Bailey v USF Holland

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................................................. ii

STATEMENT OF INTEREST......................................................................... 1

STATEMENT OF THE ISSUE........................................................................ 2

STATEMENT OF FACTS............................................................................... 2

DISTRICT COURT DECISION....................................................................... 9

ARGUMENT

A Labor Organization Can Be Liable to a Union Member

Under 42 U.S.C. § 2000e-2(c)(1) for a Hostile Work

Environment Created by the Union’s Agents or Employees....................... 11

A.The district court’s decision ignores the plain meaning of the

term “discriminate” in the labor organization provision........................ 12

B.The district court’s decision ignores the history and purpose of

the labor organization provision............................................................ 21

C.Other circuits have ruled that unions were, or could be, liable

for the creation or failure to remedy a hostile work environment......... 23

CONCLUSION............................................................................................... 27

CERTIFICATE OF COMPLIANCE............................................................... 29

ADDENDUM

Designation of District Court Documents.................................................. 1a

Relevant Statutory Provisions................................................................... 2a

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page

Anjelino v. N.Y. Times Co., 200 F.3d 73 (3d Cir. 1999) ........................... 26, 27

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) .................................. 16

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ......... 13, 15, 18, 19

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) ............................. 17

Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007)............ 24, 25

Dowd v. United Steelworkers of America, Local No. 286,

253 F.3d 1093 (8th Cir. 2001) .......................................... 10, 13, 16, 23, 24

EEOC v. Pipefitters Ass’n Local Union 597,

334 F.3d 656 (7th Cir. 2003) .............................................................. 25, 26

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ....................................... 22

Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (per curiam) ................ 14, 15

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008)............... 14, 19

Hout v. City of Mansfield, 550 F. Supp. 2d 701 (N.D. Ohio 2008) .......... 20, 21

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)............................. 17

Kasper v. City of Middletown, 352 F. Supp. 2d 216 (D. Conn. 2005)....... 10, 20

Lipovsky v. Vilsack, 2016 WL 4919894 (N.D. Miss. Sept. 14, 2016).............. 15

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ..................................... 13

Michael v. Caterpillar Fin. Servs. Corp.,

496 F.3d 584 (6th Cir. 2007) .................................................................... 14

Milner v. Dep’t of Navy, 562 U.S. 562 (2011) ................................................ 15

Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784 (6th Cir. 2000) .. 14, 15, 16

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ............ 20

Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) .................................. 15

Ratzlaf v. United States, 510 U.S. 135 (1994) ................................................. 15

Russello v. United States, 464 U.S. 16 (1983) ................................................. 19

Scott v. City of Sioux City, 68 F. Supp. 3d 1022 (N.D. Iowa 2014) ................ 15

Smith v. Rock-Tenn Services, Inc., 813 F.3d 298 (6th Cir. 2016) ...................... 9

Tejada v. Travis Ass’n for the Blind, 617 F. Appx. 325 (5th Cir. 2015) ......... 15

Vance v. Ball State Univ., -- U.S. --, 133 S. Ct. 2434 (2013) .......................... 21

Velez v. Cuyahoga Metro. Hous. Auth., 795 F.3d 578 (6th Cir. 2015) ........... 15

STATUTES

20 U.S.C. § 1681(a) ....................................................................................... 17

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq................ 1

42 U.S.C. § 2000e-2(a)(1).................................................. 9, 10, 12, 14, passim

42 U.S.C. § 2000e-2(c)(1) ................................................... 1, 9, 10, 11, passim

42 U.S.C. § 2000e-3(a) ............................................................ 1, 11, 14, 16, 18

MISCELLANEOUS

110 Cong. Rec. 12,597 (1964) ...........................................................................

110 Cong. Rec. 13,169 (1964) (statement of Sen. Byrd) ....................................

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency charged by Congress to interpret, administer, and enforce federal laws prohibiting workplace discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises an important question concerning the scope of 42 U.S.C. § 2000e-2(c)(1), Title VII’s provision establishing what constitutes an unlawful employment practice for a labor organization. The district court erroneously construed this provision as excluding the claim in this case: that the union failed to protect plaintiff—a union member—from racial harassment by one of the union’s employees while both individuals were engaged in their assigned union duties. The district court’s interpretation conflicts with basic rules of statutory construction and longstanding judicial interpretations of the phrase “discriminate against” in Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), and other federal laws.

Because of the EEOC’s interest in the proper interpretation of the rights of union members and the obligations of labor organizations under § 2000e-2(c)(1), the EEOC offers its views to this Court. Fed. R. App. P. 29.

STATEMENT OF THE ISSUE[1]

Did the district court err in ruling as a matter of law that a labor organization cannot be liable under Title VII for a racially hostile work environment that its employee created when he harassed the plaintiff—a union member and local union official—while both individuals were performing their respective union duties?

