Title VII

Ames v. Ohio Department of Youth Services

Issues

Do plaintiffs suing under Title VII of the Civil Rights Act who are members of “majority groups” have to show “background circumstances” showing their employer discriminates against the majority?

This case asks the Supreme Court to determine whether a plaintiff suing under Title VII of the Civil Rights Act who is a member of a majority group must provide “background circumstances” to show that their employer discriminates against majority groups. Ames argues that the background circumstances rule treats plaintiffs differently based on their protected characteristics, contradicting the goals of Title VII. The Ohio Department of Youth Services argues that the background circumstances rule is only a method for deciding individual cases and does not discriminate based on a protected characteristic. This case has important implications for how readily individuals can use the civil rights laws to sue, and how courts determine discrimination without direct evidence.

Questions as Framed for the Court by the Parties

Whether, in addition to pleading the other elements of an employment discrimination claim under Title VII of the Civil Rights Act of 1964, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

In 2014, the Ohio Department of Youth Services (“Department”) appointed Marlean Ames, a heterosexual woman, to be the Administrator of the Prison Rape Elimination Act (“PREA Administrator”); this was an at-will employment position which meant that she could be fired without cause. Ames v. Ohio Dep’t of Youth Servs. at 2. Then in 2017, Ginine Trim, a gay woman, was assigned to be Ames’s new supervisor.

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Arbaugh v. Y & H Corp.

Issues

Whether a defect in a claim as to the nature of “employment” under Title VII of the 1964 Civil Rights Act, which prohibits discrimination by employers with fifteen or more employees, limits the subject-matter jurisdiction of the Federal courts in hearing Title VII claims, as held by the Fourth, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits, or if it only raises an issue going to the merits of the claim, as held by the Second, Seventh, and Federal Circuits?

 

In November of 2001, Jenifer Arbaugh brought suit against her former employer, Y & H Corporation under Title VII of the 1964 Civil Rights Act, alleging that she was discriminated against because of her sex, and was forced to resign her position as a bartender and waitress. Y & H admitted to the questions of jurisdiction and its status as an employer under Title VII. In a district court trial, a jury found for Arbaugh. Y & H then advanced the claim that the court lacked subject-matter jurisdiction to hear Arbaugh’s claim because Y & H did not have fifteen full-time employees at the time of the incident, and thus did not actually qualify as an “employer” under § 2000e(b) of Title VII. If an employer’s status is a question of subject-matter jurisdiction, as Y & H proposes, then Arbaugh’s suit would have to be dismissed even though a verdict had already been passed because jurisdiction cannot be admitted to or waived by a defendant, and a challenge to jurisdiction may be brought up at any point in the litigation, even after a verdict has been given. Arbaugh responded that the definition of “employer” is a question of merit and not of subject-matter jurisdiction. As such Y & H could have and did indeed waive the matter in its admission. The district court, after a lengthy determination of whether Y & H did qualify as an employer, ruled in favor of Y & H, and dismissed Arbaugh’s case. The Court of Appeals for the Fifth Circuit affirmed the district court’s ruling, holding that the so-called “employee-numerosity” issue is a jurisdictional question. The Supreme Court’s decision is expected to definitively determine whether the employment status of a Title VII defendant is a jurisdictional matter or one going to the merits of the case to be decided by the trier of fact. The Supreme Court will also resolve existing conflicts between and within the various circuits as to this question, and will hopefully establish a uniform standard for all plaintiffs and defendants in Title VII employment claims.

Questions as Framed for the Court by the Parties

Section 701(b) of Title VII of the 1964 Civil Rights Act applies the Title VII prohibition against employment discrimination to employers with fifteen or more employees. Does this provision limit the subject-matter jurisdiction of the Federal courts, or does it only raise an issue going to the merits of a Title VII claim?

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AT&T Corp. v. Hulteen

Issues

Does the Pregnancy Disability Act of 1978 (“PDA”), which prohibits discrimination on the basis of pregnancy, apply retroactively, and therefore, does an employer violate Title VII of the Civil Rights Act of 1964 by failing to restore service credits to female employees who took pregnancy leaves prior to Congress’ enactment of the PDA?

