Will Discrimination Lawsuits Get Easier to Win?

(Bloomberg Opinion) -- Picture an employee who tries and fails to commit suicide by self-immolation — and is subsequently fired. He sues for discrimination, claiming that he tried to kill himself because of the hostile racial atmosphere in the workplace. Has he a leg to stand on?.The U.S. Court of Appeals for the 11th Circuit, in a case called Fernandez v. Trees Inc., recently ruled that the answer is yes. Given both the difficulty of winning hostile environment lawsuits and the recent, widespread admissions by business leaders that they have a lot to learn about race, the decision is worth a closer look..Let’s begin with the facts. Cuban-born Alexis Fernandez worked for a tree-trimming company. According to the court’s summary, Fernandez’s supervisor had a “physical altercation” with another employee, also Cuban, after which the boss began “on a near-daily basis” to make derogatory comments about Cubans, including a promise that none would ever be hired again. Despite employee complaints, the boss continued his stream of insults, some of them vulgar. Two months after the “altercation” the following incident occurred:.Fernandez attempted to commit suicide at the job site by dousing himself with gasoline and reaching for a lighter; a coworker tackled him before he succeeded..Fernandez was subsequently terminated..His lawsuit claiming a hostile environment was dismissed by the trial court largely on the ground that he had failed to show that “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” The resolution of that question turned in part on whether his suicide attempt was related to his boss’s insults. The court of appeals admitted that the evidence was weak on this point but nevertheless sent the case back to the trial court to let Fernandez put his claim before a jury..Believe it or not, that’s an unusual result. Although there’s been talk since Ronald Reagan was in the White House that litigation alleging what the courts often call “a discriminatorily abusive working environment” will eventually deluge workplaces, the flood has never happened because the wall is so high. These lawsuits are dismissed unless the plaintiff can meet a series of precise and difficult tests. The Supreme Court long ago created high standards for what plaintiffs must prove and also carved out broad safe harbors for employers unaware of the harassment. .Lower federal courts have added further layers of difficulty. A glance at a trio of recently decided cases shows the height of the wall that judges have constructed to prevent the predicted flood of hostile environment claims..On June 9, a federal court in Michigan dismissed a hostile atmosphere complaint by an employee who complained of “teasing by coworkers about her breast size.” This might seem to the casual reader an easy and obvious win for the plaintiff, but it isn’t. Here, the teasing was mainly by female coworkers. Therefore, wrote the court, a female employee cannot prevail unless she alleges that the harassers “are homosexual, that they have a general hostility to women in the workplace, or that they treat men more favorably.”.Similarly, on June 1, a federal court in New York — no hotbed of judicial conservatism! — dismissed a hostile environment suit by a city police lieutenant who claimed among other things that he had been in effect demoted by a series of transfers to less prestigious assignments, such as from the unit that protects the mayor of New York to (truly) “the Trump Tower Protection Unit.” The lieutenant, who was Hispanic, also claimed that some lower-ranking non-Hispanics in his unit were given better positions. The trouble was, he failed to allege any “ridicule or insult” accompanying the transfers, and, with respect to the most recent transfer, did not in the court’s judgment adequately plead discrimination..And back in May, another federal court dismissed a complaint by a former assistant manager of a Dollar Tree store in Brooklyn who had been fired for allegedly “inappropriately touching a subordinate.” The fired assistant manager sued, claiming that the true reason for his dismissal was racial discrimination. Among other things, he alleged a hostile environment in the store. Coworkers insulted and abused him, he alleged, because he was black and born in the U.S. whereas the others, although also black, were from “the islands” — mainly Jamaica. But none of those workers were involved in the decision to fire him. Moreover, even though the court exercised “an extra measure of caution” because “direct evidence” of discrimination is rare, it was unable to find evidence that the manager’s race or national origin played a role in the insult or the termination..That’s what I mean by hard to win. And despite what one might have expected, not even the advent of the #MeToo movement seems to have had much effect on this trend..True, studies of lawsuit outcomes are colored by the likelihood that a defendant with a good chance of losing will settle; there must be some cases where the plaintiff gets paid without going to trial. Moreover, an unknown number of such cases are handled administratively..Still, the 11th Circuit’s action remains noteworthy. Fernandez is a small case, but the outcome suggests that if judges are little more lenient in letting such suits go forward, we might discover that the problem of a hostile environment is more pervasive than critics like to think..Because the suit was dismissed by the trial court, the court of appeals proceeds by reading the facts in the light most favorable to the plaintiff. This recitation of facts is from the 11th Circuit’s opinion, with this proviso in mind. .In particular, plaintiffs must prove that the harassment is “severe” and “pervasive,” and employers are not liable if they have systems in place to report incidents and the employee doesn’t use them.Empirical studies, however, have found that victims of at least sexual harassment are unlikely to use or trust the employer’s internal systems.(See pages 127-128 of this book.) .This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners..Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.” .©2020 Bloomberg L.P.

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Will Discrimination Lawsuits Get Easier to Win?

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