in 1991 that established the ability of employees to prove discrimination even if the employer had a "mixed-motive" in its adverse action. Under this framework, once an employee proves that discrimination was a motivating factor in an adverse employment action, the burden shifts to the employer to show that it would have taken the same action even without the unlawful factor (i.e. that the unlawful factor was not the "but-for" cause of its decision). If the employer meets that burden, the employee can still receive a judgment if he or she shows that the discrimination was one of the motivating factors of the adverse decision. This is called a mixed-motives case. In 1989, the Supreme Court had decided that a mixed-motives case was available under Title VII.  The 1991 amendments codified this decision, but limited the available recovery for employees in such cases to his or her attorneys' fees.


In 2008, the Supreme Court decided that a mixed-motives case is not available under the Age Discrimination in Employment Act in Gross v. FBL Financial Services Inc, and that the burden of proof never shifts to the employer. This means that the employee must prove that the employer's discrimination was the "but-for" cause of the adverse action. The University of Texas Southwestern Medical Centers asserts that the Gross decision also applies to a retaliation claim under Title VII, because the 1991 amendments did not expressly refer to retaliation claims. The employee, Naiel Nassert, argues that even if this argument is true, the result would be to apply Title VII as it existed under the Supreme Court's 1989 decision, when the law did not allow an employee to win a judgment in a mixed-motives case but it still shifted the burden to the employer (once the employee established discrimination as a motivating factor) to prove that it would have been the same decision even without its discrimination. 

Doctor receives $7 million gender discrimination settlement

The former chief of anesthesia at Beth Israel Deaconess Medical Center will receive one of the largest gender discrimination settlement payments in Massachusetts history. According to the Boston Globe, Carol Warfield, M.D., who became chief of anesthesia in 2000, alleged that Dr. Josef Fischer, former surgery chief, discriminated against her because she is a woman by ignoring her in meetings and lobbying for her ­removal from her job. She also alleged that she she complained to Beth Israel Chief Executive Paul Levy, both men retaliated against her and forced her out. 

The settlement is unusual for several reasons, not the least of which is the size of the payment. Unlike most employers who settle such cases, Beth Israel agreed to make certain facts of the settlement public. While it did not admit any wrongdoing, it allowed Dr. Warfield to publicize the amount of the settlement and agreed to name the hospital's new pain clinic after her. The hospital reportedly also agreed to sponsor an annual lecture series on women's health and the academic contributions of women in surgery. 

It is not possible to say with any accuracy how large this settlement is compared to most employment discrimination settlements, since the large majority remain confidential. It is likely that a major factor contributing to the size of the award was the plaintiff's income. As a physician and chair at a major city hospital, she likely earned a sizable salary which contributed to her settlement amount. 

Too hot for your boss? Too bad.

Employment lawyers are always telling potential clients that they can be fired for virtually any reason, even for something that's not their fault or that they didn't even do. What employers cannot do is fire an employee because of his or her race, gender, religion, or other protected status.

In another example of the wide latitude employers enjoy in personnel decisions, a state judge in Iowa ruled that a dentist did not violate antidiscrimination laws when he fired a female staff member for being too attractive. According to Slate.com, the dentist fired the irrestible staffer after 10 years of employment when his wife discovered some innocent but personal text messages between the dentist and the female staff member.  The court ruled that the termination did not amount to gender discrimination, because the dentist did not terminate the employee on the basis of her gender but for the purpose of saving his marriage. In fact, he replaced the employee with another woman.

As the writer for Slate.com reasoned, the dentist is not a sympathetic employer, and his actions are deplorable. He fired an employee because of his own personal failings - i.e. the inability to control his male urges. He did not, however, fire her because of her gender.

Court worker claims sexual harassment complaint ignored

A female employee at the Concord District Court has filed a sexual harassment lawsuit against the Trial Court, alleging that the Trial Court did nothing in response to her repeated complaints that a probation officer was sexually harassing her. As reported by Massachusetts Lawyers Weekly (subscription required), Susan Ahern filed the complaint originally at the Massachusetts Commission Against Discrimination, claiming that the Trial Court aided and better the sexual harassment and, as a result, created a hostile work environment. She alleges that Probation Officer Ricky Speller sexually assaulted her, wrote her sexually explicit notes, showed her photographs of nude women, and engaged in other sexual harassment, and yet no disciplinary action was taken even after she reported the behavior to her supervisor and the Trial Court's general counsel. The MCAD found probable cause for her claim, and Ahern removed the complaint to Superior Court. The Trial Court has not yet responded to the complaint.

