Securing employment in tech in New York is not a piece of cake—congratulations on reaching this milestone. However, as you settle into your new role in the bustling metropolis, it’s crucial to understand your rights in the workplace. Title VII provides robust protection for employees.
This article will explore how these legal safeguards apply in a practical scenario. Specifically, we will examine a situation in which an employer makes derogatory remarks about a particular national group—even if those comments are not directly targeted at an individual employee—and analyze the implications under Title VII of the Civil Rights Act. Unfortunately for the employees, Title VII protection does not cover potential discriminatory statements of their employers.
Let’s imagine a situation
Orion Solutions, has sought a guidance on whether terminating one of their junior software developers, Ms. Delgado—a citizen of Genovia—might expose the company to claims of national origin discrimination or other adverse employment actions. Ms. Delgado, who joined Orion Solutions in June 2023, received formal reprimands for tardiness on four separate occasions between 2024 and 2025, while other employees did not face similar formal discipline. Orion Solutions is concerned that negative remarks made by the company’s Director, Mr. Harper, about Genovians may be interpreted as discriminatory intent if Ms. Delgado is terminated.
Orion Solutions hired Ms. Delgado—who holds a master’s degree in computer science from NYU—in June 2023, approximately six months after a serious diplomatic dispute arose between Genovia and Andalasia. The dispute garnered international attention and created widespread negative stereotypes. Ms. Delgado’s application materials clearly indicated her Genovian citizenship. Along with Ms. Delgado, three other junior developers were hired after Mr. Harper reviewed their candidacies based on recommendations from two senior engineers. Orion Solutions currently employs at least 18 people.
Company records show that Ms. Delgado arrived approximately 30 minutes late to work on four occasions: November 10, 2023; January 12, 2024; March 7, 2024; and April 19, 2024. While the Human Resources department acknowledges that other junior developers were occasionally late, they emphasize that Ms. Delgado’s tardiness was more frequent and more substantial. On April 23, 2024, she received a formal warning letter from the Senior Engineering Manager stating: “Any further violations of company policy or failure to meet our performance standards will result in disciplinary action.”
At least two documented incidents suggest that Mr. Harper expressed negative sentiments regarding Genovians. A Human Resources Incident Report dated February 14, 2024, alleges that Mr. Harper, in the presence of another Orion employee, stated, “Genovians are unscrupulous and have no place in our country,” while Ms. Delgado was within earshot. Mr. Harper later claimed he was unaware of her presence and intended to apologize. In a second instance reported by Global Tech Review on March 26, 2024, Mr. Harper publicly criticized Genovia’s approach to international trade and cultural exchange at a technology conference, remarking: “Until Genovia abandons these unethical and very common practices of stealing confidential information of tech companies in the US, we must seriously reconsider the inclusion of Genovians in our professional tech community.”
Performance reviews conducted in the summer of 2024 covered the period from June 19, 2023, through May 31, 2024. Ms. Delgado earned “Average” or “Above Average” ratings in four out of five categories and excelled in client-facing interactions, receiving positive user feedback. However, she received a “Below Average” rating in “Attendance & Punctuality” due to the four documented late arrivals. Another junior developer received similar overall ratings, with one “Below Average” rating in a different category—client feedback—but maintained at least “Average” in attendance. Although the Head of HR noted that all junior developers had likely been late at least once, Ms. Delgado was the only one formally reprimanded and the only one receiving a “Below Average” rating specifically for attendance.
Orion Solutions is now considering its next steps and the potential legal implications, including the risk of national origin discrimination claims, should they choose to terminate Ms. Delgado’s employment.
DISCUSSION
I. Ms. Delgado can likely survive a motion to dismiss for failure to state a claim.
Ms. Delgado would most likely survive a motion to dismiss. Mr. Harper’s negative comments regarding Genovians would support her claim of Title VII national origin discrimination, demonstrating that she is entitled to relief.
To survive a motion to dismiss, “an employment discrimination plaintiff need not plead a prima facie case of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). The standard set forth in Fed. R. Civ. P. 8(a) applies, which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Swierkiewicz, 534 U.S. at 511. When reviewing the complaint on a motion to dismiss in the Title VII context, the court accepts all factual allegations as true and draws all reasonable inferences in the plaintiff’s favour. See Buon v. Spindler, 65 F.4th 64, 76 (2d Cir. 2023); Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). Ms. Delgado must only plead facts that “give plausible support to a minimal inference of discriminatory motivation.” Littlejohn, 795 F.3d at 306.
