We just received a good result from the Eleventh Circuit Court of Appeals
(the federal appeals court for the states of Georgia, Florida and Alabama)
in a race discrimination and retaliation case and, at the risk of seeming
immodest, we’d like to share it with you. It’s a very employee-friendly
decision on the issue of what is an adverse action under the discrimination
laws, and the court held that when a company makes a discriminatory decision
that it later corrects, the employer’s after-the-fact corrective
action does not cure the initially discriminatory act.
In the case, Crawford v. Carroll, our client, Jacquelyn Crawford, is an
African American female who was employed at Georgia State University in
various capacities in its human resources department. Her dispute with
GSU began with a disciplinary action she received for allegedly violating
the school’s bereavement leave policy. When she complained about
this discipline, she claimed she was subjected to retaliation by her Caucasian
supervisor in the form of unreasonable job demands and overly critical
scrutiny of her work.
The dispute then escalated when Crawford was denied a promotion to a position
that was posted several times during a two-year period even though several
managers believed she was the most qualified applicant for the position.
During this period, Crawford’s Caucasian supervisors issued her
a negative performance review, which made her ineligible for a merit pay
increase that she was scheduled to receive in October 2002. In response,
Crawford filed an internal complaint contending that the poor performance
review and resulting disqualification for the merit pay increase were
racially discriminatory and retaliatory.
While her internal complaint was pending, the position that Crawford had
been denied was posted for a third time. This time, Crawford was not even
selected for an interview, and GSU recommended that a Caucasian male be
awarded the position.
Crawford ultimately filed a charge of discrimination with the EEOC, claiming
that her poor performance review and disqualification from the merit pay
increase were discriminatory; she amended her charge to include a claim
of retaliation when she did not receive the promotion. While her charge
was pending, GSU determined that Crawford was entitled to a pay grade
increase, which it made retroactive back to the date when Crawford should
have initially received her merit pay increase.
In Crawford’s subsequent race discrimination and retaliation lawsuit,
the lower court dismissed her claims on summary judgment, reasoning that
because GSU ultimately awarded Crawford a pay grade increase retroactive
to the date when the merit pay increase was initially denied, she was
made whole and therefore could not establish an adverse employment action
for either her discrimination or retaliation claims. The lower court relied
on a line of cases from the Eleventh Circuit defining an adverse action
as an “ultimate employment decision” or a “substantial
employment action,” and concluded that because Crawford had received
a retroactive pay increase, she could not establish a “serious and
material” change in the terms and conditions of her employment sufficient
to establish an adverse action by GSU.
The Eleventh Circuit reversed the lower court, holding that there was a
genuine issue of material fact that precluded the award of summary judgment.
The Court reasoned that the retroactive increase of Crawford’s salary
did not cure the fact that Crawford’s initial poor performance review
and disqualification for a merit pay raise were adverse actions in that
she lost the time value of the funds that she would have had if she had
received the merit pay increase when she was initially scheduled to receive
it. In other words, although Crawford did not suffer a
substantial loss, she did suffer an
actual loss, which was enough to establish an adverse action for the purposes
of both her retaliation and discrimination claims. The court also took
pains to note that after-the-fact attempts by employers to cure prior
discriminatory acts do not cure the discrimination, as this would allow
employers to “escape Title VII liability by correcting their discriminatory
and retaliatory acts after the fact.”
Although the court did not expressly overrule the “substantial employment
action” doctrine, it certainly questioned it, and it also noted,
in light of the U.S. Supreme Court’s decision in
Burlington Northern& Santa Fe Railway Co. v. White, that the doctrine was no longer good law with respect to retaliation claims.