The Admissibility of Discriminatory Behavior by Nondecisionmakers

by John Gause, Esq.
Published: Maine LAWYERS REVIEW, September 11, 2003

Do not be fooled into thinking that discriminatory comments and actions by people who were not involved in plaintiff’s case are inadmissible. Defendant may argue that only the remarks and actions of those who were responsible for the adverse employment action can be admitted. In fact, the First Circuit Court of Appeals has repeatedly held that discriminatory behavior by others within a company is admissible, even if it does not relate to plaintiff, if it reflects a “discriminatory atmosphere” or the “corporate state of mind” of defendant.

The First Circuit line of cases in this area goes back to 1979. In Sweeney v. Board of Trustees of Keene State College, plaintiff alleged that defendant violated Title VII of the Civil Rights Act of 1964 when it refused to promote her to full professor. The decision was made by the college president upon the recommendation of the dean. Plaintiff alleged that the decision was based on her sex. To prove her case, she introduced evidence that the reasons given for the decision were false or insignificant.

In addition, plaintiff introduced evidence that the college’s affirmative action coordinator, who was not directly involved in the denial of her promotion, did little to advance the rights of female professors. She also introduced a letter the coordinator had sent to the president of Smith College asking for advice on how to respond to plaintiff’s charge of discrimination because he was “concerned that that form of anarchy may creep north into our virgin territory.” Plaintiff also relied on the testimony of several witnesses who believed that sex bias influenced promotion decisions at Keene. The district court judge relied on this evidence in finding that plaintiff had proven that her sex motivated the decision to deny her tenure.

On appeal, the First Circuit found sufficient evidence of sex discrimination to sustain the verdict. With respect to plaintiff’s evidence of gender bias, the court reasoned as follows: “While by itself it does not prove that Sweeney in particular was a victim of discrimination, it does add ‘color’ to the decision-making process at Keene State and to the reasons given for Sweeney’s non-promotion. Proof of a general atmosphere of discrimination is not the equivalent of proof of discrimination against an individual, but evidence of such an atmosphere may be considered along with any other evidence bearing on motive in deciding whether a Title VII plaintiff has met her burden of showing that the defendants’ reasons are pretexts.”

The court’s holding in Sweeney was expanded in Conway v.Electro Switch Corp. In Conway, plaintiff brought a Title VII claim alleging that her employment was terminated because of her sex. At trial, she introduced evidence of discriminatory remarks made by two individuals who were not involved in her termination decision. The first was a statement made by the industrial relations manager denying a request by another female employee for a raise, purportedly because the other employee made enough money and was one of the highest paid women in the company. The other was made by the president (before becoming president) in which he had denied another employee’s request for a raise, adding the comment, “Well, no, I don’t think so, Pat. For a woman supervisor, you do very well.”

Defendant moved in limine to exclude these statements on the ground that they were too far removed from plaintiff’s termination to be relevant. Defendant argued that, to be relevant, the statements would have had to have been made by individuals involved in her termination, and neither individual was involved. In addition, defendant claimed that the statements, which were made eight months and twenty-two months before plaintiff’s termination, were too remote. The trial court rejected the motion, the evidence was admitted, and the jury returned a verdict for plaintiff.

On appeal, the First Circuit held that the introduction of the comments was proper. The court answered defendant’s concerns as follows: “[E]vidence of a corporate state-of-mind or a discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment.” Rather, this type of evidence is admissible notwithstanding these deficiencies “because an employer’s willingness to consider impermissible factors such as race, age, sex, national origin, or religion while engaging in one set of presumably neutral employment decisions—in this case, pay scales—might tend to support an inference that such impermissible considerations may have entered into another area of ostensibly neutral employment decisions—here, an employee’s termination.”

Thus, to be admissible, it is not critical that discriminatory comments or acts be made or committed by someone involved in the adverse employment action or that they be recent. There also does not need to be any apparent connection drawn between the discriminatory behavior and the employment decision at issue. For example, plaintiff has not been required to show that the person who decided to fire her was influenced by the discriminatory acts or comments sought to be admitted. That much is implied. The evidence is admissible, not because it has been shown to bear directly on the decisionmaker, but because of a recognition that corporate culture influences the behavior of its members. Indeed, on another occasion, the court likened this type of evidence to a disease process: “[S]tatements by nondecisionmakers can be evidence that a discriminatory atmosphere pervades the workplace and infects the company’s personnel decisions.”

The Sweeney and Conway rationale has been applied repeatedly by the First Circuit since the cases were decided. In Carey v. Mt. Desert Island Hosp., after a jury found that plaintiff’s employment was terminated because of his sex, defendant argued that plaintiff had presented insufficient evidence of gender discrimination linked to the person who made the termination decision, the president of the hospital. Plaintiff’s evidence included, among other things, a derogatory statement about men made by the public relations director; indications that the personnel director had chastised him for filing a sexual harassment complaint; and the fact that employees who drafted the mission statement for the women’s health center had sought to bar men from working there. Even though almost none of plaintiff’s evidence of discriminatory animus was tied to the hospital president, relying on Conway, the court found that plaintiff’s evidence was sufficient to meet his burden of showing gender discrimination.

In Santiago-Ramos v. Centennial P.R. Wireless Corp., another Title VII termination case because of sex, the First Circuit reversed the district court’s entry of summary judgment after it found that plaintiff had presented sufficient evidence that the reasons given by defendant for her termination were a pretext for gender discrimination. Plaintiff alleged that the fact that she had a child and wanted another contributed to her termination. Among the evidence she relied on were comments made by two employees in plaintiff’s department that women should not become pregnant unless they wanted to risk being fired by defendant. She also cited a statement by one of defendant’s parent company’s directors complaining that women do not work hard after having children. Another parent company employee had told plaintiff that he was “in the interviewing mood,” and he proceeded to ask plaintiff how long she had been married, how many children she had, and what their ages were. Although none of these statements were made by people who played a hand in plaintiff’s termination, the court considered them in conjunction with the remainder of plaintiff’s evidence in finding that she had made a sufficient showing of gender discrimination.

It is important to add one caveat. In most of the decisions addressing this type of evidence, the court has pointed out that plaintiff cannot rely solely on evidence of an “atmosphere of discrimination” in order to meet her overall burden of showing discrimination because of her protected-class status. Rather, comments and behavior of this nature are only useful as an adjunct to other evidence. Thus, while this type of evidence “adds color” to the employment decision, it is plaintiff’s burden to fill in the rest of the picture. The jury will be allowed to consider the discriminatory remarks and acts, however, even if they are not linked to a decision maker.