Management difficulties with discrimination complaints.
The lengthy and costly process of litigating discrimination cases encourages some employers to engage in "checkbook" litigation, where cases are settled by offering plaintiffs a cash settlement. While settling complaints may or may not encourage serial litigation or cause abuses of the system, it does, however, impact the psyche of the accused management official, because implicit with settling a case is an admission that someone did something discriminatory (illegal) and wrong.
The only alternative is trial. By its very nature, a trial involving pride and self-esteem (either as a subordinate or as a supervisor) will end up injuring both sides. This is simply a "no-win" situation for management.
What can management do to deal with this myriad of difficulties? Managers must learn and understand the fundamentals of discrimination law and then acknowledge, accept, and support its existence.
This article addresses discrimination problems in the workplace. It also provides some common-sense suggestions as to how law enforcement managers should deal with them.
What the Courts Look For
Title VII regulates and prohibits employment actions taken on account of a person's race, sex, color, religion, and national origin.(1) Employment actions commonly take the form of hiring, promotion, assignment, performance appraisal, and discipline.
An intentional use of race, sex, color, religion, or national origin in an employment action against an individual is identified as "disparate treatment." In this type of case, there must be a discriminatory motive (intent to discriminate). However, the motive sometimes can be inferred from differences in treatment.
Allegations of disparate treatment are problematic for managers to defend and present a unique challenge to judges or juries who must determine the ultimate issue of whether there was discrimination violative of Title VII. One Federal judge expressed his frustration with such cases as follows:
This Title VII case presents a nigh
diurnal [near daily] problem for
the judiciary. .. . [these]
question[s] [have] formed the
chorus for many productions in
many seasons of the legal opera.
The familiar refrain forms the
theme for this work too--and the
crescendo reverberates: `The
antagonist has not shown that his
refusal to hire is work-related.'
This compelling melodic line
causes us to commission a new
work in the district
court--addressed to the same
human drama. By whatever
`work history'-- the appellees
stated reasons for its refusal to
hire, adopted by the district court,
do not constitute cognizable
cause for the refusal.(2)
The criteria set out in McDonnell Douglas Corp. v. Green and its progeny establish how the plaintiff's allegations must be analyzed under a three-phase shifting burden analysis.(3) Initially, the plaintiff must prove a primo facie case by a preponderance of the evidence.
Should the plaintiff succeed, then the employer must produce evidence that the employment action was taken for a "legitimate and nondiscriminatory reason." If the employer carries this burden, the plaintiff must meet the ultimate burden of persuasion that the reasons offered by the employer are a pretext for discrimination.
Meaning of the Three-Phase Shifting Burden
Factual circumstances can vary in discrimination cases, and slight variations in the prima facie case may occur with differing factual situations. However, plaintiffs must establish a prima facie case by showing:
1) They are members of a protected group
2) They are similarly situated to employees outside their particular group, and
3) They were treated differently than employees outside their protected group.
It is well-settled that plaintiffs' "beliefs" or "feelings" cannot create a triable issue of discrimination.(4)
The employer then responds to the prima facie case by producing evidence that would negate the plaintiff s claim of similarly situated employees outside the plaintiff's particular group or by producing evidence that plaintiff was not treated differently. If the employer is unable to respond sufficiently to negate the prima facie case, and the plaintiff is able to establish this threshold requirement, then the employer must come forward with evidence of a legitimate and nondiscriminatory reason for its actions.
The employer's explanation must be clear and reasonably specific.(5) Invariably, the employer will lose the trial when using facts that appeal to emotion rather than logic. To overcome the inference of discrimination created by the establishment of a plaintiff's prima facie case, general and unsubstantiated or largely undocumented testimony is ineffective.(6)
Although the defendant does not have the burden of presenting comparative evidence, there is an incentive "to persuade the trier of fact that the employment decision was lawful."(7) Comparative evidence often provides the substance of rebuttals; it has been described as the "viscous agent which would overcoat [plaintiff's] prima facie case."(8)
Once the employer has articulated the legitimate and nondiscriminatory reason for its actions, the burden shifts back to the plaintiff to establish a "pretext." In 1993, the Supreme Court clarified the third prong of the analysis regarding burdens of proof in Title VII matters.
