Jill Abramson was unceremoniously fired as executive editor of The New York Times the other week by publisher Arthur Sulzberger Jr. She was the first female to hold this powerful position at The Times and women throughout the country saw her as a pioneering trailblazer. While the newspaper initially only announced her termination, reports soon circulated that Abramson (a) discovered she earned less in pay and benefits than her predecessor, (b) hired an attorney to resolve pay inequity issues, and (c) was fired as a result.
For many women, the apt analogy to draw from Abramson’s termination is Lilly Ledbetter. Indeed, the headline on Los Angeles Times reporter Robin Abcarian’s recent article on Abramson’s firing was: “Is fired N.Y. Times editor Jill Abramson the new Lilly Ledbetter?”
Ledbetter, a retired supervisor for Goodyear Tire, discovered (after 20 years) that she had always been paid less than fellow male managers. She sued and lost before the U.S. Supreme Court because the lawsuit was not filed within the first 180 days after the first act of pay discrimination occurred. Congress then passed the Lilly Ledbetter Act, which restarts the 180-day statute of limitation clock each time a discriminatory paycheck is issued. The Ledbetter Act was the first legislation President Obama signed after taking office.
Abramson may have a Title VII — the federal law that prohibits workplace discrimination based on race, religion, gender or national origin — cause of action against The Times if she can show that her pay disparity was based on gender. Title VII also prohibits retaliation against an employee for reporting status-based discrimination. If Abramson hired a lawyer to resolve any pay inequities and was consequently fired, that would be the very type of retaliation that Title VII prohibits. Right? Not so fast.
The court’s 2013 ruling in University of Texas Southwestern Medical Center v. Nassar suggests Abramson could win under Ledbetter for pay discrimination but lose under Nassar for retaliation. If Abramson sues and can prove that gender was a “motivating factor” for the pay inequity, the newspaper is clearly liable.
However, in Nasser, the court applied a separate legal standard — mixed motive termination — to determine if a company was liable for retaliation in Title VII cases. The mixed motive standard is more employer-friendly, as Justice Ginsberg’s Nassar dissent suggests: “But a retaliation claim must meet a stricter standard. The claim will fail unless the complainant shows ‘but for’ causation, i.e., that the employer would not have taken the adverse employment action but for the design to retaliate.”
The Times now contends that Abramson was fired because of her poor newsroom management style. In an official statement, Editor Sulzberger stated: “During her tenure, I heard repeatedly from her newsroom colleagues, men and women, about a series of issues, including arbitrary decision-making, a failure to consult and bring colleagues with her, inadequate communication, and the public mistreatment of colleagues.” If true, these would be legitimate grounds for Abramson’s removal and insulates the paper from retaliation damages.
The mixed motive framework allows an employer to avoid liability if it can prove that, despite considering the protected characteristic (e.g., gender or religion), it would have still taken the adverse employment decision regardless. The monetary differences between the two standards are significant. For instance, if a plaintiff like Abramson could show that gender was the motivating factor for the pay inequity, The Times would be liable for back pay, etc. Likewise, if The Times could demonstrate they fired Abramson for poor management performance, the mixed motive framework shields the newspaper from more costly compensatory and punitive monetary damages.
What the court’s two-tiered approach to assessing discrimination and retaliation claims did was provide organizations with an incentive to fabricate or negatively embellish workplace practices as a predicate for adverse employment actions that minimize expensive Title VII challenges. What is unambiguous in Abramson’s case, for instance, is that while there may have been ongoing management problems, she was not fired until after she hired an attorney to discuss pay inequity issues.
Under Nasser, this incontrovertible — but heretofore illegal — sequence is totally discounted.
The court’s mixed-motive standard articulated in Nassar leaves employees like Abramson unprotected from employer retaliation and treats retaliation as a lesser type of Title VII violation. It is not.
Abcarian is correct that Abramson has a Ledbetter claim; however, because of the court’s ruling in Nassar, The New York Times’ boys club can easily live with that.
Reginald Shareef teaches public management at Radford University and Virginia Tech.