 

In 1987, Congress passed the Pregnancy Discrimination Act (“PDA”) to address the gap left by Title VII of the Civil Rights of 1964 (“Title VII”), which prohibits employers from discriminating on the basis of sex. Prior to passage of the PDA, AT&T’s seniority system treated pregnancy leaves as different from disability leaves: women who took time off for pregnancy lost net service credit (“NCS”), which, among other things, was—and still is—the principal factor used to calculate pensions. Following passage of the PDA in 1978, AT&T immediately ceased reducing the NCS of women who had taken pregnancy leaves. However, AT&T did not restore service credits to female employees who took pregnancy leaves prior to the PDA’s enactment. Hulteen et al., all female employees who took pregnancy leaves prior to the passage of the PDA, sued AT&T. The Ninth Circuit held that AT&T violated Title VII’s prohibition of sex-based discrimination by failing to restore service credits to female employees who took pregnancy leaves prior to the PDA’s enactment. Petitioners, AT&T, argue that this reading impermissibly gives retroactive effect to the PDA.

Questions as Framed for the Court by the Parties

Before the passage of the Pregnancy Discrimination Act of 1978 (“PDA”), it was lawful to award less service credit for pregnancy leaves than for other temporary disability leaves. Gilbert v. Gen. Elec. Co., 429 U.S. 125 (1976). Accordingly, the questions presented are:

1. Whether an employer engages in a current violation of Title VII when, in making post-PDA eligibility determinations for pension and other benefits, the employer fails to restore service credit that female employees lost when they took pregnancy leaves under lawful pre-PDA leave policies.

2. Whether the Ninth Circuit’s finding of a current violation of Title VII in such circumstances gives impermissible retroactive effect to the PDA.

Title VII of the Civil Rights of 1964 (“Title VII”) prohibits employers from discriminating on the basis of sex. See 42 U.S.C. § 2000e–2(a). When enacted, however, Title VII did not expressly prohibit discrimination on the basis of pregnancy. See Hulteen v.

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·       Wex: Law about the Civil Rights Act of 1964

·       Wex: Law about ERISA

·       The Equal Employment Opportunity Commission: Pregnancy Discrimination

·       SCOTUS Blog on AT&T v. Hulteen

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Burlington Northern & Santa Fe Railroad Co. v. White

Issues

Does an employer engage in an adverse employment action, and thereby violate Title VII of the Civil Rights Act of 1964, when he retaliates against an employee who files a discrimination claim by temporarily suspending her without pay and reassigning her to a position with different responsibilities?

 

Title VII of the Civil Rights Act of 1964 forbids employers from retaliating against an employee who opposes discriminatory practices. However, the requisite provision, 42 U.S.C. § 2000e-3(a), does not define what kinds of adverse employment decisions are actionable. Courts of appeal have adopted three different standards to guide this determination: the Sixth Circuit prohibits any “materially adverse change in the terms of employment;” the Ninth Circuit prohibits any adverse treatment “reasonably likely to deter” the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits only prohibit an “ultimate employment decision.” In this case, the Sixth Circuit held that a temporary suspension rescinded by the employer with full back pay, or an inconvenient reassignment, constituted actionable adverse employment decisions. The Supreme Court must now determine which of the foregoing standards is correct.

Questions as Framed for the Court by the Parties

Whether an employer may be held liable for retaliatory discrimination under Title VII for any "materially adverse change in the terms of employment" (including a temporary suspension rescinded by the employer with full backpay or an inconvenient reassignment, as the court below held); for any adverse treatment that was "reasonably likely to deter" the plaintiff from engaging in protected activity (as the Ninth Circuit holds); or only for an "ultimate employment decision" (as two other courts of appeals hold).

On June 23, 1997, Burlington Northern hired Sheila White to work in its Maintenance of Way department at the Tennessee Yard. White v. Burlington Northern & Santa Fe Railroad Co.,364 F.3d 789, 792 (6th Cir. 2004). Marvin Brown, roadmaster of the Yard, assigned White to operate the forklift, a position formerly held by Ralph Ellis until his June 1997 resignation. Id.

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Crawford v. Metropolitan Government of Nashville

Issues

Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?

 

Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.

