McKenna Employment Bulletin – June 2012
Individual Supervisors Are Liable Under 42 Usc Section 1981
In Smith v. Bray, No. 11-1935, May 24, 2012 (7th Cir. 2012), the plaintiff alleged a Section 1981 action against a human resources official at the employer alleging that the official conspired with others to retaliate against the plaintiff by getting others to terminate the plaintiff for having complained of racial harassment. The Court acknowledged that even a subordinate employee may potentially be liable individually under Section 1981 for retaliatory conduct. However, the plaintiff failed to present sufficient evidence to establish that his complaint of discrimination motivated the human resources official to seek the plaintiff’s termination. The plaintiff’s only evidence of retaliation consisted of threats of termination made by others and the human resources official’s refusal to return the plaintiff’s telephone calls or to otherwise speak with the plaintiff.
Denial Of Non-Contractual Benefits Can Be An Adverse Employment Action
In Gerner v. County of Chesterfield, Va., 2012 WL 887597 (4th Cir. 2012), a female employee filed a Title VII suit against her employer for alleged disparate treatment on the basis of sex. The employee alleged that the employer purportedly offered her a less favorable severance package than the purported “sweetheart” severance packages afforded to male employees holding similar positions. The lower court dismissed the employee’s claim on the basis that it failed to allege an adverse employment action because the severance offer was not a contractual entitlement and was made after the employee was terminated. However, the U.S. Court of Appeals reversed the dismissal and held that discriminatory denial of non-contractual employment benefits constitutes an adverse employment action. The Court further held that Title VII protects both current and former employees.
