By David C. Henderson
On May 23, the 1st
U.S. Circuit Court of
Appeals released an
opinion explaining in
detail yet another
way in which an employer
can be held liable
when sexual discrimination
is allowed to infect the
workplace.
The lessons from the opinion are significant.
Perhaps the most obvious is
one we have experienced before: Unlawful
discrimination can show up and do
harm in unexpected ways.
Also apparent is that preventive training
for employees and supervisors alike
about the pernicious effects of unlawful
discrimination should be seen as an essential
part of employer risk management.
And finally, the case provides yet another
cautionary note for employers
about problems that can occur when romantic
relationships between co-workers
end and one of the employees allows dissatisfaction
with that result to become a
factor in his or her actions at work.
The appellate opinion at issue is
Velázquez-Pérez v. Developers Diversified
Realty Corp., et al. The employer in the
case had fired an employee, indeed a regional
general manager, based largely on
negative information provided by a human
resources representative whose responsibilities
included advising higherlevel
managers on
employee discipline.
In response, the general
manager sued the employer
in federal District
Court for, among other
things, sex discrimination
in violation of Title VII of the Civil Rights
Act of 1964.
One of his arguments was that the discharge
was unlawful because the employer
wrongfully based it on the sexually
discriminatory reports and advice
that the HR representative had provided
to the general manager’s higher-level
managers.
Two aspects of the evidence framed the
dispute being litigated. On one hand, there
was no evidence that the higher-level
managers who made the discharge decision
acted with any type of unlawful motive,
much less a motive tied to the general
manager’s sex.
On the other hand, there was evidence
showing that, prior to the general manager’s
discharge, (1) the HR representative
expressed to the general manager
her romantic interest in him; (2) after a
brief flirtatious period, the general manager
rebuffed that romantic interest; (3)
the HR representative thereafter conveyed
the threat that she would undercut
the general manager at work and ultimately
get him fired if he would not
engage in a romantic and sexual relationship
with her; and (4) the HR representative
actually did convey negative
information and advice
about the general
manager to the higherlevel
managers who
ultimately decided to
discharge him.
The U.S. District
Court ruled for the defense and against
the plaintiff general manager by awarding
summary judgment to the employer.
The 1st Circuit, however, disagreed with
the lower court, vacated the summary
judgment award, and remanded the case
for trial.
The 1st Circuit’s four-part analysis is
instructive. First, the court found that the
necessary causation was present. Just as
the plaintiff had argued, a reasonable
jury could find that the HR representative’s
sexually discriminatory efforts were
the proximate cause of his firing.
Second, the 1st Circuit found that, as
the defendant employer had argued, a
reasonable jury would not be able to
conclude from the evidence that the HR
representative was the general manager’s
supervisor. That initially seemed to be a
significant victory for the defense.
According to the U.S. Supreme Court,
an employer is vicariously liable for
damages to an employee whenever they
MASSACHUSETTS www.masslawyersweekly.com
June 23, 2014
Ruling significantly expands
employer liability for bias
David C. Henderson is a partner in the litigation
department of Nutter, McClennen &
Fish in Boston and a member of the firm’s labor,
employment and benefits practice group.
The lessons from the
opinion are significant.
2 • Massachusetts Lawyers Weekly
are caused by the unlawful discrimination
of a supervisor. See Staub v. Proctor
Hosp., 131 S. Ct. 1186, 1195 (2011);
Vance v. Ball State Univ., 133 S. Ct. 2434,
2439 (2013).
But in this case the HR representative
was not a supervisor because she was
not “empowered ... to take tangible employment
actions against a victim, i.e., to
effect a significant change in employment
status, such as hiring, firing, failing
to promote, reassignment with significantly
different responsibilities, or a decision
causing a significant change in
benefits.” Quoting Vance, 133 S. Ct. at
2443.
Third, however, the 1st Circuit determined
that the non-supervisory status of
the sexually discriminating HR representative
was not fatal to the general manager’s
wrongful discharge claim. According
to the court, even though the HR representative
was not a supervisor, a plaintiff
employee in the general manager’s situation
“nevertheless [could] prevail under
Title VII on a claim for discriminatory
termination under a so-called quid pro
quo theory” because his termination resulted
from rejecting the sexual advances
of the HR representative.
The court thus furrowed new ground.
Quid pro quo sexual discrimination
usually involves a supervisory relationship.
(The 1st Circuit acknowledged this
point by citing and quoting Lipsett v.
Univ. of Puerto Rico, 864 F.2d 881, 897
(1st Cir. 1988) (quid pro quo harassment
occurs “when a supervisor conditions
the granting of an economic or
other job benefit upon the receipt of
sexual favors from a subordinate, or
punishes that subordinate for refusing
to comply”).)
Finally, the court ruled that, even
though the HR representative was not a
supervisor, the employer nevertheless
could be liable under Title VII for negligently
allowing the representative’s discriminatory
acts to cause the wrongful
discharge of the general manager.
That ruling based on negligence likewise
extended precedent. As the 1st Circuit
noted, the Supreme Court has not
yet ruled on the issue of whether an employer
can be liable for a discriminatory
termination under Title VII because of
its negligence.
And while the Supreme Court did hold
in Staub, in somewhat analogous circumstances,
that a violation of the Uniformed
Services Employment and Reemployment
Rights Act, or USERRA,
occurred when an employee’s military
status unlawfully served as a motivating
factor in the decision to discharge him,
Staub was not a Title VII case, and Staub
had involved unlawful animus by supervisors,
not discriminatory animus or
misconduct by a mere co-worker. (In
Staub, the Supreme Court expressly declined
to express a “view as to whether
the employer would be liable if a coworker,
rather than a supervisor, committed
a discriminatory act that influenced
the ultimate employment
decision.” See 131 S.Ct. at 1194 n.4.)
Thus, the 1st Circuit ruling in
Velázquez-Pérez is worthy of the attention
of all employers subject to Title VII
(those with 15 or more employees). It
now is clear, at least in the 1st Circuit,
that an employer can be liable under Title
VII if the following occurs:
(1) the employee’s co-worker makes
statements maligning the employee for
discriminatory reasons and with the intent
to cause his firing;
(2) the co-worker’s discriminatory
acts proximately cause the employee to
be fired; and
(3) the employer acts negligently by
allowing the co-worker’s acts to achieve
their desired effect even though it
knows (or reasonably should know) of
the discriminatory motivation.
MLW
June 23, 2014
Reprinted with permission from The Dolan Co., 10 Milk Street, Boston, MA 02108. (800) 444-5297 © 2014 #01942vw
