An Overlooked Problem with Title VII's Protections Against Discrimination: Procedural Obstacles to Invoking the Law

By JOANNA GROSSMAN AND DEBORAH BRAKE

Tuesday, Sep. 04, 2007

Title VII of the Civil Rights Act of 1964, a broad statute that prohibits employment discrimination on the basis of race and gender, among other characteristics, is the centerpiece of federal anti-discrimination law. It broadly targets all forms of discrimination, both intentional and unintentional, both systemic and individualized. But these rights are not magically enforced. Instead, as the U.S. Court of Appeals for the Second Circuit recently observed, "Title VII combats unlawful employment practices . . . principally through reliance on employee initiative." Yet employees are often stymied in their efforts to claim the rights Title VII promises. Moreover, even those employees who overcome the significant obstacles to pressing a Title VII claim are left without adequate protection from retaliation for doing so.

The Supreme Court's recent ruling in Ledbetter v. Goodyear Tire & Rubber Co. is emblematic of the procedural obstacles erected under Title VII. There, a divided Court strictly interpreted the statute of limitations as applied to pay discrimination claimants. We have written about Ledbetter in prior columns, of which this one is the most recent.

Yet Ledbetter is only the tip of the iceberg. It combines with many other doctrines to create an overall system in which rights are promised, but cannot be claimed. In this column, we will describe these intersecting doctrines, and some of the workplace realities that have caused Title VII to fail.

Title VII's Timely-Filing Doctrines

At many different junctures, Title VII law makes assumptions about discrimination victims: what they know, when they know it, and how they respond to the information they are assumed to have. These assumptions are translated into expectations, and employees are then required to quickly perceive and report discrimination, in order to invoke the law's substantive protections.

At the root of these doctrines is Title VII's unusually short statute of limitations - 180 or 300 days (depending on whether the state has an EEOC work-sharing agency). This period of limitations is not only shorter than those governing most civil actions such as those for torts and breach of contract, but also significantly shorter than those governing many other anti-discrimination laws. In 1990, Congress tried to expand Title VII's short limitations period to two years, but the broader bill that included this provision, the Civil Rights Act of 1990, was vetoed by the first President Bush. No serious effort to extend the limitations period has been made since then, and it remains woefully short, both by comparison to analogous laws and in reference to the needs of discrimination claimants.

Worse, Title VII's short limitations period is exacerbated by doctrines that strictly define its trigger point. In 2002, in National R.R. Passenger Corp. v. Morgan, the Supreme Court rejected the "continuing violations" doctrine, and ruled that claimants must file an EEOC charge within 180/300 days of any "discrete act" of discrimination, regardless of whether related or similar acts occurred subsequently, or formed a pattern. The discrete act rule, which does not apply to hostile environment harassment claims, was extended to pay discrimination in Ledbetter in 2007: Claimants must challenge the initial decision to set a discriminatory wage within 180/300 days and cannot challenge subsequent paychecks that implement the discrimination.

Morgan and Ledbetter added to an existing body of law that erects roadblocks to challenging discrimination, by defining the acts that trigger the limitations period so that they occur at the earliest possible moment. Earlier cases established that the limitations period begins to run when the decision to discriminate is made, even if the decision is not implemented or felt until a later date. A decision to deny tenure, for example, is the triggering event, rather than the expiration of the teaching contract that results.

The discrete act rule presents problems for claimants who did not realize they had suffered an adverse employment action, who do not realize a particular action can be attributed to discrimination, or who decide not to complain immediately, because they fear the consequences of reporting or want to wait and see if the situation gets worse or resolves itself. These problems necessitate, at a minimum, the application of a robust set of equitable tolling doctrines -- that is, doctrines allowing the extension of the limitations period based on considerations of fairness or justice -- in appropriate cases.

The Supreme Court, however, has been circumspect about whether there is a "discovery" rule - that is, a rule that would suspend the limitations period until the claimant learned of the injury-- under Title VII. Some lower courts have said there is no discovery rule at all, and others have applied one too narrowly to be effective, adopting a rule that triggers the limitations period at the point in time when the employee learned of the adverse employment action, but not necessarily at the point in time when she learned of facts suggesting discrimination, which could occur much later. One court, for example, held that discrimination was "discovered" when a woman learned she had been laid off ostensibly for budget reasons, not on the later date when she learned she had been immediately replaced by a man.