Questions as Framed for the Court by the Parties

Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?

In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. See Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx.

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Crawford v. Metropolitan Government of Nashville

Issues

Does disclosing sexual harassment for the first time during an employer’s self-initiated internal investigation constitute protected activity under Title VII’s anti-retaliation provision, such that employees who disclose sexual harassment in this way are protected from being demoted or fired for doing so?

 

Vicky Crawford, a former employee of the Metro School District for Nashville and Davidson County, Tennessee, brought a Title VII anti-retaliation suit against her employers when she was fired from her job after participating in an internal investigation into sexual harassment rumors. During the investigation, Crawford confirmed the rumors by discussing specific incidents of sexual harassment. Crawford was fired shortly after the investigation was completed. Crawford filed a Title VII anti-retaliation suit, which the trial court dismissed at summary judgment. The Sixth Circuit upheld this decision, ruling that Title VII did not extend to employees who had taken part in an employer’s internal investigations but had not themselves instigated Equal Employment Opportunity Commission claims. On appeal to the Supreme Court, the Metropolitan School District claims that a broader reading of the Act would open up employers to countless Title VII claims, which could discourage employers from initiating internal investigations. Crawford contends that declining to extend the provisions of the anti-retaliation clause to employees who merely participate in internal investigations will discourage employees from taking part in such investigations due to the fear of retaliation, which will render such investigations pointless. How the Supreme Court decides the case will determine the scope of Title VII as applied to employee participation in internal investigations as well as what protections Title VII offers to employees and employers alike.

Questions as Framed for the Court by the Parties

Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment?

In 2002, the Metropolitan Government of Nashville and Davidson County (“Metro”) opened an internal investigation into allegations of sexual harassment against Dr. Gene Hughes (“Hughes”), the employee-relations director for the Metro School District. See Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 Fed. Appx.

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CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission

Issues

Can the basis for awarding attorney’s fees to a defendant arise from the Equal Employment Opportunity Commission’s failure to comply with pre-suit obligations pursuant to Title VII of the Civil Rights Act of 1964?

 

The Supreme Court will decide whether the basis for awarding attorney’s fees to a defendant can arise from EEOC’s failure to comply with pre-suit obligations pursuant to Title VII of the Civil Rights Act of 1964. CRST asserts that Title VII and Court precedent do not require defendants to “prevail on the merits” to be awarded attorney’s fees, and that, even if they do, CRST prevailed on the merits in this case. On the other hand, the Equal Employment Opportunity Commission (“EEOC”) contends that both Title VII and Court precedent require the party to have prevailed on the merits to receive attorney’s fees, meaning that the judgment must bar further litigation on the matter. The outcome of this case implicates the incentives for EEOC to comply with its obligations in pre-suit investigations in Title VII actions.

Questions as Framed for the Court by the Parties

Can a dismissal of a Title VII case, based on the Equal Employment Opportunity Commission’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, form the basis of an attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k)?

On December 1, 2005, Monika Starke filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) against her former employer CRST Van Expedited, Inc. (“CRST”), a transit and logistics company. See EE

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Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.

Issues

Does an employer violate Title VII by refusing to hire an applicant or by discharging an employee based on a religious observance when the applicant or employee failed to provide actual knowledge to the employer, through explicit notification, of the applicant’s or employee’s need for a religious accommodation?

The Supreme Court will determine whether an employer can be liable under Title VII for refusing to hire a candidate or dismissing an employee only if the employer had actual knowledge, gained by the candidate’s or employee’s explicit notification, that the candidate or employee required a religious accommodation. The EEOC argues that an employer violates Title VII when the employer refuses to hire an applicant or dismisses an employee based on “a religious observance and practice” that could be reasonably accommodated. Abercrombie & Fitch counters that its denial of an exception to a religion-neutral store policy—a look policy considered crucial to the vitality of its business—is not intentional discrimination under Title VII. The Supreme Court’s decision will implicate Title VII’s role in religion-neutral work policies as well as who bears the burden of raising the need for religious accommodations in the workplace.

