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Legg v. Ulster County, No. 14-3636 (2d Cir. Apr. 26, 2016); Cooper v. N.Y. State Dep't of Labor, No. 15-3392 (2d Cir. Apr. 26, 2016)

Today's Two-fer Tuesday in the Second Circuit: a pregnancy discrimination case is returned for retrial, in light of the intervening decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015); and a panel holds that a state human-resource professional's opposition to changes in the EEO complaint-reporting procedures is not a "protected activity" under Title VII.

Szeinbach v. The Ohio State Univ., No. 15-3016 (6th Cir. Apr. 20, 2016)

The Sixth Circuit holds, in an opinion that potentially expands remedies for Title VII claimants, that a back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. Nonetheless, the court holds that the employee in this particular case failed to prove that she suffered such damages.

EEOC v. Rite Way Service, Inc., No. 15-60380 (5th Cir. Apr. 8, 2016)

The Fifth Circuit affirms that an employee interviewed as part of a company's internal investigation into sex harassment complaints is protected under the "opposition" prong of the anti-retaliation section of Title VII. Yet it also holds that the witness must manifest at least a "reasonable belief" that what she witnessed rose to a violation of that act.

U.S. WOMEN'S SOCCER TEAM DEMANDS EQUAL PAY FOR EQUAL WORK

Last week, the U.S. women's national soccer team (USWNT), represented by five of its top players, filed a complaint of wage discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that U.S. Soccer players on the men's national team are paid as much as four times that of their female counterparts on the women's national team.

Graziadio v. Culinary Institute of America, et al., No. 15-888-cv (2d Cir. Mar. 17, 2016)

The Second Circuit, in reviving plaintiff Cathleen Graziadio's Family and Medical Leave Act (FMLA) interference and retaliation claims, reminds employers that they share responsibility with employees to comply with FMLA requirements, and cannot place the burden entirely on the employee or, as the panel here admonished, fail to cooperate with the employee altogether. 

The panel also explicitly adopts two important standards for family responsibilities-related claims.  First, the panel formally adopts the five-part framework long used in the Second Circuit for proving interference claims.  The panel also adopts a framework for analyzing associational discrimination claims under the Americans with Disabilities Act (ADA), and in doing so, adopts the Seventh Circuit's narrow view on what constitutes actionable conduct.

Santana-Diaz v. Metropolitan Life Insurance Co., No. 15-1273 (1st Cir. Mar. 14, 2016); Arizona ex rel. Horne v. The Geo Group, No. 13-16081 (9th Cir. Mar. 14, 2016)

Here are two employment cases about second-chances. A plan participant who filed an ERISA claim too late under a contractual limitations period is rescued by a decision that the plan violated its duty by not telling the participant about the shortened deadline. The EEOC wins a second opportunity to advance claims on behalf of a class of female victims of harassment, in the wake of Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015).

Expansions in LGBTQ Employees' Rights and Benefits

Major shifts in gender equality jurisprudence in recent years have led to expanded rights and benefits for LGBTQ employees.  The Section devoted two panels at the Section Conference to the rapidly developing areas of anti-discrimination law, employee benefits, and sexual orientation and gender identity in the workplace.

The scope of civil rights protections for LGBTQ employees under Title VII generated the most discussion in the wake of the Supreme Court's decision in Obergefell v. Hodges (2015) and the EEOC's decision in Baldwin v. Foxx (EEOC 2015).  In Obergefell, the Court held that the 14th Amendment guarantees all couples, straight or gay, the fundamental right to marry under a due process analysis, although Justice Kennedy noted that the ruling derived in part from the Equal Protection clause.

Oregon Restaurant & Lodging Assoc. v. U.S. Department of Labor, No. 13-35765 (9th Cir. Feb. 23, 2016); Joseph Cesarz et al. v. Wynn Las Vegas LLC et al., No. 14-15243 (9th Cir. Feb. 23, 2016) (consolidated opinion)

This post was cowritten by Riley Moyer [of the San Francisco office of Outten & Golden LLP].

Summary:  In this week's decision, the Ninth Circuit clarifies that the FLSA prohibits all employers from mixing ("pooling") tips of "customarily tipped" and "non-customary tipped" employees, regardless of whether or not the employer takes a "Tip Credit."  This recognizes that a 2010 Ninth Circuit case, Cumbie v. Woody Woo, has been superseded by an intervening Department of Labor ("DOL") regulation.

Quigg v. Thomas County School District, No. 14-14530 (11th Cir. Feb. 22, 2016)

The Eleventh Circuit adds its voice to the lower-court movement to abandon the McDonnell Douglas v. Green, 411 U.S. 792 (1973), proof framework in discrimination cases - such as this one - where the plaintiff presents circumstantial evidence that bias was a motivating factor in an adverse decision. This could be the case that allows the Supreme Court to revisit this long-standing precedent.

Village of Freeport v. Barrella, No. 14-2270 (2d Cir. Feb. 16, 2016)

Is there Title VII "race" discrimination if the two competing candidates identify as "white"? The Second Circuit holds that this scenario may state a claim where one of the candidates is deemed to be of "Hispanic" ethnicity.

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