Racial discrimination comes in many forms and, following a recent opinion from the Second Circuit, discrimination due to an employee’s interracial relationship is one of them.

Employment discrimination laws prohibit employers from making decisions based on race, gender, religion, disability, and certain other characteristics.  Since the passage of the Civil Rights Act of 1964, these laws have addressed discrimination based on the characteristic of the employee.  But lately there has been an increase in cases of "associational discrimination." 

Associational Discrimination 101

In this new genre of discrimination law, the focus is not on the characteristic of the employee, but on a person or persons with whom the employee associates.  In other words, let’s say that your parents were Jewish and all of their friends were Jewish but you had converted to were Christianity in college. 

And let’s say that your employer fired you–not because he thought you were Jewish, but because of your association with your Jewish friends and family.  That is an example of associational discrimination.  The discrimination stemmed not from your religion but from the religion of the people with whom you associate. 

A recent case from the Second Circuit–the first of its kind–held that associational violation occurs when an employee is fired for his interracial marriage.

Holcomb v. Iona College (2nd Cir.)

Facts of the Case

The case is Holcomb v. Iona College, decided on April 1.  Holcomb was a basketball coach at Iona College in New York. He claimed that a college official, Brennan, tried to prevent Holcom’s wife, who was Black, from attending public alumni functions , and that Brennan had made racially derogatory comments about some of the Black players. 

Another college official, Petriccone, also made offensive racial comments about Black players in the basketball program.  As the Second Circuit put it, "Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a ‘jungle bunny’ and an ‘African princess.’  When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked:  ‘[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?’”

In addition, when Petriccione found out that Holcomb was marrying an African-American woman, he allegedly made a comment so offensive comments that it won’t be posted here. 

Iona College eventually fired Holcomb, explaining that his termination had to do with his poor job performance. After the district court granted summary judgment to the college,the Second Circuit remanded on appeal.

The Court’s Decision

The court’s discussion set forth the associational-discrimination analysis. Here is the play-by-play:

1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII.  Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination. 
2. Interracial Association.  The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
3.  Pretext Evidence.  As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb’s termination were a mere pretext for race-based discrimination.  Another piece of evidence to support Holcomb’s claim was that O’Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife. 

Recap

This decision from the Second Circuit does not necessarily address a novel issue of law.  Associational discrimination had previously been addressed by district courts within the Circuit.  But the clarity of the Court’s opinion in Holcomb very clearly sets the groundwork for similar future claims.

Sexual Harassment Claim Based on Raunchy Radio Listening Leads to Liability

A female employee who quit her job when her employer failed to respond to her complaints about the offensive conduct of her male co-workers will see her day in court. A federal appeals court revived the sexual harassment claims, which alleged that the employer permitted the co-workers to enjoy the risqué humor on a daily radio and did nothing to stop the crude derogatory terms often employed when discussing women.

The outcome in Reeves v. C.H. Worldwide Transportation, Inc. (click the link for full-text of the opinon), seems to have surprised some employment law bloggers, including the Ohio Employment Law Blog, one of our favorite e-law blogs.

I think the outcome is consistent with prior cases.

Offensive Conduct

The employee, who was the only woman in her work group, was offended by being subjected to her co-workers’ choice of a daily morning radio show that featured sexually explicit content. They ignored her complaints to them and to her supervisor about the program, which included topics graphic enough not to post.

In addition, commercials broadcast during the program featured: “sexual favors; a bikini contest that instructed women to wear their most perverse bikinis; . . . a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “’sexual tyrannosaurus rex.’”

The employee also complained about her male co-workers’ frequent use of the words “whore,” “bitch” and other, more colorful terms to describe women they disliked. And, all the while they continuously usedl sexually explicit “language, phrases, jokes, songs, comments, [and] remarks.”

Trial Court Finds “Not Based on Sex”

The district court granted judgment in favor of the employer, deciding that the harassment was not “based on” sex, since all the workers in the office were subjected to the same working conditions, and since the offensive conduct was not expressly “directed at” Reeves. The Eleventh Circuit Court of Appeals reversed.

Appellate Court Finds the Conduct Did Not Have to Be “Directed At” the Employee

In its decision, the Court of Appeals relied on a prior decision involving racial harassment. In that case, the Court held that racially derogatory language did not have to be “directed at” the complaining employee in order to create a racially hostile workplace. Similarly, said the court in Reeves, found that sexually derogatory language did not have to be directed at the complaining female employee. The degrading nature of the language could be sufficient to satisfy the requirement that the harassment be “based on” sex.

The court also held that Reeves had produced sufficient evidence for a reasonable jury to find that the harassment met the “severe or pervasive” requirement. The court noted that the offensive sex-specific language and the radio program were near daily occurrences for almost three years, (at which point Reeves quit). So the frequency of the conduct favored Reeves’ claim.

On the other hand, while the language was offensive, it was not directed at Reeves herself and therefore the court did not deem the conduct to be especially severe. Further, the conduct was not physically threatening to Reeves. But, it was objectively humiliating to her, particularly in light of evidence that Reeves’ male co-workers knew that their conduct made her uncomfortable but did not stop it.

Finally, there was evidence that the conduct interfered with Reeves’ work. She testified that at times the conduct made it difficult for her to concentrate on her work and she would have to leave the room. She also had to take time away from her work to ask her co-workers and supervisor to stop the offensive conduct, and to make notes for herself about what had happened.

Since Reeves had presented sufficient evidence for a reasonable jury to decide in her favor, the court sent the case back to the trial court for further proceedings.

Some commentators have expressed doubt as to the soundness of the court’s reasoning, especially in light of the possibility that the conduct was not actually “directed at” the lone female employee in the group. As the court noted, Reeves’ co-workers knew that she found their conduct to be offensive. But they continued to engage in it despite that knowledge.

These are the types of activities we routinely counsel our clients not to permit, and this case illustrates why we give that advice.

The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination–8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court’s scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory–within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson’s relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.