Diversity & Inclusion

‘Sex-plus’ discrimination claims are still viable

by Rachel E. Burke

The U.S. 6th Circuit Court of Appeals recently addressed the issue of whether a “sex- plus” claim of discrimination, in which a former employee claimed that she was discriminated against specifically for being an African-American female, can be made under Title VII of the Civil Rights Act of 1964. The case is significant not only for its reinforcement of the notion that the various traits protected by Title VII necessarily coexist and shouldn’t always be considered separate from each other but also for its emphasis on the importance of e-mail evidence in discrimination cases.  StopRaceDiscrimination

Facts

Marilyn Shazor, an African-American woman, was assigned by her employer, Professional Transit Management (PTM), to serve as the CEO of a regional transit authority. Tensions flared shortly after she assumed the role when senior management officials began to question her allegiance to PTM. They exchanged e-mails in which they referred to her as “a ‘prima donna’ and not a team player” and as “one hellava bitch.”

After efforts were made by the union representing the transit authority’s bus drivers to expand the number of represented employees, the authority decided to retain a consulting firm in an effort to help educate managers and supervisors on how to handle the unionizing issues. Shazor’s supervisor claimed that she had told two lies in connection with that decisionthat the supervisor was unavailable to advise the transit authority about the union-organizing drive and that she hadn’t played a role in selecting the consulting firm. He said that those lies caused him to terminate her employment. A Hispanic woman was ultimately selected to replace her.

Shazor filed suit in federal court, asserting race and gender discrimination. The district court granted PTM’s motion for summary judgment (dismissal without a trial) and dismissed her claims. On appeal, the 6th Circuit disagreed and reversed the lower court’s ruling.

6th Circuit’s decision

The 6th Circuit found that a prima facie (minimally sufficient) case of race discrimination had been established and that Shazor had rebutted PTM’s legitimate nondiscriminatory reason for her discharge in a manner sufficient to allow her claims to survive summary judgment. On the question of whether she was replaced by someone outside her protected class, the court held that her replacement by someone of a different protected class was sufficient. That the replacement was also a member of a racial minority was of no consequence.

Despite the fact that she was replaced by a woman, the court held that her sex discrimination claim can proceed because it “cannot be untangled from her claim for race discrimination.” In other words, according to the court, “African[-]American women are subjected to unique stereotypes that neither African[-]American men nor white women must endure.” In a “sex-plus” case, like this one, in which the court finds the employee established a sufficient foundation of discrimination, the employer is not permitted to “undermine her prima facie case by showing that white women and African[-]American men received the same treatment.”

In determining that Shazor had successfully rebutted PTM’s legitimate nondiscriminatory reason for terminating her employment (that she lied), the 6th Circuit focused on the disputed allegations pertaining to her statements. With regard to her alleged statement about her supervisor’s availability to provide advice to the transit authority, the court found that e-mails demonstrating that the supervisor was working in Arizona at the time Shazor made the statements created a factual question about the truthfulness of her statement.

As to Shazor’s involvement in the selection of the consulting firm, her supervisor based his conclusion that she lied on a report from the transit authority’s general counsel. Because the supervisor’s version of events relied on inadmissible hearsay, the court determined that the evidence was inadmissible, even at the summary judgment stage. Without the general counsel’s statements, the evidence of the second lie was “little more than a he-said, she-said” scenario, and Shazor’s testimony again created genuine issues of fact.

While PTM could have avoided liability by proving that the supervisor had an “honest belief” in his justification for discharging Shazor, the court held that doctrine didn’t apply. Because the supervisor’s only investigation into the two alleged lies was one conversation with the transit authority’ general counsel, PTM was unable to prove that he made a “reasonably informed and considered decision before taking the complained-of action.” According to the court, “One conversation did not establish sufficient particularized facts about the truth behind [Shazor]’s statements, let alone her motive.” Shazor v. Prof’l Transit Mgmt.

Lessons for employers

If Shazor hadn’t also filed a race discrimination claim in this case, her sex discrimination claim would have been quickly dismissed because she wouldn’t have been able to meet even the basic prima facie requirements of such claim. This decision is a reminder that rarely filed “sex-plus” claims, which turn an otherwise dismissible claim into one that survives summary judgment, are still viable in the 6th Circuit. Additionally, it’s a reminder that employment decisions should be measured and well supported by a reasonable investigation. If Shazor’s supervisor had done more to inform his conclusion that she lied, this case may well have had a much different result.

Finally, e-mail traffic between PTM managers played a critical role in the court’s decision, even though the decision-making supervisor didn’t participate in the exchanges. Indeed, the court stated that the e-mail comment calling Shazor “‘one hellava bitch’ . . . unambiguously reveals sexist animus.” The e-mails also allowed her to argue that the managers’ comments about her were “code for ‘angry black woman’ or ‘uppity black woman.'” Let this decision serve as another warning that management and supervisory employees should take care not to put anything in an e-mail that they wouldn’t want read in open court.

Rachel E. Burke is an attorney with  Porter Wright, practicing in the Labor and Employment Department in Cincinnati, Ohio. She may be contacted at rburke@porterwright.com.