Sometimes state law and state courts provide advantages over a federal forum. Exhibit A: today's 5-2 decision from the Missouri Supreme Court, remanding an age-discrimination case for a new trial owing to evidentiary and discovery errors, particularly exclusion of evidence of discrimination against There, older coworkers and denial of a deposition of the chairman and CEO.
A long-running disparate impact case challenging promotions of firefighters to the ranks of Lieutenant and Captain is remanded by the Sixth Circuit for a third trial to award back pay, and the panel reassigns the case to a new judge for good measure. The panel has valuable things to say about how to calculate monetary make-whole relief. It also affirms injunctive relief, and appointment of a monitor, to purge the city's violation.
In a recent blog post, on Hamilton & Griffin on Rights, Outten & Golden LLP associate Nina Frank touches on our current cultural backlash against anything seen as politically correct or hypersensitive to the feelings of women, racial and ethnic minorities, and LGBTQ individuals, using the success of Donald Trump's presidential campaign as just one example. In this environment, many courts have been misusing the "stray remarks" doctrine to dismiss employment discrimination claims before they get to a jury. Ms. Frank argues that dismissing these implicitly biased comments in the workplace as mere jokes or passing remarks, lionizing those who have the audacity to utter them unapologetically, and classifying those who were harmed by them as overly sensitive, does real damage.
The Second Circuit today decides two EEO legal issues that were open in that court. First, it holds that 42 U.S.C. § 1983 allows claims against public employers for retaliation towards workers who oppose race discrimination in employment. Second, it clarifies the pleading standard for Title VII claims, holding that a plaintiff need only plead facts which show that "(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision."