The First Circuit takes the wrinkles out of Title VII jurisprudence

The First Circuit takes the wrinkles out of Title VII jurisprudence in Thomas v. Eastman Kodak Co., No. 98-2231, 1999 WL 487158 (1st Cir. 1999).

For 35 years, the primary federal statute prohibiting job discrimination has been Title VII of the 1964 Civil Rights Act (the "Act"). Title VII forbids discrimination by, inter alia, employers against job applicants and employees on the basis of race or color, religion, sex, pregnancy, and national origin. While the body of Title VII case law is enormous, courts are presented occasionally with new or familiar but difficult issues which push the boundaries of Title VII jurisprudence in ways likely unforeseen by the legislation’s drafters. In Thomas v. Eastman Kodak Co., No. 98-2231, 1999 WL 487158 (1st Cir. 1999), the United States Court of Appeals for the First Circuit considered "new wrinkles" under Title VII of the Act and reached a notable decision which has broad practical, economic, and social effects. This article discusses in the sections subsequent the facts and procedural posture of the Thomas case, Title VII and related case law, the Thomas court’s analysis, and the implications of the court’s decision.

In 1993, Myrtle Thomas ("Thomas" or "appellant"), the only African-American Customer Service Representative ("CSR") in the Eastman Kodak Company’s ("Kodak" or "appellee") Wellesley, Massachusetts office, was laid off. Thomas, 1999 WL 487158, at *1. Prior to her lay-off, Thomas worked for Kodak for almost 20 years, moving up the corporate ladder from clerical positions to customer support. Thomas, 1999 WL 487158, at *1. During her first ten years as a CSR, Thomas’s supervisors were never dissatisfied with her performance. Thomas, 1999 WL 487158, at *2. Co-workers and customers were similarly impressed. Thomas, 1999 WL 487158, at *2. Indeed, in recognition of her high level of performance, Kodak gave Thomas awards, bonuses, and promotions. Thomas, 1999 WL 487158, at *2. The last promotion received by Thomas was in 1989 for "making an outstanding contribution to . . . support activities," defined as "servicing the largest and/or most sensitive accounts, developing and giving individualized presentations and/or demonstrations, and training new CSRs." Thomas, 1999 WL 487158, at *2.

Thomas’s fortunes at Kodak changed, however, after Claire Flannery ("Flannery") was promoted to Customer Support Manager ("CSM"), thus becoming Thomas’s supervisor. Thomas, 1999 WL 487158, at *3-4. While Thomas’s performance evaluations were highly favorable in the years directly preceding Flannery’s promotion, Flannery’s evaluations of Thomas’s performance were very uncomplimentary. Thomas, 1999 WL 487158, at *4.

Thomas alleged that Flannery treated her differently than the other CSRs, all of whom were white. Thomas, 1999 WL 487158, at *4. She also alleged that Flannery damaged unnecessarily her professional reputation with Kodak customers, impeded her professional development, and denied her opportunities for growth and success. Thomas, 1999 WL 487158, at *4. Most significant, however, was Thomas’s allegation that Flannery gave her inaccurately low scores on her annual performance appraisals in 1990, 1991, and 1992. Thomas, 1999 WL 487158, at *5.

Thomas refused to sign her performance appraisals in 1990 and 1992. Thomas, 1999 WL 487158, at *5. She signed her 1991 appraisal only "’out of a joke,’ because it was a joke." Thomas, 1999 WL 487158, at *5. To the extent that it was possible for Thomas to compare her salary and raises with other CSRs under Flannery’s supervision, she did not note any obvious effects of her poor appraisals as other CSRs’ salary and bonuses were not significantly different than hers. Thomas, 1999 WL 487158, at *5. Thomas did not sit by idly, however. She complained about the appraisals to Flannery and other Kodak employees, including a Regional Vice President and a Human Resources Representative. Thomas, 1999 WL 487158, at *4. Fearing retaliation from Flannery, Thomas never filed a formal charge against Flannery. Thomas, 1999 WL 487158, at *5. Kodak never took any action as a result of Thomas’s informal complaints. Thomas, 1999 WL 487158, at *5.

