The Record of Judge Sonia Sotomayor on Critical Legal Rights for Women: Federal Anti-Discrimination Protections: Title VII Disparate Treatment Cases

Judge Sotomayor's Legal Record: Federal Anti-Discrimination Protections

July 2009

Title VII Disparate Treatment Cases

We found about 20 cases raising claims under Title VII of the Civil Rights Act of 1964, which bars discrimination in employment based on race, color, sex, national origin and religion, that came before Judge Sotomayor in the district court. In addition, Judge Sotomayor heard over 120 Title VII cases while on the Second Circuit (although not all of the opinions directly implicate Title VII). She is identified as the writing judge in only 12 of these Second Circuit cases, but many decisions were issued as unpublished, unsigned summary orders and there is no way to definitively determine the authoring judge in those cases.[1]

The Title VII opinions written by Judge Sotomayor suggest that she appropriately articulates the Title VII principles that she applies to the particular facts before her. They do not suggest that she would seek to expand Title VII principles in ways that would favor plaintiffs, nor do they suggest that she would seek to favor employers. Her harassment cases do suggest, however, that she has a particular understanding of the impact of harassment in the workplace, and is more likely to leave to a jury an assessment of whether conduct amounts to a hostile environment than are some other judges. The following are examples of her Title VII opinions:

In Greenbaum v. Svenska Handelsbanken,[2] a woman working as a trader for an international bank alleged that the bank refused to promote her because of her sex and age and that it subjected her to a sex-based hostile environment and again failed to promote her in retaliation for filing a state discrimination complaint. Judge Sotomayor presided over this case on the district court, issuing at least four opinions in the case over several years. A jury decided in favor of the plaintiff on claims of failure to promote and retaliation, but against her on her claims of sexual harassment and age discrimination. Granting appropriate deference to the jury determination, Judge Sotomayor upheld the verdict and damages awards in a series of opinions, finding that a reasonable jury could have found that the employer's explanations for failing to promote the plaintiff were pretextual. In so doing, she appropriately emphasized that the jury could rely on the fact that an employer could not credibly explain its conduct as evidence of pretext.

In a 1996 (pre-Ledbetter v. Goodyear Tire & Rubber Co.[3] ) pay discrimination case, Black v. NYU Medical Center,[4] Judge Sotomayor did not bar a Title VII pay discrimination claim filed 300 days after the initial pay setting decision as untimely. Because the plaintiff alleged that NYU's School of Medicine had a policy of pay disparities, she determined that the allegation was of an ongoing violation of Title VII. Judge Sotomayor did dismiss the plaintiff's Equal Pay Act claim as untimely because the plaintiff failed to identify the specific individuals performing substantially similar work to hers within the School of Medicine. But Judge Sotomayor notably did not allow procedural hurdles to bar the Equal Pay Act claim - she dismissed the plaintiff's claim without prejudice and stated she would grant leave to allow her to amend the complaint, assuming she had sufficient facts to meet her burden.

In Cruz v. Coach Stores,[5] Judge Sotomayor not only showed that she was attuned to workplace harassment, but also recognized overlapping forms of race and sex discrimination. Yvette Cruz, a Hispanic woman, worked as a part-time sales associate for Coach and was later appointed to a secretarial position. She believed she was entitled to a financial analyst position based on prior promises made about her advancement at Coach. Cruz also alleged that she was routinely subject to racial and gender harassment by coworkers and a supervisor. She was ultimately terminated after getting into a physical altercation with a coworker. Writing for the panel, Judge Sotomayor affirmed the dismissal of plaintiff's failure to promote claim and retaliation claim. Cruz never applied for the financial analyst position and there was evidence in the record that she was not qualified for the position. On the retaliation claim, Judge Sotomayor emphasized that Cruz was terminated not in retaliation for complaining but because of a physical altercation - as she put it, "[s]lapping one's harasser, even assuming arguendo that Cruz did so in response to Title VII-barred harassment, is not a protected activity."

But Judge Sotomayor allowed the hostile work environment claim to proceed. She emphasized that while the plaintiff could have presented her claim "more artfully," a reasonable jury could find that the plaintiff had made out a hostile work environment claim.[6] She further noted that the plaintiff presented evidence of both race and gender harassment and that "a jury could find that [Defendant's] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa."[7]

In another case involving overlapping race and sex discrimination, Williams v. Consolidated Edison Corp. of New York,[8] Judge Sotomayor joined a panel decision vacating the district court's grant of summary judgment on a hostile environment claim (the panel affirmed the district court's decision on the additional retaliation and discrimination claims). In that case, the plaintiff alleged that she was regularly subject to race- and sex-based epithets by coworkers and supervisors. In addition, women were routinely made to believe they did not belong in the workplace in other ways - e.g., pornographic materials were prominently displayed, their male coworkers avoided shifts with women, and women were not provide with adequate locker room facilities. In addition to the racial epithets, the work location and assignments had racial patterns. The panel held that a reasonable jury could determine that that the plaintiff was subject to a hostile environment. In addition, there was no dispute that Con Ed knew about the majority of the harassment - the plaintiff reported much of the conduct to supervisors and human resources - but the panel held that there was a factual dispute over whether Con Ed responded to the harassment appropriately.

