Wednesday, July 5, 2017

De Facto Race BFOQ?

BlogimageWhen teaching the adverse employment action doctrine, I often ask my class whether an employer would be liable if it painted the workspaces of its female workers pink while painting those of its male workers blue.  Objectionable as that would be to the cause of equality in the workplace, the adverse employment action doctrine might well allow it: absent some additional provable harm, the décor would not be sufficient to violate the statute.

That law school hypothetical manifested in the real world in the recent Seventh Circuit case EEOC v. Autozone, Inc. where Stuckey, a black employee claimed that his employer, Autozone, violated Title VII by transferring him from one store to a new location with the motive of keeping the store “predominantly Hispanic.” The panel held that summary judgment was appropriate for Autozone: the EEOC failed to provide sufficient evidence showing that the transfer adversely affected Stuckey’s employment status since there was no reduction in his compensation or responsibilities.

The panel was obviously skeptical of the claim to begin with but, given Stuckey’s testimony that his district manager explained to him the reason for the transfer, it assumed a triable issue on that point.

At first blush, the decision is unremarkable as a straightforward application of the adverse employment action doctrine since Stuckey suffered no diminishment in pay or responsibilities. Section 703(a)(1)’s reference to discrimination in “compensation, terms, conditions, or privileges” of employment has led to the rule that an employee has to show meaningful harm in order to state a claim. A “lateral transfer” (one without reduction in pay) has been the quintessential example of no harm/no foul. Pink offices/blue offices. Whether that result casts doubt on the whole adverse employment action doctrine is another question.

But the EEOC tried an end run around the doctrine in Autozone by invoking § 703(a)(2), which declares it unlawful “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” because of the prohibited grounds. “Segregating” would seem to be exactly what Autozone was alleged to have been doing. The panel, however, rejected that argument, reading (a)(2), similar to (a)(1), to also require the EEOC to demonstrate that the transfer deprived Stuckey of meaningful employment opportunities. In short, segregating employees by race is not necessarily a statutory violation.

The court rejected the EEOC’s argument that proof of racial segregation should trigger automatic liability. Looking to the section’s phrasing, it found that the Commission reading “leaves much of the statutory text with no meaningful work to do. If it's not necessary to show that the challenged employment action ‘deprive[d] or tend[ed] to deprive’ the employee of employment opportunities ‘or otherwise adversely affect[ed] his status as an employee,’ what is the point of this statutory language?”  

The panel did offer one piece of comfort to the EEOC, stressing that “(a)(2) does cast a wider net than subsection (a)(1),” because it speaks in terms of an action that “has only a tendency to deprive a person of employment opportunities” while (a)(1) addresses actions that actually "discriminate against any individual." It may be that some lateral transfer immune from (a)(1) nevertheless are actionable under (a)(2) because of their tendency to deprive the employee of opportunities. Still, the dramatic new possibilities for (a)(2) envisioned by Professor Sperino in Justice Kennedy’s Big New Idea are unlikely to be meaningfully realized if other courts take the Autozone approach.

However, to return to a point mentioned above, maybe cases like Autozone suggest a reconceptualization of the whole adverse employment action doctrine. After all, to permit racial (and other kinds of) segregation flies in the face of the antidiscrimination project, making a textual analysis that leads down this path surely suspect. Maybe more to the point, I am not the first to note that the adverse employment action doctrine is not very firmly wedded to the text of (a)(1). Where one works is surely a “term, condition, or privilege” of employment as those terms are usually used and as the first two were interpreted under the National Labor Relations Act.  Ironically, maybe a textualist reading would make (a)(1) broader than (a)(2)! Finally, perhaps the courts should think more seriously about the structure of the statute.  Title VII famously has a bona fide occupational qualification defense, and equally famously, it does not reach race. Autozone permits exactly the result that the BFOQ would allow, without all the messy restrictions of that doctrine.


Thanks to my research assistant Henry Klimowicz, Seton Hall Law ’19

Employment Discrimination | Permalink


The pink/blue situation is reminiscent of the en banc Ninth Circuit decision in Jespersen v. Harrah Operating Co., 444 F.3d 1104, 97 FEP 1473 (9th Cir. 2006), at, which rejected a gender-stereotyping claim because the plaintiff’s gender was not unequally burdened by the employer’s grooming code. The plaintiff objected to the employer’s requirement that female bartenders must wear makeup because it conflicted with plaintiff’s self-image, was offensive to plaintiff, and made plaintiff so uncomfortable that it interfered with her ability to perform her job. The employer’s policy also prohibited male bartenders from wearing makeup. According to the majority of the judges, “We cannot agree . . . that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination.” 444 F.3d at 1112.

Judge Kozinski penned a wonderful dissent: “Even those of us who don’t wear makeup know how long it can take from the hundreds of hours we’ve spent over the years frantically tapping our toes and pointing to our wrists. It’s hard to imagine that a woman could ‘put on her face,’ as they say, in the time it would take a man to shave . . . . Makeup, moreover, must be applied and removed every day; the policy burdens men with no such daily ritual. 444 F.3d at 1117.

Jespersen is discussed further in the January 2017 issue of the Duke Journal of Gender Law & Policy, which is dedicated to the topic of “Makeup, Identity Performance & Discrimination.”

Posted by: Christine Michelle Duffy | Jul 6, 2017 2:40:39 AM

Thanks for the post on the case. Any thoughts about Section 1981 liability in a case like Autozone?

Posted by: Mark Weber | Jul 10, 2017 2:29:22 PM

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