Is providing discriminatory working conditions or facilities based on race or sex an unlawful employment practice?

QUESTIONS PRESENTED FOR REVIEW Under Title VII, 42 U.S.C. § 2000e-2, an employer who discriminates on compensation, terms, conditions, or privileges of employment because of race, religion, sex, or national origin engages in an unlawful employment practice. The Eighth Circuit held contrary to its precedent and the holdings of the Sixth and Eleventh Circuits that conditions of employment have nothing to do with facilities. Assuming discriminatory facilities are lawful, an employee who opposes her employer’s provision of discriminatory facilities based on race or sex is shielded from retaliation pursuant to Title VII, 42 U.S.C. § 2000e-3, if she believes she is opposing an unlawful employment practice. Unlike the majority of its sister Circuits, contrary to Eighth Circuit precedent, and this Court’s perspective in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 58, 126 S.Ct. 2405, 2414 (2006), the Eighth Circuit ruled that the test of the employee’s belief is subjective, determined by the employee’s testimony regarding her belief. QUESTIONS PRESENTED A. Is providing undisputedly inferior working conditions or facilities based on the race or sex of its employees an unlawful employment practice? B. If providing inferior working conditions based on race or sex violates Title VII, is the employer only prohibited from discriminating concerning facilities affecting the core functions of the job, or are comparable privileges and benefits such as tools, equipment, breakrooms, and offices also within the scope of Title VII? li QUESTIONS PRESENTED FOR REVIEW — Continued C. Is opposing a policy that requires an employee to discriminate against third parties, as a term of the employment contract, a protected activity? D. Ifan employee believes she is opposing an unlawful employment practice, is the test of her belief a subjective or an objective standard?