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Ninth Circuit Court Holds that Forcing Employees to File Grievances to Redress Disparate Treatment Constitutes Unlawful Discrimination

Volume 3, Issue 11
August 4, 2004

ysco Food Services of Arizona, Inc., a food wholesale distribution business, is one of the most recent employers to win an employment discrimination case before a federal trial court only to have the decision reversed by the U.S. Court of Appeals for the Ninth Circuit. The case involved an employee, Sergio Fonseca, who alleged various Sysco supervisors discriminated against him based on his Hispanic race and Guatemalan ethnicity.

Of particular concern to employers is the Ninth Circuit Court's holding that Fonseca experienced an actionable "adverse employment action" when the company knowingly assigned overtime to white employees instead of Fonseca, who had more seniority, and forced Fonseca to use a grievance procedure to remedy the improper overtime assignments. Based on the facts alleged in the case, in less than a one year period, there were between ten and thirteen times when a supervisor assigned a white employee to work overtime when the overtime hours should have been offered to Fonseca. Because the company would not voluntarily remedy these errors, Fonseca filed and won repeated grievances regarding the improper assignment of overtime work.

In reversing the trial court, the Ninth Circuit Court emphasized that it defines what constitutes an "adverse employment action", (actions sufficient to violate federal fair employment and civil rights laws) very broadly. The court also stressed that such unlawful employment actions include conduct that negatively affects an employee's compensation. Thus, the court ruled that adverse employment action occurs when an employer knows its employees are entitled to certain opportunities, but forces employees of a certain race to use a grievance procedure to obtain them. It also found the fact that an employee successfully grieves an adverse employment action does not preclude an employee from pursuing a claim of discrimination.

This case is an important reminder to employers of the liberal approach taken by the Ninth Circuit Court in determining what types of employment actions can violate federal law and the need to carefully train and monitor supervisors to make sure they do not engage in such conduct.

Fonseca v. Sysco Food Servs. of Az., Inc., No. 03-15193, 2004 WL 1487364 (9th Cir. July 6, 2004)

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.