This week, two U.S. Courts of Appeals publish decisions about whether religiously-oriented employers were exempt from Title VII owing to alleged religious-liberty rights: a Methodist hospital wins in the Second Circuit, while a funeral home loses in the Sixth Circuit.
The Sixth Circuit affirms a jury verdict for an in-house lawyer in Tennessee, including $92,000.00 in compensatory damages and $18,184.32 in backpay. The court holds that the jury could have found that the employer violated the Americans with Disabilities Act (and state law) duty to accommodate, by failing to allow a ten-week period of telecommuting during the lawyer's pregnancy bedrest.
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.
In the First Circuit, a woman lieutenant successfully defends a Title VII award of $545,000 for front pay and $161,000 for emotional damages. The exhaustive 60-page opinion addresses the admissibility of harassment outside of the workplace, application of the sex-plus theory where the "plus" factor is sexual orientation, and the degree of proof necessary for front-pay relief.
The Sixth Circuit, in a split decision, remands a Title VII retaliation case for a new trial on back pay, and reconsideration of prejudgment interest - holding that the winning plaintiff was conclusively entitled to a greater recovery. It's a reminder to lawyers: whether you're trying a back-pay claim to a jury (as in this case) or to a judge, make sure to offer W-2s or other evidence to substantiate the amount, and to argue methodically for prejudgment interest.
The Tenth Circuit reverses summary judgment in a Title VII religious accommodation case, holding that a jury must decide both (1) whether the employer offered a reasonable accommodation to two Seventh Day Adventist employees who could not work Friday nights or Saturdays, by allowing them to swap shifts with willing co-workers; and (2) whether further accommodating their Sabbath observance would cause undue hardship.
The panel majority reverses and remands judgment for the state in an Equal Pay Act case. It agrees with the Third and Tenth Circuits that the employer's burden on its affirmative defense is to show not only that a "factor other than sex" could have motivated a pay differential, but actually did motivate it. The dissenting judge would impose a higher burden of proof on the EEOC when it enforces the EPA against a state agency, citing the Tenth Amendment.
In the ceaseless struggle over what is meant by "similarly situated," an Eleventh Circuit splits over whether the plaintiff - a Black woman detective with a heart condition - presented enough evidence that two white male officers who failed a physical-fitness requirement were treated better. The case also considers, for an ADA claim, whether receiving a Taser shock or pepper spraying in training was an "essential function" of the job.
In a rare federal court of appeals opinion in this area, the Third Circuit has occasion to decide whether a hospital employee manifested a religious (versus an ethical) objection to getting a flu shot that would be protected by Title VII's religious-accommodation provision, 42 U.S.C. § 2000e(j).
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.