Employment Discrimination Under Title VII Of The Civil Rights Act
Federal Employment discrimination law is derived from Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981a. The Civil Rights Act of 1991 permits Title VII cases to be tried by jury. 42 U.S.C. § 1981a(c). The plaintiff may recover upon a showing that the alleged discriminatory employment practice was based on an individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e- 2(a)(1). The plaintiff may prevail by showing that the discrimination was "a motivating factor" in the employment decision even though other factors also motivated the decision. Washington v. Garrett, 10 F.3d 1421, 1433 n.15 (9th Cir. 1993); see also Costa v. Desert Palace, Inc., 299 F.3d 838, 853-59 (9th Cir. 2002) (en banc), aff'd, 539 U.S. 90 (2003) ("Put simply, the plaintiff in any Title VII case may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played 'a motivating factor.'").
Prior to 1991, Title VII provided only equitable remedies. See 42 U.S.C. § 2000e-5(g)(1) (providing for reinstatement, back pay and "any other equitable relief as the court deems appropriate"). The 1991 amendments added the legal remedies of compensatory and punitive damages. 42 U.S.C. § 1981a(a)(1). Title VII plaintiffs may now recover injunctive and other equitable relief, compensatory and punitive damages and attorneys' fees. 42 U.S.C. §§ 1981a(a)(1), 2000e-5(g)(1), (k). However, recovery of compensatory and punitive damages under Title VII is limited by the statutory caps provided in 42 U.S.C. § 1981a(b)(3). The level at which damages are capped depends on the size of the employer. 42 U.S.C. § 1981a(b)(3)(A)-(D).
Because awards of back pay are not an element of compensatory damages, they are not subject to the statutory caps. 42 U.S.C. § 1981a(b)(2). The Supreme Court has extended this rationale to exclude front pay from the statutory caps. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001) (holding that the 1991 amendments did not alter the nature of front pay as an equitable remedy provided for in 42 U.S.C. § 2000e-5(g)). While the Supreme Court has declined to address definitively whether a Title VII plaintiff has a right to a jury trial on the issue of back pay, see Landgraf v. USIFilm Prods., 511 U.S. 244, 252 n.4 (1994), the Ninth Circuit has held that there is no such right. Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1069 (9th Cir. 2005). The holding in Pollard that front pay is excluded from the statutory caps because it is an equitable remedy suggests that there is similarly no entitlement to a jury trial on front pay. See Pollard, 532 U.S. at 848. The court, however, may consider submitting questions of front and back pay to the jury for advisory findings pursuant to Fed. R. Civ. P. 39(c). If advisory findings are sought, the court should recognize on the record that it is not bound by them, and make a record of independent findings pursuant to Fed. R. Civ. P. 52(a). See Chapter 5 ("Damages") and Comments to Instructions 5.2 (Measures of Types of Damages) and 5.5 (Punitive Damages) discussing the special damage rules that apply to Title VII cases.
A plaintiff's remedies may be limited in so-called "mixed motive cases" where the plaintiff establishes liability by proving that a protected characteristic was a "motivating factor" in an employment action. See 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B). In such cases, if the employer can prove that it would have made the same employment decision for lawful reasons, the plaintiff's relief is limited to declaratory relief, attorneys' fees and costs. See 42 U.S.C. § 2000e-5(g)(2)(B); O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 760 (9th Cir. 1996). No McDonnell Douglas burden-shifting instruction should be given in Title VII cases. Costa, 299 F.3d at 855 ("It is not normally appropriate to introduce the McDonnell Douglas burden- shifting framework to the jury"). See also Sanghvi v. City of Claremont, 328 F.3d 532, 540 (9th Cir. 2003) ("it is error to charge the jury with the elements of the McDonnell Douglas prima facie case"). Cases discussing pretext and burden shifting arise in the summary judgment and directed verdict context. See, for example, Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert. denied, 498 U.S. 939 (1990).
