Sometimes state law and state courts provide advantages over a federal forum. Exhibit A: today's 5-2 decision from the Missouri Supreme Court, remanding an age-discrimination case for a new trial owing to evidentiary and discovery errors, particularly exclusion of evidence of discrimination against other, older coworkers and denial of a deposition of the chairman and CEO.
A long-running disparate impact case challenging promotions of firefighters to the ranks of Lieutenant and Captain is remanded by the Sixth Circuit for a third trial to award back pay, and the panel reassigns the case to a new judge for good measure. The panel has valuable things to say about how to calculate monetary make-whole relief. It also affirms injunctive relief, and appointment of a monitor, to purge the city's violation.
In a recent blog post, on Hamilton & Griffin on Rights, Outten & Golden LLP associate Nina Frank touches on our current cultural backlash against anything seen as politically correct or hypersensitive to the feelings of women, racial and ethnic minorities, and LGBTQ individuals, using the success of Donald Trump's presidential campaign as just one example. In this environment, many courts have been misusing the "stray remarks" doctrine to dismiss employment discrimination claims before they get to a jury. Ms. Frank argues that dismissing these implicitly biased comments in the workplace as mere jokes or passing remarks, lionizing those who have the audacity to utter them unapologetically, and classifying those who were harmed by them as overly sensitive, does real damage.
The Second Circuit today decides two EEO legal issues that were open in that court. First, it holds that 42 U.S.C. § 1983 allows claims against public employers for retaliation towards workers who oppose race discrimination in employment. Second, it clarifies the pleading standard for Title VII claims, holding that a plaintiff need only plead facts which show that "(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision."
On Thursday, the National Labor Relations Board (NLRB) issued a decision that may have a big impact on the fast food organizing campaigns currently going on around the country. In Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), the NLRB updated the test for whether two companies are "joint employers" of the same group of workers. This issue arises in cases where one agency supplies workers, like temporary employees, to work for another company. It can also arise in franchisor/franchisee arrangements. Noting that these kinds of work arrangements have become much more common in recent decades, the NLRB adjusted its test to keep pace with the changing economy.
The Tenth Circuit reviews an ADA claim of a deaf applicant for technician at a plasma-donation center. It holds that a health-care provider cannot fend off an analysis of whether a proposed accommodation for a disabled employee is reasonable simply by arguing that any risk to patients, however infinitesimal, is unacceptable.
It's not often that we get published federal appellate decisions from fully-tried Title VII cases, but here's one from the Fifth Circuit that (among other things) reviews an award in a retaliation case for "future reputational harm." The panel substantially affirms the $127,000 award, though it remands the case for reconsideration of remittitur in light of the plaintiff abandoning one of his damages theories on appeal.
The Fifth Circuit becomes the latest circuit to grapple with the temporary (or joint) employer issue under the federal anti-discrimination laws. It concludes in this case that there was a genuine dispute of material fact about which entity (or both) employed the plaintiff for purposes of the ADA. The panel also holds that there was a genuine dispute about pretext, where the alleged grounds for termination - among other things, her using the Internet while at work - may not have been known to the decisionmaker at the time the plaintiff was fired.
When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") in 2010, it included new protections for whistleblowers who spoke up about securities laws violations. Despite Congress's clear intent to shield whistleblowers from retaliation, courts have been divided over just who qualifies as a "whistleblower."
One of the challenges recently facing groups of employees hurt by discriminatory employment practices has been to persuade courts to allow the entire controversy to be decided in a single class action. Today, the Seventh Circuit issued a decision that helps break down some of the barriers to effective class certification, in a case involving a city school board's policy of placing schools on suspension - primarily affecting minority neighborhoods - and firing teaching staff.