In 1993, Kodak decided to reduce its workforce and chose those employees to be laid off by utilizing a "Performance Appraisal Ranking Process ("PAR process"). Thomas, 1999 WL 487158, at *5. The PAR process "produced a numerical score for each employee by adding together the employee’s overall performance appraisal score for each of the three preceding years, after weighing the most recent score by a factor of 25 and the second most recent score by a factor of five. Thomas’s PAR ranking, which was based on Flannery’s three appraisals of Thomas’s performance, was sufficiently low so as to warrant her layoff under the PAR process. Thomas, 1999 WL 487158, at *5. Thomas and one other Wellseley CSR were laid off in March 1993. Thomas, 1999 WL 487158, at *5.

Four months later, Thomas filed a race discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Thomas, 1999 WL 487158, at *5. The EEOC issued a "right to sue" letter in early 1996 and Thomas filed suit against Kodak several months later. Thomas, 1999 WL 487158, at *5. Thomas’s suit focused mainly on Kodak’s 1993 decision to terminate her employment, arguing that the termination decision was discriminatory because it was based on Flannery’s discriminatory performance appraisals. Thomas, 1999 WL 487158, at *5. Kodak moved for summary judgment, arguing that Thomas’s claim was time-barred and, in the alternative, that Thomas failed to present sufficient evidence of racial animus to reach a jury. Thomas, 1999 WL 487158, at *5. The lower court granted Kodak’s summary judgment motion with respect to the latter argument. Thomas, 1999 WL 487158, at *5. On appeal, Thomas argued that the lower court applied incorrectly the applicable standard. Kodak countered that the correct standard was applied by the trial court and that Thomas’s action was time-barred. Thomas, 1999 WL 487158, at *5.

The Civil Rights Act of 1964 (the "Act") is the most far-reaching and important civil rights legislation ever enacted. Title VII of the Act forbids employment discrimination by a wide range of employers, including private employers, against job applicants and employees who are members of certain protected classes.

Title VII is administered and enforced by the EEOC, a federal administrative agency. The EEOC has broad powers to receive and process discrimination charges, to prevent unlawful employment practices from occurring, and to resolve conflicts that arise under the Act’s provisions. Although the EEOC has no direct enforcement authority, there are five major enforcement procedures under Title VII at the EEOC’s command: 1) the charging process; investigation of charges; 3) determination of whether to issue a reasonable cause determination; 4) conciliation; and 5) compliance review. Title VII enforcement begins with the filing of an unlawful employment discrimination charge with either the EEOC or a state or local agency charged with enforcing state anti-discrimination statutes. For a charge to be timely under Title VII, it must be filed with the EEOC within 180 days of the alleged discriminatory employment action. This statute of limitations may be extended by state statute to 300 days, 42 U.S.C.A. § 2000e-5(e)(1) (West 1999), or by various equitable doctrines which have developed over the years, such as the equitable tolling, relation back, and continuing violation doctrines. While compliance with the 180 day filing period is uncomplicated theoretically, actual compliance is hindered often by confusion concerning when the alleged discriminatory act actually took place.

The Supreme Court recognized this ambiguity and expressly rejected the idea that there is a "bright line" that marks the beginning of the tolling period. Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498 (1990). The Court established two factors for determining when the Title VII tolling period commences: 1) the precise nature of the unlawful employment practice alleged by the employee or applicant; and 2) when the injured party received notice that the claimed discriminatory act occurred. Id. The Court of Appeals for the First Circuit has also spoken on the topic of when a Title VII charge accrues for the purpose of the statutory filing period.

In Johnson v. General Elec., 840 F.2d 132 (1st Cir. 1988), an African-American employee claimed that he was denied a promotion based on a review process that was designed to discriminate against him, thereby preventing him from qualifying for a promotion. Id. at 134. The employee argued that his claim accrued when he was informed that he failed the review process and, therefore, would not be promoted. Id. The employer argued that the employee’s claim accrued when the review process was first implemented. Id. The district court found in favor of the employer. The First Circuit, however, defined the issue as whether the employee’s claim accrued when he was made subject to the evaluation process or when the evaluation results were applied so at deny him particular benefits or positions. Id. Although the court upheld the lower court’s holding on different grounds, it reasoned the notice standard is met and the statute of limitations is triggered only if the "implications [of the evaluation] have crystallized" and "some tangible effects of the discrimination are apparent" to the employee. Id. For example, the implications will crystallize or some tangible effects of the evaluation may become apparent when the employee realizes that he will in fact be injured by the challenged practice.

