Cases and Materials on Employment Discrimination

Professor’s Updates March 2014 to

CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION

Eighth Edition, 2013

Michael J. Zimmer Charles A. Sullivan Rebecca Hanner White

All professors and students using the Casebook are permitted to download and reproduce these Updates in whole or in part.

Page 8, add at end of first full paragraph:

Less rigorous but striking is the anecdote of Kim O’Grady, whose job search success increased dramatically when he put “Mr.” before his name. http://abcnews.go.com/blogs/business/2013/07/man-named-kim-adds-mr-to-resume-lands- job/#.UeUwyjYp88E.email.

Page 15, add before Cox cite in Note 2, Getting Inside the Employer’s Mind to Prove Age Discrimination:

Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 605-06 (7th Cir. 2012) (inquiry about plaintiff’s retirement plans and promise that he would receive severance pay if he decided to retire was not connected with his age as opposed to his fall-off in performance; in any event, the lapse of two years between this comment and plaintiff’s termination “obviates any connection between the comment and discharge when there is an intervening, legal reason for the termination,” which was the external complaints about plaintiff’s performance).

Page 15, add a new paragraph to Note 2, Getting Inside the Employer’s Mind to Prove Age Discrimination.

In Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 799 (6th Cir. 2013), an employee tape-recorded conversation regarding his layoff. Even though it occurred after the layoff decision, “[i]f there ever was a window into the mind of an employment decision maker, that was it.” The comments were that the employer’s “succession plan was to hire or retain younger workers at the expense of older workers because it was more likely that the former would stay with the company longer than the latter.” The employer argued that this was merely an inartful reference to legitimate business concerns, looking to Biggins, but the court disagreed: the statements “disclose[d] no analytical step between computing an employee's potential longevity with the company and his age.”

Page 15, add in second paragraph of Note 3, Age Discrimination as Acting on Stereotypes, after “Does the implicit bias literature explain this?”:

See Michael Winerip, Three Men, Three Ages. Which Do You Like?, NY TIMES July 27, 2013 http://www.nytimes.com/2013/07/23/booming/three-men-three-ages-who-do-you-like.html? pagewanted=all&_r=0It (reporting a study in which three versions of the same person at three different ages were treated differently by a test group of Princeton undergraduates; the

2 | P a g e “assertive” version of the character was viewed more negatively than the younger versions even when saying the same thing).

Page 21, add after Berquist cite in 4. Other Versions of the Prima Face Case:

Cf. Zayas v. Rockford Mem. Hosp., 740 F.3d 1154, *** (7th Cir. 2014) (prior satisfactory performance evaluations did not establish that plaintiff was meeting the employer's legitimate job expectations at the time she was fired, given more recent disciplinary actions; in any event analysis of satisfactory performance is not limited to actual job performance but includes “factors such as insubordination and workplace camaraderie”).

Page 24, add before Upshaw cite in Note 8. The Third Step: Proving Pretext:

Evance v. Trumann Health Servs., LLC, 719 F. 3d 673, 678 (8th Cir. 2013) (since the court is not a “super-personnel department” with “the power to second-guess employers' business decisions,” it was not unlawful for a company to make employment decisions based upon erroneous information);

Page 34, add at end of Note 2, It’s All Pretext:

See also Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (“Where a plaintiff offers remarks as direct evidence, we apply a four-part test to determine whether they are sufficient to overcome summary judgment, [which looks to whether the remarks are] ‘1) age related; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.’ . . . Where a plaintiff offers remarks as circumstantial evidence alongside other alleged discriminatory conduct, however, we apply a more flexible two-part test. In that circumstance, a plaintiff need only show (1) discriminatory animus (2) on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker.”) (citations omitted).

Page 36, add in Note 6, The Plausibility of Alternative Explanations, before Ratliff cite:

Carter v. Toyota Tsusho Am., Inc., 529 F. App’x 601 (6th Cir. 2013) (“prior circuit case law suggesting that to survive summary judgment a plaintiff must do more than sufficiently call into question the employer's proffered reasons for its employment decision is no longer the law of in light of Reeves);

Page 36, add at end of last full paragraph in Note 6, The Plausibility of Alternative Explanations:

3 | P a g e See Latowski v. Northwoods Nursing Ctr., 12-2408, 2013 WL 6727331 (6th Cir. Dec. 23, 2013) (while “a policy is not necessarily pretext for discrimination merely because we find it ill- advised,” an unreasonable decision might suggest a discriminatory motivation: “A reasonable jury could easily conclude that North Woods' business decision—to implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non- workplace injuries, even if those restrictions do not limit the employees' ability to competently perform their jobs—is so lacking in merit as to be a pretext for discrimination.”).

Page 36, add in Note 6, The Plausibility of Alternative Explanations, before Chad Derum cite:

See also Johnson v. Koppers, Inc., 726 F.3d 910, 915 (7th Cir. 2013) (even assuming a co-worker made a false report regarding plaintiff, there was no evidence it was racially motivated, given a long-standing dislike between the two; further, plaintiff cannot prove that that report was the proximate cause of her discharge when an independent witness confirmed that plaintiff shoved her adversary).

Page 37, add in third full paragraph after Sheppard cite:

; Davis v. City of Charlottesville Sch. Bd., 498 F. App’x 231 (4th Cir. 2012) (finding sexual harassment complaint sufficient when it plead an attempted sexual assault by a co-worker, reporting to the employer, and a subsequent intimate touching);

Page 38, add at end of carryover paragraph:

Michael J. Zimmer, Title VII’s Last Hurrah: Can Discrimination Be Plausibly Pled?, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2369479 (arguing for a simplified proof standard of what constitutes intent to discriminate and for the acceptance at the pleading stage of discrimination cases of social science research, including implicit bias studies, that show why discrimination persists).

Page 43, add before Twiggs cite in Note 4. Comparator Cases:

Holmes v. Trinity Health, 729 F.3d 817, 823 (8th Cir. 2013) (plaintiff, hospital COO, was unable to show sex discrimination when the comparator she chose, although at a comparable level, did not engage in the same conduct she did – criticizing the CEO’s management style);

Page 44, add at end of carryover Note 4. Comparator Cases:

Occasionally, the same supervisor issue has been used to the advantage of plaintiffs. See Rachells v. Cingular Wireless Employee Servs., LLC, 732 F.3d 652, 662 (6th Cir. 2013) (black executive, terminated in reduction in force, established that he was "singled out" for 4 | P a g e impermissible reasons; it was proper to compare him to other workers in the acquiring company not to workers of the acquired company who were evaluated under different criteria by different decisionmakers).

Page 45, add before Hafford cite in Note 7, Intersectionalism:

Shazor v. Prof'l Transit Mgmt., 2014 U.S. App. LEXIS 2943, 23 (6th Cir. 2014) (plaintiff can make a claim for intersectional discrimination because both race and sex are protected by Title VII and do not exist in isolation: “African American women are subjected to unique stereotypes that neither African American men nor white women must endure.”);

Page 46, replace Greene cite with:

D. Wendy Greene, Categorically Black, White, or Wrong: “Misperception Discrimination” and the State of Title VII Protection, 47 U. MICH. J.L. REFORM 87 (2013) (arguing that federal courts are wrong to deny protection to individuals who are discriminated against on the basis of misperceptions that they belong to particular protected class)

Page 51, add before Raad cite in carryover Note 1, Comparators as Proof of Pretext.

Perez v. Thorntons, Inc., 731 F.3d 699 (7th Cir. 2013) (2-1) (Hispanic employee established a prima face case of discrimination despite being fired for purchasing inventory for far below sale price when non-Hispanic male supervisor committed comparable infraction in the same time period but was merely warned, despite argument that she caused economic loss and he merely covered up such loss);

Page 52, add in Note 4, Methods of Proving Pretext before Lott cite:

Ridout v. JBS USA, LLC, 716 F.3d 1079, 1084 (8th Cir. 2013) (“a strong showing that the plaintiff was meeting his employer's reasonable expectations at the time of termination may create a fact issue as to pretext when the employer claims that the employee was terminated for poor or declining performance.”); Hudson v. United Sys. of Ark., 709 F.3d 700 (8th Cir. 2013) (upholding jury verdict when there was evidence that defendant’s supposed nondiscriminatory reason for plaintiff’s discharge – her failure to call him on his cell phone when sick – was pretextual when plaintiff denied ever being informed of it and other executives testified that they never heard of this policy; in addition, there was evidence that the manager frequently belittled women, including plaintiff, whom he ordered "sit down, little girl."); Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1307 (11th Cir. 2012) (a jury question as to discrimination when the decisionmaker, after terminating an employee for misconduct, says that the employee is exceptional, did nothing wrong, did everything right, and should not have been fired);

Page 59, add before Chattman cite in Note 2. Whose Motive/Intent?:

5 | P a g e EEOC v. DynMcdermott Petroleum Operations Co., 537 F. App’x 437 (5th Cir. 2013) (fact that one manager was the cat’s paw of another could be inferred from the former’s influence or leverage over the latter given his power over discipline and compensation); Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 797 (6th Cir. 2013) (although a manager was not the ultimate decision maker, those who were relied solely on his forced rankings and recommendation of who could be fired without disrupting current projects; “[w]ithout considering information from an independent source, [the employer’s] review could not have scrubbed [the manager’s] alleged age bias from the forced rankings and recommendation”); Haire v. Bd. of Sup'rs of Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 366-67 (5th Cir. 2013) (University Chancellor could be found to be cat’s paw for biased campus police officer when he was new to the university and unfamiliar with its security policy and attributed her supposed violation of those policies to misinformation regarding them provided him by the biased individual); King v. Volunteers of Am., N. Ala., Inc., 502 F. App’x 823, 828 (11th Cir. 2012) (statements by a manger that she would engineer plaintiff’s termination and that the decisionmaker rubber-stamped her recommendations present strong circumstantial evidence that she caused the termination; a subsequent investigation that upheld the validity of the reprimands was not sufficient to negate the causal link between this animus and the termination when the manager “engineered at least some of the reprimands that were ultimately the basis for King's termination—the very definition of proximate cause.”).

Page 59, add at end of Note 2. Whose Motive/Intent?:

However, employers have escaped liability when plaintiff could not establish the causal link between the actions of the biased subordinate and those of the actual decisionmaker. Frederick v. Metro. State Univ. of Denver Bd. of Trustees, 535 F. App’x 713 (10th Cir. 2013) (summary judgment proper: ‘[w]hile there was some evidence that Dean Cochran may have been in a position to influence the lower levels of review, [plaintiff] did not produce any evidence that he was in a position to, or did influence the upper levels of review.”); Lobato v. New Mexico Env't Dep't, 733 F.3d 1283, 1294-95 (10th Cir. 2013) (a cat’s paw case can be made out only if the decisionmaker relies on facts provided by a biased supervisor; “an employer is not liable under a subordinate bias theory if the employer did not rely on any facts from the biased subordinate in ultimately deciding to take an adverse employment action—even if the biased subordinate first alerted the employer to the plaintiff's misconduct.”)

Page 60, add at end of Note 3, Motivating Factor:

See also William R Corbett, Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself. 62 AM. U. L. REV. 447, 454-55 (2013) (“the McDonnell Douglas pretext proof structure is a thinly veiled version of res ipsa loquitur,” a doctrine that “perhaps never should have been imported into employment discrimination law”; indeed, “using analysis akin to res ipsa loquitur in employment discrimination law has become not just unhelpful, but an impediment to proving discrimination in many disparate treatment

6 | P a g e claims and an obstacle to improving and updating the analytical tools of employment discrimination law.”).

Page 65, add before Crawford cite in Note 2, Materiality:

Alexander v. Casino Queen, Inc., 739 F.3d 972, 980 (7th Cir. Jan. 8, 2014 (floor assignments on the basis of race could constitute an adverse employment action “because of the relative importance that tips had for these cocktail waitresses, given their compensation structure and the alleged frequency of these reassignments [which together] demonstrate a significant financial impact.”);

Page 66, add before Mazumder cite in first bullet:

Kuhn v. Washtenaw County, 709 F.3d 612 (6th Cir. 2013) (investigation of a complaint of employee wrongdoing was not an adverse employment action when there was no disciplinary action, demotion, or change in job responsibilities);

Page 66, add before But see Barone cite in carryover bullet:

See also Kidd v. Mando Am. Corp., 731 F.3d 1196, 1204 (11th Cir. 2013) (“Kidd's demotion claim—grounded on a loss of supervisory responsibility of the accounts payable department, not a loss of salary or benefits—does not rise to” the level of an adverse employment actions).

Page 66, add before Barone cite in carryover bullet:

Deleon v. Kalamazoo County Rd. Comm'n, 739 F.3d 914, 919-920 (6th Cir. 2014) (adverse employment action could be found when a lateral transfer resulted in exposure to toxic and hazardous fumes on a daily basis, causing bronchitis and frequent sinus headaches);

Page 66, add before Beyer cite in carryover bullet:

Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634-35 (7th Cir. 2013) (complaint read as denying plaintiff a transfer from the night shift stated an adverse employment action when it allege that his “assignment to the midnight shift for an indefinite period of time stripped him of his authority as a sergeant, significantly diminished his job responsibilities, and caused him to be “virtually powerless” and alleged other actions resulting in his “duties [being] so severely restricted, it is as if he is not a sergeant.”)

Page 67, add at beginning of Note 6, Constructive Discharge and Contaminated Work Environment:

7 | P a g e A plaintiff who voluntarily quits will normally have no claim for discrimination leading to her action although there may be situations where there is a dispute as to whether the employee resigned or was fired. Burton v. Teleflex Inc., 707 F.3d 417 (3d Cir. 2013) (a reasonable juror could conclude that plaintiff was terminated rather than resigned when she never tendered her resignation, never told anyone to whom she reported that she was resigning and the employer relied on hearsay statements to conclude that she had resigned while never once asking plaintiff).

Page 67, add after Nassar cite: rev’d on other grounds, 133 S. Ct. 2517 (2013).

Page 84, add at end of first paragraph”

See generally Leora F. Eisenstadt, The N-Word at Work: Contextualizing Language in the Workplace, 33 BERKELEY J. EMP. & LAB. L. 299, 303 (2012) (arguing for “expert testimony from disciplines outside of the law that can inform courts about the way in which linguistic meaning is created in our culture and the contextually-based meanings of specific terms.”).

Page 85, add at end of Note 9, The “Jerk” Possibility:

See Hall v. City of Chicago, 713 F.3d 325 (7th Cir. 2013) (mistreatment of the only female plumber, was not sufficient by itself to establish a gender basis; however, the harasser’s statements about wanting to “slap that woman" allowed a jury to find a sex basis since “rarely does one say they are going to ‘slap’ a male” and the reference to "that woman" also would allow the conclusion that plaintiff’s gender was one factor leading to the outburst).

Page 87, add at end of Note 13 “A Motivating Factor” Causation;

Cf. Brian S. Clarke, A Better Route Through the Swamp: Causal Coherence in Disparate Treatment Doctrine, 65 RUTGERS L. REV. 723, 772-73 (2013) (critiquing Katz's reading of “motivating factor” as “minimal causation” because (1) both the Court and Congress used the term in the sense of playing a substantial part in the adverse employment action decision and (2) it is “artificially narrow” since the intermediate stage between traditional but-for and “minimal causation” is found in the notion of “necessary element of a sufficient set” of factors causing a decision).

Page 87, add at the end of Note 14, Has Desert Palace Trumped McDonnell Douglas?:

Tabor v. Hilti, Inc., 703 F.3d 1206, 1217 (10th Cir. 2013) (rejecting summary judgment when the decisionmaker “explicitly stated a view that women have inferior knowledge of tools and inferior ability to sell tools. These statements spoke directly to central requirements of the job for which Ms. Tabor was interviewing, and he made them during a discussion about her fitness for the

8 | P a g e position.”). Cf. Rapold v. Baxter Int'l, Inc., 708 F.3d 867 (7th Cir. 2013) (when each party claimed that the adverse employment action at issue was caused by a single motive (discrimination or a nondiscriminatory reason), the district court was within its discretion to deny a mixed-motive instruction and, in any event the failure to instruct was not prejudicial).

Page 89, add at end of Note 16. Is “Direct” Evidence Still the Gold Standard?:

Cf. Roberts v. Int'l Bus. Machines Corp., 733 F.3d 1306, 1308 (10th Cir. 2013) (reference to plaintiff’s exceeding his “shelf life” not direct evidence of discrimination in his eventual discharge; “ because [o]nce its euphemisms and acronyms are translated into English, the instant message conversation unmistakably suggests that ‘shelf life’ was nothing worse than an inartful reference to Mr. Roberts's queue of billable work.”).

Page 90, add in third paragraph of Note on Evidence Issues About Admissions Testimony after Barner cite:

Cf. Back v. Nestlé USA, Inc., 694 F.3d 571, 577-78 (6th Cir. 2012) (while evidence that a Human Resources Director’s said there was a plan to get rid of the three oldest employees would be admissible since it was made within the scope of his employment, the particular statement was actually hearsay within hearsay since the Director was saying that “higher management” had made the statement and there was no showing that the unidentified declarants were speaking on a matter within the scope of their employment).

Page 97, add at end of Note 1. The Holding:

See also Sims v. MVM, Inc., 704 F.3d 1327, 1337 (11th Cir. 2013) (even assuming arguendo that the Staub standard with respect to agency principles governs employer vicarious liability in ADEA cases, plaintiff could not satisfy the ADEA’s but-for causation standard).

Page 98, delete Note 3; add after Note 5:

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER v. NASSAR 133 S. Ct. 2517 (2013)

JUSTICE KENNEDY delivered the opinion of the Court.

When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and

9 | P a g e compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.

Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation’s workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. The second type of conduct is employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination.

An employee who alleges status-based discrimination under Title VII need not how that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e-2(m), 2000e-5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under §2000e- 3(a).

[The Court then cited Gross v. FBL Financial Services, Inc. as holding] that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here.

Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University’s students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University’s faculty members, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members.

Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University’s faculty and a staff physician at the Hospital. He left both positions in

10 | P a g e 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital.

In 2004, Dr. Beth Levine was hired as the University’s Chief of Infectious Disease Medicine. In that position Levine became respondent’s ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that “‘Middle Easterners are lazy.’” On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University’s Chair of Internal Medicine and Levine’s supervisor, to complain about Levine’s alleged harassment. Despite obtaining a promotion with Levine’s assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University’s faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, “‘stems from . . . religious, racial and cultural bias against Arabs and Muslims.’” After reading that letter, Dr. Fitz expressed consternation at respondent’s accusations, saying that Levine had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly exonerated.”

Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.

[Nassar sued claiming both status-based discrimination claim and retaliation and won a jury verdict on both claims. The Fifth Circuit vacated his discrimination verdict because of insufficient evidence in support constructive-discharge claim, but it affirmed as to the retaliation finding because retaliation claims] require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. . . .

This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—is a standard requirement of any tort claim, see Restatement of Torts §9 (1934) (definition of “legal cause”); §431, Comment a (same); §279, and Comment c (intentional infliction of physical harm); §280 (other intentional torts); §281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins (In intentional-discrimination cases, “liability depends on whether the

11 | P a g e protected trait” “actually motivated the employer’s decision” and “had a determinative influence on the outcome”).

In the usual course, this standard requires the plaintiff to show “that the harm would not have occurred” in the absence of—that is, but for—the defendant’s conduct. Restatement of Torts §431, Comment a (negligence); §432(1), and Comment a (same); see §279, and Comment c (intentional infliction of bodily harm); §280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that “cases invoking the concept are rare”). See also Restatement (Second) of Torts §432(1) (1963 and 1964) (negligence claims); §870, Comment l (intentional injury to another); cf. §435A, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action “is not regarded as a cause of an event if the particular event would have occurred without it.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285 (2003); Carey v. Piphus, 435 U. S. 247, 257-258 (1978).

Since the statute’s passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them— race, color, religion, sex, and national origin—are personal characteristics and are set forth in §2000e-2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct—the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination —are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, §2000e-3(a).

[The Court traced the history of §2000e-2(m) in the 1991 Civil Rights Act, which “codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree.” It provides:]

[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

This, of course, is a lessened causation standard.

The 1991 Act also abrogated a portion of Price Waterhouse’s framework by removing the employer’s ability to defeat liability once a plaintiff proved the existence of

12 | P a g e an impermissible motivating factor. See Gross. In its place, Congress enacted §2000e-5(g) (2), which provides:

(B) On a claim in which an individual proves a violation under section 2000e- 2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court— (i) may grant declaratory relief, injunctive relief . . . and [limited] attorney’s fees and costs . . . ; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment. . . .

So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney’s fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer’s proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross.

[The Court then reviewed its decision in Gross, “[c]oncentrating first and foremost” on that opinion’s reading of “because of’” to indicate “but-for” causation.]

In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse. Noting that “the ADEA must be ‘read . . . the way Congress wrote it,’” the Court concluded that “the textual differences between Title VII and the ADEA” “prevent[ed] us from applying Price Waterhouse . . . to federal age discrimination claims.” In particular, the Court stressed the congressional choice not to add a provision like §2000e-(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act.

Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. This different reading was necessary, the Court concluded, because Congress’ 1991 amendments to Title VII, including its “careful tailoring of the ‘motivating factor’ claim” and the substitution of §2000e-5(g)(2)(B) for Price Waterhouse’s full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA.

In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term “because” as it relates to the principles of causation underlying both §623(a) and §2000e-3(a). The second is the significance of Congress’ structural choices in both Title VII itself and the law’s 1991

13 | P a g e amendments. These principles do not decide the present case but do inform its analysis, for the issues possess significant parallels.

III

[§2000e-3(a)], like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

The principal counterargument offered by respondent and the United States relies on their different understanding of the motivating-factor section, which—on its face— applies only to status discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment practice; (2) §2000e-2(m) allows unlawful employment practices to be proved based on a showing that race, color, religion, sex, or national origin was a motivating factor for—and not necessarily the but-for factor in—the challenged employment action; and (3) the Court has, as a matter of course, held that “retaliation for complaining about race discrimination is ‘discrimination based on race.’”

There are three main flaws in this reading of §2000e-2(m). The first is that it is inconsistent with the provision’s plain language. It must be acknowledged that because Title VII defines “unlawful employment practice” to include retaliation, the question presented by this case would be different if §2000e-2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating- factor provision, while it begins by referring to “unlawful employment practices,” then proceeds to address only five of the seven prohibited discriminatory actions—actions based on the employee’s status, i.e., race, color, religion, sex, and national origin. This indicates Congress’ intent to confine that provision’s coverage to only those types of employment practices. The text of §2000e-2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.

The second problem with this reading is its inconsistency with the design and structure of the statute as a whole. See Gross. Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices. When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within §2000e-2, which contains Title VII’s ban on status-based discrimination, and says nothing about retaliation. The title of the section of the 1991 Act that created §2000e-2(m)—“Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices”—also indicates that Congress determined to address only claims of status-based discrimination, not retaliation.

14 | P a g e What is more, a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e-2(m). The relevant portion of the 1991 Act, §109(b), allowed certain overseas operations by U. S. employers to engage in “any practice prohibited by section 703 or 704,” i.e., §2000e-2 or §2000e-3, “if compliance with such section would cause such employer . . . to violate the law of the foreign country in which such workplace is located.”

If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in §109. Or, it could have inserted the motivating-factor provision as part of a section that applies to all such claims, such as §2000e-5, which establishes the rules and remedies for all Title VII enforcement actions. But in writing §2000e-2(m), Congress did neither of those things, and “[w]e must give effect to Congress’ choice.” Gross.

The third problem with respondent’s and the Government’s reading of the motivating-factor standard is in its submission that this Court’s decisions interpreting federal antidiscrimination law have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation. In support of this proposition, both respondent and the United States rely upon decisions in which this Court has “read [a] broadly worded civil rights statute . . . as including an antiretaliation remedy.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452-453 (2008). In CBOCS, for example, the Court held that 42 U.S.C. §1981—which declares that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens”-- prohibits not only racial discrimination but also retaliation against those who oppose it. And in Gómez- Pérez v. Potter, 553 U.S. 474 (2008), the Court likewise read a bar on retaliation into the broad wording of the federal-employee provisions of the ADEA. See also Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 173, 179 (2005) (20 U.S.C. §1681(a) (Title IX)); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235, n. 3, 237 (1969) (42 U.S.C. §1982).

These decisions are not controlling here. It is true these cases do state the general proposition that Congress’ enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, even where the statute does not refer to retaliation in so many words. What those cases do not support, however, is the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for “retaliation.” For one thing, §2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII. The cases cited by respondent and the Government do not address rules of this sort, and those precedents are of limited relevance here.

The approach respondent and the Government suggest is inappropriate in the context of a statute as precise, complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In

15 | P a g e interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad and brief, its omission of any specific discussion of retaliation was unremarkable.

If Title VII had likewise been phrased in broad and general terms, respondent’s argument might have more force. But that is not how Title VII was written, which makes it incorrect to infer that Congress meant anything other than what the text does say on the subject of retaliation. Unlike Title IX, §1981, §1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme. This statute enumerates specific unlawful employment practices. It defines key terms, and exempts certain types of employers. And it creates an administrative agency with both rulemaking and enforcement authority.

This fundamental difference in statutory structure renders inapposite decisions which treated retaliation as an implicit corollary of status-based discrimination. Text may not be divorced from context. In light of Congress’ special care in drawing so precise a statutory scheme, it would be improper to indulge respondent’s suggestion that Congress meant to incorporate the default rules that apply only when Congress writes a broad and undifferentiated statute..

Further confirmation of the inapplicability of §2000e-2(m) to retaliation claims may be found in Congress’ approach to the Americans with Disabilities Act of 1990 (ADA). In the ADA Congress provided not just a general prohibition on discrimination “because of [an individual’s] disability,” but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination. And, most pertinent for present purposes, it included an express antiretaliation provision. That law, which Congress passed only a year before enacting §2000e-2(m) and which speaks in clear and direct terms to the question of retaliation, rebuts the claim that Congress must have intended to use the phrase “race, color, religion, sex, or national origin” as the textual equivalent of “retaliation.” To the contrary, the ADA shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so in clear textual terms.

The Court confronted a similar structural dispute in Lehman v. Nakshian , 453 U.S. 156 (1981). The question there was whether the federal-employment provisions of the ADEA, 29 U.S.C. §633a, provided a jury-trial right for claims against the Federal Government. In concluding that it did not, the Court noted that the portion of the ADEA that prohibited age discrimination by private, state, and local employers, §626, expressly provided for a jury trial, whereas the federal-sector provisions said nothing about such a right. So, too, here. Congress has in explicit terms altered the standard of causation for one class of claims but not another, despite the obvious opportunity to do so in the 1991 Act.

16 | P a g e The proper interpretation and implementation of §2000e-3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. . . .

In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or he might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. Cf. Vance v. Ball State Univ.[reproduced in this Update at p. 32]. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.

The facts of this case also demonstrate the legal and factual distinctions between status-based and retaliation claims, as well as the importance of the correct standard of proof. Respondent raised both claims in the District Court. The alleged wrongdoer differed in each: In respondent’s status-based discrimination claim, it was his indirect supervisor, Dr. Levine. In his retaliation claim, it was the Chair of Internal Medicine, Dr. Fitz. The proof required for each claim differed, too. For the status-based claim, respondent was required to show instances of racial slurs, disparate treatment, and other indications of nationality-driven animus by Dr. Levine. Respondent’s retaliation claim, by contrast, relied on the theory that Dr. Fitz was committed to exonerating Dr. Levine and wished to punish respondent for besmirching her reputation. Separately instructed on each type of claim, the jury returned a separate verdict for each, albeit with a single damages award. And the Court of Appeals treated each claim separately, too, finding insufficient evidence on the claim of status-based discrimination.

If it were proper to apply the motivating-factor standard to respondent’s retaliation claim, the University might well be subject to liability on account of Dr. Fitz’s alleged desire to exonerate Dr. Levine, even if it could also be shown that the terms of the affiliation agreement precluded the Hospital’s hiring of respondent and that the University would have sought to prevent respondent’s hiring in order to honor that agreement in any event. That result would be inconsistent with the both the text and purpose of Title VII.

In sum, Title VII defines the term “unlawful employment practice” as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex,

17 | P a g e national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e-2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e-2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII’s detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

[The majority rejected arguments for Skidmore v. Swift & Co., 323 U.S. 134 (1944), deference to the EEOC’s guidance manual, which endorsed a motivating factor analysis). Since Skidmore deference depends on the “persuasive force” of the agency interpretation, it was unavailable when the EEOC’s rationale was unconvincing.]

Respondent’s final argument, in which he is not joined by the United States, is that even if §2000e-2(m) does not control the outcome in this case, the standard applied by Price Waterhouse should control instead. That assertion is incorrect. First, this position is foreclosed by the 1991Act’s amendments to Title VII. As noted above, Price Waterhouse adopted a complex burden-shifting framework. Congress displaced this framework by enacting §2000e-2(m) (which adopts the motivating-factor standard for status-based discrimination claims) and §2000e-5(g)(2)(B) (which replaces employers’ total defense with a remedial limitation). See Gross. Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage. Second, even if this argument were still available, it would be inconsistent with the Gross Court’s reading (and the plain textual meaning) of the word “because” as it appears in both §623(a) and §2000e-3(a). For these reasons, the rule of Price Waterhouse is not controlling here.

[The case was remanded for further proceedings consistent with this opinion.]

JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

. . .Similarly worded, the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together: Title VII plaintiffs often raise the two

18 | P a g e provisions in tandem. Today’s decision, however, drives a wedge between the twin safeguards in so-called “mixed-motive” cases. To establish discrimination, all agree, the complaining party need show only that race, color, religion, sex, or national origin was “a motivating factor” in an employer’s adverse action; an employer’s proof that “other factors also motivated the [action]” will not defeat the discrimination claim. §2000e-2(m). But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail unless the complainant shows “but-for” causation, i.e., that the employer would not have taken the adverse employment action but for a design to retaliate.

In so reining in retaliation claims, the Court misapprehends what our decisions teach: Retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it. Indeed, this Court has explained again and again that “retaliation in response to a complaint about [proscribed] discrimination is discrimination” on the basis of the characteristic Congress sought to immunize against adverse employment action. Jackson v. Birmingham Bd. of Ed.

The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination “because of,” e.g., race is coupled with a claim of discrimination “because” the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision, §2000e-2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation. . . .

This Court has long acknowledged the symbiotic relationship between proscriptions on discrimination and proscriptions on retaliation. Antidiscrimination provisions, the Court has reasoned, endeavor to create a workplace where individuals are not treated differently on account of race, ethnicity, religion, or sex. See Burlington Northern [& S. F. R. Co. v. White, reproduced at p. 476]. Antiretaliation provisions “see[k] to secure that primary objective by preventing an employer from interfering . . . with an employee’s efforts to secure or advance enforcement of [antidiscrimination] guarantees.” Ibid. As the Court has comprehended, “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Id. “‘[E]ffective enforcement,’” therefore, can “‘only be expected if employees . . . [feel] free to approach officials with their grievances.’” See also Crawford [v. Metropolitan Government of Nashville and Davidson Cty. discussed at p. 459].

Adverting to the close connection between discrimination and retaliation for complaining about discrimination, this Court has held, in a line of decisions unbroken until today, that a ban on discrimination encompasses retaliation. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969), the Court determined that 42 U.S.C. §1982, which provides that “[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property,” protected a white man who suffered retaliation after complaining of discrimination against his black tenant. Jackson v. Birmingham Board of Education elaborated on that holding in the context of sex discrimination. “Retaliation against a person because [he] has complained of sex discrimination,” the Court found

19 | P a g e it inescapably evident, “is another form of intentional sex discrimination.” As the Court explained:

Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subject to differential treatment. Moreover, retaliation is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.

Jackson interpreted Title IX of the Educational Amendments of 1972, 20 U.S.C. §1681(a). Noting that the legislation followed three years after Sullivan, the Court found it “not only appropriate but also realistic to presume that Congress was thoroughly familiar with Sullivan and . . . expected its enactment of Title IX to be interpreted in conformity with it.”

Gómez-Pérez v. Potter, 553 U.S. 474 887 (2008), was similarly reasoned. . . . See also CBOCS West, Inc. v. Humphries, 553 U.S. 442, 447-457 (2008) (retaliation for race discrimination constitutes discrimination based on race under 42 U.S.C. §1981). There is no sound reason in this case to stray from the decisions in Sullivan, Jackson, Gómez-Pérez, and CBOCS West.

III

[The dissent reviewed the history of § 703(m), stressing that [a]mong the decisions found inadequately protective” by Congress in 1991 was Price Waterhouse v. Hopkins, which “endorsed the plurality’s conclusion [there] that, to be actionable under Title VII, discrimination must be a motivating factor in, but need not be the but-for cause of, an adverse employment action. Congress disagreed with the Court, however, insofar as the Price Waterhouse decision allowed an employer to escape liability by showing that the same action would have been taken regardless of improper motive,” and therefore added §703(m) and §706(g)(2)(B).]

There is scant reason to think that, despite Congress’ aim to “restore and strengthen . . . laws that ban discrimination in employment,” Congress meant to exclude retaliation claims from the newly enacted “motivating factor” provision. Section 2000e-2(m) provides that an “unlawful employment practice is established” when the plaintiff shows that a protected characteristic was a factor driving “any employment practice.” Title VII, in §2000e-3(a), explicitly denominates retaliation, like status-based discrimination, an “unlawful employment practice.” Because “any employment practice” necessarily encompasses practices prohibited under §2000e-3(a), §2000e- 2(m), by its plain terms, covers retaliation.

Notably, when it enacted §2000e-2(m), Congress did not tie the new provision specifically to §§2000e-2(a)-(d), which proscribe discrimination “because of” race, color, religion, gender, or national origin. Rather, Congress added an entirely new provision to codify the causation standard, one encompassing “any employment practice.” §2000e-2(m).

20 | P a g e Also telling, §2000e-2(m) is not limited to situations in which the complainant’s race, color, religion, sex, or national origin motivates the employer’s action. In contrast, Title VII’s substantive antidiscrimination provisions refer to the protected characteristics of the complaining party. See §§2000e-2(a)(1)-(2), (c)(2) (referring to “such individual’s” protected characteristics); §§2000e-2(b), (c)(1), (d) (referring to “his race, color, religion, sex, or national origin”). Congress thus knew how to limit Title VII’s coverage to victims of status-based discrimination when it was so minded. It chose, instead, to bring within §2000e-2(m) “any employment practice.” To cut out retaliation from §2000e-2(m)’s scope, one must be blind to that choice. Cf. Jackson (omission of reference to the complaining party’s sex in Title IX supports the conclusion that the statute protects a male plaintiff from retaliation in response to complaints about sex discrimination against women).

[The dissent reviewed the EEOC’s position on the question, including its Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, p. 20, n. 14 (July 14, 1992), available at http://www.eeoc.gov/policy/docs/disparat.html, and 2 EEOC Compliance Manual §8-II(E)(1), p. 614:0008, n. 45 (May 20, 1998), and stated that the agency position “merits respect” under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Federal Express Corp. v. Holowecki , 552 U.S. 389, 399 (2008).] If the breadth of §2000e-2(m) can be deemed ambiguous (although I believe its meaning is plain), the provision should be construed to accord with the EEOC’s well-reasoned and longstanding guidance.

The Court draws the opposite conclusion, ruling that retaliation falls outside the scope of §2000e-2(m). In so holding, the Court ascribes to Congress the unlikely purpose of separating retaliation claims from discrimination claims, thereby undermining the Legislature’s effort to fortify the protections of Title VII. None of the reasons the Court offers in support of its restrictive interpretation of §2000e-2(m) survives inspection.

The Court first asserts that reading §2000e-2(m) to encompass claims for retaliation “is inconsistent with the provision’s plain language.” The Court acknowledges, however, that “the text of the motivating-factor provision . . . begins by referring to unlawful employment practices,” a term that undeniably includes retaliation. Nevermind that, the Court continues, for §2000e-2(m) goes on to reference as “motivating factor[s]” only “race, color, religion, sex, or national origin.” The Court thus sees retaliation as a protected activity entirely discrete from status-based discrimination.

This vision of retaliation as a separate concept runs up against precedent. Until today, the Court has been clear eyed on just what retaliation is: a manifestation of status-based discrimination. As Jackson explained in the context of sex discrimination, “retaliation is discrimination ‘on the

21 | P a g e basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.”

The Court does not take issue with Jackson’s insight. Instead, it distinguishes Jackson and like cases on the ground that they concerned laws in which “Congress’ treatment of the subject of prohibited discrimination was both broad and brief.” Title VII, by contrast, “is a detailed statutory scheme,” that “enumerates specific unlawful employment practices,” “defines key terms,” and “exempts certain types of employers.” Accordingly, the Court says, “it would be improper to indulge [the] suggestion that Congress meant to incorporate [in Title VII] the default rules that apply only when Congress writes a broad and undifferentiated statute.”

It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court’s conclusion. In Gómez-Pérez, the Court construed the federal-sector provision of the ADEA, which proscribes “discrimination based on age,” 29 U.S.C. §633a(a), to bar retaliation. The Court did so mindful that another part of the Act, the provision applicable to private-sector employees, explicitly proscribes retaliation and, moreover, “set[s] out a specific list of forbidden employer practices.” Gómez-Pérez.

The Court suggests that “the la[w] at issue in . . . Gómez-Pérez [was a] broad, general ba[r] on discrimination.” But, as our opinion in that case observes, some of the ADEA’s provisions are brief, broad, and general, while others are extensive, specific, and detailed. So too of Title VII. It makes little sense to apply a different mode of analysis to Title VII’s §2000e-2(m) and the ADEA’s §633a(a), both brief statements on discrimination in the context of larger statutory schemes. The Court’s reliance on §109(b) of the Civil Rights Act of 1991 [42 U.S.C. § 2000e–1(b)] and the Americans with Disabilities Act of 1990 is similarly unavailing. According to the Court, Congress’ explicit reference to §2000e-3(a) in §109(b) “reinforc[es] the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e-2(m).” The same is true of the ADA, the Court says, as “Congress provided not just a general prohibition on discrimination ‘because of [an individual’s] disability,’ but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination . . . [a]nd . . . an express antiretaliation provision.”

This argument is underwhelming. Yes, Congress has sometimes addressed retaliation explicitly in antidiscrimination statutes. When it does so, there is no occasion for interpretation. But when Congress simply targets discrimination “because of” protected characteristics, or, as in §2000e-2(m), refers to employment practices motivated by race, color, religion, sex, or national origin, how should courts comprehend those phrases? They should read them informed by this Court’s consistent holdings that such phrases draw in retaliation, for, in truth, retaliation is a “form of intentional [status-based] discrimination.” See Jackson. That is why the Court can point to no prior instance in which an antidiscrimination law was found not to cover retaliation. The Court’s volte-face is particularly imprudent in the context of §2000e-2(m), a provision added as part of Congress’ effort to toughen protections against workplace discrimination.

22 | P a g e B

[The dissent found the Court’s structural analysis equally inapposite. §2000e-2, contrary to the majority] does not deal exclusively with discrimination based on protected characteristics. The provisions stated after §§2000e-2(a)-(d) deal with a variety of matters, some of them unquestionably covering retaliation. For example, §2000e-2(n), enacted in tandem with and located immediately after §2000e-2(m), limits opportunities to collaterally attack employment practices installed to implement a consent judgment. Section 2000e-2(n) applies beyond the substantive antidiscrimination provisions in §2000e-2; indeed, it applies beyond Title VII to encompass claims “under the Constitution or [other] Federal civil rights laws.” §2000e-2(n)(1) (A). . .

The Court gives no deference to the EEOC’s longstanding position that §2000e-2(m) applies to retaliation because, the Court charges, the agency did not “address the particular interplay among the status-based antidiscrimination provision (§2000e-2(a)), the antiretaliation provision (§2000e-3(a)), and the motivating-factor provision (§2000e-2(m)).” Not so. [In fact, the EEOC considered, but rejected the “the very argument the Court relies on today. Putting down the agency’s appraisal as ‘generic,’ is thus conspicuously unfair comment.”]

Having narrowed §2000e-2(m) to exclude retaliation claims, the Court turns to Gross v. FBL Financial Services, Inc. to answer the question presented: Whether a plaintiff must demonstrate but-for causation to establish liability under §2000e-3(a).

[The dissent stressed that] Gross, which took pains to distinguish ADEA claims from Title VII claims, is invoked by the Court today as pathmarking.

The word “because” in Title VII’s retaliation provision, §2000e-3(a), the Court tells us, should be interpreted not to accord with the interpretation of that same word in the companion status-based discrimination provision of Title VII, §2000e-2(a). Instead, statutory lines should be crossed: The meaning of “because” in Title VII’s retaliation provision should be read to mean just what the Court held “because” means for ADEA-liability purposes. But see Gross (“When conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’” In other words, the employer prevailed in Gross because, according to the Court, the ADEA’s antidiscrimination prescription is not like Title VII’s. But the employer prevails again in Nassar’s case, for there is no “meaningful textual difference,” between the ADEA’s use of “because” and the use of the same word in Title VII’s retaliation provision. What sense can one make of this other than “heads the employer wins, tails the employee loses”?

23 | P a g e It is a standard principle of statutory interpretation that identical phrases appearing in the same statute—here, Title VII—ordinarily bear a consistent meaning. Following that principle, Title VII’s retaliation provision, like its status-based discrimination provision, would permit mixed- motive claims, and the same causation standard would apply to both provisions.

The Court’s decision to construe §2000e-3(a) to require but-for causation in line with Gross is even more confounding in light of Price Waterhouse. . . .

It is wrong to revert to Price Waterhouse, the Court says, because the 1991 Civil Rights Act’s amendments to Title VII abrogated that decision. This conclusion defies logic. Before the 1991 amendments, several courts had applied Price Waterhouse’s burden-shifting framework to retaliation claims. In the Court’s view, Congress designed §2000e-2(m)’s motivating-factor standard not only to exclude retaliation claims, but also to override, sub silentio, Circuit precedent applying the Price Waterhouse framework to such claims. And with what did the 1991 Congress replace the Price Waterhouse burden-shifting framework? With a but-for causation requirement Gross applied to the ADEA 17 years after the 1991amendments to Title VII. Shut from the Court’s sight is a legislative record replete with statements evincing Congress’ intent to strengthen antidiscrimination laws and thereby hold employers accountable for prohibited discrimination. It is an odd mode of statutory interpretation that divines Congress’ aim in 1991 by looking to a decision of this Court, Gross, made under a different statute in 2008, while ignoring the overarching purpose of the Congress that enacted the 1991 Civil Rights Act

The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation. Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today’s decision. Causation is a complicated concept to convey to juries in the best of circumstances. Asking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion. That would be tolerable if the governing statute required double standards, but here, for the reasons already stated, it does not.

The Court’s assertion that the but-for cause requirement it adopts necessarily follows from §2000e-3(a)’s use of the word “because” fails to convince. Contrary to the Court’s suggestion, the word “because” does not inevitably demand but-for causation to the exclusion of all other causation formulations. When more than one factor contributes to a plaintiff’s injury, but-for causation is problematic. See, e.g., 1 Restatement (Third) of Torts §27, Comment a, p. 385 (2005) (noting near universal agreement that the but-for standard is inappropriate when multiple sufficient causes exist) (hereinafter Restatement Third); Restatement of Torts §9, Comment b, p. 18 (1934) (legal cause is a cause that is a “substantial factor in bringing about the harm”).

24 | P a g e When an event is “overdetermined,” i.e., when two forces create an injury each alone would be sufficient to cause, modern tort law permits the plaintiff to prevail upon showing that either sufficient condition created the harm. Restatement Third §27, at 376-377. In contrast, under the Court’s approach (which it erroneously calls “textbook tort law,”), a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.

Today’s opinion rehashes arguments rightly rejected in Price Waterhouse. . . .

As the plurality and concurring opinions in Price Waterhouse indicate, a strict but-for test is particularly ill suited to employment discrimination cases. Even if the test is appropriate in some tort contexts, “it is an entirely different matter to determine a ‘but-for’ relation when . . . consider[ing], not physical forces, but the mind-related characteristics that constitute motive.” Gross (BREYER, J., dissenting). When assessing an employer’s multiple motives, “to apply ‘but- for’ causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different.” Id. See also Price Waterhouse (opinion of O’Connor, J.) (“‘[A]t . . . times the [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs.’”

This point, lost on the Court, was not lost on Congress. When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” See 110 Cong. Rec. 2728, 13837-13838 (1964). Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Life does not shape up that way, the Senator suggested, commenting “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”

* * *

[T]he Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. Congress had no such goal in mind when it added §2000e-2(m) to Title VII. See House Report Part II, at 2. Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., should prompt yet another Civil Rights Restoration Act. . . .

NOTES

1. Two Insights and a Default Principle. Although the Nassar Court stated that Gross did “not decide the present case,” the “insights” of the earlier opinion came close to doing so: first, its reading of “because” at least sets the default principle for other statutes; second, “Congress’ structural choices in both Title VII itself and the law’s 1991 amendments” are significant. Needless to say, both these “insights” cut strongly against motivating factor causation for § 704(a) cases since that provision used the word “because” and § 703(m) does not explicitly refer to retaliation. See generally Michael J. Zimmer, Hiding the Statute in Plain View: University of

25 | P a g e Texas Southwestern Medical Center v. Nassar, SSRN (“critiquing the court for its methodology, including abandoning the plain meaning approach to statutory interpretation it purported to use in Gross.).

2. Retaliation Is Discrimination? The path to avoiding this result, of course, was the argument that prior case law had treated a ban on discrimination to necessarily include a ban on retaliation for opposing such discrimination. E.g., CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452-453 (2008). Are you persuaded by the Court’s effort to distinguish them – that the earlier cases show that “a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation” but that such an inference should not be drawn in a more detailed statute? What’s the relevance of the fact that “§2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII”? And does that single sentence put to rest the dispute in the lower courts as to whether there is a single claim of discrimination? See pp. 86-87, Notes 11, Is a §703(m) Case Different from a §703(a) Case? and 14, Has Desert Palace Trumped McDonnell Douglas?

3. Employees Gaming the System. Although the Court’s opinion seems to reach its result without relying on policy considerations Part IIB stresses both the large number of retaliation claims and the risks of employees filing charges in order to “forestall” an employer’s lawful adverse action. While this is a logical possibility, do you think it’s a serious problem? Even if so, should the majority have been concerned, given proof problems, about the “false negatives” a stricter standard of causation will produce even when retaliation is the but-for cause of an adverse action? Is that what the Ginsburg dissent was saying? See generally Michael J. Zimmer, Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar, SSRN (“the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions.”).

4. What about §706(g)? In one passage, the majority suggest that the applying the motivating-factor standard to Dr. Nassar’s retaliation claim, might well subject the University “to liability on account of Dr. Fitz’s alleged desire to exonerate Dr. Levine, even if it could also be shown that the terms of the affiliation agreement precluded the Hospital’s hiring of respondent and that the University would have sought to prevent respondent’s hiring in order to honor that agreement in any event.” It goes on: “That result would be inconsistent with the both the text and purpose of Title VII.” But is it? The University would be liable but, given the same decision defense, would not be subject to damages in this scenario. What’s inconsistent with a declaratory judgment or even an injunction relating to the retaliation?

26 | P a g e 5. Really? The Court rejected the argument that, even if § 703(m) did not govern this case, Price Waterhouse should control. Its basic response was that the 1991Act’s amendments displaced the Price Waterhouse burden-shifting framework: “Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage.” But, as the dissent stressed, Congress intended to give burden shifting more bite in the ’91 Amendments. How could the Court have read them to implicitly cut back on the pre-existing regime?

6. But-for Does Not Mean Sole Cause. While Nassar undoubtedly increased plaintiff’s burden, it did not render such cases impossible to prove. Kwan v. Andalex Grp. LLC, 737 F.3f 834 (2d Cir. 2013), stressed that “‘but-for’ causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.” That is because traditional tort principles establish that “a plaintiff's injury can have multiple “but—for” causes, each one of which may be sufficient to support liability.” Id. at n.5, citing, inter alia, FOWLER V. HARPER ET AL., 4 HARPER, JAMES AND GRAY ON TORTS § 20.2, at 100–101 (3d ed.2007).

7. Gross/Nassar and Other Antidiscrimination Statutes. Desert Palace and Gross create separate analytic regimes for Title VII and the ADEA, and Nassar holds that even Title VII does not have a single motivating factor standard. But what about other laws? See Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010) (in a federal employee suit under ADEA §633a, plaintiffs need show only that age was a factor in the employer’s decision in order to prevail as to liability); Reynolds v. Tangherlini, 737 F.3d 1093 (7th Cir. 2013) (questioning, but not deciding, the but-for vs. motivating factor issue in federal section discrimination cases). See also Palmquist v. Shinseki, 689 F.3d 66, 73-74 (1st Cir. 2012) (while the Rehabilitation Act borrows its remedial scheme from Title VII, it does not borrow the causation standard set out in Section 2000e-2(m); instead, the Rehabilitation Act borrows the causation standard from the ADA, which uses very similar causation language to the ADEA and therefore should be construed the same way). See generally Lawrence D. Rosenthal, A Lack of "Motivation," or Sound Legal Reasoning? Why Most Courts Are Not Applying Either Price Waterhouse's or the 1991 Civil Rights Act's Motivating-Factor Analysis to Title VII Retaliation Claims in A Post- Gross World, 64 ALA. L. REV. 1067 (2013).

Some have argued that Gross will not apply to ADA cases because that statute incorporates Title VII procedures and remedies by reference. See Melissa Hart, Procedural Extremism: The Supreme Court’s 2008-2009 Employment and Labor Cases, 13 EMP. RTS. & EMP. POL’Y J. 253 (2010). See also Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instruction, 51 B.C. L. REV. 279 (2010). There is also legislative history of the Civil Rights Act of 1991 to this effect: “Similarly, mixed motive cases involving disability under the ADA should be interpreted consistent with the prohibition against all intentional discrimination in Section 5 of this Act.” H.R. Rep. No. 102-40(II), at 4, 1991 U.S.C.C.A.N. 694, 697 (1991). But the early returns suggest that this incorporation theory will

27 | P a g e not suffice. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010).

Page 99, add at end of second full paragraph:

See Blasdel v. Northwestern Univ., 687 F.3d 813, 820 (7th Cir. 2012) (while not a “presumption,” the same actor proof undermined any inference that of prejudice against female scientists by the person who hired plaintiff).

Page 102, add at end of first full paragraph:

Blasdel v. Northwestern Univ., 687 F.3d 813, 822 (7th Cir. 2012) (“There is no indication that any member of the medical school's appointments, promotion, and tenure committee, or the dean, or the provost discriminates against women scientists. In the seven years that the dean had been in office when he recommended against giving Blasdel tenure, the percentage of tenure track female faculty in the medical school had increased from 20.5 to 25.4 percent and their rate of obtaining tenure had exceeded that of the male faculty.”).

Page 112, add before last sentence of Note 3, A BFOQ:

See Emory v. United Air Lines, Inc., 720 F.3d 915 (D.C. Cir. 2013) (challenging lack of retroactivity of the law).

28 | P a g e Chapter 2 Systemic Disparate Treatment Discrimination

Page 135, add after last full paragraph:

For an interesting take on using statistics in systemic cases, see Jason Bent, Saving Systemic Treatment by Exposing Hidden Priors, http://papers.ssrn.com/sol3/papers.cfm? abstract_id=2227423, who views the current use of statistics as necessarily incorporating a view of discrimination as being relatively common. In other words, the theory supposes that the base rate is high, thus permitting the statistical proof to allow the factfinder for infer intentional discrimination by the particular defendant from a statistically significant underrepresentation. Looking to Bayesian analysis, Professor Bent argues that the base rate question should be seen as a Bayesian “prior” and that expert testimony should be allowed to inform jury decisions on the level of such priors before analyzing the claim of discrimination based on statistics in the case at hand.

Page 141, add at end of carryover paragraph:

See also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 153 (2d Cir. 2012) (a statistical analysis that concluded that underrepresentation of Asians in promotion decisions could have occurred by chance 13 percent of the time not necessarily fatal to plaintiffs’ case even though the generally accepted level of significance is 5% or less where there was “other evidence that reasonable jurors could have relied upon to find that an 87-percent likelihood that the disparity was not due to chance,” including substantial evidence that the plaintiffs were more qualified than some white officers who were promoted).

Page 153, add at end of Note 2. Defense or Rebuttal?:

The Second Circuit agreed with the Seventh Circuit in United States v. City of New York, 717 F.3d 72 (2d Cir. 2013) (2-1), where a majority of the panel held summary judgment against the City inappropriate where there was no effort by the employer to rebut the plaintiffs’ statistical evidence of underrepresentation of minorities in the ranks of firefighters. While the results of civil service tests did justify disparate impact liability and an appropriate injunction, the underrepresentation was not a sufficient basis, even coupled with other evidence, to find disparate treatment when the City denied any intent to discriminate and put in evidence such as affidavits from the test designers that they did not intend to discriminate.

Page 155, add at end of Note 5, Failure to Redress as Intentional Discrimination:

29 | P a g e But see Naomi Schoenbaum, The Family and the Market at Wal-Mart, 23 DEPAUL L. REV. 769 (2013) (arguing that some disparate impact suits, as presently framed, tend to reinforce stereotypes of women as less committed to the job market than men).

Page 187, add after first full paragraph:

The Court revisited the question of diversity in college admissions in Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013), a case that many believed would overturn Grutter’s approval of this interest. The Court, while it reversed the Fifth Circuit’s approval of the University’s admissions plan, nevertheless did not disturb the earlier decision core premise that diversity could be a sufficiently compelling state interest to survive strict scrutiny. Rather, the majority believed that the Fifth Circuit had been too deferential to the University’s tailoring of its plan to the diversity interest claimed, looking only to its “good faith.” For the Court, however,

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.

Id. at 2419-20. According to the Court, “[n]arrow tailoring also requires that the reviewing court verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity,” Id. at 2420, which requires “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” Id. That means “[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. The Court then remanded for an application of the correct standard to the litigation.

Page 188, add after carryover paragraph:

Assuming that Grutter does apply in the employment context in the sense of allowing diversity to be a compelling interest for at least some public employers, Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013), suggests that a searching review is needed with respect to how “narrowly tailored” the plan is to the diversity goal, with no deference accorded to the employer’s decision. Id. at 2420.

30 | P a g e Chapter 3 Systemic Disparate Impact Discrimination

Page 204, add at end of carryover Note 2, An Underlying Rationale for the Disparate Impact Theory?:

Light may be shed on some of these issues by the posthumously published book of Professor Robert Belton, who was heavily involved in the Griggs litigation. ROBERT BELTON, THE CRUSADE FOR EQUALITY IN THE WORKPLACE: THE GRIGGS V. DUKE POWER STORY (2014) (edited by Stephen L. Wasby)

Page 220, add at end of carryover Note 2, Retreating from Watson?:

See Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013) (plaintiff made out a prima facie case of disparate impact of the GDCP system by showing that the promotion rate for male sales representatives in was substantially and significantly greater than that for female representatives, which she alleged was the result of managers and supervisors exercising discretion under the system in a discriminatory fashion by choosing to assign (or sometimes not assign) the subjective GDCP ratings differently for male and female employees; plaintiff was not required to show an impact on “otherwise qualified” employees when managers often used their discretion to waive GDCP minimum requirements to promote male employees with low or no ratings, while requiring female employees to obtain a specified rating before applying for promotion).

Page 221, add at end of Note 4, Subjective Employment Practices?:

Cf. Adams v. City of Indianapolis, 2014 U.S. App. LEXIS 2115 (7th Cir. Feb. 4, 2014) (a disparate impact claim could be predicated on any employment policy, not just a facially neutral one).

Page 221, add at the end of first sentence in Note 5, Pleading a Disparate Impact Case:

See Adams v. City of Indianapolis, 2014 U.S. App. LEXIS 2115, 24-31 (7th Cir. Feb. 4, 2014) (while a disparate impact claim could be predicated on any employment policy, not just a facially neutral one, the complaint was properly dismissed for failure to allege facts “tending to show that the City's testing process, or some particular part of it, caused a relevant and statistically significant disparity between black and white applicants for promotion” or “allegations about the racial makeup of the relevant workforce in the Indianapolis metropolitan area or the supervisory ranks in the police and fire departments.”

Page 229, add at end of carryover Note 7, Incapable of Separation for Analysis:

31 | P a g e Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 154-155 (2d Cir. 2012) (while a promotion process involved three steps -- recommendation by a commanding officer, approval by the Chiefs' Board, and selection by the Superintendent— the evidence established that the recommendations in the first two steps could not be separated from the rest for statistical analysis since both played an indeterminate role). But see Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) (plaintiff neither identified a “particular employment practice” by including several distinct subjective elements of a multi-interview hiring system nor showed that the “many steps were so intertwined that they were not capable of separation for analysis”).

Page 231, add a new Note 11A:

11A. “Voluntary” Quits. In reductions in force, plaintiffs sometimes try to use the compare the proportions of protected class members retained with other groups. Employers respond that the correct focus should be on those involuntarily terminated and therefore exclude those who took a “voluntary” separation package, such as an early retirement incentive plan. See Gambill v. Duke Energy Corp., 456 F. App'x 578, 587-88 (6th Cir. 2012) (a “simple percentage comparison of older and younger attorneys retained” was insufficient to make out disparate impact, in part because the plaintiffs included 13 attorneys who took a voluntary severance package and, therefore, were not subject to the RIF). Which is the appropriate comparison? Does it matter that many of those accepting severance offers did so because they anticipated discharge if they did not do so?

Page 249, add a new Note 12A:

12A. Unemployment and Credit Scores. There is also some concern as discrimination on the basis of being unemployed or of having low credit scores (probably correlated phenomena). While there have been limited efforts on the state level to address “currently employed” requirements directly, e.g., N.J. Stat. § 34:8B-1, both grounds could be the basis of a disparate impact challenge. See generally Lea Shepard, Toward a Stronger Financial History Antidiscrimination Norm, 53 B.C. L. REV. 1695 (2012); Jennifer Jolly-Ryan, Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the "Currently Employed" Requirement, 18 MICH. J. RACE & L. 189 (2012).

Page 267, add at end of carryover Note 1, Job Analysis:

But see M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, 689 F.3d 263 (2d Cir. 2012) (2-1) (“despite the lack of direct evidence [of lieutenant positions in] the Buffalo Fire Department, Buffalo carried its burden to demonstrate the examination's job relatedness by showing that the test derived from a valid statewide job analysis indicating that fire lieutenants across New York performed the same critical tasks and required the same critical skills.”).

32 | P a g e Chapter 4 The Interrelationship of the Three Theories of Discrimination

Page 279, add in Note 3. Why Isn’t Baylie a Systemic Case? before first Davis cite:

Daniels v. UPS, 701 F.3d 620, 632-33 (10th Cir. 2012) (individual plaintiffs cannot bring pattern- or-practice claims—only the U.S. Attorney General or a certified class can do so); Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 147 (2d Cir. 2012) (rejecting the pattern-or-practice method of proof in private suits outside the class action context);

Page 281, add at end of last full paragraph:

Further, in an individual disparate impact claim (not involving a class action) the plaintiff must have been affected by the challenged policy. If she would have been denied the benefit in any event, she lacks standing to attack the practice. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1221 n.7 (10th Cir. 2013).

Page 283, add in first full paragraph before McDowell cite:

Hunter v. UPS, 697 F.3d 697, 703-04 (8th Cir. 2012) (no sufficient evidence that employer’s recruiter knew of plaintiff’s transgender status at time of the interview when plaintiff was using the name Jessica “yet came to the interview with his breasts bound, a short haircut, and wearing clothing and shoes he purchased from the men's department” because these facts are not exclusive to transgendered or gender non-conforming individuals . . . Many fashion trends have called for women to wear short haircuts, men's clothes, or men's shoes.”);

Page 310, add at end of Note 6. A Business Necessity as a Matter of Law?

See also Ann C. McGinley. Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano, 57 N.Y.L. Sch. L. Rev. 865, 889 (2012-13) (arguing that, even under the Court’s standard, summary judgment should not have been granted to plaintiffs since Dr. Hornick’s testimony created genuine issues of fact as to (1) the validity and accuracy of a test that had not been subjected to internal review; (2) the availability of different weighting of the written and oral tests, which would have allowed the City to consider additional black candidates; and (3) the alternative of using an assessment center).

33 | P a g e Page 311, add in Note 9 Is Ricci Limited to End-Game Decisions? before Zisk cite:

See Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 95 (2d Cir. 2013) (“Even if it were determined that the City's choice to adopt a new test was motivated in part by its desire to achieve more racially balanced results . . . Maraschiello cannot demonstrate that the generalized overhaul of departmental promotional requirements amounted to the sort of race-based adverse action discussed in Ricci. Indeed, Ricci specifically permits an employer to ‘consider[], before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of race.’").

34 | P a g e Chapter 5 Special Problems in Applying Title VII, Section 1981, and the ADEA

B. Coverage of Title VII, Section 1981, and the ADEA

Page 320, add in last line after id. at 550 citation:

See also Mariotti v. Mariotti Bldg. Prods., 714 F.3d 761 (3d Cir. 2013) (Clackamas applied to business, as well as professional, corporations, and its six factors address not only the extent of an individual's control, but also the source of his authority, which includes whether the putative employee exercises authority by right or by delegation from those who ultimately possess the right to control the enterprise).

Page 321, add before Bristol cite in Note 7. Integrated Enterprises and Joint Employers:

EEOC v. Skanska USA Bldg., Inc., 12-5967, 2013 WL 6486752 (6th Cir. Dec. 10, 2013) (finding contractor the joint employer of employees of a subcontractor when it did virtually all the supervision of the workers at the site);

Page 322, add in carryover Note 8. Interns and Volunteers, after Bryson cite:

Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431 (5th Cir. 2013) (looking to “remuneration” as a threshold requirement to finding employment rather than merely one factor in the analysis);

Page 322, add in carryover Note 8. Interns and Volunteers, before Zatz cite:

Castle v. Eurofresh, Inc., 731 F.3d 901 (9th Cir. 2013) (plaintiff, a former prisoner, was not an “employee” of a state contractor under the ADA because his labor belonged to the State of Arizona, which put him to work at the contractor in order to comply with its statutory obligations);

Page 322, add after Garrett cite in Note 9, Governmental Employment:But see Brumfield v. City of Chicago, 735 F.3d 619, 622 (7th Cir. 2013) (“We join the Ninth and Tenth Circuits and hold that Title II of the ADA does not cover disability discrimination in public employment; this kind of claim must be brought under Title I.”).

Page 322, add at end of Note 11, Exemptions:

See also Toy v. Holder, 714 F.3d 881 (5th Cir. 2013) (refusing to allow review under Title VII of 35 | P a g e a denial of an FBI contract employee’s access to a building based on national security considerations).

B. Sex Discrimination

Page 329, add in Note 3, Proving the Harassment Was “Because of Sex” before Redd cite:

Barrows v. Seneca Foods Corp., 512 F. App’x 115, 118 (2d Cir. 2013) (a reasonable jury could find that men were the primary targets of the conduct, and could also consider that some “vulgar comments were sex-specific and that [the harasser] frequently touched male-specific (and sex- related) body parts”);

Page 326, add before Prowel cite in Note, 3 Distinguishing Sexual Orientation from Sex Stereotyping:

EEOC v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013) (en banc) (“nothing in Oncale overturns or otherwise upsets the Court's holding in Price Waterhouse: a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Thus, the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.”);

Page 336, add at end of Note 2, Distinguishing Sexual Orientation from Sex Stereotyping:

See generally Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, SSRN (arguing that “employees who manifest traits coded as gay in observable ways at work often succeed under Title VII. But when an employee’s sexuality is cognitively perceived—when co-workers think that a man is sleeping with another man or know that a woman lives with a female partner—courts refuse to extend Title VII’s protections.”).

Page 337, complete Yuracko cite near end of carryover paragraph in Note 2, Distinguishing Sexual Orientation from Sex Stereotyping:

161 U. PA. L. REV. 757 (2013).

Page 341, add after first full paragraph:

In a class by itself is a recent state court case, Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013), which held that an employer did not engage in sex discrimination when he fired a female employee at the request of his wife due to her concerns with the nature of employer's relationship with employee. The basis was the sexual attractiveness of the fired worker, not her involvement in any affair with the boss.

36 | P a g e Page 350, add at end of first sentence:

See, e.g., Hitchcock v. Angel Corps, Inc., 718 F.3d 733 (7th Cir. 2013) (at least four potentially different explanations for plaintiff’s were “sufficiently inconsistent or otherwise suspect to create a reasonable inference that they do not reflect the real reason for Hitchcock's firing” and were a pretext for pregnancy discrimination). But see Hubbard v. Meritage Homes of Florida, Inc., 520 F. App’x 859 (11th Cir. 2013) (plaintiff’s comparator evidence of two other sales associates, who were not pregnant and were treated more favorably than she failed because neither engaged in the same misconduct for which she was terminated).

Page 356, add in Note 5, The Question of Accommodation before “but see”:

Young v. UPS, 707 F.3d 437 (4th Cir. 2013) (an employer policy limiting light duty accommodations to employees injured on the job or disabled under the ADA did not violate the PDA’s command to treat pregnant workers the same as those similarly limited in their ability to work). See generally Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 U.C. DAVIS 961 (2013) (the PDA’s second sentence mandates equal accommodations for pregnant women with any accommodations offered other employees for any reason, entirely without an intent requirement; thus, accommodations offered for worker limitations pursuant to the ADAAA must also be offered to pregnant women); Nicole Buonocore Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2215882 (exploring the similarities and differences regarding legal treatment of the disabled and caregivers).

Page 356, add in Note 5, The Question of Accommodation after first sentence in second paragraph:

But see EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013) (adverse employment action against a female employee because she was lactating or expressing milk constituted sex discrimination).

Page 358, add at end of carryover Note 9, Using Title VII to Break Down the “Maternal Wall.”:

Cf. Keith Cunningham-Parmeter, Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination, 24 COLUM. J. GENDER & L. 253 (2013) (evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace

37 | P a g e discrimination and explaining how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court).

Page 364, add in Note 1, What Constitutes Harassment? after “becomes problematic”:

See McMiller v. Metro, 738 F.3d 185, 189 (8th Cir. 2013) (although sexual advances were not sufficiently severe or pervasive to contaminate plaintiff’s work environment, a reasonable jury could find quid pro quo harassment in the supervisor causing her to be fired for refusing to cooperate with his supervisor’s attempts “to engage her sexually”).

Page 365, add in last paragraph before Hernandez cite in last paragraph:

Ellis v. Houston, 2014 U.S. App. LEXIS 2019 (8th Cir. Feb. 3, 2014) even if particular acts experienced by individual officers were insufficiently severe or pervasive, the pattern of harassment suffered by five African American prison guards sufficed, especially in light of evidence that supervisors made or condoned racist comments in group setting on nearly a daily basis); Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 868-69 (7th Cir. 2013) (racial harassment could be found even though the most offensive statements—reference to workers as “donkeys” and a “gorilla” and the use of nigger”—occurred over a period of several years, were not physically threatening, and did not affect Lambert's work performance; the statements were made on multiple occasions using terms that a trier of fact could view as racial slurs); Rivera v. Rochester Genesee Reg'l Transp. Auth., 702 F.3d 685 (2d Cir. 2012) (Puerto Rican and African American plaintiffs established triable cases of national origin and racial harassment by each testifying to several instances where epithets like "spic," Taco Bell," and “nigger” were used; there was also evidence about extensive bullying and physical harassment which could be found by a jury to be connected to the slurs);

Page 366, add after Dediol cite near end of carryover paragraph:

Griffin v. City of Portland, 3:12-CV-01591-MO, 2013 WL 5785173 (D. Or. Oct. 25, 2013) (cursing, including the use of "Jesus Christ" as an expletive, could be harassment on the basis of religion). See posting of Charles A. Sullivan, Stop Cursing, Damn It! to Workplace Prof http://lawprofessors.typepad.com/laborprof_blog/2013/11/damn-it-stop-cursing.html.

Page 366, add before Chew cite near end of first full paragraph:

But see Ayissi-Etoh v. Fannie Mae, 12 F.3d 572 (D.C. Cir. 2013) (a reasonable jury could find two supervisor’s behavior sufficiently severe or pervasive as to create a hostile work environment when one “used a deeply offensive racial epithet when yelling at [plaintiff] to get out of the office” and another explicitly linked his race to the denial of a raise).

Page 369, add at the end of first full paragraph in carryover Note 1, How Bad Is Bad Enough?:

38 | P a g e Desardouin v. City of Rochester, 708 F.3d 102 (2d Cir.. 2013) (comments made on a weekly basis over several months, though not threatening, were more than merely offensive; for a male supervisor to repeatedly say to a female subordinate that her husband was "not taking care of [her] in bed" could readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and was sufficient to make sexual intimidation, ridicule, and insult a pervasive part of her workplace); Gerald v. Univ. of P.R., 707 F.3d 7 (1st Cir. 2013) (testimony that her supervisor grabbed plaintiff’s breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him could be found sufficiently egregious to be actionable);

Page 369, add after Scruggs cite at end of extract in carryover Note 1, How Bad Is Bad Enough?:

Stevens v. Saint Elizabeth Med. Ctr., Inc., 12-5243, 2013 WL 4564525 (6th Cir. Aug. 29, 2013) (conduct not such that a reasonable person would find objectively hostile when multiple text messages were neither offensive nor vulgar, and most were innocuous; the texts that inappropriately expressed continued affection and physical interactions in the office including kissing may have been unwanted or unsolicited but did not result “in a working environment permeated with discriminatory intimidation or ridicule, nor was it physically threatening such that it would have unreasonably interfered” with plaintiff's work performance); Butler v. Crittenden County, 708 F.3d 1044, 1050 (8th Cir. 2013) (“Although there was evidence that Strong asked Butler on several dates, sought to touch her hair, and complimented her perfume, he never touched her inappropriately or engaged in ‘physically threatening or humiliating’ conduct. Moreover, he ceased his advances after jail administrators confronted him about Butler's complaint and later removed him from supervision over her. We conclude that in these circumstances Strong's acts did not rise to the level of a prima facie case of a hostile work environment.”) (citation omitted);

Page 373, add after Fuller cite:

See generally Ann C. McGinley, Reasonable Men?, 45 CONN. L. REV. 1, 1 (2012) (“propos[ing] a shift to a new universal standard for determining whether workplace behavior is sufficiently severe or pervasive to create a hostile working environment. This standard inquires whether the victim's response is a reasonable one considering not only the various identity factors of the victim, but also the workplace, and the social and individual context in which the harassing behavior occurs.”).

Page 373, add at end of third paragraph: But see Souther v. Posen Constr., Inc., 523 F. App’x 352 (6th Cir. 2013) (plaintiff could not establish that a sexual relationship was unwelcome in view of her failure to complain to the 39 | P a g e supposed harasser, human resources, her union representative, or anyone else and when he conduct showed she was a willing participant and when there was no evidence that submitting to sexual advances was either an express or implied condition for gaining job benefits or avoiding job detriments).

Page 374, add at end of second to last paragraph:

But see Gerald v. Univ. of P.R., 707 F.3d 7, 17 (1st Cir. 2013) (rejecting defendant’s argument that plaintiff failed to prove the alleged harassment was unwelcome: “We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work”).

Page 383, delete Note 3, Who Is a Supervisor?

Page 384, add new principal case before asterisk breaker:

VANCE v. BALL STATE UNIVERSITY 133 S. Ct. 2434 (2013)

JUSTICE ALITO delivered the opinion of the Court.

In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment?

[Under the Ellerth/Faragher framework, an employer is strictly liable for “tangible employment actions” taken by supervisors and liable subject to an affirmative defense for other supervisory harassment. Lacking a supervisor, an employer can be liable only for negligence in responding to harassment]. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.

We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit.

Maetta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a substitute server in the University Banquet and Catering division of Dining

40 | P a g e Services. In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied and was selected for a position as a full-time catering assistant.

Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. For present purposes, the only relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis.

During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’ duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance.

In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” She alleged that she was “left alone in the kitchen with Davis, who smiled at her”; that Davis “blocked” her on an elevator and “stood there with her cart smiling”; and that Davis often gave her “weird” looks.

Vance’s workplace strife persisted despite BSU’s attempts to address the problem. [She filed suit, alleging that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment. The district court granted summary judgment to the defendant, and the Seventh Circuit affirmed.]

II . . .

[W]e have held that an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. Faragher. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff.

In Ellerth and Faragher, however, we held that different rules apply where the harassing employee is the plaintiff’s “supervisor.” In those instances, an employer may be vicariously liable for its employees’ creation of a hostile work environment. And in identifying the situations in which such vicarious liability is appropriate, we looked to the Restatement of Agency for guidance. See, e.g., Meritor; Ellerth.

41 | P a g e Under the Restatement, “masters” are generally not liable for the torts of their “servants” when the torts are committed outside the scope of the servants’ employment. See 1 Restatement (Second) of Agency §219(2), p. 481 (1957) (Restatement). And because racial and sexual harassment are unlikely to fall within the scope of a servant’s duties, application of this rule would generally preclude employer liability for employee harassment. See Faragher; Ellerth .

But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was “aided in accomplishing the tort by the existence of the agency relation.” 2 Restatement 481.

Adapting this concept to the Title VII context, Ellerth and Faragher identified two situations in which the aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these situations involve harassment by a “supervisor” as opposed to a co-worker. First, the Court held that an employer is vicariously liable “when a supervisor takes a tangible employment action,” i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth. We explained the reason for this rule as follows: “When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. . . . A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” In those circumstances, we said, it is appropriate to hold the employer strictly liable.

Second, Ellerth and Faragher held that, even when a supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense.3 3We began by noting that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation.” Ellerth; Faragher. But it would go too far, we found, to make employers strictly liable whenever a “supervisor” engages in harassment that does not result in a tangible employment action, and we therefore held that in such cases the employer may raise an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. This compromise, we explained, “accommodate[s] the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as

3 THOMAS. . . Neither party in this case challenges the application of Faragher and Ellerth [both of which involved sexual harassment] to race-based hostile environment claims, and we assume that the framework announced in Faragher and Ellerth applies to cases such as this one. 42 | P a g e Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” . . .

Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a “supervisor” or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context. Some courts, including the Seventh Circuit below, have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. Other courts have substantially followed the more open-ended approach advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, *3 (hereinafter EEOC Guidance).

We granted certiorari to resolve this conflict.

III

We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance4 and substantially adopted by several courts of appeals. Petitioner’s reliance on colloquial uses of the term “supervisor” is misplaced, and her contention that our cases require the EEOC’s abstract definition is simply wrong.

As we will explain, the framework set out in Ellerth and Faragher presupposes a clear distinction between supervisors and co-workers. Those decisions contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker’s labor to some ill-defined degree. On the contrary, the Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. The approach recommended by the EEOC

4 The United States urges us to defer to the EEOC Guidance, [citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)]. But to do so would be proper only if the EEOC Guidance has the power to persuade, which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.”. For the reasons explained below, we do not find the EEOC Guidance persuasive. 43 | P a g e Guidance, by contrast, would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors.

The Ellerth/Faragher framework represents what the Court saw as a workable compromise between the aided-in-the-accomplishment theory of vicarious liability and the legitimate interests of employers. The Seventh Circuit’s understanding of the concept of a “supervisor,” with which we agree, is easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors.

Petitioner contends that her expansive understanding of the concept of a “supervisor” is supported by the meaning of the word in general usage and in other legal contexts, but this argument is both incorrect on its own terms and, in any event, misguided.

In general usage, the term “supervisor” lacks a sufficiently specific meaning to be helpful for present purposes. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another’s work. See, e.g., 17 Oxford English Dictionary 245 (2d ed. 1989) (defining the term as applying to “one who inspects and directs the work of others”). But the term is also often closely tied to the authority to take what Ellerth and Faragher referred to as a “tangible employment action.” See, e.g., Webster’s Third New International Dictionary 2296, def. 1(a) (1976) (“a person having authority delegated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to recommend such action”).

A comparison of the definitions provided by two colloquial business authorities illustrates the term’s imprecision in general usage. One says that “[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments.”5 Another says exactly the opposite: “A supervisor generally does not have the power to hire or fire employees or to promote them.”6 Compare Ellerth (“Tangible employment actions fall within the special province of the supervisor”).

If we look beyond general usage to the meaning of the term in other legal contexts, we find much the same situation. Sometimes the term is reserved for those in the upper echelons of the management hierarchy. See, e.g., 25 U.S.C. §2021(18) (defining the “supervisor” of a school within the jurisdiction of the Bureau of Indian Affairs as “the individual in the position of

5 http://www.businessdictionary.com/definition/supervisor.html (all Internet materials as visited June 21, 2013, and available in Clerk of Court’s case file). 6 http://management.about.com/od/policiesandprocedures/g/ supervisor1.html 44 | P a g e ultimate authority at a Bureau school”). But sometimes the term is used to refer to lower ranking individuals. See, e.g., 29 U.S.C. §152(11) (defining a supervisor to include “any individual having authority . . . to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment”); 42 U.S.C. §1396n(j)(4)(A) (providing that an eligible Medicaid beneficiary who receives care through an approved self-directed services plan may “hire, fire, supervise, and manage the individuals providing such services”).

Although the meaning of the concept of a supervisor varies from one legal context to another, the law often contemplates that the ability to supervise includes the ability to take tangible employment actions.7 See, e.g., 5 C.F.R. §§9701.511(a)(2), (3) (2012) (referring to a supervisor’s authority to “hire, assign, and direct employees . . . and [t]o lay off and retain employees, or to suspend, remove, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source”); §9701.212(b)(4) (defining “supervisory work” as that which “may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties”).

In sum, the term “supervisor” has varying meanings both in colloquial usage and in the law. And for this reason, petitioner’s argument, taken on its own terms, is unsuccessful.

7 One outlier that petitioner points to is the National Labor Relations Act (NLRA), 29 U.S.C. §152(11). Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates.

The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant. . .

To be sure, the NLRA may in some instances define “supervisor” more broadly than we define the term in this case. But those differences reflect the NLRA’s unique purpose, which is to preserve the balance of power between labor and management. That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that Congress has decided that the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII. The NLRA’s definition of supervisor therefore is not controlling in this context.

45 | P a g e More important, petitioner is misguided in suggesting that we should approach the question presented here as if “supervisor” were a statutory term. “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted.

In considering Ellerth and Faragher, we are met at the outset with petitioner’s contention that at least some of the alleged harassers in those cases, whom we treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. This argument misreads our decisions.

[The majority revisited the facts of both cases and in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) to conclude that the issue of the degree of authority that an employee must have in order to be classified as a supervisor was simply not before the Court.]

The dissent acknowledges that our prior cases do “not squarely resolve whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor,” but accuses us of ignoring the “all-too-plain reality” that employees with authority to control their subordinates’ daily work are aided by that authority in perpetuating a discriminatory work environment. As Ellerth recognized, however, “most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation,” and consequently “something more” is required in order to warrant vicarious liability. The ability to direct another employee’s tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments, but so are many other co-workers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions.

Although our holdings in Faragher and Ellerth do not resolve the question now before us, we believe that the answer to that question is implicit in the characteristics of the framework that we adopted.

To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim’s terms or conditions of employment. The Ellerth/Faragher framework draws a sharp line between co-workers and supervisors. Co-workers, the Court noted, 46 | P a g e “can inflict psychological injuries” by creating a hostile work environment, but they “cannot dock another’s pay, nor can one co-worker demote another.” Ellerth. Only a supervisor has the power to cause “direct economic harm” by taking a tangible employment action. “Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” (emphasis added). The strong implication of this passage is that the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.

The way in which we framed the question presented in Ellerth supports this understanding. As noted, the Ellerth/Faragher framework sets out two circumstances in which an employer may be vicariously liable for a supervisor’s harassment. The first situation (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate’s refusal to accede to sexual demands. The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken. Both Ellerth and Faragher fell into the second category, and in Ellerth, the Court couched the question at issue in the following terms: “whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” This statement plainly ties the second situation to a supervisor’s authority to inflict direct economic injury. It is because a supervisor has that authority—and its potential use hangs as a threat over the victim—that vicarious liability (subject to the affirmative defense) is justified.

Finally, the Ellerth/Faragher Court sought a framework that would be workable and would appropriately take into account the legitimate interests of employers and employees. The Court looked to principles of agency law for guidance, but the Court concluded that the “malleable terminology” of the aided-in-the-commission principle counseled against the wholesale incorporation of that principle into Title VII case law. Ellerth. Instead, the Court also considered the objectives of Title VII, including “the limitation of employer liability in certain circumstances.” Id.

The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervisor, and in others, the alleged harasser’s status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary

47 | P a g e judgment. By contrast, under the approach advocated by petitioner and the EEOC, supervisor status would very often be murky—as this case well illustrates.12

According to petitioner, the record shows that Davis, her alleged harasser, wielded enough authority to qualify as a supervisor. Petitioner points in particular to Davis’ job description, which gave her leadership responsibilities, and to evidence that Davis at times led or directed Vance and other employees in the kitchen. The United States, on the other hand, while applying the same open-ended test for supervisory status, reaches the opposite conclusion. At least on the present record, the United States tells us, Davis fails to qualify as a supervisor. Her job description, in the Government’s view, is not dispositive, and the Government adds that it would not be enough for petitioner to show that Davis “occasionally took the lead in the kitchen.”

