Associational Discrimination, Quirky Question # 87
Quirky Question # 87:
Some time ago, you wrote an analysis about discrimination on the basis of inter-racial marriage. We are confronting a slightly different problem. Several of our Caucasian employees have complained that they have been discriminated against because of their friendships with their African American co-workers. These individuals are not married to the African Americans and they have not even said they spend time with them away from work. But, they are claiming discrimination nonetheless. Similarly, they have complained that they are offended by some of the language used by some of their Caucasian co-workers with respect to minority employees who work at our company. Do they have a potential claim? Does Title VII reach claims brought by Caucasians who are complaining about treatment of minorities?
You have asked whether Title VII reaches claims brought by Caucasians who complain about the treatment of minorities at your company. Without more information, it would be difficult for me to provide you a definitive answer to your inquiry. Theoretically, however, it is possible for your Caucasian employees to assert a legitimate Title VII claim based on how the minority employees in your company are treated. As discussed below, however, this type of claim is unusual and not without significant limitations.
In the recent case of Barrett v. Whirlpool Corporation, No. 08-5307 (6th Cir. February 23, 2009), the appellate court examined a number of these issues. The case was before the appellate court following the grant of summary judgment to defendant Whirlpool. The three plaintiffs (Barrett, Melton and Nickens) claimed that their employer discriminated and retaliated against them in violation of Title VII on the basis of their friendships with and advocacy for certain African American co-workers.
The claims brought by plaintiffs involved some very ugly conduct by the plaintiffs’ co-workers, including grossly racist conduct. Some of this conduct was reported by the plaintiffs to their supervisors, but the company’s response was inadequate.
As the Sixth Circuit pointed out, “Title VII forbids discrimination on the basis of association with or advocacy for a protected party.” The court emphasized that Title VII protects individuals who, though not members of the protected class, are “victims of discriminatory animus toward [protected] third persons with whom the individuals associate.” For example, the appellate court previously had held that a Caucasian parent discriminated against because he had a bi-racial daughter stated a legitimate claim under Title VII. Similarly, as I’ve addressed in a prior Blog analysis, discrimination based on an individual’s inter-racial marriage also is prohibited by Title VII.
In Barrett, the District Court had found that the plaintiffs’ associations with their African American co-workers fell short of providing Title VII protection because the plaintiffs provided no evidence that their friendships “constituted anything other than the casual, friendly relationships that commonly develop among co-workers but that tend to be limited to the workplace.” The appellate court, however, repudiated that formulation by the trial court. Instead, the Sixth Circuit adopted the analysis articulated by the Seventh Circuit that the degree of association is irrelevant – “the key inquiries should be whether the employee has been discriminated against and whether that discrimination was ‘because of’ the employee’s race.” (Relying on Drake v. 3M, 134 F.3d 878 (7th Cir. 1998) (white employee may sue under Title VII based on discrimination resulting from his friendship with black co-workers). The appellate court also cited to other decisions involving parallel factual patterns, including inter-racial dating, inter-racial parent-child relationship, inter-racial marriage, friendship with protected class employees, association with Hispanic community, and casual social relationships with African-American non-employees. In all of these contexts, the relevant courts found that Title VII reached the conduct in question.
The Sixth Circuit adopted the reasoning of the Drake court: “If a plaintiff shows that 1) she was discriminated against at work, 2) because she associated with members of a protected class, then the degree of association is irrelevant.” The court noted that the absence of a relationship outside of work should not “immunize the conduct of harassers who target an employee because she associates with African-American co-workers.” While reaching this conclusion, the court observed that the closer the relationship (e.g., marriage or paramour) between the individual outside the protected group and the member of the protected class, the greater the likelihood the Caucasian employee will be able to demonstrate discriminatory treatment based on the relationship. But, as the appellate court emphasized, this issue “goes to the question of whether the plaintiff has established a hostile work environment, not whether he is eligible for the protections of Title VII in the first place.”
Just as the Sixth Circuit found that discrimination based on association is a viable Title VII claim, the appellate court also examined the issue of whether the plaintiffs had advanced a viable claim based on their advocacy on behalf of protected class members. “As with the question of association, the key questions are whether Plaintiffs were discriminated against, and whether the reason for the discrimination was their advocacy for protected employees.”
The appellate court also examined the issue of whether the plaintiffs were victims of retaliation. This legal theory also potentially applied to the claims of the plaintiffs.
In short, as the Barrett case illustrates, there are at least three potential claims that your employees could bring: a) associational discrimination claims; b) advocacy discrimination claims; and c) retaliation claims. The viability of those claims will depend on the nature of underlying conduct engaged in by your company’s employees and the nexus, if any, between the associations or advocacy of your Caucasian employees and the adverse treatment they experienced. Here, the typical issues arising in any harassment or discrimination case will predominate: the nature of the conduct; its severity and frequency; whether your company had knowledge of the discriminatory behaviors; the positions (managerial or non-managerial) of those who engaged in the wrongful conduct; the effectiveness of your company’s response when confronted with the behavior; whether the employees availed themselves of the mechanisms your company provides to address discriminatory conduct; etc.
Interestingly, when evaluating these types of issues in the Bennett case, the Sixth Circuit found that although the claims asserted by the plaintiffs were cognizable, only one of the three plaintiffs had presented sufficient evidence to overcome the summary judgment determination of the lower court. Whether you can achieve the same success will depend on the unique facts of your case.