Other circuits follow the rule announced by the Circuit Court of Appeals for the District of Columbia in Stroller v. Marsh, 682 F.2d 971(D.C. Cir. 1982). The Stroller court announced the following rule: 1) an employee may challenge an employer’s wrongful reliance on discriminatory evaluations, even where the employee acknowledged that the employer’s reliance on said evaluations was not intentionally discriminatory; and 2) after preparation of employee evaluations, the employer may protect itself from Title VII liability by establishing procedures that allow employees to screen their personnel files and remove damaging, discriminatory information so long as the established procedures provide employees with a reasonable opportunity to inspect, challenge, correct and/or remove their supervisory evaluations which are discriminatory or inaccurate. Id. at 979. Therefore, pursuant to the second part of the Stroller rule, if an employer provides its employees with adequate notice that they have the right to inspect, challenge, correct, and/or modify their supervisory evaluations, then the employer may rely in good faith on said evaluations without violating Title VII when making subsequent employment decisions. Id.

Whether an employee made a timely filing is only one consideration in determining whether a charge of alleged employment discrimination will be considered by the EEOC. Nevertheless, if the tolling period is satisfied and other statutory requirements are met, an employee of a private employer may sue the alleged discriminatory employer in federal district court or state trial court in the following three circumstances: 1) where the EEOC dismisses the employee’s charge; 2) where the employee requests a "right to sue" letter; and 3) where the EEOC’s conciliation efforts fail and the EEOC decides not to exercise its right to sue.

Most employment discrimination cases are brought under one of the following two theories: 1) disparate impact; or 2) disparate treatment. Cases brought under the disparate impact theory generally involve employment practices that are facially neutral but have a significant adverse effect on employee members of a protected class. Generally, proof of a discriminatory motive is not required in disparate impact cases. After the employee establishes disparate impact, the employer must support its allegedly discriminatory action by demonstrating a business necessity for the practice. If the employer justifies its action by showing that it was executed due to business necessity, the employee must then show that there is a reasonable alternative that accomplishes the same purpose with less of or no impact on the employee members of the protected class. Cases brought under the disparate treatment theory generally involve an employer that treats employee members of a protected class differently and more unfavorably than other employees. The employee must prove that the employer had a discriminatory motive for its actions. The employer must then rebut the employee’s proof of discriminatory motive by providing a legitimate, nondiscriminatory motive for its actions. For the employee to prevail, the employer’s articulated reason for its actions must be shown to be a pretextual excuse for unlawful discriminatory behavior.

The Supreme Court, in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), set out the specific elements of proof which must be satisfied in a Title VII disparate treatment case. Generally, the employee must establish a prima facie case of discrimination. Once the employee establishes a prima facie case, the burden of production shifts to the employer to produce a valid, nondiscriminatory reason for its actions. In the final stage of this "burden-shifting framework," the employee must show that the employer’s stated reasons for its actions are a pretext for discrimination.

The final stage of the burden shifting framework places upon the employee the ultimate burden to persuade the trier of fact that he or she was treated differently because of his or her membership in a protected class. The First Circuit Court of Appeals separates this burden into two distinct elements, as does the Supreme Court. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993) (adopting "pretext-plus" standard); Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995) (same). The First Circuit and Supreme Court refer to the employee’s burden at the third stage of the burden-shifting framework as a "pretext-plus" standard. Mullin v. Raytheon Co., 164 F.3d 696, 699 (1st Cir. 1999); Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir. 1998). Pursuant to this standard, the employee must present evidence sufficient to show that the employer’s articulated reason for the employee’s lay off is a pretext and that the true reason is discriminatory. Udo, 54 F.3d at 13. While the "pretext-plus" label confuses some plaintiffs as to the evidence required to meet the standard, the First Circuit determined that standard does not necessarily require the introduction of additional evidence beyond that required to show "pretext." Dichner, 141 F.3d at 30. Therefore, an employee may use the same evidence to prove both elements of the pretext-plus standard, so long as the evidence sufficiently enables a rational fact finder to infer reasonably that "unlawful discrimination was a determinative factor in the adverse employment action." Rodriguez-Cuervos v. Wal-Mart Stores, Inc., No. 98-1732, 1999 WL 373525, at *7 n.5 (1st Cir. June 11, 1999).

