Alaska Employment Law

Jump to Comments

Friday’s opinion by Judge Stephen Reinhardt in Davis v. Team Electric Co. addresses many of the problems confronted by women trying to enter, and to stay in the workforce on construction sites.  As you might guess from the identity of the opinion’s author, the results are almost uniformly favorable to the female plaintiff.

Christie Davis worked as the sole female journeyman electrician for Team Electric on a Portland, Oregon,  construction site from May 2000 until Team laid her off, as part of a larger reduction, in September 2001.  Davis filed state and federal charges of disparate treatment and HWE discrimination and retaliation in May of 2001, and then discrimination for discharge after her layoff.  (The employer was unionized, but the opinion reveals nothing about whether Davis filed charges against the union.)

Davis represented herself pro se (the Magistrate Judge twice denied motions for appointment of counsel).  The company won on summary judgment.  On appeal, the 9th Circuit appointed Paul Eaglin of Fairbanks to represent her.  Eaglin did a great job. 

The 9th Circuit reversed most of the trial court rulings on the merits. 

In short, the Court a) noted that this Circuit still hasn’t decided whether an employee must show “specific” and “substantial” evidence of pretext, or something less; b) confirmed that  “[A] a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude sumary judgment for the employer.” c) held that “the absence of female supervisors is circumstantial evidence of pretext”; and d) held that the fact that a woman was teamed up with a male employee doing the same tasks does not establish that the woman did not receive disproportionately unfavorable work assignments.

Perhaps most importantly, with regard to lay offs, the Court held:

It is not enough for an employer to simply state that it decided to lay off a group of workers.  To meet its burden, the employer must explain why it selected the plaintiff in particular for the layoff.  To impose a lesser standard would allow an employer with only the slightest amount of guile to get away with retaliation simply by laying off a victim of discrimination at the same time it laid off other workers for legitimate reasons.

As to temporal proximity, the panel said:

We have held that “causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.”  . . .  We have held that an eighteen-month gap is too long to support a finding of causation based on timing alone.  . . . We have found a prima facie case of causation when termination occurred fifty-nine days after EEOC hearings . . . and when adverse employment actions were taken more than two months after the employee filed an administrative complaint, and more than a month and a half after the employer’s investigation ended.  . . . Davis’ termination was sufficiently proximate, as she was terminated on September 7, 2001, three days after the EEOC dismissed her claim. 

Compare this to Judge Burgess’ holding (same day) on proximity in Wade v. Ilisagvik College, discussed below. 

Davis v. Team Electric Co., 520 F.3d 1080 (9th Cir. Mar. 28, 2008)

Alaskan women in the trades

The Alaska Supreme Court addressed construction site sex discrimination in Ellison v. UA Local 375, 118 P.3d 1070 (Alaska 2005), though there with regard to the union’s responsibility to a female member who alleged discrimination.  The Court held that

under AS 18.80.220, a union may only be liable on account of an employer’s discriminatory harassment when (1) the harassed worker asks the union to take action within its representative capacity, such as by filing a grievance, and (2) the union decides not to pursue the complaint for discriminatory reasons. 

Id. at 1076. 

Note that union member discrimination claims against unions under state law are further complicated by the possibility, maybe the probability, that the NLRA may preempt such state law claims.  That issue was briefed in Ellison, but not resolved by the Supreme Court.  Disclosure: I represented the union in Ellison.

Further commentary: Paul Mollica at Daily Developments in EEO Law (note the new address) discusses the court’s various holdings.