In a case of first impression, the United States Court of Appeals for the First Circuit held in Velázquez-Perez v. Developers Diversified Realty Corp., et al. that an employer could be liable under Title VII of the Civil Rights Act of 1964 (Title VII) for negligently allowing a female employee’s discriminatory animus to cause a male co-worker’s termination, even though the female employee was not the plaintiff’s supervisor. 

According to the plaintiff Antonio Velázquez-Perez, from June 2007 through August 2008 he was an operations manager for Developers Diversified Realty Corp. (DDR).  During his tenure, the plaintiff often worked with Rosa Martinez, DDR’s HR Representative for Puerto Rico.  Part of Martinez’s responsibilities included advising management on HR issues, including employee discipline.  According to the plaintiff, he and Martinez enjoyed a good working relationship, which included some flirtatious communications, until April 2008, when Martinez attempted to initiate a romantic relationship.  The plaintiff claimed that Martinez began harassing him after he rejected her overtures, including threatening to have him fired, sending him angry and suggestive emails, criticizing him to his supervisors, providing a memorandum detailing her complaints of his performance to senior DDR officials, and ultimately recommending to his supervisors by email that he be terminated.  The plaintiff complained to his supervisors, and the plaintiff claimed that they responded by instructing him to send a conciliatory email to Martinez and even suggested that he should have sex with her.  Four days after Martinez sent the email recommending termination, DDR terminated the plaintiff’s employment.

The plaintiff filed suit in the United States District Court for the District of Puerto Rico, alleging, among other things, that DDR discriminated against him on the basis of sex by terminating him and subjecting him to a hostile work environment in violation of Title VII.  The District Court granted summary judgment against the plaintiff, and he appealed. 

Despite finding that Martinez’s conduct was not sufficiently severe or pervasive to create a hostile work environment and that no reasonable jury could find that Martinez was the plaintiff’s supervisor under the Supreme Court’s holding in Vance v Ball State University, the First Circuit nevertheless found that DDR could be liable for negligently allowing Martinez’s discriminatory acts to cause the plaintiff’s termination.  Noting that the U.S. Supreme Court has not ruled on the precise question of whether employer liability premised on a finding of negligence is limited to hostile workplace claims, and not disparate treatment claims, the First Circuit found “no basis for applying that distinction to permit a negligent employer to escape (or incur) liability on one type of claim but not the other.”  The First Circuit reasoned that an employer “should be liable if it fires the victim based on complaints that it knew (or reasonably should have known) were the product of discriminatory animus.”  The Court ruled that an employer may be held liable under Title VII if: “the co-worker acted, for discriminatory reasons, with the intent to cause the plaintiff’s firing; the co-worker’s actions were in fact the proximate cause of the termination; and the employer allowed the co-worker’s acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.”  Because a reasonable jury could find that Martinez’s conduct satisfied these requirements, the First Circuit found that summary judgment for the employer was inappropriate.

This decision expands the scope of Title VII’s protections.  It serves as a reminder to employers that they should consider the motives of complaining employees before taking any adverse action against a co-worker to ensure that discriminatory animus does not infect the employer’s decision.  Proper investigation of all complaints is key to avoiding liability.