Supreme Court rules for employers in two significant employment cases.

Yesterday, the Supreme Court issued sharply-divided opinions in two employment discrimination cases, both times coming out 5 to 4 in favor of the employer. In one case, University of Texas Southwestern Medical Center v. Nassar, the Court ruled that employees seeking to prove unlawful retaliation under federal discrimination law must prove that the protected conduct was the "but for" cause of the employment decision, a more employer-friendly standard than courts had been applying. And in Vance v. Ball State University, the Court narrowed the definition of a "supervisor" for purposes of evaluating a claim of sexual harassment against an employer, holding that a supervisor for purposes of sexual harassment liability must have actual authority to make changes to the employee's status, rather than merely direct the employee's work.

More to come on these decisions. 

Does release of football player due to diabetes equal discrimination?

Last week, news came out that the New England Patriots released defensive lineman Kyle Love, who had recently been diagnosed with Type 2 diabetes. There is no indication that the release was related to the diagnoses other than the timing, and this writer is not alleging that the release was due to Love's diabetes. Still, it is an interesting question whether employment discrimination laws are implicated when a sports team make personnel decisions based on a diabetes diagnoses.

Certainly, diabetes is considered a "disability" under federal and Massachusetts discrimination laws. An employer normally must offer reasonable accommodations to an employee who has a disability, such as diabetes, if doing so would allow the employee to perform the essential duties and functions of the position. For most employers, diabetes is easy to accommodate as the employee simply needs to be able to check his or her blood sugar periodically, administer insulin shots if necessary, and have access to food.

For a football team, however, it is not hard to see how such an accommodation could create significant disadvantages. A coach needs to know that a player can enter a game at a moment's notice, and remain in the game for long periods of time. (New England's coach certainly knows the importance of the latter, as its offense regularly plays a hurry-up style that does not allow for the defense to substitute its players.)

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.