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.
The Seventh Circuit creates a split with the Eleventh Circuit, holding that job applicants may bring claims for disparate impact under the ADEA under 29 U.S.C. § 623(a)(2). The panel majority allows a challenge to an employer's classification of an in-house Senior Counsel position as "3 to 7 years (no more than 7 years) of relevant legal experience."
In an important decision, the Ninth Circuit holds en banc that a "factor other than sex" under the Equal Pay Act (29 U.S.C. § 206(d)(1)) must be "job-related," and thus rejects an employer's use of pre-employment salary history as a reason to pay a woman less than a man doing the same work. The court overrules its prior decision on this subject, Kouba v. Allstate Ins. Co., 691 F.3d 873 (9th Cir. 1982).
The Sixth Circuit affirms a $350,000 jury award for a police officer who was transferred far from her home, in retaliation for complaining about sex harassment. The court rejects a bid by the department to reduce the award, finding that the jury's calculations of back and front pay - and award of compensatory damages for pain and suffering - are supported by the record.
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.