The original Title VII was centered on injunctive relief, principally putting protected-class employees to work. So this Fifth Circuit case is a valuable one, reminding us of the roots of the law and why reinstatement remains the presumptive remedy in discrimination cases.
A reminder from the Fifth Circuit: a shift transfer can be a materially adverse action for retaliation purposes. "[A] retaliatory shift change that places a substantial burden on the plaintiff, such as significant interference with outside responsibilities or drastically and objectively less desirable hours, can dissuade an employee from reporting discrimination."
The Fifth Circuit becomes the first federal court of appeals to recognize a remedy for a plan's failure to notify a COBRA participant of the termination of a health-care plan under 29 U.S.C. § 1166(a)(4): award of a civil penalty under 29 U.S.C. §§ 1132(a)(1)(A) and 1132(c)(1).
The Fifth Circuit vacates and remands summary judgment in a Title VII case, holding that the record presents a genuine dispute of material fact whether an assisted living facility took reasonable precautions to prevent a resident from sexually harassing a nurse, and also whether she was retaliated against when--as a self-protective measure--she refused to attend the harasser.
Can a boss's repeated offer of a "big bonus" to a woman employee as an inducement to date an important customer constitute quid pro quo sexual harassment? The Fifth Circuit today holds that it can ... but also holds (2-1) that the plaintiff failed to present a genuine dispute that she was entitled to such a bonus in the first place.
One way that an employee can circumstantially prove discrimination is by showing that the employer offered shifting and inconsistent rationales for its adverse action. The Fifth Circuit returns this ADA and FMLA retaliation case back for a jury to decide on just that rationale.
Undocumented workers are entitled to protection under Title VII and other federal employment laws, but many fear filing charges and lawsuits because they risk exposure, termination, and deportation. The Fifth Circuit addresses the delicate balance between the public interest in enforcing anti-discrimination laws and the right of an employer under federal discovery procedures to obtain evidence that is potentially important to its defense.
The Fifth Circuit reverses summary judgment in a pregnancy discrimination case, decided under the Texas Commission on Human Rights Act ("TCHRA"). The panel holds that the plaintiff presented a genuine dispute of material fact about each of two reasons that the employer - a law firm - gave for her termination. The opinion reminds employers that simply keeping records of an employee's supposed violations is not enough to avoid a trial, and that the plaintiff's own testimony about the records deserves equal dignity.
The existence of a formal anti-harassment policy in the workplace does not guarantee results for the employer if it does not do the important work of publicizing and training on the policy. The Fifth Circuit reverses summary judgment (in part) owing to a factual dispute about whether a school board did what it needed to do to make its policy a reality. It's an important case on the application of the first prong of the Faragher-Ellerth defense against supervisor-harassment liability.
Here's another case involving a joint-employer relationship between a staffing agency and one of its clients. The Fifth Circuit reverses summary judgment, holding that There was a genuine dispute about whether the staffing agency should have known that the client asked it to reassign an employee for age-biased reasons.