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.
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.
Challenges for women working in tech are very real. Though the pay gap may be less in the tech industry than other sectors (the New York Times reported that women in tech earn 89 cents for every dollar earned by men - as compared with the American average of 79 cents on the dollar), women in tech are by no means better off.
The Second Circuit, in reviving plaintiff Cathleen Graziadio's Family and Medical Leave Act (FMLA) interference and retaliation claims, reminds employers that they share responsibility with employees to comply with FMLA requirements, and cannot place the burden entirely on the employee or, as the panel here admonished, fail to cooperate with the employee altogether.
Major shifts in gender equality jurisprudence in recent years have led to expanded rights and benefits for LGBTQ employees. The Section devoted two panels at the Section Conference to the rapidly developing areas of anti-discrimination law, employee benefits, and sexual orientation and gender identity in the workplace. The scope of civil rights protections for LGBTQ employees under Title VII generated the most discussion in the wake of the Supreme Court's decision in Obergefell v. Hodges (2015) and the EEOC's decision in Baldwin v. Foxx (EEOC 2015). In Obergefell, the Court held that the 14th Amendment guarantees all couples, straight or gay, the fundamental right to marry under a due process analysis, although Justice Kennedy noted that the ruling derived in part from the Equal Protection clause.
The Sixth Circuit sends back for trial an ADA and Family and Medical Leave Act case, where the employee - returning from medical leave, but still experiencing health difficulties - was forced to work beyond his medical restrictions. He was allegedly told by a Vice President of the company, shortly before his termination, that (1) the employer was not covered by the FMLA, and (2) the employee was a "liability" to the company. The panel holds that there is sufficient evidence that the company, while employing fewer than the necessary fifty employees mandated by the FMLA, was an "integrated employer" with a larger affiliated company.
"This case is about what qualifies as 'caring for' a family member under the Act. In particular, it is about whether the [Family and Medical Leave Act] applies when an employee requests leave so that she can provide physical and psychological care to a terminally ill parent while that parent is traveling away from home." The Seventh Circuit holds that an employee could use FMLA leave to accompany her mother to Las Vegas as her basic care support.
"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.
The Fifth Circuit holds that an unstrung father struggling with child care deserves a jury trial (for FMLA retaliation) against a slew of reasons offered by Chevron for his termination. This case may also prove useful for Title VII litigants. Under that statute, a plaintiff who proves that discrimination was a "motivating factor" in workplace treatment gets a judgment in her favor. Yet an employer that proves that it "would have taken the same action in the absence" of discrimination can avoid paying monetary damages. Courts have reported very few decisions interpreting this "same decision" defense. Here, the Fifth Circuit holds that evidence that would otherwise be sufficient to prevail in a "single motive" case is not necessarily enough to win the day under "same decision."