By Tori Harrison, of Waller Lansden Dortch & Davis, LLP
In deciding an appeal from New York’s Northern District Court, the Second Circuit made two notable rulings that could have a striking impact on employment discrimination jurisprudence. First, the Circuit Court articulated a heightened causation standard for claims asserted under 42 U.S.C. § 1983. Second, the Circuit Court left the door open to potential claims for sexual orientation discrimination in public employment after the recent Supreme Court decisions in Obergefell and Windsor.
In June 2008, Elizabeth Naumovski began her employment at Binghamton University as an Assistant Women’s Basketball Coach. During her first season with the program, rumors began circulating that Naumovski was engaged in an “inappropriate relationship” with a gay, female student-athlete. Nicole Scholl, the head coach of the women’s basketball team, did not believe the rumors and suggested that the rumors were not based on the existence of a suggested sexual relationship, but perceived favoritism. The rumors escalated during the following season and ultimately reached Binghamton’s Senior Associate Athletic Director, James Norris. When Naumovski met with Norris to address the rumors, Naumovski alleges that Norris told her that “your problem is that you’re a single female in your mid-30s.” Norris denies making this comment, but the comment remains a prominent fact in the lawsuit.
On March 10, 2010, “Norris informed Naumovski that she was being fired ‘for performance reasons,’ but offered her the opportunity to resign ‘voluntarily.’” Naumovski resigned and subsequently filed her claims for employment discrimination. After exhausting her administrative remedies, Naumovski sued Scholl, Norris, Binghamton, SUNY, and two anonymous individuals in federal court, alleging claims for “discrimination based on her sex, her perceived sexual orientation, and her national origin in violation of Title VII, Title IX, the Equal Protection Clause and the First Amendment of the United States Constitution (as enforceable through § 1983), the New York State Constitution, and the New York State Human Rights Law.
The specific issue before the Second Circuit on this appeal centers on the District Court’s implicit denial of Scholl and Norris’s claims for qualified immunity as to Naumovski’s two remaining § 1983 claims for disparate treatment on account of sex, and subjection to a hostile work environment on account of sex. To address the qualified immunity claim, the Second Circuit first needed to clarify the contours of clearly established law before it could determine whether the Defendants’ conduct violated such law. In doing so, the panel primarily focused on the different standards for § 1983 and Title VII claims, and rejected the District Court’s interpretation of the two standards as “essentially the same.” The panel further explained that § 1983 and Title VII claims differ in important ways, but expanded upon these differences by clarifying that § 1983 requires a higher causation standard than Title VII.
The panel focused heavily on the distinction concerning causation in its opinion, and explained in detail that while a Title VII plaintiff need only show that “sex (or another protected characteristic) was a motivating factor for any employment practice,” “the § 1983 causation standard requires that plaintiffs “must establish that the defendant’s discriminatory intent was a ‘but-for’ cause of the adverse employment action or the hostile work environment.”
While the Court’s ruling focused heavily on the appropriate standard for § 1983 claims, the opinion also made an important finding regarding Naumovski’s claim for discrimination based on sexual orientation. While the panel dismissed Naumovski’s claim because the conduct at issue occurred prior to the landmark Supreme Court rulings in United States v. Windsor and Obergefell v. Hodges, it left the door open for these types of claims to be actionable in the wake of these decisions.
In its opinion, the unanimous Second Circuit panel clearly defined the different standards for § 1983 and Title VII claims, and in doing so, articulated the heightened causation standard for § 1983 claims. Further, while the Court skirted around a definitive ruling on the sexual orientation discrimination claim, it did leave open the possibility for these claims to proceed under evolving Supreme Court precedent.
