The Eleventh Circuit heightens the probability of Supreme Court review of a long-festering circuit split: just how "similarly situated" must a Title VII plaintiff be to a comparator employee in the workplace to establish a prima facie case of discrimination? The en banc court holds 9-3 that a plaintiff must demonstrate, at the first stage of the analysis, that she and the comparators were "similarly situated in all material respects."
One of the maddening things for employee advocates is how rules developed by the courts for one set of facts are used to swat down a case involving an entirely different set of facts. The First Circuit holds that's exactly what happened here, and reverses summary judgment when a judge used a standard developed for failure-to-hire cases to prematurely dismiss a forcible-transfer case.
In an important decision, the Ninth Circuit holds en banc that a "factor other than sex" under the Equal Pay Act (29 U.S.C. § 206(d)(1)) must be "job-related," and thus rejects an employer's use of pre-employment salary history as a reason to pay a woman less than a man doing the same work. The court overrules its prior decision on this subject, Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th Cir. 1982).
In the ceaseless struggle over what is meant by "similarly situated," an Eleventh Circuit splits over whether the plaintiff - a Black woman detective with a heart condition - presented enough evidence that two white male officers who failed a physical-fitness requirement were treated better. The case also considers, for an ADA claim, whether receiving a Taser shock or pepper spraying in training was an "essential function" of the job.
Given recent headlines about Uber and Google, it might be tempting to assume that tech is the only sector still facing stubborn problems with gender discrimination, hostile work environments, and sexual harassment. That certainly isn't the case, and one only has to look at the financial services industry to see that the issue is very prevalent in many other workplaces.
This takes the cake: an employee on the night shift at an Idaho supermarket is accused of (and fired for) taking a cake from the bakery's "stales cart" without permission to serve to co-workers. The Ninth Circuit thinks that a jury could find management's story unpalatable, though, and remands it for a trial.
It's rare for a federal court of appeals to toss a defense jury verdict in an employment-discrimination case, and rarer still for the panel to order entry of a judgment in favor of a plaintiff. Yet both things happened in yesterday's Seventh Circuit decision, which held that a group of female paramedic applicants proved they were unlawfully screened out of employment due to an unreliable physical-skills entrance examination.
One pernicious "stereotype is the idea that men are better suited than women for positions of importance or leadership in the workplace." Here, the First Circuit reverses summary judgment in a federal-sector Title VII case, citing (among other things) a male supervisor's allegedly hostile tone and emphasis on the word "she" when he acted to block the only woman in the office from performing her job. Oh, and There's a baseball bat in the case, too.
Challenges for women working in tech are very real. Though the pay gap may be less in the tech industry than other sectors (the New York Times reported that women in tech earn 89 cents for every dollar earned by men - as compared with the American average of 79 cents on the dollar), women in tech are by no means better off.
The Sixth Circuit holds, in an opinion that potentially expands remedies for Title VII claimants, that a back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. Nonetheless, the court holds that the employee in this particular case failed to prove that she suffered such damages.