This disagreement is hardly surprising since the EEOC’s definition of a supervisor, which both petitioner and the United States defend, is a study in ambiguity. In its Enforcement Guidance, the EEOC takes the position that an employee, in order to be classified as a supervisor, must wield authority “‘of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.’” But any authority over the work of another employee provides at least some assistance, see Ellerth, and that is not what the United States interprets the Guidance to mean. Rather, it informs us, the authority must exceed both an ill-defined temporal requirement (it must be more than “occasiona[l]”) and an ill-defined substantive requirement (“an employee who directs ‘only a limited number of tasks or assignments’ for another employee . . . would not have sufficient authority to qualify as a supervisor.”

We read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor. And if this is a correct interpretation of the EEOC’s position, what we are left with is a proposed standard of remarkable ambiguity.

The vagueness of this standard was highlighted at oral argument when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threatened to assign the plaintiff to clean the toilets in the lifeguard station for a year if she did not date him. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a- limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless, the Government attorney’s first response was that the authority to make this assignment would be enough. He later qualified that answer by saying that it would be necessary to “know how much of the day’s work [was] encompassed by cleaning the toilets.” He did not explain what percentage of the day’s work (50%, 25%, 10%?) would suffice.

12 The dissent attempts to find ambiguities in our holding, but it is indisputable that our holding is orders of magnitude clearer than the nebulous standard it would adopt. Employment discrimination cases present an almost unlimited number of factual variations, and marginal cases are inevitable under any standard. 48 | P a g e The Government attorney’s inability to provide a definitive answer to this question was the inevitable consequence of the vague standard that the Government asks us to adopt. Key components of that standard—“sufficient” authority, authority to assign more than a “limited number of tasks,” and authority that is exercised more than “occasionally”—have no clear meaning. Applying these standards would present daunting problems for the lower federal courts and for juries.

Under the definition of “supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is relatively straightforward.

The alternative approach advocated by petitioner and the United States would make matters far more complicated and difficult. The complexity of the standard they favor would impede the resolution of the issue before trial. With the issue still open when trial commences, the parties would be compelled to present evidence and argument on supervisor status, the affirmative defense, and the question of negligence, and the jury would have to grapple with all those issues as well. In addition, it would often be necessary for the jury to be instructed about two very different paths of analysis, i.e., what to do if the alleged harasser was found to be a supervisor and what to do if the alleged harasser was found to be merely a co-worker.

Courts and commentators alike have opined on the need for reasonably clear jury instructions in employment discrimination cases.13 And the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under 13 [Court citations omitted]. Tymkovich, The Problem with Pretext, 85 Denver Univ. L. Rev. 503, 527-529 (2008) (discussing the potential for jury confusion that arises when instructions are unduly complex and proposing a simpler framework); Grebeldinger, Instructing the Jury in a Case of Circumstantial Individual Disparate Treatment: Thoroughness or Simplicity? 12 Lab. Law. 399, 419 (1997) (concluding that more straightforward instructions “provid[e] the jury with clearer guidance of their mission”); Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 Brook. L. Rev. 703, 742-743 (1995) (discussing potential for juror confusion in the face of complex instructions); Note, Toward a Motivating Factor Test for Individual Disparate Treatment Claims, 100 Mich. L. Rev. 234, 262-273 (2001) (discussing the need for a simpler approach to jury instructions in employment discrimination cases 49 | P a g e which different parties bear the burden of proof.14 By simplifying the process of determining who is a supervisor (and by extension, which liability rules apply to a given set of facts), the approach that we take will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts.

Contrary to the dissent’s suggestions, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly, and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here.

The dissent argues that the definition of a supervisor that we now adopt is out of touch with the realities of the workplace, where individuals with the power to assign daily tasks are often regarded by other employees as supervisors. But in reality it is the alternative that is out of touch. Particularly in modern organizations that have abandoned a highly hierarchical management structure, it is common for employees to have overlapping authority with respect to the assignment of work tasks. Members of a team may each have the responsibility for taking the lead with respect to a particular aspect of the work and thus may have the responsibility to direct each other in that area of responsibility.

Finally, petitioner argues that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions. But a broad definition of “supervisor” is not necessary to guard against this concern.

As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all

14 Cf. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 Boston College L. Rev. 279, 330-334 (2010) (arguing that unnecessary confusion arises when a jury must resolve different claims under different burden frameworks); Monahan, Cabrera v. Jakabovitz—A Common-Sense Proposal for Formulating Jury Instructions Regarding Shifting Burdens of Proof in Disparate Treatment Discrimination Cases, 5 Geo. Mason U. C. R. L. J. 55, 76 (1994) (“Any jury instruction that attempts to shift the burden of persuasion on closely related issues is never likely to be successful”). 50 | P a g e decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth.

Importuning Congress, the dissent suggests that the standard we adopt today would cause the plaintiffs to lose in a handful of cases involving shocking allegations of harassment. However, the dissent does not mention why the plaintiffs would lose in those cases. It is not clear in any of those examples that the legal outcome hinges on the definition of “supervisor.” For example, Clara Whitten ultimately did not prevail on her discrimination claims—notwithstanding the fact that the Fourth Circuit adopted the approach advocated by the dissent, see Whitten v. Fred’s, Inc ., 601 F.3d 231, 243-247 (2010)—because the District Court subsequently dismissed her claims for lack of jurisdiction. And although the dissent suggests that Donna Rhodes’ employer would have been liable under the dissent’s definition of “supervisor,” that is pure speculation: It is not clear that Rhodes suffered any tangible employment action, see Rhodes v. Illinois Dept. of Transp ., 243 F. Supp. 2d 810, 817 (ND Ill. 2003), and no court had occasion to determine whether the employer could have established the affirmative defense (a prospect that is certainly feasible given that there was evidence that the employer had an “adequate anti-harassment policy in place,” that the employer promptly addressed the incidents about which Rhodes complained, and that “Rhodes failed to take advantage of the preventative or corrective opportunities provided.”15 Finally, the dissent’s reliance on Monika Starke’s case is perplexing given that the EEOC ultimately did obtain relief (in the amount of $50,000) for the harassment of Starke,16 notwithstanding the fact that the court in that case applied the definition of “supervisor” that we adopt today, see EEOC v. CRST Van Expedited, Inc ., 679 F.3d 657, 684 (CA8 2012).

In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent

15 Similarly, it is unclear whether Yasharay Mack ultimately would have prevailed even under the dissent’s definition of “supervisor.” The Second Circuit (adopting a definition similar to that advocated by the dissent) remanded the case for the District Court to determine whether Mack “‘unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.’” Mack v. Otis Elevator Co., 326 F.3d 116, 127-128 (2003) . But before it had an opportunity to make any such determination, Mack withdrew her complaint and the District Court dismissed her claims with prejudice. 16 Starke herself lacked standing to pursue her claims, but the Eighth Circuit held that the EEOC could sue in its own name to remedy the sexual harassment against Starke and other CRST employees, see 51 | P a g e harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ.

The standard we adopt is not untested. It has been the law for quite some time in the First, Seventh, and Eighth Circuits, i.e., in Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, and Wisconsin. We are aware of no evidence that this rule has produced dire consequences in these 14 jurisdictions.

Despite its rhetoric, the dissent acknowledges that Davis, the alleged harasser in this case, would probably not qualify as a supervisor even under the dissent’s preferred approach. On that point, we agree. Petitioner did refer to Davis as a “supervisor” in some of the complaints that she filed, and Davis’ job description does state that she supervises Kitchen Assistants and Substitutes and “[l]ead[s] and direct[s]” certain other employees. But under the dissent’s preferred approach, supervisor status hinges not on formal job titles or “paper descriptions” but on “specific facts about the working relationship.”

Turning to the “specific facts” of petitioner’s and Davis’ working relationship, there is simply no evidence that Davis directed petitioner’s day-to-day activities. The record indicates that Bill Kimes (the general manager of the Catering Division) and the chef assigned petitioner’s daily tasks, which were given to her on “prep lists.” The fact that Davis sometimes may have handed prep lists to petitioner is insufficient to confer supervisor status (EEOC Guidance). And Kimes— not Davis—set petitioner’s work schedule.

Because the dissent concedes that our approach in this case deprives petitioner of none of the protections that Title VII offers, the dissent’s critique is based on nothing more than a hypothesis as to how our approach might affect the outcomes of other cases—cases where an employee who cannot take tangible employment actions, but who does direct the victim’s daily work activities in a meaningful way, creates an unlawful hostile environment, and yet does not wield authority of such a degree and nature that the employer can be deemed negligent with respect to the harassment. We are skeptical that there are a great number of such cases. However, we are confident that, in every case, the approach we take today will be more easily administrable than the approach advocated by the dissent.

*** We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the

52 | P a g e victim. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed. . . .

JUSTICE THOMAS, concurring.

I continue to believe that Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton were wrongly decided. However, I join the opinion because it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee’s harassment.

JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

In line with [Faragher and Ellerth], in 1999, the Equal Employment Opportunity Commission (EEOC) provided enforcement guidance “regarding employer liability for harassment by supervisors based on sex, race, color, religion, national origin, age, disability, or protected activity.” EEOC, Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, 8 BNA FEP Manual 405:7651 (Feb. 2003) (hereinafter EEOC Guidance). Addressing who qualifies as a supervisor, the EEOC answered: (1) an individual authorized “to undertake or recommend tangible employment decisions affecting the employee,” including “hiring, firing, promoting, demoting, and reassigning the employee”; or (2) an individual authorized “to direct the employee’s daily work activities.” Id., at 405:7654.

The Court today strikes from the supervisory category employees who control the day-today schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces. I would follow the EEOC’s Guidance and hold that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.

[The dissent summarized the employer liability structure of Harris v. Forklift Systems, Inc., §219(2)(d) of the Restatement (Second) of Agency, Faragher and Ellerth and then wrote that the ]distinction Faragher and Ellerth drew between supervisors and co-workers corresponds to the realities of the workplace. Exposed to a fellow employee’s harassment, one can walk away or tell the offender to “buzz off.” A supervisor’s slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an 53 | P a g e excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose “power and authority invests his or her harassing conduct with a particular threatening character.” Ellerth. See also Faragher. In short, as Faragher and Ellerth recognized, harassment by supervisors is more likely to cause palpable harm and to persist unabated than similar conduct by fellow employees.

While Faragher and Ellerth differentiated harassment by supervisors from harassment by co-workers, neither decision gave a definitive answer to the question: Who qualifies as a supervisor? Two views have emerged. One view, in line with the EEOC’s Guidance, counts as a supervisor anyone with authority to take tangible employment actions or to direct an employee’s daily work activities. The other view ranks as supervisors only those authorized to take tangible employment actions.

[The view] taken by the Court today is out of accord with the agency principles that, Faragher and Ellerth affirmed, govern Title VII. It is blind to the realities of the workplace, and it discounts the guidance of the EEOC, the agency Congress established to interpret, and superintend the enforcement of, Title VII. Under that guidance, the appropriate question is: Has the employer given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.

Until today, our decisions have assumed that employees who direct subordinates’ daily work are supervisors. [The dissent reviewed the facts in Faragher, and noted that at least one of the harassers, David Silverman, would not be a supervisor under the Court’s definition. “Silverman had oversight and assignment responsibilities—he could punish lifeguards who would not date him with full-time toilet-cleaning duty—but there was no evidence that he had authority to take tangible employment actions.” Similarly, in Pennsylvania State Police v. Suders, the harassing employees “lacked authority to discharge or demote the complainant, but they were ‘responsible for the day-to-day supervision’ of the workplace and for overseeing employee shifts.” While none of these cases “squarely resolve[d] whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor,” the majority’s “misses the forest for the trees” in parsing the authority of the harassers: what mattered was that the abuse of power vested in them as agents to harass.]

B 54 | P a g e Workplace realities fortify my conclusion that harassment by an employee with power to direct subordinates’ day-to-day work activities should trigger vicarious employer liability. The following illustrations, none of them hypothetical, involve in-charge employees of the kind the Court today excludes from supervisory status.2

Yasharay Mack: Yasharay Mack, an African-American woman, worked for the Otis Elevator Company as an elevator mechanic’s helper at the Metropolitan Life Building in New York City. James Connolly, the “mechanic in charge” and the senior employee at the site, targeted Mack for abuse. He commented frequently on her “fantastic ass,” “luscious lips,” and “beautiful eyes,” and, using deplorable racial epithets, opined that minorities and women did not “belong in the business.” Once, he pulled her on his lap, touched her buttocks, and tried to kiss her while others looked on. Connolly lacked authority to take tangible employment actions against mechanic’s helpers, but he did assign their work, control their schedules, and direct the particulars of their workdays. When he became angry with Mack, for example, he denied her overtime hours. And when she complained about the mistreatment, he scoffed, “I get away with everything.” [Mack v. Otis Elevator Co. , 326 F.3d 116, 127 (CA2 2003)]

Donna Rhodes: Donna Rhodes, a seasonal highway maintainer for the Illinois Department of Transportation, was responsible for plowing snow during winter months. Michael Poladian was a “Lead Lead Worker” and Matt Mara, a “Technician” at the maintenance yard where Rhodes worked. Both men assembled plow crews and managed the work assignments of employees in Rhodes’s position, but neither had authority to hire, fire, promote, demote, transfer, or discipline employees. In her third season working at the yard, Rhodes was verbally assaulted with sex-based invectives and a pornographic image was taped to her locker. Poladian forced her to wash her truck in sub-zero temperatures, assigned her undesirable yard work instead of road crew work, and prohibited another employee from fixing the malfunctioning heating system in her truck. Conceding that Rhodes had been subjected to a sex-based hostile work environment, the Department of Transportation argued successfully in the District Court and Court of Appeals that Poladian and Mara were not Rhodes’s supervisors because they lacked authority to take tangible employment actions against her. See Rhodes v. Illinois Dept. of Transp ., 359 F.3d 498, 501-503, 506-507 (CA7 2004).

Clara Whitten: Clara Whitten worked at a discount retail store in Belton, South Carolina. On Whitten’s first day of work, the manager, Matt Green, told her to “give [him] what [he] want[ed]” in order to obtain approval for long weekends off from work. Later, fearing what might transpire, Whitten ignored Green’s order to join him in an isolated storeroom. Angered, Green instructed Whitten to stay late and clean the store. He demanded that she work over the weekend

2 The illustrative cases reached the appellate level after grants of summary judgment in favor of the employer. Like the Courts of Appeals in each case, I recount the facts in the light most favorable to the employee, the nonmoving party. 55 | P a g e despite her scheduled day off. Dismissing her as “dumb and stupid,” Green threatened to make her life a “living hell.” Green lacked authority to fire, promote, demote, or otherwise make decisions affecting Whitten’s pocketbook. But he directed her activities, gave her tasks to accomplish, burdened her with undesirable work assignments, and controlled her schedule. He was usually the highest ranking employee in the store, and both Whitten and Green considered him the supervisor. [Whitten v. Fred’s, Inc., 601 F.3d 231, 245-247 (CA4 2010)].

Monika Starke: CRST Van Expedited, Inc., an interstate transit company, ran a training program for newly hired truckdrivers requiring a 28-day on-the-road trip. Monika Starke participated in the program. Trainees like Starke were paired in a truck cabin with a single “lead driver” who lacked authority to hire, fire, promote, or demote, but who exercised control over the work environment for the duration of the trip. Lead drivers were responsible for providing instruction on CRST’s driving method, assigning specific tasks, and scheduling rest stops. At the end of the trip, lead drivers evaluated trainees’ performance with a nonbinding pass or fail recommendation that could lead to full driver status. Over the course of Starke’s training trip, her first lead driver, Bob Smith, filled the cabin with vulgar sexual remarks, commenting on her breast size and comparing the gear stick to genitalia. A second lead driver, David Goodman, later forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade. See EEOC v. CRST Van Expedited, Inc. , 679 F.3d 657 (CA8 2012).

In each of these cases, a person vested with authority to control the conditions of a subordinate’s daily work life used his position to aid his harassment. But in none of them would the Court’s severely confined definition of supervisor yield vicarious liability for the employer. The senior elevator mechanic in charge, the Court today tells us, was Mack’s co-worker, not her supervisor. So was the store manager who punished Whitten with long hours for refusing to give him what he wanted. So were the lead drivers who controlled all aspects of Starke’s working environment, and the yard worker who kept other employees from helping Rhodes to control the heat in her truck.

As anyone with work experience would immediately grasp, James Connolly, Michael Poladian, Matt Mara, Matt Green, Bob Smith, and David Goodman wielded employer-conferred supervisory authority over their victims. Each man’s discriminatory harassment derived force from, and was facilitated by, the control reins he held. Cf. Burlington N. & S. F. R. Co. v. White , 548 U.S. 53(2006) (“Common sense suggests that one good way to discourage an employee . . . from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable.”). Under any fair reading of Title VII, in each of the illustrative cases, the superior employee should have been classified a supervisor whose conduct would trigger vicarious liability.3

3 The Court misses the point of the illustrations. Even under a vicarious liability rule, the Court points out, employers might escape liability for reasons other than the harasser’s status as supervisor. For example, Rhodes might have avoided summary judgment in favor of her employer; even so, it would have been open to the employer 56 | P a g e C

Within a year after the Court’s decisions in Faragher and Ellerth, the EEOC defined “supervisor” to include any employee with “authority to undertake or recommend tangible employment decisions,” or with “authority to direct [another] employee’s daily work activities.” EEOC Guidance 405:7654. [The dissent argued in favor of “Skidmore deference,” which had been accorded other EEOC interpretations.]

In developing its definition of supervisor, the EEOC paid close attention to the Faragher and Ellerth framework. An employer is vicariously liable only when the authority it has delegated enables actionable harassment, the EEOC recognized. EEOC Guidance 405:7654. For that reason, a supervisor’s authority must be “of a sufficient magnitude so as to assist the harasser . . . in carrying out the harassment.” Determining whether an employee wields sufficient authority is not a mechanical inquiry, the EEOC explained; instead, specific facts about the employee’s job function are critical. Thus, an employee with authority to increase another’s workload or assign undesirable tasks may rank as a supervisor, for those powers can enable harassment. On the other hand, an employee “who directs only a limited number of tasks or assignments” ordinarily would not qualify as a supervisor, for her harassing conduct is not likely to be aided materially by the agency relationship.

In my view, the EEOC’s definition, which the Court puts down as “a study in ambiguity,” has the ring of truth and, therefore, powerfully persuasive force. As a precondition to vicarious employer liability, the EEOC explained, the harassing supervisor must wield authority of sufficient magnitude to enable the harassment. In other words, the aided-in-accomplishment standard requires “something more than the employment relation itself.” Ellerth. Furthermore, as the EEOC perceived, in assessing an employee’s qualification as a supervisor, context is often key. I would accord the agency’s judgment due respect.

III

Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again

to raise and prove to a jury the Faragher/ Ellerth affirmative defense. No doubt other barriers also might impede an employee from prevailing, for example, Whitten’s and Starke’s intervening bankruptcies, or Mack’s withdrawal of her complaint for reasons not apparent from the record. That, however, is no reason to restrict the definition of supervisor in a way that leaves out those genuinely in charge. 57 | P a g e shuts from sight the “robust protection against workplace discrimination Congress intended Title VII to secure.”

The Court purports to rely on the Ellerth and Faragher framework to limit supervisor status to those capable of taking tangible employment actions. That framework, we are told, presupposes “a sharp line between co-workers and supervisors.” The definition of supervisor decreed today, the Court insists, is “clear,” “readily applied,” and “easily workable,” when compared to the EEOC’s vague standard.

There is reason to doubt just how “clear” and “workable” the Court’s definition is. A supervisor, the Court holds, is someone empowered to “take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Whether reassignment authority makes someone a supervisor might depend on whether the reassignment carries economic consequences. The power to discipline other employees, when the discipline has economic consequences, might count, too. So might the power to initiate or make recommendations about tangible employment actions. And when an employer “concentrates all decisionmaking authority in a few individuals” who rely on information from “other workers who actually interact with the affected employee,” the other workers may rank as supervisors (or maybe not; the Court does not commit one way or the other).

Someone in search of a bright line might well ask, what counts as “significantly different responsibilities”? Can any economic consequence make a reassignment or disciplinary action “significant,” or is there a minimum threshold? How concentrated must the decisionmaking authority be to deem those not formally endowed with that authority nevertheless “supervisors”? The Court leaves these questions unanswered, and its liberal use of “mights” and “mays,” dims the light it casts.5

That the Court has adopted a standard, rather than a clear rule, is not surprising, for no crisp definition of supervisor could supply the unwavering line the Court desires. Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the

5 Even the Seventh Circuit, whose definition of supervisor the Court adopts in large measure, has candidly acknowledged that, under its definition, supervisor status is not a clear and certain thing. See Doe v. Oberweis Dairy, 456 F.3d 704, 717 (2006) (“The difficulty of classification in this case arises from the fact that Nayman, the shift supervisor, was in between the paradigmatic classes [of supervisor and co-worker]. He had supervisory responsibility in the sense of authority to direct the work of the [ice-cream] scoopers, and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor.”). 58 | P a g e firm’s paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim. That is why Faragher and Ellerth crafted an employer liability standard embracive of all whose authority significantly aids in the creation and perpetuation of harassment.

