The Seventh Circuit issues a divided opinion on the issue of "qualified individual" under the ADA, in a case concerning a nursing-home beautician. While unanimously agreeing to reverse summary judgment, the panel splits over the question of how to analyze whether pushing the residents' wheelchairs was properly classified as an "essential function."
The crafters of the 1974 ERISA statute intended participants to have the broadest range of access to federal court, including a special venue statute and national service of process. Under ERISA, venue is proper in "the district where the plan is administered, where the breach took place, or where defendant resides or may be found." 29 U.S.C. § 1132(e)(2). But a 2-1 decision in the Sixth Circuit - four decades after ERISA's passage - threatens that accomplishment, holding that a plan choice-of-forum clause that limited venue to a single district in Iowa five hundred miles from the plan participant could be enforced.
On Monday, the Supreme Court declined to hear any of the seven same-sex marriage cases that were pending before it. Procedurally speaking, this means that the seven appellate decisions striking down bans on same-sex marriage will stand.
The Eighth Circuit, en banc (9-3), today affirms summary judgment in an ADEA case. The surprise is not so much in the outcome as the vote split, which is not along ordinary lines. In second case, a panel reverses (in part) summary judgment on another ADEA claim, finding that pointed inquiries into an employee's Medicare eligibility and health-plan costs were probative evidence of age bias.
Lawyers who represent employees in the state and local public sector know that, for sex discrimination and harassment claims, they can bring suit under both Title VII of the Civil Rights Act of 1964 and Section 1983 of the Civil Rights Act of 1871. The former law was passed specifically to combat sex discrimination, while the latter attacks discriminatory practices by way of the Fourteenth Amendment Equal Protection Clause. Yet while section 1983 has some specific advantages to employees - there is no administrative prerequisite to file a charge with the EEOC, the limitations period is longer, there is individual liability, and legal relief is uncapped - there are also some distinct disadvantages, such as overcoming qualified immunity. So, in this case, the Second Circuit holds that in contrast to Title VII, a plaintiff must show that each individual defendant was personally motivated by gender in order to establish liability. On this basis, the panel mostly reverses denial of qualified immunity for several individual police officers charged with sex harassment and discrimination.
In his newest Executive Order, Fair Pay and Safe Workplaces, President Obama makes access to justice for workers a priority of his administration. Leading in the forum in which he has control-federal employees and companies that contract with the federal government-this is the third pro-employee Order the President has signed this year. On July 21, 2014, President Obama banned federal contractors from discriminating against gay workers. Then, in January 2014, President Obama raised the minimum wage for new federal contractors to $10.10 an hour.
A continuing, unresolved issue under Title VII is what constitutes discrimination in "terms, conditions, or privileges of employment." Most courts require proof of a "materally adverse employment action," which can include - by way of example - being placed on an onerous schedule or subjected to unhealthful conditions. But the Fifth Circuit has long required proof of a more exacting "ultimate" employment decision, e.g., "hiring, firing, demoting, promoting, granting leave, and compensating." In yesterday's 2-1 decision, though, a panel of the court holds that a material diminution of duties not otherwise accompanied by a change in title or pay may be actionable.
The Fifth Circuit addresses a seldom-litigated question under Title VII, 42 U.S.C. § 2000e(j): whether plaintiffs in religious reasonable-accommodation cases must prove both that they hold sincere ("bona fide") religious convictions, and that the activities to be accommodated constitute true religious beliefs. The panel splits 2-1, with the majority reversing summary judgment for the employer and holding that even a non-religious observance (here, a community service event for the plaintiff's church) might require accommodation.
So far, there has been relatively little case law on the question of when, under Title I of the Americans with Disabilities Act, an employer's medical examination may be deemed job-related and consistent with business necessity under the provisions of 42 U.S.C. § 12112(d)(4)(A). The Sixth Circuit - nearly two years to the day after its first opinion in this long-running case - remands the claim a second time for a jury trial on this issue.
In the past eighteen months, there have been favorable decisions from the Second and Sixth Circuits about unconventional work scheduling as a reasonable accommodation. The D.C. Circuit joins those courts with a new Rehabilitation Act decision holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.