The employer's affirmative defense to sexual harassment claims - recognized by the Supreme Court in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) - does not apply if a supervisor's harassment culminates in a "tangible employment action," defined as a significant adverse change in employment status. In a rare court of appeals opinion presenting this issue, the Fourth Circuit reverses summary judgment and holds that to compel an employee either to sign a severance agreement or be fired may constitute such a tangible employment action.
May the federal government be sued in state court on a Title VII claim? Remarkably, the statute contains no provision for exclusive federal jurisdiction over such claims, and the Fourth Circuit splits 2-1 over whether there is concurrent jurisdiction.
We don't see too many published Title VII appeals concerning quid pro quo/"tangible employment action" sex harassment - claims that a harasser used his supervisory authority to punish the employee in some way for not submitting to demands for sex - but the Fourth Circuit issued such a decision yesterday. On slightly different reasoning, the panel majority and concurring judge agree that the case should be remanded for a trial on that theory, as well as straight hostile-work-environment and retaliation claims.
Though you won't find this in the official advance sheets (it is officially non-precedential), it is nice to see yet another case holding that a sexually-hostile work environment may violate Title VII, even if it is not targeted at a particular female employee.
Hats off to the EEOC for persuading the Fourth Circuit to remand, for a trial, a claim that a manufacturer did not act quickly enough in 2005-06 to protect African-American assembly plant employees from a racially hostile environment. The court affirms judgment for the employer, on the other hand, on claims after that period when the employer picked up the pace and started disciplining and (in one case) firing the offenders.
On a Friday afternoon, the Fourth Circuit in an unpublished decision dispenses some quick justice for a Title VII retaliation plaintiff -- with an assist from the appellate division of the EEOC -- holding that the complaint-filing stage is too early to decide whether a plaintiff can prove causation between a protected activity (here, complaining to management about sex harassment) and an adverse action (the company allegedly refusing to rehire her two years later).
It is a shame for the development of the law when useful opinions like this one go unpublished. A 2-1 panel of the Fourth Circuit wades into two EEO issues that divide the circuits, holding in this ADA case that (1) appellate review of a district court order granting equitable tolling of the 90-day limitations period is only for abuse of discretion, not de novo; and (2) reasonable accommodation of an employee's disability may require advising the employee of available opportunities to transfer.
From the Fourth Circuit, here's a decision reminding district courts that the summary judgment standard allows all employment discrimination cases - the weak with the strong - to go to trial, provided that there are genuine issues of material fact for a jury or bench trial to resolve. Here, the panel finds that the district court read too much into the Fourth Circuit's Title VII precedent on sex harassment, and that the degree of severe-or-pervasive behavior is quite often a fact issue suited to a trial. (And the plaintiff, helpfully, got an assist here from the Appellate Division of the EEOC as amicus.)
Updated to September 4, 2019