STATEMENT OF FACTS

The MGM Grand Casino in Detroit hired Plaintiff Tanganeka (Tina) Phillips, who is African American, as a cage cashier in 1999. District Court Record Number (R.) 34-2, PgID#303 (Phillips 11/13/2014 Deposition (Dep.). She became a member of Local 7777 (Local), an affiliate of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW (UAW), in 2001. Id. Members who joined the Local were automatically members of the UAW as well. Soon after joining the union, Phillips became the MGM Casino Chairperson for the Local, serving on the Local’s executive board. R.34-2, PgID#303 (Phillips 11/13/2014 Dep.). She served in the Casino Chairperson role until she resigned from MGM in September 2015. Id.

As the Casino Chairperson, Phillips’s duties included handling grievances, resolving disputes between union members and MGM, and participating in labor negotiations. Id. at PgID#303-04. These responsibilities required her to work closely with other Local executive board members including bargaining member-at-large Dewight Braxton, Local President Venus Jeter, and Local Vice President Shimeca McClendon-Jackson. R.34-2, PgID#305; R.39-3, PgID#902 (Jeter Affidavit (Aff.)); R.39-12, PgID#936 (McClendon-Jackson Aff.).

Phillips’s union responsibilities also required her to work with various UAW employees. One such individual was Brian Johnson, a UAW International servicing representative assigned to the Detroit area in 2012 to assist local unions with negotiations, contract administration, and grievance-handling. R.34-6, PgID#351 (Isaacson Aff.); R.39-6, PgID#917 (Phillips Aff.). Another was UAW representative David Kagels, who led negotiations with MGM and other Detroit casinos on behalf of UAW in 2011, 2012, and 2013. R.34-7, PgID#483-84 (Kagels Aff.).

Phillips alleges that she was subjected to a racially hostile environment while performing her union duties. She observed that Johnson generally treated black union members in an aggressive and hostile manner, while treating whites respectfully. R.39-6, PgID#917-19 (Phillips Aff.); see also R.39-12, PgID#937 (McClendon-Jackson Aff.). He would yell at black members and call them incompetent, but speak to whites in a reserved and respectful tone. R.39-6, PgID#918 (Phillips Aff.). He was also violent—Phillips described one incident where he threw a file at her and another where he had to be physically removed from her office. R.39-2, PgID#894 (Phillips 11/13/2014 Dep. at 121-24).

Phillips described several specific incidents of racial hostility. For example, in approximately May 2012, Phillips, Braxton, and Johnson met at the Local to discuss grievances. R.34-2, PgID#312 (Phillips 11/13/2014 Dep. at 133). Johnson kept “cursing at” Phillips, and when Braxton told Johnson “that’s enough,” Johnson asked rhetorically if Braxton was Phillips’s “bodyguard” because he was “big and black.” Id. Phillips told UAW Region 1 Director Charles Hall about this comment. Id.

From June 2012 until March 2013, UAW and MGM were in negotiations over VIP positions. During one caucus meeting, Kagels started naming off union representatives that he would fire if he could, all of whom were black. Id. at PgID#314 (Phillips Dep. at 189-91). To Phillips, this implied that Kagels would fire all the black representatives if he had the authority. Id.

In April or May 2013, Johnson met with Phillips and Braxton at the Local to prepare for a grievance meeting with MGM. R.34-2, PgID#307 (Phillips Dep. at 72). Johnson pulled out a grievance file and asked Braxton and Phillips what the race of the grievant was. Id. at PgID#308 (Phillips Dep. at 74-76). Phillips answered, “What does that have to do with anything?” Id.; see also R.34-3, PgID#327-28 (Phillips 10/5/2015 Dep. at 89-90). Johnson replied, “Would you just answer the damn question?” Phillips told him the grievant was black, and Johnson flipped the file over. R.34-2, PgID#308 (Phillips 11/13/2014 Dep. at 75). After Phillips refused to tell Johnson the race of the remaining grievants, Braxton did. Id. at 308-09 (Phillips Dep. at 75, 81). Johnson separated the grievance files based on the race of the grievants, and Phillips concluded that Johnson was withdrawing the grievances of the black members and pushing the grievances of the white members forward to arbitration. R.34-3, PgID#319-20 (Phillips 10/5/2015 Dep. at 44-45); R.39-6, PgID#919 (Phillips Aff.).

Phillips reported Johnson’s conduct to the Local president, Jeter. R.34-3, PgID#327-30 (Phillips Dep. at 89-92). Jeter emailed UAW President Bob King a letter dated May 18, 2013—signed by Jeter and ten Local board members—complaining about Johnson and Kagels’s “blatant disrespect” for Local members and requesting King’s assistance. R.35-6, PgID#702-04 (5/18/2013 Memo). Kagels responded to Jeter in a June 2013 letter. R.39-9, PgID#929 (6/27/2013 letter). He indicated his belief that he and Jeter, during a March 2013 phone call, had discussed “many of the issues brought up in [Jeter’s] e-mail [to King].” Id. He stated that, not hearing anything further from Jeter, he had “assumed that the issue had subsided.” Id.

