The Ninth Circuit, in tension with the Fifth and Tenth Circuits, holds that a public employee has a federal constitutional privacy right (under due process) not to be fired from a job because of an extramarital affair with a co-worker. A concurring judge in the panel agrees with the result, but offers a narrower rationale.
The Ninth Circuit becomes the fourth court of appeals to recognize tax gross-up awards to successful Title VII plaintiff, which recognize (and compensate for) the tax penalty that plaintiff suffer when they receive lump sums of back pay in a single tax year.
Here's a timely reminder to include a prayer for nominal damages in Title VII and ADA complaints. At least in some circuits, including the Ninth, such relief is deemed equitable and thus may protect a claim from being mooted by intervening changed circumstances. That little toehold for $1.00 in damages may be the difference between outright dismissal and prevailing-party status.
Can a huggy boss create a hostile work environment? The Ninth Circuit holds that it's for a jury to decide, in a case where a sheriff allegedly hugged the women officers, but not the men.
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.
A Ninth Circuit panel holds, in a Title VII and Oregon state law case, that an employer's breaking into a work locker constitutes a materially adverse employment action. The panel also splits - 2-1 - over whether the employer failed to take appropriate steps to stop alleged racial harassment, and whether it disproportionately punished the plaintiff by firing him (for leaving the workplace) while taking no action against the harasser.
Here are two employment cases about second-chances. A plan participant who filed an ERISA claim too late under a contractual limitations period is rescued by a decision that the plan violated its duty by not telling the participant about the shortened deadline. The EEOC wins a second opportunity to advance claims on behalf of a class of female victims of harassment, in the wake of Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015).
The Ninth Circuit, ruling en banc, overrules a prior panel decision and holds that the BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), ratio test for excessiveness of punitive damages is essentially unnecessary for evaluating a capped award under Title VII governed by 42 U.S.C. § 1981a(b)(3)(D).
Employees with disabilities are sometimes caught between the desire to work and the need to apply for public or short-term disability benefits for survival purposes. The Ninth Circuit does a good job in explaining how these are not necessarily in conflict, reversing summary judgment in an Americans with Disabilities Act case where a school teacher had to apply for disability retirement.
Under the law of several federal circuits, employment-discrimination and other plaintiffs who omit their claims as estate assets in Chapter 7 bankruptcy are held to forfeit them under the legal theory of "judicial estoppel" - a rule that prevents litigants from taking inconsistent positions in successive proceedings. The Ninth Circuit, in a 2-1 decision, stakes an entirely new position, contrary to this consensus: provided that the claimant omitted the claim by mistake or inadvertence, and re-opens the bankruptcy proceeding to correct the omission, there will be no estoppel. A dissenting judge vigorously objects to this plaintiff-friendly rule.