Wake Forest Law Review



By: Mikhail Petrov

On January 11, 2016, in the civil case of Bauer v. Lynch, the Fourth Circuit held that physical fitness standards suitable for men may not always be suitable for women, and accommodations addressing physiological differences between the sexes are not necessarily unlawful. Plaintiff Jay J. Bauer was unable to complete his FBI training at the FBI Academy in Quantico, Virginia because he had failed the Personal Fitness Test (“PFT”). He was only one push-up short of passing. Bauer resigned from the Academy and took a job as an intelligence analyst for the FBI. He then brought a Title VII action against the FBI because, while men had to do thirty push-ups to pass the PFT, women had to do only 14. Although Bauer won on summary judgement at the district court level, the Fourth Circuit vacated the lower court’s decision.

Facts  of the Case 

The FBI Academy requires all recruits to pass a Personal Fitness Test (“PFT”), first before being eligible for the FBI Academy and then also during training at the Academy. PFT is required to encourage strong and injury-free performance at the Academy. Additionally, PFT supports effective training and application of the elements taught within the defensive tactics program, which include self-defense, combat, and restraining techniques. The PFT test was designed by the FBI specifically to test the skills that will be vital in the line of duty. The standards for passing the PFT are different for men and women to account for physiological differences. Still, the FBI designed the test so that men and women of equal fitness levels (for their respective sex) were equally likely to pass.

After the attacks of September 11, 2001, Plaintiff Jay J. Bauer resolved to contribute to the defense of our country by becoming a Special Agent in the FBI. Bauer applied to the FBI, but was rejected for a lack of work experience. He applied again in 2008, but was rejected because he was unable to pass the PFT. In 2009, Bauer reapplied and was able to pass the test and be admitted to the FBI Academy. Still, Bauer was required to pass the same PFT again once at the Academy. Although Bauer passed all academic tests, demonstrated proficiency in his firearms and defensive tactics training, and met all expectations for the practical applications and skills components of the Academy, he had failed five times to pass the PFT. On his final attempt, Bauer did twenty-nine push-ups, just one shy of the thirty necessary to pass. If Bauer was a woman, he would only need to do fourteen push-ups to pass that portion of the PFT. Bauer successfully completed the other three activities necessary to pass the PFT.

Procedural History 

On April 2, 2012, Bauer filed this Title VII action. Bauer argued that the FBI’s use of the gender-normed PFT standards contravened two of Title VII’s  provisions: 42 U.S.C. § 2000e-16(a), which prohibits sex discrimination by federal employers and 42 U.S.C. § 2000e-2(l), which prohibits the use of different cutoff scores on employment tests on the basis of sex.

On November 8, 2013, the Attorney General and Bauer filed cross-motions for summary judgment. In his summary judgement motion, Bauer maintained that the FBI’s use of the gender-normed PFT standards was facially discriminatory, and that the FBI could not justify its use under any lawful defense to Title VII liability. The Attorney General’s summary judgment motion contended that the gender-normed PFT standards do not discriminate against male Trainees, in that the standards impose equal burdens of compliance on both sexes

On June 10, 2014, the district court agreed with Bauer, granting his motion for summary judgment and denying the Attorney General’s. The court ruled that, because Bauer would have been required to do fewer push-ups had he been a woman, the gender-normed PFT standards contravene Title VII’s prohibition of sex discrimination. For the same reason, the court determined that the standards run afoul of Title VII’s bar against the use of different cutoff scores on employment tests. The district court determined that neither of two exceptions to this rule applies in this case.

Rules of the Case

Title VII requires that any “personnel actions affecting employees or applicants for employment” taken by federal employers “shall be made free from any discrimination based on . . . sex.” 42 U.S.C. § 2000e-16(a). That proscription against sex discrimination also extends to the use of “different cutoff scores for . . . employment related tests.” 42 U.S.C. § 2000e-2(l). A plaintiff is entitled to demonstrate discrimination by showing that the employer uses a facially discriminatory employment practice. In 1978, in City of Los Angeles v. Manhart, the Supreme Court outlined the “simple test” for identifying facial sex discrimination.  Sex discrimination appears “where the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” This was the test applied by the district court.

Yet among the few decisions to confront the use of gender-normed physical fitness standards in the Title VII context, none deemed such standards to be unlawful. Of those decisions, the Attorney General relied primarily on Powell v. Reno and Hale v. Holder. Both cases specifically addressed and approved the FBI’s use of gender-normed standards at the Academy.

In Powell, the court explained that Title VII allows employers to make distinctions based on undeniable physical differences between men and women where no significantly greater burden of compliance is imposed on either sex. Recognizing that physiological differences between the sexes result in males and females of similar fitness levels performing differently on physical tests, the Powell court concluded that the FBI’s gender-normed standards accounted for those differences and did not constitute sex discrimination.

Hale was a proceeding before the Equal Employment Opportunity Commission, where the complainant alleged a Title VII claim nearly identical to Bauer’s. In Hale, a male New Agent Trainee failed to meet the PFT’s male standards. Hale contended that the FBI held females to less rigorous physical requirements than males and thus violated Title VII’s proscription against sex discrimination. The administrative law judge adopted the approach taken by the Powell court and recognized that distinctions based on the obvious physical differences between men and women do not per se violate Title VII.

In United States v. Virginia (“VMI”) the Supreme Court ruled that Virginia had violated the Equal Protection Clause by excluding women from admission to its all-male military academy. The Court recognized that admitting women would undoubtedly require alterations necessary to adjust aspects of the physical training programs. In support of that proposition, the Court relied on the 22 statutory notes placed by Congress into 10 U.S.C. § 4342, which in turn explained that the “academic and other standards” for women admitted to the various service academies “shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals.”

The Reasoning of the Fourth Circuit

The Fourth Circuit disagreed with the district court’s decision to overlook Powell and Hail and apply the plain language of Title VII, as interpreted by Manhart’s “simple test” for sex discrimination. The Fourth Circuit referred to the Supreme Court decision in VMI, discussing that men and women simply are not physiologically the same for the purposes of physical fitness programs. Although the VMI decision was not controlling in this case, it nevertheless informed the Fourth Circuit in its analysis

Both Powell and Hale recognized that the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness. In other words, equally fit men and women demonstrate their fitness differently. Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness. Thus, an employer does not violate Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each. Because the FBI purports to assess physical fitness by imposing the same burden on both men and women, this rule applies to Bauer’s Title VII claims.


The Fourth Circuit held that physical fitness standards suitable for men may not always be suitable for women, and accommodations addressing physiological differences between the sexes are not necessarily unlawful. Because the FBI’s PFT required the same level of physical fitness from men and women, even though the actual requirements of the test varied by gender, the FBI it did not violate Title VII. The district court erroneously granted Bauer’s summary judgement against the FBI. The Fourth Circuit vacated the judgment of the district court and remand for further proceedings.