In Costa v. Desert Palace, Inc., 299 F.3d 838, 856-57 (9th Cir. 2002) (en banc), aff'd, 539 U.S. 90 (2003), the Ninth Circuit clarified the role of jury instructions on causation in Title VII cases. The court may provide either a "single motive" or "mixed motive" instruction. Costa explained that "mixed" and "single" motives are not two "fundamentally different" theories of liability. Id. at 857. Instead, they are merely two avenues of instruction by which the plaintiff may meet the ultimate burden of proof: "to show by a preponderance of the evidence that the challenged employment decision was 'because of discrimination." Id.; see also 42 U.S.C. § 2000e-3(a) (prohibiting discrimination "because of" protected activity). The choice of instruction will depend on the evidence offered at trial.
Thus, "[a]fter hearing both parties' evidence, the district court must decide what legal conclusions the evidence could reasonably support and instruct the jury accordingly." Costa, 299 F.3d at 856. If, based on the evidence, the trial court determines that the only reasonable conclusion a jury could reach is that discriminatory animus is the sole cause for the challenged employment action or that discrimination played no role at all in the employer's decision making, then the jury should be instructed to determine whether the challenged action was taken "because of" the prohibited reason. In contrast, in cases in which the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate, the jury should be instructed to determine first whether the discriminatory reason was "a motivating factor" in the challenged action. If the jury's answer to this question is in the affirmative, then the employer has violated Title VII. Id. at 856-57. A motivating factor is a factor that "played a part in the employment decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality opinion).
However, if the plaintiff prevails when the jury is given a mixed motive instruction, the defendant may be afforded an opportunity to prove "by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Costa, 299 F.3d at 848; cf Galdamez v. Potter, 415 F.3d 1015, 1021 (9th Cir. 2005) ("same decision" instruction need only be given if requested by the employer and supported by the evidence at trial). If the defendant proves that it would have made the same decision in the absence of a discriminatory motive, the Civil Rights Act of 1991 limits the plaintiff's remedies to declaratory or injunctive relief, as well as attorneys' fees and costs. 42 U.S.C. § 2000e-5(g)(2)(B) (modifying Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). See also Washington v. Garrett, 10 F.3d 1421, 1432 n.15 (9th Cir. 1993) (discussing development of the "same decision" defense from Price Waterhouse through the 1991 Act).
The Supreme Court addressed the law of harassment claims under Title VII in two companion cases, Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) [collectively, Ellerth/Faragher]. Although those cases relate to sexual harassment, there is no discernible conceptual difference between harassment because of sex and harassment because of race or any other protected status. Accordingly, the following instructions are applicable to harassment based upon race, color, sex, religion and national origin.
Ellerth/Faragher clarified the standards governing an employer's liability for harassment. Essentially, when an employee suffers a tangible employment action resulting from a direct supervisor's harassment, the employer's liability is established by proof of the harassment and a resulting tangible employment action. See Faragher, 524 U.S. at 807-08. No affirmative defense is available to the employer in those cases.
In cases where no tangible employment action has been taken, the employer may affirmatively defend liability by proving (a) that the employer exercised reasonable care to prevent and correct promptly any discriminatory conduct, and (b) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Id. \ Ellerth, 524 U.S. at 764-65; see also Holly D. v. Cal. Inst, of Tech., 339 F.3d 1158, 1166-67 (9th Cir. 2003); Swinton v. Potomac Corporation, 270 F.3d 794, 803 (9th Cir. 2001). In Pennsylvania State Police v. Suders, 542 U.S. 129, 137-38 (2004), the Supreme Court applied the framework of Ellerth/Faragher to a case of constructive discharge due to a hostile work environment. In such a case, the Ellerth/Faragher affirmative defense is available to the employer, unless an official act, i.e. a tangible employment action, of the employer precipitated the employee's decision to resign. Id. at 148.
If, however, harassment is committed by a co-worker or a non-direct supervisor of the plaintiff, the employer is liable only under a negligence theory. In this situation, the employer may not invoke the Ellerth/Faragher affirmative defense. See Swinton, 270 F.3d at 803-04 (noting that the principle embodied in the affirmative defense is contained in the requirements for a prima facie case based on negligence).
An employer may be held liable for the actionable third-party harassment of its employees where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it. See Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005). Title VII prohibits discrimination against any individual and makes no distinction between managers and other employees; both are entitled to its protection. See id.