The Court’s focus on finding a definition of supervisor capable of instant application is at odds with the Court’s ordinary emphasis on the importance of particular circumstances in Title VII cases.6 . . . The EEOC’s Guidance so perceives.

As a consequence of the Court’s truncated conception of supervisory authority, the Faragher and Ellerth framework has shifted in a decidedly employer-friendly direction. This realignment will leave many harassment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment.

The negligence standard allowed by the Court scarcely affords the protection the Faragher and Ellerth framework gave victims harassed by those in control of their lives at work. Recall that an employer is negligent with regard to harassment only if it knew or should have known of the conduct but failed to take appropriate corrective action. See 29 C.F.R. §1604.11(d); EEOC Guidance 405:7652 to 405:7653. It is not uncommon for employers to lack actual or constructive notice of a harassing employee’s conduct. See Lindemann & Grossman [Employment Discrimination Law (4th ed. 2007)]. An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability under a negligence standard.

Faragher is illustrative. After enduring unrelenting harassment, Faragher reported Terry’s and Silverman’s conduct informally to Robert Gordon, another immediate supervisor. But the lifeguards were “completely isolated from the City’s higher management,” and it did not occur to Faragher to pursue the matter with higher ranking city officials distant from the beach. Applying a negligence standard, the Eleventh Circuit held that, despite the pervasiveness of the harassment, and despite Gordon’s awareness of it, Boca Raton lacked constructive notice and therefore escaped liability. Under the vicarious liability standard, however, Boca Raton could not make out the affirmative defense, for it had failed to disseminate a policy against sexual harassment.

6 The Court worries that the EEOC’s definition of supervisor will confound jurors who must first determine whether the harasser is a supervisor and second apply the correct employer liability standard. But the Court can point to no evidence that jury instructions on supervisor status in jurisdictions following the EEOC Guidance have in fact proved unworkable or confusing to jurors. Moreover, under the Court’s definition of supervisor, jurors in many cases will be obliged to determine, as a threshold question, whether the alleged harasser possessed supervisory authority. 59 | P a g e On top of the substantive differences in the negligence and vicarious liability standards, harassment victims, under today’s decision, are saddled with the burden of proving the employer’s negligence whenever the harasser lacks the power to take tangible employment actions. Faragher and Ellerth, by contrast, placed the burden squarely on the employer to make out the affirmative defense. This allocation of the burden was both sensible and deliberate: An employer has superior access to evidence bearing on whether it acted reasonably to prevent or correct harassing behavior, and superior resources to marshal that evidence.

Faced with a steeper substantive and procedural hill to climb, victims like Yasharay Mack, Donna Rhodes, Clara Whitten, and Monika Starke likely will find it impossible to obtain redress. We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor.

Inevitably, the Court’s definition of supervisor will hinder efforts to stamp out discrimination in the workplace. Because supervisors are comparatively few, and employees are many, “the employer has a greater opportunity to guard against misconduct by supervisors than by common workers,” and a greater incentive to “screen [supervisors], train them, and monitor their performance.” Faragher. Vicarious liability for employers serves this end. When employers know they will be answerable for the injuries a harassing jobsite boss inflicts, their incentive to provide preventative instruction is heightened. If vicarious liability is confined to supervisors formally empowered to take tangible employment actions, however, employers will have a diminished incentive to train those who control their subordinates’ work activities and schedules, i.e., the supervisors who “actually interact” with employees.

I turn now to the case before us. Maetta Vance worked as substitute server and part-time catering assistant for Ball State University’s Banquet and Catering Division. During the period in question, she alleged, Saundra Davis, a catering specialist, and other Ball State employees subjected her to a racially hostile work environment. Applying controlling Circuit precedent, the District Court and Seventh Circuit concluded that Davis was not Vance’s supervisor, and reviewed Ball State’s liability for her conduct under a negligence standard. Because I would hold that the Seventh Circuit erred in restricting supervisor status to employees formally empowered to take tangible employment actions, I would remand for application of the proper standard to Vance’s claim. On this record, however, there is cause to anticipate that Davis would not qualify as Vance’s supervisor.

60 | P a g e Supervisor status is based on “job function rather than job title,” and depends on “specific facts” about the working relationship. EEOC Guidance 405:7654. Vance has adduced scant evidence that Davis controlled the conditions of her daily work. Vance stated in an affidavit that the general manager of the Catering Division, Bill Kimes, was charged with “overall supervision in the kitchen,” including “reassign[ing] people to perform different tasks,” and “control[ling] the schedule.” The chef, Shannon Fultz, assigned tasks by preparing “prep lists” of daily duties. There is no allegation that Davis had a hand in creating these prep lists, nor is there any indication that, in fact, Davis otherwise controlled the particulars of Vance’s workday. Vance herself testified that she did not know whether Davis was her supervisor.

True, Davis’ job description listed among her responsibilities “[l]ead[ing] and direct[ing] kitchen part-time, substitute, and student employee helpers via demonstration, coaching, and overseeing their work.” And another employee testified to believing that Davis was “a supervisor.” But because the supervisor-status inquiry should focus on substance, not labels or paper descriptions, it is doubtful that this slim evidence would enable Vance to survive a motion for summary judgment. Nevertheless, I would leave it to the Seventh Circuit to decide, under the proper standard for supervisory status, what impact, if any, Davis’ job description and the co- worker’s statement should have on the determination of Davis’ status.9

Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.

Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today. . . .

NOTES

1. Fewer Supervisors = More Negligence Claims. The majority’s narrow definition of “supervisor” means that far fewer cases will trigger the strict or presumptive employer liability structure of Faragher/Ellerth. See McCafferty v. Preiss Enterprises, Inc., 12-8039, 2013 WL

9 The Court agrees that Davis “would probably not qualify” as Vance’s supervisor under the EEOC’s definition. Then why, one might ask, does the Court nevertheless reach out to announce its restrictive standard in this case, one in which all parties, including the defendant-employer, accept the fitness for Title VII of the EEOC’s Guidance? 61 | P a g e 4055480 (10th Cir. Aug. 13, 2013) (a person without the power to hire, fire, promote, demote, or transfer employees was not supervisor despite authority to direct the day-to-day assignments of crew members and ability to ask employees to cover an extra shift, stay beyond a scheduled shift, or send an employee home early since these actions do not constitute “a significant change in benefits.”). Instead, most harassment cases will proceed as negligence claims, which means that the employee has the burden of proving the employer knew (or should have known) or the harassment and failed to respond reasonably. See Samuel R. Bagenstos, Formalism and Employer Liability Under Title VII, SSRN (Vance is the first Supreme Court decision to directly hold that negligence liability governs if no “supervisor’s” action is at issue). See also Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 867 (7th Cir. 2013) (while “yard leads” were not supervisors whose conduct might directly be attributable to the company, they may have had sufficient authority to report claimed harassment to those who could take action and, therefore, failure of the employer to act after such reports may subject it to liability for negligence in dealing with co- worker harassment). Effectively, that eliminates strict liability and shifts the burden of proof from the employer to establish an affirmative defense to the employee to establish both elements of her claim.

Why does “[n]egligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions”? At one point, the majority seems to argue that its decision will have little effect in the real world because negligence liability because “victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.” Further, while the EEOC’s test is too vague to support the Faragher/Ellerth structure of strict or presumptive liability, these “present[] no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here.”

If the court or jury is going to weigh all the same factors under either approach, what’s the point of the restrictive definition of supervisor? Is shifting the burden of persuasion from employer to employee really so important?

2. Delegating Decision-Making. In response to the argument that an employer might try to “isolate itself from heightened liability under Faragher and Ellerth” by limiting decisionmaking power to a small number of individuals, Justice Alito noted that “those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.” This echoes possibilities raised in Staub v. Proctor Hospital, reproduced at p. 54, but does it also suggest that 62 | P a g e the bright line the Court drew isn’t so bright after all? Presumably, the point is that there are supervisors in practice who are not supervisors on paper.

3. Workability. If there is a single theme to the majority’s opinion in Vance it is that its approach is workable and the dissent’s (and EEOC’s) not. But note Justice Ginsburg’s critique:

In other words, while the majority tried to narrow the definition of supervisor, there remains much room for dispute in the test it adopted. Both the majority and the dissent criticize each other’s tests for vagueness. Is there a simpler way to approach the liability question? See Samuel R. Bagenstos, Formalism and Employer Liability Under Title VII, SSRN (urging Congress not merely to change the definition of supervisor, as Justice Ginsburg urged in Vance, but to make employers liable for any severe or pervasive harassment in the workplace)

Page 383, add at end of first paragraph of carryover Note 4. Tangible Employment Actions:

But see Crockett v. Mission Hosp., Inc., 717 F.3d 348 (4th Cir. 2013) (seven-day suspension without pay not necessarily a tangible employment action when plaintiff presented no proof that she did not have paid time off available to cover the loss).

Page 394, add after Green cite in carryover paragraph of Note 4, Prong 1(b): Reasonable Steps to Correct Harassment:

But even lesser discipline will suffice. See Williams-Boldware v. Denton County, 2014 U.S. App. LEXIS 2044, 13-16 (5th Cir. Jan. 31, 2014) (where complaints did not “involve a protracted outpouring of racially invidious harassment that required large-scale institutional reform,” the employer was required only to implement prompt remedial measures to prevent further racial harassment of plaintiff, which it promptly did by investigating, reprimanding the harasser, requiring him to undergo training, and ensuring that plaintiff was not supervised by the harasser’s wife, all of which resulted in no further harassment)

Page 395, add before Taylor cite in second full paragraph:

Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642 (10th Cir. 2013) (plaintiff’s Facebook post describing her supervisor as a "snake" who "needs to keep his creepy hands to

63 | P a g e himself," falls short of a complaint of harassment to her employer; it “was not in accordance with Mercy's otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy; further, when it was brought to the employer’s attention, plaintiff “thrice denied authoring the post.”);

Page 398, add in second full paragraph before “This is the approach”:

See also Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013) (although a university had an obligation to control the harassing behavior of its football players, once it was informed about their conduct towards a female team manager, it met its obligations by having its coaches address inappropriate behavior when it occurred, including removing an offender from the football team).

D. Discrimination on Account of Religion

Page 406, add at end of carryover Note 2. Knowledge:

A similar problem arises with respect to the duty to accommodate. Two recent contrasting opinions indicate the issue. In Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450-51 (7th Cir. 2013), the court held, that, even though plaintiff’s religious beliefs and practices were not as familiar as others closer to the modern American mainstream, plaintiff’s request for leave to attend his father’s funeral gave sufficient notice of the religious nature of the request when it referred to a “funeral ceremony,” a “funeral rite,” and animal sacrifice and described his participation as “compulsory” and that the spiritual consequence of his absence would be his own and family members' deaths. In contrast, EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013), held an employer entitled to summary judgment because an applicant “never informed it prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie's clothing policy”; even if the court adopted a broader view of “notice,” an employer need not guess or surmise from the circumstances that a particular practice is based on religion and that the plaintiff requires an accommodation for it.

Page 407, add before last sentence of Note 5, Sincerity:

See also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 451-52 (7th Cir. 2013) (although a son desire to attend his father’s funeral merely out of filial duty would not be entitled to accommodation, plaintiff’s evidence was sufficient to show his desire to participate stemmed

64 | P a g e from his own personally and sincerely held religious beliefs; an analysis of plaintiff’s sincerity, “does not require a deep analysis of his conscious and/or subconscious reasons or motives for holding his beliefs.”).

Page 407, add at end of Note 5, Sincerity:

See Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013) (despite efforts to show that a slightly shorter blade length would satisfy plaintiff’s religious requirement, there was ample evidence to create a genuine issue of material fact on the sincerity of Tagore's practice of wearing a kirpan with a 3–inch blade).

Page 409, add before EEOC v. Geo Group cite in last paragraph:

Tagore v. United States, 735 F.3d 324, 329-30 (5th Cir. 2013) (a Sikh fired because her kirpan violated federal office security rules and thus prevented her from entering her IRS workplace had no Title VII claim because (1) security rules were enforced by other federal agencies, not the IRS, which therefore “cannot be deemed legally responsible for discriminating” against plaintiff when that would require violating federal law; and (2) the accommodations that plaintiff proposed to allow her to continue to wear her kirpan – wearing a dulled kirpan, working from her home; or working at other federal buildings that might have fewer security requirements -- would impose more than “de minimis” costs on the employer, as by requiring security personnel to inspect the blade);

Page 409, add in last line after closed parenthesis:

But see Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455-56 (7th Cir. 2013) (employer failed to show that allowing worker to take several weeks of unpaid leave would have caused it an undue hardship when a jury could find that it expected high turnover of workers in the relevant job categories without compromising quality or productivity; the court rejected a reading of Hardison that would result in “any inconvenience or disruption, no matter how small” excusing a failure to accommodate); Antoine v. First Student, Inc., 713 F.3d 824 (5th Cir. 2013) (finding genuine issues of material fact whether defendant reasonably accommodated plaintiff’s religious- based inability to work on his Sabbath when there was conflicting testimony whether the employer offered to try to arrange a voluntary shift swap and whether the employer attempted to negotiate reach a "side agreement" with the local union that would have permitted a voluntary shift swap under the collective bargaining agreement).

Page 417, add after Id. cite after extract:

65 | P a g e See also Ockletree v. Franciscan Health Sys., 2014 Wash. LEXIS 76, 57 (Wash. Feb. 6, 2014) (exemption from the state antidiscrimination law for religious nonprofits was constitutional under both the federal and Washington constitutions).

Page 428, add at end of Note 3, Who’s A Minister?:

In the wake of Hosanna Tabor, the Sixth Circuit in Cannata v. Catholic Diocese of Austin, 700 F.3d 169 (5th Cir. 2012), held that, although plaintiff was neither ordained nor formally trained in religion, his role as Music Director in charge of the music in the church’s liturgy and his playing the piano at Mass brought him within the ministerial exception.

Page 429, add before Potter cite in second paragraph of Note 5, The Religious Freedom Restoration Act:

Tagore v. United States, 735 F.3d 324, 330-32 (5th Cir. 2013) (although rejecting plaintiff’s Title VII claim, remanding for a reconsideration of her RFRA claim: although the government has a compelling interest in protecting federal buildings, the claimed need for uniformity of security rules may not satisfy the “least restrictive means” test for strict scrutiny in light of changes in policy that created numerous exceptions to the general rule);

Page 429, add at the end of Note 5, The Religious Freedom Restoration Act:

RFRA has recently been invoked by employers seeking to avoid the provisions of the Affordable Care Act and its implementing regulations, which require payment of either a tax or provision to employees of health care insurance, including contraceptives. The Supreme Court has granted certiorari in two cases raising RFRA challenges, both of which involve for-profit corporations and therefore pose a threshold issue of whether such entities have standing to seek RFRA’s protections. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, (10th Cir.2013) (en banc), cert. granted, 134 S. Ct. 678 (2013); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir.2013), cert. granted, 134 S. Ct. 678 (2013). A number of other cases are percolating in the lower courts raising similar RFRA issues as well as a variety of constitutional claims but unaffected by the for-profit standing question. E.g., Priests for Life v. United States Dep't of Health & Human Servs., CV 13-1261 (EGS), 2013 WL 6672400 (D.D.C. Dec. 19, 2013).

E. National Origin and Alienage Discrimination

F. Union Liability

Page 449, add at end of second full paragraph:

66 | P a g e Green v. AFT / Ill. Fedn. of Teachers Local 604, 740 F.3d 1104 (7th Cir. 2014) (regardless of the absence of any duty of fair representation for state employees, failure of union to process black plaintiff’s grievance or represent him in legal proceedings grievance when it would have done so were he white would violate Title VII).

G. Age Discrimination

Page 451, add before Kannady cite:

Sadie v. City of Cleveland, 718 F.3d 596, 601 (6th Cir. 2013) (joining other circuits in rejecting interpreting “subterfuge” to “nullify the exemption for the mandatory retirement of police and fire officers. . . . The Act allows state and local governments to terminate police and fire officers on the basis of their age pursuant to mandatory-retirement”);

67 | P a g e Chapter 6 Retaliation

Page 454, add at end of third sentence in first full paragraph:

See Rodríguez-Vives v. P.R. Firefighters Corps of P.R., 2014 U.S. App. LEXIS 2894, 11-12 (1st Cir. Feb. 18, 2014) (a prior suit challenging sex discrimination under the Equal Protection Clause constitutes protected activity within the opposition clause of Title VII).

Page 457, add before Hatmaker cite in Note 1, Broader Protection Under the Participation Clause:

Benes v. A.B. Data, Ltd., 724 F.3d 752, 753 (7th Cir. 2013) (misconduct during mediation of a discrimination claim is a legitimate reason for discharging an employee; in addition, the threat of discharge for barging into employer's room during EEOC-sponsored mediation of his sex discrimination claim and told employer to take its proposal and "shove it up your ass would not deter a reasonable employee from engaging in protected conduct), discussed by Charles A. Sullivan, Taking Civility Too Far in http://lawprofessors.typepad.com/laborprof_blog/2013/08/taking-civility-too-far.html;

Page 458, add after Crawford cite in Note 2, Participation Conduct or Opposition Conduct?:

See also Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1032 (8th Cir. 2013) (“someone who has substantiated a complaint of a civil rights violation has demonstrated opposition to that violation and acted to vindicate the rights of minorities. Such an individual should therefore receive the same protection against retaliation as the person who filed the original complaint. If employees who give evidence or respond to questions during internal inquiries into alleged discrimination are not protected from retaliation, it would impede any internal efforts to address discrimination.”).

Page 458, add at end of Note 2, Participation Conduct or Opposition Conduct?:

See generally Deborah L. Brake, Retaliation in an EEO World, 89 INDIANA L. J. 115 (2014) (by deciding Crawford under the opposition clause rather than the participation clause, the Court left witnesses still subject to the requirement that their answers reflect a reasonable belief in illegality).

Page 467, add at end of Note 2, Restricting Standing to Those Within the Zone of Interests:

68 | P a g e In Underwood v. Dep't of Fin. Servs. Fla., 518 F. App’x 637 (11th Cir. 2013), the court recognized that Thompson bars employers from retaliating against such employees by firing someone with whom the employee has a close personal relationship, but nevertheless held that Title VII does not make it unlawful for an employer to retaliate against one of its own employees, who did not engage in protected conduct, because that employee's spouse, who was a non- employee, filed a discrimination charge against a different employer.

Page 459, add after Brush citation: , cert. denied, 133 S. Ct. 981 (2013).

Page 469, add at end of last full paragraph:

Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10 (2d Cir. 2013) (plaintiff’s complaints about "paramour preference" did not suggest that she was being discriminated against because of her sex despite the accusations of "sexual favoritism" and the continual repetition of the words "discrimination" and "harassment").

Page 469, add at end of carryover:

Deborah L. Brake, Retaliation in an EEO World, 89 INDIANA L. J. 115 (2014) (the confluence of broader nondiscrimination corporate policies with the requirement that complaints be aimed at what is reasonable viewed to be illegal discrimination puts employees at risk who might reasonably believe there is a violation of a policy but not reasonably believe a violation of a statute; these include not only complaints about: harassment not reasonably believed to be severe or pervasive; about lack of affirmative action; and about discrimination unprotected groups, such as gays).

Page 475, complete Prenkert citation:

91 N. CAR. L. REV. 889 (2013).

Page 483, add before Bhatti cite in Note 5, What Counts as Materially Adverse?:

Colon v. Tracey, 717 F.3d 43 (1st Cir. 2013) (court properly granted summary judgment to aerospace company on former employee’s claim that she was demoted in retaliation for calling attention to company’s discriminatory employment practices, where claimant was reassigned from human resources ‘‘generalist’’ to human resources ‘‘business partner,’’ with no effect on her salary or job title, and was only temporary change);

Page 483, add before Benuzzi cite in Note 5, What Counts as Materially Adverse?:

69 | P a g e Rodríguez-Vives v. P.R. Firefighters Corps of P.R., 2014 U.S. App. LEXIS 2894, 17-18 (1st Cir. P.R. Feb. 18, 2014) (at least the cumulative effect of a series of petty acts of retaliation, such as refusal to allow plaintiff to join other firefighters to travel on fire vehicles to lunch and being assigned to cook and clean, might dissuade a reasonable employee from opposing discrimination);

Page 485, add in second paragraph before but see Pinkerton cite:

See also Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 676 (6th Cir. 2013) (“while temporal proximity alone cannot establish a causal connection, a lack of temporal proximity alone can be fatal to an attempt to establish a causal connection under circumstances such as these” where there was a two-year gap between the latest act that might trigger retaliation and the claimed retaliation and no direct evidence).

