The Seventh Circuit sends back for trial this Title VII religious-accommodation case, concerning a Nigerian employee's request for five weeks' leave time to attend his father's funeral overseas. One disputed issue was whether the employee clearly indicated a religious purpose for the voyage, where he said that "if he failed to lead the burial rites, he and his family members would suffer at least spiritual death."
Under the law of several federal circuits, employment-discrimination and other plaintiffs who omit their claims as estate assets in Chapter 7 bankruptcy are held to forfeit them under the legal theory of "judicial estoppel" - a rule that prevents litigants from taking inconsistent positions in successive proceedings. The Ninth Circuit, in a 2-1 decision, stakes an entirely new position, contrary to this consensus: provided that the claimant omitted the claim by mistake or inadvertence, and re-opens the bankruptcy proceeding to correct the omission, there will be no estoppel. A dissenting judge vigorously objects to this plaintiff-friendly rule.
Though slightly off the employment-beat, this Ninth Circuit decision may be useful to our readers, for the important and simple lesson that an Americans with Disabilities Act plaintiff does not necessarily need an expert to testify about architectural barriers. As the panel majority writes, "Perhaps we've become too expert-prone."
A departing employee who turns in her office BlackBerry incautiously allowed her former boss access to 48,000 (!) private g-mails messages. Are the boss and employer possibly liable for violations of the federal Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., by opening and reading some of those messages? A district court in Ohio holds in favor of the employee, denying a motion to dismiss her complaint on this count.