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.
Last month, a federal jury in San Francisco awarded $8 million to a former general counsel for life sciences company Bio-Rad who was terminated after raising concerns about possible Foreign Corrupt Practices Act (FCPA) violations by his employer. The verdict sent shockwaves through the legal community as it redefines the boundaries of general counsel privilege, and may spur others to act as whistleblowers themselves.
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.
We often hear media reports about workplace discrimination involving gender, race, national origin, age, and disability that is all too common. But most Americans would be surprised to learn that each year thousands of employees are subjected to blatant and harmful discrimination simply because they are veterans or are currently serving in the Armed Forces - and this discrimination harms our national security by discouraging participation in the National Guard and Reserve.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.
The Securities and Exchange Commission is showing its commitment to keeping the lines of communication open between the SEC and whistleblowers willing to report wrongdoing. The SEC recently announced stiff penalties for two companies that included language in separation agreements that required employees to waive financial rewards they might be eligible for if they disclose employer wrongdoing to the SEC.
The Seventh Circuit affirms a jury award of $50,000 compensatory and $250,000 punitive damages in a Title VII retaliation case. The jury could have found, based on conflicting testimony, that the employer fired the plaintiff just two weeks after she filed an EEOC sex-harassment charge, based on an unsubstantiated complaint - reported by the alleged harasser himself - of a minor work-rule violation.
News that Wells Fargo opened more than two million unauthorized deposit and credit card accounts has filled the headlines over the past few months. While there is no question that the customers were harmed by the bank's unlawful sales practices, other victims have had their lives and livelihoods turned upside down in the scandal - innocent Wells Fargo workers who claim the bank used regulatory filings and other tactics as retaliation, jeopardizing their careers.
Women often find themselves in a workplace culture dominated by traditionally male values, approaches to work, and ways of measuring success. To be included, accepted and advanced, women in a wide variety of professions, including finance, technology, medicine, and the law, must walk a fine line between seeking acceptance and ensuring equal treatment.
Stories of corporate greed, cover-ups, and corruption make headlines nearly every day. Scandals at Enron, AIG, Madoff Securities, and elsewhere rocked the investment world to the point that we almost take such violations in stride. What we shouldn't take for granted, however, is the critical role of the courageous whistleblower who exposes the wrongdoing, often at great personal risk.