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Daily Developments in EEO Law Archives

Heinsohn v. Carabin & Shaw, P.C., No. 15-50300 (5th Cir. Aug. 9, 2016)

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.

Hively v. Ivy Tech Community College, No. 15‐1720 (7th Cir. July 28, 2016); Ortiz-Diaz v. United States Dep't of Housing and Urban Dev., No. 15-5008 (D.C. Cir. Aug. 2, 2016)

The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.

Pullen v. Caddo Parish school Board, No. 15-30871 (5th Cir. July 20, 2016)

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.

Nicholson v. Securitas Security Services, Inc., No. 15-10582 (5th Cir. July 18, 2016)

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.

Burns v. Johnson, No. 15-1982 (1st Cir. July 11, 2016)

One pernicious "stereotype is the idea that men are better suited than women for positions of importance or leadership in the workplace." Here, the First Circuit reverses summary judgment in a federal-sector Title VII case, citing (among other things) a male supervisor's allegedly hostile tone and emphasis on the word "she" when he acted to block the only woman in the office from performing her job. Oh, and There's a baseball bat in the case, too.

Guessous v. Fairview Property Investments, No. 15-1055 (4th Cir. July 6, 2016)

An Arab-American Muslim woman from Morocco alleges that she suffered years of ethnic and religious harassment by the company's Chief Financial Officer, and was then fired 75 minutes after complaining about it. The fourth Circuit reverses summary judgment on her Title VII and § 1981 complaint, in a blockbuster, 46-page opinion that straightens out several wrong turns that district courts take when ruling on dispositive motions.

Brown v. Smith, No. 15-1114 (7th Cir. June 28, 2016)

Here's a nice, short decision affirming a judgment of $25,200 in compensatory damages and $65,274.64 in back pay for an ADA plaintiff fired because of his insulin-dependent diabetes. The court underscores that the question of "essential function" under that statute is a factual one for a jury to resolve. And the court also holds that starting a business, even one that fails, is a valid method of mitigating damages.

Morris v. McCarthy, No. 14-5074 (D.C. Cir. June 14, 2016)

The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where There was evidence that the lower-level decision maker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.

Chambers v. Burwell, No. 14-5047 (D.C. Cir. May 31, 2016); Johnson v. Perez, No. 14-5034 (D.C. Cir. May 20, 2016)

In two recent federal-sector race discrimination decisions, the D.C. Circuit - while ruling in the employer-agency's favor - issued opinions that may be even more useful for employees in future cases. Both opinions criticized short-cuts sometimes used by district courts to improperly weigh summary judgment records.

Green v. Brennan, No. 14-613 (U.S. S. Ct. May 23, 2016)

In the Supreme Court's only substantive Title VII case this term, the six-justice majority takes a plaintiff-friendly view of when a claim for constructive discharge accrues - on the date that the employee declares his resignation - while Justice Alito's special concurrence and Justice Thomas's dissent would start the limitations clock with the last discriminatory event. The court also dispenses with the requirement (imposed by some courts) that hostile working conditions be created by the employer with the intent of making the employee resign.

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