Thursday, July 3, 2014

New Standard for Futility in Eighth Circuit

There is an interesting new case out of the Eighth Circuit:  EEOC v. Audrain Health Care, Inc., 2014 WL 2922212, (June 30, 2014).  In that case, a male nurse inquired about transferring to a new nursing position in the operating room (“OR”).  According to the evidence as recited by the Eighth Circuit, a female clinical coordinator told the male nurse that she wanted to fill the position with a woman to have the right mix of patients to staff based on gender. She then continued, “I hate to discriminate against you because you're a man, but the doctors want more female nurses in the OR.” Id. at 2.  The clinical coordinator disputed saying she would “hate to discriminate against you,” but admitted that she said that she wanted a woman to fill the position because she wanted “to fill the position with a woman to have the right mix of patients to staff.”  Id.  The district court granted summary judgment in favor of the employer and the Eighth Circuit affirmed.

The case is interesting on two fronts.  First, the district court found that the EEOC failed to present any direct evidence of discrimination.  This is strange because the worker presented evidence where a decisionmaker directly commented that a protected trait was related to the job action.  The Eighth Circuit refused to consider whether or not the statement constituted direct evidence.

Instead, the Eighth Circuit held that the male nurse did not suffer an adverse action because the nurse did not formally apply for the position after his conversation with the clinical coordinator.  The EEOC argued that the nurse was not required to apply for the position, because the conversation with the clinical coordinator showed that his application would be futile.  The Eighth Circuit interpreted the Teamsters decision as only allowing an applicant to allege futility if there was evidence of “gross and pervasive discrimination.”  The Eighth Circuit’s opinion would require an employee to apply for a position, even the employee is told by the relevant decisionmaker that she will be denied the position.

These facts do supply a great question about whether sex was a BFOQ, but the district court’s ruling on the direct evidence question and the appellate court’s holding related to adverse action seem contrary to existing law.


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