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."
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.
While ERISA does not provide a limitations period for most claims, it does impose a three-year limitations period after discovery of a breach of fiduciary duty, plus a six-year period of repose. Yet the statute also provides that "in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation." The Tenth Circuit examined this quoted language today, and remanded parts of a class action to be reconsidered under this provision.
Employers have often argued that the Equal Pay Act does not apply if the male and female comparable employees spend significant amounts of time on different tasks. Yet the Tenth Circuit today affirmed that if a female employee performs additional duties beyond a male comparator, that fact does not defeat the employee's prima facie case under the EPA.
The Tenth Circuit addresses two issues of interest to those who regularly represent employees, especially those in the federal sector. First, the panel holds - in a widening circuit split - that a claim of constructive discharge under Title VII accrues not at the time that an employee quits, but when the last act of alleged discrimination by the employer occurs. In the federal sector, this is significant because of the narrow 45-day window for complaining about discrimination. Second, the panel holds that a threatened suspension without pay may, even if it does not materialize, constitute a "materially adverse action" for a Title VII claim of retaliation.
The Tenth Circuit today issued a terribly important read for people interested in fighting workplace sex harassment. The panel reverses summary judgment in a Title VII case where a woman jail employee was (allegedly) sexually assaulted by a sergeant, repeatedly, and yet failed to complain immediately for fear of losing her job. While not a complete win for the employee, the opinion points the way to others trapped in similar workplace dilemmas.
"Steven Smothers worked for Solvay Chemical, Inc. ('Solvay') for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker." The Tenth Circuit reverses summary judgment in this ADA and FMLA case, holding that the employee created a genuine dispute of material fact about whether Solvay singled him out for harsher treatment than his coworkers. The company, according to the summary judgment record, committed the rookie HR mistake of not allowing the employee to present his side of the story.
Within a week of Abercrombie & Fitch ("A&F") announcing a settlement with the EEOC of two Title VII religious accommodation claims involving hijab-wearing employees in California, the Tenth Circuit orders entry of judgment for the clothing retailer against the EEOC in a similar case arising out of Oklahoma. The 2-1 decision applies a formalistic circuit rule that "the applicant or employee must initially provide the employer with explicit notice of the conflicting religious practice and the need for an accommodation for it." Employees are forewarned that, where workplace accommodations are concerned, courts expect you speak up for your rights.
Two women sales representatives who were denied promotions by hardware giant Hilti get a renewed opportunity to prove at trial that they were denied promotions because of sex, thanks to a Tenth Circuit decision on Tuesday. Among other evidence in the record: the male manager evaluating one plaintiff allegedly told her that tools "are like guns for men" and using them is "almost like second nature."
The Tenth Circuit joins other circuits and the EEOC in holding, under the Rehabilitation Act, that the required "reasonable accommodation" of persons with disabilities is not limited to accommodations related to the essential functions of a job. Here, the court holds that it may be a reasonable accommodation to transfer an employee to a major metropolitan area to enable her to get medical attention. "Considering the case law from this court and others, we conclude that a transfer accommodation for medical care or treatment is not per se unreasonable, even if an employee is able to perform the essential functions of her job without it."