The Fourth Circuit cautions employees (and their counsel) that taking actions to support an EEOC charge are not "protected activities" under the "participation" clause of Title VII's anti-retaliation section if they violate state law. Here, the court affirms summary judgment in a case where the employee copied and delivered confidential personnel files to the EEOC, in violation of North Carolina law.
EEOC v. North Memorial Health Care, No. 17-2926 (8th Cir. Nov. 13, 2018)
In a contentious 2-1 opinion, the Eighth Circuit holds that a job applicant who requests a religious accommodation - here, not to work Saturdays - is not engaged in a "protected activity" under the opposition clause of Title VII's retaliation provision.
Gunter v. Bemis Co., Inc., No. 17-6144 (6th Cir. Oct. 16, 2018)
Through careful advocacy, a former factory worker with lifting restrictions preserves most of his jury verdict in an ADA discrimination case - $181,522.61 in back pay and $92,000 in compensatory damages - and is remanded to the district court for an award of front pay.
Donley v. Stryker Corp., No. 17-1195 (7th Cir. Oct. 15, 2018)
In a short-but-sweet opinion, the Seventh Circuit reverses summary judgment in a Title VII retaliation case, where the district court failed to perceive a genuine dispute of material fact: specifically, when company management first became aware of the plaintiff's alleged violation of work rules. By the plaintiff's account, management knowingly overlooked her alleged breach .... until she complained about sex harassment.
Exby-Stolley v. Bd. of Cnty. Comm'rs, No. 16-1412 (10th Cir. Oct. 11, 2018)
The Tenth Circuit produces a clear circuit split on an issue now poised for Supreme Court review: must a ADA plaintiff challenging an employer's failure to reasonably accommodate a disability prove an adverse employment action? The panel splits two-to-one on this issue, in favor of the employer.
Dodd-Frank Protects Whistleblowers Who Report to Both the SEC and Their Employers
Earlier this year, the U.S. Supreme Court ruled that to receive protection against retaliation under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), a whistleblower employee must first report suspected securities law violations to the U.S. Securities and Exchange Commission ("Commission"). In that case - Digital Realty Trust, Inc. v. Somers - the Court also held that internal reporting within the employer's organization, which previously had been protected in some jurisdictions, is no longer sufficient on its own.
While Digital Realty significantly narrowed the anti-retaliation protections of Dodd-Frank, there was a silver lining in the opinion. The Court affirmed that "dual reporters," i.e., those whistleblowing employees who report both to the Commission and an employer, are protected from retaliation, regardless of whether the employer is aware of the individual's disclosure to the Commission.
High-Stakes Whistleblowing: Dodd-Frank and Beyond
Blowing the whistle on high-stakes financial fraud, misappropriation, or criminal mismanagement can come at great personal risk to a well-intentioned individual. Following the financial crisis of the late 2000s, numerous laws, including the Dodd-Frank Wall Street Reform & Consumer Protection Act of 2010 ("Dodd-Frank"), contain financial incentives for "whistleblowing" by employees who provide evidence of corporate wrongdoing. Other government agencies, including the Internal Revenue Service ("IRS"), also incentivize reporting of financial impropriety, including tax fraud. Recent legislative changes have bolstered the IRS' internal whistleblower program and decreased the tax consequences of collecting a whistleblower award pursuant to Dodd-Frank.
Gogel v. Kia Motors Mfg. of Georgia, Inc., No. 16-16850 (11th Cir. Sept. 24, 2018)
There have been various cases that have addressed whether human-resource professionals may benefit from the anti-retaliation provisions of federal employment law when they are fired for investigating or pursuing an EEO claim, as part of their duties. In this fascinating case, the Eleventh Circuit (dividing 2-1) holds that an HR manager who the company believed "encouraged or even solicited" an employee to sue her employer was protected by Title VII.
EEOC v. Costco Warehouse Corp., No. 17-2432 (7th Cir. Sept. 10, 2018)
Title VII requires that employers exercise due care to prevent sexual harassment of their employees by customers. The EEOC prevailed at trial on just such a claim, winning a $250,000 verdict for a woman shelver who - a jury found - was stalked for over a year by a male customer, while Costco took inadequate measures to protect her. The Seventh Circuit upholds the verdict, and even remands the case back to the district court for award of more back-pay relief.
Hager v. DBG Partners, Inc., No. 17-11147 (5th Cir. Sept. 6, 2018)
The Fifth Circuit becomes the first federal court of appeals to recognize a remedy for a plan's failure to notify a COBRA participant of the termination of a health-care plan under 29 U.S.C. § 1166(a)(4): award of a civil penalty under 29 U.S.C. §§ 1132(a)(1)(A) and 1132(c)(1).
