Court doesn’t buy employer’s defense for not complying with race bias settlement

Dive Brief:

• A Georgia school district could not invoke qualified immunity in response to allegations that it refused to make changes pursuant to a racial discrimination settlement with a former faculty member, the 11th U.S. Circuit Court of Appeals held Wednesday.
• The plaintiff in Foster v. Echols County School District claimed multiple instances of race-based discrimination, leading to two separate settlements in 2011 and 2020. As part of the latter, the district agreed to amend its recruitment and hiring practices, make those practices publicly available and develop a plan to recruit more Black applicants to vacant positions, among other terms.
• Approximately one year after the agreement had been signed, the plaintiff sued, alleging that the district violated federal and state civil rights laws by falling short of the agreement. The district attempted to invoke a “qualified immunity” defense, but a district court rejected this theory and the 11th Circuit upheld on appeal.

Dive Insight:

Discrimination settlements often task employers with implementing policy changes in addition to providing relief to the plaintiff. In Foster, the school district agreed to make several such changes in response to the plaintiff’s filing of a discrimination charge with the U.S. Equal Employment Opportunity Commission.

Specifically, the district agreed to alter its hiring policies and publish a new recruitment plan. The plaintiff then filed a records request in 2021 for documents that would demonstrate the district’s compliance. The district’s response allegedly included its most recently adopted hiring plan at that time — from 2013. A later 2022 revision failed to meet the demands of the settlement agreement, the plaintiff claimed.

The district’s qualified immunity defense centered on supposed uncertainty as to whether the 1866 Civil Rights Act’s contract clause permits government officials to be held personally liable. The officials in Foster argued that qualified immunity applied because of this ambiguity, “even in the face of plainly illegal conduct,” as explained by the 11th Circuit.

But the court disagreed. “An official’s understanding about whether he may be held liable is irrelevant,” it said. “Qualified immunity asks whether officials were on notice that their alleged conduct was unlawful — not whether they could be sued for it.”

The court noted that the purpose of qualified immunity is to grant public officials “breathing room to make reasonable but mistaken judgments about open legal questions,” quoting a 2011 decision of the U.S. Supreme Court. For the defense to apply, courts look to whether a reasonable official would have understood the alleged conduct to be unlawful.

The 11th Circuit explored this concept less than two years ago in a case involving a public university’s HR professional. In that case, the court determined that the professional was entitled to qualified immunity because the challenged act in the case — the closing of an employee’s grievance filing — was not objectively unreasonable.