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October 2014 Archives

Kauffman v. Petersen Health Care VII, LLC, No. 13-3661 (7th Cir. Oct. 16, 2014)

The Seventh Circuit issues a divided opinion on the issue of "qualified individual" under the ADA, in a case concerning a nursing-home beautician. While unanimously agreeing to reverse summary judgment, the panel splits over the question of how to analyze whether pushing the residents' wheelchairs was properly classified as an "essential function."

Smith v. Aegon Companies Pension Plan, No. 13-5492 (6th Cir. Oct. 14, 2014)

The crafters of the 1974 ERISA statute intended participants to have the broadest range of access to federal court, including a special venue statute and national service of process. Under ERISA, venue is proper in "the district where the plan is administered, where the breach took place, or where defendant resides or may be found." 29 U.S.C. § 1132(e)(2). But a 2-1 decision in the Sixth Circuit - four decades after ERISA's passage - threatens that accomplishment, holding that a plan choice-of-forum clause that limited venue to a single district in Iowa five hundred miles from the plan participant could be enforced.

Johnson v. Securitas Security Svcs., No. 12-2129 and Tramp v. Associated Underwriters, Inc., No. 13-2546 (8th Cir. Oct. 7, 2014)

The Eighth Circuit, en banc (9-3), today affirms summary judgment in an ADEA case. The surprise is not so much in the outcome as the vote split, which is not along ordinary lines. In second case, a panel reverses (in part) summary judgment on another ADEA claim, finding that pointed inquiries into an employee's Medicare eligibility and health-plan costs were probative evidence of age bias.

Raspardo v. Carlone, No. 12-1686 (2d Cir. Oct. 6, 2014)

Lawyers who represent employees in the state and local public sector know that, for sex discrimination and harassment claims, they can bring suit under both Title VII of the Civil Rights Act of 1964 and Section 1983 of the Civil Rights Act of 1871. The former law was passed specifically to combat sex discrimination, while the latter attacks discriminatory practices by way of the Fourteenth Amendment Equal Protection Clause. Yet while section 1983 has some specific advantages to employees - there is no administrative prerequisite to file a charge with the EEOC, the limitations period is longer, there is individual liability, and legal relief is uncapped - there are also some distinct disadvantages, such as overcoming qualified immunity. So, in this case, the Second Circuit holds that in contrast to Title VII, a plaintiff must show that each individual defendant was personally motivated by gender in order to establish liability. On this basis, the panel mostly reverses denial of qualified immunity for several individual police officers charged with sex harassment and discrimination.

President Obama Continues his "Year of Action" by Promoting Access to Justice for Workers

In his newest Executive Order, Fair Pay and Safe Workplaces, President Obama makes access to justice for workers a priority of his administration. Leading in the forum in which he has control-federal employees and companies that contract with the federal government-this the third pro-employee Order the President has signed this year. On July 21, 2014, President Obama banned federal contractors from discriminating against gay workers. Then, in January 2014, President Obama raised the minimum wage for new federal contractors to $10.10 an hour.

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