The Boys Are Back In Town: Now, What to do with the Women?

The end of WWII laid out some problems for America: now that the boys were back, was there any use for working girls? Despite the fact that women were qualified for the positions they’d held during the war, most were let go in order to make room for men in the labor market.

In these “reduction-in-force” discrimination suits, a plaintiff must establishes a prima facie case by showing:

  1. They belonged to a protected group,
  2. The employer discharged them,
  3. They were qualified for the position
  4. There exists evidence from which a fact finder could reasonably conclude that the employer intended to discriminate.

However, the Courts are still split on one issue:

In order to show that they were qualified, does a plaintiff have to establish that they satisfactorily lived up to the “reasonable expectations” of the employer, or do they have to simply show that they satisfied the basic requirements of eligibility?

The Split

The 7th

The Seventh Circuit, in Coco v. Elmwood Care, Inc. (1997), held that a plaintiff must prove that they met the “legitimate expectations” of their employer. In cases such as this, where there is no direct evidence of discrimination occurring, the burden of proof lies on the plaintiff to show that there is a genuine issue of material fact.

Plaintiff here, Coco, was a maintenance supervisor in a nursing home. His regular responsibilities included documenting safety and maintenance problems in his weekly reports, taking care of getting these problems fixed, and conducting fire and other safety drills. His employer, Elmwood Care, Inc. claims that Coco showed deficiencies in his work, not because of his age. The court agrees that defendant’s reasons aren’t entirely credible. However, plaintiff did not meet the threshold requirement presenting evidence of his work, thus barring the defendant from having to present, in court, reasons for his termination.

The district court here granted summary judgment for the defendant on the grounds that the plaintiff had failed to fulfill his burden of proof. The court stressed the importance of this requirement as evidence for a plaintiff’s fulfillment of “legitimate expectations” rests on “demonstrating the existence of a genuine issue of material fact.” Without any proof that the discharge was could not have been a result of the actual work he was doing, there is no way to prove discrimination. The court operates under certain preconditions:

  • plaintiff must be a member of a protected class, and if they are not then they cannot have been discriminated against, and
  • plaintiff must show they lived up to the legitimate expectations of their employer, otherwise they cannot show they wouldn’t have been fired without discrimination.

The 8th

42 U.S. Code § 1981 states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

The Eighth Circuit held in Arnold v. Nursing and Rehabilitation Center at Good Shepherd, LLC, (2006) that the lower court ruling raised the standard set by the Supreme Court in order to show qualification.

Brenda Arnold, an African-American licensed practical nurse, worked at Good Shepherd. A resident accused her of verbal abuse, leading to an internal investigation by Good Shepherd. Subsequently, she was fired. A later investigation by the State of Arkansas concluded that there had been no verbal abuse, after which Arnold brought suit against Good Shepherd for violating 42 U.S. Code § 1981. The statute states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

Arnold’s qualifications spoke for themselves: she was a licensed practical nurse and had served for almost a year before she was let go.

Though the Eighth Circuit Court did ultimately affirm the lower court’s ruling, the decision’s explanation for the term ‘qualification’ led to a split in the circuit courts.

Why It’s Important

Employment discrimination is never straightforward. Employees have an increasingly difficult time winning cases against their employers, and a split in the circuit court system allows for one region to function with a different set of rules. The threshold is lower for the Eighth Circuit Court, leaving plaintiffs in the Seventh Circuit at a disadvantage.

Furthermore, when an employee is forced to prove that they had fulfilled the “legitimate expectations” of their employers, it is difficult for them to quantify what their employer’s expectations were and if they managed to live up to them.

Looking Forward

 The threshold for qualifications must be universal in all circuit courts. The split in circuit courts here makes it difficult for lower courts to make a decision that doesn’t place plaintiffs at a disadvantage, and it is necessary for SCOTUS to grant a writ in order to resolve this inconsistency in the law.





Does Similar Mean Identical?  The Meaning of “Similarly Situated” in Employment Discrimination Cases

The Setting

In most employment discrimination cases, the employee alleging discrimination against his employer must show that he was treated differently from similarly situated employees because of his protected class (i.e., his race, gender, sex, religion, age, disability, etc.).

What does “similar” mean though?

The Split

The Fifth

The Fifth Circuit held in Perez v. Texas Dept. of Criminal Justice (2004), that “the jury must find the employees’ circumstances nearly identical in order to find them similarly situated.”

In this case, Perez alleged the Texas Department of Criminal Justice (TDCJ) fired him because of his race.  Perez had been arrested and charged with felony assault after he allegedly stabbed a former TDCJ inmate while off-duty at a bar.  He refused to answer TDCJ’s questions about the incident at the advice of counsel.  Perez was subsequently fired for engaging in conduct that jeopardized TDCJ’s integrity.  Perez showed that two other, non-Hispanic employees, who had respectively committed involuntary manslaughter and drunken assault, had not been fired.

The lower court instructed the jury that “similarly situated” means “the quantity and quality of the other employees’ misconduct must be of comparable seriousness to the misconduct of the plaintiff.” The Fifth Circuit found this erroneous because it “suggested that comparably serious misconduct was by itself enough to make employees similarly situated.”  Instead, the court set its hat on a stricter standard of proof, and held that “similarly situated” means “nearly identical.”

TDCJ had distinguished Perez’s conduct from that of other felonious employees because Perez’s alleged victim was a former inmate, whereas the other victims were unaffiliated with TDCJ.  The court found that this sufficiently threw Perez out of “nearly identical” territory, vacated the lower court’s judgment, and remanded the case for further proceedings consistent with this higher standard.

The Seventh

The Seventh Circuit, on the other hand, rejected this narrow interpretation in Ezell v. Potter (2005) and held that “the other employees must have engaged in similar–not identical–conduct to qualify as similarly situated.”   In this case, Wright, an African-American woman, fired Ezell, an over-50, Caucasian letter carrier for taking an unauthorized extended lunch break.  Ezell claimed that because Wright had made derogatory comments about white people, older letter carriers, and men, the reason for his termination was pretext.

The lower court interpreted “similarly situated” to mean that Ezell “must produce a non-Caucasian employee who committed exactly the same infraction and was treated more favorably.”

The Seventh Circuit took issue with this narrow interpretation and found, essentially, that “similar” means “similar” and not “identical.”

Under this broader approach, the court found that Ezell had sufficiently supported his race and sex claims to survive summary judgment because Wright had not herself been fired for falsifying records and because Wright had not fired an African-American man for losing a piece of certified mail.  The court found that these offenses were “very similar” to Ezell’s conduct.  The court also found that Wright sufficiently supported his age claim for summary judgment purposes because he alleged that Wright and her co-supervisor had a plan to fire and replace older letter carriers with younger, faster letter carriers.

The Significance

Employment discrimination is notoriously difficult to prove because it involves a lot of “he said, she said” evidence.  Further, the employee usually is unable to support his or her contentions with documentation in the same way that organized employers are able due to their required and established procedures.  This puts employees at a disadvantage in the conflict.

One way of proving discrimination is by showing that similarly situated employees were treated more favorably.  These allegations usually rely on the alleging employee’s word, but can be supported by documentation from the employer.  This helps level, to some degree, the disadvantage noted in the preceding paragraph by using the employer’s own documentation against it.  However, courts in agreement with the Fifth Circuit’s “nearly identical” ruling, raise the bar even higher for employees alleging discrimination.

Looking Forward

It is standard that alleging parties have the burden of proof.  Nonetheless, it is time for SCOTUS to decide whether similar means similar or whether similar means nearly identical.  Resolving this dispute has implications on the degree to which employees are burdened in an already uneven playing field.