According to the Thomas court, even after thirty-five years of Title VII litigation, cases "still present new wrinkles" and acknowledged that the wrinkles of this case fostered key holdings for the First Circuit. Thomas v. Eastman Kodak Co., No. 98-2231, 1999 WL 487158, at *1 (1st Cir. July 15, 1999). The court analyzed separately the following two issues presented on appeal by the parties: (1) whether harm cognizable under Title VII existed at the time Thomas actually received her performance appraisal; and (2) whether a reasonable jury could find, based on Thomas’s evidence, that Flannery discriminated against Thomas because of her race when she assigned Thomas’s appraisal scores. Thomas, 1999 WL 487158, at *13-14.

The court first analyzed Kodak’s argument that the lower court erred in not dismissing Thomas’s case on the basis that it was untimely. Thomas, 1999 WL 487158, at *6. Kodak argued that for purposes of the Title VII statute of limitations, Thomas’s claim accrued at the time she received the allegedly unlawful performance appraisals and that too much time had passed from even the 1992 appraisal for her to claim that appraisals performed by Flannery in 1990, 1991, and 1992 were tainted by racial animus and that the PAR process was discriminatory in a derivative way because its methodology depended on discriminatory appraisal scores. Thomas, 1999 WL 487158, at *6. Thomas argued further that if Flannery’s biased scores were plugged into the PAR formula, then the resulting PAR ranking must be biased also. Thomas, 1999 WL 487158, at *6. Therefore, Thomas argued that her claim accrued not at the time she received Flannery’s appraisals of her performance but when Kodak used the PAR process to terminate her employment. Thomas, 1999 WL 487158, at *6.

Before beginning its analysis, the court acknowledged that each party’s argument was logical and reasonable. Nevertheless, the court also recognized that Title VII’s statute of limitations is not self-executing because it not possible always to pinpoint when the limitations period should commence or when the employee’s claim accrued. Thomas, 1999 WL 487158, at *6. Although Kodak supported its argument by refuting a Third Circuit Court of Appeals decision, Colgan v. Fisher Scientific Co, 935 F.2d 1407 (2d Cir. 1991), the Thomas court took guidance from its own decision, Johnson v. General Elec, 840 F.2d 132 (1st Cir. 1988), when it decided the parties’ motions. Thomas, 1999 WL 487158, at *7-9.

Kodak presented a two-stranded argument, arguing that the notice rule announced by the Third Circuit Court of Appeals in Colgan should not apply. The first strand of Kodak’s argument was based on "notions of fair notice to the employer." Thomas, 1999 WL 487158, at *9. The second strand of Kodak’s argument that Thomas’s timeliness argument relied on an impermissible combination of the equitable tolling and continuing violation doctrines. Thomas, 1999 WL 487158, at *9.

Kodak argued that the court should substitute for the Colgan court’s accrual rule a rule that focuses on notice to the employer. Although it recognized the similarity of Colgan’s facts to the facts surrounding Thomas’s allegations, the Thomas court chose to follow its own precedent as articulated in Johnson.

The court resolved the issue of whether a claim accrues when an employee is evaluated or when that evaluation is used to deny the employee a particular position or opportunity by reasoning, like the Johnson court, that the statute of limitations is triggered when the implications of the evaluation "crystallize" and "some tangible effect of the discrimination is realized." Thomas, 1999 WL 487158, at *8. The Thomas court recognized that pursuant to the Johnson decision, employers could be exposed to Title VII liability for "harms stemming from the discriminatory evaluations some years after the evaluations were conducted, if the evaluations first cause tangible harm to the employee at that later point." Thomas, 1999 WL 487158, at *9. The Thomas court decided that this possible liability exposure was more desirable than the alternative rule proposed by Kodak, which paralleled the decision of the Court of Appeals for the District of Columbia Circuit in Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982).