A minimal inference of discriminatory intent, as per Littlejohn, arises from the following statements made by Mr. Harper: “We should not be welcoming Genovians in this country” in Global Tech Review and “Genovians are bloodthirsty war criminals” at work. These statements would satisfy the Swierkiewicz pleading standard in Title VII cases, which is lower than prima facie. Following Littlejohn and Buon, the court would accept Ms. Delgado’s factual allegations of discrimination as true and will draw all reasonable inferences in her favour.
Hence, Ms. Delgado is very likely to prove that Mr. Harper’s bias against Genovians, which is evident from his statements made at work and at the public technology conference, led to the inference of discrimination against her as a Genovian.
II. Ms. Delgado is unlikely to survive a motion for summary judgment.
Ms. Delgado is unlikely to survive a motion for summary judgment. Ms. Delgado is unlikely to establish a prima facie case of national origin discrimination. Stray remarks of Mr. Harper did not have a causal connection to the decision-making process of terminating Ms. Delgado’s employment due to her lateness and slowed down performance at the company.
The court would evaluate a motion for summary judgment in Title VII cases by assessing whether Ms. Delgado could establish a prima facie discrimination case. Sarmiento v. Queens Coll., CUNY, 153 F. App’x 21, 22 (2d Cir. 2005). “When only circumstantial evidence of discriminatory intent is available, courts use the McDonnell Douglas burden-shifting framework to assess whether the plaintiff has shown sufficient evidence of discrimination to survive summary judgment.” Bart v. Golub Corp., 96 F.4th 566, 569 (2d Cir. 2024). The McDonnell Douglas framework accepted in the Second Circuit courts is the following: plaintiff must “establish a prima facie case of discrimination by showing that (1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.” Bart, 566 F.4th at 570. In the context of discrimination, plaintiff “must provide more than conclusory allegations to resist a motion for summary judgment.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010). At the pleading stage, Ms. Delgado must only plead facts that “give plausible support to a minimal inference of discriminatory motivation.” Littlejohn, 795 F.3d at 311. Under the “minimal burden,” Ms. Delgado must allege sufficient allegations to “nudge[ ] [her] claims across the line from conceivable to plausible.” Vega v. Hempstead Union Free School District, 801 F.3d 72, 87 (2d Cir. 2015) (first alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
i. Ms. Delgado is unlikely to establish a prima facie case of discrimination based on her Genovian national origin.
First, as a Genovian, Ms. Delgado is a member of a protected class under Title VII.
Second, Ms. Delgado is qualified for her position. The term “qualified” under the McDonnell Douglas framework analyses the term “qualified” in terms of whether the plaintiff shows “satisfactory job performance at the time of the discharge”; whether job performance was satisfactory depends on the employer’s criteria for the performance of the job — not the standards that may seem reasonable to the jury or judge. Thornley v. Penton Pub., Inc., 104 F.3d 26 (2d Cir. 1997). Ms. Delgado is a graduate of NYU’s master’s degree in computer science and has also completed internships at NYC-based tech companies. She received positive feedback from all except one category in the performance review from June 3, 2024. To our knowledge, she has not received any discipline since a formal warning for her lateness on April 23, 2024. There is nothing to suggest that Ms. Delgado has not done her work unsatisfactorily unless there was any discipline against her after we received Orion Solutions’ request. Hence, Ms. Delgado is likely qualified for the job.
Third, termination is a materially adverse change in the terms and conditions of employment. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Hence, if Ms. Delgado is fired, she will suffer an adverse employment action.
Fourth, Ms. Delgado is unlikely to demonstrate an inference of discrimination referring to Mr. Harper’s derogatory comments about Genovians. “A four-factor test helps to determine whether the derogatory comments are discriminatory or are merely ‘stray remarks,’ which ‘generally do not constitute sufficient evidence to support a case of employment discrimination.’” Martin v. City Univ. of N.Y., No. 17-CV-6791, 2018 WL 6510805, at *9 (S.D.N.Y. Dec. 11, 2018) (quoting Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998)). The test considers “(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
A. Mr. Harper, Orion Solutions’ highest decision maker made a remark.
The first factor weighs in Ms. Delgado’s favour because the individual who made the remarks, Mr. Harper, is the company’s director and would ultimately approve the termination decision. Rose v. N.Y.C. Bd. of Educ., 257 F.3d 156 (2d Cir. 2001). (Finding discriminatory intent where the plaintiff’s immediate supervisor, who held substantial influence over the decision-making process, made comments to the plaintiff on multiple occasions).
