Third Circuit Expansion of Title VII: Where Is the Line?
It is common knowledge that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of an employee’s protected characteristic, such as race, color, religion, sex and national origin. What remained unsettled law in the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey and Delaware) until this summer was whether Title VII prohibited action taken against an employee because of that employee’s association with someone of a different protected characteristic.
By way of background, unlike the Americans with Disabilities Act of 1990, which in the statutory language prohibits discrimination against an individual because of a known relationship or association with an individual with a disability, no such explicit prohibition is found in the text of Title VII. Instead, the plain language of Title VII is limited to barring discrimination because of an individual’s protected characteristics. An increasing number of federal circuit courts, however, now including the U.S. Court of Appeals for the Third Circuit, have interpreted this contrast in statutory text to be a distinction without a difference and have held discrimination on the basis of association is prohibited by Title VII.
Overview of ‘Kengerski’
On July 29, the Third Circuit joined at least four sister circuits (the Second, Fifth, Sixth and Eleventh Circuits) in holding for the first time that Title VII forbids an employer from discriminating against an employee because of their association with another person who is a member of a different protected class. See Kengerski v. Harper, 6 F.4th 531 (3d. Cir. 2021). In Kengerski, the plaintiff, who was white, told his manager and other colleagues that he was preparing to take in and care for his grandniece, who was biracial. Over the next five months, the supervisor allegedly made racially offensive statements about the plaintiff and sent him racially offensive text messages, which included photographs depicting overweight African American women and an Asian woman with enlarged teeth. The plaintiff subsequently filed an internal complaint with his employer reporting his superior’s conduct. Seven months later, the company terminated the plaintiff.
The plaintiff subsequently filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania against his former employer alleging discrimination on the basis of his race and retaliation under Title VII. After discovery was complete, the company won its motion for summary judgment. The plaintiff appealed, and the Third Circuit held that the district court erred in granting the defendant’s motion for summary judgment, finding that harassment against an employee because he associates with a person of another race can violate Title VII. The rationale for the Third Circuit’s holding in Kengerski is that when an employee is subjected to an adverse action because an employer disapproves of a relationship or association with someone of a different race, this is in effect discriminating against the employee because of his or her own race, thereby bringing it within the purview of Title VII. While Kengerski specifically dealt with the plaintiff’s association with his grandniece, the Third Circuit court found discrimination or harassment against an employee because of their association with “any person” is prohibited.
After Kengerski, a claim of associational discrimination in the Third Circuit now extends to an employee’s association with a family member, including those outside an immediate family, of a different race or other protected characteristic. The broad language of “any person,” however, leaves open a potential argument that Title VII’s protection against associational discrimination extends beyond an employee’s relationship with family members. The court does state that associational discrimination is not limited to “close or substantial relationships,” and that the degree of association is irrelevant to whether that plaintiff is eligible for the protections of Title VII. While the relationship parameters for an associational discrimination claim remains to be seen, surely there must be an outer limit on association, as not every relationship can be covered. There is currently limited case law addressing the nuances of association-based discrimination under Title VII, but there have been cases analyzing this issue, which provide helpful guidance as addressed below.
What Does Not Constitute Association
As one example of a relationship that does not rise to the level of association, the U.S. District Court for Southern District of New York has held that being employed alongside co-workers of a different race, without any other type of relationship, is insufficient to maintain a claim for associational discrimination. See Chalmers v. City of New York, (S.D.N.Y. Sept. 16, 2021). In Chalmers, the plaintiffs, who were white, brought a claim under Title VII for racial discrimination, alleging that they were paid less than their minority co-workers that were performing a similar job. The plaintiffs argued that they suffered discrimination because of their association with their colleagues, who were members of a protected class.
The court in Chalmers rejected this argument, holding that an employee suffers associational discrimination where the employer disapproves of interracial association and takes an adverse action on that basis. While the court noted that a “romantic interpersonal relationship” was not required, the white plaintiffs were required to have a relationship with their minority counterparts—personal, social, professional or otherwise—that went beyond the bounds of merely working together in the department. Because the plaintiffs did not have a relationship beyond that of working with their minority colleagues, the Chalmers court held that their associational discrimination claim failed.
In another recent case, a District of Massachusetts court found that advocating for and associating with a social movement on behalf of a co-worker of a different race is also insufficient to establish a claim for associational discrimination. In Fruth v. Whole Foods Market, 517 F. Supp.3d 60 (D. Mass 2021), the plaintiffs began demonstrating their support for the Black Lives Matter (BLM) movement in the wake of George Floyd’s murder by wearing face masks and other attire with BLM messaging to work. Because the plaintiffs were violating the defendant’s dress code by wearing this attire, the defendant disciplined the plaintiffs, including sending the plaintiffs home from work, withholding their pay for that day and giving them disciplinary points.
The plaintiffs brought suit under Title VII alleging, in part, that the defendant’s policy singled out non-Black coworkers who associated with Black employees and showed support for them through wearing BLM items at work. Dismissing the plaintiffs’ claim for associational discrimination, the Fruth court found that Title VII does not prohibit an employer from taking an adverse action against employees for wearing clothing that is merely associated with individuals of a particular race. While the Fruth court noted that the plaintiffs could maintain a claim under Title VII if they were discriminated against for advocating on behalf of a co-worker who had been subjected to discrimination, but there was no allegation that the defendant was discriminating against the plaintiffs’ Black co-workers. As a result, the plaintiffs’ association with a social movement on behalf of their black co-workers was insufficient to raise a Title VII claim.
We expect case law in the Third Circuit and elsewhere will continue to develop analyzing the nuances of discrimination on the basis of association under Title VII. In the meantime, in light of Kengerski, employers in Pennsylvania, New Jersey and Delaware should review their handbooks to confirm their anti-discrimination, anti-harassment, prohibition on retaliation, and equal employment opportunity policies are fully up to date and compliant based on this development in the law. But, there is more for employers to consider. The Kengerski decision comes at a unique time in the history of the United States, after more than a year of a pandemic and while the nation continues to grapple with social and racial justice issues. This gives employers an opportunity to engage with employees on new and different levels, including developing training programs, often in partnership with legal counsel and other experts, addressing these issues.
“Third Circuit Expansion of Title VII: Where Is the Line?” by Stephanie Gantman Kaplan and Oliver R. Katz was published in The Legal Intelligencer on October 26, 2021.
Reprinted with permission from the October 26, 2021, edition of The Legal Intelligencer © 2021 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.