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Daily Developments in EEO Law Archives

Donathan v. Oakley Grain, Inc., No. 15-3508 (8th Cir. June 28, 2017)

The Eighth Circuit holds that a granary employee who complained about sex discrimination in her paycheck - only to have her manager initiate her layoff literally minutes later - was entitled to have a jury decide whether she suffered retaliation under the Equal Pay Act, Title VII and the Arkansas Civil Rights Act.

Bayer v. Neiman Marcus Group, Inc., No. 15-15287 (9th Cir. June 26, 2017)

Here's a timely reminder to include a prayer for nominal damages in Title VII and ADA complaints. At least in some circuits, including the Ninth, such relief is deemed equitable and thus may protect a claim from being mooted by intervening changed circumstances. That little toehold for $1.00 in damages may be the difference between outright dismissal and prevailing-party status.

EEOC v. CONSOL Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017)

The Fourth Circuit affirms a jury verdict and back-pay relief of $586,860 in favor of the EEOC, in a Title VII religious accommodation case where the employer stubbornly "belie[ved] that it could rely on its own understanding of scripture to limit the scope of the accommodation it offered" an employee who, because of his Christian faith, refused to use a hand scanner.

Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017) (en banc)

This decision was an instant sensation in the news and social media: Title VII of the Civil Rights Act of 1964 held to protect employees from discrimination because of sexual orientation (and, presumably, gender identity as well). Digging into the majority and separate opinions, we can trace different possible outcomes when this question inevitably reaches the U.S. Supreme Court.

Dindinger v. Allsteel, Inc., No. 16-1305 (8th Cir. Apr. 3, 2017)

Three plaintiffs successfully defend a jury verdict totaling $204,000 in a Title VII, Equal Pay Act and Iowa Civil Rights Act case, plus $269,877.67 in attorney's fees. The court casts doubt on the use of a "market forces" defense by employers to justify lower pay for women, yet also holds that if such a defense were valid, the employer presented insufficient evidence to warrant an instruction.

Egan v. Delaware River Port Authority, No. 16-1471, and Carvalho-Grevious v. Delaware State Univ., No. 15-3521 (3d Cir. Mar. 21, 2017)

The Third Circuit on Tuesday took up the issue of causation, and the amount of proof a plaintiff must present, under two federal anti-retaliation laws. In Egan, the panel holds that employees may pursue FMLA retaliation claims under a mixed-motive theory, as supported by a Department of Labor regulation. In Carvalho-Grevious, the court announces a lowered bar for establishing Title VII retaliation at the prima facie stage.

Caldwell v. KHOU-TV, No. 16-20408 (5th Cir. Mar. 6, 2017)

One way that an employee can circumstantially prove discrimination is by showing that the employer offered shifting and inconsistent rationales for its adverse action. The Fifth Circuit returns this ADA and FMLA retaliation case back for a jury to decide on just that rationale.

Coutard v. Municipal Credit Union, No. 15-1113 (2d Cir. Feb. 9, 2017)

The Family and Medical Leave Act (FMLA) provides that eligible employees may be entitled to leave to care for relatives with whom they had an in loco parentis relationship as a child. The Second Circuit holds that where the plaintiff requested leave to care for a sick grandparent, who raised him has a child, the employer had a duty to inquire further about the relationship before denying leave.

Mayes v. WinCo Holdings, No. 14-35396 (9th Cir. Feb. 3, 2017)

This takes the cake: an employee on the night shift at an Idaho supermarket is accused of (and fired for) taking a cake from the bakery's "stales cart" without permission to serve to co-workers. The Ninth Circuit thinks that a jury could find management's story unpalatable, though, and remands it for a trial.

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