B. Remarks are not proximate in time connected to the termination decision.
However, the second factor weighs against her, as the potential termination decision—if it occurs in November 2024—and Mr. Harper’s most recent comment about Genovians, made on March 26, 2024, are separated by seven months. “The more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.” Henry, 616 F.3d at 149. See, e.g. Mesias v. Cravath, Swaine & Moore LLP, 106 F. Supp. 3d 431, 438 (S.D.N.Y. 2015). (where one of the comments was made three months before the plaintiff’s termination). Remarks made by an employer to an employee six weeks before termination may be considered discriminatory. Fried v. LVI Servs., Inc., 500 F. App’x 39 (2d Cir. 2012). Remarks which occurred two months before termination are not probative of discriminatory motive. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137–38 (2d Cir. 2000). (citing cases in which the difference of “under two years” between hiring and firing provides strong inference against discrimination). The more distant remarks from the adverse employment action, the more likely they can be labelled as stray remarks. See, e.g. Kirsch v. Fleet St., Ltd., 148 F.3d 149, 162–63 (2d Cir. 1998). (The decision-maker’s age-related remarks made near the time of the plaintiff’s discharge cannot be dismissed as mere “stray” comments); Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 n.2 (2d Cir. 2001). (Identifying the remarks as stray where they were “unrelated to [the plaintiff’s] discharge”).
Per Friend and Singer, remarks made between one year and two months before termination are not indicative of discriminatory intent, and hence remarks made seven months before termination are unlikely to be classified as bearing a discriminatory intent. As in Kirsch, when remarks are distant from the termination, they are more likely to be deemed stray remarks. Hence, if Ms. Delgado is terminated in November 2024—seven months after Mr. Harper’s latest remark about Genovians—the court is unlikely to interpret the termination as closely tied in time to those remarks.
C. The content of the remarks demonstrates the discrimination bias of Mr. Harper towards Genovians.
The third factor weighs in Ms. Delgado’s favour, as the content of Mr. Harper’s remarks is discriminatory, directly targeting Genovians. A remark is probative of discrimination only if its content demonstrates a discriminatory state of mind. Henry v. Wyeth Pharms., Inc., 616 F.3d 134 (2d Cir. 2010). The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class. See, e.g., Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111 (2d Cir. 2007). (A court held that the supervisor’s remarks, considered with all the evidence, were legally sufficient to sustain a reasonable inference that he was motivated by age discrimination in terminating the employee.); Inguanzo v. Hous. & Servs., Inc., 621 F. App’x 91 (2d Cir. 2015). (Holing that a remark must, on its face, indicate a racially discriminatory attitude). The SCOTUS took the position that vague remarks can have multiple meanings depending on the context, and that meaning is not necessarily discriminatory. Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Deciding that the word “boy” alone, without a linked racial classification, is not evidence of discrimination.)
In the present case, Mr. Harper’s comments – referring to Genovians as “bloodthirsty war criminals” and suggesting that all Genovians are unwelcome in the United States – meet the standard in Inguanzo because both statements have a discriminatory attitude on their face. Unlike in Ash, where there is no racial link leading to the use of the word “boy,” the language of Mr. Harper e.g. “Genovians are bloodthirsty war criminals” had a strong national classification linking Genovians and their derogatory description. Cumulatively both remarks’ content makes it clear that Mr. Harper has a “discriminatory state of mind,” as in Henry, towards Genovians.
D. The context of the remarks suggests they were not related to the termination of Ms. Delgado.
The fourth factor weighs against Ms. Delgado, as the context of the remarks does not relate to the decision-making process of her termination. Circumstantial evidence must be tied directly to the alleged discriminatory animus. Kirsch v. Fleet St., Ltd., 148 F.3d 149, 162 (2d Cir. 1998). (When an employee, both individually and in the company of other employees, referred to comments about his age and stated in various ways that his employment was vulnerable because he might be replaced by a younger employee.) If the same actor who decided to hire decides to terminate the same employee, “it is difficult to impute to [him] an invidious motivation that would be inconsistent with the decision to hire.” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997).
