May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of "race"? The panel unfortunately holds that "race" under Title VII is limited to "immutable" physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.
The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where There was evidence that the lower-level decision maker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.
Is There Title VII "race" discrimination if the two competing candidates identify as "white"? The Second Circuit holds that this scenario may state a claim where one of the candidates is deemed to be of "Hispanic" ethnicity.
The Tenth Circuit reverses summary judgment and remands in a section 1981 case involving harassment of a call-center's only black employee. The panel reminds district courts and litigants that even non-racial remarks, against a backdrop of racially-offensive chatter, may constitute harassment. It also notes that "whether a workplace environment is sufficiently polluted for purposes of a § 1981 claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense."
A long-running disparate impact case challenging promotions of firefighters to the ranks of Lieutenant and Captain is remanded by the Sixth Circuit for a third trial to award back pay, and the panel reassigns the case to a new judge for good measure. The panel has valuable things to say about how to calculate monetary make-whole relief. It also affirms injunctive relief, and appointment of a monitor, to purge the city's violation.
The Second Circuit holds that racially-biased comments by a decision maker - even if not specifically concerning the adverse employment decision - may be circumstantial evidence of a biased motive if it is related in some way to the employee's performance. The panel also holds that denial of tenure to a public school teacher is an adverse employment action, even if the teacher is invited to continue to working.
When two employees fight, employers face the challenge of making the discipline fit the crime - and, also, avoiding racial or There bias. The Sixth Circuit calls out management in one such case today, concerning a black plaintiff fired supposedly for engaging in a fight, while the white employee in the same fight was disciplined only belatedly.
The Fifth Circuit issues yet another reminder, in today's Title VII decision, that an employer who stoutly refuses to offer any explanation for a decision to deny a promotion takes a strong chance of having to justify its actions at a jury trial.
In an organization otherwise blanketed in paper, it raises eyebrows when the employer's complaints about a worker's performance find no support in the records. The Seventh Circuit vacates summary judgment in this pro se case, and remands for a trial of Title VII and § 1983 claims, where the performance-based reasons offered for a black teacher's termination were at odds with the employer's files and were bolstered mostly by sharply-disputed witness testimony.
A rare "color" discrimination case under Title VII makes its way up on appeal. The district court, erroneously treating the case as one of race discrimination, granted summary judgment - but the Fifth Circuit reverses in a terse six-page opinion. The evidence included an affidavit from a former employee stating that casino management would not let "a dark skinned black person handle any money," and "that they thought Esma Etienne was too black to do various tasks at the casino."