A divided Second Circuit panel, reviewing a judgment from a jury trial, recognizes a Due Process/First Amendment right-of-intimate-association claim for two people engaged to be married (a right of "betrothal"). The court affirms liability and $304,775 in back pay (plus $5000 in punitive damages) for a plaintiff who the jury found was assaulted and harassed - and ultimately terminated from his job - because his cross-racial engagement to an African American woman.
The Supreme Court, by identical 5-4 majorities, places the goals of convenience and ease of litigating Title VII cases over the legislative imperative of expanding opportunities in the workplace for all. Vance holds that a "supervisor," for purposes of proving vicarious liability for harassment against employers, must be an agent with the power to take "tangible acts" against the employee, such as firing and setting pay. Nassar holds that employees may never shift the burden to employers to disprove causation for Title VII claims of retaliation under 42 U.S.C § 2000e-3(a). Both based their interpretations in part on the convenience of allowing lower courts to take these issues away from juries.
Here's a very important reminder that even a single verbal incident of racial harassment can constitute a hostile work environment, especially if it involves one of the most inflammatory words in the American English idiom. The D.C. Circuit, in a pro se appeal, reverses summary judgment on § 1981 harassment, retaliation and discrimination claims by an African-American Fannie Mae employee, finding a single use of the n-word sufficiently severe to present a triable issue of fact.
An employer that strenuously denied that it fired an employee who complained about sex harassment finds itself short-handed on appeal. The Ninth Circuit - in a 2-1 decision - reverses summary judgment in this Title VII harassment and retaliation case, holding that an employer that fails to offer a reason or explanation for a termination decision creates an issue of fact for the jury to decide.
This week, the Second Circuit issued two opinions that at least partially reversed summary judgment in Title VII harassment and retaliation cases. In the first, Desardouin, the panel returned a sex harassment claim that concerned sexual comments made to the plaintiff weekly by her supervisor over a two to three month period. In the second, Summa, the court held that under Title VII (and Title IX, governing educational institutions), it can be a protected activity under the statute's anti-retaliation provisions to complain of even a single incident of alleged harassment.
The Third Circuit overrules its prior, restrictive case law interpreting the limitations period under Title VII for a claim of hostile work environment, holding that - in light of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) - the employee need not present evidence on the "permanence" of harassing conduct to prove a continuing violation. The panel reverses and remands a claim of sex harassment to be evaluated under the new, more forgiving standard.
It was a long-time commonplace in federal case law that a mere threat to terminate an employee was not a "materially adverse action" under employment discrimination law. But at least under the anti-retaliation provision of Title VII, the Second Circuit seems to have recognized that such a threat may be actionable in light of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The court also holds that a hostile response to an harassment complaint can itself constitute retaliation.
This my favorite kind of entry to write: the Seventh Circuit revives a jury verdict for a victim of sex harassment, and in so doing elaborates that behavior not particularly sexual in nature - such as repeatedly calling a woman employee a "bitch" - can support Title VII liability. Regrettably, though, the plaintiff loses her termination claim and a large percentage of her damages.
The U.S. Supreme Court agrees to take a look at a long-standing circuit split under Title VII, about how much authority an agent of an employer must exercise over an employee to be deemed a "supervisor" for purposes of vicarious liability for sex or other harassment. The Tenth Circuit, meanwhile, remands a race harassment case for trial, finding sufficient evidence that the harassment was severe.
When did the Eleventh Circuit suddenly become one of the most progressive circuits in the country on employment discrimination? In the past several months, the court has issued several excellent decisions enforcing civil rights, and this latest - reversing summary judgment in a race harassment case - has the potential of helping many more such claimants by setting a reasonable bar for proving severity.