Outside the Protected Class? Associative Discrimination Theory in Title VII
Title VII of the 1964 Civil Rights Act aims to prevent employers from discriminating against an employee based on his or her race, color, religion, sex, or national origin, but not sexual orientation. While the legislative history of Title VII does not clearly indicate that sexual orientation was a prominent consideration at the time of Title VII’s passage, this omission has come under increasing scrutiny in the post-“Don’t Ask Don’t Tell” era. As sexual orientation is not a protected class (under Title VII), employees who feel they have suffered an adverse employment action due to their sexual orientation have sought vindication through the application of the associative discrimination theory. The availability of this action in either the Fourth Circuit or the North Carolina state courts has not been tested, but a recent Eastern District of North Carolina decision, Sampson v. Leonard, provides insight into how such a claim could be brought in North Carolina. 7
Associative discrimination theory for Title VII posits that a plaintiff may pursue a claim of discrimination based on an association with a member of a protected class. 8 One such example would involve a white male in a relationship with a black female. When the male’s supervisor finds out, the male is fired. In this scenario, the male is not fired for being white or male, but along the lines of Price-Waterhouse’s prohibition against sex serotyping, because he does not conform to the expectations of how white males should act or whom they should date.
One of the first cases to address associative discrimination theory was the 1986 Federal District Court case Ripp v. Dobbs Houses, Inc., 9 where the theory was initially rejected. In Ripp, a white employee claimed he was discharged because of his association with black employees. The Court decided the plaintiff’s claim was not cognizable under Title VII. The Court arrived at this conclusion by narrowly reading the text of Title VII, which prohibits discriminatory action against an individual “because of such individual’s race.” 42 U.S.C. § 2000e-2(a) (emphasis added).
Subsequently, a plethora of other district and circuit courts have allowed a Title VII case to proceed under an associative discrimination theory. 10 One notable and commonly cited Second Circuit case is Holcomb v. Iona College where the court recognized the theory explaining, “[t]he reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” 11
Recently, the Eastern District of North Carolina in Sampson v. Leonard accepted, without deciding on , the associative discrimination theory for a wrongful discharge for violation of public policy claim pursuant to N.C.G.S. § 143–422.2. 12 Sampson worked from July 2003 to July 2007 for Hospira as a chemistry lab technician in its chemical plant in Rocky Mount. In December 2006, Sampson had a brief intimate relationship with Clark, a fellow technician in the Rocky Mount plant. As a result of their relationship, Clark became pregnant with Sampson’s child. Sampson is Native American and Clark is African–American. Sampson was subsequently discharged from Hospira, apparently because of this relationship.
As Sampson had no direct evidence that he was discharged due to his interracial relationship with Clark, his claim proceeded under the burden-shifting framework established in McDonnell Douglas. On a motion for summary judgment, Hospira argued that Sampson was not a protected class member and that therefore, had failed to establish a prima facie case. Since the question of the validity of the associative discrimination theory is unresolved in North Carolina, the court had to predict how a North Carolina court would proceed. The court assumed Sampson was a member of a protected class, although Sampson ultimately lost because he could not rebut the employer’s proffered reasons for termination.
Even if this cause of action were recognized by North Carolina courts, there is sentiment that this approach is no substitute for statutorily expanding the scope of Title VII to encompass sexual orientation. Daniel Moose, a third year student at Campbell Law recounts, “I am personally aware of discrimination based on orientation in the workplace . . . it’s my thought that if I’ve experienced it, so have others.”
Moose further noted that the idea of protected classes with the passage of the Civil Rights Act of 1964 helped the country move past discriminatory distractions and focus on work. “We have moved—collectively, and for the most part—in huge strides to where [members of a protected class] are treated equally,” although cautioning, “we still have a way to go.”
Whether or not Congress chooses to further amend Title VII to include sexual orientation as a protected class remains to be seen. In the meantime, ambiguity exists as to whether the associative discrimination theory applies on the basis of sexual orientation in North Carolina, and this issue may have to be addressed by our courts in the absence of legislative action.