This is the first of a series of HR legal news monthly updates brought to you by David Black, HR attorney and Andrew Niederhauser, Group Assistant for the NW HR Best Practices Roundtable. Each month they will cover a legal development relevant to the HR profession to provide you with greater insight into law and the practical ramifications for employers. If there is a particular aspect of the law or situation you are interested in having us explore please contact us.
The following and all future updates shall begin with a section entitled “The Law” that contains a brief discussion of the current state of the HR law that applies to the new development. The next section, entitled “The New Development,” contains a factual synopsis and analysis of the new case (court ruling/opinion) or administrative agency or legislative development. Finally, a closing section entitled “Lesson for Employers” contains the practical implications for employers and may have tips for incorporating the new development into HR best practices.
The initial burden of proof for establishing a case of discrimination against an employer under Title VII of the Civil Rights Act of 1964, (42 U.S.C. § 2000e-2) rests with the plaintiff. Per the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff must be able to satisfy four key elements:
- The person belongs to a protected class.
- The person was qualified for the position.
- The person was subjected to an adverse employment action.
- “Similarly situated” individuals (of another race, national origin, or gender) were treated more favorably.
For this case, you’ll want to pay special attention to element #4.
The New Development: Hawn v. Executive Jet Management, Inc.
In the recent case of Hawn v. Executive Jet Management, Inc., (9th Cir., case no. 08-15903, August 16, 2010), the Ninth Circuit clarified that employees are not “similarly situated” and are considered dissimilar on the basis of whether the alleged conduct of one party gives rise to complaints.
The facts were as follows. Gregory Hawn and two other male pilots were terminated after a female flight attendant complained about workplace sexual jokes, banter and sexually explicit emails and websites. The male pilots sued Executive Jet Management alleging gender discrimination because the female flight attendant who complained allegedly engaged in similar behavior and she was not even disciplined, let alone terminated.
The lower court dismissed the plaintiffs’ (the pilots) case because the plaintiffs failed to establish the McDonnell Douglas fourth element above – that “similarly situated” individuals were treated more favorably. The male plaintiff pilots argued that the female flight attendant was “similarly situated” because she also made sexual jokes and participated in banter. The lower court disagreed and distinguished the female flight attendant on two grounds, finding she was not “similarly situated”:
- The female flight attendant had a different supervisor, and
- The female flight attendant’s conduct did not result in any contemporaneous complaints.
The pilots appealed. The Court of Appeals for the Ninth Circuit affirmed the lower court’s decision on the second ground only. The appellate court reasoned that the fact of the different supervisors was irrelevant to the inference of discrimination under these facts so the lower court erred on that ground.
However, reasoned the appellate court, since the female flight attendant’s conduct did not result in any complaints at the time, there was no evidence that it was unwelcome and that was a significant distinguishing factor showing that she was not a “similarly situated” individual.
Lesson for Employers
Employers should always strive to treat employees fairly and ensure they receive equal treatment in the workplace. Before permitting different treatment to groups who are arguably “similarly situated”, always seek legal counsel.
While the courts have generally determined individuals to be considered “similarly situated” when they have similar jobs and display “similar conduct” (as in the case of Vasquez v. County of Los Angeles, 349 F .3d 634, 641 (9th Cir. 2003)), it is important to remember that only factors that impact the inference of discrimination are relevant. So dissimilar supervisors can mean that individuals are not “similarly situated” – if the supervisor’s knowledge or conduct impacts the inference of discrimination (e.g., the supervisor originates the discriminatory conduct, enforces the discriminatory policy, etc.). But where the individual’s supervisor is unrelated to the inference of discrimination – as in the pilots’ case discussed above – the distinction does not impact the analysis as to whether the individuals are “similarly situated”.
Bottom line: Do not assume that your treatment is fair simply because the groups of employees who receive different treatment are – in your mind – distinguishable. A judge may disagree. Getting a second opinion can save your tens if not hundreds of thousands of dollars.
Andrew Niederhauser, cowrote this article and is the Group Assistant for the NW HR Best Practices Roundtable.