The Fifth Circuit, in a 10-6 en banc decision, affirms a jury verdict in favor of the government on a male iron worker's claim that he was sexually harassed by a male supervisor on a nearly-daily basis at his worksite, the Twin Spans bridges between New Orleans and Slidell, Louisiana. The full court considers what an employee must prove to establish that a hostile-work-environment is "because . . . of sex," and whether the incident here was severe or pervasive. Meanwhile, the six dissenters between them contribute four separate opinions, lashing out at every aspect of the majority's interpretation of the record and Title VII law.
Here's a nice David-v.-Goliath case, where a nanny goes after her former employers for violating the federal Fair Labor Standards Act, 29 U.S.C. § 206(a) and Florida, Fla. Const. Art. 10, § 24(e). Not only did the nanny prevail at trial (with a $33,025 jury verdict), but on appeal she wins the right to pursue double ("liquidated") damages, and an addition al year of lost wages, in a second trial.
In a review of a $17 million jury verdict in an age discrimination case (significantly reduced by the district court judge), the Fifth Circuit issues an important decision about who gets to decide the award for future pension benefits - the bench or jury - and whether the monetary equivalent of such benefits is subject to doubling as "liquidated damages" under the ADEA. It also deviates from recent case law of other circuits in holding that a $100,000 emotional distress damage award cannot be sustained without medical testimony.
Two recent decisions from the Eighth Circuit serve as a reminder that employment discrimination and retaliation cases are being tried and employees are winning. In Hudson, the Court affirms a nearly $180,000 jury verdict in a Title VII and ADA discrimination case, including $100,000 in emotional distress damages. In Al-Birekdar, the court upholds a $200,000 verdict for retaliation under the Missouri Human Rights Act.
The Seventh Circuit, per Judge Richard Posner, reminds the lower courts once again that private-sector employees do not have an administrative "exhaustion" requirement under Title VII, and that disputed issues of fact about limitations periods belong to a jury, not the judge.
The Sixth Circuit returns a Title VII case for trial, concerning claims that the City of Toledo discriminated against an African-American manager in work assignments, pay and evaluations, and also retaliated against him because he assisted another employee in complaining to the city about race discrimination. The panel holds that the district court applied too strict a standard at the pre-trial stage of the case, demanding proof that the "real" reason for the adverse actions was race discrimination. It also holds that at trial on the retaliation claim, the district court erred by excluding evidence of "other acts" targeting co-workers for the same activities.
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.
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 Eleventh Circuit joins There federal courts of appeals in holding that Title VII supports a claim of a retaliatory hostile work environment, substantially upholding a jury award to two plaintiff Veterans Administration doctors who were reportedly hounded by their colleagues after filing EEO complaints. The decision also discusses application of mixed-motives analysis to a Title VII retaliation/harassment claim.
In the space of ten days, two circuits issue decisions rejecting a "sole cause" jury instruction under different federal acts. The en banc Sixth Circuit unanimously sweeps away prior circuit law requiring proof under the ADA that disability was the "sole" cause of the discrimination - vacating the jury's verdict under such an instruction - though the judges ultimately divide over what the correct causation standard ought to be. In the D.C. Circuit, the panel rejects a "sole factor" instruction in a Title VII case, distinguishing a prior published decision, but affirms the defense verdict on the ground that the jury charge was overall correct.