In Holly D., the Ninth Circuit explained how Ellerth/Faragher cases analyzing "quid pro quo" harassment, or "sex for jobs (or job benefits)," are consistent with the Ellerth/Faragher analysis. See Holly D., 339 F.3d at 1168-70. Inasmuch as sexual harassment claims, including those referred to as quid pro quo claims, are now analyzed under the Ellerth/Faragher framework, the committee has removed former Instructions 13.6 and 13.7.
Hostile Work Environment—Harassment Because Of Protected Characteristics—Elements
The plaintiff seeking damages against the defendant for a racially, sexually, or other Title VII protected characteristic hostile work environment while employed by the defendant must establish each of the following elements by a preponderance of the evidence:
1. the plaintiff was subjected to [[slurs, insults, jokes or other verbal comments or physical contact or intimidation of a racial nature] [sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature] [conduct affecting other Title VII protected characteristics]];
2. the conduct was unwelcome;
3. the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create a [[racially] [sexually] [other Title VII protected characteristic]] abusive or hostile work environment;
4. the plaintiff perceived the working environment to be abusive or hostile; and
5. a reasonable [woman] [man] in the plaintiff's circumstances would consider the working environment to be abusive or hostile.
Fuller v. City of Oakland, California, 47 F.3d 1522, 1527 (9th Cir. 1995). The language in the instruction regarding the factors used to determine whether a working environment was sufficiently hostile or abusive is derived from Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Whether the environment constituted a [[racially] [sexually] [other Title VII protected characteristic]] hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the harassing conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee's work performance.
"A plaintiff must show that the work environment was both subjectively and objectively hostile." McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 (9th Cir.2004); see also Fuller, 47 F.3d at 1527 (citing Harris, 510 U.S. at 21-22). For the objective element, the Ninth Circuit has adopted the "reasonable victim" standard. Ellison v. Brady, 924 F.2d 872, 878-80 (9th Cir.1991). Therefore, if the plaintiff/victim is a woman, element five of the instruction should state "reasonable woman,' and if the plaintiff/victim is a man, "reasonable man." Ellison, 924 F.2d at 879, n.l 1.
Hostile Work Environment—Supervisor
An employer may be liable when a supervisor with immediate or successively higher authority over the employee creates a [[racially] [sexually] [other Title VII protected characteristic]] hostile work environment for that employee. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998), Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), and Swinton v. Potomac Corporation, 270 F.3d 794, 802 (9th Cir. 2001), cert. denied, 535 U.S. 1018 (2002).
When harassment is by the plaintiff's immediate or successively higher supervisor, an employer is vicariously liable, subject to a potential affirmative defense. Faragher, 524 U.S. at 780; Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001). For vicarious liability to attach it is not sufficient that the harasser be employed in a supervisory capacity; he must have been the plaintiff's immediate or successively higher supervisor. Swinton, 270 F.3d at 805, citing Faragher, 514 U.S. at 806. An employee who contends that he or she submitted to a supervisor's threat to condition continued employment upon participation in unwanted sexual activity alleges a tangible employment action, which, if proved, deprives the employer of an Ellerth/Faragher defense. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1173 (9th Cir. 2003) (affirming summary judgment for the employer due to insufficient evidence of any such condition imposed by plaintiff's supervisor). See Pennsylvania State Police v. Suders, 542 U.S. 129, 137-38 (2004), for discussion of tangible employment action.
The adequacy of an employer's anti-harassment policy may depend on the scope of its dissemination and the relationship between the person designated to receive employee complaints and the alleged harasser. See, e.g., Faragher, 524 U.S. at 808 (policy held ineffective where (1) the policy was not widely disseminated to all branches of the municipal employer and (2) the policy did not include any mechanism by which an employee could bypass the harassing supervisor when lodging a complaint).
"While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
Although proof that the plaintiff failed to use reasonable care in avoiding harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the defendant, a demonstration of such failure will normally suffice to satisfy this prong. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.
