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Employment Law Blog

Porter v. Houma Terrebonne Housing Auth., No. 14-31090 (5th Cir. Nov. 17, 2015)

Courts in Title VII retaliation cases continue to wrestle with what constitutes a "materially adverse action" under Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). While accepting an employee's voluntary resignation may not itself be an adverse action, the Fifth Circuit here holds that an employer's refusal to honor an employee's rescission of a resignation may be deemed materially adverse.

Enforceability of Noncompetes Is Not Always Obvious

"Can my employer really enforce this noncompete?" - this is a question routinely posed to employment lawyers. The answer depends on many factors. First and foremost, it depends on which state's law will be applied to the noncompete. The answer to that question might seem obvious initially, since most employment agreements and separation agreements contain a choice-of-law clause designating a particular state's law to apply to disputes. One might think that if the agreement designates a state that generally enforces noncompetes, the noncompete will be enforceable and the employee is out of luck. But the issue is not always that simple.

Mandatory Arbitration: Justice for All or Kangaroo Court?

When an employee learns that he or she may have been treated illegally by an employer, one option used to be going to court with co-workers who were similarly harmed to resolve their grievances together in a class action. A person may have a few thousand dollars at stake in the dispute, while the cost of bringing a lawsuit would be many times that amount.

Asking For It: Finding New Ways to Blame Women for Their Own Inequality

Outten & Golden LLP associate Nina Frank discusses the ways women are blamed and marginalized at work for everything from the way they talk to the way they dress. Ms. Frank suggests that women are harassed, ignored, and underpaid not because of any action or omission on their part, but as a result of a sexist system that touts its progress but has not initiated much meaningful change. For the full text of the article, click here.

Terminated Twitter Employees Considering Severance Offer Should Read Fine Print

Last week, more than 300 Twitter employees received the distressing news that their employment was being terminated. In a memo to staff, Twitter's CEO Jack Dorsey promised that "Twitter will go to great lengths to take care of each individual by providing generous exit packages and help finding a new job."

Jennifer Lawrence Says Hollywood Gender Pay Gap Shouldn't be a Part of the Real-Life American Hustle

Co-Written by Outten & Golden LLP Law Clerk Amy Biegelsen and Marketing Assistant Danielle Travali

Smith v. URS Corp., No. 13-2645 (8th Cir. Oct. 14, 2015)

Dividing 2-1 on the question, an Eighth Circuit panel holds that it can be considered an "adverse employment action" under Title VII and section 1981 for an employee to be hired at - or even above - his or her asking salary, at least when another person outside the protected group is hired for similar work but at a higher pay grade and salary.

Cox v. Kansas City Chiefs Football Club, Inc., No. SC94462 (Mo. Sept. 22, 2015)

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.

Howe v. City of Akron, No. 14-3352 (6th Cir. Sept. 17, 2015)

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.

Stray Remarks and the Donald Trump Effect: The Real Workplace Consequences of the Backlash against Political Correctness

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.

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