By Eric Benedict

On August 10, 2015, the Fourth Circuit Court of Appeals issued its published opinion in the civil case DeMasters v. Carilion Clinic. In DeMasters, the Fourth Circuit had to decide how to properly frame an employee’s conduct to determine whether it constituted ‘protected activity’ under Title VII of the Civil Rights Act of 1964 (“Title VII”). Additionally the Court had to decide if the “manager rule” from the Fair Labor Standards Act (“FLSA”) barred relief in the context of Title VII. The Fourth Circuit reversed the District Courts rulings that DeMasters did not engage in protected activity and that the “manager rule” precluded the suit.

DeMasters Conduct in the  Employee Assistance Program

Carilion, a large healthcare organization, employed Neil DeMasters (“DeMasters”) through its “Employee Assistance Program” (“EAP”). In his role as an EAP, DeMasters met with an employee (“Doe”) who believed he was the subject of workplace sexual harassment by his manager. While the manager was promptly terminated for the harassment, Doe began to face harassment from other employees sympathetic to the Manager. DeMasters approached the Human Resources department at Carilion and criticized its handling of the subsequent harassment. Ultimately, Carilion settled a Title VII suit filed by Doe.   

In the wake of the Title VII settlement, DeMasters was contacted by his employer to inquire into the role DeMasters had played in Doe’s path to litigation. DeMasters admitted that he thought Carilion handled the harassment poorly. Carilion ultimately terminated DeMasters, citing among other things, DeMasters’ failure to take a “pro-employer” position and “fail[ure] to perform or act in a manner that is consistent with the best interests of Carilion Clinic.”

DeMasters’ Title VII Opposition Clause Retaliation Claim

After his termination, DeMasters filed a Title VII Retaliation suit in federal court alleging that he was terminated in violation of Title VII’s opposition clause. To establish a prima facie case under Title VII’s opposition clause, the employee must show, “(1) that [he] engaged in a protected activity…(2) that [his] employer took an adverse employment action…(3) that there was a causal link between the two events.” While the defendant conceded that DeMasters was terminated, satisfying the second element, it argued that DeMasters did not engage in protected activity and that therefore there was no causal link. The District Court agreed with Carilion and dismissed DeMasters’ complaint. The District Court reasoned that, “no individual activity in which DeMasters engaged by itself constituted protected oppositional conduct and that the so-called ‘manager rule,’” precluded relief.

The Fourth Circuit Evaluates Demasters’ Conduct as a Whole

The Fourth Circuit concluded that the court must, “examine the course of a plaintiff’s conduct through a panoramic lens, viewing the individual scene in their broader context and judging the pictures as a whole.” After reviewing the record, the court found that the course of DeMasters’ conduct, from reaching out to the HR department to sharing his opinion with Carilion’s HR manager, was sufficient to satisfy the first prong of the prima facie case.  The court reasoned that, “Neither the text nor the purpose of Title VII is served by this method of parsing a continuous course of oppositional conduct into individual acts and assessing those acts in isolation.”

The “Manager Rule” does not Apply to Title VII Retaliation Claims

Carilion also argued that the “manager rule” would prevent DeMasters from seeking protection. The “manager rule” is derived from  Fair Labor Standards Act litigation. The rule requires an employee to “step outside his or her role of representing the company” before their activity can be protected. Here, DeMasters would have to step outside his role as an EAP before his conduct could be considered protected. The District Court decided that DeMasters’ conduct “could not qualify for protection under Title VII because, as an EAP consultant, he had a duty to counsel Doe and to relay his complaints to Carilion’s HR Department.” Citing the differences between the two statutes and the importance of encouraging employees to voice their concerns, the Fourth Circuit rejected this approach, holding that “[n]othing in the language of Title VII indicates that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description….” The court also explained that a contrary rule would leave those most equipped to help employees with their concerns, in this case EAPs, without protection.  The court concluded that the manager rule does not apply to Title VII, and therefore did not preclude DeMasters’ suit.

The Fourth Circuit Reverses the District Court

Ultimately, the Fourth Circuit found that DeMasters could establish a prima facie case based on the entirety of his activity and that the manager rule does not apply to Title VII. The court, therefore, reversed the United States District Court for the Western District of Virginia and remanded the case to allow the suit to move forward.


By Whitney Pakalka

On July 15, 2015, the Fourth Circuit released its published opinion in the civil case of Butler v. Drive Automotive Industries, Inc. The Court reversed the lower court’s grant of summary judgment in favor of Defendant, Drive Automotive Industries (“Drive”), the company where Plaintiff was sent to work by a temporary employment agency. The Court found that although the staffing agency employed the Plaintiff, under the joint employment doctrine, Drive was also Plaintiff’s employer for purposes of this Title VII action.

Butler’s Allegations of Harassment and the District Court’s Grant of Summary Judgment

Brenda Butler was hired by a temporary employment agency, ResourceMFG, to work at a Drive factory in Piedmont, South Carolina. Drive hired some of its employees through temporary employment agencies and some directly. Drive set Butler’s work schedule, arranged for part of her training, and supervised her on the factory floor. Butler was told by ResourceMFG that she worked for both Drive and Resource MFG. For its part, ResourceMFG required that Butler wear its uniform at work, paid Butler her earnings, controlled discipline and termination, and had a special parking lot for its employees.

According to Butler, one of the Drive supervisors, John Green, repeatedly harassed her verbally and physically by making comments about her buttocks and rubbing his crotch against her buttocks. Butler reported the conduct to a ResourceMFG representative and to Green’s supervisor at Drive, Lisa Gardner Thomas, but Butler claims that no action was taken.

In December 2010, Butler refused to work on a particular machine after she was instructed to by Green, who called her “big booty Judy” when she refused. Butler informed Thomas of the encounter. Thomas then asked another supervisor at Drive to terminate Butler’s employment. A few days later, Green called Butler and implied that if she performed sexual favors for him, he could save her job. She then received a call from a ResourceMFG supervisor informing her that her employment had been terminated.

Butler filed a Title VII employment discrimination action in the District Court for the District of South Carolina alleging sexual harassment. Drive filed a motion for summary judgment arguing that Butler worked for ResourceMFG, and therefore Drive was not her “employer.” The district court recognized that under the joint employment doctrine an employee can have multiple employers, but concluded that Drive was not an additional employer and granted it summary judgment.

The Joint Employment Doctrine and the Hybrid Test for Determining Who is an “Employer” Under Title VII

 The Fourth Circuit reviewed the district court’s grant of summary judgment and its interpretation of Title VII de novo. The Court addressed whether the joint employment doctrine applies to Title VII cases in the Fourth Circuit, and whether the District Court correctly applied the doctrine.

The Court affirmed the District Court’s finding that an employee can have more than one employer, stating that the joint employment doctrine applies when an employer contracts with an independent company for the use of its employees, but then retains control over the terms and conditions of employment. Rivas v. Feceración de Asociaciones Pecuarias de P.R., 929 F.2d 814, 820 n.17 (1st Cir. 1991). The Court formally adopted the doctrine in the Title VII context finding that it is consistent with both Fourth Circuit and Supreme Court precedent that focused on who exercises control over the employee. The Court further found that this interpretation was consistent with the remedial purpose of Title VII and recognizes the reality of modern employment, where many workers are employed by temporary staffing agencies that do not control their day-to-day employment.

