This week, the Second Circuit issued two opinions that at least partially reversed summary judgment in Title VII harassment and retaliation cases. In the first, Desardouin, the panel returned a sex harassment claim that concerned sexual comments made to the plaintiff weekly by her supervisor over a two to three month period. In the second, Summa, the court held that under Title VII (and Title IX, governing educational institutions), it can be a protected activity under the statute's anti-retaliation provisions to complain of even a single incident of alleged harassment.
A common scenario in employment cases is the manager or supervisor who overreacts to a blow-up at work by firing the employee. What the employer may deem as a measured response to insubordination can, after the fact, be held by a court or jury to be the culmination of unlawful discrimination or retaliation. In this case, the First Circuit returns just such a case for a trial, reversing summary judgment entered against a nurse who was fired after complaining that she was being worked beyond her restrictions.
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 Seventh Circuit weighs in on an ERISA issue dividing the circuits: Do participants' informal complaints about plan-related issues constitute protected activity under Section 510, 29 U.S.C. §1140? With a thoughtful parsing of the language, the panel holds that such complaints do trigger the protections of Section 510.
Employees and practitioners in the Eighth Circuit be warned - Title VII claims of post-charge-filing retaliation require the filing of a fresh (or amended) charge with the EEOC. The court decides the issue in a 2-1 decision which widens the circuit split on this issue in the wake of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
The Tenth Circuit issues two decisions today, both involving the EEOC - in different capacities. In the first, the court splits 2-1 on an ADA reasonable accommodation and retaliation case brought by the Commission itself, holding that a photography studio was not required to accommodate a deaf photographer by providing an ASL signer. In the second, in which the EEOC appeared as amicus, the court affirms summary judgment on a sex harassment claim but reverses on a retaliation claim.
The Eleventh Circuit joins There federal courts of appeals in holding that Title VII supports a claim of a retaliatory hostile work environment, substantially upholding a jury award to two plaintiff Veterans Administration doctors who were reportedly hounded by their colleagues after filing EEO complaints. The decision also discusses application of mixed-motives analysis to a Title VII retaliation/harassment claim.
Periodically, a case comes along that reminds us that Title VII and § 1981 are not exactly identical statutes. The Seventh Circuit holds, in a case of first impression, that an individual employee (here, a human-resources executive) with a retaliatory motive may be individually liable under § 1981 for causing the employer to retaliate against an employee who complained about race harassment. In this case, though, the plaintiff ultimately fails to overturn the district court's summary judgment against his claim on the merits. The panel also criticizes the district court's refusal to allow the employee to respond to evidence raised by the employee in a reply brief.
The Second Circuit issues in important decision today in the fields of Title VII sex harassment and retaliation. The panel affirms a jury verdict of $5200 for a Title VII and New York state law hostile work environment claim, holding that the employer cannot raise a defense under Faragher/Ellerth when the harasser is also a senior executive "alter ego" of the employer. But the panel also affirms dismissal of a Title VII retaliation claim, for an HR executive engaged in an internal investigation of the harassment, holding that the "participation" clause does not cover an internal investigation of a complaint of discrimination before an EEOC charge is filed.
For the second time this week, a federal court of appeals upholds a jury verdict in an employment discrimination case - here, a $30,000 award and reinstatement for a Title VII retaliation claim. The Seventh Circuit overrules a defense argument that a demotion is somehow not a "materially adverse action" if the employee reluctantly accepts it.