Employer’s Mere Awareness of Policy’s “Adverse Consequences” on Protected Group Does Not Give Rise to Discrimination Claim

The Ninth Circuit Court of Appeals recently addressed the issue of what facts are necessary to show an employer has discriminatory intent. In Wood v. City of San Diego, a retired female employee of the City of San Diego, alleged that the surviving spouse benefit in the City’s retirement system violated Title VII because the benefit discriminated on the basis of sex. 

The employee alleged that because the City generally paid more to married retirees who selected the surviving spouse benefit than it did to single retirees, and female retirees were more likely to be single, then there was unlawfully disparate impact. The employee also alleged a disparate treatment claim, based on the theory that the City knew male employees would generally gain more from the surviving spouse benefit, the City did not rectify the imbalance.

The Ninth Circuit upheld the trial court’s dismissal of the disparate treatment claim because the employee had failed to allege discriminatory intent.  The Ninth Circuit explained: “It is insufficient for a plaintiff alleging discrimination under the disparate treatment theory to show the employer was merely aware of the adverse consequences the policy would have on protected group.”

The Ninth Circuit also upheld the trial court’s dismissal of the disparate impact claim because the employee could not show “injury-in-fact,” which meant the employee lacked standing.  When the employee retired, she received a monthly pension amount as well as the option of a refund of survivor contributions.  There was no way for the court to determine whether, had the employee had been married, if her spouse would have outlived her, or by how much.  If she had been married and outlived her spouse, the survivor benefit would have no value.

The Wood decision can be accessed at the following address: http://www.ca9.uscourts.gov/datastore/opinions/2012/05/09/10-56826.pdf

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