Title VII's Prompt Reporting Doctrines

Beyond the statute of limitations, Title VII claimants sometimes face additional time pressures, as a result of other doctrines. Claims of harassment, for example, are not subject to Morgan's discrete act rule, and yet are subject to timely-filing pressures. For supervisory harassment, employers can escape liability or damages if they are able to prevail on a two-prong affirmative defense. (The rules of employer liability for sexual harassment were established in two 1998 cases, Faragher v. City of Boca Raton and Burlington Indus. v. Ellerth, which Joanna Grossman has written about in previous columns such as this one.)

Under the second prong, employers must show that the plaintiff-employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer." As interpreted by lower federal courts, this prong means that employees who experience supervisory harassment that does not result in a tangible act, such as a firing, must promptly file an internal complaint that complies with the employer's designated procedures.

Courts have been strict in their interpretation of what constitutes a "reasonable" delay in filing. One court, for example, found an 8-day delay unreasonable, while many others have found delays as short as 3 months to be unreasonable as a matter of law. Courts have also refused to accept virtually any excuse for failing to file an internal complaint . For example, they have rejected excuses they characterize as a "generalized fear of retaliation"; even in a case in which the harasser warned the victim not to go over his head and literally showed her the gun he possessed, fear of retaliation was deemed not to be a sufficient excuse. They have also rejected an employee's belief in the futility of the process, holding that this is not an excuse, even if such a belief is entirely understandable on the facts. As a general matter, the cases regarding the second prong of the test reflect a widespread refusal by courts to consider context - the particular circumstances that might explain why, in fact, an employee responded (or failed to respond) in the way she did to the experience of harassment.

These pressures to air harassment grievances internally first--part of a much broader trend toward the internalization of employment discrimination disputes within companies--also exacerbate the timely-filing problems, since the limitations period is not tolled pending resolution of internal complaints. Plaintiff-employees thus risk running out the clock while pursuing internal dispute resolution procedures that are encouraged or even made mandatory by employers.

The Realities of How Employees Perceive and Claim Discrimination

The timely-filing and reporting doctrines are strict in the abstract, but even more so when considered against the backdrop of research about how people actually perceive and respond to workplace discrimination. Real-world targets of bias tend not to immediately realize they have been discriminated against, nor do they challenge that discrimination promptly or assertively.

The difficulties employees have in perceiving discrimination are wide-ranging. As a general matter, under-perception is more the rule than hyper-vigilance, when it comes to discrimination. Members of stigmatized groups often acknowledge that their group experiences discrimination, but deny that they have experienced it individually. People also tend to believe in a "just world," holding to the idea that people succeed or fail based on their own merit. This ideology makes it difficult to attribute negative outcomes to discrimination, especially where the underlying conduct is ambiguous. A belief in personal responsibility also makes such attribution difficult; victims are more likely to blame themselves for bad outcomes, rather than an individual discriminator.

Cognitive difficulties also make perceiving discrimination difficult. Individuals interpret information better, for example, when it is received in the aggregate, rather than piecemeal. But evidence of discrimination tends to come to an employee's attention in exactly the opposite way. Employees rarely have access to information that gives a complete context for an employment decision - organization-wide data, for example, showing salaries by race and gender.

Finally, the perception of discrimination is hindered by individuals' lack of a sense of entitlement. To perceive unfair treatment, an individual must believe she is entitled to something better. But senses of entitlement tend to be shaped by social comparison, and women, for example, tend to compare themselves to other women, or to their own past experiences, rather than to men. They thus expect something less than equal treatment in the first place, and do not perceive the lack of such treatment as discrimination. As a result, in studies using male and female subjects, women pay themselves one-third less than men do for performing the same specified tasks.

Difficulties Challenging Discrimination

Just as employees have difficulties perceiving discrimination, they have difficulties challenging it when they do perceive it. Research consistently shows that people predict they will respond more assertively and promptly to discrimination than they actually do.

Evidence from the harassment context consistently shows that employees respond in myriad ways to harassment, but most of their responses are indirect, non-confrontational, and informal. The least likely response for a victim of harassment is to file a formal complaint, even though that's the response required by law in many cases.

The reasons employees give for failing to complain focus on the social and employment costs of retaliation. Social psychologists have shown that people who complain about discrimination are disliked by coworkers--perceived as hypersensitive and/or troublemakers--regardless of the merits of the underlying complaint. In other words, even if an employee is plainly suffering discrimination, colleagues strongly feel she should just tough it out somehow, and treat her accordingly if she complains.

