After a jury found that Defendant KarenKim, Inc. ("KarenKim") had subjected a class of female employees to a sexually hostile work environment under Title VII of the Civil Rights Act of 1964 and New York State Law, the EEOC moved to alter the judgment to impose broad injunctive relief against KarenKim to ensure that the pervasive sexual harassment that had occurred would not continue which included barring the re-hire of the sexual harasser, Allen Manwaring. The district court denied the EEOC's request in its entirety and the EEOC appealed. The Second Circuit found that such injunctive relief was necessary to address the "cognizable danger" of an employer "engaging in 'recurrent violations' of Title VII."
Here's a case that addresses the vexing question, "What happens when a key fact witness in a Title VII/ADEA trial - the defendant's decision maker - dies before he/she can offer testimony?" The Second Circuit's answer is that the employer in those circumstances can rely on circumstantial evidence, here a folder of resumes that the decision maker reviewed when making the hiring decision at issue. So holding, the court affirms a jury verdict for the school district, allowing the paperwork to stand in the place of live testimony about the reasons why the plaintiff was not hired.
The Second Circuit issues in important decision today in the fields of Title VII sex harassment and retaliation. The panel affirms a jury verdict of $5200 for a Title VII and New York state law hostile work environment claim, holding that the employer cannot raise a defense under Faragher/Ellerth when the harasser is also a senior executive "alter ego" of the employer. But the panel also affirms dismissal of a Title VII retaliation claim, for an HR executive engaged in an internal investigation of the harassment, holding that the "participation" clause does not cover an internal investigation of a complaint of discrimination before an EEOC charge is filed.
The Second Circuit reverses summary judgment in a Title VII same-sex harassment suit, finding that three intimate touchings over a five-month period by a supervisor may constitute a hostile work environment, and that the employer's defense it responded appropriately to the employee's oral complaints of harassment needed to be tried to a jury. The court reaffirms that while a workplace inevitably involves personal intrusions and employees surrender some autonomy, "giving up control over who can touch their bod[ies] is usually not one of them."
In this long-lived appeal, involving an antitrust tying claim against the American Express Company, the Second Circuit reaffirms its prior holding that an arbitration clause preventing class-action litigation of a medium-dollar claim may be unenforceable if its practical effect is to prevent the plaintiffs from vindicating their statutory rights.
The Lilly Ledbetter Fair Pay Act of 2009 righted an injustice to employees whose discriminatory compensation results from numerous, cumulative and small decisions that are not separately actionable under Title VII and other statutes. By that Act, Congress abrogated the unpopular 5-4 decision, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 622 (2007), placing a short deadline on filing such claims. But the Act is not a cure-all for everything ailing employees, as two decisions this week by the Second and Tenth Circuits demonstrate.
A pension benefit plan attempts to wriggle out of a $1,571,723.73 judgment in favor of a participant with a novel defense: that it would violate ERISA's anti-alienation provision, § 206(d)(1), codified at 29 U.S.C. § 1056(d)(1), for the plan to pay the prevailing plaintiff what he is owed. The Second Circuit addresses and rejects this argument.
Today's ERISA question is an important one: when, for limitations purposes, does a claim accrue against a pension plan for miscalculating the participant's benefit? After considering several alternative formulae developed in different circuits and district courts, the Second Circuit holds that the claim begins only "when there is enough information available to the pensioner to assure that he knows or reasonably should know of the miscalculation."
Can increased scrutiny at work, including a disciplinary letter (later withdrawn), constitute a "materially adverse action" for a claim under Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)? A jury said "yes," to the tune of a $500,000 judgment, but the Second Circuit - in a 2-1 decision - sides with the district court on these facts, and says "no."
The Second Circuit becomes the latest U.S. Court of Appeals to join the fray about whether to adopt what is known as a "presumption of prudence" under ERISA. The rule favors plan fiduciaries who allow investment in company stock in an employee stock ownership plan (ESOP), despite knowing that the company stock is very risky. In two divided opinions, the panel adopts the presumption of prudence over a sharply-worded dissent.