Can the Military Discriminate?

Intuitively, one would assume that the military cannot discriminate if a private employer could not under 42 U.S.C. § 2000e-2 (Title VII).  However, the definition of an employer at 42 U.S.C. § 2000e (b) does not apply as it excludes the United States. Another provision does make Title VII applicable to the U.S. government which is 42 U.S.C. § 2000e-16(a), Title VII's federal-sector provision.  That provision very broadly bars any discrimination by providing, “All personnel actions… shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16.  

Recently Judge Rosenbaum for the 11^th Circuit had the occasion to discuss the requirements of this statute and whether discrimination had occurred in Buckley v. Sec'y of the Army, 97 F.4th 784 (11th Cir. 2024). So, what is enough to show discriminatory conduct that should be presented to a jury?

Ms. Buckley, a black speech pathologist for an Army hospital who treated active-duty military members and their families, quit her job when she found out she was going to be fired. After filing repeated complaints with the EEOC, utilizing the same process as found in the private sector, she filed a lawsuit. The Federal District Court ruled against her and dismissed her case, so Ms. Buckley appealed to the 11^th Circuit. This Court affirmed on most counts but reversed the District Court Judge on the race-based, hostile-work-environment claim. As to this one claim, what made it different so that it was enough to present her case to a jury?

First, some background. All of the claims asserted by Ms. Buckley fell “into three major categories: her colleagues (1) diverted white patients from her care; (2) drummed up complaints about her to justify their patient-diversion scheme and other mistreatment; and (3) engaged in other race-based harassing conduct.” Id. at 787. The Court first noted how broad the statute was as it explained that the "free from any discrimination" language meant that race discrimination could not play any role in the way a federal sector employer made a decision. The end result is that a federal employer acts discriminatorily if it allows any race discrimination "to contribute to any personal action".  That is true even if the same decision would have been reached by not considering race. Thus, it is not necessary for the federal employee to show that race was the "but for" cause for the action taken. It is enough just to show discriminatory taint.  

Of course, if only a discriminatory taint is shown that does not demonstrate entitlement to all of the relief such as reinstatement, backpay and compensatory damages. Instead, the remedy must be tailored to the specific injury. Thus, the Court may be looking at “'injunctive or other forward-looking relief.' " Babb II, 992 F.3d at 1205 n.8 (quoting Babb I, 589 U.S. at 406, 140 S.Ct. 1168).” Buckley at 794 (11th Cir. 2024). On the other hand, if race is the "but for" reason for the termination, that is, race is the only reason the action was taken, then there may be a right to reinstatement, backpay, compensatory damages and other forms of relief to address the wrongful action taken. To analyze this, the same McDonnell Douglas framework used in the private sector is also used in the federal sector.

Here the race-based hostile work environment claim was reversed, and Ms. Buckley will get a jury trial on that claim. Ms. Buckley demonstrated the following factors which were enough here:

1.      The race allegations involved a protected class.

2.      The harassment she received was unwelcome. Here she did not appreciate the diversion of patients and then the manufactured complaints about her.

3.      There was enough evidence for a reasonable jury to believe that the harassment was race-based since black patients were not diverted from Ms. Buckley, nor were they encouraged to complain.  Then also there was a comment about her being an "angry black woman" and a comment asking whether her children had the same father which “dredged up a racial stereotype that Black women have children with multiple partners.” Id. at 796.

4.      The harassment was severe and pervasive enough that it altered the conditions of her employment and created an abusive working environment. To evaluate that, the Court had to look at the following:

A.        How often the conduct occurred;

B.         How severe the conduct was;

C.        Whether the conduct was threatening or humiliating or merely offensive; and

D.         Whether the conduct interfered with job performance.

Here there was enough because the conduct occurred over several years, there was evidence that only white patients were diverted, only white patients were solicited for complaints, and that Ms. Buckley was upset and on "pins and needles" while she worked, for fear of further complaints.

Ms. Buckley's other claims did not pass muster, including a "traditional retaliation claim" and the retaliatory hostile work environment claim, which requires proof of “retaliation for an employee's participation in protected activity under Title VII”. Id. at 799.

Ultimately, Ms. Buckley was not able to make out a discriminatory termination claim as she made the mistake of providing HIPAA protected patient health information to the EEOC to support her claims. There were repeated instances of this conduct which ultimately furnished grounds for termination.