Most of the time, employees are protected from reporting any racial discrimination or harassment in the workplace, even when it is from customers, clients, delivery people, the landlord or whoever else steps foot into where you work. Sometimes, however, the only thing that you can do is sit back and shake your head when a Court just completely misses the point. As our employment discrimination attorneys have discussed before, judges get it wrong, even appellate judges. (Best Law Read: According To Judges, Are Bumblebees Considered Fish?; Judges Disagree Whether Elephant Is Person). Recently, in Leroy v. Delta Air Lines, No. 21-267-CV, 2022 WL 12144507, at *1 (2d Cir. Oct. 21, 2022), where the United States Court of Appeals for the Second Circuit absolutely botched the analysis of an employment retaliation claim.
In this case, Clara Leroy was working as a flight attendant for Delta when a passenger called her a “black bitch” and may have made other racial overtures toward her. The pilot responded by attempting to make Clara step off the plane onto the jet bridge with the racist passenger contrary to FAA regulations and because she did not want to directly confront the passenger, who would not be in her section. In response, the pilot delayed the flight until Cara was kicked off the plane and replaced with another flight attendant. Thereafter, she was suspended pending a drug test, which she passed. Nonetheless, Delta still issued Clara a suspension letter “for refusing to appear for a required DOT substance test.” Given that she passed the test, it is clearly pretext for the employer to assert that she did not appear for that very test. (Best Law Read: Employment Discrimination Question: What Is Pretext?; How Do I Prove That My Employer Lied About Why I Was Fired?; How Do I Prove Pretext For My Wrongful Termination?; Yes, Employers And Their Attorneys Lie).
Then, a mere 17 days after the event, Delta fired Clara. Sounds like a wrongful termination to me.
It is important to note that Clara only brought her retaliation claims under New York State laws and not Title VII of the Civil Rights Act of 1964.
How do you prove a retaliation claim under Title VII?
Top Employment Discrimination Lawyer Answer: In order to state out a prima facie case of retaliation in a complaint sufficient to defeat a motion to dismiss on the pleadings, an employee must state in the complaint that (1) the employee engaged in protected conduct under Title VII, which includes reporting or opposing race discrimination in the workplace; (2) the employer engaged in an adverse action against the employee, which includes suspending and firing the employee; and (3) the adverse action was causally connected to the protected activity. To support the finding of an adverse action on a retaliation claim, the employment must show conduct that would reasonably discourage employees from reporting or opposing discrimination in the workplace. As to the third element, close temporal proximity to the report will satisfy the causation requirement – especially at the pleading stage.
Do I have to win my discrimination claim in order to win my retaliation claim?
Best Wrongful Termination Attorney Answer: No. Importantly, an employee does not need to prevail or have a good claim for race discrimination nor racially hostile work environment in order to maintain or even win a retaliation claim. (Best Law Read: Retaliation Is Still Easier To Prove Than Discrimination; Proving Discrimination And Retaliation Claims Under Title VII; How Do I Prove Illegal Retaliation By My Job Under Title VII?). The rationale for not requiring the employee to win on the underlying employment discrimination should be clear: the law is designed to encourage employees to report discriminatory or harassing conduct before it becomes severe or pervasive enough to create a hostile work environment. Stated more simply, the Title VII anti-retaliation laws are designed to snip bad conduct at the bud.
Can a hostile work environment claim be based on the conduct of a customer or client?
Best Race Discrimination Lawyer Answer: Yes. An employee has a claim for a hostile work environment when the employee is subjected to unwelcome severe or pervasive conduct that is either based on that employee’s race, gender/sex (including pregnancy and LGBTQ+ status), religion, national origin, disability, and age. However, in order for an employer to be liable for the conduct of any non-employees, the employer has to be put on notice of the conduct and fail to take any remedial actions to prevent or end such conduct moving forward. (Are Employers Liable For Harassment By Customers?; Does My Job Have To Stop Harassment By Customers?; What Can I Do About Racist Customers?; Race Discrimination: Employers Still Cannot Blame Customers! I Need A Lawyer!).
In Leroy, the United States Court of Appeals for the Second Circuit recognized this, holding:
we held in the Title VII context that we “imput[e] employer liability for harassment by non-employees according to the same standards for non-supervisory co-workers.” 708 F.3d 115, 124 (2d Cir. 2013). We recently interpreted those standards to provide that “the conduct of certain non-employees may be imputed to the employer where (1) the employer exercises a high degree of control over the behavior of the non-employee, and (2) the employer’s own negligence permits or facilitates that non-employee’s discrimination.” Menaker v. Hofstra Univ., 935 F.3d 20, 39 (2d Cir. 2019) (internal quotation marks omitted). “In determining the appropriateness of an employer’s response, we look to whether the response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility the employer has with respect to” the non-employee’s behavior. Summa, 708 F.3d at 124 (internal quotation marks and alterations omitted).
Id. at *3. Of course, being able to kick customers out of a store or, in this case, off a plane, gives the employer a high degree of control. The degree of control issues typically comes into play when employees are working off site and the employer cannot control the actions of the people present, such as contractors from a different company on the job.
How did the United States Court of Appeals for the Second Circuit screw up this decision?
Best Racially Hostile Work Environment Attorneys Answer: Well, it held that because NYCHRL prohibits retaliation for ‘opposing [the] employer’s discrimination,’” Clara could not have had a reasonable expectation that she was engaging in protected conduct when she reported the racist passenger, who was not an employee. The United States Court of Appeals for the Second Circuit then concluded that because the pilot attempted to resolve the situation, there could be no hostile work environment claim – which I agree with as the singular interaction with a customer would not be severe or pervasive enough to even create a legally hostile work environment.
So in essence, the United States Court of Appeals for the Second Circuit held that in order for an employee to be protected from a hostile work environment claims, that employee has to show that the employer was put on notice racial misconduct but, at the same time, employees are not protected from retaliation when they do put the employer on notice of a customer’s racist actions.
The only saving grace is that this decision was decided under New York State law (although considering Title VII). As such, this decision can and likely will be distinguished by other courts.
Do I have a claim for race discrimination, retaliation, or wrongful termination?
Best Race Discrimination Attorney Answer: Neither a blog nor any search on the internet can answer question about claims that you may have because the facts of each case are very important to determining what rights you have under a complex set of laws. If you think that your boss or manager is discriminating against you because you are black or you were fired after reporting race discrimination, call right now to schedule a free and confidential consultation with our dedicated employee’s rights attorneys. (Read: What is the Spitz No Fee Guarantee?). It is unclear why Clara’s attorney did not assert Title VII or § 1981 claims for race discrimination, which may have made the difference, but it demonstrates why you need an attorney who only focuses on representing the rights of workers. (Best Law Read: Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney).
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