- Two Italian doctors who were allegedly discriminated against by the University of Texas Medical Branch (UTMB) can proceed with their disparate treatment claims, the 5th U.S. Circuit Court of Appeals held (Cicalese v. University of Texas Medical Branch, No. 18-40408 (5th Cir. May 16, 2019)).
- The doctors, a married couple, both worked at UTMB without incident for five years, until a new dean allegedly told them to "go back to Italy," altered their performance evaluation criteria in a negative way and moved both of them to less desirable positions. A chairman of surgery also allegedly restricted the doctors' work and made negative comments — referring to Italian Ph.D. students working under one of the doctors — about "these Italians" and their "stupidity."
- The 5th U.S. Circuit Court of Appeals concluded the doctors had alleged sufficient facts to plausibly show that UTMB's actions against them were motivated by anti-Italian bias. Accordingly, it vacated a district court's ruling of summary judgment in favor of UTMB on the issue and remanded the case for further proceedings.
"Disparate treatment" refers to intentional acts of discrimination on the basis of a protected status such as race, national origin, religion or gender. The U.S. Equal Employment Opportunity Commission (EEOC) also recognizes "disparate impact" discrimination. This occurs when facially neutral policies or practices have a disproportionate, adverse impact on a protected group and cannot be justified by business necessity.
Disparate impact bias can be more subtle, such as a policy that affects older employees more than younger, or women more than men. American Airlines flight attendants recently filed a charge alleging that the airline's attendance policy has a disparate impact on women. Similarly, campus recruiting efforts may have a disparate impact on older workers.
Hostile work environment claims can intersect with both discrimination and harassment allegations. According to EEOC guidance, "petty" slights and annoyances don't rise to this level, but conduct creating a "work environment that would be intimidating, hostile, or offensive to reasonable people" does.
It's important to note that conduct doesn't have to be constant or wildly outrageous to meet this standard. The 7th Circuit, for example, recently ruled that conduct need not be "hellish" in order to be actionable; it concluded that three racial slurs over the course of a four-year employment relationship could be sufficient to create a hostile work environment. Similarly, the same court said harassment need not be "overtly sexual" to create a viable hostile work environment claim.
Appropriate training, prompt and thorough investigations, and an overall culture intolerant of discrimination and harassment can help keep companies out of the courtroom.