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November 2011 Archives

Almond v. Unified school District #501, No. 10-3315 (10th Cir. Nov. 29, 2011); Schwartz v. Merrill Lynch & Co., No. 10-0826 (2d Cir. Nov. 30, 2011)

The Lilly Ledbetter Fair Pay Act of 2009 righted an injustice to employees whose discriminatory compensation results from numerous, cumulative and small decisions that are not separately actionable under Title VII and other statutes. By that Act, Congress abrogated the unpopular 5-4 decision, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 622 (2007), placing a short deadline on filing such claims. But the Act is not a cure-all for everything ailing employees, as two decisions this week by the Second and Tenth Circuits demonstrate.

Milgram v. The Orthopedic Associates Defined Contribution Pension Plan, No. 10-1862 (2d Cir. Nov. 29, 2011)

A pension benefit plan attempts to wriggle out of a $1,571,723.73 judgment in favor of a participant with a novel defense: that it would violate ERISA's anti-alienation provision, § 206(d)(1), codified at 29 U.S.C. § 1056(d)(1), for the plan to pay the prevailing plaintiff what he is owed. The Second Circuit addresses and rejects this argument.

New PRC Social Insurance Law: Working in China Becomes More Costly to Foreign Employees and Employers

In the past few years China has taken steps in its legislation that have made it more expensive for foreign employers and employees to do business there. The passing of the new PRC Social Insurance Law, which took effect on July 1, 2011 is just one of those steps. The new PRC Social Insurance Law requires expatriates working in China to pay a heavy tax burden to ensure that all employees in the PRC are insured with health and welfare benefits. However, since most international assignments do not last longer than an average of three years, these foreign employees may never reap the benefits of this insurance.

Johnson v. Cleveland City school Dist., No. 10-3267 (6th Cir. Nov. 15, 2011)

Apparently, in Cleveland, Ohio public schools, the ability to yell at the class - here, politely termed "verbally control[ling] resistive students" - is deemed an "essential function" of teaching. A teacher's medical restriction not to raise her voice, holds an unreported Sixth Circuit decision today, means that she is not a "qualified individual" under the ADA.

Protecting Teenagers From Sexual Harassment at school

Nearly a half of all middle and high schoolers experienced sexual harassment in the last school year, according to a New York Times article from earlier this week. The director of research at the American Association of University Women, the organization that conducted the survey, stated that sexual harassment is "almost a normal part of the school day." 

Makowski v. Smith Amundsen LLC, No. 10-3330 (7th Cir. Nov. 9, 2011)

Memo to Directors of Human Resources: what you tell an employee about an adverse employment decision is admissible as evidence in a Title VII case, even if you were not personally involved in the final decision. The Seventh Circuit so holds in a case reversing summary judgment in a pregnancy-discrimination and FMLA case.

The Cost of Denying Parental Leave

The European Parliament recently set forward a proposal to extend its parental leave to include 18 weeks full pay of maternity leave and 2 weeks full pay of paternity leave. See Maternity Leave Revisions Continue to Split EP and Council. While there has been opposition to the amendments in Europe in the face of an economic crisis, Edite Estrela, an MP from perfunctory, recently argued that "maternity should not be seen as a burden on the economy but rather as a service provided to society." In the EU, the current minimum maternity leave is 14 weeks.

Another Anita Hill

Recently, one of the women who have accused Herman Cain of making inappropriate sexual advances said (through her attorney) she did not want to identify herself publicly because she did not want to become "another Anita Hill." What does it mean to "be Anita Hill."  Professor Hill's story is in many ways a story of perseverance over the expectations of her time about the role of women in the workplace. Then, and still now, coming forward and alleging harassment often requires speaking truth to power. Yet, as Cain's accuser's reluctance suggests, it also a choice not live in anonymity and to invite controversy and potential ridicule.

Novella v. Westchester County, No. 09-4061 (2d Cir. Nov. 3, 2011)

Today's ERISA question is an important one: when, for limitations purposes, does a claim accrue against a pension plan for miscalculating the participant's benefit? After considering several alternative formulae developed in different circuits and district courts, the Second Circuit holds that the claim begins only "when there is enough information available to the pensioner to assure that he knows or reasonably should know of the miscalculation."

Tepperwien v. Entergy Nuclear Operations, No. 10-1425 (2d Cir. Oct. 31, 2011)

Can increased scrutiny at work, including a disciplinary letter (later withdrawn), constitute a "materially adverse action" for a claim under Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)? A jury said "yes," to the tune of a $500,000 judgment, but the Second Circuit - in a 2-1 decision - sides with the district court on these facts, and says "no."

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