In a November or December 2013 meeting, Johnson told Phillips and McClendon-Jackson that the problem with the Local union was “there were too many blacks in the union” and “too many blacks on [the Local] board.” R.39-6, PgID#919 (Phillips Aff.); R.35-1, PgID#542-43 (McClendon-Jackson Dep. at 36-37); R.39-12, PgID#937 (McClendon-Jackson Aff.); R.49-2, PgID#1217 (Phillips 10/5/2015 Dep. at 62-63). Johnson further stated that if the Local “had more whites, [it] wouldn’t have the kind of problems it’s having.” R.49-2, PgID#1217 (Dep. at 63); see also id. at PgID#1217-18 (Dep. at 64-65) (Phillips not sure of “exact dates, but I remember what happened”).

In January 2014, Jeter again wrote to the UAW, this time to UAW Region 1 Director Hall. R.35-7, PgID#705-06 (1/17/2014 letter). Although Jeter’s May 2013 email to UAW President King had not specifically mentioned race, this letter did. Jeter wrote, “Several members have put in charges with the NLRB against Brother Johnson. Brian asked the Chair and Bargaining Member @ Large ‘WHAT IS THE RACE OF SEVERAL GRIEVANTS’. Since when do we represent members by the color of their skin?” Id. at PgID#705.

Hall convened a February 10 meeting attended by at least Hall, Johnson, Phillips, and Jeter to discuss the issues raised in Jeter’s letter. See R.49-2, PgID#1225 (Phillips 10/5/2015 Dep. at 95-96). Before the meeting, Hall conferred with Johnson about the allegations and Johnson denied representing union grievants based on the color of their skin. R.35-9, PgID#709-11 (Hall Dep. at 61-63, 80-83). Hall stated that he did not investigate these allegations closely because, based on his relationship with Johnson and his opinion of Johnson’s character, he believed this was not something Johnson would do. Id. at PgID#711 (Hall Dep. at 83-84).

The day after the meeting, Phillips sent Hall an email listing the reasons she requested the UAW remove Johnson from his assignment to the Local. R.35-8, PgID#707 (2/11/2014 email). Phillips stated that Johnson made an “inappropriate remark toward myself and Dewight (using the color of our skin)” and requested “member’s race when going through the grievances.” Id. Phillips also wrote that she was “in shock to hear [Hall] say that Brian asking a member’s race and separating grievances based on that” information was “common practice.” Id. Jeter also wrote Hall following the meeting. See R.35-10, PgID#713 (2/17/2014 letter).

Hall responded to Jeter, and copied Phillips, on February 17. Id. at PgID#713-14. Hall stated that Jeter’s and Phillips’s letters were “filled with inaccuracies,” id., although he later clarified that he was referring only to Phillips’s suggestion that he condoned separating grievances on the basis of race, R.35-9, PgID#710, 712 (Hall Dep.at 77-79, 89). Hall concluded by assuring Jeter that Johnson would treat members of the Local professionally and stating that he expected Johnson to be treated respectfully in return. R.35-10, PgID#714 (2/17/2014 letter).

Phillips sent Hall a February 25 email with the subject line “Final request for removal of Brian Johnson.” R.35-11, PgID#715 (2/25/2014 email). Phillips reported that Johnson “lost control again” and “went into an angry rage yelling and screaming.” Id. She further stated that “it [had] been 10 months” since she met with Hall to complain about Johnson’s behavior “and still the problems continue.” Id. Phillips told Hall that this was her final request for Johnson’s removal and if action was not taken she would “go outside the UAW.” Id.

Phillips filed an EEOC charge against the UAW in March 2014, alleging discrimination on the basis of her race (black) arising from Johnson’s actions. See R.47, PgID#1163 (summary judgment decision). Jeter wrote another letter to King in April regarding the Local’s problems with Johnson and indicating continued need of King’s assistance. R.39-11, PgID#934 (4/11/2014 letter). After receiving an EEOC notice of right to sue, Phillips filed suit against the UAW in January 2015 alleging violations of Michigan state law and Title VII. See R.1, PgID#1 (removal motion). In April 2015, the UAW removed Johnson from his assignment with MGM.

At some point Phillips amended her complaint to add a claim against MGM. Phillips later settled that claim and, in September 2015, resigned from MGM as part of that settlement. UAW then moved for summary judgment on Phillips’s remaining claims, which the district court granted on February 26, 2016.

