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).
May an employer charge a job applicant for the cost of a post-offer medical review, when the employer believes that the applicant has a medical impairment? The Ninth Circuit holds "no" under the ADA, affirming a judgment on behalf of an employee who was asked to pay for his own MRI.
The Supreme Court in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), held that an ADEA plaintiff does not have to tender back (offer to return) consideration paid in settlement of a claim as a condition to challenge that settlement in court. Today, the Sixth Circuit (in a 2-1 decision) extends that ruling to Title VII and Equal Pay Act (EPA) claims.
The Sixth Circuit affirms a jury award in an ADA case of $27,565 in back pay and $250,000 in compensatory damages, awarded to a dollar-store clerk who was fired for grabbing orange juice from the store fridge twice during diabetic episodes. The panel notes, among other things, that the failure to provide a reasonable accommodation can itself be direct evidence of discrimination.
Here's a valuable case for employees suffering harassment (and lawyers who bring such cases). The First Circuit reverses summary judgment for age-based and retaliatory hostile work environment, holding that the district court put the plaintiff to an impossible standard of specificity to prove individual incidents of harassment. It also holds that repeated threats of termination can constitute constructive discharge.
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.
The Fourth Circuit reverses summary judgment in a Title VII retaliation case, where the plaintiff's direct boss allegedly declared that she "wanted someone of a different race" in the job, then proceeded to subject her to "constant surveillance, badgering, and criticism." When the plaintiff "told the City that she intended to file a formal grievance" about the hostile work environment, the defendant fired the plaintiff the very next day.
There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
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.