Yearly Archives: 2011

Encouraging Courts to Think Practically About Workplace Harassment

Feb 24, 2011 Henry L. Chambers, Jr.

In their excellent essay, Susan Grover and Kimberley Piro propose that courts explicitly consider whether a harasser is the target’s co-worker or the target’s supervisor in deciding whether harassment is sufficiently severe or pervasive to constitute actionable harassment under Title VII.  Grover and Piro argue that the same harassment will have a different effect on a reasonable employee – a core part of determining if the harassment is severe or pervasive – depending on whether the harasser is the target’s co-worker or the target’s supervisor.  The key point – that a supervisor’s direct power over an employee makes criticism or harassment from a supervisor much more harmful to the target’s employment than the same behavior by a co-worker – is virtually unassailable.

The essay identifies an important doctrinal issue.  However, its power is it that it raises a practical issue relevant to many workplace harassment disputes and considers how courts ought to address the practical issue through existing doctrine.  Rather than create an exotic problem and suggest that courts alter doctrine to address it, the essay makes a very precise point and offers a real prescription for addressing the point.   The prescription can be incorporated very easily by courts into their analyses of current harassment cases because it does not require the extension, alteration or reinterpretation of Supreme Court doctrine.  The authors implicitly suggest that courts should already be taking the status of the harasser into account when evaluating the severity or pervasiveness of the subject harassment because doing so is already consistent with the Supreme Court’s Title VII doctrine.  That may not be the flashiest legal scholarship, but it is very important and worthy of note as a TILL (Thing I Like Lots).

As Grover and Piro explain, courts must address two questions in harassment cases.  The first focuses on whether actionable harassment exists.  The second focuses on whether the employer should be liable for the harassment.  The Supreme Court has indicated how the second question is affected by whether the harasser is a co-worker or a supervisor, both in discussing the distinction between quid pro quo and hostile work environment harassment and in creating the Faragher/Ellerth affirmative defense that may be available when a supervisor triggers a hostile work environment.  However, the Court has been far less specific regarding how the first question is affected by the harasser’s status.

The Court limits actionable hostile work environment harassment to severe or pervasive harassment.  Severe or pervasive harassment is harassment that alters the conditions of the employee’s employment.  However, in defining what harassment will be actionable, the Court has tended to focus on how abusive the subject harassment was.  Doctrine suggests that courts consider the totality of the circumstances when determining if the harassment is sufficiently abusive to be deemed actionable.

The authors note that whether a harasser is an employee’s supervisor or merely a co-worker ought to matter in determining whether the subject harassment is abusive enough to alter the conditions of the employee’s employment.  One premise of the argument is that co-worker harassment can be handled in ways that supervisor harassment cannot.  For example, a target can usually ignore a co-worker’s abuse without direct reprisal.  However, a supervisor’s harassment cannot be so easily ignored.  An employee must listen to one’s supervisor if only to take instruction regarding legitimate aspects of one’s job duties.  Indeed, as the authors note, refusing to listen to one’s supervisor may lead to legitimate discipline.  In addition, the workplace conditions for an employee may be affected indirectly depending on the identity of the harasser.  When the harasser is a supervisor, other workers may feel freer to harass the target than if the harasser were merely another co-worker.

However, according to the authors, most courts appear to look only at the content of the harassment the target endures rather than the identity of the harasser.  The totality-of-the-circumstances test focuses on the abuse the target suffers and whether that abuse alters the conditions of employment.  If, as the authors suggest, a reasonable employee feels more abused if harassed by the employee’s supervisor than if harassed by the employee’s co-worker, the identity of the harasser is important.  Indeed, the identity of the harasser would matter precisely because the harasser’s identity may significantly increase the level of abuse suffered and determine whether the conditions of employment have been altered.  Consequently, courts should specifically consider the identity of the harasser when determining if actionable harassment has occurred.

The essay provides a good and tight argument.  It does not provide an exhaustive treatment of the issue and need not have done so.  Certainly, the essay could have been longer and could have explored whether the harasser must be the target’s supervisor or merely need be someone higher in the workplace hierarchy than the employee, such as a supervisor in a different division, with the power or influence to make the victim’s employment more difficult than a regular co-worker could.  However, such extended treatment was not necessary.

