Title VII Safe Harbor Provision Precludes Employees from Proving Disparate Impact Theory Discrimination Claims Based on Different Treatment in Different Locations

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In Abril-Rivera v. Johnson, issued on July 30, 2015, the First Circuit affirmed summary judgment against a group of Puerto Rico-based employees alleging discrimination on the basis of national origin on a disparate impact theory.   The court of appeals affirmed the district court’s grant of summary judgment in favor of the employer, the Federal Emergency Management Agency (“FEMA”) because (1) FEMA had a legitimate business reason for its actions; and (2) because Title VII’s safe harbor provision for location-based employment practices required plaintiffs to prove intent to discriminate.

Plaintiffs had been employed by FEMA in a San Juan, Puerto Rico call center and based their discrimination claims on two actions by FEMA: (1) implementation of a rotational staffing plan that reduced the number of days each plaintiff could work; and (2) FEMA’s ultimate decision to close the San Juan call center.

The center was opened on a “temporary” basis in 1995 to address calls from Spanish-speaking victims of Hurricane Marilyn.  In 2003, it became a full-fledged call center together with similar centers in Maryland, Texas and Virginia and was FEMA’s only fully bilingual call center.  In 2007 and 2008, FEMA inspections of the facility identified numerous safety-related deficiencies in the call center’s infrastructure, including a lack of fire-sprinklers, working fire alarms and an adequate number of exits.  FEMA also began exploring closure of the facility for a number of reasons, including a reduced need for a Spanish-language call center, reduced overall need for personnel, that existing needs could be met by other call centers  and because the lease for the call center building was about to expire.

In July 2008, FEMA announced that it would make repairs to the facility during which time it would implement a staffing plan that cut some employee’s work time by half on a rotational basis.  In December 2008, FEMA announced that it was closing the center and eliminating all Puerto Rico call-center positions as of December 30, 2008.

To survive summary judgment under a disparate impact theory under Title VII, plaintiffs must first establish a prima facie case of discrimination showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color religion, sex, or national origin.”  If plaintiff establishes a prima facie case, the employer may defend by showing that the practice “is job related for the position in question and consistent with business necessity.”  If the employer makes this showing, the employee may rebut it by demonstrating “that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.”

The First Circuit affirmed summary judgment on plaintiffs’ disparate impact claims on two grounds.  First, FEMA had established a legitimate business justification for its decisions to implement the rotational staffing program and for its ultimate closure of the Puerto Rico call center.  Second, Title VII’s safe harbor provision applicable to location-based discrimination claims precluded liability because plaintiffs could not demonstrate intentional discrimination.

The safe harbor provision, 48 U.S.C. § 2000e-2(h), requires proof of intentional discrimination:

“ … it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions or privileges of employment … to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.”

In other words, different treatment in different locations is permissible absent an intent to discriminate.

The First Circuit held that the safe harbor provision defeated plaintiffs’ disparate impact claims based on the rotational staffing plan and ultimate closure of the San Juan call center.  It noted that existence of the safe harbor is not surprising, since “location is often a proxy for differences in cost and other competitive circumstances.”  The majority rejected the dissent’s contention that the safe harbor did not apply because plaintiffs’ positions were eliminated, opting instead for an “expansive” reading of the provision.

The court also held that plaintiff’s disparate impact claims failed because FEMA articulated a legitimate business justification for its challenged actions and plaintiff produced no evidence of an available alternative that had less disparate impact, yet still served FEMA’s legitimate business needs.  Respecting the rotational staffing plan, the court agreed with the district court that it served FEMA’s legitimate needs of maintaining adequate staffing while maintaining a safe work environment.   Closure of the facility was also justified by legitimate business needs, including that fixing the numerous safety issues would have been very expensive, establishing a new Puerto Rico call center would have been even more expensive, the volume of Spanish language calls had decreased and existing needs could be met by call centers in Maryland, Texas and Virginia.

The take-away for employers and would-be employee plaintiffs is that disparate impact arising from different treatment of employees across geographic regions, including up to termination of employment, is insufficient to support liability.  Actual intent to discriminate must be proven.

Contributor:  Corbett H. Williams, Attorney at Law  |  Weintraub Tobin