The Fourth Circuit found that the district court conducted an inappropriate analysis under its newly-articulated joint employment doctrine. The Court noted that various circuits have applied different tests, all of which aim to determine, based on the facts of the case, whether an entity exercises such control over an employee that it should be liable under Title VII. See Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448 (2003).

The Fourth Circuit adopted a multi-factor hybrid test for determining when an employee is jointly employed in Title VII cases. The hybrid test balances the “control” test’s focus on agency with the “economic realities” test’s focus on the degree to which an employee is economically dependent on the entity in question. The hybrid test considers nine fact-specific factors, none of which are said to be dispositive. However, the Court placed the greatest emphasis on three factors: (1) which entity has the power to hire and fire the employee; (2) to what extent the employee is supervised by the entity; and (3) where and how the work takes place.

Drive Automotive was Butler’s Employer and May be Held Liable Under Title VII

Applying the newly-articulated hybrid test to the facts of the case, the Court held that ResourceMFG and Drive were Butler’s joint employers. The Court noted that Drive had a great deal of control over the terms of Butler’s employment and was able to successfully request that she be terminated. Indeed, Drive had never been refused when it requested that ResourceMFG fire an employee. Additionally Drive supervised its employees and ResourceMFG’s employees alike. Both types of employees did substantially the same work on the same equipment, and that work comprised the core of Drive’s business. 

Fourth Circuit Reversed and Remanded

The Fourth Circuit found that the district court had not paid sufficient attention to factors that militated in favor of finding that Drive was Butler’s joint employer. After establishing the joint employment doctrine and the hybrid test for the Fourth Circuit in Title VII cases, the Court reversed the district court’s grant of summary judgment in favor of Drive and remanded for consideration of Butler’s claims against Drive on the merits.








By: Mikhail Petrov

On July 1, 2015, in the civil case of Pryor v. United Air Lines, Inc., the Fourth Circuit issued a published opinion vacating the decision of the United States District Court for the Eastern District of Virginia and remanding the case for further proceedings. The case concerned the question of when an employer may be held liable for a hostile work environment created by an anonymous actor. The Fourth Circuit determined that Plaintiff, United Airlines Employee Renee Pryor (“Pryor”), presented enough evidence that a reasonable jury could find that her Employer, Defendant United Airlines, Inc. (“United”), had not done enough to protect her from racially motivated death threats. The Fourth Circuit found that the District Court failed to view the evidence of the case in light most favorable to Pryor.

The Racial Threats

Pryor, an African-American employee of United Airlines was stationed at Dulles International Airport. In January 2011, Pryor discovered a note in her company mailbox declaring that the holder was “licensed to hunt and kill N***** during the open search thereof in the US.” The note was titled “N***** Tag – Federal N***** Hunting License.” There was also a hand drawn image of a person hanging from a pole. The mailbox was located in a secure area only accessible to United employees and others with company authorization.

Pryor was shaken and afraid. She went to her supervisor, but he said he was “sorry” and there was “not much” United could do as there were no security cameras in the mail room. He gave Pryor a form to fill out and said he would alert security and the base manager. He did not, however, file with United’s Employee Service Center (“ESC”) as prescribed in United’s Harassment and Discrimination (“H&D”) policy. Pryor’s supervisor went on to notify the base manager, who notified another manager, who in turn, notified the next one. No United manager filed with the ESC as prescribed by the H&D policy. Management also knew that this was not the first racist incident that happened at United. A year before the note in Pryor’s mailbox, rumors surfaced that African-American flight attendants moonlighted as prostitutes during layovers in Kuwait. Additionally, racist apartment advertisements were left in the flight attendants’ break room. Management never fully investigated who was behind these incidents.

Later, Pryor herself reported a complaint to the ESC. Additionally, she contacted the police, something no one at United had done. When the police did arrive, Pryor’s managers were reluctant to speak about the incident, even after the police explained that a racial note was a race crime in Virginia. It took United management two and a half months to send out a must read email regarding the racial harassment.

On October 21, 2011, Pryor and many other African-American employees at Dulles received a nearly identical racist note in their mailboxes. Pryor went to a supervisor, who in turn ignored her. Pryor then went to the police and filed a report. Additionally, Pryor herself notified the ESC and corporate security. Afterwards, the director of human resources at Dulles agreed to conduct an investigation. Although the director was aided in his investigation by the police, the anonymous harasser was not found.

On March 9, 2012, Pryor filed with the EEOC alleging that United failed to investigate the prostitution rumors and racist notes left in the mailboxes, and that the failure constituted discrimination. Pryor alleged that United created a hostile work environment based on the speculation regarding the prostitution ring and the two notes received. The district court granted summary judgment in favor of United because, although the racist notes were sufficiently severe, the conduct could not be imputed to United.

The Rule of the Case

Pryor alleged that she was subject to a racially hostile work environment in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The elements an employee must prove are the same under either provision. To survive summary judgment, Pryor must show that a reasonable jury could find the conduct alleged was (1) unwelcome; (2) based on her race; (3) sufficiently severe or pervasive to alter the condition of her employment and to create an abusive work environment; and (4) imputable to her employer. Okoli v. City of Baltimore, 648 F.3d 216, 220. (4th Cir. 2011). Elements (1) and (2) are not in dispute. The Fourth Circuit agreed with the district court that element (3) is met. Therefore, the Fourth Circuit re-examined the district court’s decision on element (4) of whether the harassment is imputable on the employer.

The Reasoning of the Fourth Circuit

The question in this case is whether United is liable for the anonymous harassing conduct. On one hand, employers are not strictly liable for acts of harassment that occur in the workplace. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (employer not strictly liable for workplace harassment). On the other hand, the employer maintains a responsibility to reasonably carry out those dual duties of investigation and protection. Thus, the rule is that an employer may be liable for a hostile environment created by third parties “if it knew or should have known about the harassment and failed to take effective action to stop it … by responding with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (employer charged with investigation of harassment and protection of employee). In a case of an anonymous harasser, the threats may heighten what is required of the employer, particularly when the harassment occurs in a closed space accessible only to those that the company authorizes.

Here, Pryor agrees that United’s response to the second threat was adequate. However, it is the first threat that is in question here. United agreed that the threat to Pryor was death, and therefore very serious. The only question is whether United’s response to the first threat was reasonably calculated to end the harassment. A reasonable jury could find that United was neither prompt nor reasonably calculated to end the harassment. In answering the first threat, United did not call the police, report the matter to the ESC, inform corporate security, install cameras, provide Pryor with additional security, or conduct forensics on the note. In short, the Fourth Circuit concluded that a reasonable jury could find that United did little to deter future acts of harassment, particularly because additional acts of harassment did happen. The district court erred by granting summary judgement on this element.

