In the Supreme Court's only substantive Title VII case this term, the six-justice majority takes a plaintiff-friendly view of when a claim for constructive discharge accrues - on the date that the employee declares his resignation - while Justice Alito's special concurrence and Justice Thomas's dissent would start the limitations clock with the last discriminatory event. The court also dispenses with the requirement (imposed by some courts) that hostile working conditions be created by the employer with the intent of making the employee resign.
The Eleventh Circuit holds (2-1) that hiring guidelines that target employees a few years out of college, or that discourage hiring of employees with too much experience, may violate the ADEA if they have a disparate impact on hiring employees age 40 and over. The majority also holds that equitable tolling of the limitations period for filing an EEOC charge does not necessarily depend on concealment or fraud by the employer.
The Supreme Court - presented with a simple question about ERISA's fiduciary-duty statute of limitations (29 U. S. C. § 1113) - lays the foundation for a potential new round of litigation about how strictly and often plan fiduciaries must monitor the performance of their retirement investment plans. The Court, without dissent, agrees that There is no set-it-and-forget-it rule for fiduciaries.
The Tenth Circuit addresses two issues of interest to those who regularly represent employees, especially those in the federal sector. First, the panel holds - in a widening circuit split - that a claim of constructive discharge under Title VII accrues not at the time that an employee quits, but when the last act of alleged discrimination by the employer occurs. In the federal sector, this significant because of the narrow 45-day window for complaining about discrimination. Second, the panel holds that a threatened suspension without pay may, even if it does not materialize, constitute a "materially adverse action" for a Title VII claim of retaliation.
The Supreme Court today - in a unanimous opinion authored by Justice Thomas - lays a trap for the unwary ERISA plan participant. It holds that an ERISA plan sponsor can impose its own limitations period and accrual rule for claims under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), different from what is provided by state or federal law, provided that it is not "unreasonably short" (and remains subject to equitable exceptions). This post explains the significance of Monday's opinion and sets out three things that participants and beneficiaries must do to protect themselves from these legal landmines.
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.
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.
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."
An age discrimination plaintiff wins a $48,000 judgment at trial, only to lose it - in a 2-1 vote - before a panel of the Fifth Circuit, which holds that judgment should have been entered for the employer on limitations grounds. As Judge Higginbotham's dissent points out, the issue of who decides such issues is paramount.
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.