A judge in Colorado was wrong to throw out the lawsuit of a Black woman who experienced pervasive racial and sexual misconduct in the workplace and retaliation from management when she complained, the federal appeals court based in Denver has ruled.
A three-judge panel of the U.S. Court of Appeals for the 10th Circuit on Tuesday partially reinstated the claims of La’Tonya Ford against her former employer, Jackson National Life Insurance Company.
Ford chose to sue the company on her own after the U.S. Equal Employment Opportunity Commission (EEOC) reached a 2019 settlement with Jackson National Life over its alleged practice of mistreating Black and female employees, as well as one white employee who refused to participate in the discrimination.
A trial judge previously sided with Jackson National Life in concluding Ford had not shown she was subjected to a hostile environment or retaliation, despite coworkers lewdly commenting about her body and using a particularly racist, sexist and demeaning phrase to call her.
The 10th Circuit instead felt a jury could find the company shut her out of promotional opportunities because of her reaction to workplace racism and sexism.
“This evidence erodes whatever explanation Jackson had for not promoting her because the evidence supports Ford’s assertion that she would never be promoted — no matter what she did,” wrote Judge Gregory A. Phillips in the Aug. 23 opinion.
A jury will now hear about Ford’s experiences with the company’s “bro culture” and “fraternity” atmosphere, as her lawyers characterized Jackson National Life’s Denver office.
In a key part of its decision, the appellate panel reversed the confusing and inaccurate reasoning of U.S. District Court Chief Judge Philip A. Brimmer, who believed offensive workplace comments at Jackson National Life, including the use of the N-word, did not amount to a hostile environment. Although Brimmer correctly noted such comments had to be either pervasive or severe — and even agreed the misconduct was pervasive — he nevertheless dismissed Ford’s claim.
“I really don’t understand what happened here,” observed Judge Scott M. Matheson Jr. after reading from Brimmer’s order aloud during oral arguments.
Soon after Ford’s 2007 transfer from Jackson National Life’s Atlanta office to Denver, she catalogued what she described as a series of boorish and offensive behavior. In early 2008, she said, she attended a work party at the home of one regional director, during which he held a vodka bottle near his groin and told Ford to “get on your knees” while thrusting the bottle at her.
Ford began to apply for higher positions within the office — 11 over the span of roughly one year. Although she often made the shortlist for the highly-paid external wholesaler positions, the company chose someone else each time.
“I don’t think she met what Jackson was looking for,” a company supervisor, testified in his deposition, alleging the company was looking for young white men to promote instead of Ford.
In late 2009, she submitted a complaint to the EEOC alleging improper treatment. Although Ford mentioned the company’s failure to promote her, she also claimed coworkers made racist comments, such as “watermelon is going to be on sale” after Barack Obama was elected president. One coworker also allegedly shared pornographic images and asked Ford about the size of her breasts.
Around the same time, James Bossert, a vice president, ordered Ford’s immediate supervisor to give her a negative evaluation. Bossert and others allegedly used a racist, sexist and demeaning phrase to call Ford and another female employee, as well called as the “resident street walkers.” The supervisor refused to give a poor evaluation to Ford, but Bossert allegedly told him to terminate both of the Black female workers. The supervisor again refused, and the company subsequently fired him.
In September 2010, Bossert emailed Gary Stone, the head of human resources, after Ford applied for another promotion.
“I firmly believe she would attempt to leverage that position into an opportunity to work against the company’s interest by furthering her complaint” about discrimination, Bossert wrote. Ford also alleged Bossert had responded to Ford’s repeated applications by saying she was “not going to be promoted” and it would be better to “figure out how to get rid of her.”
The following month, Ford accepted an external wholesaler job at a different company. The same day she provided her two weeks’ notice, a coworker threw a football at her inscribed with a lewd word for male genitalia. Ford contacted Stone, telling him the company had not “done anything to stop the discrimination. It’s only increased.”
She quit on the spot.
The EEOC sued Jackson National Life in 2016, ultimately settling for $20.5 million — the largest sum ever obtained by the EEOC’s Denver office at the time. Although the company did not admit to the allegations against it, the EEOC charged Jackson National Life with calling Black employees “lazy” and discriminating against them in pay and promotions. The agency also alleged one manager kissed female employees on the lips.
