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Whether union members can bring Title VII harassment claims against their union remains an open question in the Sixth Circuit after the court declined to answer it April 12 ( Phillips v. UAW Int’l , 2017 BL 119609, 6th Cir., No. 16-1832, 4/12/17 ).
The issue is a novel one in the Sixth Circuit, which covers federal courts in Kentucky, Michigan, Ohio and Tennessee. It arose in a racial harassment case brought by Tanganeka Phillips against the United Auto Workers. Phillips, who is black, was an employee at the MGM Grand Detroit Casino and served as chairwoman of UAW Local 7777.
Phillips’ case raises an “important legal question” that could affect a number of individuals and arise in other contexts involving union members, which is why the Equal Employment Opportunity Commission filed an amicus brief in the case, EEOC appellate attorney Susan R. Oxford told Bloomberg BNA April 12.
At least two other federal appeals courts, the Eighth and First circuits, have held, either expressly or implicitly, that Title VII of the 1964 Civil Rights Act permits harassment claims against unions in their capacity as a union and not only as an employer.
“No circuit has gone the other way,” Oxford said.
Here, the Sixth Circuit said it didn’t need to resolve the Title VII union issue to uphold the dismissal of Phillips’ harassment claim.
Phillips alleged, among other things, that two UAW International employees named black union reps they said they would fire, commented that there were “too many blacks” in the union, and separated member grievances by race and said they would dismiss the ones filed by black members.
Even if unions could be liable under Title VII for the harassment of its members, Phillips failed to show that the harassment she alleged was severe or pervasive enough to sustain a Title VII claim, the court said.
A “handful” of offensive instances over a two-year period isn’t actionable harassment, the court said.
One dissenting judge disagreed, however, arguing that the “Jim Crow-like conduct of the union agents” should have sent Phillips’ harassment claim to a jury.
Oxford of the EEOC said the issue of whether union members can bring a Title VII harassment claim against their unions can arise in a number of contexts, such as with union hiring halls.
If a hiring hall official harasses a female or minority union member looking for assignments and that harassment deters the member from seeking employment, that’s “pretty serious,” Oxford said.
The EEOC believes Congress intended for unions, in their capacity as unions and not just as employers, to be covered by Title VII’s harassment prohibitions, she said.
The issue likely “will come up again,” John J. Bursch of Bursch Law in Caledonia, Mich., told Bloomberg BNA April 12. Bursch is one of the attorneys who represented Phillips.
Although the Sixth Circuit declined to address the issue, Bursch said the judges seemed to “implicitly” agree that such claims are permissible.
For example, the opinion states that there “are good reasons to question” the lower court’s ruling that such claims aren’t available under Title VII. The Sixth Circuit pointed to decisions in other circuits as well as other statutory interpretations of Title VII’s text.
“Unfortunately, this will not be the case to push the issue to its final conclusion” in the Sixth Circuit, Bursch said.
The UAW declined to comment on the ruling.
Judge David McKeague wrote the majority opinion, joined by Judge Deborah L. Cook. Judge Gilbert S. Merritt Jr. dissented.
Nanette L. Cortese of Bingham Farms, Mich., also represented Phillips. Patrick J. Rorai of McKnight, Canzano, Smith, Radtke & Brault in Royal Oak, Mich., and Ava R. Barbour, UAW’s assistant general counsel, represented the union.
To contact the reporter on this story: Jay-Anne B. Casuga in Washington at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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