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Smith v. Rock-Tenn Services, Inc., No. 15-5534 (6th Cir. Feb. 10, 2016)

The Sixth Circuit affirms a $300,000 judgment for the male victim of same-sex harassment under Title VII. The panel underscores the imperative for employers to be vigilant against complaints of sexual contact, even when the conduct (in a male-dominated workplace) might be characterized by some as "horseplay."

Flynn v. Distinctive Home Care, Inc., No.15-50314 (5th Cir. Feb. 1, 2016)

Taking sides in a widening split in the circuits, the Fifth Circuit holds that an independent contractor - here, a pediatrician working on an United States Air Force base - can bring a claim for disability discrimination under the Rehabilitation Act of 1973 against the clinic where she practiced.

Navigating the Fissured Workplace: New Guidance from the DOL on Joint Employment

Last Wednesday, the Department of Labor issued guidance to clarify employees' rights and employers' obligations in an increasingly fragmented workplace. The Department of Labor Administrator's Interpretation (AI) No. 2016-1 addresses Joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Beyond Ban the Box - Combating Black Underemployment and the Criminality Myth

Ban the Box legislation is an incredibly important tool in fighting black underemployment by removing employers' ability to use criminal history as a proxy for discrimination. However, it only attacks a symptom of the problem of race discrimination in hiring: criminal history is not the only way that employers use "race-neutral" criteria as a proxy to discriminate against black job seekers. A holistic approach that acknowledges the omnipresent role that the black criminality myth continues to play in employment discrimination - and daily life in general - is necessary. 

Glatt v. Fox Searchlight Pictures, Inc., No. 13-4478 (2d Cir. Jan. 25, 2016)

The Second Circuit yesterday filed an amended opinion in the Fox Searchlight Black Swan unpaid-intern case (a case filed by Outten & Golden). In response to a petition for rehearing, the panel upholds its original decision - vacating class certification and partial summary judgment for the class - yet made significant changes to its original reasoning that will enable unpaid-intern cases to proceed.

Connelly v. Lane Construction Corp., No. 14-3792 (3d Cir. Jan. 11, 2016)

The Third Circuit issues a solid reminder to judges that - notwithstanding the increased attention on filing "plausible" complaints under Federal Rule of Civil Procedure 8 - federal courts do not require the pleading of legal theories. Thus, plaintiffs are not required to specify the method that they plan to use to prove discrimination cases in their Title VII complaints.

Nichols v. Tri-National Logistics, Inc., No. 15-1153 (8th Cir. Jan. 4, 2016)

In the first-published federal court of appeals EEO decision of 2016, the Eighth Circuit  (in a 2-1 decision) reverses summary judgment in a sex harassment case. The plaintiff - a woman truck driver - was forced to share close quarters with a male co-worker for a week-long trip. The panel majority holds that a jury could find that the employer could have taken greater steps to prevent the harassment. 

Lounds v. Lincare, Inc., No. 14-3158 (10th Cir. Dec. 22, 2015)

The Tenth Circuit reverses summary judgment and remands in a section 1981 case involving harassment of a call-center's only black employee. The panel reminds district courts and litigants that even non-racial remarks, against a backdrop of racially-offensive chatter, may constitute harassment. It also notes that "whether a workplace environment is sufficiently polluted for purposes of a § 1981 claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense."

Liebman v. Metropolitan Life Insurance Co., No. 14-13197 (11th Cir. Dec. 18, 2015)

The end of the year often brings a haul of decisions, when the courts of appeal clear their dockets for year's-end. Here's a short, to-the-point decision, reversing summary judgment on an ADEA and ERISA case where the district court judge misapprehended a controlling Supreme Court decision.

Noncompetes Require Real Consideration to be Enforceable

A New York trial court recently addressed the issue of adequate consideration for a noncompete, finding that now-lapsed stock options were not adequate consideration, nor was continued employment where the agreement stated that the employer maintained the right to terminate the employees at will.

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