Court Rejects "But For" Standard in Federal Sector age Discrimination Claim

An employee who had worked for her government employer for more than 30 years did not receive a promotion that she had sought. The position was instead given to a younger employee. The employee sued her employer, alleging age discrimination, sex discrimination and retaliation. The employee claimed that she was not only deprived of the position due to her age and gender, but that she was also retaliated against because she was not given the promotion due to her prior complaints of discrimination. The U.S. Court of Appeals for the First Circuit held that the employee had failed to meet the burden of establishing her claims. Specifically, although the employee based her claim of age discrimination on a memorandum in which the employer referenced a need for “new blood,” that was not dispositive of age discrimination. Further, the employee failed to overcome the fact that the younger employee received the promotion because he had performed more favorably during the interview and had more experience in the industry at issue. Notably, the court applied the “mixed-motive” analysis, and not the more stringent “but for” standard recently applied by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). The court held that the employee did not have to show that age was the “but for” cause of her failure to receive the promotion because that standard did not apply to federal sector workers. In age discrimination cases, different standards of liability may therefore apply to different employers, depending upon whether the employer is in the private or public sector.

Velazquez-Ortiz v. Vilsack, No. 10-1787 (1st Cir. Sept. 22, 2011)

Court Allows Employee’s Harassment Claim to Proceed to Jury to Determine Causation

During a business dinner, a member of the organization’s board of directors told an employee that he “fantasized about making love to her on a dance floor and wanted to take her to Las Vegas and other places around the world.” The employee declined the board member’s advances, and complained to the human resources department about the harassment. Shortly thereafter, the employer underwent personnel changes, which included the hiring of a new president. In this process, the employee was notified that her position was being eliminated. She sued, alleging sex discrimination, harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended. With respect to the sex harassment claim, the U.S. Court of Appeals for the Seventh Circuit held that the single sexual advance by the board member did not rise to the requisite level of “severe and pervasive” harassment. However, as to the remainder of the claims, the court found that there existed sufficient questions of fact such that the claims should go to the jury. For instance, the court indicated that the jury should make the determination of whether or not the employee’s termination was causally related to the making of her harassment complaint, particularly given the fact that four new employees were hired at or around the time the employee was terminated. As best practice, employers should ensure that all employees — particularly management-level employees — receive training in anti-discrimination and anti-harassment policies. Employees must be made aware that their conduct, even during off-site or off-duty events, may constitute harassment.

Egan v. Freedom Bank, No. 10-1214 (7th Cir. Oct. 6, 2011)

Worker Denied Ability to Maintain Discrimination Claim Based on Sexual Orientation

After working on the 2007 Country Music Awards production, a theater producer complained to his union that one of his co-workers harassed him based upon his homosexual orientation. Shortly thereafter, according to the employee, the union local stopped referring him for jobs. The employee sued, alleging violations of the Tennessee Human Rights Act and Title VII of the Civil Rights Act of 1964, as amended, for gender discrimination and retaliation, and also alleged violation of the union’s duty of fair representation. The U.S. Court of Appeals for the Sixth Circuit dismissed the employee’s claims because neither federal nor the applicable state law prohibit discrimination based upon sexual orientation. Courts have uniformly held that the reference to “sex” in Title VII does not refer to sexual orientation. The employee had attempted to circumvent those decisions by arguing that he was discriminated against for failing to conform to sexual stereotypes, a claim which has been found to be viable under Title VII. The court rejected this argument, finding that the employee’s claim was simply one for discrimination based on sexual orientation, which is not prohibited under Tennessee or federal law. Employers—especially those that conduct business in numerous states—must be mindful of both state and federal anti-discrimination laws, which are often different in terms of what constitutes a protected characteristic. More than 20 states prohibit discrimination based upon sexual orientation. Read more about this case here.