By Greg Care

Employees who are litigating an employment discrimination claim can often feel as though they are fighting an uphill battle. Indeed, scholars who have studied outcomes in employment discrimination cases found that employment plaintiffs prevail at lower rates than plaintiffs in non-employment cases. For example, Professors Kevin Clermont and Stewart Schwab at Cornell Law School wrote that in employment discrimination cases between 1979 to 2006: in pre-trial adjudications, 3.59% of employment plaintiffs won vs. 21.05% of non-employment plaintiffs; and, at trial, 28.47% of employment plaintiffs won vs. 44.94% of non-employment plaintiffs.

Scholars have attributed this to a number of factors, including the sometimes daunting legal tests that courts impose on plaintiffs to prove that they experienced workplace discrimination. Among many are concepts like the “stray remark” defense, the “isolated incident” defense, or, in the context of medical residency, the often misapplied doctrine of academic deference that I have addressed from time to time.

But this post is not intended to wallow in despair, but rather, to celebrate some recent victories for medical residents who have staved off their programs’ efforts to dispose of the case before a jury can decide the issues at hand. And the handful described below are particularly satisfying because they overcame some of those daunting legal tests noted above.

For example, in Egbujo v. Nuvance Health Inc., a black male resident from Nigeria sued his program for terminating him on the basis of his race, national origin, and gender. As direct evidence of discrimination, Dr. Egbujo pointed to a statement his program director made shortly before he was fired that “Nigerian culture is typically misogynistic and chauvinistic.” Nuvance Health countered that the program director’s statement was a “stray remark,” meaning essentially that it was a solitary statement not indicative of the program director having an overall discriminatory mindset or intent. Thankfully, the trial court judge rejected this argument, finding that the comment was made by the person who decided to fire Dr. Egbujo shortly before the firing, and could be perceived by a jury as acting on a stereotype based on race and national origin (i.e., Nigerian) and gender (i.e., misogynistic and chauvinistic).

And in Corbett v. Texas Tech University Health Sciences Center, a female resident alleged sex discrimination, hostile workplace harassment, and retaliation related to her termination. She defeated her program’s attempt to end the case at summary judgment with respect to her hostile workplace claim despite a common defense tactic to claim that the harassment she endured was not severe or pervasive enough to create an intolerable environment. Often, employers will make this argument by pointing to a long list of cases where courts have dismissed a parade of horrible conduct as not being bad enough to create a hostile workplace. They will also claim that, like the “stray remark” defense, that biased words or actions, in small doses, are not sufficient to state a claim. Texas Tech employed at least this latter defense, but the court was persuaded by the plaintiff’s testimony that her program director “made comments such as not wanting women in the program and that they should stay as nurses” on “at least 10 or 15 occasions,” thereby creating an issue for the jury to determine. The court also rejected Texas Tech’s argument that the program director’s comments were not “simple teasing,” but instead “explicitly sent the message that the plaintiff was incompetent because of her sex.”

These wins don’t come as often as they should, and they deserve to be celebrated when they occur. Navigating the pitfalls and difficult legal tests imposed on employment discrimination plaintiffs is a challenge, and it pays to have competent counsel leading the way. This is especially true for such cases in the medical residency context.

If you have questions regarding employment discrimination, particularly in medical residency matters, please contact me at gpc@browngold.com or 410-962-1030 to assist with reviewing your particular circumstances.

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