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 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.
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.
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.
In a potentially important development for family-responsibilities discrimination law, the Eleventh Circuit upholds a $161,319.92 award for a woman who was forced to quit police work because the city would not accommodate her breastfeeding.
The fourth Circuit affirms a jury verdict and back-pay relief of $586,860 in favor of the EEOC, in a Title VII religious accommodation case where the employer stubbornly "belie[ved] that it could rely on its own understanding of scripture to limit the scope of the accommodation it offered" an employee who, because of his Christian faith, refused to use a hand scanner.
There plaintiffs successfully defend a jury verdict totaling $204,000 in a Title VII, Equal Pay Act and Iowa Civil Rights Act case, plus $269,877.67 in attorney's fees. The court casts doubt on the use of a "market forces" defense by employers to justify lower pay for women, yet also holds that if such a defense were valid, the employer presented insufficient evidence to warrant an instruction.
The Third Circuit on Tuesday took up the issue of causation, and the amount of proof a plaintiff must present, under two federal anti-retaliation laws. In Egan, the panel holds that employees may pursue FMLA retaliation claims under a mixed-motive theory, as supported by a Department of Labor regulation. In Carvalho-grievous, the court announces a lowered bar for establishing Title VII retaliation at the prima facie stage.
Courts are split over whether, under the ADA, employers who are able to reassign incumbent employees to accommodate their disabilities must do so outside of a normal competitive, "best-qualified" application process. The Eleventh Circuit this week joined the fray, holding that employers do not need to abandon a so-called "best-qualified" policy for filling vacancies, even as a reasonable accommodation.