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.
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.
In a bid to restore common sense to the adjudication of Title VII and other employment cases, a panel of the Seventh Circuit (with the acquiescence of the full court) decisively overrules both the "convincing mosaic" and "direct vs. indirect" methods of proof. It urges instead the straight-forward application of the anti-discrimination standard: whether the plaintiff "would have kept his job if he [or she] had a different ethnicity, and everything else had remained the same."
The Fifth Circuit reverses summary judgment in a pregnancy discrimination case, decided under the Texas Commission on Human Rights Act ("TCHRA"). The panel holds that the plaintiff presented a genuine dispute of material fact about each of two reasons that the employer - a law firm - gave for her termination. The opinion reminds employers that simply keeping records of an employee's supposed violations is not enough to avoid a trial, and that the plaintiff's own testimony about the records deserves equal dignity.
An Arab-American Muslim woman from Morocco alleges that she suffered years of ethnic and religious harassment by the company's Chief Financial Officer, and was then fired 75 minutes after complaining about it. The Fourth Circuit reverses summary judgment on her Title VII and § 1981 complaint, in a blockbuster, 46-page opinion that straightens out several wrong turns that district courts take when ruling on dispositive motions.
The Eleventh Circuit adds its voice to the lower-court movement to abandon the McDonnell Douglas v. Green, 411 U.S. 792 (1973), proof framework in discrimination cases - such as this one - where the plaintiff presents circumstantial evidence that bias was a motivating factor in an adverse decision. This could be the case that allows the Supreme Court to revisit this long-standing precedent.
The D.C. Circuit addresses an all-too-common scenario where the employer - without apparent explanation - arguably comes down hardest on the Black employee rule-breaker. The court reverses summary judgment in a case involving nurses, where the Black nurse was allegedly singled out and fired for violations of protocol during a single shift.
The end of the year often brings a haul of decisions, when the courts of appeal clear their dockets for year's-end. Here's a short, to-the-point decision, reversing summary judgment on an ADEA and ERISA case where the district court judge misapprehended a controlling Supreme Court decision.
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.
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.