The Fourth Circuit Remanded for Further Proceedings

The Fourth Circuit vacated the district court’s grant of summary judgment to United and remanded it for further proceeding consistent with this opinion. The Court found that a reasonable jury could conclude that the response United chose was neither prompt nor reasonably calculated. Therefore, the creation of an abusive work environment could be imputable to the employer, United Airlines.


By Eric Benedict

On May 21, 2015, the Fourth Circuit issued its published opinion in the civil case Foster v. University of Maryland-Eastern Shore. In Foster, the court set out to determine the impact of the Supreme Court’s University of Texas Southwestern Medical Center v. Nassar opinion on Title VII retaliation analysis. Iris Foster claimed that the University of Maryland-Eastern Shore (“the University”) discriminated against her based on gender, created a hostile work environment, and retaliated unlawfully. Although the court affirmed the district court’s grant of summary judgment against Foster on her hostile work environment and gender discrimination claims, it reversed the district court’s grant as to the retaliation claim.  Despite disagreement among the circuits, the Fourth Circuit concluded that the Nassar case did not alter the McDonnell Douglas burden shifting framework.

Foster’s Claims at the United States District Court for the District of Maryland

The University hired Foster in March of 2007 as a campus police officer. Foster alleged that before and during her employment at the University, one of her co-workers sexually harassed her repeatedly. After the University was informed of the harassment, it took action in an attempt to remedy Foster’s concerns and the behavior of her co-worker. However, Foster claimed that the University also took action against her as a result of her complaints. According to Foster, the University retaliated by, among other things, extending her probationary period, changing her schedule, and ultimately terminating her employment.  In her original suit, Foster asserted three claims under Title VII: gender discrimination, hostile work environment, and retaliatory termination.

The University filed its motion for summary judgment as to each claim. The District Court originally granted the University’s motions as to the gender and hostile work environment claims, but refused to grant summary judgment as to the retaliation claim. The United States Supreme Court then issued its decision in Nassar. In light of the decision in Nassar, the University filed a motion for reconsideration, asserting that Foster should be held to a higher causation standard. The District Court reviewed the Supreme Court’s holding in Nassar and concluded that both the motion for reconsideration and the motion for summary judgment  should be granted. Foster appealed the District Court’s decision on all three claims to the Fourth Circuit.

Title VII and the Supreme Court’s Holding in Nassar

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits covered employers from discriminating against covered employees and applicants on the basis of sex and other protected traits. 42 U.S.C. §2000e-2 (2012). An employee who attempts to assert a claim under Title VII may do so in two ways. First, the employee may offer direct or indirect evidence of discrimination. Alternatively, the employee may employ a burden shifting framework known as the “McDonnell Douglas framework.”

Judge Floyd explained that in order to prevail under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case by showing: (i) “that [she] engaged in protected activity,” (ii) “that [her employer] took adverse action against [her],” and (iii) “that a causal relationship existed between the protected activity and the adverse employment activity.”  The burden then shifts to the employer to show that the adverse employment action was due to a legitimate reason. The burden then shifts back to the employee to prove that the employers proffered reason is mere pretext.

In Nassar, the Supreme Court explained that discrimination claims under Title VII differ from retaliation claims. The Supreme Court explained that it was permissible for discrimination claims to take advantage of a “mixed-motive” theory. Under this theory the plaintiff must show that discrimination was at least a part of the reason for the adverse employment action. However, the Supreme Court held that such a theory does not extend to retaliation claims, instead the Court required ”but-for” causation.  Therefore, a plaintiff must show that “the unlawful retaliation would not have occurred  in the absence of the alleged wrongful action or actions of the employer.”

The Supreme Court’s Holding in Nassar Does Not Apply to the McDonnell Douglas Analysis

The Fourth Circuit determined that the District Court erroneously applied the Nassar holding to the McDonnell Douglas or ‘pretext’ framework. Judge Floyd reiterated that a plaintiff who files suit under Title VII may proceed by either ‘direct evidence’ or under a ‘pretext’ framework. The Fourth Circuit determined that the Nassar Court’s decision only applied to ‘direct evidence’ claims.

Nassar Does Not Alter Either Portion of the McDonnell Douglas Analysis

The Fourth Circuit concluded that Nassar does not alter the prima facie case portion nor the burden shifting portion of the McDonnell Douglas test.  The court reasoned that the ‘causal relationship’ prong of the prima facie case demands a lower standard than the ‘pretext’ prong because otherwise the pretext prong would be redundant. Further, the court concluded that if the Supreme Court had meant to eliminate the McDonnell Douglas framework, they would have done so explicitly, given its significance to Title VII jurisprudence.

Judge Floyd also explained that the pretext prong of the analysis already required a ‘but-for’ test and was therefore undisturbed by Nassar. Citing Fourth Circuit precedent, the court noted that an employee “must establish ‘both that the [employer’s] reason was false and that [retaliation] was the real reason for the challenged conduct.’” Therefore, Judge Floyd concluded that the pretext prong was not altered by Nassar and that the District Court’s initial judgment was correct.

The Fourth Circuit Remands the Title VII Retaliation Claim

The Court affirmed summary judgment as to the gender discrimination and hostile environment claims. However, it found that Foster’s retaliation claims must survive the summary judgment stage because the holding in Nassar did not alter the causation standard for a Title VII plaintiff who employs the McDonnell Douglas framework.


By Cate Berenato

On May 11, 2015, in the published civil case Brown v. Nucor Corp., the Fourth Circuit held that a South Carolina district court erred in decertifying a class of workers who claimed that their employer, Nucor Corporation and Nucor Steel Berkeley (“Nucor”), engaged in discriminatory job promotion practices under Title VII of the Civil Rights Act of 1964 (“Title VII”). Though the district court believed that the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes (“Wal-Mart“) allowed it to reconsider the class’s certification, the Fourth Circuit disagreed.

Workers Sue Nucor but the District Court Determined They Do Not Meet the Requirements for Class Certification

Nucor is a steel plant in South Carolina. Statistics gathered from the plant’s change-of-status forms filed between 1999 and 2003 showed that Nucor had only one black supervisor, though seventy-one of its 611 employees were black. Additionally, the workers’ evidence showed that Nucor managers failed to respond to complaints of discrimination and retaliation, ignored a promotion policy by giving supervisors discretionary promotion power, and allowed supervisors to repeatedly call black workers derogatory names and display racist symbols.

The workers sued Nucor under Title VII, which prohibits employers from discriminating against employees because of race. The workers claimed that Nucor’s supervisors disparately treated black workers when making promotion decisions. They also claimed that Nucor’s promotion practices disparately impacted black workers.

In 2007, the South Carolina district court denied the workers’ motion for class certification for their discriminatory promotion and hostile work environment claims. The Fourth Circuit reversed and remanded because the workers satisfied the requirements of Federal Rule of Civil Procedure 23.  While the district court originally recertified  the promotions class, it revoked this certification based on its reading of Wal-Mart. The district court stated that under Wal-Mart’s heightening of Federal Rule of Civil Procedure 23(a)(2)’s commonality requirement, the workers did not have “significant proof” that Nucor “operated under a general policy of discrimination” or that the class members suffered from a common injury.