Under the Title VII framework, single incidents, unless very serious, usually fail to raise inference of discrimination. See, e.g. Atterberry v. Ikon Office Solutions, Inc., No. 3:02-CV-1490, 2003 U.S. Dist. LEXIS 22316, at *8, 2003 WL 22937719 (D. Conn. Dec. 10, 2003). (When a discrimination claim relies only on two isolated statements without further evidence of racial bias, it is often insufficient to infer discriminatory intent); Rinsler v. Sony Pictures Entm’t, Inc., No. 02 Civ. 4096, 2003 U.S. Dist. LEXIS 14754, at *6, 2003 WL 22015434 (S.D.N.Y. Aug. 25, 2003). (A single, isolated remark, without additional evidence of discriminatory animus, does not support an inference of discrimination.) Orion Solutions may reply to Kirsch for the proposition that the relevance of discrimination-related remarks depends on showing that Mr. Harper “was motivated by assumptions or attitudes” toward Genovians, and the offensiveness of the remarks in this context is irrelevant. Tomassi, 478 F.3d at 116 (in which a manager “made frequent references to [the plaintiff’s] age,” suggested that “[the employee] related well to and ‘could understand the mentality of’” other senior citizens, and recommended the employee to retire “so that she could ‘take time off to rest.’”)
Mr. Harper made at least two negative comments about Genovians—one at a company event and another in a private conversation with an employee—neither of which were related to the decision-making process in terms of time, place, or context. Henry, 616 F.3d at 134. Two isolated incidents reveal Mr. Harper’s position about the diplomatic dispute involving Genovia but do not provide additional evidence of discriminatory animus at the workplace. Unlike the employee in Tomassi, Mr. Harper never targeted specifically Ms. Delgado with his statements about Genovians, nor, as a manager in Kirsch, Mr. Harper ever made any comments about Genovians in the work-related decision-making context. Furthermore, Mr. Harper is the same person who initiated and approved the hiring of Ms. Delgado. Similarly to an employer in Grady, Mr. Harper is the person who hired Ms. Delgado and would fire her. He hired Ms. Delgado six months after the diplomatic dispute involving Genovia began, being aware of her Genovian nationality. Considering all the above, his actions of both hiring and firing the same individual—despite his negative comments about Genovians—eliminate an inference of discriminatory intent in her dismissal.
E. Mr. Harper’s remarks are stray remarks.
Satisfying only two out of four required points in Henry’s test, Mr. Harper’s remarks about Genovians are stray remarks, and hence “do not constitute sufficient evidence to support a case of employment discrimination.” Martin, 2018 WL 6510805, at 9 quoting Danzer, 151 F.3d at 56. Courts call remarks “stray” seeking “to recognize that all comments pertaining to a protected class are not equally probative of discrimination” and to explain why “the evidence in the particular case” is not sufficient to establish discrimination. Tomassi, 478 F.3d at 111. Stray remarks of the decision maker, without more, “do not constitute sufficient evidence [to support] a case of employment discrimination” and “if it were otherwise, disparaged workers who had the fortuity of being in the class encompassed by the stray remark would have an instantaneous jury case on discrimination, regardless of the ground for their dismissal.” Danzer, 151 F.3d at 56.
On balance, the court is likely to conclude that Ms. Delgado cannot satisfy the prima facie case under the McDonnell Douglas burden-shifting framework as clarified in Bart, because she would fail to prove that the circumstances give rise to an inference of discrimination. Specifically, Ms. Delgado would fail to demonstrate two out of the four factors in the Henry test—namely, that Mr. Harper made the remarks about the termination decision and that the context in which he made the remarks was related to the decision-making process. Hence, following Danzer and Tomassi, the court will likely classify the remarks as “stray,” because they would lack evidence to establish a case of employment discrimination.
Thus, considering that Mr. Harper’s remarks are likely to be classified as stray remarks, Ms. Delgado is unlikely to establish a prima facie case of discrimination by failing to prove that the circumstances give rise to an inference of discrimination.
ii. Alternatively, Orion Solutions can likely articulate a legitimate, nondiscriminatory reason for firing Ms. Delgado due to repeated lateness.
Even if Ms. Delgado would be able to establish a prima facie case of discrimination, Orion Solutions could present a compelling argument for a legitimate, nondiscriminatory reason for Ms. Delgado’s termination, citing her lateness and a decline in client demand.
Once a plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse action. Bart, 96 F.4th at 566.
