In Lorber v. Lew, 2017 U.S. Dist. LEXIS 21189, *14-15 (S.D.N.Y. Feb. 13, 2017), plaintiff — an openly gay IRS employee — filed suit against the former Secretary of the Treasury alleging discrimination and retaliation in violation of Title VII based on his gender. Among other things, plaintiff alleged that he had been passed over for promotions, excluded from meetings, and given poor performance reviews for discriminatory and retaliatory reasons. Although the Court granted the defendants’ motion to dismiss plaintiff’s hostile work environment claim, the court refused to dismiss plaintiff’s claim for discrimination under Title VII for nonconformity with male sex stereotypes.
Significantly, although plaintiff admitted (in response to the defendants’ motion to dismiss) that rulings from the Second Circuit Court of Appeals foreclose Title VII claims based exclusively on sexual orientation discrimination, the court in Lorber noted that “the Second Circuit has recently held oral argument in two cases that present the issue of whether Title VII protects against sexual orientation discrimination. See Zarda v. Altitude Express, No. 15-3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group, Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017).” Thus, the court stayed adjudication of the plaintiff’s sex stereotyping claim pending the Second Circuit’s rulings.
While timing may not be “everything,” it certainly can make a huge difference for the parties. In Lorber, plaintiff’s Title VII claim survived solely on the fact that the determinative legal issues are expected to be resolved shortly by the Second Circuit.
On February 22, 2017, the United States Departments of Education and of Justice jointly issued a guidance letter effectively withdrawing protections under Title IX for transgender students related to school bathroom use. Notwithstanding the new administration’s “guidance,” on February 27, 2017, in Juliet Evancho, et al. v. Pine Richland School District, et al., the Honorable Mark Hornak of the United States District Court for the Western District of Pennsylvania entered a preliminary injunction enjoining the school district from enforcing any policy, practice, or custom preventing transgender students in that school from using the bathrooms consistent with their gender identities. Notably, the court did address, in detail, the recently issued guidance letter — and was forced to conclude that the law with respect to Title IX and transgender rights is “so clouded with uncertainty that this Court is not in a position to conclude which party in this case has the likelihood of success on the merits of that statutory claim.” However, the court was able to conclude that the plaintiffs had established a likelihood of success on the merits with respect to their claim that the district’s policy “does not afford them equal protection of the law as guaranteed under the Fourteen Amendment” – thus satisfying the requirements for entry of a preliminary injunction.
Given that baby boomers are living longer and wanting to work past the usual retirement age, and that 40 is the new median age in the United States, companies should expect to see an uptick in age related claims. A recent federal district court decision serves as a refresher course on age discrimination in the context of a failure to promote. In Gonzalez-Bermudez v. Abbott Labs. PR Inc., 2016 U.S. Dist. LEXIS 140536 (D.P.R. October 9, 2016), the United States District Court for the District of Puerto Rico denied the Defendant’s motion for summary judgment on the Plaintiff’s claim under the Age Discrimination in Employment Act (“ADEA”).
The ADEA protects employees age 40 and over from discrimination in employment (hiring, firing, promotion, etc.) based on their age. The Supreme Court requires plaintiff to “establish that age was the ‘but-for’ cause of the employer’s adverse action,” a much stricter standard than that applied in Title VII cases. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed. 2d 119 (2009). Courts have held that replacement of an employee with a younger employer cannot make a prima facie case of age discrimination if the age difference is less than five years. See Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).
In Gonzalez-Bermudez, the Court denied defendant’s motion for summary judgment primarily for the following reasons:
- Plaintiff established that the demotion was an adverse employment action, she met the minimum requirements of the job, received “Achieves Expectations” performance ratings, and was never placed on an improvement plan or disciplined;
- There was sufficient evidence to support that similarly-situated younger counterparts were treated more favorably in terms of raises and promotions;
- Plaintiff was excluded from important company processes and meetings;
- The job was filled by a 31-year-old external candidate (against company policy of favoring internal candidates and plaintiff met the requirements of the position); and
- Defendant was inconsistent and contradictory on the record.
Additionally, the Court found that the employer had possessed certain relevant evidence yet destroyed it after being notified of a potential litigation. Accordingly, the Court granted plaintiff’s request for a spoliation sanction and noted that the jury would be instructed to infer that certain e-mails destroyed would have been unfavorable to the employer.
Best practice Tips: As soon as a potential claim is made, investigate it; in making a decision to not promote an employee over 40, make sure you have a reasonable basis for the decision and document it; immediately implement a document retention policy and make sure you maintain all documents relevant to claims. Following this guidance should help reduce significantly a company’s exposure to such claims.