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 Fourth Circuit en banc finally undoes an enduring wrong by overruling Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), and holding that an employee remains protected by Title VII's anti-retaliation section (and § 1981) when complaining about race harassment, even if the offending conduct has not yet ripened into a hostile work environment.
For anyone under a misimpression that our nation has totally vanquished racial discrimination in employment, the Second Circuit today affirms a $1.32 million compensatory award by a jury to an African-American employee subjected to scarifying harassment at a steel plant. It also upholds a punitive-damage verdict, though it orders a remittitur of the award of no more than a 2:1 ratio with compensatory damages (about $2.65 million).
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 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.
In this case, a white employee sues and wins at a jury trial over a claim that he was terminated by his employer for speaking up - in support of African-American coworkers - against a racially-hostile work environment. The Eighth Circuit affirms a judgment of $60,000 compensatory damages and $30,608 in back pay in his favor, but refuses him reinstatement or front pay.
I think we have the right sign for the Seventh Circuit this week. The same day that the court interred the rule against using an employee's "self-serving" testimony to resist summary judgment in employment-discrimination cases, another panel of the same court helps correct a lingering misunderstanding about what it means for an employee to use a "mosaic" of circumstantial evidence under Title VII - and also backs off a bit from a strict direct/indirect framework of proof enforced by that circuit. Such cases may help district courts reach more sensible decisions at the summary judgment stage.
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.
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.
A reminder from the Fifth Circuit that, as long as we have McDonnell Douglas and Burdine, the employer in a disparate treatment race discrimination case must - in response to employee's presentation of a prima facie case - produce admissible evidence of a legitimate, non-discriminatory reason for taking an adverse action (firing, demotion, etc.). An employer that defaults on this burden of production buys itself a trial, as the defendant discovers here (in an action brought by the employees, and EEOC as intervenor). Judge Owen dissents.