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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.

Gardner v. CLC of Pascagoula, L.L.C., No. 17-60072 (5th Cir. June 29, 2018)

The Fifth Circuit vacates and remands summary judgment in a Title VII case, holding that the record presents a genuine dispute of material fact whether an assisted living facility took reasonable precautions to prevent a resident from sexually harassing a nurse, and also whether she was retaliated against when--as a self-protective measure--she refused to attend the harasser.

Pearce v. Chrysler Grp. LLC Pension Plan, No. 17-1431 (6th Cir. June 20, 2018)

The U.S. Supreme Court held in CIGNA Corp. v. Amara, 563 U.S. 421 (2011), that a summary plan description (SPD) is not enforceable as a plan document. The Sixth Circuit holds, though, that a court has equitable power to order a benefit plan reformed to agree with the language of the SPD, and that it is not necessary to find fraud by the employer to do so.

Dimanche v. MBTA, No. 17-1169 (1st Cir. June 18, 2018)

The First Circuit affirms a $2.6 million judgment for race discrimination against the Massachusetts Bay Transportation Authority, where the jury was presented with direct evidence involving "[t]hree of the MBTA's supervisory staff who either concurred in [plaintiff]'s dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her."

Penalty Flag: Illegal Questioning of Players Plagues NFL Combine

Each year, before the teams draft new talent for the following fall season, the NFL organizes its Scouting Combine, a multi-day evaluation and audition process for the most promising football players. Hundreds of hopeful athletes compete to improve their chances to be drafted into a professional football career. Like every other job interview, this one takes guts, stamina, and talent, and a player's personality factors into hiring decisions.

But just like every other interview, state and federal employment laws make it illegal for employers to make employment decisions based on age, race, national origin, gender, religion, marital status, or sexual orientation. Some NFL officials as well as team owners, coaches, and scouts don't read the playbook, however, and ask questions that appear to reflect discriminatory intent.

Caraballo-Caraballo v. Administracion de Correccion, No. 16-1597 (1st Cir. June 8, 2018)

One of the maddening things for employee advocates is how rules developed by the courts for one set of facts are used to swat down a case involving an entirely different set of facts. The First Circuit holds that's exactly what happened here, and reverses summary judgment when a judge used a standard developed for failure-to-hire cases to prematurely dismiss a forcible-transfer case.

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