Commonality and Standard of Review

The issue in this case was whether the Nucor workers presented “a common question of employment discrimination through evidence of racism in the workplace.” The standard of review was abuse of discretion.

The Class Established Commonality Under Rule 23(a)(2)

A district court can reexamine a class certification if the controlling legal authority has dramatically changed. While the Fourth Circuit stated that Wal-Mart qualified as a dramatic change, it decided that the district court abused its discretion when it decided the Nucor workers had not met  Rule 23(a)(2)’s commonality requirement. It noted that “the district court had no grounds to revisit the question of predominance” under Rule 23(b).

Rule 23(a)(2) states that a class action is valid if there are questions of law or fact common to the class. The Nucor workers established commonality based on (1) statistical evidence, (2) evidence of a general policy of discrimination and a common injury, and (3) proof that Nucor supervisors exercised discretion in a common manner.

In this case, the workers’ statistics were significant for racial discrimination. Nucor’s change-of-status forms revealed that only one black employee of Nucor’s 611 employees was in a supervisory role. This was statistically significant at 2.54 standard deviations “from what would be expected if race were a neutral factor.”

The workers demonstrated a class-wide injury. Though the district court stated that the Wal-Mart Court did not find a class-wide injury among the 12,500 class members representing 235 Wal-Mart stores, the Fourth Circuit noted that Nucor was just a single plant and the workers’ class included only 100 members. Nucor’s “centralized, circumscribed environment . . . increase[d] the uniformity of shared injuries” and the “consistency with which managerial discretion [was] exercised.”

The workers provided evidence of a general policy of discrimination. The evidence included management tolerance of “bigoted epithets and monkey noises broadcast across the plant radio system, emails with highly offensive images . . . a hangman’s noose . . . and abundant racist graffiti in locker rooms.”

The workers demonstrated that Nucor supervisors had a “common mode of exercising discretion” in promotion decisions. At Nucor, employees could bid on positions available in other departments, but managers had to approve the change of status. The workers provided substantial evidence that the department heads impeded the upward mobility of black workers and that the general manager ignored promotion discrimination complaints. One of the department heads even stated, “I don’t think we’ll ever have a black supervisor while I’m here.”

Commonality Established and Case Remanded

The workers established commonality under Rule 23(a)(2). The Fourth Circuit vacated the district court’s decertification and remanded the case. Judge Agee dissented because the majority allegedly did not afford “substantial deference” to the district court or to Wal-Mart.

By Taylor Ey

Did the District Court Err in Granting Defendants’ Motion for Summary Judgment for Plaintiff’s Discrimination and Retaliation Claims Brought Under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981?

On May 13, 2015, the Fourth Circuit issued its published opinion in the civil case of Boyer-Liberto v. Fontainebleau Corp.  Plaintiff Reya Boyer-Liberto was previously employed at Defendant Fontainebleau Corp., as a hostess at a restaurant in the Clarion Resort Fontainebleau Hotel.  At district court, Defendant submitted a motion for summary judgment, which the district court granted because Plaintiff’s evidence of offensive conduct, two conversations with a coworker, was too vague to support her claims of discrimination and retaliation under Title VII of the Civil Rights Act (“Title VII”) or 42 U.S.C § 1981.  The Fourth Circuit, in a split decision, affirmed the district court’s decision to grant Defendant’s motion for summary judgment.

The Facts Were Insufficient to Demonstrate a Discriminatorily Hostile or Abusive Environment

To find a hostile work environment as prohibited by Title VII and 42 U.S.C. § 1981, a plaintiff must show that the workplace is “permeated” with discriminatory insult, that the discrimination alters the conditions of the work environment and the discrimination creates an abusive working environment.  Plaintiff only provided two examples demonstrating discriminatory insult.  In both cases, each on consecutive days and with the same coworker, Plaintiff was in a conversation, where she was called a “porch monkey,” a severely insulting and racially derogatory name.  However, the Fourth Circuit explained that these two instances are isolated: Together they do not demonstrate that any one else made hostile statements towards her, or that this same employee made more of the same kind of statements.  Thus,  the Fourth Circuit concluded unanimously that the Plaintiff did not demonstrate a hostile work environment under Title VII or 42 U.S.C. § 1981.

The Facts Were Insufficient to Demonstrate That Plaintiff Had an Objectively Reasonable Belief That She Was Being Subjected to Unlawful Harassment

To demonstrate retaliation, a plaintiff must how that she “responded to an employment practice that she reasonably believed was unlawful.”  In this case, Plaintiff provided two examples where a coworker, who she later found out was a restaurant manager, called her a derogatory name.  The Fourth Circuit majority thought it was unlikely that Plaintiff would have an objectively reasonable belief that she was being unlawfully harassed because Plaintiff mistook the speaker for a coworker.  Further, the fact did not lead the majority to believe that this was the type of situation that would “ripen” into a hostile environment because both incidents were isolated.  Thus, the Fourth Circuit, split 2-1, concluded that Plaintiff did not demonstrate an objectively reasonable belief required for a retaliation claim under Title VII or 42 U.S.C. § 1981.

The Fourth Circuit Affirmed the District Court’s Decision

Because the facts in the record, taken in the light most favorable to the non-movant, did not provide sufficient evidence such that a reasonable juror could find that Plaintiff was working in a hostile work environment or that Plaintiff had an objective believe that she was subjected to unlawful harassment, the Fourth Circuit affirmed the district court’s decision granting Defendants’ motion for summary judgment.

The Chief Judge Dissented in Part as to the Retaliation Claims

The Chief Judge authored a dissent, explaining that he agreed with the dissent in the case relied upon by the majority, Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  In Jordan, Judge King described that the majority’s narrow interpretation of “what constitutes a reasonable belief” that a violation of Title VII is occurring is a “Catch-22 situation.”  As the law currently stands under Jordan, the employee can either choose to report the behavior, and risk losing her job, or continue working in the hostile environment, and lose her dignity.  Under the facts in this case, the Chief Judge stated that Plaintiff could have reasonably believed that the coworker’s conduct was actionable.  Thus, the Chief Judge respectfully dissented, and would have reversed the grant of summary judgment on Plaintiff’s retaliation claims.

By Evelyn Norton

Did the District Court Abuse its Discretion in Denying Appellant’s Motions?

In Pitrolo v. County of Buncombe, NC, Plaintiff-Appellant Melanie Pitrolo claimed that the district court abused its discretion in denying each of her post-trial motions.  In its October 1, 2012 order the district court denied Appellant’s motion for attorney’s fees and declaratory relief.  Similarly, in its February 13, 2013 order the district court denied Appellant’s motion to recuse, first motion to vacate, and supplemental motion to vacate.

Appellant’s Title VII Claim

In 2006, Appellant sued the County of Buncombe, North Carolina, the Western North Carolina Regional Air Quality Agency (“Agency”), the Agency’s Board of Directors, and its members in their individual capacities.  Appellant alleged that the Agency violated Title VII when it considered Appellant’s gender as a motivating factor in deciding to deny Appellant a promotion to Interim Director of the Agency’s Board.

