The Volokh Conspiracy
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From the decision Thursday by Judge Katherine Polk Failla (S.D.N.Y.) in Maron v. Legal Aid Society:
On July 23, 2020, Plaintiff Maud Maron, a career public defender at Defendant The Legal Aid Society ("LAS"), penned an op-ed in the New York Post entitled "Racial Obsessions Make it Impossible for NYC Schools to Treat Parents, Kids As People" (the "Op-Ed"). Speaking simultaneously in her capacities as a mother, public defender, elected public school council member, and then-candidate for New York City Council, Plaintiff recounted in the Op-Ed her experience at an anti-bias training run by the New York City Department of Education ("DOE").
She decried what she perceived as DOE's endorsement of the "chilling doctrine called anti-racism," which she asserted "insists on defining everyone by race, invites discrimination[,] and divides all thought and behavior along a racial axis." Responding to the Op-Ed, the Black Attorneys of Legal Aid ("BALA"), a caucus of Defendant Association of Legal Aid Attorneys ("ALAA," or the "Union," and together with LAS, "Defendants"), issued a public statement denouncing Plaintiff's "racist" views and characterizing her "as a classic example of what 21st century racism looks like." LAS followed with its own statement, which similarly rebuked Plaintiff's "racist perspective" and questioned the ability of any public defender to "effectively and fully" engage in public interest work if they do not embrace an anti-racist mandate….
The court considered Plaintiff's Title VII claim "that the public statements issued by LAS and BALA criticized Plaintiff and her ability to work as a public defender because of her race":
[T]he LAS Statement … expressly [ties] white attorneys'—specifically Plaintiff's—ability to do the work of a public defender to whether they accept the anti-racist credo and assume the attendant responsibilities. Poignantly, the LAS Statement imposes additional obligations on white public defenders "merely because" they are white:
To be anti-racist, to dismantle racism here at LAS, and in every organization, we must all recognize that white supremacy drives every policy and law, every opportunity and every advantage. For those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are part of the problem. You cannot stop there, you must actively work to dismantle the systems that lend you privilege and oppress BIPOC people. To push against the deep work needed to change and be threatened by the conversation, is the exact definition of white fragility…. White people have a duty to no longer be silent and a responsibility to confront these systems of oppression and to shun all forms of white supremacy in our society, in our workplaces, and within our hearts and minds.
Espousing a similar view, the BALA Statement doubted Plaintiff's "commitment to zealous representation of poor people of color," in part because she falls into the category of "white practitioners [who believe] that being public defenders preclude[s] them from being racist." BALA characterized Plaintiff as "one of many charlatans who took this job not out of a desire to make a difference, but for purposes of self-imaging," and made clear that public defenders "cannot oppose anti-racism and effectively represent Black and Brown people."
The context and content of Defendants' statements, including in particular LAS's stated expectation that white public defenders must shoulder additional responsibilities based solely on their race, convinces the Court that Plaintiff has adequately alleged that the statements were motivated, at least in part, by her race. That these statements also rebuke Plaintiff for the views she articulated in the Op-Ed does not strip the statements of their racial overtones….
Given Defendants' avowed disappointment that Plaintiff was a white person who failed to accept that her race and job title obligated her to adhere to their understanding of anti-racism—as expressed in explicit racial lines in their statements—the Court concludes that Plaintiff has adequately alleged that the BALA and LAS Statements were motivated, at least in part, by her race.
But the court concluded that the defendants' actions, even if based on plaintiff's race, weren't sufficient to create a hostile work environment for her (her objection here was just to the statements, not to any tangible employment action, such as firing or demotion):
To adequately plead a claim against an employer for hostile work environment under Title VII, a plaintiff must plausibly allege that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." This test has both objective and subjective elements: "the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive." …
"As a general rule, incidents must be more than 'episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness," although "even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." … "[E]xcessive criticism and rudeness do not constitute a hostile work environment." …
The court began by concluding that two other incidents that plaintiff pointed to didn't contribute to a hostile environment, and then rejected the claim that the BALA and LAS statements sufficed to create such an environment:
Plaintiff contends that LAS worked a transformation of her workplace when it issued a public statement calling into question her ability to perform her responsibilities as a public defender. Plaintiff posits that following the publication of the LAS Statement, her clients—a majority of whom are individuals of color—cannot be expected to trust that she will provide them adequate representation when her employer has publicly disavowed her ability to do so….