A non-discriminatory reason for the action of the defendant leads to the rebuttal of the discrimination presumption which “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993). Ensuring that employers “do not act in a discriminatory fashion” does not imply sitting “as a super-personnel department that reexamines an entity’s business decisions.” Delaney, 766 F.3d at 169. Whether the employee’s job performance was satisfactory depends on the employer’s criteria for the performance of the job — not the standards that may seem reasonable to the jury or judge. Thornley, 104 F.3d at 26. Inconsistent or shifting explanations for termination can be sufficient evidence of pretext. Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013) (Where the employer’s explanation for firing the employee shifted from lack of employee’s skill in the context of a new business focus to the employee’s poor performance and bad behavior).
Hence, Orion Solutions would have a strong case by demonstrating that the decline in client demand necessitated a reduction in staff, making the junior software developer—who had previously received a reprimand for lateness—the appropriate candidate for termination. Under Thornley, reexamination of Ms. Delgado’s job performance by the court or the jury is precluded unless Orion Solutions, in good faith, determined that her performance was unsatisfactory. Ms. Delgado received a “Below Average” rating on her Performance Review Form due to repeated instances of arriving over 30 minutes late to work. This pattern of lateness rendered her performance unsatisfactory to Orion Solutions, as evidenced by the Written Warning she received. Delaney forbids ensuring that Orion Solutions “do not act in a discriminatory fashion” by acting as a “super-personnel department that reexamines” the company’s “business decisions.” Hence, once Orion Solutions produces a legitimate reason for firing Ms. Delgado the discrimination presumption would disappear. St. Mary’s Honor Ctr., 509 U.S. at 510–11. Unlike employers in Kwan, Orion Solutions can strategically select at least two specific grounds for termination from the very beginning that it can maintain throughout litigation: Ms. Delgado’s poor performance and the company’s declining client demand, which necessitated a reduction in staff.
Therefore, Orion Solutions’ burden of providing a legitimate reason for terminating Ms. Delgado would be satisfied by demonstrating that the decline in client demand required staff reductions and that the junior software developer with a history of lateness became the primary candidate for dismissal.
iii. Ms. Delgado could unlikely present sufficient evidence for a jury to reasonably conclude that the decision to terminate her employment was motivated at least in part by her Genovian national origin.
Ms. Delgado would have a weak claim of demonstrating that Orion Solutions’ decision to fire her would have been motivated at least in part by her Genovian nationality.
Ms. Delgado may satisfy a third-stage burden by adducing evidence that, even if Orion Solutions had mixed motives for her termination, her Genovian nationality was at least one motivating factor in the employer’s adverse action. Bart, 96 F.4th at 576. First, she may argue that even if they had declined client demand, if Orion Solutions required them to cut staff, the decision to fire her was at least in part motivated by her nationality because 1) Orion Solutions HR acknowledged that all other junior developers were late to work at least once; 2) Both Ms. Delgado and another junior developer each received a “Below Average” rating in the Performance Review Form, although in different categories; 3) Since receiving a written warning for lateness on April 23, 2024, she was not subject to further discipline, and the absence of a substantive period of progressive disciplinary measures before her termination supports her claim that the company used her lateness as a pretext for dismissal. Slattery, 248 F.3d at 87. (Where the employer’s retaliation claim was unsuccessful because, before filing the EEOC charges, there was a documented pattern of gradual job actions over five months.)
Consequently, as discussed in Section II concerning Delaney and Thornley, the court is precluded from reexamining either the business judgments or the performance standards set by Orion Solutions, absent compelling evidence of bad faith in their formulation or application. Since Ms. Delgado would rely on the same evidence presented in her prima facie case, it remains insufficient to demonstrate that Orion Solutions’ decision to terminate her employment—as a junior software developer in a company facing decreased client demand—was motivated, even in part, by discrimination based on her national origin.
III. If Ms. Delgado survives a motion for summary judgment, she will have a weak case at trial, and Orion Solutions can likely establish an affirmative defense limiting her remedies.
i. Ms. Delgado is unlikely to succeed at trial.