Hostile Work Environment—Non-Supervisor
An employer may be liable if the plaintiff was subjected to a [[sexually] [racially] [other Title VII protected characteristic]] hostile work environment by a [non-immediate supervisor] [co-worker] and the employer (or its "management") knew or should have known of the harassing conduct and failed to take reasonably prompt corrective action to end the harassment. Swinton, 270 F.3d at 803-04. There are two categories of employees who constitute "management" for purposes of a negligence claim. Id. at 804. The first category is a member of management who possesses substantial authority and discretion to make decisions over the plaintiff's or the harasser's employment, such as "authority to counsel, investigate, suspend or fire the accused harasser, or to change the conditions of the harassee's employment." Id. The second category of employees who qualify as management consists of any supervisor who lacks this authority but nonetheless "has an official or strong de facto duty to act as a conduit to management for complaints about work conditions." Id. at 805 (citations omitted). Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999) and Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998); Mockler, 140 F.3d at 813 (citing Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)).
It should be noted, however, that neither Swinton nor any of the cases relied upon by Swinton provide a definition of a supervisor or other employee with "an official or strong de facto duty to act as a conduit to management for complaints about work conditions." See Swinton, 270 F.3d at 804-05. To aid jury understanding, the committee has modified the Swinton language of "de facto duty to act as a conduit to management . . . ." Id. at 805, to "duty in fact to communicate to management . . . ."
The burden is on the plaintiff to "show that the employer knew or should have known of the harassment, and took no effectual action to correct the situation." Mockler, 140 F.3d at 812 (citations omitted). "This showing can . . . be rebutted by the employer directly, or by pointing to prompt remedial action reasonably calculated to end the harassment." Id.
In determining whether an employer's response to the harassment is sufficient to absolve it from liability, "the fact that [the] harassment stops is only a test for measuring the efficacy of a remedy, not a way of excusing the obligation to remedy." Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir.1995). "Once an employer knows or should know of harassment, a remedial obligation kicks in." Id. Therefore, "if 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach." Id. at 1528-29. For purposes of proving that the defendant "knew or reasonably should have known of the harassment," it is appropriate to impute this knowledge to a defendant employer if a management-level employee of the employer defendant knew or reasonably should have known that harassment was occurring. Swinton, 270 F.3d at 804.
Title VII makes it an unlawful employment practice for a person covered by the Act to discriminate against an individual "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
In order to be a protected activity, the plaintiff's opposition must have been directed toward a discriminatory act by an employer or an agent of an employer. See Silver v. KCA, Inc., 586 F.2d 138, 140-42 (9th Cir. 1978) (employee's opposition to a racially discriminatory act of a co-employee cannot be the basis for a retaliation action); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013-14 (9th Cir. 1983) (employee's objections to discriminatory practices by the warehouse personnel manager, on facts presented, constituted objections to discriminatory actions of the employer).
Only reasonable opposition to the employment practice is protected by Title VII. See, e.g., Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354-56 (9th Cir. 1984); Crown Zellerbach, 720 F.2d at 1015. Informal as well as formal complaints or demands are protected activities under Title VII. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000).
With respect to the third element, the court may provide either a "single motive" or "mixed motive" instruction. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1067-68 (9th Cir. 2004) (adopting the mixed motive/single motive analysis in a retaliation case) (citing Costa v. Desert Palace, Inc., 299 F.3d 838, 856-57 (9th Cir. 2002) (en banc), aff'd, 539 U.S. 90 (2003)); Lam v. Univ. of Haw., 40 F.3d 1551, 1564 & n.24 (9th Cir. 1994) (applying mixed motive framework in retaliation case); Ruggles v. Cal. Poly. State Univ., 797 F.2d 782, 786 (9th Cir. 1986) (same).
Further, "an employer who is proven to have discriminated can still avoid liability by showing by a preponderance of the evidence that 'the employment decision would have been the same even if discrimination had played no role.'" Lam, 40 F.3d at 1564-65 (internal alteration omitted) (quoting Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991)); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (plurality); cf. Galdamez v. Potter, 415 F.3d 1015, 1021 (9th Cir. 2005) ("same decision" instruction need only be given if requested by the employer and supported by the evidence at trial).
