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.
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.
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.
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.
Can a huggy boss create a hostile work environment? The Ninth Circuit holds that it's for a jury to decide, in a case where a sheriff allegedly hugged the women officers, but not the men.
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.
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.
A Ninth Circuit panel holds, in a Title VII and Oregon state law case, that an employer's breaking into a work locker constitutes a materially adverse employment action. The panel also splits - 2-1 - over whether the employer failed to take appropriate steps to stop alleged racial harassment, and whether it disproportionately punished the plaintiff by firing him (for leaving the workplace) while taking no action against the harasser.
The Third Circuit, declaring a split with several other courts, holds that an ADEA disparate-impact case may allege discrimination against a subset of the protected group, here employees 50 and over. Prior decisions had held that such claims could be based only on the entire protected group - age 40 and over - but the Third Circuit panel holds that "their reasoning relies primarily on policy arguments that we do not find persuasive."
Courts are split over whether, under the ADA, employers who are able to reassign incumbent employees to accommodate their disabilities must do so outside of a normal competitive, "best-qualified" application process. The Eleventh Circuit this week joined the fray, holding that employers do not need to abandon a so-called "best-qualified" policy for filling vacancies, even as a reasonable accommodation.