Minority police officers can sue state for interfering with their equal employment rights

On Friday, the Massachusetts Supreme Judicial Court ruled that the state's employment discrimination statute, Chapter 151B, authorizes minority police officers to pursue a discrimination lawsuit against the state agency that develops their promotional examination. The ruling overturned a Superior Court decision that dismissed the officers' lawsuit on the grounds that the state's Human Resources Division ("HRD") is not the officer's employer under Chapter 151B. [Full disclosure: Joseph Sulman was co-counsel for the plaintiffs at the Superior Court.] In overturning the lower court's ruling, the SJC agreed that HRD did not qualify as an employer under the statute, but found that the officers could pursue a claim against the agency for interfering with their rights under the statute.

As the decision explains, Chapter 151B not only provides a claim against an employer for discrimination, but also provides a claim against any "person" for interference with rights protected by the statute. Because the interference provision applies to any "person," HRD does not need to be the officers' employer to be sued under that provision.

The case involves a class action complaint alleging that the civil service examination for promotion to sergeant has a discriminatory impact against black and Hispanic police officers. Although the law authorizes municipalities to develop their own promotional examinations, HRD has developed the sergeant examination used by virtually every municipality with a civil service police department.

First Circuit reduces emotional distress award, upholds front pay in retaliation claim

A $500,000 emotional distress award was reduced to $200,000, but the First Circuit Court of Appeals otherwise affirmed a verdict in favor of an retaliation claim that awarded the plaintiff $2.5 million in combined lost wages and punitive damages.  The figure will become $2.9 million assuming the plaintiff does not challenge the new emotional distress calculation, which will become doubled due to the punitive damages.

Trainor v. HEI Hospitality, LLC  is a good example of the importance of bringing multiple claims: the plaintiff lost the underlying age discrimination claim, but succeeded on the retaliation claim. The plaintiff in brought the claims under federal and state law against his employer arising out of a planned restructuring of his position. When he objected to the restructuring and alleged age discrimination as the motivating factor, he was terminated. The jury found for the employer on the underlying claim of discrimination, but ruled for the plaintiff on retaliation and awarded $500,000 in backpay, $750,000 in front-pay, and $1 million for emotional distress. The judgment was doubled upon the finding that the employer acted wilfully. The judge then reduced the emotional distress award to $500,000.

On appeal, the First Circuit upheld the verdict in all respects except for the emotional distress award, which it further reduced to $200,000. The Court reasoned that the award was excessive since the plaintiff only offered his and his wife's testimony on the emotional distress, but he did not receive treatment or counseling from a physician or therapist.

In addition, the appeals court rejected the Defendant's argument that the front pay award was duplicative of the doubling of the damages, since front pay was intended to compensate the plaintiff for lost future earnings and the doubling of damages was a punitive measure targeting the employer.

The decision is noteworthy for at least points of law: First, this is a so-called "garden variety" emotional distress claim since no evidence of counseling or treatment of any kind supported the claim. As such, $200,000 is a sizable award, notwithstanding the reduction from the original $1 million. Second, the significant front-pay award of $750,000 is noteworthy and encouraging for other victims of retaliatory firings.

Haitian employees at Logan Airport allege discrimination

Two Haitian nationals who worked for a cleaning company at Logan Airport allege that they were terminated from their jobs for speaking Creole, according to the Boston Globe.  They have filed complaints of discrimination with the Massachusetts Commission Against Discrimination, claiming that they were singled out as opposed to other employees who spoke different foreign languages. One of the employees, Charles Pierre, told the Globe that he hears many employees speaking Spanish, and cannot understand why he and other Haitian employees cannot use their language.

While the state's anti-discrimination law does not explicitly protect the right of employees to speak the language of their choice at work, it does prohibit discrimination based on national origin or race. Punishing employees for speaking a foreign language, unless speaking English is necessary for the job, may be evidence of discrimination based on national origin or race.