Today's computer technology improves exponentially from year to year, putting tiny, yet ever more powerful, computers in the palms of our hands, on our bodies, or even under our skin. With the proliferation of wearable "Internet of Things" devices, many new technologies that track our physical and physiological traits are moving into the workplace - yet, our privacy laws are struggling to keep up. This gap between technology and the law can put employees' privacy rights at risk.
EEOC v. Dolgencorp, LLC, No. 17-6278 (6th Cir. Aug. 7, 2018)
The Sixth Circuit affirms a jury award in an ADA case of $27,565 in back pay and $250,000 in compensatory damages, awarded to a dollar-store clerk who was fired for grabbing orange juice from the store fridge twice during diabetic episodes. The panel notes, among other things, that the failure to provide a reasonable accommodation can itself be direct evidence of discrimination.
Rivera-Rivera v. Medina & Medina, Inc., No. 17-1191 (1st Cir. Aug. 1, 2018)
Here's a valuable case for employees suffering harassment (and lawyers who bring such cases). The First Circuit reverses summary judgment for age-based and retaliatory hostile work environment, holding that the district court put the plaintiff to an impossible standard of specificity to prove individual incidents of harassment. It also holds that repeated threats of termination can constitute constructive discharge.
Rogers v. Henry Ford Health Sys., No. 17-1998 (6th Cir. July 31, 2018), and Batson v. The Salvation Army, No. 16-11788 (11th Cir. July 31, 2018)
Two opinions this week highlight the power of retaliation claims: in each case, the principal discrimination claim failed on summary judgment, yet the retaliation claim was remanded for trial.
Feelings are Fair Game
In 2011, researchers released the results of a study on nurses who acted as whistleblowers or were bystanders in a whistleblowing incident at work. The alarming reports of depression, distress, panic attacks, anxiety and increased reliance on cigarettes and alcohol, underscores that reporting wrongdoing in the workplace can cause serious emotional distress. Nevertheless, those damages can be difficult to quantify and prove at trial. Two recent cases show that some judges and juries are beginning to understand the toll blowing the whistle can take on employees, but challenges remain.
Closing the Gender Pay Gap: Salary Histories Are Off Limits
A few weeks ago, the California state legislature passed a bill that unequivocally prohibits employers from using an employee's prior salary, even in combination with legitimate factors, to justify a gender- and race-based pay differential for performing the same or similar work. The new legislation, which California Governor Jerry Brown signed into law on July 18th, reflects a welcome trend both at the federal and state levels to combat a common pay practice that has perpetuated the gender pay gap for decades: basing new employee compensation on the applicant's salary history.
Hostettler v. College of Wooster, No. 17-3406 (6th Cir. July 17, 2018)
The Sixth Circuit holds that full-time, in-office attendance is not a per se "essential function" for purposes of the ADA, and must be established just like any other element of the claim. The court vacates summary judgment and remands a claim brought under the ADA, Title VII, and the FMLA that the employee needed a reduced schedule to accommodate her post-partum depression and separation anxiety.
Strothers v. City of Laurel, Maryland, No. 17-1237 (4th Cir. July 6, 2018)
The Fourth Circuit reverses summary judgment in a Title VII retaliation case, where the plaintiff's direct boss allegedly declared that she "wanted someone of a different race" in the job, then proceeded to subject her to "constant surveillance, badgering, and criticism." When the plaintiff "told the City that she intended to file a formal grievance" about the hostile work environment, the defendant fired the plaintiff the very next day.
Robinson v. Perales, Nos. 16-2291 and -3390 (7th Cir. July 2, 2018)
There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
Minarsky v. Susquehanna Cty., No. 17-2646 (3d Cir. July 3, 2018)
Title VII sex harassment law has persisted over the decades to place the onus on the victim to report the violation through the employer's anti-harassment policy, and - failing in that step - most courts find no employer liability. But the Third Circuit today issues an opinion that takes a step away from that stance, holding that there can be a genuine dispute about liability for supervisor harassment even when there was no complaint to the employer at all.