Defendant-Appellees moved for summary judgment on all claims.  On October 10, 2007, the district court granted the motion for summary judgment and dismissed Appellant’s case.

On appeal on March 11, 2009, the Fourth Circuit vacated the district court’s summary judgment grant dismissing Appellant’s gender discrimination claim and remanded for trial.  On July 22, 2009, a jury found that while Appellees did unlawfully consider Appellant’s gender as a motivating factor in its decision, Appellant would have been denied the promotion regardless of her gender.  As a result, the district court did not award any damages.

In response, Appellant moved for attorney’s fees and declaratory judgment on August 7, 2009, but the district court declined to rule on the motion and entered judgment in favor of Appellees notwithstanding the verdict.  On appeal, the Fourth Circuit held that Appellant was entitled to seek attorney’s fees and declaratory relief, but did not consider whether such relief should be granted.

During the following month, the case was reassigned to district court Judge Reidinger.  On October 1, 2012, the district court denied Appellant’s Motion for attorney’s fees and declaratory relief.  On October 19, 2012, Appellant filed a motion demanding Judge Reidinger recuse himself, a motion to vacate the October 1 order, and a supplemental motion to vacate.

Following denial of each motion, Appellant appealed once again to the Fourth Circuit alleging that the district court abused its discretion in denying all post-trial motions.

1. The Fourth Circuit Lacked Jurisdiction to Review Appellant’s Motions for Recusal and Vacatur.

The Fourth Circuit dismissed Appellant’s claim that the district court abused its discretion in denying Appellant’s motions for recusal and vacatur in the February 13, 2013 order.  Appellant first filed her Third Notice of Appeal on October 31, 2012.  However, the district court’s February 13, 2013 order was entered more than thirty days after its October 1, 2012 order.  Thus, Appellant was required to file a separate notice of appeal to challenge the later order, but failed to do so.  Accordingly, the Fourth Circuit lacked jurisdiction.

2. The District Court Did Not Abuse its Discretion in the October 1, 2012 Order.

The Fourth Circuit affirmed the district court’s denial of Appellant’s motion for attorney’s fees and declaratory relief.

First, the Fourth Circuited noted that the district court denied Appellant declaratory judgment because it believed declaratory judgment would “do little more than simply affirm the jury’s verdict,” primarily because Appellant had not been in Appellees’ employment for several years.  However, the Fourth Circuit stated that the district court should have considered factors articulated in Aetna Casualty & Surety Co. v. Ind-Com Electric Co.

Yet, in applying these factors, the Fourth Circuit still concluded that they weighed against declaratory judgment.  Specifically, under factor one, the Fourth Circuit found declaratory relief would not clarify any issue of law.  Considering factor two, the Fourth Circuit also found declaratory relief would not resolve any uncertainties.

Second, in examining the issue of attorney fees, the Fourth Circuit considered the extent of relief sought versus that obtained, whether the legal issues were significant, and whether the litigation served a public purpose.  The Fourth Circuit first noted that Appellant did not request declaratory relief until after the jury verdict.  The Court concluded that “[t]he core of Appellant’s case had little to no precedential value to the body of Title VII case law” and that Appellant did not “accomplish some public goal other than occupying the time and energy of counsel, court, and client.”  Thus, the Fourth Circuit found that the district court did not abuse its discretion in denying Appellant’s motion for attorney’s fees and declaratory relief.

Dismissed in Part and Affirmed in Part

The Fourth Circuit dismissed Appellant’s claim that the district court abused its discretion in denying Appellant’s motions for recusal and vacatur.  However, the Fourth Circuit affirmed the district court’s denial of Appellant’s motion for attorney’s fees and declaratory relief.

By: Steven Franklin

Today, in Perry v. Mail Contractors of America, Inc., the Fourth Circuit affirmed the Western District of North Carolina’s Order granting the Defendant’s Motion for Summary Judgment against a Title VII claim for wrongful termination. The Plaintiff, Craig Perry, a person of color, claimed that Mail Contractors of America, Inc. (MCA) terminated him from his position as a truck driver because of his race.

McDonnell Douglas Corp. v. Green, sets the Fourth Circuit’s framework for a claim of discriminatory discipline. To establish a prima facie case, the plaintiff must demonstrate that (1) he engaged in prohibited conduct similar to that of a person of another race, and (2) disciplinary measures enforced against him were more severe than those enforced against the other person.

First, Mr. Perry was unable to provide evidence of a truck driver receiving less punishment for an accident similar to his. Mr. Perry was terminated because he failed to reduce his speed despite having visibly hazardous road conditions directly ahead of him. Although he did show evidence of numerous other drivers in accidents that involved other vehicles, caused property damage, or resulted in traffic citations, they did not involve the kind of culpable conduct evident in Mr. Perry’s accident.

Second, there was evidence that MCA terminated an individual who was not a member of a protected class, but was involved in a similar accident shortly after Mr. Perry’s. The employees who terminated Mr. Perry were the same ones who terminated this subsequent individual. For these reasons, Mr. Perry was unable to establish a prima facie case, and the Fourth Circuit affirmed the District Court’s Order granting MCA’s Motion for Summary Judgment.

By Joshua P. Bussen

Today, in Rome v. Development Alternatives, Inc., the Fourth Circuit affirmed the grant of summary judgment on a retaliation claim brought under Title VII. The plaintiff claimed, in the District Court of Maryland, that she had been constructively discharged by Development Alternatives, Inc., (“DAI”) after complaining about improper conduct by another employee. In granting summary judgment for the defendant, the district court held that the plaintiff, Heather Rome, had failed to present sufficient evidence to establish a prima facie case of retaliation.

Rome worked for DAI in its Venezuelan office attempting to promote democracy. While in the United States in 2008 Rome complained about one of her coworkers to DAI management. DAI responded by: issuing the coworker a warning, sponsoring team-building exercises, and sending a mentor to the Venezuelan office. Later that year Rome left work on approved leave; she would not return. Rome complained that she had to undergo surgery and was unable to come back to work. DAI told Rome that it would help her to find a position at any office she liked in the company once she was able. Eventually Rome stopped answering DAI’s calls. DAI allowed her to retain her benefits until March 2009, at which time it finally concluded that she had abandoned her employment.

Title VII of the Civil Rights act prohibits “employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination.” 42 U.S.C. § 2000e–3(a). In the lower court, Rome did not present direct evidence of retaliation, therefore the district court reviewed her claim under the well know “burden-shifting framework.” Under this framework, if the plaintiff shows that “(1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) the protected activity was causally connected to the adverse action,” the burden shifts to the employer to “present a legitimate non-retaliatory reason for the alleged adverse action.” If the employer is then successful in meeting its burden, the employee has a chance to show that the proffered reason is a mere pretext. Further, “constructive discharge” takes place when a defendant employer, motivated by unlawful bias, subjects an employee to intolerable working conditions.

