This decision was an instant sensation in the news and social media: Title VII of the Civil Rights Act of 1964 held to protect employees from discrimination because of sexual orientation (and, presumably, gender identity as well). Digging into the majority and separate opinions, we can trace different possible outcomes when this question inevitably reaches the U.S. Supreme Court.
Three plaintiffs successfully defend a jury verdict totaling $204,000 in a Title VII, Equal Pay Act and Iowa Civil Rights Act case, plus $269,877.67 in attorney's fees. The court casts doubt on the use of a "market forces" defense by employers to justify lower pay for women, yet also holds that if such a defense were valid, the employer presented insufficient evidence to warrant an instruction.
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.
Can a huggy boss create a hostile work environment? The Ninth Circuit holds that it's for a jury to decide, in a case where a sheriff allegedly hugged the women officers, but not the men.
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.
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 D.C. Circuit holds that even facially benign statements about an employee - in a given context - can constitute evidence of discriminatory intent. The panel finds that a supervisor's alleged compliment to a Black employee for "speaking well," and later telling the same employee that he was not a "good fit" for the organization, might be evidence of racial stigmatizing. It also discusses that an employer's "honest belief" must also be reasonable under the circumstances.
Undocumented workers are entitled to protection under Title VII and other federal employment laws, but many fear filing charges and lawsuits because they risk exposure, termination, and deportation. The Fifth Circuit addresses the delicate balance between the public interest in enforcing anti-discrimination laws and the right of an employer under federal discovery procedures to obtain evidence that is potentially important to its defense.
May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of "race"? The panel unfortunately holds that "race" under Title VII is limited to "immutable" physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.
The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.