District Court Decision

The district court ruled that the events Phillips described, “when considered as a whole, … would permit a jury to conclude that the defendants created a hostile work environment based on race.” R.47 (District Court Opinion and Order), PgID#1169. Quoting this Court’s recent decision in Smith v. Rock-Tenn Services, Inc., 813 F.3d 298, 310-11 (6th Cir. 2016), the court stated that “[w]hether the alleged conduct was harassment so severe or pervasive as to constitute a hostile work environment is ‘quintessentially a question of fact,’ which a jury should decide.” R.47, PgID#1169. The court then held, however, that a “labor union in its representational role” cannot be liable to a union member for creating a hostile work environment, on the ground that Title VII limits liability for workplace harassment to “employers.” Id. at PgID#1169-72.

The district court stated that Phillips had conflated two sections of Title VII: § 2000e-2(a)(1), which makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race …,” and § 2000e-2(c)(1), which makes it unlawful for a labor organization “to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race ….” The district court held that the hostile work environment theory “grows out of 42 U.S.C. § 2000e-2(a)(1)’s language” and that, therefore, a labor union cannot be liable to a union member for a hostile environment under § 2000e-2(c)(1). R.47, PgID#1170 (quoting Kasper v. City of Middletown, 352 F. Supp. 2d 216, 233-34 (D. Conn. 2005)).[2]

The court rejected the Eighth Circuit’s conclusion in Dowd v. United Steelworkers of America, Local No. 286, 253 F.3d 1093, 1102 (8th Cir. 2001), that “the phrase ‘or otherwise to discriminate against’ in section 2000e-2(c) could authorize a claim for a hostile work environment against a union.” R.47, PgID#1170. The court stated that this holding “ignore[s] the actual textual origin of [the hostile environment] theory,” which the court believed “is based not merely on the prohibition against discrimination, but on discrimination ‘with respect to . . . compensation, terms, conditions, or privileges of employment,’” a phrase found in subsection (a)(1) but not in subsection (c)(1). R.47, PgID#1170-71.

ARGUMENT

A Labor Organization Can Be Liable to a Union Member under 42 U.S.C. § 2000e-2(c)(1) for a Hostile Work Environment Created by the Union’s Agents or Employees.

Title VII’s prohibition against unlawful employment practices by labor organizations encompasses a union member’s claim that one of the union’s agents or employees subjected her to a racially hostile work environment while they jointly performed their assigned union duties. This Court has yet to address this question. In an analogous context, however, this Court and other circuits hold that the same “to discriminate against” phrase found in Title VII’s protection from retaliation, 42 U.S.C. § 2000e-3(a)—a provision that, like § 2000e-2(c)(1), does not include “terms, conditions, or privileges of employment” language—encompasses an employer’s failure to prevent or remedy a hostile work environment. Established rules of statutory construction dictate that this same interpretation of the phrase “to discriminate against” be applied to § 2000e-2(c)(1). In failing to recognize that discriminating against an individual includes tolerating his or her harassment by one of the union’s agents or employees, the district court erred.

The district court incorrectly based its analysis on the absence of language in § 2000e-2(c)(1) linking the word “discriminate” to the phrase “terms, conditions, or privileges of employment.” No linkage is necessary. Because allowing a hostile work environment to persist is subsumed in the phrase “discriminate against,” it is an unlawful employment practice for unions under § 2000e-2(c)(1).

A. The district court’s decision ignores the plain meaning of the term “discriminate” in the labor organization provision.

The district court’s analysis is incorrect as a matter of basic statutory interpretation. The plain language of § 2000e-2(c)(1) prohibits labor organizations from discriminating against “any individual” because of, among other protected traits, an individual’s race. The phrase “discriminate against” in Title VII has long been construed to encompass, as a prohibited form of discrimination, an entity’s failure to prevent and/or remedy workplace harassment. Thus, Title VII’s unqualified prohibition barring a labor organization from discriminating against any individual because of his race necessarily includes a union’s failure to prevent or remedy racial harassment of a union member by the union’s agent or employee.

Section 2000e-2 of Title VII prohibits certain employment practices that are based on protected traits, including race. The employer provision states that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race ….” 42 U.S.C. § 2000e-2(a)(1). By its terms, this section limits the employer conduct made unlawful by Title VII to discrimination with regard to “terms, conditions, or privileges of” employment. The provision addressing labor organizations, on the other hand, lacks this limitation on the range of discrimination that it prohibits. It states, instead, that it is unlawful for a labor organization “to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race ….” 42 U.S.C. § 2000e-2(c)(1) (emphasis added). This unrestricted prohibition against discrimination by a union is broad enough to encompass discriminatory treatment that manifests itself in the form of harassment that the union fails to prevent or remedy. See Dowd, 253 F.3d at 1102 (“[T]he plain language of [42 U.S.C. § 2000e-2(c)(1)] suggests that unions may be liable for any discrimination, including a claim of hostile work environment.”).