Ms. Delgado is unlikely to have a strong case at trial. Her termination would follow a series of negative remarks made by Mr. Harper about Genovians, both in public and in the workplace, making it difficult to deny the suggestion that her Genovian nationality played a role in the decision to terminate her employment. These factors suggest that the Genovian nationality of Ms. Delgado would play a role in the termination decision.
ii. Potential remedies of Ms. Delgado under Title VII
First, under 42 U.S.C. 1981a, plaintiffs who prove intentional discrimination are entitled to compensatory and punitive damages, with limits based on the business size. The amount of punitive damages is subject to a schedule that places caps on the “sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section.” 42 U.S.C. § 1981a(b)(3). Punitive damages may be awarded if the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual” 42 U.S.C. § 1981a(b)). For employers with 15-100 employees, the limit of compensatory and punitive damages is $50,000. 42 U.S.C. § 1981b(a). Emotional pain and suffering damages, which are part of the compensatory damages, are available only for claims of intentional discrimination. 42 U.S.C. 1981a.
Second, Title VII litigants are entitled to an award of reasonable attorney’s fees and court expenses. 42 U.S.C. § 2000e-5(k). Furthermore, if Orion Solutions is a federal contractor, Executive Order 11246 prohibits federal contractors and federally assisted construction contractors from discriminating based on race, colour, religion, sex, sexual orientation, gender identity, or national origin. Exec. Order No. 11,246, 3 C.F.R. 339 (1964–1965), reprinted as amended in 42 U.S.C. § 2000e note. The Order is enforced by the Office of Federal Contract Compliance Programs, which can sanction employers who violate these non-discrimination requirements by withholding or cancelling federal contracts.
Third, Ms. Delgado is likely to receive a back pay and/or front pay remedy. Under Title VII, “back pay” is an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits. Civil Rights Act of 1964 § 706(g)(1), 42 U.S.C. § 2000e–5(g)(1) (2018). The purpose of a back pay award is to restore to the complainant the income he would have otherwise earned but for the discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418–19 (1975). “In Title VII cases, where the factfinder has found in a plaintiff’s favour that the defendant engaged in the prohibited discrimination, punitive damages may be awarded within the limits of the statutory caps if the defendant has been shown to have acted with a state of mind that makes punitive damages appropriate, regardless whether the plaintiff also receives an award of compensatory or nominal damages.” Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001). As the SCOTUS ruling, “front pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement,” and “in cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001). In Albemarle, the SCOTUS held: “Given a finding of unlawful discrimination, backpay should be denied only for reasons that, if applied generally, would not frustrate the central statutory purposes manifested by Congress in enacting Title VII of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 405–06 (1975). “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g). Title VII authorizes a court to grant pre-judgment interest on a back pay award. Clarke v. Frank, 960 F.2d 1146, 1153–54 (2d Cir. 1992).
Accordingly, Ms. Delgado may be eligible to recover compensatory and punitive remedies totaling up to $50,000, along with an award of reasonable attorneys’ fees and court costs, unless Orion Solutions successfully establishes one or more of its three defences outlined in Section III below. Ms. Delgado is likely to receive back pay and/or front pay remedies, which are separate remedies from the $50,000 cap on compensatory and punitive remedies. Following Cush-Crawford, the court may indeed award punitive damages even in the absence of compensatory or nominal damages. Emotional damages are available only if Ms. Delgado proves intentional discrimination. 42 U.S.C. 1981a.
Consistent with Albemarle, courts are inclined to grant back pay to advance Title VII’s anti-discrimination objectives. To accurately determine the sum of both back pay and front pay damages, we would require specifics on the relevant remuneration of Ms. Delgado. Prolonged litigation typically increases the front pay amount, as the compensatory period extends with delays in litigation. Given Ms. Delgado’s apparent unwillingness to return to her former position at Orion Solutions, reinstatement would be inappropriate. In line with Pollard, front pay would be awarded in lieu of reinstatement. However, as per 42 U.S.C. § 2000e–5(g), any front pay awarded would be reduced by her interim earnings; thus, if Ms. Delgado secured alternative employment post-termination, her earnings from that role would offset the front pay calculation. Following Cush-Crawford, the court may still award punitive damages without compensatory or nominal damages. Moreover, if Ms. Delgado prevails at trial, if Orion Solutions is a federal contractor, it may face disqualification from federal contracting opportunities.
iii. Orion Solutions may have a strong affirmative defense limiting remedies of Ms. Delgado
Among three available defences, Orion Solutions can have a strong claim by arguing that although there may have been some discriminatory element present, the decision to terminate Ms. Delgado would be ultimately based on legitimate, non-discriminatory reasons.