With respect to disparate treatment (non-retaliation) cases, the Civil Rights Act of 1991 (the "1991 Act") clarified that "under Title VII, the use of a prohibited characteristic (race, color, religion, sex, or national origin) as simply 'a motivating factor' in an employment action is unlawful." Costa, 299 F.3d at 850; see 42 U.S.C. § 2000e-2(m). Further, as to those claims, the 1991 Act abrogated the "same decision" complete defense established by Price Waterhouse, and replaced it with "a partial affirmative defense that limits the remedies a court may impose." Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1041 (9th Cir. 2005); Costa, 299 F.3d at 850 (describing the limits as a "safety valve" available to defendants who can prove "the absence of 'but for' causation"); see 42 U.S.C. § 2000e-5(g)(2)(B). However, this limit expressly applies only to "a claim in which an individual proves a violation under section 2000e-2(m) . . . ." Id. Because 42 U.S.C. § 2000e-2(m) does not explicitly apply to retaliation claims, there is a question as to whether the full Price Waterhouse "same decision" affirmative defense should continue to apply in Title VII retaliation cases. Although the Ninth Circuit has yet to rule on this issue, see Lam, 40 F.3d at 1564 n.24 (declining to reach the issue), other circuits have uniformly held that the state of the pre-1991 Act law applies to retaliation claims. Thus a "same decision" finding will fully preclude liability in a retaliation case. See Tanca v. Nordberg, 98 F.3d 680, 682-85 (1st Cir. 1996); Woodson v. Scott Paper Co., 109 F.3d 913, 932-36 (3d Cir. 1997); Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 552 n.7 (4th Cir.1999); McNutt v. Bd. of Tr. of the Univ. of Ill., 141 F.3d 706, 708-09 (7th Cir. 1998); Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852 (8th Cir. 2000); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir. 1999). The proposed language of the final paragraph of the second formulation of the third element follows these decisions.
The committee cautions that in a case decided before Costa, the Ninth Circuit held in Villiarimo v. Aloha Island Air, Inc., a summary judgment case not involving jury instructions, that the plaintiff must "show 'by a preponderance of the evidence that engaging in the protected activity was one of the reasons for [plaintiff's] firing and that but for such activity [plaintiff] would not have been fired.'" 281 F.3d 1054, 1064-65 (9th Cir. 2002) (emphasis added) (quoting Ruggles, 797 F.2d at 785-86). However, placing such a "but for" requirement on the plaintiff's burden of proof would essentially place the burden of disproving the "same decision" affirmative defense on the plaintiff. Cf. Costa, 299 F.3d at 850 ("[A]n employer can escape [certain relief] by proving the absence of 'but for' causation as an affirmative defense." (emphasis added)); Ruggles, 797 F.2d at 785-86 ("The final stage in the allocation of proof allows a defendant to show that the plaintiff would not have been hired, or would have been fired, regardless of the retaliatory motives of the employer." (emphasis added)).
Adverse Employment Action Defined
The definition of "adverse employment action" in the context of a retaliation claim is different from that in a disparate treatment claim. Whereas an adverse employment action for purposes of a disparate treatment claim must materially affect the terms and conditions of a person's employment, an adverse action in the context of a retaliation claim need not materially affect the terms and conditions of employment so long as a reasonable employee would have found the action materially adverse, which means it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." See Burlington No. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Thompson v. North American Stainless, LP, ___ U.S. ___, 131 S. Ct. 863 (2011) (applying Burlington standard).
An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
In Burlington No. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), the Supreme Court settled the definition of what is an adverse employment action in the retaliation context. This definition introduces the objective standard of a "reasonable employee" but includes the concept of "materially adverse."
Actions such as firing and demoting are adverse employment actions for purposes of a retaliation claim. In addition, other actions that do not rise to the level of ultimate employment actions, such as a lateral transfer, an unfavorable reference that had no effect on a prospective employer's hiring decision, and the imposition of a more burdensome work schedule, may also be considered adverse employment actions in this context. Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000).
Adverse employment actions take many forms. See, e.g., Thompson v. North American Stainless, LP, ___U.S. ___, 131 S. Ct. 863 (2011) (fiance' fired); Manatt v. Bank of America, NA, 339 F.3d 792, 802 (9th Cir. 2003) (denial of transfer); Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (cut in monthly base salary); Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 500-01, 506 (9th Cir. 2000) (low rating on job performance review, decreased job responsibilities, and failure to receive promotions); Hashimoto v. Dalton, 118 F.3d 671, 674-75 (9th Cir. 1997) (negative job reference); Miller v. FairchildInd., Inc., 885 F.2d 498, 503 (9th Cir. 1989) (layoff); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (transfer of job duties and "undeserved" performance ratings); Ruggles v. Cal. Poly. State Univ., 797 F.2d 782, 785 (9th Cir. 1986) (failure to hire); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983) (four-month disciplinary suspension).