Page 486, add at end of carryover paragraph:

But see Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 674 (6th Cir. 2013) (rejecting as sufficiently direct proof of retaliation a principal’s statement that "this is a good old boys network. They are doing this to you to get even, you know. . . They are doing this to you to get even because you stood up for your rights. They are doing this to you to get back at you for winning the lawsuit"; although the statement “clearly refers to a good old boys network, it is unclear who is a part of that network. Nor is it clear what acts Vogt refers to as retaliatory. He could be referring to all of the collective acts that occurred prior to her removal as the varsity girls coach or only some of those acts or only her removal as varsity girls coach or her removal and some combination of the other acts. These ambiguities do not require a conclusion that these unspecified acts by unspecified people were based on unlawfully retaliatory motives.”).

Page 486, delete last paragraph; replace with:

Speaking of causation, in the wake of Gross, the circuits divided on the level causation is needed for retaliation claims. The Supreme Court resolved the issue in University of Texas Southwestern Medical Center. v. Nassar, 133 S. Ct. 2517 (2013), holding that motivating factor analysis under § 703(m) reached only discrimination claims brought under § 703(a), not retaliation claims brought under § 704)(a). To do so, it had to distinguish a line of precedent, reaching back to Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235, n. 3, 23, (1969) that held that retaliation for opposing discrimination on a prohibited ground was itself discrimination on that ground. See generally Michael J. Zimmer, Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar (forthcoming). Nassar is reproduced at p. 5 of this Update.

70 | P a g e Chapter 7 Disability Discrimination

Page 487, add before Henny cite in first full paragraph:

Brumfield v. City of Chicago, 735 F.3d 619, 622 (7th Cir. 2013) (“We join the Ninth and Tenth Circuits and hold that Title II of the ADA does not cover disability discrimination in public employment; this kind of claim must be brought under Title I.”); Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1313-14 (10th Cir. 2012) (employment discrimination can be challenged only under Title I, not Title II, of the ADA);

Page 488, add at end of carryover paragraph:

See generally Stephen F. Befort, An Empirical Analysis of Case Outcomes Under the ADA Amendments Act, 70 WASH & LEE L. REV. *** (2013) (the empirical evidence regarding the effects of the ADAAA so far reveals more decisions on the “qualified” issue, fewer dismissals for the plaintiff not being disabled, and more plaintiff success in surviving various motions).

Page 489, add at end of carryover paragraph:

But see Neely v. PSEG Texas, Ltd. P'ship, 735 F.3d 242, 247 (5th Cir. 2013) (not error for district court to instruct jury that it had to find plaintiff was a "qualified individual with a disability" as a predicate to finding of a violation despite contention that use of "with a disability" was contrary to ADA Amendments Act of 2008 that was intended to simplify analysis of "disability" and focus on whether discrimination occurred).

Page 498, add before Chamberlain cite in carryover Note 2(c), Temporary Impairments:

In Summers v. Altarum Inst., Corp., 740 F.3d 325, 329-30 (4th Cir. 2014), plaintiff had a serious but temporary injury, one that left him unable to walk for seven months despite surgery, pain medication, and physical therapy. The court held he could be disabled within the meaning of the amended ADA: EEOC regulations providing that a short-term impairment may qualify if sufficiently severe were entitled to deference under Chevron, and the possibility that plaintiff could have gotten to work in a wheelchair was irrelevant since mitigating measures should not be considered.

Page 498, add before Horgan cite in second paragraph of carryover Note 2(c), Temporary Impairments:

71 | P a g e Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013) (an episode of a blood- pressure spike and vision loss may be covered disabilities when both problems may be “episodic” manifestations of a longstanding blood-pressure condition and the ADA's regulations list hypertension as an example of such an impairment; despite their short duration, they could be said to substantially impair two major life activities, circulatory function and eyesight, and, in any event, plaintiff’s chronic blood-pressure condition could also qualify as a disability);

Page 523, add before Jones cite in first line after last extract:

Olsen v. Capital Region Med. Ctr., 713 F.3d 1149, 1154 (8th Cir. 2013) (plaintiff’s frequent epileptic seizures prevented her from being qualified for her position since an essential function of mammography technician was insuring patient safety, and she was unable to “adequately perform that function during the indefinite periods in which she was incapacitated.”); Harris v. Reston Hosp. Ctr., LLC, 523 F. App’x 938 (4th Cir. 2013) (plaintiff’s “extensive absences and physical incapacity — regardless of their precise causes — would significantly interfere with, if not wholly negate, her ability to perform the essential functions of a surgical floor nurse.”); Majors v. GE Elec. Co., 714 F.3d 527 (7th Cir. 2013) (because plaintiff’s was permanently unable to lift more than twenty pounds, she could not perform an essential function of the auditor position without accommodation; further, the only accommodation she proposed was to have another worker lift heavy objects for her, and “[t]o have another employee perform a position's essential function, and to a certain extent perform the job for the employee, is not a reasonable accommodation.); Knutson v. Schwan's Home Serv., Inc., 711 F.3d 911 (8th Cir. 2013) (no genuine issue of material fact exists that being DOT-qualified to drive a delivery truck was an essential function of plaintiff’s position even though most of his work as manager did not involve driving when job description; company's judgment that managers must drive delivery trucks to deliver products and train new drivers, and showing that all co-managers are certified established that such certification was essential); Hohn v. BNSF Ry. Co., 707 F.3d 995, 1003 (8th Cir. 2013) (upholding a jury verdict because sufficient evidence supported a finding that plaintiff’s visual impairment prevented him from performing the essential functions of the locomotive machinist position safely or at all since the job entailed working "within, around, over and under locomotives" in a “a dynamic environment, with variable lighting, uneven surfaces, scaffolding, ladders, ramps, stairs, overhead objects, and large machinery and locomotives.”).

Page 523, add at end of page after Rosebough cite:

McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (while arrival on time might be essential for many, perhaps most jobs, arriving at any consistent time may not have been an essential requirement of the plaintiff’s position given that his late arrivals were explicitly or implicitly approved for years and the employer’s flex-time policy permits all employees to arrive and leave within one-hour windows; “banking” overtime hours, working through lunch, or working at home might allow plaintiff to fulfill his responsibilities);

Page 534, add before Samper cite in Note 4, Attendance as an Essential Job Function:

72 | P a g e Murphy v. Samson Res. Co., 525 F. App’x 703 (10th Cir. 2013) (“a leave of absence is not a reasonable accommodation where, as here, an employee continues to seek leave and it is uncertain if or when she will be able to return to work”); Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013) (“request for prospective leave to alleviate an intermittent disability presents unique challenges for the employee,” and plaintiff neither identified an accommodation other than leave nor “produced evidence that had he been granted such leave, he could have performed the essential functions of his position on his requested return date”); Basden v. Prof'l Transp., Inc., 714 F.3d 1034 (7th Cir. 2013) (“An employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance, and plaintiff could not establish that a combination of leave and medication would have enabled her to return to work on a regular basis).

Page 535, add at end of Note 5, Accommodations that Impact Others:

See also Hill v. Walker, 737 F.3d 1209, 1217 (8th Cir. 2013) (plaintiff, a social worker, was not otherwise qualified when she required as the accommodation for her anxiety and panic attacks by being removed from a particular stressful case when difficult cases and stressful clients were the nature of the business; allowing “individual caseworkers to pick and choose among case assignments based on their toleration of stress could wreak havoc with management of the agency”).

Page 537, add at end of carryover paragraph:

See also Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950 (9th Cir. 2013) (While the Cleveland's standard applies not merely to a plaintiff's statements in applications for SSDI benefits but also in applications for state and private disability benefits and FMLA leave, there was no inherent conflict between plaintiff’s representations in those settings and her ADA claim; first, impairments may change over time; and, second, since such schemes do not address whether an individual could perform the job with a reasonable accommodation, “it is possible that a person could claim he or she qualifies for disability benefits and still be able to work if accommodated.”).

Page 537, add after third sentence in third paragraph:

It may even be necessary to accommodate a disability in terms of access to treatment, regardless of the ability of the employee to perform the essential functions of the current job. Sanchez v. Vilsack, 695 F.3d 1174, 1182 (10th Cir. 2012).

73 | P a g e Page 538, add at beginning of page:

See Feist v. Louisiana, Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450 (5th Cir. 2013) (since the ADA requires employers to “mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities,” the district court erred in requiring a nexus between the requested accommodation and the essential functions of plaintiff’s position).

Page 549, add at end of first sentence of Note 3, When Is a Position Vacant?

See Koessel v. Sublette County Sheriff's Dep't, 717 F.3d 736 (10th Cir. 2013) (plaintiff police officer did not identify a vacant position to which he could be transferred when his post-stroke medical evaluation concluded that he could not work in high-stress position).

Page 549, add at end of Note 3, When Is a Position Vacant?

See also Turner v. City of Paris, Ky., 13-5055, 2013 WL 3968763 (6th Cir. Aug. 2, 2013) (a position is not vacant if it is not current so or will be vacant within “a short period of time,” perhaps a week; plaintiff failed to establish that a prospective retirement was sufficient imminent to satisfy that standard). Such determinations can be very fact-sensitive. See Feldman v. Olin Corp., 692 F.3d 748, 754-756 (7th Cir. 2012) (genuine issue of material fact as to whether straight-time positions were open during plaintiff’s seven month lay-off to which the employer could have reassigned him; while the employer claimed that these positions required overtime, which plaintiff was unable to work, the evidence on this point was conflicting).

Page 549, add new Note 4:

4. Transfer for Treatment? Suppose an employee is able to perform the essential functions of her job despite her disability. May she demand a transfer to a vacant position in order to obtain better treatment of her disability? Sanchez v. Vilsack, 695 F.3d 1174, 1182 (10th Cir. 2012), held that “a transfer accommodation for medical care or treatment is not per se unreasonable, even if an employee is able to perform the essential functions of her job without it.” Accord Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993).

Page 553, add at end of Note 1, The Essential Job Function Inquiry:

See also Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013) (genuine issue of material fact as to deaf lifeguard’s ability to perform the essential function of communication while working at a wave pool given his visual scanning techniques and use of whistle and physical gestures; his request for accommodation by an ASL interpreter during staff meetings and further classroom instruction was objectively reasonable.).

74 | P a g e Page 554, add a new bullet :

 Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1061-62 (7th Cir. 2014) (claim stated when further medical testing and prescription medication to control plaintiff’s narcolepsy were obvious possibilities that should have been explored in the interactive process);

Page 554, add after extract before see generally cite:

Cf. Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (rejecting plaintiff’s claim, that the City failed to reasonably accommodate her MS by failing to timely provide a nearby parking space and failing to timely provide her with a printer close to her office when the City addressed both needs, although not in the time frame plaintiff would have preferred; as for the claim that the City failed to provide help to proofread her work, plaintiff failed to establish that she had asked for such an accommodation).

Page 554, add at end of carryover Note 3, Forms of Reasonable Accommodation:

On the other hand, courts have not been sympathetic with employees who demand preferred accommodations when, in the court’s judgment, the offered accommodation would suffice. Yovtcheva v. City of Phila. Water Dep't, 518 F. App’x 116 (3d Cir. 2013) (city did not need to transfer an asthmatic city chemist or use a solvent to which she was not sensitive when it offered her a reasonable accommodation by a partial-face respirator which she refused to attempt to use due to a panic attack she had suffered while using a full-face device); Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996) (“An employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.”).

Page 559, before last sentence of carryover Note 1. Facially Discriminatory?

Cf. Bailey v. Real Time Staffing Servs., Inc., 13-5221, 2013 WL 5811647 (6th Cir. Oct. 29, 2013) (summary judgment against plaintiff proper when he was fired for testing positive for marijuana; although plaintiff argued that the positive result was caused by medication taken for his HIV, there was no evidence that the employer knew that the test was false or of his HIV condition) .

Page 562, add before EEOC v. Convergys citation in carryover paragraph:

Snapp v. United Transp. Union, 12-35714, 2013 WL 5912505 (9th Cir. Nov. 5, 2013) (a job application letter and a letter from plaintiff physician referring to his ongoing disability and is need for accommodations created a fact question as to notification of plaintiff’s disability and desire for accommodation, which may have included reassignment to an appropriate position);

Page 562, add before Stewart citation in carryover paragraph:

Dinse v. Carlisle Foodservice Products Inc., 12-6178, 2013 WL 5930804 (10th Cir. Nov. 6, 2013) (“More is required to trigger an employer's duty to engage in the interactive process than

75 | P a g e mere awareness that the employee is disabled; specifically, the employee must make an adequate request for a reasonable accommodation for the disability.”)

Page 562, add before McBride citation:

Basden v. Prof'l Transp., Inc., 714 F.3d 1034 (7th Cir. 2013) (even though the employer’s failure to engage in the interactive process was inappropriate, that action “is not an independent basis for liability under the statute, and that failure is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”)

Page 565, add at end of page:

Accord; Palmquist v. Shinseki, 689 F.3d 66 (1st Cir. 2012). See also Leal v. McHugh, 731 F.3d 405 (5th Cir. 2003) (plaintiffs have stated a claim for which relief may be granted under the ADEA even though they alleged both age discrimination and a personal relationship as reasons for the adverse action since the two allegations are not inconsistent with each other nor do they bar proof of “but-for” causation since that “does not mean ‘sole cause.’”). See generally Cheryl L. Anderson, The Conundrum of Causation and Reasonable Accommodation Under the ADA, 82 MISS. L.J. 67, 73 (2013) (cautioning that, after Gross, causation could “creep into another aspect of reasonable accommodation analysis--as a requirement that plaintiffs show their disability is a but-for cause of their need for the accommodation.”).

Page 585, add at end of carryover paragraph after extract:

See Clifford v. Cnty. of Rockland, 528 F. App’x 6 (2d Cir. 2013) (“having conceded that termination was a permissible response to on-the-job intoxication, Clifford can hardly charge the County with having failed to afford her a reasonable accommodation when, instead of pursuing termination after the May 13th incident, it agreed to a suspension that afforded her the opportunity to return to work on a showing that she posed no serious risk of relapse). See also Ostrowski v. Con-Way Freight, Inc., 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013) (“employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees, such as barring an employee from consuming alcohol—whether at the workplace or otherwise”; because the agreement was not invalid, plaintiff’s violation of its terms was a legitimate, non-discriminatory reason for termination).

Page 585, add at end of carryover full paragraph after extract:

See James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) (since the ADA defines "illegal drug use" by reference to federal, rather than state, law, plaintiffs' medical marijuana use was not protected by the ADA regardless of its legality under California law).

Page 585, add before Mauerhan cite in first full paragraph:

Shirley v. Precision Castparts Corp., 726 F.3d 675, 680-81 (5th Cir. 2013) (plaintiff not within the §12114(b) safe harbor for participating in a supervised rehabilitation program since entry into 76 | P a g e such a program is not sufficient; while plaintiff had self-reported and entered an in-patient facility, his “refusal to complete an inpatient treatment program, his insistence that he remain on an opiate pain reliever, and his continued use of Vicodin following detox” justified “a reasonable belief that continued drug use was still an on-going problem at the time” of termination);

Page 588, add after See also in first paragraph:

Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1312 (11th Cir. 2013) (“Coca-Cola had a reasonable, objective concern about Mr. Owusu-Ansah's mental state, which affected job performance and potentially threatened the safety of its other employees.”);

Page 588, add at end of last full paragraph:

The ADA also requires employers to treat certain information confidentially, but not all health information an employer obtains from its workers is protected. See EEOC v. Thrivent Fin. for Lutherans, 700 F.3d 1044 (7th Cir. 2012) (an inquiry into the reasons for an employee’s absence was not a “medical inquiry” within the meaning of § 12112(d)(4)(B) and thus the employer had no need to treat the response, which revealed a history of migraine headaches, as a confidential medical record).

Page 588, add after first sentence of last paragraph:

Cf. Seff v. Broward Cnty., 691 F.3d 1221 (11th Cir. 2012) (rather than determining whether the program was “voluntary,” the court instead held that the prohibition on involuntary medical exams and inquiries does not apply to a wellness program offered by an employer health plan where the program meets the ADA’s safe harbor for bona fide benefit plans).

Page 589, add in last full paragraph before “The Third Circuit in”:

See Kelley v. Corr. Med. Servs. Inc., 707 F.3d 108, 118 (1st Cir. 2013) (given her supervisor's history of hostility toward nurse's need for accommodations, that included prohibiting her use of cane, “a reasonable factfinder could find that Kesteloot's action against Kelley was ‘a disingenuous overreaction to justify dismissal of an annoying employee who asserted [her] rights under the ADA,’ rather than the firing of an insubordinate employee.” (quoting Miller v. Ill. Dep't of Transp., 643 F.3d 190, 200 (7th Cir. 2011)).

77 | P a g e Chapter 8 Procedures of Enforcing the Antidiscrimination Laws

Page 601, add after first sentence in b. When Does a Violation “Occur”?:

See Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158 (7th Cir. 2012) (the requirement of filing a timely charge is a kind of statute of limitations, which means that any fact issue relevant to timeliness must be decided by a jury, not a judge at a preliminary hearing).

Page 608, add at end of Note 1, Notice of Adverse Action Rule:

See also Adams v. City of Indianapolis, 2014 U.S. App. LEXIS 2115, 22 (7th Cir. Feb. 4, 2014) (“The employment actions challenged here fall squarely within the Supreme Court's list of "discrete acts"—they are "failures to promote." . . . Accordingly, to the extent that some of the Title VII disparate-treatment claims arose out of promotion decisions made in 2002, 2006, and 2007, the district court quite properly dismissed them as time-barred.”)

Page 608, add in Note 2, The Contaminated Environment Exception before “the only limitation”:

See Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (plaintiff may proceed under a continuing violation theory since she “alleged at least one act that falls within the statute of limitations (i.e. Bachert calling her a ‘bitch’ during a meeting), and many of the acts that occurred prior to the applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern.”).

Page 612, add at end of Note on State Deferral Requirements

While a state filing is necessary in order to bring a Title VII suit, it will typically also satisfy any state exhaustion requirements. A subsequent suit (whether in state or federal court), then, can assert both federal and state claims, and state law may be more generous than federal law in a number of respects. See generally Sandra F. Sperino, Revitalizing State Employment Discrimination Law, 20 GEO. MASON L. REV. 545, 546 (2013) (“if courts would look at the way state statutes are constructed, they could discover a more elegant, unified way of considering discrimination claims, a way not marred by the recent disarray of federal law. Many states chose to prohibit discrimination along a myriad of protected traits within one statutory regime.”).

Page 615, add after But see in second full paragraph:

Loubriel v. Fondo Del Seguro Del Estado, 694 F.3d 139, 144 (1st Cir. 2012) (while the continuing violation doctrine may toll the limitations period for filing charge with the EEOC, it does not apply to extend the ninety day filing period for court suit);

Page 617, add in first full paragraph before See generally Noah Zatz cite:,

78 | P a g e See also Montone v. City of Jersey City, 709 F.3d 181, 199 (3d Cir. 2013) (finding plaintiffs, who were passed over for promotion in order to avoid promoting another officer in retaliation for her political activity, had standing to bring a § 1983 claim; their claim fell within the First Amendment’s "zone of interests” because “concerns implicated by political affiliation retaliation are the same whether a plaintiff is the ‘direct’ or ‘indirect’ victim of illegal political retaliation. An employee might be equally dissuaded from engaging in protected political activity where it is his fellow workers who experience retaliation for that employee having engaged in the ‘core’ First Amendment activities of free ‘political belief and association.’”) (citation omitted).

Page 618, add before see generally cite near end of carryover paragraph:

Manning v. Blue Cross & Blue Shield of Kan. City, 522 F.App’x 438 (10th Cir. 2013) (district court could properly raise question of whether plaintiffs’ complaints were too vague to give defendants notice of the challenged conduct because the court has an independent duty to examine whether it has subject matter jurisdiction) . Page 618, add after see generally cite near end of carryover paragraph:

Jordan J. Feist, Discrimination, Retaliation, and the EEOC: The Circuit Split over the Administrative Exhaustion Requirement in Title VII Claims, 118 PENN ST. L. REV. 169, 179-80 (2013); Brandon Wheeler, Note, Amending Title VII to Safeguard the Viability of Retaliation Claims, 98 MINN. L. REV. 775 (2013) (same);

Page 618, add at end of carryover paragraph:

While charges can be amended, less formal efforts to alter the scope of the EEOC investigation may not be successful. See Balas v. Huntington Ingalls Indus., 711 F.3d 401, 408 (4th Cir. 2013) (“we are not at liberty to read into administrative charges allegations they do not contain. Instead, persons alleging discrimination have a different form of recourse if they determine that their initial charge does not read as they intended: they may, as Balas did, file an amended charge with the EEOC. The intake questionnaire and the letters Balas submitted to the EEOC cannot be read as part of her formal discrimination charge without contravening the purposes of Title VII.) (citation omitted).

