Title VII sex harassment law has persisted over the decades to place the onus on the victim to report the violation through the employer's anti-harassment policy, and - failing in that step - most courts find no employer liability. But the Third Circuit today issues an opinion that takes a step away from that stance, holding that there can be a genuine dispute about liability for supervisor harassment even when there was no complaint to the employer at all.
In a rare federal court of appeals opinion in this area, the Third Circuit has occasion to decide whether a hospital employee manifested a religious (versus an ethical) objection to getting a flu shot that would be protected by Title VII's religious-accommodation provision, 42 U.S.C. § 2000e(j).
The Third Circuit holds, in a 2-1 decision, that an individual may be a "supervisor" for purposes of imputing liability to the employer vicariously for sex harassment if they are "tasked with creating a work schedule" for their subordinates.
The Third Circuit holds that a manager's single use of a racial slur, combined with a threat to fire a Black employee, may be enough all by itself to constitute a hostile work environment under Section 1981.
The Third Circuit on Tuesday took up the issue of causation, and the amount of proof a plaintiff must present, under two federal anti-retaliation laws. In Egan, the panel holds that employees may pursue FMLA retaliation claims under a mixed-motive theory, as supported by a Department of Labor regulation. In Carvalho-grievous, the court announces a lowered bar for establishing Title VII retaliation at the prima facie stage.
The Third Circuit, declaring a split with several other courts, holds that an ADEA disparate-impact case may allege discrimination against a subset of the protected group, here employees 50 and over. Prior decisions had held that such claims could be based only on the entire protected group - age 40 and over - but the Third Circuit panel holds that "their reasoning relies primarily on policy arguments that we do not find persuasive."
The Third Circuit issues a solid reminder to judges that - notwithstanding the increased attention on filing "plausible" complaints under Federal Rule of Civil Procedure 8 - federal courts do not require the pleading of legal theories. Thus, plaintiffs are not required to specify the method that they plan to use to prove discrimination cases in their Title VII complaints.
The Third Circuit overrules its prior, restrictive case law interpreting the limitations period under Title VII for a claim of hostile work environment, holding that - in light of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) - the employee need not present evidence on the "permanence" of harassing conduct to prove a continuing violation. The panel reverses and remands a claim of sex harassment to be evaluated under the new, more forgiving standard.
A case that demonstrates the importance of communication between employee and counsel, as well as the imperative to preserve and locate documents. The Third Circuit devotes 35 pages to reversing a mistrial and sanctions against a plaintiff in a disability-discrimination case for supposedly withholding original doctor's notes. In hindsight, a simple memo could have headed off this trip to the court of appeals.
For the second time in three months, The Third Circuit confronts a New Jersey municipal residency requirement - challenged for disparate impact under Title VII - and once again rules in favor of the applicants. One twist in this case was that the residency requirement was, in part, arguably required by a consent decree. The panel rejects a Ricci defense.