The Thomas court reasoned that following the Stroller decision as proposed by Kodak would foster the following deleterious results: 1) employers would have "carte blanche" to rely on discriminatory evaluations so long as the employer offered it employees an opportunity to review, change, modify, delete, and/or challenge discriminatory aspects of such evaluations; and 2) courts would have to interpret strictly the concept of adequate procedures to allow employees to screen their personnel files and remove damaging, discriminatory information, thereby requiring court to exercise such a high level of scrutiny that the day-to-day operations of employers would be impeded and the purpose of Title VII would be contravened. Thomas, 1999 WL 487158, at *11. Accordingly, the court rejected the first strand of Kodak’s timeliness argument. Thomas, 1999 WL 487158, at *9.

In the second strand of its timeliness argument, Kodak argued that both the lower court and Thomas relied on an "illegitimate" hybrid of the equitable tolling and continuing violation doctrines. Thomas, 1999 WL 487158, at *9. Thomas denied any such reliance. Thomas, 1999 WL 487158, at *9. The Thomas court made the following observations in rejecting summarily Kodak’s argument: (1) the equitable tolling doctrine is inapplicable to the facts presented in this case; and (2) under First Circuit precedent, there is no need to apply the continuing violation doctrine.

The court then turned to the issue of whether harm cognizable under Title VII existed at the time Thomas actually received her performance appraisals. Thomas, 1999 WL 487158, at *13. The court reasoned that the Johnson accrual rule was the most appropriate standard to resolve this issue. Thomas, 1999 WL 487158, at *13. The court focused on Kodak’s compensation plan because the PAR process results were intended to affect salary levels and determine who should be promoted, transferred, demoted, terminated, laid-off, and reemployed. Thomas, 1999 WL 487158, at *13. It was unclear to the court, however, whether Kodak informed its employees of the PAR process’s purpose. Thomas, 1999 WL 487158, at *13. The court reasoned that even if the Kodak employees were familiar with the intended possible uses of the PAR process, it appeared that the effects listed in the compensation plan remained abstract and uncertain. Thomas, 1999 WL 487158, at *13. The court found this uncertainty particularly relevant to Thomas because she was unaware that her average or below average appraisals would lead to her lay-off or any other immediate consequence for her alleged performance shortcomings. Thomas, 1999 WL 487158, at *13. Thomas was never told that her low scores placed her at risk of losing her job and the court reasoned that even if she had been told as much, being at risk of job loss and actually losing one’s job are fundamentally different. Thomas, 1999 WL 487158, at *13.

Kodak emphasized the fact that Thomas refused to sign her 1990 and 1992 appraisals and that such refusals indicate Thomas’s notice of the possible racial bias reflected in Flannery’s low evaluations of her performance. Thomas, 1999 WL 487158, at *13. The court emphasized, however, that Kodak missed the point of Johnson’s accrual rule because Kodak’s argument pertained to notice of bias rather than notice of harm as required by the Johnson court. Thomas, 1999 WL 487158, at *13. The court held that Thomas’s layoff marked the point of accrual for the purpose of bringing her Title VII action. Thomas, 1999 WL 487158, at *14. Accordingly, the court found that Thomas’s receipt of her performance appraisals did not trigger Title VII’s statute of limitations because they did not present "any crystallized implications or apparent negative tangible effects." Thomas, 1999 WL 487158, at *14. The court found that Thomas’s claim was timely, thereby upholding the lower court’s decision.

The second issue on appeal was whether a reasonable jury could find, based on Thomas’s evidence, that Flannery discriminated against Thomas because of her race when she assigned Thomas’s appraisal scores. Thomas, 1999 WL 487158, at *14. To resolve this issue, the Thomas court relied upon the "familiar burden shifting framework" that was first outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) and later clarified by the Court in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Thomas, 1999 WL 487158, at *14. Thomas The court focused particularly on the final stage of the burden-shifting framework because it agreed with the lower court’s analysis of the framework’s first two stages. Thomas, 1999 WL 487158, at *14. The Thomas court disagreed with the lower court’s "pretext-plus" analysis, however. Thomas, 1999 WL 487158, at *15.

