The Fifth Circuit, in a 10-6 en banc decision, affirms a jury verdict in favor of the government on a male iron worker's claim that he was sexually harassed by a male supervisor on a nearly-daily basis at his worksite, the Twin Spans bridges between New Orleans and Slidell, Louisiana. The full court considers what an employee must prove to establish that a hostile-work-environment is "because . . . of sex," and whether the incident here was severe or pervasive. Meanwhile, the six dissenters between them contribute four separate opinions, lashing out at every aspect of the majority's interpretation of the record and Title VII law.
When does a human-resources executive truly speak for the corporation? This oft-ignored, yet critically important question occupies this Eleventh Circuit decision today, which remands a Title VII national-origin case to the district court for an evidentiary ruling on this issue. The lower court must now rule whether a remark allegedly made by the employer's HR director - that the Korean management of the company "refused to even consider American candidates" for an assistant accounting manager vacancy - may be admitted as evidence. One judge files a partially dissenting opinion on the remand.
The Fifth Circuit holds that an unstrung father struggling with child care deserves a jury trial (for FMLA retaliation) against a slew of reasons offered by Chevron for his termination. This case may also prove useful for Title VII litigants. Under that statute, a plaintiff who proves that discrimination was a "motivating factor" in workplace treatment gets a judgment in her favor. Yet an employer that proves that it "would have taken the same action in the absence" of discrimination can avoid paying monetary damages. Courts have reported very few decisions interpreting this "same decision" defense. Here, the Fifth Circuit holds that evidence that would otherwise be sufficient to prevail in a "single motive" case is not necessarily enough to win the day under "same decision."
Both the EEOC and several court decisions have recognized that an employer's duty under the ADA and Rehabilitation Act to furnish reasonable accommodations is not limited to accommodating essential functions at work, but also ancillary functions important to achieving equal access - such as commuting to and from the office. See 29 C.F.R. § 1630.2(o)(1); Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010) (partly-blind employee could be accommodated with daylight shifts, to facilitate her commute). And so, too, the Fifth Circuit holds - reversing summary judgment - that the State of Louisiana might be required to provide a free on-site parking space to accommodate the plaintiff's disability (osteoarthritis of the knee).
The Eleventh Circuit takes a state university to task, in the very first lines of its opinion, for permitting a race (and gender) hostile environment to persist in one of its departments: "The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama." The panel affirms a jury verdict in favor of There plaintiffs for harassment and retaliation, plus a cumulative award of over $1 million.