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.
Here's two decisions from the Eighth Circuit coming off Rule 50 orders granting judgment as a matter of law to employers. In the first, the court reverses, holding that There was sufficient evidence for a jury to find that an employee was constructively discharged by being knocked down from a title as finance coordinator to the board to a job in food service. In the second, an FMLA retaliation case, the plaintiff does not prevail -- but the court says something very important about proof at trial.
For employers and their counsel who insist that Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), is a silver bullet against Title VII discrimination class actions, today's decision in the McReynolds case was not good news. The Seventh Circuit sweeps past the employer's arguments and holds that the district court erred by not certifying a Rule 23 class action in a disparate-impact race discrimination case.
On the heels of last week's Ninth Circuit decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), here's another federal-sector case involving a denial of promotion, brought under Title VII and alleging race and sex discrimination (and retaliation). The panel reverses summary judgment in part, finding that the plaintiff's unqualifiedly superior qualifications for the position - combined with the thinness of the agency's explanation for its decision - presented sufficient evidence for a trial.
As we approach the final stretch of 2011, I can report two more appeals of race discrimination cases where the plaintiffs (more or less) came out on top. In the Fifth Circuit, the panel reverses summary judgment in a Title VII reverse-race termination case, finding that the plaintiff succeeded in building a plausible claim that her employer lied about the reasons for her termination. And in the Eleventh Circuit, a now-15 year-old, § 1981 case - which took an intervening trip to the U.S. Supreme Court - comes to what may be its final resting place, with the plaintiff keeping a winning verdict and judgment, while losing $1 million in punitive damages.