As the Supreme Court has explained, “the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 59 (2006) (“Burlington Northern”). Courts have long construed this term in Title VII to include an employer’s failure to prevent or remedy harassment based on a protected trait. Thirty years ago, in Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986), the Supreme Court stated: “Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” And the widespread recognition of harassment claims under Title VII’s retaliation provision, which also lacks the qualifying language “terms, conditions, or privileges of employment” found in § 2000e-2(a)(1), further demonstrates that the term “discriminate against,” itself, encompasses claims of harassment.

Title VII’s anti-retaliation provision provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment” because he has opposed an unlawful employment practice or filed an EEOC charge. 42 U.S.C. § 2000e-3(a). This Court, and all but one of the other circuits that have addressed the question, have held that this language encompasses claims of retaliatory harassment. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345-47 (6th Cir. 2008) (joining other circuits in recognizing a Title VII cause of action for co-worker retaliatory harassment); Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000) (holding retaliatory harassment by a supervisor could be actionable under Title VII); see generally Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007) (identifying the prima facie elements of a retaliation claim as including “severe or pervasive retaliatory harassment” as an alternative to showing a materially adverse action); see also Gowski v. Peake, 682 F.3d 1299, 1311-12 (11th Cir. 2012) (per curiam) (listing cases and joining other circuits in recognizing a cause of action for retaliatory harassment).[3]

As these decisions demonstrate, “the verb ‘discriminate’ in the anti-retaliation clause [of Title VII] includes subjecting a person to a hostile work environment.” Gowski, 682 F.3d at 1312 (quoting Noviello v. City of Boston, 398 F.3d 76, 89-90 (1st Cir. 2005)). The term is properly construed to have the same meaning in the labor organization provision, under the well-established rule of statutory construction that “[a] term appearing in several places in a statutory text is generally read the same way each time it appears.” See Ratzlaf v. United States, 510 U.S. 135, 143 (1994); see also Milner v. Dep’t of Navy, 562 U.S. 562, 570 (2011) (same); Velez v. Cuyahoga Metro. Hous. Auth., 795 F.3d 578, 582-83 (6th Cir. 2015) (citing the rule as the basis for applying a uniform definition of “rent” throughout the Housing Act of 1937).

Indeed, in Morris this Court expressly relied on this “common rule of statutory construction” in concluding that retaliatory harassment falls within Title VII’s anti-retaliation provision. Morris, 201 F.3d at 791-92 (citing Ratzlaf, 510 U.S. at 143). This Court observed that in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751-52 (1998), the Supreme Court clarified that harassment based on an individual’s protected trait (such as sex or race) “can constitute ‘discrimination’ under 42 U.S.C. § 2000e-2(a)(1).” Id. at 791-92. Applying that same interpretation of the term “discriminate” to Title VII’s anti-retaliation provision, this Court reasoned that “[i]t naturally follows that, under Ellerth,” a supervisor’s harassment of an individual because they opposed any practice made unlawful by Title VII “also can constitute ‘discrimination’ under 42 U.S.C. § 2000e-3(a).” Id. at 792.

This rule of statutory construction is equally applicable here. Applying the logic of Morris, “it naturally follows that” a labor organization’s failure to prevent or remedy the racial harassment of a union member by one of its agents or employees “also can constitute ‘discrimination’” prohibited under 42 U.S.C. § 2000e-2(c)(1). See, e.g., Dowd, 253 F.3d at 1101-03 (upholding jury finding that union was liable under Title VII for its failure to address complaints that union members and officials harassed members of the bargaining unit).

This conclusion is further bolstered by the fact that, outside the context of employment, the Supreme Court has construed the term “discrimination” to encompass “harassment” in other federal civil rights statutes that prohibit discrimination. For example, the Court has ruled that sexual harassment is the type of discrimination for which a recipient of federal funding can be held liable under Title IX of the Education Amendments of 1972, based on the language in 20 U.S.C. § 1681(a) providing that “no person … shall, on the basis of sex, … be subjected to discrimination” in connection with a program receiving federal financial assistance. See, e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (Title IX’s broad prohibition on discrimination encompasses “a [federal funding] recipient’s deliberate indifference to a teacher’s sexual harassment of a student”); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643-44 (1999) (recognizing private right of action by a program participant based on a funding recipient’s deliberate indifference to student-on-student harassment).

The district court thus erred when it concluded that the hostile work environment theory rests solely on § 2000e-2(a)(1)’s “terms, conditions, or privileges” language. R.47, PgID#1170-72 (summary judgment order). The district court deemed it significant that the harassment of which Phillips complained occurred while she was performing her union duties, not while she was performing her casino job duties, and so did not implicate the “terms, conditions, or privileges” of her employment. The district court therefore held that, although the events Phillips described were sufficient for “a jury [to] conclude that the defendants [had] created a hostile work environment based on race,” id. at PgID#1169, the union could not be liable for that hostile environment because it was not her employer, id. at PgID#1172-78. The court erroneously believed that the absence of the limiting phrase “terms, conditions, or privileges of employment” in § 2000e-2(c)(1) narrowed the scope of the labor organization provision by excluding discrimination in the form of harassment. Id. at PgID#1170-72.