Questions as Framed for the Court by the Parties

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer "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 * * * religion." 42 U.S.C. 2000e-2(a)(l). "Religion" includes "all aspects of religious observance and practice" unless "an employer demonstrates that he is unable to reasonably accommodate" a religious observance or practice "without undue hardship on the conduct of the employer's business." 42 U.S.C. 2000e(j).

The question presented is whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. 

Abercrombie & Fitch Stores, Inc. (“Abercrombie”) is an American clothing company with stores across the United States that operates under several names, including Abercrombie & Fitch, Abercrombie Kids, and Hollister Co. See Equal Employment Opportunity Commission v.

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Fort Bend County, Texas v. Davis

Issues

Is Title VII’s administrative-exhaustion requirement a waivable rule that agencies can raise as an affirmative defense, or is it a jurisdictional prerequisite for suit?

The Supreme Court will determine whether federal jurisdiction over Title VII claims is limited to claims that have met Title VII’s administrative-exhaustion requirement by first being presented to the Equal Employment Opportunity Commission (“EEOC”). Fort Bend County, Texas (“Fort Bend”) argues that it is “fairly discernable” from the text, structure, and purpose of Title VII that Congress intended to limit jurisdiction in this way, and so presenting a claim before the EEOC should constitute a jurisdictional prerequisite to suit. Lois Davis (“Davis”), who filed a Title VII complaint alleging sexual harassment, retaliation, and religious discrimination while employed by Fort Bend, contends that because Congress has not made a “clear statement” that the administrative exhaustion requirement under Title VII is jurisdictional, jurisdiction should not be limited where the exhaustion requirement has not been met. This case will have implications for the efficiency and costs of administrative actions and Title VII enforcement.

Questions as Framed for the Court by the Parties

Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.

Lois Davis (“Davis”), an information technology supervisor employed by Fort Bend County (“Fort Bend”), reported to the human resources office that the information technology director (“director”) sexually harassed her. Davis v. Fort Bend County, Texas, 893 F.3d 300, 302 (5th Cir. 2018). The director eventually resigned because of the ensuing investigation.

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Green v. Brennan

Issues

Under the federal anti-discrimination law, does the filing period for a constructive discharge claim begin to run at the time an employee resigns, at the time an employee gives notice of her resignation, or at the time of the employer’s last discriminatory act giving rise to the resignation?

 

Federal employees wishing to file a discrimination lawsuit under Title VII of the Civil Rights Act of 1964 must exhaust their administrative remedies before proceeding to federal court. The first step in that process is contacting an Equal Employment Opportunity counselor (“EEOC”) and reporting the charge within 45 days of the matter alleged to be discriminatory. See Green v. Donahoe, 760 F.3d 1135, 1139–40 (10th Cir. 2014). Green, a United States Postal Service employee, alleges that he was constructively discharged after being forced to retire. See id. at 1137–38. Green contacted an EEOC to report the alleged discrimination within 45 days of his formal retirement. See id. at 1138. The issue before the Court is when the 45-day filing period begins to run. See Brief for Petitioner, Marvin Green at i. The Tenth Circuit ruled that the filing period begins to run when the last allegedly discriminatory act occurred, which in Green’s case was more than 45 days before Green contacted the EEOC. See Green, 760 F.3d at 1142. Green argues that the filing period begins to run when the employee actually resigns following a discriminatory act. See Brief for Petitioner at 17. Postmaster General Brennan maintains that the filing period begins to run when the employee either actually resigns or gives the employer a notice of resignation, which may occur before the actual resignation. See Brief for Respondent, Megan J. Brennan at 14. Court-Appointed Amica Catherine M.A. Carroll, Esq., agrees with the Tenth Circuit’s holding. See Brief for Court-Appointed Amica Curiae, in Support of the Judgment Below at 21. This case will impact the rule that courts use when applying Title VII and the balance between employees’ need to access the courts and employers’ need for repose from impending lawsuits. See Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc. et al., in Support of Petitioner at 23; Brief of Amici Curiae The Equal Employment Advisory Council et al., in Support of Affirmance at 18.

Questions as Framed for the Court by the Parties

Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation?

In early 2008, Marvin Green, an African American United States Postal Service (“Postal Service”) worker, applied for a postmaster position. Green v. Donahoe, 760 F.3d 1135, 1137 (10th Cir.

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