As critical of Plaintiff as the LAS Statement is, it uses no racial epithets, reveals no personally sensitive or private information, and levies no salacious allegations, any of which would enhance the statement's severity for the purpose of the Title VII analysis.
To be sure, the content of the statement makes clear that LAS harbors doubts concerning Plaintiff's ability to represent individuals of color as a public defender, and the Court has already determined that LAS's decision to release this statement was motivated in part by Plaintiff's race. While the Court views the statement as sufficiently implicating Plaintiff's race to bring it within the ambit of the federal civil rights laws, the statement is more than just a missive targeting Plaintiff. It stakes out LAS's stance on an issue of public importance; articulates the organization's mission vis-à-vis the constituencies it works to support; calls on the organization as a whole for failing to realize this mission; and commits the organization to doing more to address issues of systemic racism in the future. Even accepting Plaintiff's characterization that the statement constituted an unfair attack and mischaracterized her views, it does not meet the requisite standard for a Title VII hostile work environment claim….
[T]he fact that Plaintiff injected herself into the public discourse on a matter of public importance implicating race, and identified herself as a public defender in doing so, provides important context to LAS's decision to release the statement in the first place. In other words, the statements were not gratuitous, out-of-the blue, racialized attacks on Plaintiff, but rather represented LAS's attempt to distance itself from the position articulated in the Op-Ed….
The Court's conclusion that Plaintiff has not alleged a hostile work environment under Title VII is not intended to trivialize the harsh criticism that Plaintiff encountered during the 24-hour period in July 2020 when BALA and LAS released the statements at issue. But harsh criticism, even that Plaintiff alleges was unwarranted, does not itself make out a claim for hostile work environment. Here, the totality of the circumstances—namely, the fact that the statements were in response to a highly politicized Op-Ed authored by Plaintiff, that Plaintiff was on sabbatical campaigning for City Council at the time the statements were issued, and that LAS sought to stake out a broader position on a matter of public policy, beyond merely criticizing Plaintiff—counsel against finding that LAS's retweet of the BALA Statement and publication of its own statement rise to the level of severity or pervasiveness to state a hostile work environment under Title VII….
Plaintiff also claimed that LAS constructively discharged her, arguing that "[w]here an employer proclaims to the world that you are not capable of performing your job because you are a white woman who holds beliefs the employer opposes white employees from having, it is so intolerable that a reasonable person would feel compelled to resign." But the court rejected that. First,
Fatal to Plaintiff's constructive discharge claim is her failure to allege that she has actually resigned from LAS. Instead, by Plaintiff's own allegations, she remains on sabbatical with an open offer to return to LAS.
And beyond that,
Even if Plaintiff had alleged her resignation from LAS, her allegations would still fail to state a claim for constructive discharge. Constructive discharge is generally "regarded as an aggravated case of hostile work environment." "Here, because plaintiff has not stated a hostile work environment claim … a fortiori [she] has not stated a claim for constructive discharge."
Plaintiff's argument that a reasonable person might not want to return to a workplace following the release of a statement such as that released by LAS is well taken by the Court. But, letting a constructive discharge claim survive on these allegations runs the risk of diminishing the applicable standard, which is saved for cases in which "the abusive working environment became so intolerable that [plaintiff's] resignation qualified as a fitting response." As described above, the circumstances of this case convince the Court that Plaintiff was not exposed to a hostile environment, especially given the fact that she was on sabbatical doing work unconnected to her role as a public defender at the time the statements at issue were released. Therefore, the Court dismisses Plaintiff's claim for constructive discharge.