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.
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.
The U.S. Supreme Court held in CIGNA Corp. v. Amara, 563 U.S. 421 (2011), that a summary plan description (SPD) is not enforceable as a plan document. The Sixth Circuit holds, though, that a court has equitable power to order a benefit plan reformed to agree with the language of the SPD, and that it is not necessary to find fraud by the employer to do so.
The First Circuit affirms a $2.6 million judgment for race discrimination against the Massachusetts Bay Transportation Authority, where the jury was presented with direct evidence involving "[t]hree of the MBTA's supervisory staff who either concurred in [plaintiff]'s dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her."
One of the maddening things for employee advocates is how rules developed by the courts for one set of facts are used to swat down a case involving an entirely different set of facts. The First Circuit holds that's exactly what happened here, and reverses summary judgment when a judge used a standard developed for failure-to-hire cases to prematurely dismiss a forcible-transfer case.
Here's a case that may be of value to Title VII litigants, as well as in First Amendment cases. The Eighth Circuit holds that for an employer to win a mixed-motive case, where the claimed reason for termination was poor performance, it must offer "evidence showing [that the plaintiff's] performance would have indisputably caused her termination." That proves a heavy lift.
A Black employee who is denied a transfer and told by her supervisor that another manager "wanted a Korean in that position" - and is then fired a week after complaining about race discrimination - presents a triable case of Title VII discrimination and retaliation, so holds the Eleventh Circuit.
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.
An employee fired during her pregnancy should get a Title VII trial, holds the Tenth Circuit, where one of the putative decision-makers reportedly told the plaintiff "[w]hat, you're pregnant too?," and said "I don't know how I'm going to be able to handle all of these people being pregnant at once" and "I have too many pregnant workers, I don't know what I am going to do with all of them."
ADA opinions released in the Eighth and Ninth Circuits today underscore that the burden of proof, ultimately, is always on the employee to show that the employer failed to provide a reasonable accommodation. These serve as a reminder to disabled employees and counsel that when seeking reassignment as an accommodation, it is vital to request the reassignment clearly and to set one's sights realistically.