Federal courts seldom pause on the second stage of the McDonnell Douglas burden-shifting test, whee the employer proffers its allegedly legitimate, non-discriminatory reason for taking adverse action against an employee. But in this case, the D.C. Circuit holds that it is not enough for the employer to simply advance a facially-neutral process without showing how it was specifically applied to the employee. This case could have special application in promotion and other processes involving large numbers of people and subjective criteria.
Weil v. Citizens Telecom Servs., No. 16-35813 (9th Cir. Apr. 29, 2019)
When a former supervisor - later reassigned - tells an employee that they were not promoted because "[y]ou're not white" and "you're not female," can the statement be used to prove a discriminatory motive over a hearsay objection? A panel of the Ninth Circuit holds 2-1 that the statement is admissible against the employer as a party admission.
Davis-Garett v. Urban Outfitters, Inc., No. 17-3371 (2d Cir. Apr. 8, 2019)
The Second Circuit, in an ADEA hostile work environment and retaliation case, reminds district court judges that they are not to weigh or evaluate credibility of evidence submitted on summary judgment. Among other things, the district court forgot that "[i]t was required to disregard the contrary statements from [defendant's witnesses] that a jury would not be required to believe."
Hodges v. Life Insurance Co., No. 18-1279 (10th Cir. Apr. 2, 2019)
In ERISA cases, a lot can come down to the standard of review that a court applies to a plan administrator's decision. In this case, the Tenth Circuit holds that the plan required the court, not the plan administrator, to decide ultimately whether the participant should have been classified as a "sales personnel" entitled to a higher level of disability benefits.
Bogan v. MTD Consumer Group, Inc., No. 17-60697 (5th Cir. Mar. 26, 2019)
The original Title VII was centered on injunctive relief, principally putting protected-class employees to work. So this Fifth Circuit case is a valuable one, reminding us of the roots of the law and why reinstatement remains the presumptive remedy in discrimination cases.
Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Mar. 21, 2019)
The Eleventh Circuit heightens the probability of Supreme Court review of a long-festering circuit split: just how "similarly situated" must a Title VII plaintiff be to a comparator employee in the workplace to establish a prima facie case of discrimination? The en banc court holds 9-3 that a plaintiff must demonstrate, at the first stage of the analysis, that she and the comparators were "similarly situated in all material respects."
Bryant v. Jeffrey Sand Co., No. 18-2297 (8th Cir. Mar. 18, 2019)
The Eighth Circuit affirms a $250,001 judgment - $1 compensatory and $250,000 punitive damages - for a black "deckhand on the Cora, a barge that dredges sand from the Arkansas River," whom a jury found suffered a racially hostile work environment caused by his foreman.
Fox v. Costco Wholesale Corp., No. 17-0936 (2d Cir. Mar. 6, 2019)
Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019)
The Fourth Circuit, while mostly affirming summary judgment, holds that the plaintiff - a former employee of the Office of the Director of National Intelligence - presented a genuine dispute of material fact on a claim of interference with Family and Medical Leave Act rights. The plaintiff complained that the agency failed to notify her of the right to medical leave when she presented as depressed in the workplace, complained about depression, and requested leave.
EEOC v. Global Horizons, No. 16-35528 (9th Cir. Feb. 6, 2019)
The Ninth Circuit addresses the legal standard for holding joint-employers liable under Title VII, in a case involving Thai contract workers hired under the H-2A guest-worker program to pick fruit in California orchards. The panel returns the case to the district court for more discovery and factual development.