The essay took an issue of practical concern to those harassed in the workplace and explored both how courts have approached the issue and how current doctrine allows courts to approach the issue more properly.  More essays of this type should be welcome both inside and outside of the academy.  To the extent that law ought to be understandable by the public and should sensibly resolve real issues facing by those in situations regulated by the law, focusing on practical issues and making the doctrine sensibly consistent with the real world is plenty enough reason to write an essay and plenty enough reason to suggest that others read such an essay.

When Employee = Employer

Feb 10, 2011 Charles A. Sullivan

I admit to being old-fashioned enough to like well-done doctrinal articles. Especially ones that upset conventional wisdom – the courts, the agencies, and the law reviews – by suggesting that, not to put too fine a point on it, everybody’s wrong. Doctrinally. Such is Frank Menetrez’s piece Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010). Frank doesn’t appear to be in the academy at the moment, but we could use more scholars like him.

Admittedly, I came to the piece with pretty low expectations – agency, control, what new could be said?  It turns out, plenty. Frank’s target is the notion that someone can’t be an employer and an employee at the same time, which explains why cases like Clackamas Gastroenterology Associates, P.C. v. Wells turn on whether the doctor-owners were “really” owners (in which case they were employers and, for the Court, couldn’t also be employees).

Rather than approach the question from a policy perspective (are these the kind of people the employment discrimination laws were designed to protect?) or a formal one (is the entity the employer, thus rendering the owners employees insofar as they work for the entity?), Menetrez takes the Court at its word (in both Clackamas and its predecessor Darden) that Congress intended the concept of “employee” to turn on common law principles of agency. Under that approach, he argues, owners can be employees. It pretty much turns on whether the entity controls them in aspects of their work (even if, in other ways, they control the entity).

Among the ironies that this argument uncovers is that a “purposive” approach to the statute (usually thought to be expansive of its protections) is actually restrictive and a plain meaning approach (employee = controlled agent) is expansive. As was an issue in Clackamas itself, finding a person not to be an employee because she’s an owner most often means that other workers are not covered by the statute since the entity then has too few employees to be a statutory “employer.” Another irony is that the elusive search for the essence of “partner” (is an individual a partner in name only or “really” a partner) turns out to be unnecessary – “under the common law of agency, a bona fide partner can be, and often is, an employee regardless of the amount of managerial power the partner possesses. . . .”

I suspect the reader of this is as skeptical as I was when I picked up Employee Status, so maybe a brief excerpt will make it clearer than I could in the limited space that Jotwell allows. Menetrez views the case law, leading up to and including Clackamas as dependent on three arguments:

(1) An individual who owns and manages a business is an employer; (2) an individual cannot be both an employer and an employee; and (3) an individual cannot be both a partner and an employee. This Article argues that, evaluated under familiar common law agency principles, the defense arguments are unsound at every step.

First, an individual can own and manage a business without being the employer of the business’s workers. Every corporate officer knows that, and every corporate defense counsel knows it too. If a corporation’s chief executive officer is also both the chair of the corporation’s board of directors and a major shareholder, that person does not thereby become the employer of the corporation’s employees. . . .

Second, if it were true that an individual who owns and manages a business thereby becomes an employer, then it would follow that an individual can be both an employer and an employee at the same time. Again, the reasons are uncontroversial. A factory worker who buys shares of his corporate employer’s stock does not thereby cease to be an employee of the corporation. Rather, the worker is both an owner and an employee. . . .

Third, no less an authority than the Restatement (Second) of Agency states that, under certain easily satisfied conditions, partners can be employees of their own partnership. At common law, an employee is an agent whose principal has the right to control the agent’s physical conduct. Partners are agents of their partnership, and there is no reason why the partnership cannot have an express or implied right to control the partners’ physical conduct in the performance of their work for the partnership. Indeed, it would be surprising if a law firm, for example, did not have an express or implied right to prohibit its partners from physically assaulting the firm’s clients. (P. 138, 139.)

According to Menetrez, the analysis of all of these questions is simple, and mandated by the common law agency principles. Thus, the first question is whether there is an agency relationship and, if so, who is the agent and who is the principal. Once we know that, the next question is whether the agent is an employee, which turns on the degree of control of the agent by the principal.

For Menetrez, Clackamas is profoundly wrong because it “positively endorsed” the ideas that being an owner and manager makes the individual an employer and that employers cannot be employees–while at the same time purporting to apply common law agency principles. He is persuasive that both cannot be true, and he views the common law referent as the more basic principle.

