A continuing, unresolved issue under Title VII is what constitutes discrimination in "terms, conditions, or privileges of employment." Most courts require proof of a "materially adverse employment action," which can include - by way of example - being placed on an onerous schedule or subjected to unhealthful conditions. But the Fifth Circuit has long required proof of a more exacting "ultimate" employment decision, e.g., "hiring, firing, demoting, promoting, granting leave, and compensating." In yesterday's 2-1 decision, though, a panel of the court holds that a material diminution of duties not otherwise accompanied by a change in title or pay may be actionable.
The Second Circuit reaffirms the general understanding in Title VII law that an employer that tells a minority employee seeking a transfer that he won't "fit in" to a mostly non-minority workplace raises an inference of discrimination.
Racial coding continues in the workplace today, the jotting of surreptitious entries on job applications to avoid hiring disfavored minorities. And in this case, even when the evidence was staring the trial judge in the face - plaintiff's unsuccessful application said "black" in handwriting, and no witness from the employer offered an explanation why - the judge still found that there was an innocent explanation for it. The Seventh Circuit tosses a bench verdict in favor of the employer, decreeing that the trial judge must reconsider evidence that clearly favored the employee's claim of race discrimination.
Sometimes, when it's clear that an employer never seems to promote minority employees - and the reasons for that failure seem really thin - then There may be a triable case of race discrimination. The First Circuit reverses summary judgment for a correctional officer described as "always perform[ing] at an outstanding level," and an "[e]xcellent worker" with "awesome leadership, and great work ethics," passed over for a promotion by a white employee with a recorded history of "very poor work habits." The court holds, in particular, it is not necessarily relevant that the decision makers were unaware of the employee's specific race, ethnicity or national origin, when the record showed that no minorities advanced.
The First Circuit holds that ten African American police officers presented sufficient evidence to prove that police department drug testing, using hair samples, had a disparate impact on the basis of race, in violation of Title VII. The parties are remanded to the district court to determine, among other things, whether the use of hair samples is a reliable test, or generates too many false positives among black test subjects.
A Sixth Circuit case addresses the occasional issue of whether Title VII supports "sex-plus" claims - in this case, a claim that she suffered discrimination specifically as an African-American woman. The panel agrees that such a claim can be made, and that the employee may point to treatment of non-African-American women as comparable employees. The case also goes to show the importance of email traffic in discrimination cases.
The Seventh Circuit reverses summary judgment in a case involving allegations of racially discriminatory (and retaliatory) treatment of two African American cocktail servers at a Mississippi River casino. The court holds that discrimination in table assignments is an adverse employment action under Title VII and 42 U.S.C. § 1981, because it cut into the servers' tip income.
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.
'Twas unfortunate that the Eighth Circuit should choose not to publish this short opinion today, reversing summary judgment in a race discrimination case under Title VII and the Arkansas Civil Rights Act. It illustrates the important point that even seriously misbehaving workers have a right not to be discriminated against in employment. A suspended employee presents a genuine dispute of material fact about whether a white employee who committed a comparably serious work rule violation was treated more lightly.
Racial discrimination can be manifested subtly in numerous decisions, and slight deviations from procedure, over time. The Sixth Circuit reverses summary judgment in this Title VII and Ohio state law case, holding that an African-American plaintiff fired during a reduction-in-force (RIF) was entitled to a trial over whether the decision-maker - who allegedly gave minority employees harsher reviews - was motivated by race. An unusual factor here is that it was the employee rather than the employer who wanted to limit the range of comparable employees in evidence. The panel also considers the probative of "There discrimination" evidence against the decision maker.