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December 2011 Archives

Vaughn v. Woodforest Bank, No. 11-60102 (5th Cir. Dec. 22, 2011); Ash (Hithon) v. Tyson Foods, Inc., No. 08-16135 (11th Cir. Dec. 16, 2011)

As we approach the final stretch of 2011, I can report two more appeals of race discrimination cases where the plaintiffs (more or less) came out on top. In the Fifth Circuit, the panel reverses summary judgment in a Title VII reverse-race termination case, finding that the plaintiff succeeded in building a plausible claim that her employer lied about the reasons for her termination. And in the Eleventh Circuit, a now-15 year-old, § 1981 case - which took an intervening trip to the U.S. Supreme Court - comes to what may be its final resting place, with the plaintiff keeping a winning verdict and judgment, while losing $1 million in punitive damages.

Auditor Wage & Hour Litigation Against Big Four Accounting Firms

The Big Four accounting firms in the U.S. - KPMG, Deloitte & Touche, PricewaterhouseCoopers (PwC), and Ernst & Young - retain cadres of unlicensed employees who work in high-pressure, entry-level positions variously titled "Associate," "Audit Associate," "Audit Assistant," "Advisory Associate," and "Unlicensed Associate." Their task is to execute transactions that are essentially rote and clerical.  Yet the Big Four routinely classify these employees as "professional" or "administrative" to exempt them from overtime requirements under federal (Fair Labor Standards Act, or FLSA) and state law.

Pickett v. Sheridan Health Care Ctr., No. 11-2146 (7th Cir. Dec. 15, 2011)

Last year, in Pickett v. Sheridan Health Care Ctr., 610 F.3d 434 (7th Cir. 2010), the Seventh Circuit affirmed a jury verdict and judgment in favor of the employee in a Title VII retaliation lawsuit. In the follow-on litigation over the award of attorney's fees, the Seventh Circuit vacates the district judge's nearly 50% reduction of the plaintiff lawyer's lodestar amount, creating splits with other circuits about the (ir)relevance of contingency-fee contracts and the so-called "Laffey Matrix" in determining the lodestar rate.

Baird v. Gotbaum, No. 10-5421 (D.C. Cir. Dec. 13, 2011)

When you're litigation counsel for a major employer, it is recommended that you do not email the following: "the 11th floor . . . staff in the area of conference room 11E [are advised] to use caution about what they say in halls or open offices," for "[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations." The D.C. Circuit holds in a pro se appeal that a complaint describing this and other hostile behavior stated a claim for retaliatory harassment under Title VII, reversing a district court order dismissing the complaint.

NAACP v. North Hudson Regional Fire & Rescue, No. 10-3965 (3d Cir. Dec. 12, 2011)

For the second time in three months, The Third Circuit confronts a New Jersey municipal residency requirement - challenged for disparate impact under Title VII - and once again rules in favor of the applicants. One twist in this case was that the residency requirement was, in part, arguably required by a consent decree. The panel rejects a Ricci defense.

Sexual Harassment Claims and the Tension of Maintaining Confidentiality While Seeking Support

Suing your boss is just about the most stressful thing you can do, especially when you are claiming sexual harassment. Once you make such a claim, you can be sure your employer will say one of two things: either he will claim that nothing inappropriate ever happened, and Therefore you are delusional, or he will admit that something happened, but, whatever it was, it was either trivial or consensual (or both) and so you are a liar and a slut.

Glenn v. Brumby, No. 10-14833 (11th Cir. Dec. 5, 2011)

The Eleventh Circuit declares that transsexualism is a protected classification under the federal Equal Protection Clause, and holds that "a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity." The result is affirmance of summary judgment for the employee.

SDNY Judge Holds FLSA Collective Action Waivers Unenforceable as a Matter of Law

A recent case out of the U.S. District Court of the Southern District of New York, Raniere v. Citigroup Inc., No. 11 Civ. 2448, 2011 WL 5881926 (S.D.N.Y. Nov. 22, 2011), holds that FLSA collective action waivers are unenforceable--as a matter of law. This a groundbreaking decision that offers a roadmap for defeating collective action waivers in the wake of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).

A Pink Slip Before Christmas Likely Means No Bonus in Your Stocking

Most employees in the financial services industry work all year long to earn an annual bonus, which often represents a major portion of their total compensation for the year. Unfortunately, employees not protected by a contract or an offer letter that specifically calls for a bonus payment if and when terminated (even if before year end), will likely be out of luck this season, even if they worked an entire fiscal year.

The EEOC Provides Guidance on the "Reasonable Factor Other than Age" Defense to the Age Discrimination in Employment Act

On November 16, 2011, the Equal Employment Opportunity Commission ("EEOC") approved, by a 3-2 vote, draft final regulations that provide guidance on the meaning of "the reasonable factor other than age" defense under the Age Discrimination in Employment Act ("ADEA"). These proposed regulations advance the purpose of the ADEA by forcing employers to think twice about whether their policies have an arbitrarily discriminatory effect on older workers.

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