No matter how much I like a piece, I can always find something to carp about. One quibble is his failure to give more attention to Hishon v. King & Spaulding, which seemed to have created the false dichotomy between employers and employees by assuming that a bona fide partner could not also be an employee. A second quibble has to do with the notion of “control.” At least to me, it seems that some courts view “control” as the central test, with, say, the 12 factors the Supreme Court endorsed in Community for Creative Non-Violence v. Reid as ways of determining control, while other courts view the question as looking to such factors to determine in a kind of free standing way whether someone is an employee. For example, Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003), looking at these factors, found an orchestra not to be an employer of its members – although it would be hard to find more exacting control in any setting! But, of course, Menetrez’s topic wasn’t exploring whether “control” is really the watchword – it was revealing that the Court isn’t consistent in its own use of doctrine.

I went to law school about the time that Agency & Partnership was being phased out as a separate course. Theoretically, it was merged into Business Associations, but all the BA teachers I ever met rushed past those issues so they could get to fun stuff like the business judgment rule and 10b-5. It may be that this shift in legal education is responsible for the failure Menetrez identifies in faithfully applying common law agency principles to the situation he discusses, and maybe a lot of other “employee” questions too.

Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable

Jan 21, 2011 Martin J. Katz

Things we like (lots): Irony.

In 1973, the Supreme Court gave us McDonnell Douglas, the ubiquitous framework for proving discrimination under disparate treatment statutes such as Title VII.  McDonnell Douglas has been widely criticized – often for good reason.  McDonnell Douglas places the full burden of proving discriminatory causation on the party least equipped to prove it: the plaintiff.  Additionally, most courts have read McDonnell Douglas as requiring but-for causation for liability, which provides an unjustified windfall to defendants in many cases where multiple motives are at play.  Yet, despite these flaws, McDonnell Douglas does one thing well:  It allows us to ascribe unsavory, and possibly discriminatory, motives to defendants who dissemble – those who provide non-credible reasons for their actions.

There are alternatives to McDonnell Douglas, including the Court’s 1989 Price Waterhouse framework.  Price Waterhouse, too, was vulnerable to criticism.  But at least that case permitted burden-shifting on the issue of causation.  Yet, in Gross, the Court repudiated Price Waterhouse – at least in ADEA cases.  In such cases, the Court held, plaintiffs bear the full burden of proving but-for causation.

In her new article, Catherine Struve questions the Court’s motives in Gross.  And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis.

Like the skilled employment lawyer she is, Professor Struve divides and conquers each of the arguments advanced by the Court for its action.  First, she considers the Court’s argument that the Civil Rights Act of 1991 does not apply to ADEA claims.  While she concedes that this argument might be correct, she also notes that it is irrelevant. Then, she considers the Court’s textual argument: that there is no reference to burden-shifting in the ADEA.  But she points out that the Price Waterhouse Court, reading virtually identical language in Title VII, found that burden-shifting was appropriate.  Thus, Professor Struve concludes:  The lynchpin of the Court’s reasoning in Gross was its repudiation of Price Waterhouse.

Professor Struve next attacks the Court’s reasoning for repudiating Price Waterhouse.  Perhaps surprisingly, the only reason offered by the Court for this repudiation was that Price Waterhouse had proven “difficult to apply” – or, as Professor Struve puts it, “confusing.”  She argues, persuasively, that this is simply not true:  There is nothing inherently confusing about Price Waterhouse burden-shifting.  Her Exhibit A is two jury instructions, one using a Price Waterhouse burden-shifting instruction, and the other a simple determinative factor/but-for instruction.  The conclusion:  Any reasonable reader (at least, any reasonable reader with a JD – and likely those with much less education) would see that the Price Waterhouse instruction is only slightly more complicated than the determinative factor instruction, and hardly confusing.  And, as Professor Struve’s adept analysis shows, the authorities cited by the Court for its “difficult to apply” argument do not help the Court demonstrate “confusion.”

Finally, Professor Struve looks at other types of “confusion” that might arise from Price Waterhouse (e.g., when to apply Price Waterhouse under the ridiculously confusing “direct evidence” test).  She argues, persuasively, that none of these other forms of “confusion” would justify repudiating Price Waterhouse – and some might in fact counsel in favor of retaining it.

