The United States Court of Appeals for the Sixth Circuit recently affirmed in part and denied in part the lower court’s decision regarding association and advocacy claims. In association and advocacy claims, the plaintiffs are not members of a protected class but claim they were discriminated against because they are friends with or spoke out on behalf of members of a protected class. In Barrett v. Whirlpool Corp., No. 08-53-7, 2009 U.S. App. LEXIS 3443 (6th Cir. Feb. 23, 2009), three former employees of Whirlpool Corp. (“Whirlpool”) brought suit under Title VII and § 1981 alleging that they were discriminated and retaliated against on the basis of their association with and advocacy for African-American co-workers. This case brings light to another avenue of employment discrimination law with which employers need to be aware.
In Barrett, all three Plaintiffs had slightly different circumstances surrounding their claims. Plaintiff Lynette Barrett (“Barrett”) alleged that a white co-worker, Dale Travis (“Travis”), made racist comments occasionally when Barrett was conversing with an African-American friend. When Barrett told Travis she did not approve of his language, he called her a “bitch” and told her to mind her own business. Barrett alleged that she complained about Travis’ racial comments to two different supervisors who failed to take any action. Additionally, Barrett saw two instances of racist graffiti in a Whirlpool restroom and maintenance cart. After Barrett complained to her supervisor about the graffiti, he made a report and had the graffiti painted over. Barrett also claimed that when she was friendly with African-American employees, the other white employees on her assembly line would not talk to her.
Plaintiff W. T. Melton (“Melton”) alleged that she heard Travis calling African-American employees “niggers,” and said to her “may the klan be with you” about once a week, although in her deposition, Melton admitted that Travis did not say this directly to her. In another incident, a white employee asked Melton how she could “stand the smell” of an African-American woman with whom Melton ate lunch regularly. Melton also asserted that Whirlpool treated her worse than other employees when she returned from medical leave.
Plaintiff Treva Nickens alleged that a union official would make racist jokes and use racial slurs, and a co-worker would use the word “nigger” about once every week. Nickens also heard Travis say “nigger” everyday that she worked by him, and her supervisor just laughed in response after she complained. Travis was later terminated due to absences. After his termination, he relayed a message to Nickens through two other co-workers that he would physically assault her for reporting him. Moreover, Nickens claimed that other co-workers and another supervisor would tell her that she needed to “stay with her own kind.” When Nickens sought a promotion, her supervisor told her that she would never get the job, allegedly because of her relationships with African-American co-workers.
The District Court for the Middle District of Tennessee granted summary judgment for Whirlpool, finding that the Plaintiffs failed to show association with African-American employees that rose above the level of workplace collegiality, and that the harassment did not create a sufficiently hostile work environment. The Sixth Circuit upheld the District Court’s decision regarding Melton and Barrett’s hostile work environment claims, but reversed the decision for Nickens’ hostile work environment claim.
The Sixth Circuit reversed the District Court’s decision regarding the Plaintiffs’ association and advocacy claims, and clarified the standard for such claims. The Court adopted the reasoning in Drake v. 3M, 134 F.3d 878 (7th Cir. 1998), which held that if a Plaintiff shows that 1) she was discriminated against at work 2) because she associated with members of a protected class, then the degree of association is irrelevant. The Court stated, “[t]he absence of a relationship outside of work should not immunize the conduct of harassers who target an employee because she associates with African-American co-workers. While one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association . . . that goes to the question of whether the plaintiff has established a hostile work environment, not whether he is eligible for the protections of Title VII in the first place.”
The Court determined that the inquiry in advocacy claims is whether plaintiffs were discriminated against because of their advocacy for protected employees. The Court clarified, “as with association, severe or pervasive discriminatory harassment is more likely to correlate with more vigorous advocacy, but as long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a claim under Title VII.”
When analyzing Plaintiffs’ hostile work environment claims, the Court found, “we cannot treat all incidents of harassment of African-Americans as contributing to a hostile work environment; rather, only harassment that was directed toward Plaintiffs themselves or toward others who associated with or advocated on behalf of African-American employees is relevant to our analysis, and only to the extent Plaintiffs were aware of it.” Using this standard, the Court ruled that Barrett failed to establish a hostile work environment because under the totality of the circumstances, the single comment from Travis, and the “cold shoulder” from a few co-workers was insufficient evidence of severe or pervasive harassment. Melton also failed to establish a hostile work environment because she did not present evidence of discrimination directly toward her as a result of her associations with or advocacy on behalf of African-American co-workers.
The Court did, however, find that Nickens established a genuine issue of material fact as to a hostile work environment because Nickens received a threat of physical violence for reporting racist language. Additionally, Nickens was subjected regularly to offensive comments about her relationship with an African-American co-worker, which was allegedly the reason she was not promoted. Furthermore, the Court found important that Nickens reported nearly all of the incidents to different supervisors who failed to take action, and even some of these supervisors allegedly harassed her for her association. The Court therefore affirmed the district court’s decision, except for Plaintiff Nickens’ hostile work environment claim.
This decision brings light to another avenue of discrimination claims. Employers must be aware of association and advocacy discrimination, and be sure to take prompt remedial action regarding these kinds of allegations.