TITLE VII & LAD: WHAT IS AN ADVERSE EMPLOYMENT ACTION?
Ty Hyderally, Esq.November 2015 Newsletter
Many discrimination claims, under both federal and state law, require a showing that the employee suffered an adverse employment action. The Third Circuit, in a recent decision, issued an important ruling on an issue of first impression regarding what constitutes an adverse employment action in a discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”).
Michelle Jones sued her employer, the Southeastern Pennsylvania Transportation Authority, alleging sexual harassment, gender discrimination, and retaliation in the United States District Court for the Eastern District of Pennsylvania. The District Court granted defendant’s motion for summary judgment and plaintiff appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit framed the “linchpin” issue in the case as whether a paid suspension constitutes an adverse employment action in the “substantive discrimination context” under Title VII. Jones v. Southeastern Pennsylvania Transportation Authority, No. 14-3814 (3d Cir. Aug. 12, 2015).
The substantive discrimination context refers to Title VII’s provision forbidding employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In order to state a prima facie case of discrimination under the substantive provision, a plaintiff must prove “(1) the plaintiff belongs to a protected class; (2) he/she was qualified for the position; (3) he/she was subject to an adverse employment action despite being qualified; and (4) under circumstances that raise an inference of discriminatory action, the employer continued to seek out individuals with qualifications similar to the plaintiff’s to fill the position.” See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In Jones, the employer asserted that Plaintiff failed to establish her prima facie case of discrimination because could not establish that she had suffered any adverse employment action. Jones argued that she was subject to an adverse action when her employer placed her on a paid suspension pending an investigation of her alleged wrongdoing.
Concurring with the District Court, the Third Circuit ruled that “[a] paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” However, the Court limited its holding to a substantive discrimination action and expressly cautioned that it made no decision as to whether a paid suspension could be an adverse employment action in a retaliation action under Title VII.
The New Jersey District Court has not clearly ruled whether or not an unpaid suspension in a retaliation case under Title VII or the New Jersey Law Against Discrimination (“NJLAD”) is sufficient to rise to the level of an adverse employment action. In Hargrave v. County of Atlantic, 262 F. Supp. 2d 393, 423 (D.N.J. 2003), the New Jersey District Court ruled that a 5-day suspension in a retaliation case constituted “the type of tangible, adverse employment action contemplated by Title VII and the NJLAD.” However, the Court failed to discuss whether the suspension at issue was paid or unpaid. The suspension in Hargrave was also not pending an investigation, as was the suspension considered in Jones. Rather, the Hargrave Court found that the employer had suspended plaintiff as a form of punishment. Thus, the punitive nature of a suspension may also have bearing on whether or not a court finds an unpaid suspension to be an adverse employment action in a retaliation claim under Title VII or the NJLAD.
In short, other than a “paid suspension pending an investigation” in a substantive discrimination claim under Title VII, there remains uncertainty regarding whether courts in the Third Circuit will find other types of suspensions to be sufficiently adverse to satisfy the “adverse employment action” element of a prima facie case of discrimination or retaliation.
By Isaac Graff and Francine Foner, Esq.
UPDATE: THE APPELLATE DIVISION APPLIES THE
NEW JERSEY SUPREME COURT’S RULING IN AGUAS
Ty Hyderally, Esq.
Back in our March 2015 newsletter we discussed the New Jersey Supreme Court’s ruling in Aguas v. State, 2015 N.J. LEXIS 131. Aguas was seen primarily as a win for employers, as it provided for a safe haven affirmative defense for employers against sexual harassment hostile work environment claims if the employer had procedures in place for reporting sexual harassment, and the affected employee failed to follow those procedures. However, as we noted then, the news was not all bad for employees, as the Aguas Court also held that the defense would not apply if an employee shows that his or her failure to take advantage of the company’s procedures was “reasonable.” A recent Appellate Division decision, Jones v. Dr. Pepper Snapple Group, 2015 N.J. Super. Unpub. LEXIS 1848 (App. Div. Aug. 3, 2015), demonstrates how courts are applying the Aguas Court’s ruling in determining whether an employee’s failure to follow an employer’s complaint procedures was reasonable.
Plaintiff, Anita Jones (“Jones”), worked as a temporary machine operator in defendant’s manufacturing facility from March 2011 to October 2011. In January 2012, defendant rehired Jones, first as a temporary employee, and then, on February 27, 2012, as a permanent employee. Jones then resigned on March 27, 2012, alleging that she was subjected to sexual harassment by multiple supervisory employees throughout her employment. Jones had mentioned some of the incidents to an individual supervisor, but stated that she did not make any formal complaints because she was afraid she would be fired. Jones also alleged that she was not given an employee handbook setting forth the company’s sexual harassment policy and reporting procedures until after she was rehired as a permanent employee. Jones brought suit against her former employer, alleging, among other things, sexual harassment hostile work environment. The trial court granted defendant’s motion for summary judgement, wherein defendant argued that it could not be held vicariously liable for the supervisor’s sexual harassment because it had implemented an effective anti-harassment policy.
