It is every L&E attorney’s dream: You are deposing a Title VII plaintiff and it’s starting to get late. One by one, the plaintiff’s allegations of discrimination start to lose their luster; the seams are beginning to show. Plaintiff is sweating now. Plaintiff’s attorney is sweating more. You decide to go for it: “Plaintiff, do you believe that your supervisor—the one who terminated you—was racist/sexist/xenophobic?” Plaintiff responds: “No.”
Touchdown. A complete and unambiguous waiver of plaintiff’s discrimination claim. Summary judgment for the employer and the case dismissed. Right?
A recent case from the Eleventh Circuit examined these types of testimonial waivers in discrimination cases and potentially narrowed their reach. There, the plaintiff advanced claims of discriminatory termination, hostile work environment, and retaliation under Title VII and 42 U.S.C. § 1981. While the Court affirmed the dismissal of the employee’s discriminatory termination claim on other grounds, it nonetheless rejected the employer’s argument that the plaintiff had waived the claim during her deposition. At her deposition, the plaintiff directly conceded that she did not think that her supervisor “was being racial” when she fired her.
The Court distinguished this statement with the scenario presented in a 2012 Eleventh Circuit decision (a case on which the employer relied), where the plaintiff testified at her deposition that her termination did not “have anything to do with her race,” a much broader proposition. There, the plaintiff had “unequivocally conceded” her discrimination claim, while here, in the Court’s view, the fact that the employee’s supervisor was not “being racial” did not foreclose a finding of some other race-based motivation. The Court elaborated that “race-based termination is always actionable, even if motivated by factors other than the supervisor’s personal racism.”
The upshot is that a plaintiff’s belief that the supervisor or other decision makers responsible for her termination is not personally racist does not preclude the possibility that the employer may still be impermissibly motivated by race. Employers should be mindful of this distinction and not automatically assume they can avoid exposure where the supervisor does not personally harbor racist feelings.
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