Studies also show that workplace retaliation is a frequent consequence of complaining about discrimination--as many as 60% of sexual harassment claimants, for example, experience retaliation. A full twenty-five percent of the EEOC's docket involves complaints of retaliation.

The Failure to Protect Title VII Claimants From Retaliation for Complaining

As detailed above, prompt reporting doctrines make it difficult for many employees who experience discrimination to make use of Title VII's substantive protections. But even employees who do overcome the obstacles to perceiving and reporting discrimination face a tough terrain--they risk retaliation, for there is insufficient legal protection against it.

As we have discussed in previous columns such as this one, the Supreme Court established the current approach to retaliation law under Title VII in a 2006 case, Burlington Northern Railway Company v. White. At the time, the decision promised a reasonable approach to protecting discrimination victims from retaliation, by making unlawful any action that was "materially adverse" and "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." In the months since then, however, a host of lower federal court cases have twisted and contorted that standard into one that actually dilutes the law's protection from retaliation.

First, the lower courts have construed the "materially adverse" standard strictly, holding that it does not include factors such as social ostracization, negative performance evaluation, shift changes, and the withholding of mentoring and supervision. Lower federal courts tend not to engage in an analysis of context--despite the Supreme Court's call to courts to consider the perspective of a person in the plaintiff's position. Instead, they tend to make across-the-board rulings about what sorts of retaliatory actions are, or are not, "adverse" to a typical employee.

Second, wholly apart from the "materially adverse" requirement, lower courts have insisted that, in order to earn protection from retaliation, claimants must have both a reasonable legal and a reasonable factual belief that discrimination occurred, before complaining of discrimination. This doctrine was given the green light by the Supreme Court in a 2001 case, Clark County School District v. Breeden, which spawned a bevy of lower court decisions hostile to retaliation victims.

Overall, the "reasonable belief" doctrines are anything but reasonable, practically requiring plaintiffs to have a lawyer on retainer and a crystal ball before filing a charge.

For purposes of the reasonable legal belief requirement, plaintiffs are charged with full and accurate knowledge of existing law, including of Circuit-specific precedents. A woman who was sexually assaulted by a co-worker after hours, for example, was held to be "unreasonable" in her belief that her employer could be held liable for sexual harassment. Because she complained without a reasonable legal basis, the court held, she had no protection from the retaliation she later experienced from her employer.

For purposes of the reasonable factual belief requirement, plaintiffs are expected to know the unknowable - an employer's true, rather than claimed, motivation for a particular adverse decision. Consider the case of a school principal who complained of race discrimination after raises were given to many white principals in his district, but not to him; he noted that he was the only black principal in the district, and alleged his performance had been as strong as that of those who had received raises. His complaint was held to be unreasonable, since no one had told him race played a role in the decision, and he had no direct evidence that it had.

Together, the "materially adverse" and "reasonable belief" requirements, as construed by lower courts, mean that many employees who complain about discrimination are left without adequate protection from retaliation.

The Overall Picture: Paper Anti-Discrimination Rights That Cannot Be Enforced In Real-World Situations

When Ledbetter was decided last June, criticism of the opinion was swift and fervent. The House of Representatives almost immediately considered and adopted a bill to overturn it - the Ledbetter Fair Pay Act of 2007. Although President Bush has vowed to veto the bill, it suggests that the climate may be ripe for evaluating the fairness of Title VII's rights-claiming system more broadly.

It is important to keep in mind, however, that Ledbetter itself did not create most of the problems we have identified. It piled on top of the problem, to be sure, but underneath is a broader and more troubling set of doctrines that inhibit the ability of employees to claim the substantive protections guaranteed by Title VII. Many employees are prevented or deterred from invoking their rights; those that successfully make claims are often subjected to retaliation for which they have no legal remedy.

If Congress really wants to salvage meaningful access to Title VII's substantive protections, then the time has come to take a broad look at the flaws of Title VII as a rights-claiming system. Congress should dismantle the procedural and interpretive obstacles that prevent genuine discrimination victims from seeking justice without fear of retaliation.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Deborah Brake is a professor of law at the University of Pittsburgh. Her research focuses on sex discrimination in employment, education, and athletics. Together, Brake and Grossman wrote an amicus brief in support of the plaintiff in Ledbetter v. Goodyear, which was filed on behalf of the National Partnership for Women and Families and the National Women's Law Center, as well as other interested women's groups.

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