Ford was the only party to the EEOC’s legal action who decided to file her own lawsuit rather than taking the settlement money. She alleged violations of Title VII, the federal law prohibiting discrimination in employment, as well as a hostile work environment, retaliation for reporting alleged misconduct, and that Jackson National Life had forced her into quitting through its intolerable working conditions.
In March 2021, Brimmer concluded each of Ford’s claims could not succeed under the law. Bossert’s racial comments about Ford and his vow to “get rid of her” did not matter, Brimmer decided, because Bossert did not actually make the decisions on who to promote. Therefore, Ford did not experience discrimination that affected her employment.
Likewise, the judge did not fault Jackson National Life for hiring other people in lieu of Ford, and rejected Ford’s claim that managers turned over her sales territories to white or male coworkers as a discriminatory tactic.
As for Ford’s claims of a hostile work environment, Brimmer agreed the allegations showed racist or sexist comments at the company were pervasive, but he did not believe Ford directly heard managers calling her one label in particular or “street walker.” Although Brimmer recognized the offensiveness of an employee using the N-word, “there is no evidence that its utterance was directed with animus to Ms. Ford or any other Black employees,” he wrote.
Ford appealed to the 10th Circuit, arguing she had presented substantial evidence she was treated differently than her white and male coworkers. She also presented statistics showing zero Black women were promoted to external wholesalers between 2007 and 2017.
Jackson National Life emphasized Ford received a promotion and pay raise during her time at the company. It argued her allegations may have “shock value,” but she had not shown the “sporadic and insignificant” misconduct affected her own work experience.
The 10th Circuit’s panel agreed with the company in part. Phillips, in the panel’s opinion, wrote Ford had not presented any direct evidence of discrimination. Although Bossert — who did, in fact, have influence over promotions — allegedly used the sexist, racist and demeaning phrase to call Ford, Phillips believed such comments were not “evidence that he refused to promote her because of her race or gender.”
With Ford’s statistics showing an entire decade elapsed with zero promotions of Black women, Phillips waved aside the data for failing to identify how many Black women sought such promotions in the first place.
However, the 10th Circuit agreed a jury could conclude from the evidence that Jackson National Life failed to promote her as retaliation for her discrimination complaints to the EEOC and to human resources. Phillips cited Bossert’s email warning that Ford would use any promotion to further her complaint.
“A reasonable jury could view this evidence to find that Jackson’s true motivation for not promoting Ford was retaliatory in nature,” Phillips wrote.
The appellate panel also reversed Brimmer’s conclusion that Ford had not shown a hostile work environment. By Brimmer’s own finding that the racist and sexist behavior was pervasive, it was sufficient to support her claim, Phillips explained. He rejected Jackson National Life’s argument that Ford’s ability to excel despite the mistreatment was an indication the environment did not affect her employment.
“At bottom, a victim’s ability to succeed at her job in the face of harassment should not then mean that she has forfeited her right to bring a claim for hostile work environment,” Phillips said.
Because the panel reinstated Ford’s claim of a hostile work environment, it also revived her allegations that the adverse conditions forced her into quitting, known as a constructive discharge. The 10th Circuit directed Brimmer to evaluate afresh whether to allow Ford to proceed to trial with that claim, as well.
Attorneys for Ford and Jackson National Health did not immediately respond to a request for comment.
Felipe Bohnet-Gomez, an employment discrimination attorney who reviewed the ruling, said there was ample evidence of discrimination in his view, even though the 10th Circuit declined to infer that Ford’s race or sex affected her employment conditions.
“There’s no doubt that the decision shows the very high bar that plaintiffs face in proving discrimination claims, as compared to retaliation or hostile work environment claims,” he said.
Bonhet-Gomez described Ford’s case as an example of “Losers’ Rules,” the name of a theory from former federal judge Nancy Gertner that suggests court decisions on employment discrimination are largely derived from weaker sets of allegations. Companies facing strong allegations, in contrast, settle those cases, which never get the opportunity to become plaintiff-friendly caselaw.
The case is is Ford v. Jackson National Life Insurance Company et al.