Rome was successful in arguing that she had engaged in a protected activity by reporting her coworker, however, the circuit court found that she had not suffered an adverse action. It further found that she had failed to produce evidence tending to prove pretext. DAI was very accommodating in offering to help Rome, she just never came back to work. On this basis, the Fourth Circuit affirmed the lower court’s grant of summary judgment for DAI.

By Kelsey Kolb

On September 24, in Hentosh v. Old Dominion University, the Fourth Circuit affirmed the United States District Court for the Eastern District of Virginia’s order granting summary judgment to Old Dominion University (“ODU”), defendant employer, in a retaliation suit brought by an employee, Patricia Hentosh. In doing so, the Fourth Circuit held that a court retains subject matter jurisdiction over an employee’s “reasonably related” Title VII retaliation claim against her employer even if it dismisses the employee’s underlying administrative claim of discrimination for lack of subject matter jurisdiction.

Hentosh originally filed a race discrimination claim against ODU with the United States Equal Employment Opportunity Commission (“EEOC”). The EEOC dismissed her charge as untimely. In the midst of the EEOC’s investigation, Hentosh applied for tenure at ODU, but was denied. Hentosh filed suit against ODU alleging that she was denied tenure on two theories: (1) the same discrimination that she claimed in her EEOC complaint; and (2) retaliation by ODU against her for engaging in an EEOC discrimination claim.

The district court granted in part ODU’s motion to dismiss on the ground that it did not have subject matter jurisdiction over either of Hentosh’s discrimination claims. The first discrimination claim, alleging specific acts of adverse conduct by ODU, was dismissed due to Hentosh’s failure to timely file her EEOC complaint within its required 300-day window. The district court found that it lacked subject matter jurisdiction because Hentosh’s untimely complaint led to her failure to properly exhaust her administrative remedies. The second discrimination claim, alleging that ODU’s denial of tenure was discriminatorily decided, was dismissed because this claim was “neither within the scope of the charge nor reasonably related to the charge” for it to be considered as exhausting her administrative options.

The point of contention in this appeal was the district court’s denial of ODU’s motion to dismiss Hentosh’s retaliation claim. The district court cited Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992), and found that Hentosh’s retaliation claim could stand without filing a new EEOC charge, and therefore, be brought for the first time in federal court. After establishing jurisdiction over the retaliation claim, the district court granted summary judgment in favor of ODU because Hentosh failed to establish that ODU only rejected her tenure application due to its desire to retaliate against her for filing the EEOC claim.

Hentosh’s appeal argued that when the district court dismissed her two discrimination claims for lack of subject matter jurisdiction, it subsequently lacked subject matter jurisdiction over her retaliation claim and therefore, committed reversible error by failing to dismiss that claim as well. Hentosh cited to Mezu v. Morgan State Univ., 367 F. App’x 385 (4th Cir. 2010), an unpublished opinion, arguing that “retaliation claims cannot ‘relate to’ discriminatory conduct alleged in an untimely EEOC charge.”

The Fourth Circuit deemed the unpublished opinion “neither controlling nor persuasive” and further, in direct conflict with Nealon, the published precedent to which it ultimately deferred. Under Nealon, “a plaintiff may raise for the first time in federal court the claim that her employer retaliated against her for filing with the EEOC in violation of Title VII.” The rationale for allowing the retaliation claim to stand alone is that the court traditionally has jurisdiction over claims that are deemed “reasonably related to” allegations in an administrative charge. The court found that Hentosh’s retaliation claim was “like or related to” the discrimination claim brought by the untimely EEOC charge.

The Fourth Circuit ultimately held that the district court properly retained and exercised subject matter jurisdiction over Hentosh’s retaliation claim because it was “reasonably related to” her prior discrimination claims—that the court would have had jurisdiction over, had she timely filed. Therefore, the court affirmed the district court’s grant of summary judgment in favor of ODU.

By Gregory S. Parks

During the week of 2 September 2013, two federal courts—the Southern District of New York and the United States Court of Appeals for the Eleventh Circuit—handed down striking opinions.[1]  In a nutshell, they both held that where a black employee/supervisor refers to black (or biracial) coworkers/supervisees with the use of the n-word, there can be employment discrimination under Title VII of the Civil Rights Act of 1964.  While the courts’ respective opinions might have been lost on or surprising to the defendants, it should not have been for several reasons.  First, courts have long considered the reality of intraracial employment discrimination.[2] This has even been the case in the context of African Americans.[3] Second, the historical legacy of the n-word should underscore the extent to which some African Americans may reasonably find the use of such language unwelcome.[4]  Third, social science suggests that the use of the n-word may reflect ill-intent even when used between African Americans.[5] Fourth, it is legally consistent—providing a clear rule for all in the employment context.[6]

In Johnson v. Carmona and STRIVE, Inc., Brandi Johnson—an African American, female employee—recorded her African American, male employer—Rob Carmona—saying:

You and (a previous employee) are just alike. Both of you are smart as s[hit], but dumb as s[hit]. You know what it is . . . both of you are n[iggers], y’all act like n[iggers] all the time . . . And I’m not saying n[iggers] as derogatory; sometimes it’s good to know when to act like a n[igger], but y’all act like n[iggas] all the time . . . both of you [are] very bright, but both [of] y’all act like n[iggers] at inappropriate times.[7]

Carmona argued that the term “nigga” could mean love or hate in black and Latino communities.  To explain, Carmona said he may describe a friend by saying, “This is my nigger for thirty years.”[8] Accordingly, he said he also used the word as a term of endearment towards Johnson.  He was trying to communicate that she was “too emotional, wrapped up in her.”[9]  Drug counselors helped him overcome heroine addiction with “tough love and tough language.”[10] As such, he simply used the word to indicate “the negative aspects of human nature.”[11]  STRIVE, Inc. argued that the word was a part of the tough love culture of the company, which was founded by Carmona to help people with troubled backgrounds find work.[12]  The jury found that use of the n-word in the workplace was discriminatory, regardless of the employer’s status as a minority or his personal understanding of the word.[13]

In Weatherly v. Alabama State University, three former university employees—Jacqueline Weatherly, Lydia Burkhalter, and Cynthia Williams—alleged they had been subjected to a hostile work environment and retaliation during their employment.[14]Weatherly testified at trial that her supervisor, LaVonette Bartley, frequently used the n-word in the workplace.[15]  Bartley commonly made comments in Weatherly’s presence like, “I’m tired of nigger shit.”[16]  She referred to ASU’s bus service as the “nigger bus line.”[17] Upset with Weatherly’s apparent inability to multitask, Bartley informed Weatherly that she was “sick and tired of this nigger shit.”[18]  Burkhalter, who is biracial, testified that Bartley also said, “they [aren’t anything] but some niggas”[19] and called Burkhalter’s seven-year-old son a “nigger.”[20]  Williams testified that Bartley commonly referred to her as a “nigger”[21] with comments such as “talk to the nigger side of the hand because the white side does not want to hear it” and “we [have] to dress professional; we don’t dress like niggers.”[22]  The jury held for the plaintiffs, and the Eleventh Circuit affirmed.[23]

