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.
When does a human-resources executive truly speak for the corporation? This oft-ignored, yet critically important question occupies this Eleventh Circuit decision today, which remands a Title VII national-origin case to the district court for an evidentiary ruling on this issue. The lower court must now rule whether a remark allegedly made by the employer's HR director - that the Korean management of the company "refused to even consider American candidates" for an assistant accounting manager vacancy - may be admitted as evidence. One judge files a partially dissenting opinion on the remand.
The Sixth Circuit demolishes a popular defense tactic by employers in discrimination cases, holding that district courts should not readily entertain motions in limine to exclude evidence that are often filed after summary judgment motions fail. The panel holds that such motions often intrude on the jury's role as fact-finder, while denying employees the procedural protections of summary judgment. The court reverses the exclusion of evidence of comparative employees and remands an age and national-origin discrimination case for trial.
The Seventh Circuit issues a decision, in the context of a Title VII national-origin discrimination jury trial - which ended in a defense verdict - that the decision of whether to instruct the jury with a so-called "single-" or "mixed-" motive charge is for the judge, subject to review only for abuse of discretion. The decision will continue to fuel the on-going debate about the precise value of the 1991 Civil Rights Act "mixed-motive" section to employees.
It was a long-time commonplace in federal case law that a mere threat to terminate an employee was not a "materially adverse action" under employment discrimination law. But at least under the anti-retaliation provision of Title VII, the Second Circuit seems to have recognized that such a threat may be actionable in light of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The court also holds that a hostile response to an harassment complaint can itself constitute retaliation.