Specifically, the Court explained that in order for a plaintiff to carry the required burden of proof, the plaintiff must demonstrate that the legitimate nondiscriminatory reason offered by the employer to explain the employment action is false and the true reason was motivated by unlawful discrimination. The Court noted: "[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason."(9)
Using the Court's Framework For Guidance
When a discrimination (EEO) complaint is received, the investigation should be conducted with a view toward establishing or eliminating a case based on the previously discussed shifting burdens. The investigation should be both objective and thorough.
Self-serving affidavits or declarations made during an investigation are ineffective and often counter-productive. Statements should articulate facts and should be supported by documentation. Examples of documentation would include policy, written evidence of practice, and comparable instances of conduct.
Management officials then should review the investigation upon its completion. If recognizable problems within the record exist, these officials should consult with their in-house or defense counsel immediately to determine the best approach to take with the case.
In working with in-house or defense counsel on litigation matters, management should encourage the defense counsel to pursue and defend discovery aggressively. Discovery is controlled primarily by regulations and the Federal Rules of Civil Procedure. Devices such as interrogatories,(10) requests for admission,(11) requests for production,(12) and depositions(13) should be used. Requests for admission are effective tools, especially for use in motions for summary judgment, because any matter admitted is established conclusively.
Plaintiff attorneys know that if they can broaden discovery (go on a fishing expedition), more than likely they will locate information of value. Plaintiff attorneys also know that if they can confuse and expand the issues, the defense attorneys may be distracted addressing minor or irrelevant issues and lose sight of the major issue. Better yet for the plaintiff attorney is when a minor issue attracts the attention of the judge or jury.
Defense counsel must be encouraged to limit discovery aggressively.(14) All grounds for objections must be stated with specificity, and any ground not stated in a timely objection is waived.(15) Counsel also should seek protective orders on irrelevant deponents. Finally, any governmental privilege should be protected conscientiously.(16)
Defense counsel also should be encouraged to use motions to dismiss for appropriate procedural and jurisdictional issues and motions for summary judgment at both the administrative and district court levels. The Supreme Court has stated that summary judgment is appropriate where the adjudicator determines that no genuine issue of material fact exists, as governed by the applicable substantive law.(17)
Motions for summary judgment based on the record of investigation, declarations/affidavits, requests to admit, and depositions are effective tools in litigation. These motions often are successful, but even if the court fails to decide the merits "on paper," at least the court is focused on the significant issues that will be raised at trial.
Avoiding the Pitfalls of Subsequent Retaliation
Discrimination complaints impact people in much the same way that a pending divorce action does. These cases involve not only an economic interest or injury but also pride. When employees decide that their treatment compels them to file complaints of discrimination at managers for perceived mistreatment, they are, in essence, "divorcing" their employers.
These cases are filled with allegations and animosity. The workplace may have people "taking sides." Additionally, the accused and the accuser will take the accusations personally. Careers and relationships are destroyed. Often, plaintiffs file a case of retaliation.
It is "unlawful for an employer to harass, penalize, or retaliate against an employee for opposition to practices prohibited by Title VII or for exercise of remedial rights established by Title VII."(18) It is difficult for the plaintiff to prove the case in chief, but it is much easier to prove retaliation. In establishing a prima facie case of retaliation, the plaintiff only needs to show:
1) The plaintiff was engaged in an EEO activity
2) The employer took some type of action against the plaintiff, and
3) A causal relationship between the EEO activity and the action existed.
As one court noted, "An employer's knowledge of an employee's involvement in the EEO... process is enough to show a causal connection...."(19)
One way of limiting claims of retaliation is to keep claims of discrimination as confidential as possible. Employers are able to prevail over a charge of retaliation by establishing that the management official accused of such discrimination had no knowledge of plaintiff's prior participation in the EEO process. Another way of addressing the issue is to ensure all personnel are trained as to the wrongful nature of retaliation and convince supervisors to depersonalize complaints of discrimination.
One Federal court has cautioned that while some plaintiffs are admittedly disagreeable people, the "disputatious" plaintiff cannot be harassed or injured because of a willingness to petition the government for redress of grievances. The court stated:
The statute prevents a bill of
attainder against one for
asserting one's rights. Title VII
would be chilled to a freeze by
allowing the icy finger of job
discharge or refusal to touch an
individual who claims his title VII
rights. The resort to legal rights
cannot itself legalize
This does not mean, however, that law enforcement managers are powerless in addressing disciplinary or other matters for individuals involved in the EEO process. Title VII was not intended to interfere with traditional management functions or prerogatives.(21)
Resolving a Problem Before It Becomes a Complaint
Open, honest communication will stop most problems before they start. Many complaints arise not out of glaring problems with discrimination, but out of personality conflicts and resulting breakdowns in communication.
