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.
The D.C. Circuit remands a federal-sector race discrimination case for trial, where a jury will decide whether the agency's (alleged) inability to keep its story straight about the process it used to interview candidates - and then supposedly cancel a new GS-14 position - demonstrates racial bias.
Here's a very important reminder that even a single verbal incident of racial harassment can constitute a hostile work environment, especially if it involves one of the most inflammatory words in the American English idiom. The D.C. Circuit, in a pro se appeal, reverses summary judgment on § 1981 harassment, retaliation and discrimination claims by an African-American Fannie Mae employee, finding a single use of the n-word sufficiently severe to present a triable issue of fact.
It was a long-time commonplace in federal case law that a mere threat to terminate an employee was not a "materially adverse action" under employment discrimination law. But at least under the anti-retaliation provision of Title VII, the Second Circuit seems to have recognized that such a threat may be actionable in light of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The court also holds that a hostile response to an harassment complaint can itself constitute retaliation.
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.
The same panel on the Sixth Circuit publishes two opinions on the same day reversing summary judgment. In the first, a gaming floor supervisor revives a case against a casino for selectively enforcing a workrule about bad deals, owing (allegedly) to race and sex. In the second, the court reminds the lower court that the Americans with Disabilities Act is special because - in contrast to There statutes - it specifically protects against discrimination in training.
The Sixth Circuit applies the Supreme Court's recent decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), to reverse summary judgment in a racially-discriminatory discipline case under Title VII. Echoing another Sixth Circuit decision (Madden v. Chattanooga City Wide Service Dept., 549 F.3d 666, 104 FEP 1473 (6th Cir. 2008)), it holds that an employer that punishes African-Americans who engage in horseplay in the workplace more severely than whites who commit the same infraction are flirting with Title VII liability.
Two appeals reviewing jury trials in Title VII cases came down today. In the first, the plaintiff - a physician - wins two claims at trial (retaliation and constructive discharge, centered on claims of racial discrimination), but loses the latter claim on appeal, necessitating a remand for recalculation of damages. In the second, the plaintiff lost her sex discrimination and retaliation trial, but the Seventh Circuit vacates and remands, criticizing the unnecessarily complicated and inaccurate jury verdict and instruction forms.