The absence of the phrase “terms, conditions, or privileges of employment” necessarily results in broader, not narrower, protection against discrimination. The Supreme Court’s analysis of Title VII’s anti-retaliation provision in Burlington Northern confirms this reading. Although Burlington Northern did not involve a claim of retaliatory harassment, the Supreme Court was called upon to interpret the meaning of the anti-retaliation provision and, in so doing, compared the anti-retaliation provision with the “terms, conditions, or privileges” provision. Burlington N., 548 U.S. at 61.

The Supreme Court noted in Burlington Northern that the words “terms, conditions, or privileges of employment” found in § 2000e-2(a)(1) are “limiting words” that are absent from the anti-retaliation provision, § 2000e-3(a). 548 U.S. at 62. Relying on the principal that “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,” the Court concluded that the anti-retaliation provision is “not limited to discriminatory actions that affect the terms and conditions of employment,” but has a broader scope. Id. at 62-64, 67 (citing Russello v. United States, 464 U.S. 16, 23 (1983)). See also Hawkins, 517 F.3d at 345 (“The Supreme Court . . . made clear that the scope of Title VII’s retaliation provision is broader than that of Title VII’s [employer] discrimination provision.”).

Likewise here, the fact that the “limiting words” of § 2000e-2(a)(1) referencing terms or conditions of employment are not included in the labor organization provision (§ 2000e-2(c)(1)) indicates that the latter covers a broader—not narrower—range of discriminatory practices than (and therefore necessarily includes those prohibited by) the employer provision. In holding otherwise, the district court’s decision disregards the basic tenet of statutory construction that the Court applied in Burlington Northern.[4]

The district court relied on two district court decisions when it ruled that harassment claims derive from the “terms, conditions, or privileges” language in § 2000e-2(a)(1) that is applicable only to employers. R.47, PgID#1170. The court rested its holding on flimsy ground, for neither decision offered any legal analysis to support its interpretation, and both are factually distinguishable. In concluding that the hostile work environment theory grows out of subsection (a)(1)’s “terms, conditions, or privileges” language and that the absence of parallel language in subsection (c)(1) means a union member’s harassment claim against a labor organization must “fail as a matter of law,” the court in Kasper cited only National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). See Kasper, 352 F. Supp. 2d 216, 233-34 (D. Conn. 2005). Morgan and the cases it discusses, however, all addressed hostile work environment claims against employers; the Court had no occasion, and did not purport, to resolve whether a hostile environment claim could also be brought against a union. Morgan, 536 U.S. at 115-21.

The court in Hout v. City of Mansfield, 550 F. Supp. 2d 701 (N.D. Ohio 2008), relied on Kasper for the proposition that “[c]ourts do not impose liability on labor organizations for hostile work environment claims because hostile work environment claims emerge from the language of 42 U.S.C. § 2000e-2(a)(1) specifically attaching liability to employers’ discriminatory actions,” but provided no analysis to support that conclusion. Hout, 550 F. Supp. 2d at 742. Moreover, like Kasper, Hout is factually distinguishable: the alleged harasser was the plaintiffs’ supervisor, not a union employee or official, and the evidence showed the union never encouraged or condoned the supervisor’s conduct—to the contrary, the union had filed a grievance with the company on the plaintiffs’ behalf. Id. at 736-38, 742.

Finally, the district court’s general reference in this case to Supreme Court decisions as explaining how the “terms, conditions, or privileges” phrase “undergirds the hostile environment theory,” R.47, PgID#1171-72 (citing Vance v. Ball State Univ., -- U.S. --, 133 S. Ct. 2434 (2013)), also misses the mark. Vance, like Morgan, addressed only workplace harassment involving an employer, not the circumstances when unions might be liable for workplace harassment created by a union agent or employee.

B. The district court’s decision ignores the history and purpose of the labor organization provision.

Title VII is aimed at preventing “[d]iscrimination by those who control employment and promotional opportunities,” and, therefore, it regulates “the practices of employers, labor unions, and employment agencies.” 110 Cong. Rec. 13,169 (1964) (statement of Senator Byrd). Employers generally have the ability to affect workers only through the hiring, firing, and terms or conditions of employment and, therefore, it makes sense that Congress would limit an employer’s liability under subsection (a)(1) to discriminatory acts that affect the terms or conditions of an individual’s employment.