The district court found that Thomas satisfied the first part of her burden, i.e., the requirement for establishing "pretext." Thomas, 1999 WL 487158, at *15. The district court found, however, that Thomas did not satisfy the burden of proof required for the "plus" element of the pretext-plus standard because she did not create a genuine issue of material fact as to whether the allegedly unfair scores assigned by Flannery were due to Thomas’s race and not some other factor. Thomas, 1999 WL 487158, at *15. Therefore, the lower court granted Kodak’s motion for summary judgment on this issue because Thomas failed to make any connection between Flannery’s actions and her own membership in a protected class. Thomas, 1999 WL 487158, at *16. The First Circuit determined that the lower court mischaracterized the plaintiff’s burden at the third stage of the burden-shifting framework. Thomas, 1999 WL 487158, at *16.

In finding error in the lower court’s decision, the Thomas court stressed that there is no "mechanical formula" which can be used as a method of analysis at the third stage of the burden-shifting framework. Thomas, 1999 WL 487158, at *16. The court stated that "because discrimination, and discrimination cases, come in many different forms, a case-by-case analysis is always necessary." Thomas, 1999 WL 487158, at *16. Accordingly, the court declared that the First Circuit’s pretext-plus standard does not rigidly require that the employee produce additional evidence beyond that required to show pretext. Thomas, 1999 WL 487158, at *16. Indeed, an employee may use the same evidence to support the burden of proof for both the pretext and the plus elements of the pretext-plus standard. Thomas, 1999 WL 487158, at *16. Therefore, the court reasoned that the district court erred when it granted summary judgment to Kodak on the basis that Thomas did not produce additional evidence beyond that used to prove pretext or evidence of the falsity of Kodak’s articulated reason for Thomas’s layoff. Thomas, 1999 WL 487158, at *22.

Additionally, the court emphasized that the term "pretext" provides no justification for assuming that those employees or employers whose evidence is disbelieved are perjurers and liars. Thomas, 1999 WL 487158, at *17 (citation omitted). Ultimately, the issue remains whether the employee was treated differently and unfavorably because of race. Thomas, 1999 WL 487158, at *17. The court also stressed that unfavorable treatment is not causally linked to conscious animus and that unlawful discrimination can stem from stereotypes and other manifestations of "cognitive biases." Thomas, 1999 WL 487158, at *17-18 (citation omitted).

Finally, the court challenged the lower court’s implication that Thomas should have satisfied the "plus" element of the pretext-plus standard by producing direct evidence, such as racially explicit statements. Thomas, 1999 WL 487158, at *23. The court emphatically stated that the lower court was flatly wrong emphasizing that there is no requirement that an employee produce direct evidence, i.e., a smoking gun, in a Title VII case. Thomas, 1999 WL 487158, at *23. Where disparity in treatment is apparent, "a jury may infer that race was the cause, especially if the no explanation is offered other than the reason rejected as pretextual." Thomas, 1999 WL 487158, at *23. Indeed, the Thomas court reasoned that requiring an employee to produce such direct evidence to satisfy the pretext-plus standard would be antithetical to both Title VII and the burden-shifting framework. Thomas, 1999 WL 487158, at *16. For Title VII and the burden-shifting framework to be effective, the court noted that employees must be able to prove unlawful discrimination by circumstantial evidence. Thomas, 1999 WL 487158, at *16.

The court therefore overturned the lower court’s grant of summary judgment on the disparate treatment issue and remanded the case for further proceedings. Thomas, 1999 WL 487158, at *24.

The Thomas court reached several noteworthy conclusions, each of which represents the court’s response to "wrinkles" in First Circuit Title VII jurisprudence. Ultimately, the Thomas decision will have broad practical, social, and economic effects for employers, employees, and job applicants. Each of the court’s conclusions are considered separately below.

A. THAT WHEN AN EMPLOYER UTILIZES SCORES FROM PAST PERFORMANCE APPRAISALS IN AN OBJECTIVE FORMULA TO DETERMINE WHO WILL SUFFER AN ADVERSE EMPLOYMENT ACTION, THE ACCRUAL DATE FOR THE LIMITATIONS PERIOD IS THE DATE OF THE NOTICE OF THE ADVERSE EMPLOYMENT ACTION, NOT THE DATE OF THE PERFORMANCE APPRAISAL, HAS POSITIVE IMPLICATIONS FOR EMPLOYERS AND EMPLOYEES

