This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last two months.

At the Supreme Court

• Supreme Court Hears Oral Argument in Case that Could Impact the Scope of Title VII

On December 6, 2023, the Supreme Court heard oral arguments in Muldrow v. City of St. Louis, Missouri, in which the Court is being asked to determine what constitutes an “adverse employment action” under Title VII.  The case and the oral argument are discussed in Littler’s recent ASAP.

In the Federal Appellate Courts

• Eighth Circuit Reverses NLRB’s Order Reinstating Employees Allegedly Fired for Unionizing Activity

Strategic Technology Institute v. NLRB, No. 22-2958 (8th Cir. 2023), involved the termination of employees of an engine maintenance contractor for the U.S. Air Force. In the summer before the terminations, the maintenance contractor’s employees began discussing unionizing. At about the same time, the Air Force issued five corrective action reports to the maintenance contractor for safety and performance issues, including a report that its employees left a screwdriver in an aircraft engine they had serviced. Three employees found to be responsible for the error were terminated. Next, the maintenance contractor’s program manager for the contract ordered an evaluation and ranking of the company’s employees based on performance, attendance, and how well they worked with others. There was no evidence that union activity was considered in the rankings. At the conclusion of the evaluation, the company fired the 14 lowest-ranked employees for “poor performance.”

The union filed an unfair labor practice charge against the company, challenging all the terminations. The NLRB (“the Board”) concluded all 17 employees were fired for union activity in violation of the NLRA.  On appeal, the Eighth Circuit found the Board’s conclusions relied on suspicion and unreasonable inferences.  As to the first three employees who were terminated, the court found their terminations were reasonable due to the severity of their errors, and that none of the three employees were linked to any union activity.

As to the other employee terminations, the court rejected the Board’s conclusion that the timing of the terminations, six weeks after the manager who ordered the terminations learned that some employees were discussing unionizing, indicated that the terminations were pretextual and due to anti-union animus.  “While this court considers the timing of terminations in evaluating improper motive, it typically does so when the record also contains some direct evidence of anti-union animus,” the court stated.  In this case, the court concluded, there was no direct evidence of anti-union animus.

The Board also claimed the terminations were a “mass discharge” in which “the General Counsel [is] not required to show a correlation between each employee's union activity and his or her discharge.” The Eighth Circuit has not adopted the “mass discharge” standard, the court stated, but even if it had, the standard would still require a nexus between anti-union animus and the terminations.  In this regard, the court noted the language of a Board decision stating that the mass discharge standard requires the Board to “establish by substantial evidence ‘that the mass discharge was implemented to discourage union activity or in retaliation for the protected activity of some.’” There was no such evidence in this case.

• Sixth Circuit Rejects Sexual Orientation Discrimination Claim by Heterosexual Woman

In Ames v. Ohio Department of Youth Services, No. 23-3341 (6th Cir. 2023), the Sixth Circuit applied the “background circumstances” rule in assessing a reverse discrimination claim based on sexual orientation. The plaintiff in the case, an agency administrator and heterosexual woman, applied for and was not selected for a promotion to bureau chief.  Four days later she was demoted to a position she had previously held, and a gay man was selected to take her administrative position.  Several months later a gay woman was selected for the bureau chief position for which the plaintiff had applied.

The plaintiff filed suit in federal court claiming she was discriminated against because of her sexual orientation.  The district court granted summary judgment to the employer and the plaintiff appealed.  Because she is heterosexual, the court stated, to make a prima facie case of discrimination based on sexual orientation, the plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Noting that “[p]laintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group,” the court found that plaintiff failed to make the necessary showing of “background circumstances” in this case and upheld summary judgment for the employer.

In a concurring opinion, Judge Raymond Kethledge expressed disagreement with the background circumstances rule, arguing that while Title VII bars discrimination against “any individual,” the rule “impose[s] different burdens on different plaintiffs based on their membership in different demographic groups.”  Noting the split between the circuits on the issue, with the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits having adopted the background circumstances rule and the Third and Eleventh Circuits having rejected it, Judge Kethledge expressed hope that the Supreme Court would address the issue and resolve it.

• Fifth Circuit Upholds Summary Judgment in Title VII Race Discrimination and Hostile Environment Case

The plaintiff in Price v. Valvoline, No. 23-20131 (5th Cir. 2023),¹ repeatedly violated his employer’s attendance policy, and was given progressive discipline, in accordance with the policy.  With each violation of the policy and resulting disciplinary action the plaintiff signed an acknowledgement that additional attendance issues would “result in further disciplinary action, up to and including termination.” Although the plaintiff also had job performance issues, for which he was disciplined, ultimately, he was terminated for his repeated absenteeism. The plaintiff, who is Black, filed suit in federal court, alleging he was subjected to a hostile work environment, and that his race, not his violations of the company’s attendance policy, was the real reason for his termination.