So, we have a classic case of pretext.  The Court says that it acted to avoid confusion.  But Professor Struve shows that there is no real confusion.  Based on this fact, she argues, we can infer that not only that the Court did not act for the stated reason (to avoid confusion); we can infer that the Court was disingenuous – that it was hiding some less savory motive.  Perhaps, Professor Struve argues, the Court acted based on policy considerations.  Specifically, she argues, the Gross majority may have based its holding on concerns about employment discrimination litigation generally, and age discrimination litigation specifically.

While we could debate under Reeves whether pretext alone is sufficient for liability, Professor Struve does not argue for imposing liability upon the Court for its apparent dissembling.  Instead, she hopes that Congress will accept the “invitation” that the Court seems to have provided for engaging in a policy debate about burden-shifting in antidiscrimination law.  And in case Congress is inclined to accept this invitation, she provides an excellent guide to the policy questions involved in this debate.

I hope that Professor Struve is right; that the Court will see the Court’s apparent dissembling in Gross as an invitation to revise and unify its employment discrimination laws.  But whatever Congress does, it was great fun to see Professor Struve apply McDonnell Douglas style pretext analysis to the Court’s opinion in Gross, which went out of its way to entrench the more problematic aspects McDonnell Douglas.  Turnabout, after all, is fair play.

Does the NBA’s Dress Code Violate Title VII?

Jan 5, 2011 Joseph Slater

Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.”  Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players.  White players were labeled “smart and hardworking,” black players were “naturally talented.”  Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”

Race has long been significant in sports, today perhaps nowhere as much as in the NBA.  Yet discrimination scholars have largely overlooked this fertile field.  Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code.

Lacy stresses that “hip hop culture” is central to NBA marketing and corporate tie-ins (e.g., dancers and music during games, and an NBA-licensed video game emphasizing hip hop culture).  Dress has been part of that, from “Air Jordan” sneakers, to baggy shorts, to “bling.”  Yet since 2005, the NBA has imposed a dress code on its players that generally requires “business casual” clothes even when off-duty, and specifically bars various indicia of hip hop culture.  The racial overtones in both marketing “hip hop” in some contexts and being wary of players seeming to be too involved with it are obvious.

Lacy ties this to the broader issue of employer policies on appearance and conduct outside the workplace, arguing that such rules can violate Title VII’s disparate impact doctrine.  Employers have legitimate interests:  highly controversial acts may reflect on the employer’s reputation or perceived position on a topic.  But such policies can also interfere with cultural expression in private life, including cultural expressions closely tied to race.  Lacy critiques cases that reject Title VII challenges to appearance policies (on clothes, grooming, etc.), and he proposes a new Title VII analysis for such employer policies that govern off-duty conduct.

Under Lacy’s proposed test, the employee must first show that the policy affects his private life and affects it because of (in this case) his race.  The burden would then shift to the employer to prove it adopted the rule for a rational, job-related purpose, and that the rule was reasonably necessary to accomplish a legitimate business purpose.  The employer would have to show it was impossible to otherwise accommodate the employee without an undue hardship on the business.  The burdens of production and persuasion would then shift to the employee to show a disparate impact on his protected group and that an alternative practice exists that would serve the employer’s purpose without the discriminatory effect.

Lacy applies his proposed test to the NBA policy and finds a strong case for a violation, at least to the extent that the policy regulates players when they are not doing the business of the league (e.g., when they are attending games on their own time).  The employer might argue that NBA players are so famous that their conduct would always be associated with the NBA or team. But this proves too much: can the NBA bar players from taking positions on any arguably controversial topic?  Also, famous players may be associated with their teams when they appear in uniform and/or in advertisements, but not in all facets of the player’s private life.  Perhaps most revealingly, why does the dress policy not regulate coaches and owners, who are often quite visibly associated with the team?  Lacy gives the excellent example of Dallas Mavericks owner Mark Cuban:  well known, flamboyant, and often in the stands at games in clothing that would not satisfy the dress code.

Lacy also discusses alternative theories: the wrongful discharge tort, and state statutes giving some protection for off-duty conduct.  While these theories are relevant and worth noting, I found the Title VII part to be the most intriguing.  I would have liked to see Lacy discuss in more detail what he feels the specific legal consequences should be of the NBA’s hypocrisy (enforcing the dress code while simultaneously exploiting hip hop culture).  But overall, this is a very interesting and thought-provoking piece, which I liked a lot.