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.
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).
The Second Circuit reaffirms the general understanding in Title VII law that an employer that tells a minority employee seeking a transfer that he won't "fit in" to a mostly non-minority workplace raises an inference of discrimination.
The U.S. Supreme Court in recent terms has encouraged federal courts to weed out supposedly meritless civil claims by use of the Rule 12(b)(6) motion to dismiss for failure to state a claim. Yet the Seventh Circuit reaffirms this week that this method is often not appropriate for Title VII discrimination and retaliation claims. The panel vacates and remands dismissal of a Title VII complaint, holding that the district court was too quick to demand facts and evidence in support of the class before discovery commenced. The court also reverses a decision holding that some of the claims were allegedly preempted by the Railway Labor Act.
A Florida federal jury holds a union and county liable for retaliation against two employees for complaining about race discrimination. The Union argues on appeal that retaliation -- in the form of exposing the plaintiffs' names, complaint and projected cost of defense -- is constitutionally-protected free speech. The Eleventh Circuit affirms the verdict, nevertheless, holding that misleading and coercive speech amounting to a "call for reprisal" is not protected under the First Amendment.
Racial coding continues in the workplace today, the jotting of surreptitious entries on job applications to avoid hiring disfavored minorities. And in this case, even when the evidence was staring the trial judge in the face - plaintiff's unsuccessful application said "black" in handwriting, and no witness from the employer offered an explanation why - the judge still found that there was an innocent explanation for it. The Seventh Circuit tosses a bench verdict in favor of the employer, decreeing that the trial judge must reconsider evidence that clearly favored the employee's claim of race discrimination.
Courts sometimes get confused about who, in our American system of civil justice, gets to decide whether an adverse employment decision was taken because of the employee's age. That decision belongs to a jury. So even if the employer might have had a very good and non-discriminatory reason for eliminating a position, when the principal decisionmaker also tells the terminated employee that "you didn't come here to work, you came here to retire," it is the jury - not the judge - that is allowed to decide whether it's age discrimination.
Sometimes, when it's clear that an employer never seems to promote minority employees - and the reasons for that failure seem really thin - then there may be a triable case of race discrimination. The First Circuit reverses summary judgment for a correctional officer described as "always perform[ing] at an outstanding level," and an "[e]xcellent worker" with "awesome leadership, and great work ethics," passed over for a promotion by a white employee with a recorded history of "very poor work habits." The court holds, in particular, it it is not necessarily relevant that the decisionmakers were unaware of the employee's specific race, ethnicity or national origin, when the record showed that no minorities advanced.
The First Circuit holds that ten African American police officers presented sufficient evidence to prove that police department drug testing, using hair samples, had a disparate impact on the basis of race, in violation of Title VII. The parties are remanded to the district court to determine, among other things, whether the use of hair samples is a reliable test, or generates too many false positives among black test subjects.
"At issue in this case is whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability." The Sixth Circuit, in a 2-1 split opinion, holds that the EEOC is entitled to a trial on behalf of an employee with irritable bowel syndrome ("IBS") for ADA discrimination and retaliation. The panel majority holds, in the course of its analysis, that a four-day-a-week telecommuting schedule might be considered a reasonable accommodation.