Unions, on the other hand, cannot directly control an employee’s terms and conditions of employment, but they can impact workers in other ways through allowing or denying access to union membership and through upholding or ignoring aspects of the workplace that are governed by the operative collective bargaining agreement. Cf. Goodman v. Lukens Steel Co., 482 U.S. 656, 665-69 (1987) (where employer and union had contractually agreed to a grievance system for resolving employee workplace complaints, holding that union could be liable under subsection (c)(1) for failing to invoke grievance process for complaints of racial harassment and other grievances alleging race discrimination) (superseded by statute on other grounds). For this reason, Congress chose to prohibit discrimination by labor organizations broadly by making it unlawful not only “to exclude or to expel [any individual] from its membership,” but also “otherwise to discriminate.” Cf. 110 Cong. Rec. 12,597 (1964) (explaining that Title VII prohibits discrimination by “[l]abor organizations with respect to union membership or to any other union privileges or activity affecting employment opportunities”). In rejecting Phillips’s hostile work environment claim against the UAW as a matter of law, the district court failed to recognize that its holding runs counter to this history and purpose.

C. Other circuits have ruled that unions were, or could be, liable for the creation or failure to remedy a hostile work environment.

Circuit courts that have faced the question have allowed hostile work environment claims against unions in their roles as labor organizations. In Dowd, the Eighth Circuit upheld a jury verdict finding a union liable under § 2000e-2(c)(1) for racial harassment that a union steward and others perpetrated in the presence of union officials against two employees—who were members of the collective bargaining unit but not of the union—when they crossed a union picket line during a strike. Dowd, 253 F.3d at 1096, 1099-1103. The court rejected the union’s argument that it could not be liable under Title VII because the harassment took place on public property outside the plant and, therefore, did not affect a term, condition, or privilege of employment. Id. at 1101-02. Noting that 42 U.S.C. § 2000e-2(c)(1) includes language making it unlawful for a labor organization “otherwise to discriminate against” any individual because of his race, and further noting that the plaintiffs had alleged harassment that “was directly connected to a union-sponsored activity—the strike,” the court stated: “[T]he plain language of the statute suggests that unions may be liable for any discrimination, including a claim of hostile work environment.” Id. at 1102-03. The court distinguished the case from others where employees had attempted unsuccessfully to hold unions liable for harassment by co-workers, noting that the harassment in those cases was not directly connected to union-sponsored activities. Id. at 1103.

The First Circuit similarly affirmed a district court’s refusal to disturb a jury verdict finding a union liable under Title VII for the sexual harassment of the plaintiff by union officials and others. Plaintiff was harassed during a union-organized bus trip to Boston to enable union representatives to participate in a political rally. See Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 78-79, 84-85 (1st Cir. 2007). In upholding the jury’s verdict (albeit without discussing in which section of Title VII the claim was rooted), the First Circuit found important that Dixon’s claim was not simply that the union had failed to prevent harassment by the employer or by co-workers but was, instead, “a case of discrimination within the union, by union members (including members of the Local’s executive board), under the supervision and acquiescence of the Local’s president.” Id. at 84-85.

As in Dowd, Phillips alleges that Johnson harassed her during meetings that were “directly connected to … union-sponsored activit[ies].” See Dowd, 253 F.3d at 1103. The harassment occurred while Phillips was performing her union duties, specifically participating in negotiations and handling grievances, alongside representatives assigned by the UAW to assist her. And, as was the case in Dixon, the harassment took place “within the union, by union members” and under the acquiescence of UAW leaders, who were notified of the harassment and waited more than a year to remove Johnson from his position. See Dixon, 504 F.3d at 85.

Notably, no circuit court has held that a union cannot be liable for a hostile work environment that one of its agents or employees perpetrates against a union member during the course of performing union duties. Even in decisions dismissing harassment claims premised on a union’s alleged acquiescence in an employer’s failure to prevent or remedy harassment, circuit courts have implied that discrimination by the union is different.

In EEOC v. Pipefitters Association Local Union 597, 334 F.3d 656 (7th Cir. 2003), for example, the Seventh Circuit overturned a district court’s judgment for the EEOC on a hostile work environment claim. At a recycling plant staffed by a pipefitters union, the portable bathrooms were covered in racially offensive graffiti, a Ku Klux Klan poster was hung in a break trailer, and a noose was displayed. Id. at 658. Although there was no doubt that the graffiti and other acts “create[d] a hostile working environment for the black pipefitters,” the Seventh Circuit held that the union could not be liable for permitting a hostile environment at the workplace. Id. at 658-61. Rejecting the EEOC’s argument that a union is legally responsible for harassment by its members at the worksite, the court noted that the “duties of nondiscrimination imposed by sections 703(a) and (c) [42 U.S.C. § 2000e-2(a), (c)] have reference to the respective roles of company and union in the workplace.” Id. at 659. The union did not control the workplace and thus, it could not be liable for “merely fail[ing] to effectuate changes in the workplace.” Id. But the court explained that a union that “discriminates in the performance of its agency function” violates Title VII. Id.