In Raniola v. Bratton,[9] a New York City police officer claimed that she was subject to years of abuse, including threats, false accusations of misconduct, derogatory remarks, and disproportionately burdensome assignments because of her sex. After filing an EEOC complaint, she claimed she was singled out for worse assignments and heavier workloads. In addition, at one point during a lineup where the officer was the only woman, the Captain said "listen up everybody, we have a problem. There . . . is a rat here in the precinct. Until I get rid of her, we are all in this together."[10] The officer was ultimately terminated following a remark that she allegedly made while off duty.

Three days into a jury trial, the district court invited motions for judgment as a matter of law and granted judgment in favor of the police department, dismissing the complaint in part because the trial judge did not believe the conduct was "because of sex." Judge Sotomayor revived the officer's claim in the Second Circuit. Writing for the panel, she emphasized that a reasonable jury could conclude that the gender-based conduct towards the officer (abusive language and derogatory remarks, disparate treatment (denied shift requests that her male peers were granted), and workplace sabotage) created an actionable hostile environment. In addition, Judge Sotomayor reversed the trial court's dismissal of plaintiff's retaliation claim, concluding that a reasonable jury could find that following plaintiff's EEOC complaint, the department was indeed "looking to fire" her.[11]

In addition, a summary order in a case where she sat on the panel is an example of Judge Sotomayor's understanding of the way in which Title VII applies to sex stereotyping discrimination. In Miller v. City of New York,[12] the panel reversed the district court's grant of summary judgment in a Title VII case involving sex stereotyping. In that case, a small, non-muscular man with a disability alleged that his supervisor complained that he was not a "manly man" or a "real man" and devised a scheme to give him dangerous assignments to "toughen him up." In an unpublished summary order, the panel found that although sexual orientation discrimination is not actionable under Title VII, "discrimination on the basis of a failure to conform to sex stereotypes can evidence the sort of difference in treatment of persons of different genders that is actionable under Title VII."[13] The panel next held that a hostile environment must be "severe and pervasive enough to create an environment that would reasonably be perceived, and is perceived, as hostile or abusive."[14] This use of the conjunctive, rather than the severe or pervasive standard set forth by the Supreme Court, implies that more is required of a plaintiff in a hostile environment claim. But even applying this heightened standard, the court held that the facts met the standard for harassment under Title VII and that the hostile environment claim, together with a claim for constructive discharge and retaliation, should go to a jury.

Finally, as a district court judge, Judge Sotomayor wrote an opinion in a case in which the plaintiff alleged sexual harassment, but did not bring claims under Title VII. In Zveiter v. Brazilian Nat'l Superintendency of Merchant Marine,[15] the plaintiff alleged that she was subject to unwelcome touching, staring, jokes/comments, and invitations for cocktails, was reassigned from her position as a secretary to serve as a receptionist, and was told that her failure to "play the game" could jeopardize her employment. The plaintiff sued claiming sexual harassment under the New York Human Rights Law. Judge Sotomayor denied the defendant employer's motion for summary judgment, in part because she concluded that a jury could reasonably find that the abuse Zveiter experienced constituted a hostile work environment. Notably, Judge Sotomayor observed that a "female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to remedies for sexual harassment."[16]

In addition, while Judge Sotomayor was a PRLDEF board member, the organization was involved in Title VII litigation that raised disparate treatment claims.[17] PRLDEF staff did report to the Board that they had been involved in these cases, but as Judge Sotomayor testified at her hearings, board members did not approve specific litigation activities, and at most would look at the organization's legal work to ensure that it was consistent with the broad mission statement of the fund.[18] It is therefore fair to say that Judge Sotomayor knowingly served on the board of an organization that engaged in employment discrimination litigation, generally on behalf of plaintiffs.

Title VII disparate treatment cases were not substantively discussed at Judge Sotomayor's confirmation hearing.

[1] Although we were concerned by some of the language in the unpublished, unsigned summary orders, in each of those cases we believe the panel reached the right result. Furthermore, as mentioned above, there is no indication that Judge Sotomayor wrote any of the summary orders of concern.

[2] 67 F.Supp. 2d 228 (1998).

[3] 550 U.S.n> 618 (2007).

[4] 1996 WL 280802 (S.D.N.Y. 1996).

[5] 202 F.3d 560 (2d Cir. 2000).

[6] Id. at 569.

[7] Id. at 572.

[8] 2007 WL 4179358 (2d Cir. Nov. 27, 2007)

[9] 243 F.3d 610 (2d Cir. 2001).

[10] Id. at 614 (emphasis added).

[11] Id. at 627.

[12] 2006 WL 1116094 (2d Cir. Apr. 26, 2006).

[13] Id. at 197.

[14] Id. (emphasis added). Note that in several unpublished orders, and in opinions written by Judge Sotomayor, the standard for Title VII sexual harassment claims was identified as "severe and pervasive" rather than severe or pervasive.

[15] 833 F.Supp. 1089 (S.D.N.Y. 1993).

[16] Id. at 1095.

[17] See, e.g., Puerto Rican Legal Defense and Education Fund, Inc., Report of Program Activities, 1987 (describing employment discrimination case on behalf of individuals asserting that they were treated differently than non-Latino employers), available at http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/SoniaSotomayor-Letters.cfm.

[18] Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States Supreme Court, Jul. 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirm-text.html?_r=1&ref=politics.