First, once a plaintiff shows that discrimination was a motivating factor in an adverse employment action, the burden shifts to the employer to prove that it would have made the same decision even without the discriminatory motive. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir. 1992). (Where age was a motivating factor, as the employer viewed the employee’s workforce as ageing, and included only younger employees in performance appraisals for those eligible to transfer, and excluded the plaintiff based on his age). “Courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.” Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). (Criticising the Court of Appeals in determining what it perceives to be the “best” hiring procedures).
Second, Orion Solutions may limit its liability by contending that it made good faith efforts to comply with Title VII by maintaining anti-discrimination policies and providing anti-discrimination training to its employees, Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545 (1999).
Third, Orion Solutions may try to limit Ms. Delgado’s remedies by invoking the after-acquired evidence doctrine. If an employer discovers evidence of employee misconduct after termination—evidence that would have led to termination on legitimate grounds—the employer can use this to limit liability for wrongful termination. McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995). See, e.g. Weber v. Tada, 589 F. App’x 563 (2d Cir. 2014). (Where the employee was terminated for cause due to mismanagement of specific transactions, including the unauthorized approval of a merger, the employer subsequently discovered additional evidence of misconduct post-termination.)
Fourth, Orion Solutions should claim that Ms. Delgado’s back pay damages should be reduced, or even eliminated because she failed to look for another job or otherwise mitigate her damages after her termination. Under Title VII, individuals who experience discrimination are required to take reasonable steps to mitigate their economic losses, “interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g)).
Consequently, in assessing the potential defences, the Tyler affirmative defence is probably the strongest defence for Orion Solutions: the financial distress, caused by the decreased client demand, required a staff cut, and Ms. Delgado, an employee with a history of discipline, is the primary candidate for the firing. Similarly to Furnco Constr. Corp., the court cannot assess the business decision of Orion Solutions to reduce the staff, as long as it is done in good faith. (It would still be beneficial to provide the court with the data on how the decreased client demand impacted its revenue). Furthermore, if Orion Solutions has indeed implemented non-discriminatory practices, and Mr. Harper issued an apology to Ms. Delgado as promised (see Human Resources Incident Report), this may further support Orion Solutions’ assertion of good faith efforts to comply with Title VII obligations. As a final measure, Orion Solutions may seek to limit potential damages to Ms. Delgado by invoking the “after-acquired evidence” doctrine, should it uncover any presently unknown misconduct by Ms. Delgado, such as mismanagement or mishandling of company resources in the Weber scenario. Also, Orion Solutions may limit the back pay to Ms. Delgado by proving she failed to mitigate her damages.
Thus, Orion Solutions can have a strong affirmative defence, a supportive Kolstad defence, especially if Mr. Harper apologized to Ms. Delgado, and a potential “after-acquired evidence” and mitigation of back pay defences.
VI. Conclusion
It appears that Orion Solutions has a defensible position should it decide to terminate Ms. Delgado’s employment. While she may initially survive a motion to dismiss, she is unlikely to establish a prima facie case of national origin discrimination under Title VII at the summary judgment phase. The remarks made by Mr. Harper, though inappropriate, are likely to be considered “stray remarks” that lack a sufficient nexus to the adverse employment action. They are remote in time from the potential termination and unrelated to the decision-making process, reducing their evidentiary weight in proving discriminatory intent.
Furthermore, Orion Solutions can articulate legitimate, nondiscriminatory reasons for terminating Ms. Delgado, namely her documented history of repeated lateness and the need to reduce staff due to declining client demand and budgetary constraints. The fact that other employees have not been similarly reprimanded does not necessarily indicate discrimination, as her lateness was more severe and frequent. Even if Ms. Delgado could show that her national origin was a motivating factor, the company can demonstrate that it would have made the same decision absent any discriminatory motive, thereby limiting potential liability. Furthermore, it may be useful to allow for a period of observation to determine whether Ms. Delgado engages in any additional conduct that would result in a further formal reprimand. If this happens, the Company might consider terminating her employment. To mitigate any potential Title VII claims, the decision to terminate Ms. Delgado should be made by an individual other than Mr. Harper—specifically someone who has not previously made any statements regarding Genovia. For example, this action could be taken during a time when Mr. Harper is on vacation or sick leave.
Thus, Orion Solutions appears well-positioned to defend against a Title VII claim. We recommend proceeding with caution, ensuring that all termination procedures are thoroughly documented and consistent with established policies. Additionally, reaffirming the company’s commitment to equal employment opportunity through training and policy reinforcement may further mitigate potential risks.
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