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This question was recently posed to our employment discrimination lawyers.  The answer is yes. Title VII of the Civil Rights Act of 1964 makes it unlawful for a labor organization to “discriminate against” or “fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”2 42 U.S.C. § 2000e-2(c)(1)-(2).

This was the focus of a recent case decided by the United States Third Circuit Court of Appeals.  In Butt v. United Brotherhood of Carpenters, four female African-American carpenters filed a lawsuit against their union alleging that in making job referrals the union discriminated on the basis of race and gender and retaliated for engaging in protected activities, including filing charges of discrimination, making complaints directly to the Union, and testifying before a Mayor’s Advisory Committee.  In support of their discrimination claims, the female employees provided statistics comparing the annual hours worked by men and women in the Union. Although the numbers were not subjected to any expert statistical analysis, the Court of Appeals noted that there were many instances in which each individual woman employee’s annual hours exceeded the average hours worked by male and female carpenters, and all five plaintiffs exceeded both averages in 2006. However, the average annual hours worked by women dropped significantly in the years 2007 and 2008 while the hours worked by men remained relatively constant from the preceding years.  The women plaintiffs argued that this drop in hours also was in retaliation for their protected activities, which included filing charges of discrimination against the Union with the Equal Employment Opportunity Commission, making complaints directly to the Union, and testifying before the Philadelphia Mayor’s Advisory Commission on Construction Industry Diversity. Additionally, following two women’s testimony before the Mayor’s Commission, the Union forwarded a letter to the media explaining that the two had been laid off previously for poor work performance.

The women also relied on statements made by the union defendants to prove their claims, including repeated comments by a high ranking union official that “I got these jobs but . . . I can’t give them to you;” that women were only offered jobs “[t]hat the men don’t want;” and “my people are still out of work.”

In considering these facts, the Court of Appeals reversed the trial court’s dismissal of the claims and held:

Although the District Court applied a pretext analysis pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), we see no reason why the Appellants could not have proceeded at this stage under a mixed-motive discrimination theory pursuant to 42 U.S.C. § 2000e-2(m). See Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008) (“A Title VII plaintiff may state a claim for discrimination under either the pretext theory . . . or the mixed-motive theory . . . .”). In either event, we see at least one genuine dispute of material fact that should have precluded summary judgment: Defendant Durkalec’s statement that his people were still out of work. Although the District Court interpreted this “seemingly inappropriate” statement to mean “merely that Durkalec did not personally identify with black female carpenters,” Butt, 2012 WL 360554, at *9, this conflicted with Appellant Bronson’s interpretation, which appears to be the only interpretation we can find in the record. In light of this genuine dispute, summary judgment was inappropriate on the claims of race and gender discrimination.

Remand is also appropriate to address the issue of Title VII retaliation. The District Court reasoned that an adverse employment action was limited to “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at *11 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). This standard—pertaining to direct employers—failed to account for actions that a labor organization could take “to dissuade employees from complaining or assisting in complaints about discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006). Though the record contains almost no information about the letter Durkalec forwarded to the press, that action arguably could have sufficed as a retaliatory action under the law, and more factual analysis is necessary.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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