In a sharply worded opinion, the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) recently ruled that a union violated Title VII of the Civil Rights Act of 1964 when it refused to refer a female member for a lucrative driving position. Also, the court clarified that in cases in which discrimination is ongoing, an employee need not file a charge with the appropriate state employment law agency within 300 days of the first act of alleged discrimination to be eligible to file suit based on subsequent discrimination.
Refusal to Recommend Female Driver for Better Job
Maura Anne Stuart, a professional driver in the city of Chicago, is licensed to drive buses and other large passenger vehicles. Stuart wanted to move into the more lucrative field of driving courtesy vans for movie equipment and actors in Chicago. Such drivers are part of the Movie/Trade Show Division of Teamsters Local 727.
Local 727 has agreements requiring all local movie and TV production companies to hire drivers selected by Transportation Coordinators—a company composed of former Teamsters members. Local 727 adopted a rule that anyone wanting to drive for the Movie/Trade Show Division must submit a special application to the union, which then refers applicants to Transportation Coordinators. Transportation Coordinators hires drivers only if they’re referred by Local 727. Referrals are not based on union seniority. In its 70-year history, Local 727 has never referred a female applicant to work for the Movie/Trade Show Division.
Stuart filed a referral application with Local 727 in 2010, paid the union initiation fee, and began making dues payments. When she inquired about the status of her request to work for the Movie/Trade Show Division, she was repeatedly told that she was “on the list” even though no list existed. She called several people associated with Local 727 and the Movie/Trade Show Division to check on the status of her application and was told to stop calling. She was informed that she would be told when there was an opening.
Stuart didn’t receive any referrals in more than four years. She later learned that despite there being no shortage of work, her résumé was never included with other referral applicants. Local 727 later told her she wasn’t a member, despite the fact that it had accepted her dues payment and issued her a membership card.
Stuart filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) through the Illinois Department of Human Rights in October 2011 and received her right-to-sue letter in September 2013. She filed suit in federal district court within 90 days of receiving the right-to-sue letter. Local 727 pleaded the 300-day administrative statute of limitations as an affirmative defense, claiming Stuart failed to allege any acts of discrimination within the 300 days before she filed her EEOC charge as required by federal law. (The normal limitations period is 180 days, but the time limit is extended to 300 days when a charge is filed with an appropriate state agency.)
District Court Dismisses Complaint
Shortly after Local 727 filed its answer, the district court judge issued what amounted to a “show-cause” order, requiring Stuart to explain why her lawsuit shouldn’t be dismissed. She responded that she had alleged the union failed to refer her for work during the relevant time period and no discovery (exchange of evidence) had yet taken place so she was unable to point to specific instances of available work.
Without Local 727 ever asking it to do so, the district court dismissed Stuart’s suit with prejudice—meaning she couldn’t refile her claim. According to the court, her basic allegation against the union—refusal to refer her for work based on her gender—wasn’t actionable under Title VII. The judge also concluded that her claim was time-barred because she didn’t file an EEOC charge within 300 days of the first time the union refused to refer her for work with the Movie/Trade Show Division in connection with the movie Superman in 2005. Stuart appealed to the 7th Circuit.
When Must EEOC Charge Be Filed?
The court of appeals began its analysis by stating that although an employee can “plead h[er]self out of court” if allegations in her complaint negate an essential element of the claim, she is not required to make allegations that negate every possible affirmative defense that could be raised. In other words, Stuart’s complaint wasn’t deficient simply because she didn’t allege that she filed her EEOC charge more than 300 days after a discriminatory act by the union.
The court of appeals then lambasted the district court for reasoning that Stuart’s suit was untimely because she knew of other instances in which she wasn’t referred to work on a movie production long before her 300-day time limit for filing a claim with the EEOC began. The court of appeals succinctly rejected that reasoning, stating:
But so what? There is no rule that [an employee] who has been repeatedly discriminated against by her employer cannot challenge any of the discriminatory acts under Title VII unless she files her EEOC charge within 300 days after the first such act. . . . That would be an absurd rule. It would require an employee to infuriate her employer or union by complaining about what might be an inconsequential act of discrimination that she did not expect to be repeated.
In other words, a lawsuit is timely as long as the employee files an EEOC charge within 300 days of an actionable discriminatory act. Her suit isn’t time-barred because she files her charge more than 300 days after the first act of discrimination. Thus, the court of appeals ruled that Stuart’s lawsuit was timely because she alleged acts of discrimination that occurred within the 300-day period before she filed her EEOC charge.
The court of appeals also soundly rejected the district court’s conclusion that Title VII does not prohibit a union from refusing to refer a member for work based on her gender. According to the court, “The judge’s belief that ‘failure to refer’ cannot violate Title VII contradicts [the express language of the statute], which states that it is unlawful for a union to ‘fail or refuse to refer for employment any individual’ because of the individual’s sex.”
‘Don’t Call Us; We’ll Call You’ Policy Rejected
The court of appeals also noted that Stuart wasn’t required to make continual inquiries for a job referral after Local 727 made it clear that her requests would be rejected. The court relied on a long line of cases that stand for the proposition that an applicant isn’t required to continually apply for a position in the face of rejection if she does “everything reasonably possible to make known . . . [her] interest in applying for a job.” The court reasoned that a contrary rule would allow an employer to mislead an applicant into believing there was a possibility that she could be hired but then inform her of a blanket discriminatory policy 301 days after she first applied and thereby skirt the law.
Finally, the court of appeals concluded that Local 727 was prevented from raising a statute of limitations defense because its agent had told Stuart to stop calling to inquire about openings, saying, “Don’t call us. We’ll call you.” The court explained that statement placed Stuart in an untenable position. She could either continue calling and infuriate the referring agent, file suit prematurely before discovering an official policy of discrimination, or forgo any Title VII remedy by doing nothing. “By impaling her on this three-pronged fork, the business agent prevented her from suing within 300 days for the union’s fail[ure] to refer her,” said the court. Stuart v. Local 727, Int’l Bhd. of Teamsters, No. 14-1710 (7th Cir., Nov. 14, 2014).
This decision holds several lessons for employers. The main takeaway is that a blanket policy that results in an adverse employment action based on someone’s sex violates Title VII. The fact that this case involves a union doesn’t make the court’s decision any less important for employers.
Under Title VII, it’s unlawful for a union to “limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual” based on a protected characteristic. By contrast, the provision of the statute pertaining to employers makes it unlawful to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” based on a protected characteristic (emphasis added). However, case law addressing the emphasized language has held that an employer may violate Title VII by giving a negative employment reference. Also, Stuart’s position with the union would be analogous to an employee seeking a managerial reference for a promotion or a more beneficial lateral position at the company.
Second, when an employer repeatedly discriminates against a job applicant, the administrative statute of limitations begins to run from the last act of discrimination—not the first. Moreover, an employee may be able to include acts of discrimination outside the applicable limitations period under the “continuing violation” doctrine if she can establish that the discrimination is part of a “pattern or practice” of discrimination.
Finally, an employer may be prevented from raising a statute of limitations defense to a Title VII claim if it issues what amounts to a blanket refusal to hire or promote someone. An employee isn’t required to keep applying for a job in the face of repeated rejection if she has done everything reasonably possible to put the employer on notice of her interest in the position.