Know Your Rights
Discrimination Claim Based On Spouse's Race

By JAMES A. BROWN

Employment discrimination lawsuits typically involve a plaintiff who has been adversely treated because of some immutable trait, i.e. his or her age, race, national origin, gender, etc. As I have repeatedly counseled, if you allege employment discrimination you must identify the specific immutable trait (or "protected class") on which your claim is predicated.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

This past spring, the Second Circuit Court of Appeals in Holcomb v. Iona College recognized a discrimination claim based not on the plaintiff's race but rather his spouse's race. The decision is significant because the appeals court had never previously recognized an "association discrimination" claim based on Title VII of the Civil Rights Act of 1964 which prohibits discrimination based on gender, race, national origin and religion.

Association Discrimination

"Association discrimination" is a legal theory more commonly linked to disability discrimination. The Americans with Disabilities Act ("ADA") expressly prohibits an employer from "excluding or otherwise denying equal jobs or benefits to" an individual based on a relationship or association with a disabled person. For example, it is an ADA violation to terminate (or refuse to hire) someone based on an "unfounded assumption" that the employee will need time off to care for a disabled person.

In Holcomb, the Second Circuit applied "association discrimination" theory to a claim of racial discrimination. The plaintiff was an assistant basketball coach who had worked at the college for nearly 10 years. In 2004, the college contended that the team was performing poorly and terminated the plaintiff's employment. In response, the plaintiff (who is white) claimed the college was unlawfully motivated by his marriage to an African-American woman.

The appeals court in Holcomb found sufficient evidence of unlawful discrimination to deny the college's summary judgment motion which sought to dismiss the lawsuit. By denying the college's motion, the appeals court permitted a jury to hear the case.

Evidence of Racism

In response to the college's motion, the plaintiff had cited evidence that a college vice president stated, in part, with regard to the plaintiff's wedding: "[Y]ou're really going to marry that Aunt Jemima?" There was also evidence that the college's athletic director had barred local high school students (the majority of whom were African-American) from an alumni event. And there was more. The college also barred the plaintiff's wife (as well as the African-American girlfriend of another coach) from the same alumni event.

While the college argued that the evidence of discrimination fell short because the athletic director and college vice president were not the ones who terminated the plaintiff's employment, the appeals court disagreed. According to the court, it was sufficient that the two persons with the impermissible bias had a "meaningful role" in the process.

The appeals court also rejected the college's defense that it could not have engaged in discrimination because it hired an African-American assistant coach after terminating the plaintiff's employment. The court reasoned that a jury might conclude that the college hired the new assistant coach to conceal its prior discrimination or that the college was not motivated by racism per se, but rather disapproval of interracial relationships.

Novel Interpretation

In denying the college's summary judgment motion, the appeals court held, for the first time, that an employer may violate Title VII if it takes an adverse action based on an employee's relationship with a person of another race. In so doing, the court was careful to rule that the discrimination was still based on the employee's own race. As the court explained, when an employee is subjected to an adverse action because an employer disapproves of interracial association, that employee is suffering because of his own race.

It is important to note that the court used the term "interracial association" rather than "interracial marriage." Thus, the court did not limit "association discrimination" claims to a plaintiff's relationship with his or her spouse. Under Holcomb, a plaintiff should also have a Title VII claim based on his or her association with a person of another religion or national origin. Employees have just benefitted from an expanded interpretation of "protected class" which now includes an examination of an employee's relationship with another.