Other conduct, however, may not constitute an adverse employment action. See, e.g., Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) ("mediocre" performance evaluation not made available to other potential employers and unaccompanied by any meaningful change in work assignments); Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (ostracism by co-workers); McAlindin v. County of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999) (refusing to hold a job open), amended by 201 F.3d 1211, cert. denied, 530 U.S. 1243 (2000); Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998) ("badmouthing" employee); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (transfer where salary unaffected).
“Adverse Employment Action" In Disparate Treatment Cases
An action is an adverse employment action if it materially affects the terms, conditions, or privileges of employment. The definition of "adverse employment action" for purposes of a disparate treatment claim comes from Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir. 2000) (finding that "[t]he removal of or substantial interference with work facilities important to the performance of the job constitutes a material change in the terms and conditions of a person's employment" and therefore qualifies as an adverse employment action, but that the employer's failure to respond to grievances did not amount to an adverse employment action because "it did not materially affect the compensation, terms, conditions, or privileges of the [plaintiffs'] employment"); see also Kang v. U. Lim America, Inc., 296 F.3d 810, 818-19 (9th Cir. 2002) (plaintiff established a prima facie case of disparate treatment where the defendant subjected the plaintiff "to a number of adverse employment conditions, including severe verbal and physical abuse, discriminatory overtime, and termination, that constituted 'a material change in the terms and conditions' of [the plaintiff's] employment").
An "adverse employment action" is not necessarily the same as a "tangible employment action." Although many tangible employment actions may also be adverse employment actions, a tangible employment action need not be adverse, such as the situation where a supervisor coerces an employee to engage in sexual acts by threats of discharge. In such a case, an employee need not actually suffer discharge or other adverse employment action in order to demonstrate a tangible employment action. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir. 2003) ("[D]etermining not to fire an employee who has been threatened with discharge constitutes a 'tangible employment action,' at least where the reason for the change in the employment decision is that the employee has submitted to coercive sexual demands.").
Tangible Employment Actions
Tangible employment actions are the means by which a supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment action requires an official act of the enterprise, a company act. A tangible employment action consists of a significant change in employment status such as firing, failing to promote, reassignment, a significant change in responsibilities, undesirable reassignment, or a significant change in benefits. A tangible employment action also occurs when a superior obtains sexual favors from an employee by conditioning continued employment on participation in unwelcome acts.
The meaning of the term "tangible employment action" is discussed in Pennsylvania State Police v. Suders, 542 U.S. 129, 137-38 (2004). The Supreme Court granted certiorari in Suders in order to resolve a split in the circuits as to whether a constructive discharge brought about by supervisor harassment constitutes a tangible employment action and bars the affirmative defense set out in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). Suders, 542 U.S. at 140.
The Suders Court rejected the Third Circuit's holding that a constructive discharge, when proved, constitutes a tangible employment action. Id. The Court concluded that a constructive discharge, in itself, does not constitute a tangible employment action that bars the Ellerth/Faragher affirmative defense. That defense "is available to the employer whose supervisors are charged with harassment," and is barred only if a "tangible employment action" carried out under a supervisor's official authority was part of the conduct leading to the constructive discharge. Id. at 140-41.
In the context of quid pro quo sexual harassment, the Ninth Circuit held that a "tangible employment action" occurs when a supervisor who abuses his supervisorial authority succeeds in coercing an employee to engage in sexual acts by threats of discharge or other material job-related consequence, or fails in his efforts to coerce the employee but then actually discharges her on account of her refusal to submit to his demands. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir. 2003). In such situations, the employer may be held vicariously liable for the direct supervisor's unlawful conduct and may not take advantage of the Ellerth/Faragher affirmative defense. Id. However, an "unfulfilled, or inchoate, quid pro quo threat by a supervisor is not enough" to constitute a tangible employment action. Id. at 1170. Rather, the threat must culminate in the actual coercion of a sexual act or some other "form of sufficiently concrete employment action" on account of the employee's refusal to submit. Id.
Source: Ninth Circuit Manual of Model Jury Instructions (Civil)