The district court granted summary judgment for the employer and the plaintiff appealed. Analyzing the plaintiff’s discrimination claim, the Fifth Circuit concurred with the district court that there was no direct evidence of discrimination and added that even if there had been evidence that race factored into the termination decision, plaintiff’s claim would still have failed because the employer had established by a preponderance of evidence that the same decision would have been made regardless of the plaintiff’s race. In this regard the court noted that the plaintiff understood the company’s attendance policy and the progressive discipline imposed for violations, which he characterized as “pretty straightforward.” Having “repeatedly found that violation of a company’s attendance policy is a valid, non-discriminatory reason for termination,” the court affirmed summary judgment for the employer.

As to plaintiff’s hostile work environment claim, the Fifth Circuit agreed with the district court that the plaintiff had not established an objectively offensive work environment, which consisted only of a stray remark and two isolated comments by two different individuals that were not “extremely serious” or sufficiently severe to create a hostile work environment.  Accordingly, the court also affirmed summary judgment on the plaintiff’s hostile work environment claim.

• Seventh Circuit Also Rejects Title VII Race Discrimination Claims

Barnes-Staples v. Robin Carnahan, No. 22-3275 (7^th Cir. 2023) involved a claim by a Black woman who applied for and was not selected for a position with the United States General Services Administration (GSA).  She sued, alleging that the agency’s interview process discriminated against her because of her race and sex² in violation of Title VII. The district court granted summary judgment in favor of the GSA and the plaintiff appealed.

Among other things, the plaintiff offered data on the agency’s promotion and employment rates to support her claim that the agency “fails to provide growth or leadership opportunities in … higher-level positions” for Black women. Rejecting this evidence, the court stated: “For statistical ‘evidence of a pattern or practice’ to support a claim of discrimination brought by an individual (as opposed to a class action), it must be coupled with ‘evidence of specific discrimination against the plaintiff herself.’”  Moreover, the court stated, it is also not enough for a plaintiff to present raw data without drawing “statistical inferences from a similarly situated ‘group’ within the workforce to provide the factual context necessary to show a pattern of discrimination.”

Similarly, the court rejected plaintiff’s claim that the agency’s promotion and hiring practices since 2010 illustrated “an underrepresentation of Black candidates” for the position for which she applied because she failed to provide evidence about the makeup of the candidate pool for those positions over that timeframe.  For all these reasons, the court affirmed the district court’s grant of summary judgment.

• First and Seventh Circuits Affirm Summary Judgments for Employers in Disability Discrimination Cases

In Der Sarkisian v. Austin Preparatory School, No. 23-1040 (1st Cir. 2023), the First Circuit addressed plaintiff’s claim that her employer’s failure to provide additional extensive leave as an accommodation violated the ADA. The plaintiff in the case requested and received two leaves of absence – initially for four weeks and then for an additional three months – following hip surgery. When she needed an additional three to six months’ leave, however, her employer terminated her employment and offered her the opportunity to reapply when she was cleared to work.After the district court granted summary judgment for the employer, the plaintiff appealed.For a teacher, the First Circuit concluded, regular, in-person attendance was an essential function of the plaintiff’s job and therefore her request for additional extended leave without a specific end date was not a reasonable accommodation.

Smithson v. Austin, No. 22-2566 (7th Cir. 2023) also involved accommodation requests by a teacher with multiple medical conditions.  Over the course of her employment, the teacher in this case sought and received several accommodations for her conditions, including allowing her to occasionally arrive 15 minutes late and make up that time at the end of the day. After several years her late arrivals increased, and the plaintiff asked for a delayed start time of up to two hours every day.  In response, the school approved the plaintiff’s use of sick leave for any absence of up to two hours.

The plaintiff sued under the Rehabilitation Act³ for disability discrimination and failure to accommodate, claiming that forcing her to use sick leave was a penalty for her disabilities. The district court granted summary judgment to the employer and the plaintiff appealed. Noting that the standards for the Rehabilitation Act and the ADA are the same, the Seventh Circuit, like the First Circuit in Der Sarkisian, concluded that in-person attendance was an essential function of the plaintiff’s position and that missing up to two hours each morning would interfere with this essential job function. In response to plaintiff’s argument that her early morning attendance was not essential because the school had approved her requested accommodation for occasional late arrivals, the court stated that an infrequent 15-minute delay in arrival is objectively not the same as a regular delay in arrival. “[A] delay in arrival that consumes twenty-five percent of the school day on a regular basis is not a reasonable accommodation as a matter of law,” the court stated. The fact that plaintiff’s employer accommodated occasional delayed arrival for several years did not mean that physical attendance was not an essential job function, the court held, citing prior Seventh Circuit decisions for the proposition that an employer who “goes further than the law requires in accommodating a disabled person … must not be punished for its generosity by being deemed to have conceded the reasonableness of a far-reaching accommodation.”