The court’s holding--when an employer utilizes scores from past performance appraisals in an objective formula to determine who will be laid off, and the laid-off employee suffered no earlier concrete harms from those appraisals, the accrual date for the limitations period is the date of the notice of the layoff, not the date of the performance appraisal, Thomas, 1999 WL 487158, at *24--has important implications for employers and employees. Employers must ensure that their evaluation processes are not tainted by conscious or unconscious racial animus because such animus may expose them to liability far into the future. Therefore, employers have an incentive to develop sophisticated, discrimination-free evaluation processes. While it is foreseeable and likely that the development of sophisticated, discrimination-free evaluation processes will come at great expense to employers, the social and economic utility of such processes is incalculable. For example, the positive results of utilizing such evaluation processes may include less employment discrimination litigation, employers placing employees in appropriate positions in the basis of merit alone, increased workplace harmony and greater productivity and profitability. Additionally, employers have an incentive to train their supervisory personnel in the desirability of avoiding conscious and unconscious racial animus in all aspects of the employment relationship. Not only will such training benefit the company and its employees, it will allow supervisors to avoid the individual liability they face under Title VII.

Moreover, employees will not be forced to file a race discrimination charge every time they believe that an employer’s evaluation process is tainted by racial animus, knowing that their rights are preserved until the implications of the evaluation crystallize and some tangible effect of the discrimination is realized. This will ease the burden on each employee who suspects that his or her Title VII rights have been infringed. This will also decrease the administrative and investigative burden of the EEOC. It may also provide the opportunity for employers to correct occurrences of racial animus in its evaluation process before administrative action or litigation is instituted.

B. THAT EMPLOYEES MUST NOT PRODUCE DIRECT EVIDENCE THAT THE REASON FOR THE EMPLOYER’S ADVERSE EMPLOYMENT ACTION WAS DISCRIMINATORY IS CONSISTENT WITH THE INTENT OF TITLE VII AND THE BURDEN-SHIFTING FRAMEWORK AND VALIDATES THE FACT THAT MUCH DISCRIMINATION IS BASED ON STEREOTYPES AND OTHER COGNITIVE BIASES

Because discrimination, and discrimination cases, come in many varied forms, restricting employees to bringing disparate treatment cases only in the circumstance where they have direct evidence of a discriminatory motive would handicap the purpose of Title VII and the burden-shifting framework. It is fundamental that discrimination, while often the result of conscious bias, is often also the subtle product of unquestioned beliefs, deeply-held value systems, and social conditioning. It is the latter types of discrimination that are the most insidious and are worthy of the intense legislative, administrative, and judicial energies dedicated to their eradication. It is these types of discrimination that Title VII and the burden-shifting framework

are uniquely suited to combat. Therefore, requiring an employee to produce direct evidence of discriminatory animus would stall most discrimination cases before they ever commenced for in today’s sophisticated employment world, direct discriminatory animus is rarely manifested. Allowing an employee to prove a case of Title VII discrimination with circumstantial evidence upholds Title VII’s goal of extending job opportunities to all people, including those members of protected classes such as racial and ethnic minorities, the disabled, and women. Foreclosing the ability of presenting a Title VII case on the basis of circumstantial evidence would end employment opportunity for exactly those people Title VII was enacted to protect.

The holding of the Court of Appeals for the First Circuit in Thomas v. Eastman Kodak Corp., No. 98-2231, 1999 WL 487158, at *1 (1st Cir. July 15, 1999), marks a success for both employers and employees. Employers do not have to defend themselves in front to the EEOC or other similar state or local body each time an employee believes that an evaluation procedure was tainted by racial animus. Likewise, employees do not have to file charges with the EEOC or other similar state or local body each time discrimination is suspected to have sullied an employer’s evaluation procedure to preserve their rights under Title VII unless the implications of the discriminatory evaluation crystallize and some tangible effect of the discrimination is realized. Moreover, allowing Title VII disparate treatment cases to go forward with circumstantial rather than direct evidence not only ensures that employees will have the continued opportunity to enforce their Title VII rights, employers who foster non-discriminatory work environments will arguably benefit from improved employee morale, productivity, and profitability.

For further information, please contact us.

Disclaimer

The ideas presented in these materials are general in nature and not intended to be construed as legal advice and cannot be relied on by any person or entity as legal advice pertaining to any specific situation.