While these holdings may seem surprising to the defendants and to some who rationalize African American’s right to use the n-word amongst and toward one another, it should be unremarkable. First, courts have long acknowledged the fact that there can be intra-racial employment discrimination.  Under the third-party associative discrimination doctrine, it is plausible that, for example, a white supervisor might discriminate against a white employee for being in a romantic relationship with a black person.[24]  In Ellis v. United Parcel Service, Inc., while not framed as a third-party associative discrimination case, the Seventh Circuit contemplated an intra-racial employment discrimination case between African Americans.[25]  Gerald Ellis, an African American manager at UPS, sued the company because of negative comments from and termination at the hands of African American supervisors for having dated and then married a white, hourly employee.[26]  He ultimately lost on summary judgment motion, which was affirmed, in large measure because he had violated UPS’ non-fraternization policy.[27]

Second, in Harris v. Forklift, the U.S. Supreme Court recognized the reasonable person standard as the basis for determining whether unwelcome conduct is sufficiently pervasive and severe to constitute employment discrimination.[28]  While the n-word has found a welcome home in certain parts of black popular culture,[29] it has a negative history and negative connotation.[30] In Lee Daniel’s recent and popular film, The Butler—about Cecil Gaines, an African American butler who worked in the White House—when Gaines tells his older African American mentor, Maynard, that Gaines would make a good “house nigger,” Maynard slaps him.[31] Maynard goes on to tell him that the word “nigger” is “a white man’s word, it’s filled with hate.”[32]  Such a finding is echoed in the law.[33]  Not surprisingly, some African Americans find the term patently offensive.

Third, implicit social cognition research indicates that individuals tend to automatically, i.e., subconsciously, associate racial categories with positive or negative concepts.  Most people tend to have a prowhite subconscious bias.  For instance, 71% of whites, 67% of Asians, and 60% of Hispanics automatically associate positive things with whites and negative things with blacks.[34] Surprisingly, 32% of African Americans do the same.[35]  Even more, prowhite subconscious biases predict the use of slurs against racial minorities.[36]  While this research did not focus on African Americans and their use of the n-word, it provides some indicia that racial hostility may undergird the use of the n-word by some African Americans.

Fourth, these cases, in an essential way, underscore the call for consistency in tolerance, or lack thereof, in the use of the n-word in the employment context laid down by the Eastern District of Pennsylvania in 2010.  In Burlington v. News Corporation,[37] a Caucasian employee brought a reverse discrimination case against his employer, which had terminated him after he used the n-word in front of several colleagues at an editorial meeting.  The defendant employer unsuccessfully moved for summary judgment. The judge began his analysis by noting that the n-word’s meaning varies in “color and content according to the circumstances and the time in which it is used.”[38]  In analyzing the historical and current usage of the n-word, the judge acknowledged that Caucasians have used the word as a tool of oppression while African Americans have used the n-word in an ironic or affectionate way.  Ultimately, the judge determined that it was unjustifiable to allow the employer draw race-based distinctions between employees because such action would run counter to Title VII’s purpose.

The two recent federal court cases about the intraracial use of the n-word and what it means under Title VII were correctly decided.  Federal courts have clearly articulated that employment discrimination can lie between parties of the same race.  The word can reasonably be construed as offensive by African Americans, no matter who says it.  Even more, implicit social cognition research underscores that such slurs may flow from a place of antiblack sentiment, possibly among African Americans themselves. Lastly, the rule that emerges from these cases underscores the demand for consistency in prohibiting the use of the n-word in the employment context established in other jurisdictions. It is incredulous that the defendants in these two cases thought that they had a strong case. They should have settled!

        [1].   Weatherly v. Ala. State Univ., 728 F.3d 1263, 1265–66 (11th Cir. 2013); Larry Neumeister, New York Jury Punishes Use of Racial Slur by Black, Defendant Loses Lawsuit, Plaintiff Cites Degradation, Boston Globe (Sept. 4, 2013), http://www.bostonglobe.com/news/nation/2013/09/03/case-puts-word-use

        [2].   See infra notes 25–28 and accompanying text.

        [3].   See infra notes 25–28 and accompanying text.

        [4].   See infra notes 29–34 and accompanying text.

        [5].   See infra notes 35–37 and accompanying text.

        [6].   See infra notes 38–39 and accompanying text.

        [7].   Erinn Cawthon & Kristina Sgueglia, Black Boss’s N-word Rant To Black Employee Costs Him, Nonprofit $280,000, CNN (Sept. 4, 2013, 9:17 AM), http://www.cnn.com/2013/09/03/us/new-york-racial-slur-lawsuit/.

        [8].   Larry Neumeister, Case Against Rob Carmona, STRIVE East Harlem Founder, Questions Use of N-Word Among Blacks, Huff Post: Black Voices (Sept. 3, 2013, 8:22 PM), http://www.huffingtonpost.com/2013/09/03/rob

        [9].   Id.

      [10].   Id.

      [11].   Id.

      [12].   Id.

      [13].   Id.

      [14].   728 F.3d 1263, 1266 (11th Cir. 2013).

      [15].   Id.

      [16].   Id.

      [17].   Id.

      [18].   Id.

      [19].   Id. at 1267.

      [20].   Id.

      [21].   Id. at 1268.

      [22].   Id.

      [23].   Id. at 1266.

      [24].   See Gregory S. Parks & Quinetta M. Roberson, Michelle Obama: A Contemporary Analysis of Race and Gender Discrimination through the Lens of Title VII, 20 Hastings Women’s L.J. 3, 35–37 (2009) (discussing cases illustrating the third-party associative discrimination doctrine).

      [25].   523 F.3d 823, 824–25 (7th Cir. 2008).

      [26].   Id. at 824.

      [27].   Id. at 826, 830.

      [28].   510 U.S. 17, 22 (1993).

      [29].   Gregory S. Parks & Shayne E. Jones, “Nigger”: A Critical Race Realist Analysis of the N-word Within Hate Crimes Law, 98 J. Crim. L. & Criminology 1305, 1321–33 (2008).

      [30].   Id. at 1316.

      [31].   Lee Daniels’ The Butler Quotes: Clunky but Earnest, MovieQuotesandMore.com, available athttp://www.moviequotesandmore.com

      [32].   Id.

      [33].   See Randall Kennedy, Nigger: The Strange Career of a Troublesome Word 56–112 (2002) (discussing the use of the n-word in the courtroom in a chapter titled “Nigger in Court”).

      [34].   Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945, 958 (2006).

      [35].   Id.

      [36].   Laurie A. Rudman & Richard D. Ashmore, Discrimination and the Implicit Association Test, 10 Group Processes & Intergroup Rel. 359, 363 (2007).

      [37].   759 F. Supp. 2d 580 (E.D. Pa. 2010).

      [38].   Id. at 596 (citing Towne v. Eisner, 245 U.S. 418, 425 (1918)).