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In an important decision, the Ninth Circuit holds en banc that a "factor other than sex" under the Equal Pay Act (29 U.S.C. § 206(d)(1)) must be "job-related," and thus rejects an employer's use of pre-employment salary history as a reason to pay a woman less than a man doing the same work. The court overrules its prior decision on this subject, Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th Cir. 1982).
The Sixth Circuit affirms a $350,000 jury award for a police officer who was transferred far from her home, in retaliation for complaining about sex harassment. The court rejects a bid by the department to reduce the award, finding that the jury's calculations of back and front pay - and award of compensatory damages for pain and suffering - are supported by the record.
This week, two U.S. Courts of Appeals publish decisions about whether religiously-oriented employers were exempt from Title VII owing to alleged religious-liberty rights: a Methodist hospital wins in the Second Circuit, while a funeral home loses in the Sixth Circuit.
In a groundbreaking en banc decision, the Second Circuit became the second appellate court to hold that Title VII recognizes sexual orientation discrimination claims as impermissible sex discrimination per se. Zarda v. Altitude Express, Inc. also expressly overturned the Circuit's prior holdings in Simonton v. Runyon and Dawson v. Bumble & Bumble, deepening a circuit split over the question.
Supreme Court Ruling A Game-Changer For Whistleblower Protections
On February 21, the U.S. Supreme Court narrowed the path to legal protections for corporate whistleblowers. The Court announced in Digital Realty Trust, Inc. v. Somers that unless an employee reports corporate wrongdoing to the SEC, Dodd -Frank's anti-retaliation protections do not apply. That means that employees who are fired for raising concerns to their supervisors before having a chance to raise the issue with the SEC have no claim under Dodd-Frank. The good news is that in some circumstances they may still have a retaliation claim under Sarbanes-Oxley, although that law covers fewer employees and gives the ones it does cover much less time to file a claim than Dodd-Frank did. Whistleblower advocates argue that the Court's decision is bad for employees and employers: encouraging employees to report internally gives companies an opportunity to proactively address and cure the problem without facing reputational harm and costly legal exposure. Corporate whistleblowers concerned about compliance will now have to proceed very carefully and much more quickly before reporting corporate wrongdoing.
The U.S. Supreme Court's decision this week in Digital Realty Trust, Inc. v. Somers shrinks Dodd-Frank's protections against workplace retaliation for corporate whistleblowers.
The Sixth Circuit affirms a jury verdict for an in-house lawyer in Tennessee, including $92,000.00 in compensatory damages and $18,184.32 in backpay. The court holds that the jury could have found that the employer violated the Americans with Disabilities Act (and state law) duty to accommodate, by failing to allow a ten-week period of telecommuting during the lawyer's pregnancy bedrest.
The Ninth Circuit, in tension with the Fifth and Tenth Circuits, holds that a public employee has a federal constitutional privacy right (under due process) not to be fired from a job because of an extramarital affair with a co-worker. A concurring judge in the panel agrees with the result, but offers a narrower rationale.
In the First Circuit, a woman lieutenant successfully defends a Title VII award of $545,000 for front pay and $161,000 for emotional damages. The exhaustive 60-page opinion addresses the admissibility of harassment outside of the workplace, application of the sex-plus theory where the "plus" factor is sexual orientation, and the degree of proof necessary for front-pay relief.
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