Jump to Navigation

Employment Law Blog

Thompson v. City of Waco, Tex., No. 13-50718 (5th Cir. Sept. 3, 2014)

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. 

Davis v. Fort Bend Cty., No. 13-20610 (5th Cir. Aug. 26, 2014)

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.

Kroll v. White Lake Ambulance, No. 13-1774 (6th Cir. Aug. 19, 2014)

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.

Solomon v. Vilsack, No. 12-5123 (D.C. Cir. Aug. 15, 2014)

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.

Gross v. Sun Life Assurance Co. of Canada, No. 12-1175 (1st Cir. Aug. 14, 2014)

The U.S. Supreme Court in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), held that ERISA plan participants who must sue to obtain review of a benefit denial can be awarded attorney's fees under 29 U.S.C. § 1132(g)(1) by achieving "some degree of success on the merits," regardless of whether they ultimately win the whole case. The First Circuit today, in a 2-1 decision, issues the first precedential appellate-level opinion in holding that fees may be awarded even if the participants' entire victory is having their cases remanded back to the plan administrator for reweighing under the correct standard of review.

Malin v. Hospira, Inc., No. 13-2433 (7th Cir. Aug. 7, 2014)

There's a problem with so many employment-discrimination cases being dismissed by judges before a jury trial on summary judgment, i.e., a legal ruling that there are no genuine disputes of material fact for a jury to decide. For judges to carry out their role, they and their chambers must get on top of a mass of written facts, often hundreds or thousands of pages, and trust the parties to brief them honestly. In a Title VII and FMLA case decided today, the Seventh Circuit - reversing summary judgment - sends notice that defense counsel risk their credibility when they file unfounded motions.

Tatum v. RJR Investment Committee, No. 13-1360 (4th Cir. Aug. 4, 2014)

A hidden difficulty many American employees face is that a huge amount of their retirement income - an estimated $4 trillion - is in 401(k) plans, too many of which are managed by individuals indifferent to (or not competent to advance) the interests of future retirees. In this Fourth Circuit case, the district court found the fiduciaries of the retirement plan in breach of their duty of prudence by their arguably poor timing in liquidating a company-stock fund when its shares were in a trough, without performing a reasonable investigation, but excused them from paying any relief to the participants. The court holds (2-1) that the judge erred in insulating the fiduciaries from remedying that breach, concluding that the fiduciaries had the burden of proving that a prudent fiduciary would have made the same decision.

President Obama signs LGBT Nondiscrimination Executive Order

Signaling his continued support for both workers rights and LGBT individuals, President Obama recently signed an executive order that protects federal government workers, as well as workers for federal contractors, from discrimination on the basis of sexual orientation and gender identity.  While we await a federal law that protects all LGBT workers, this significant step towards equality comes at a time where leadership on this issue is sorely needed.

Green v. Donahoe, No. 13-1096 (10th Cir. July 28, 2014)

The Tenth Circuit addresses two issues of interest to those who regularly represent employees, especially those in the federal sector. First, the panel holds - in a widening circuit split - that a claim of constructive discharge under Title VII accrues not at the time that an employee quits, but when the last act of alleged discrimination by the employer occurs. In the federal sector, this is significant because of the narrow 45-day window for complaining about discrimination. Second, the panel holds that a threatened suspension without pay may, even if it does not materialize, constitute a "materially adverse action" for a Title VII claim of retaliation.

Orton-Bell v. State of Indiana, No. 13-1235 (7th Cir. July 21, 2014)

This case presents the nice question of whether an employer violated Title VII by punishing a woman more harshly than her male counterpart for the same misconduct, i.e., jointly carrying on a workplace affair. The Seventh Circuit says that there is enough of a genuine dispute of facts to reverse summary judgment and remand for further discovery. The court also remands a claim of sex harassment, which included the extraordinary complaint that the employer tolerated employees having after-hours sexual liaisons on the plaintiff's office desk (which the panel found, notably, was not a form of sex harassment).

subscribe to this blog's feed subscribe to this blog's feed

tell us about your case

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close
facebook twitter linked in

our office locations

New York Office
3 Park Avenue, 29th Floor
New York, NY 10016
Phone: 212-245-1000
Map and Directions

Chicago Office 
161 N. Clark Street, Suite 4700
Chicago, IL 60601
Phone: 312-809-7010
Map and Directions

San Francisco Office
One Embarcadero Center, 38th Floor
San Francisco, CA 94111
Phone: 415-638-8800
Map and Directions