Law enforcement managers should recognize these problems and aggressively resolve them at the outset. Allowing a problem to fester without an outlet encourages the use of the EEO process.
When personality conflicts occur, it is not uncommon for subordinates to believe that they are being singled out or treated unfairly. It is absolutely essential that supervisors avoid even the appearance of playing favorites or holding grudges. Title VII complaints start with perceptions that often are misperceptions.
If the conflict cannot be resolved, management should make a change in the supervisor-subordinate relationship. It is incumbent on management to determine whether the problem lies with the subordinate or the supervisor.
Management should recognize deficiencies in their supervisors, if they exist. If a supervisor's shortcomings cannot be "fixed" through training and education, then the supervisor should be removed.
In addition, law enforcement managers should have clear and concise written policies and should follow those policies without exception. Any variance in the application of the policies adds to the impression of unfairness and provides substance to a complaint.
Managers also should ensure consistency in documentation with all employees. Above all, they must avoid "keeping book" on only "problem" employees.
Management response to discrimination claims can be more effective when managers understand the fundamentals of discrimination law. Informed law enforcement managers can better assist with the defense of any litigation. But most important, they can prevent discrimination from occurring in the first place by ensuring the department implements fair policies and procedures that are followed consistently.
(1) See Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C.2000e et seq. (1991)). (2) East v. Romine, Inc., 518 F.2d 332, 335 (1975). (3) McDonnell Douglas Corp. v. Green, 411 U.S.792 (1973). The progeny of McDonnell Douglas include Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). (4) Harris v. Home Savings Association, 730 F. Supp.298 (W.D. Mo.1989). (5) Burdine, 450 U.S. at 258. (6) The McDonnell Douglas prima facie case is "merely a sensible, orderly way to evaluate evidence...." However, when the employer advances a legitimate and nondiscriminatory reason for its action, the court is not required to address the issue of whether the plaintiff has established a prima facie case. The reason for this holding is that "[t]he district court has before it all the evidence it needs to decide [the merits of the case]." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983). (7) Burdine, 450 U.S. at 258. (8) East, 518 F. 2d at 340. (9) Hicks, 113 S.Ct. at 2752 (emphasis in original). (10) Fed. R. Civ. P. 33. (11) Fed. R. Civ. P. 36. (12) Fed. R. Civ. P. 34. (13) Fed. R. Civ. P. 30. (14) Common objections to discovery include: (1) Discovery sought is not reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1); Fed. R. Evid. 401. (2) Discovery sought is unreasonably cumulative or duplicative. Fed. R. Civ. P. 26(b)(2)(i). (3) Discovery sought is obtainable from some other source that is more convenient, less burdensome, or less expensive. Fed. R. Civ. P. 26(b)(2)(ii). (4) The burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(iii). (5) Discovery sought concerns communications protected by the attorney-client privilege. Fed. R. Evid. 501. (6) Discovery would require disclosure of attorney work product prepared in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). (7) Discovery seeks information concerning settlement negotiations for the sole purpose of proving liability. Fed. R. Evid.408. (8) Discovery seeks information concerning subsequent remedial measures for the sole purpose of proving liability. Fed. R. Evid. 407. (15) Fed. R. Civ. P. 33(b)(4). (16) See, e.g., 28 C.F.R. [sections] 16.21 (DOJ Touhy Regulations). (17) Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). (18) Smith v. Union Oil Company of California, 1977 WL 77 (N.D. Cal). (19) Judge v. Marsh, 649 F. Supp. 770, 782 (D.D.C. 1986). (20) East, 518 F.2d at 342. (21) Burdine, 450 U.S. at 259. Law enforcement officers of other than Federal jurisdiction who are interested in this article should consult their legal advisor. Some police procedures ruled permissible under Federal constitutional law are of questionable legality under State law or are not permitted at all.
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|Author:||Fogle, Toni Mari|
|Publication:||The FBI Law Enforcement Bulletin|
|Date:||Feb 1, 1996|
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