Ed. Note: A longer version of this article appeared in the August 2012 edition of For The Defense, which can be seen in full here. We present the following abbreviated version of this article that takes a look at a few recent trends in employment law. 

Protected Class Member By Proxy – Associational Discrimination

Over the past few years, the number of claims pursued based on the theory of associational discrimination has increased dramatically. In these claims, plaintiffs allege that their employers have discriminated against them on the basis that they associate with a member of a recognized protected class, not that they themselves are members of any protected class.

Although limited statutory authority exists for these claims (like that found in the Americans with Disabilities Act), the United Stated Supreme Court has acknowledged the associational discrimination theory in retaliation cases. In Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), an employee filed a lawsuit claiming that the employer discharged him in retaliation for his fiancée having filed an EEOC charge. The Supreme Court found that those facts, if true, constituted an unlawful Title VII retaliation claim –Title VII prohibits an employer from taking an action that “well might have dissuaded a reasonable worker from making or supporting a charge” of discrimination, and a reasonable worker might not engage in protected activity if he or she knew it could affect the employment of a spouse or a significant other.

Courts have also recognized the viability of these claims in the discrimination context. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), a white basketball coach claimed that his termination was motivated by the fact that his wife was black. The Second Circuit held that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” The court concluded that an employee who suffered discrimination due to his association with a person of another race had actually suffered discrimination because of his own race.

Fortunately for employers, some courts are setting limits on the reach of these claims. For instance, a court in Tennessee rejected a claim for associational discrimination based on an employee’s allegation that he suffered discrimination because he worked for a historically black university that paid the employees less than what their counterparts at the University of Tennessee earned. Likewise, a district court in Nevada granted a summary judgment against a black plaintiff who claimed that he was discriminated against by his employer based on his support for President Obama, who is biracial.

Eliminating an Employer’s Discretion – Class-of-One Claims

An employer can typically rebut an inference of discrimination by showing that a plaintiff’s membership in a protected class was not the basis of the adverse employment decision. Jury instructions then usually remind a jury that an employer may terminate an employee for “a good reason, a bad reason, or no reason at all.”

But what would happen if an employer could no longer rely on “bad reason” or “no reason” in defending against a discrimination claim? The class-of-one claim has existed in the equal protection context for years, protecting individuals from arbitrary and irrational decisions by governmental agencies. Because those claims essentially require the government to justify every action taken or not taken under certain circumstances, however, courts have been particularly wary to allow them to proceed in or extend to other contexts.

The good news for employment lawyers is that, so far, courts have explicitly prohibited these claims in the employment context, even where the government was acting as an employer. In Engquist v. Oregon Dept. of Agriculture, the Supreme Court limited these claims. Recognizing the “crucial difference” between the government acting as a lawmaker and acting to manage its own internal operations, the Court held that class-of-one claims could not be brought to challenge employment decisions due to the “subjective and individualized” nature of those decisions, which involve “factors that are difficult to articulate and quantify.” Id. Other courts have confirmed that this extends categorically to public employment of all kinds, whether a merit-based or a civil service position.

Restricting the Use of the Resume – Employment Status Discrimination

Tucked away in President Obama’s proposed American Jobs Act was a section that, if passed, would make it illegal to discriminate against the unemployed when making hiring decisions. Both the Senate and House versions of the bill would make it unlawful for an employer to refuse to hire an employee based on the employee’s status as unemployed. To date, those bills have not become law. Several similar bills have been proposed in Connecticut, Michigan, Illinois, or Florida, although none have yet passed.

But the first laws aimed at providing protection for the unemployed have already passed. In June 2011, New Jersey became the first state to pass a law that prohibited employers from publishing job advertisements that overtly discriminate against the unemployed. New Jersey law now prohibits employers from “knowingly or purposefully” publishing an advertisement for a job vacancy within New Jersey that indicates that an employer will consider the potential employee’s current employment status. Although the law does subject a company to a hefty fine for a violation, the law specifically disavowed a private cause of action.

In March 2012, Oregon followed suit. And in the same month, the District of Columbia passed the Unemployed Anti-Discrimination Act, which is the first law in the nation to explicitly prohibit discrimination based on a person’s status as unemployed. While other states have yet to jump on the bandwagon, protecting the unemployed evidently is gaining strong support, with bills pending in several states, and other states are expected to pass similar protective laws.