Two opinions this week highlight the power of retaliation claims: in each case, the principal discrimination claim failed on summary judgment, yet the retaliation claim was remanded for trial.
The Sixth Circuit holds that full-time, in-office attendance is not a per se "essential function" for purposes of the ADA, and must be established just like any other element of the claim. The court vacates summary judgment and remands a claim brought under the ADA, Title VII, and the FMLA that the employee needed a reduced schedule to accommodate her post-partum depression and separation anxiety.
In a potentially important development for family-responsibilities discrimination law, the Eleventh Circuit upholds a $161,319.92 award for a woman who was forced to quit police work because the city would not accommodate her breastfeeding.
Two years ago, when Facebook founder and CEO Mark Zuckerberg announced he was taking paternity leave to spend time with his wife and newborn daughter, it was hailed as a breakthrough for paid family leave. Soon after, a rush of press releases from Twitter, Netflix, Microsoft, IKEA, American Express, Amazon and other well-known companies announced more generous policies. Men, they said, would be encouraged to take parental leave as well.
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.
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.
The Family and Medical Leave Act (FMLA) provides that eligible employees may be entitled to leave to care for relatives with whom they had an in loco parentis relationship as a child. The Second Circuit holds that where the plaintiff requested leave to care for a sick grandparent, who raised him has a child, the employer had a duty to inquire further about the relationship before denying leave.
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 Second Circuit, in reviving plaintiff Cathleen Graziadio's Family and Medical Leave Act (FMLA) interference and retaliation claims, reminds employers that they share responsibility with employees to comply with FMLA requirements, and cannot place the burden entirely on the employee or, as the panel here admonished, fail to cooperate with the employee altogether.