Jones appealed and the Appellate Division reversed and remanded the case back to the trial court. The Appellate Division, citing Aguas, stated that to succeed on the affirmative defense that the employee failed to follow the company’s reporting procedures, “an employer must prove by a preponderance of the evidence that: (1) it did not take any tangible employment action against the plaintiff; (2) it exercised reasonable care to prevent and to promptly correct the sexually harassing behavior; (3) and the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm.” Jones at *7-8, citing Aguas, 220 N.J. at 524. Here, according to Jones’ allegations, she did not receive an employee handbook and was not informed of defendant’s sexual harassment policies and procedures until she became a permanent employee in February 2012. The Court commented that “[p]laintiff may not have endured – or at least may have been able to minimize – the sexual harassment she experienced if defendant had advised her when initially hired as a temporary employee of the remedies available in the event she were harassed.” Id. at *10. Therefore, the Appellate Division reasoned that a factual question existed as to “whether the defendant’s policy [met] the standard necessary to enable it to take advantage of the safe haven affirmative defense, precluding summary judgment for the time period when plaintiff was a temporary employee.” Id. at *10-11. Having determined that there were disputed issues of fact precluding summary judgment regarding the reasonableness of Jones not following the defendant’s policy during the time period when she was a temporary employee, the Appellate division held that Jones’ damages were therefore limited to the time period that she was a temporary employee.
In one of the first decisions applying the standards set forth in Aguas, the Appellate Division was careful not to automatically apply the safe haven affirmative defense based solely upon the employer having a sexual harassment policy and reporting procedures in place. Rather, the Jones Court properly analyzed the facts surrounding the implementation of the employer’s policy to determine if, in fact, Jones’ failure to make a complaint in accordance with her employer’s policy was unreasonable. Thus, based upon the Jones holding, an employer’s failure to provide an employee with its reporting policy and/or harassment training for a period of time may preclude an employer from raising the safe haven affirmative defense for damages arising during that time period.
By Isaac Graff and Francine Foner, Esq.
Aguas Safe Harbor Defense Does Not Immunize Employer Where “Accommodations” Fail To Address the Alleged Harassing Acts
Ty Hyderally, Esq.
While the employer in Jones v. Dr. Pepper Snapple Group was able to take advantage of the safe harbor affirmative defense outlined in Aguas for the time period subsequent to its providing plaintiff with its anti-harassment policy, the defendant in another recent decision, Schiavo v. Marina Dist. Dev. Co., 2015 N.J. Super. LEXIS 156 (App. Div. Sept. 17, 2015), was unsuccessful in asserting that defense. Schiavo was a class action suit brought by 21 female casino employees hired as “Borgata Babes,” alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (“LAD”). Plaintiffs alleged that the violations arose from gender stereotyping, sexual harassment, disparate treatment, disparate impact, and, as to some plaintiffs, resulted in adverse employment actions. Id. at *2. Plaintiffs’ claims were based upon the casino’s sexist dress and weight restriction policies, and its differential application those policies to its female casino employees.
The Appellate Division found that plaintiffs presented sufficient evidence for a reasonable jury to find that some of the plaintiffs failed to comply with the company’s weight standards due to medical conditions or post-pregnancy conditions. Therefore, the casino’s application of its weight policy was discriminatory and harassing, targeting those women when they returned from maternity and medical leave. Id. at *57. As the Schiavo Court further opined, “[d]espite defendant’s ‘accommodations' of these documented conditions, allegations have been presented showing the policy was used to harass these women” because of their gender. Id. The employer raised the Aguas safe harbor affirmative defense, arguing that it had a sexual harassment prevention policy and a hotline to make such reports. Id. at *55. However, the existence of a sexual harassment prevention policy and hotline was insufficient to defeat summary judgment. The Appellate Division observed that the “record also contain[ed] some evidence of reported sexual harassment by customers and sexually harassing comments and actions by other associates, which although reported, went unaddressed by supervisors.” Id. at *55. Thus, under an Aguas analysis, it was reasonable for the employees to fail to take advantage of the company’s procedures, as there was evidence that they were ineffective.
Although successful in defeating summary judgment on sexual harassment hostile work environment claims based upon the casino’s discriminatory and harassing application of its dress and weight standard policy, the class lost its claim that the casino’s policies were discriminatory on their face, because they were either time barred or unsupported. The Appellate Division also concluded that the LAD does not encompass allegations of discrimination based on weight, appearance, or sex appeal.
By Francine Foner, Esq.
These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.