But there are other differences to consider. While Title VII prohibits “disparate impact” discrimination, Section 1981 does not. If the Yarbrough Plaintiffs’ claim was that a particular policy of Glow Networks that was neutral on its face had a disparate impact on African or African American employees, that claim would fail under Section 1981, which prohibits “intentional” discrimination.” To assert a claim under Section 1981, plaintiffs need not file a complaint with the Equal Employment Opportunity Commission (“EEOC”). The statute of limitations for a Section 1981 claim is four years. And, of course, Section 1981 only applies to race or ethnicity, while Title VII applies to a wider range of protected classes. Finally, a plaintiff cannot assert a Section 1981 claim even if the employer has fewer than fifteen employees, as is required to state a Title VII claim.
Yarbrough represents a lesson in choosing the proper cause of action in a race discrimination case. The longer statute of limitations and the ability to proceed directly to court without filing a claim with the EEOC are attractive elements, but such a plaintiff will give up disparate impact claims. Under 42 U.S.C. § 1981a(a), compensatory and punitive damages are not available for disparate impact claims. For such cases, a plaintiff could carefully plead both disparate impact claims under Title VII and intentional discrimination claims under Section 1981. The Yarbrough Plaintiffs chose to proceed under Section 1981 alone, allowing them to avoid statutory damages caps, or any argument that Title VII, rather than Section 1981, applied to their claims.
There are lessons for employers as well. Although the Title VII statute of limitations for filing with the EEOC may have passed, a tardy plaintiff may still have a remedy under Section 1981. Further, while there are technical and substantive evidentiary burdens for plaintiffs in race discrimination cases, there are cases where the level of conduct and the employer’s refusal to address it will outrage a jury. The Yarbrough plaintiffs alleged a pattern of continued conduct and retaliation, even after complaints from employees and their managers, that clearly impacted the jury’s assessment of damages. Disregard of employee complaints is a recipe for a bad outcome, even where the disregard was not intentional. Retaliation cases continue to be the most frequently asserted cases before the EEOC, and are available even if the discrimination claims fail as a matter of law. Employers must ensure meaningful complaint and remediation procedures, and that such complaints are taken seriously. Employers should conduct investigations in a professional manner, led by an uninterested party. Plaintiffs’ response to summary judgment indicates that a human resources manager at Glow Networks claimed to have investigated the claims “internally” but that no details were provided. One can imagine a different outcome of this case if Glow Networks had conducted an investigation and documented the results.
The result in Yarbrough v. Glow Networks is instructive for plaintiffs and employers alike. For plaintiffs, the choice of remedy can have a powerful impact on the outcome of a case. The verdict is likewise a reminder that an employer cannot just rely on short statutes of limitations and damages caps to limit exposure, and that the best course is to establish and maintain a meaningful complaint and remediation procedure.
Patricia Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. Patricia Collins can be contacted at 215.230.7500 ext. 126.