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Litigation Experts Offer Deep Dive Into Employment Discrimination Law

May 30, 2024

By Richard Blaustein

Employment law has broad appeal as it shapes the evolving norms of the workplace. Employment discrimination law in particular involves a mix of prominent statutes such as Title VII of the Civil Rights Act of 1964, momentous case law, and different burdens of proof and evidence production that create a complex area of practice.

On May 21, the D.C. Bar CLE Program presented its annual Nuts and Bolts of Employment Discrimination Law course, featuring a panel of attorneys who litigate for both plaintiffs and defendants. In addition to discussing employment discrimination that falls under Title VII’s protected categories, the panelists also explored law and situations pertaining to harassment, retaliation, disability, family medical leave, and pregnancy accommodation, as well as burdens of proof and presentation, the role of agencies, and distinct state laws.

“What we were hoping to show is what a really interesting area of practice employment law is, one that has real tangible effects on real people,” said course moderator Adam Herzog, a plaintiff’s attorney with Katz Banks Kumin LLP in Washington, D.C.

Thomas Murphy, defense counsel with Jackson Lewis P.C., said that the history and social context behind the various federal civil rights laws that undergird employment discrimination law are very important to appreciate. “It’s incredible to see how these landmark legislative enactments are still being interpreted by the Supreme Court some 60 years after their passage,” Murphy said.

Murphy led with an overview of pertinent employment discrimination laws, such as the federal Equal Pay Act of 1963 and the Age Discrimination in Employment Act of 1967. He then discussed disparate treatment (as opposed to disparate impact) claims, for which a plaintiff must establish an employer’s discriminatory intent or motive. The intent could be established by the direct method, such as an employer’s admission of discrimination, which is obviously rare, or very strong circumstantial evidence, which could be comparisons with other individuals.

The indirect method involves a process of shifting burdens set by the 1973 U.S. Supreme Court case McDonnell Douglas Corp. v. Green. Murphy explained that under the McDonnell Douglas test, the plaintiff must establish before a judge (not jury) a prima facie case by a preponderance of evidence, which includes the plaintiff’s being in a protected class and having suffered an adverse employment action, such as not being hired or promotion denial. The employer then must rebut by articulating a legitimate reason for adverse action. The plaintiff then has the burden to show that the employer’s reason was a pretext motivated by discrimination. If the plaintiff prevails, the case goes to a jury to decide if employment discrimination occurred.

The Civil Rights Act of 1991 qualified that discrimination based on membership in a protected class need not be the sole factor for finding discrimination, but being a motivating factor is sufficient.

Carla Brown, plaintiff’s counsel with Charlson Bredehoft Cohen Brown & Nadelhaft, P.C., in Reston, Virginia, explained that an employee can prevail in a retaliation case even if harassment assertions are unproven. Brown noted that if, pursuant to a harassment charge the employee suffered a tangible effect, such as docked pay, a strict liability standard for the employer applies and extra procedural inquiries are not necessary.

On harassment, Brown discussed the landmark 1986 U.S. Supreme Court case Meritor Savings Bank v. Vinson, which affirmed that sexual harassment is a violation of Title VII and that sexual harassment encompasses a hostile work environment, not just adverse employment actions. Furthermore, the Court found that determining harassment turns not on whether sexual conduct between an employer and employee is voluntary but whether it is welcome.

Brown also discussed the prima facie harassment standard of being severe or pervasive. Some states now offer an alternative standard of looking at the totality of circumstances, as is the case with Maryland, but not the District of Columbia.

“Maryland is testament to the fact that there is a growing trend to provide workers greater protection by not just teasing out and isolating the actual incidents that happened, but looking at the bigger picture of everything that was happening for the worker at the time period,” Brown said.

Disability Considerations

Turning to the Americans With Disabilities Act (ADA), first passed into law in 1990 and amended significantly in 2008, Herzog said that ADA protections are two-fold in scope. The first part is its protection against classic discrimination, such as not hiring or dismissing someone because of disability.

“There is also something pretty unique to the ADA, the failure to accommodate, which … under the ADA puts an affirmative duty on the employer,” Herzog explained. “They have to provide an accommodation to the employee when required.” He added that the ADA has retaliation protection as with other laws. For example, if an employer has reasonable justification for not granting an employee’s disability accommodation request, the requesting employee is protected against retaliation.

The 2008 amendments expanded the definition of disability to include conditions such as diabetes and major depressive disorder. According to Herzog, the 2008 act was a substantial overhaul that “makes it easier to prove one of these disability cases.”

Herzog also pointed out that parallel laws in states and jurisdictions fill in ADA gaps, one being that the ADA is applicable to employers with a minimum of 15 employees. The variations in state law also mean that practitioners have different venue and argument options, Herzog said.

Closing out her presentation on harassment, Brown pointed out that the Equal Employment Opportunity Commission (EEOC) released “Enforcement Guidance on Harassment in the Workplace” in April, supplementing its pivotal 2016 report on reporting of harassment and on harassment prevention. Of note, the 2024 EEOC report incorporates the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, Georgia protecting gay and transgender employees from workplace discrimination. The new report also consolidates the agency’s five guidance documents issued between 1987 and 1999, which Brown said is very helpful.

“The EEOC is so proactive now and really thinking through what would help get justice in these cases. And they are bringing a lot of lawsuits,” Brown said. “They are doing really meaningful work that is probably going to make a dent on the workplace moving forward. They are walking the law, talking the talk — they are doing both.”