Page 619, add after Hayes cite in second full paragraph:

Adams v. FedEx Ground Package Sys., Inc., No. 13-1162, 2013 WL 6171011 (10th Cir. Nov. 26, 2013) (issue preclusion by prior arbitration agreement barred subsequent suit on race and sex discrimination claims, despite contention that plaintiff lacked a full and fair opportunity to litigate her claims because of limited discovery in the arbitration proceedings when plaintiff herself demanded arbitration and she did not move afterward to vacate the award).

Page 621 add after first full paragraph:

79 | P a g e In its latest Term, the Supreme Court revisited the issue of class arbitration twice. Its more significant decision was American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2307 (2013), which found that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act even when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Italian Colors involved suit by retailers against American Express, but there is little doubt that it would reach employment cases. The second decision, somewhat of a sport, was Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013), which upheld an arbitrator’s decision that the parties had agreed to class arbitration. Despite the fact that the Concepcion Court had stressed the tension between arbitration and any class procedures, the Oxford Health found that the arbitrator had grounded his decision in the parties’ agreement, and, proper respect for entrusting such decisions to arbitrators in the first place required enforcing that decision.

Page 633, add at end of Note 3, No More Disparate Treatment Class Actions?

This possibility has led to calls for increased EEOC focus on systemic cases. See Angela D. Morrison, Duke-Ing Out Pattern or Practice After Wal-Mart: The EEOC As Fist, 63 AM. U. L. REV. 87 (2013) (now is the time for the EEOC to assert its essential role in bringing pattern or practice suits, and now is the time for it to assert its role despite lower courts beginning to limit its ability to bring pattern or practice claims in its own name); Joseph A. Seiner Weathering Wal- Mart, 89 NOTRE DAME L. REV. *** (forthcoming 2014) (recommending more aggressive government enforcement and using procedures such as consolidating cases and offensive non- mutual collateral estoppel to streamline litigation where multiple workers have sued an employer individually).

Page 637, add after Malveaux cite in first full paragraph:

But see Davis v. Cintas Corp., 717 F.3d 476, 489 (6th Cir. 2013) (affirming a district court’s denial of certification because the named plaintiff failed to show that the class of women “who failed to obtain employment at many places, over a long time, under a largely subjective hiring system, shared a common question of law or fact”); Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012) (reversing a district court holding that the EEOC could not bring a pattern-and-practice claim on the basis of an individual charge under § 706 of the statute but only on the basis of a pattern-or-practice suit under § 707 (although the court also found that the agency had failed to properly plead the pattern-or-practice claim).

However, a recent case from the Fourth Circuit, Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 114 (4th Cir. 2013) (2-1), rejects the more extreme negative readings of Wal-Mart, which it read as limited to discretionary decisions by lower-level employees; when “high-level personnel exercise discretion, [the] resulting decisions affect a much larger group, and depending on their rank in the corporate hierarchy, all the employees in the company.” Id. at 113-14. In other words, Wal-Mart “did not set out a per se rule against class certification where subjective decision-making or discretion is alleged. Rather, where subjective discretion is involved, Wal- Mart directs courts to examine whether ‘all managers [ ] exercise discretion in a common way with [ ] some common direction.’ Thus, to satisfy commonality, a plaintiff must demonstrate that

80 | P a g e the exercise of discretion is tied to a specific employment practice, and that the ‘subjective practice at issue affected the class in a uniform manner.’” Id. at 113. The dissent of Judge Wilkerson complained that majority opinion has “drained [Wal-Mart] of meaning.” Id. at 119.

Page 637, add before Modesitt cite in last full paragraph:

David Freeman Engstrom, Agencies As Litigation Gatekeepers, 123 YALE L.J. 616 (2013) (arguing for dismantling the EEOC's administrative charge resolution process as adding “strikingly little gatekeeper value” while arguing for the opposite approach to systemic cases by “vesting the EEOC with sweeping gatekeeper powers over all class action and ‘systemic’ job discrimination suits” by giving the agency “licensing” authority over private suits and the right to intervene in any cases it allows to go forward); Margo Schlanger & Pauline T. Kim, The Equal Employment Opportunity Commission and Structural Reform of the American Workplace, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2309514 (EEOC structural relief “appears primarily aimed at forcing firms to implement what are commonly accepted as good and rational human resources practices” rather than transforming culture and norms);

Page 638, add after CRST cite in fourth line of page:

Accord EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003). Contra EEOC v. Mach Mining, LLC, 738 F.3d 171, 172-173 (7th Cir. 2013) (rejecting a proffered failure to conciliate affirmative defense to an EEOC suit as adding “an unwarranted mechanism by which employers can avoid liability for unlawful discrimination” by allowing “protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle”).

Page 639, add before Latham cite in carryover paragraph:

Lors v. Dean, 726 F.3d 1036, 1041-42 (8th Cir. 2013) (Eleventh Amendment immunity bars not only discrimination claims for money damages under Title I but also retaliation claims under Title V of the ADA; “a generic prayer for unspecified injunctive relief” is not sufficient to support a prospective claim for reinstatement under Ex parte Young);

Page 639, add after Lapides cite in second full paragraph: but see Stroud v. McIntosh, 722 F.3d 1294, 1300-01 (11th Cir. 2013) (although removal to federal court waives state immunity to a federal forum, it does not waive immunity from liability under a federal statute)’ contra Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448, 461 (7th Cir.2011) (a state's removal to federal court waives immunity); see also Pettigrew v. Oklahoma ex rel. Oklahoma Dep't of Pub. Safety, 722 F.3d 1209, 1211 (10th Cir. 2013) (an agreement settling a Title VII suit waived the state's “Eleventh Amendment” right not to be sued in federal court since there was no reasonable construction of its enforcement provisions except as a waiver)

81 | P a g e 82 | P a g e Chapter 9 Judicial Relief

Page 648, add before “See also” in second paragraph:

In EEOC v. KarenKim, Inc., 698 F.3d 92 (2d Cir. 2012), the court found it an abuse of discretion for district court to decline to order injunctive relief to ensure that an individual found responsible for egregious acts of sexual harassment against multiple female employees cannot continue his harassing conduct. A concurring opinion by Judge Katzmann, agreed, but also argued, consistent with authority in other circuits, that “the most natural way to practically effectuate the Supreme Court's guidance that Title VII grants courts with ‘not merely the power’ but ‘the duty’ to remedy violations of the Act through injunctive relief would be to shift the burden of proving the appropriateness of such relief onto the defendant-employer once liability under the Act is established. In other words, I would hold that, after a finding of liability, the defendant-employer bears the burden of establishing that there is no ‘cognizable danger’ that it will engage in ‘recurrent violation[s]’ of the Act.” Id. at 103.

Page 650, add and end of carryover paragraph:

Equitable relief is sometimes ordered even when the harm seems mostly monetary but does not fall easily with other categories of recovery. See Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 36 (1st Cir. 2012) (affirming injunction allowing plaintiff to continue vesting in three investment funds, akin to pension plans, designed for senior executives as though he were employed by HEI, despite contractual provisions limiting participation to those still employed by the defendant).

Page 666, add at end of Note 2, “Liquidated Damages” and Front Pay:

See also Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 31 (1st Cir. 2012) (award of front pay not inconsistent with multiplied damages under state law since the purpose of a front pay award is to help to make a plaintiff whole while multiplication of damages under the relevant state law was punitive in nature).

Page 670, add before Farfaras cite in Note 1, Proving Mental Distress:

Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (compensatory damage award for emotional distress may be based on a plaintiff's own testimony; medical or other expert evidence is not required);

Page 671, add after But see in carryover Note 1, Proving Mental Distress:

Miller v. Raytheon Co., 716 F.3d 138 (5th Cir. 2013) (upholding remittitur of mental anguish award from $1 million to $100,000 because the claim was premised solely on the testimony of plaintiff and his wife; while plaintiff testified as to chest pain, back pain, and sleep disturbances, he did not take any over-the-counter pain or sleep medications or seek the assistance of any health care professional or counselor.); Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 32 (1st Cir. 2012)

83 | P a g e (despite acknowledging plaintiff’s emotional distress, supported by both plaintiff’s testimony and that of his wife, a $500,000 award was grossly excessive where there was no evidence of medical treatment or counseling; “While evidence from a physician or other mental health professional is not a sine qua non to an award of damages for emotional distress, the absence of such evidence is relevant in assessing the amount of such an award.”);

Page 671, add at end of carryover Note 1, Proving Mental Distress:

See generally Helen A. Anderson, The Psychotherapist Privilege: Privacy and “Garden Variety” Emotional Distress, 21 GEO. MASON L. REV. 117 (2013) (exploring various approaches to privilege waiver by putting emotional distress in issue).

Page 676, add at end of first paragraph of Note 2a, Defendant’s State of Mind:

See also May v. Chrysler Group LLC, 716 F.3d 963 (7th Cir. 2013) (reinstating jury verdict for punitive damages in light of protracted period in which the employer did little or nothing to deal with continuing, egregious instances of racial harassment); EEOC v. Autozone, Inc., 707 F.3d 824 (7th Cir. 2013) (upholding an award of awarded of punitive damages since a jury could find that the employer acted with reckless indifference to the employee's rights by not responding to multiple requests for accommodation despite ADA training of the relevant managers and a company procedure regarding accommodations); Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788 (8th Cir. 2013) (punitive damages award of $500,000 supported by evidence that manager sabotaged older employee's performance improvement plan).

Page, 677, add before Sturgill cite in first paragraph of Note 2b, Employer’s Good Faith Compliance:

Bennett v. Riceland Foods, Inc., 721 F.3d 546, 553-54 (8th Cir. 2013) (head of human resources conducting an independent review of the reorganization plan in light of plaintiff’s complaints constituted a good-faith effort to prevent discrimination” sufficient to preclude punitive damages);

Page, 677, replace Vance cite in Note 3(a) with:

Vance v. Ball State University, 133 S. Ct. 2434 (2013), reproduced at p. 32 of this Update.

Page 679, add near end of Note 2, Substantive Due Process before EEOC v. Federal Express cite:

Arizona v. ASARCO, LLC, 733 F.3d 882, 888-90 (9th Cir. 2013) (although an award with a ratio of 300,000 to 1 of punitive damages to nominal damages, albeit for very reprehensible conduct, raised “judicial eyebrows,” nevertheless it was upheld against a due process attack because the damage cap reflected “a legislative judgment” weighing “in favor of damages at least on the order of the statutory cap”); EEOC v. Autozone, Inc., 707 F.3d 824 (7th Cir. 2013) (upholding a punitive damages award against a due process attack given (1) the reprehensibility of the defendant's conduct; (2) a 2:1 ratio of punitive to compensatory damages, and less than a 1:1 ratio if backpay is added; and (3) the statutory cap; as to reprehensibility, the employer’s conduct

84 | P a g e caused the financially vulnerable plaintiff physical—not just economic—harm and manifested a reckless disregard for his health over multiple occasions);

Page 681, add at beginning of page:

See also Miller v. Raytheon Co., 716 F.3d 138, 146 (5th Cir. May 2, 2013) (affirming an award of liquidated damages since following facially neutral RIF procedures does not insulate an employer from a sustainable finding of a willful violation; “considerable circumstantial evidence added to the inference of age discrimination that Raytheon went out of its way to avoid rehiring Miller, in contravention of its usual procedures, and to obscure the reasons for its decisions.”).

Page 681, add at end of last full paragraph:

But see Miller v. Raytheon Co., 716 F.3d 138 (5th Cir. 2013) (when an ADEA claim warranted liquidated damages and a state claim capped punitive damages, the court should not award both by rather the higher amount under either).

Page 686, add after L. B. Foster cite in first paragraph of Note 2, When Is a Prevailing Defendant Entitled to Attorneys’ Fees?:

See also EEOC v. Peoplemark, Inc., 732 F.3d 584 (6th Cir. 2013) (no abuse of discretion in award of attorneys’ fees against EEOC; while the agency’s case was not groundless when filed due to incorrect company official’s statements about a supposed companywide policy of denying jobs to applicants with felony records, it should have discontinued its case when discovery clearly belied those statements by establishing that no such policy existed).

Page 686, add at end of first paragraph of Note 2, When Is a Prevailing Defendant Entitled to Attorneys’ Fees?:

Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 349-50 (5th Cir. 2013) (abuse of discretion to award defendant attorneys' fees when plaintiff’s claim, though unsuccessful, was not ‘frivolous, unreasonable or without foundation.’").

Page 687, add at end of carryover Note 3, What Does “Prevail” Mean?:

Even when a plaintiff prevails on one claim, she may not recover fees for unsuccessful claims, although the successful and unsuccessful claims may be so intertwined that it will not be an abuse of discretion for the district court to give full recovery. Waldo v. Consumers Energy Co., 726 F.3d 802, 823 (6th Cir. 2013) (refusing to find an abuse of discretion when the trial court refused to reduce an attorney fee award even though plaintiff prevailed on only one of seven claims since the claims were all related and focused on a common core of facts evidencing how plaintiff’s male coworkers sexually harassed her); Trainor v. HEI Hospitality, LLC, 699 F.3d 19 (1st Cir. 2012) (no abuse of discretion by district court in not deducing hours pursuing plaintiff’s unsuccessful age discrimination claim when it was inextricably intertwined with his retaliation claim, which was successful).

Page 688, add before See generally in carryover Note 4, Rule 68:

85 | P a g e See also Sanchez v. Prudential Pizza, Inc., 709 F.3d 689 (7th Cir. 2013) (in the Rule 68 context, any ambiguity is resolved against the offeror because of the difficult position such an offer creates for the offeree; thus, a plaintiff who accepted a Rule 68 offer may nevertheless recover attorneys’ fees and costs even though the offer stated it included "all of Plaintiff's claims for relief" when it failed to specify costs or fees). Cf. Diaz v. Jiten Hotel Mgmt., 704 F.3d 150, 154 (1st Cir. 2012) (rejecting a district court’s reliance on plaintiffs’ rejection of a settlement offer that was much larger than her ultimate recovery in reducing a fee award; given Rule 68, which “already provide[s] the defendant with a mechanism to make the plaintiff ““think very hard' about whether continued litigation is worthwhile’ such that the judge-made prophylactic ruling in this case is unnecessary.”).

Page 693, add at end of second full paragraph of Note on Taxation, Insurance, and Bankruptcy:

In light of these rules, efforts to structure settlements to maximize tax savings can be difficult. See Ahmed v. Comm'r of IRS, 498 F. App’x 919 (11th Cir. 2012) (a settlement of a discrimination suit was taxable even though it reflected harms other than backpay when the settlement did not allocate any portion of the payment to compensate the taxpayer for physical injuries; even though plaintiff had suffered a heart attack, the settlement document did not specifically reference that harm).

Page 695, add before Love cite in last paragraph of Note On Taxation, Insurance, And Bankruptcy:

Ah Quin v. Cnty. of Kauai Dep't of Transp., 733 F.3d 2676 (9th Cir. 2013) (judicial estoppel of lawsuit for plaintiff’s failure to reveal her claim as an asset in a bankruptcy filing is inappropriate where the omission was “inadvertent or mistaken, as those terms are commonly understood” rather than stemming from an intent to conceal);

86 | P a g e

87 | P a g e Chapter 10 Managing Risks in Employment Discrimination Disputes

Page 699, add after Penn Plaza cite in first full paragraph:

See also Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603, 606 (6th Cir. 2013) (an employment agreement that purported to reduce the statute of limitations for EPA claims from two years to six months operates as a waiver of her rights under the FLSA and it therefore invalid . Page726, add a new Note 8:

8. Waiver of Arbitration: Even where an arbitration agreement is valid and enforceable, the parties may expressly or implicitly waive arbitration; the latter occurs most obviously by not moving to stay court proceedings in a timely manner. See Cole v. Jersey City Med. Ctr., 72 A.3d 224, 235 (N.J. 2013) (“Our evaluation of the totality of the circumstances of this case leads to the inexorable conclusion that Liberty waived its right to arbitrate during the course of litigation. Liberty engaged in all of the usual litigation procedures for twenty-one months and, only on the eve of trial, invoked its right to arbitrate. Such conduct undermines the fundamental principles underlying arbitration and is strongly discouraged in our state.”). See generally Thomas J. Lilly, Jr., Participation in Litigation as A Waiver of the Contractual Right to Arbitrate: Toward A Unified Theory, 92 NEB. L. REV. 86, 88-89 (2013) (“the goal of fair and efficient dispute resolution in conformity with the parties' agreement is better served by a rule that the contractual right to compel arbitration of a dispute is waived if it is not asserted by the time the defendant answers the complaint.”).

Page 702, add at end of Note 3, Beyond Minimum Conditions:

Yassan v. J. P. Morgan Chase & Co., 708 F.3d 963, 975 (7th Cir. 2013) (under New York law, releases of a claim unknown at the time of signing is enforceable, and that is true even if there is fraud in obtaining the release; “No matter what prior representations Chase had made about its reasons for terminating Yassan, Chase was forthcoming with Yassan about the terms of the release-severance package deal, which plaintiff had ample opportunity to review before he signed”).

Page 713, add at end of page: although there remains some bite to the requirement that a union cannot waive individual rights unless it does so clearly. See Ibarra v. UPS, 695 F.3d 354, 358 (5th Cir. 2012) (an arbitration clause in a collective bargaining agreement did not clearly and unmistakably waive union members’ right to pursue statutory claims in court when the agreement did not specifically identify Title VII or state that statutory discrimination claims shall be subject to its grievance procedure but merely created a contract right to be free of discrimination).

Page 715, add at end of Note 4. Duty of Fair Representation:

88 | P a g e See generally Michael Z. Green, Reading Ricci and Pyett to Provide Racial Justice Through Union Arbitration, 87 IND. L.J. 367 (2012) (any union decision not to process a claim should also make clear that the employee will be allowed a forum to effectively vindicate the claim).

Page 716, add in first line of carryover Note 5, Reviewing Arbitration Awards before “see generally”:

See Wachovia Sec., LLC v. Brand, 671 F.3d 472, 480 (4th Cir. 2012) (manifest disregard standard survived Hall Street as an independent ground for vacatur); Dewan v. Walia, 12-2175, 2013 WL 5781207 (4th Cir. Oct. 28, 2013) (2-1) (arbitration award vacated because it is the product of manifest disregard of the law since the arbitrator found a release valid but nevertheless awarded the employee damages on released claims; arbitrator’s reasoning that release reached only suits brought in court rather than claims in arbitration was rejected).

Page 716, add before Moses citation in carryover Note 5, Reviewing Arbitration Awards:

See also In re Wal-Mart Wage & Hour Empl. Practices Litig. v. Class Counsel & Party to Arbitration, 737 F.3d 1262, 1267 (9th Cir. Nev. 2013) (“Just as the text of the FAA compels the conclusion that the grounds for vacatur of an arbitration award may not be supplemented, it also compels the conclusion that these grounds are not waivable, or subject to elimination by contract,” thus rendering a non-appealability clause invalid).

Page 724, add before Saylor cite in second paragraph of Note 2. Finding an Agreement:

Scudiero v. Radio One of Texas II, L.L.C., 13-20114, 2013 WL 5755484 (5th Cir. Oct. 24, 2013), (no error in denying a motion to compel when the arbitration provision was “not a separate, stand- alone contract” but rather contained in an employee handbook, which reserved to the employer the right to unilaterally change, thus rendering the employer’s promise to arbitrate was illusory and unenforceable);

Page 724, add at end of Note 2. Finding an Agreement:

Tillman v. Macy's, Inc., 735 F.3d 453, 455 (6th Cir. 2013) (“Macy's provided sufficient notice of its offer to enter into an arbitration agreement,” through a video, informational brochure and separate mailings to her home; the plaintiff “accepted by continuing her employment with Macy's and not returning either of the two opt-out forms provided to her”; the absence of an written agreement to arbitrate signed by the employee was not determinative).

Page 725, add after Stolt-Nielsen cite in Note 4. Class Actions and Arbitration:

But see Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013) (upholding arbitrator’s decision finding parties had agreed to class arbitration even though the contract did not explicitly refer to such a proceeding).

89 | P a g e