Likewise, in Anjelino v. The New York Times Co., 200 F.3d 73 (3d Cir. 1999), the Third Circuit recognized that a union could potentially be found liable under Title VII in a workplace harassment claim, but affirmed the dismissal of the plaintiffs’ claims against the local union because “the record here [did] not demonstrate that the Union itself instigated or actively supported the discriminatory acts allegedly experienced by the appellants.” Id. at 95. A group of female New York Times mail room workers alleged that their male co-workers, who were Union members, subjected them to “crude language and behavior” and displayed pictures of nude women and pornographic magazines in the mail room. Id. at 81. The plaintiffs claimed that “neither supervisory personnel at the Times nor Union officials proscribed such harassment, punished its perpetrators, or otherwise discouraged it.” Id. at 82. Hispanic plaintiffs alleged they were subjected to verbal harassment based on their race or national origin. Id. at 82-83.

The Third Circuit upheld the district court’s dismissal of plaintiffs’ claims against the Union on the ground that “the Union was not the employer of the appellants” and there was no indication the union itself was involved in perpetrating the harassment. Id. at 95. Therefore, the court reasoned, the Times, and not the Union, “was the party responsible for . . . ensuring that the work place was not contaminated with sex and race-based discrimination and harassment.” Id. at 96. But the court’s opinion makes clear that had the union itself been negligent in exercising its responsibilities, the outcome would have been different. Id. at 95-96.

Thus, the rulings of these other circuits support reversal of the district court’s holding that the UAW cannot be liable under Title VII for the harassing conduct of its employee. We urge this Court to hold that a labor organization can be liable under 42 U.S.C. § 2000e-2(c)(1) if—as the district court concluded a jury could find here—one of its agents creates a hostile work environment for a union member while she is engaged in union activities.

CONCLUSION

For the foregoing reasons, the EEOC respectfully urges this Court to reverse the district court’s grant of summary judgment and remand the case for a trial on Phillips’s hostile work environment claim against the UAW International.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

MARGO PAVE

Assistant General Counsel

/s/ Susan R. Oxford

_____________________________

SUSAN R. OXFORD

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, N.E.

Washington, D.C. 20507

(202) 663-4791

Record Entry #	Document Description	Page ID #
3	Amended Complaint (2/11/2015)	51-63
34	Defendants’ Exhibits in support of Summary Judgment	300-529
35	Defendants’ Additional Exhibits in support of Summary Judgment	530-791
39	Plaintiff’s Opposition to Summary Judgment	851-943
47	District Court Summary Judgment Opinion and Order (2/26/2016)	1154-80
48	Judgment (2/26/2016)	1182
49	Plaintiff’s Motion for Reconsideration Exhibits	1199-1313
50	District Court Order Denying Reconsideration (5/19/2016)	1314-19
52	Notice of Appeal	1323-35

[1] The EEOC takes no position on any other issue in this appeal.

[2] The district court acknowledged that a labor union, as an employer, can be liable under § 2000e-2(a)(1) for creating a hostile work environment for its own employees, R.47, PgID#1172-73, but concluded that Phillips was not an employee of the UAW. Id. at PgID#1173-78.

[3] The Eighth Circuit rejected or expressed doubt about the viability of a claim of retaliatory harassment, but it did so before the Supreme Court’s 2006 clarification of the standard for actionable retaliation in Burlington Northern, 548 U.S. at 59. It has not addressed the question since. See Scott v. City of Sioux City, 68 F. Supp. 3d 1022, 1037 (N.D. Iowa 2014). The Fifth Circuit has yet to decide the issue. Tejada v. Travis Ass’n for the Blind, 617 F. Appx. 325, 328 & nn.5&6 (5th Cir. 2015) (Fifth Circuit “has yet to determine whether a Title VII retaliation claim based on a hostile work environment is cognizable”); but see Lipovsky v. Vilsack, 2016 WL 4919894, at *19-20 (N.D. Miss. Sept. 14, 2016) (observing that district courts within the Fifth Circuit, relying on out-of-circuit authority, have assumed such a claim exists).

[4] In Burlington Northern, the Court ruled that for retaliatory conduct to be actionable, it must “produce[] an injury or harm” that is “materially adverse,” which the Court explained means “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 67 (internal quotations omitted); see also id. (rejecting “ultimate employment decision” standard, which ties actionable conduct to § 2000e-2(a)(1) and limits it to acts such as hiring, granting leave, discharging, promoting, and compensating). The analogous standard here would require that a plaintiff demonstrate that the union engaged in conduct that might well dissuade a reasonable employee from joining a union or exercising his or her rights to participate fully in union activities and benefits. This Court need not decide the precise standard here, however, because the district court already ruled that a jury could find that Phillips’s evidence met the more stringent “severe or pervasive” standard from § 2000e-2(a). R.47, PgID#1169 (summary judgment order).