While this District of Columbia federal court opinion deals with several important employment law issues, of particular note is the Court’s explanation of: (1) the distinction between race discrimination and national origin discrimination claims; and (2) the test for “adverse employment actions” under Title VII and the D.C. Human Rights Act (DCHRA).
In this case, Mr. Ndondji sued his former employer under Section 1981, Title VII and the DCHRA alleging race discrimination, national origin discrimination, and retaliation. By way of background, the DCHRA and Title VII protect employees against race discrimination, national origin discrimination, and other forms of employment discrimination. Section 1981 applies to racial discrimination only.
In dismissing the employee’s race discrimination claims, the Court held that Mr. Ndondji had failed to allege facts to establish that alleged discrimination because he was from Angola (national origin) also meant that he had been discriminated against because of his race.
The Court dismissed most of Mr. Ndondji’s remaining claims on grounds that the claims were procedurally barred or that Mr. Ndondji had failed to identify any “adverse employment action” taken by his employer that could satisfy the test under Title VII or the District of Columbia Human Rights Act. This was true even though Mr. Ndonji had identified at least five different adverse actions that he believed violated the employment laws.
“Race Discrimination and National Origin Discrimination Claims are Ideologically Distinct”
As the Court explained, race and national origin are “ideologically distinct categories” of employment discrimination laws. Race discrimination relates to an employee’s “ancestry or ethnic characteristics.” National origin discrimination relates to where the employee was born. While an employee’s racial or ethnic characteristics may be linked to his national origin, a lawsuit alleging race discrimination must allege facts to show that the discrimination happened because of race, not just national origin.
In his EEOC charge and in his federal lawsuit, Mr. Ndondji’s claims centered on discrimination against “foreign nationals” and more specifically against Angolans. In dismissing his race discrimination claims, the Court noted that Mr. Ndondji never identified himself as a “Black Angolan,” nor did he explain why identifying himself as “Angolan” should be considered a “very distinct” ancestral or ethnic characteristic. It was also relevant to the Court’s analysis that Mr. Mr. Ndondji’s complaint failed to identify the race of the individuals who allegedly discriminated against him or the race of employees who were treated more favorably that Mr. Ndondji.
“Adverse Employment Actions”
Another notable aspect of this case is the litany of adverse actions alleged by the employee each of which failed to rise to the level of an “adverse employment action” for purposes of establishing a claim of employment discrimination under Title VII or the D.C. Human Rights Act.
As employment lawyers in the District of Columbia know, to prevail under Title VII or the DCHRA on a claim of employment discrimination, an employee must demonstrate that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. As the Court explained, in general, an adverse employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’”
Much time has been spent and ink spilled by courts and employment lawyers over what is or is not an adverse employment action for purposes of an employment discrimination lawsuit. This opinion is of note because, under the facts as alleged, not one of the following five alleged employer actions satisfied the test for an adverse employment action: 1) undesirable transfers or reassignments; (2) increased workload; (3) management reprimands; (4) employer spying and disciplinary write-ups; and (5) placement on a performance improvement plan (PIP).
Whether you represent employers or employees in employment discrimination lawsuits, if you practice employment law in the District of Columbia, you should read the opinion in its entirety and understand its implications.