The Sixth Circuit holds, in an opinion that potentially expands remedies for Title VII claimants, that a back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. Nonetheless, the court holds that the employee in this particular case failed to prove that she suffered such damages.
Major shifts in gender equality jurisprudence in recent years have led to expanded rights and benefits for LGBTQ employees. The Section devoted two panels at the Section Conference to the rapidly developing areas of anti-discrimination law, employee benefits, and sexual orientation and gender identity in the workplace. The scope of civil rights protections for LGBTQ employees under Title VII generated the most discussion in the wake of the Supreme Court's decision in Obergefell v. Hodges (2015) and the EEOC's decision in Baldwin v. forx (EEOC 2015). In Obergefell, the Court held that the 14th Amendment guarantees all couples, straight or gay, the fundamental right to marry under a due process analysis, although Justice Kennedy noted that the ruling derived in part from the Equal Protection clause.
The Eleventh Circuit adds its voice to the lower-court movement to abandon the McDonnell Douglas v. Green, 411 U.S. 792 (1973), proof framework in discrimination cases - such as this one - where the plaintiff presents circumstantial evidence that bias was a motivating factor in an adverse decision. This could be the case that allows the Supreme Court to revisit this long-standing precedent.
Last Thursday, the EEOC issued a groundbreaking decision that held, in clear and unequivocal language, that claims of discrimination based on sexual orientation implicitly state a claim of sex discrimination under Title VII. See Complainant v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). This decision comes on the heels of the Supreme Court's landmark decision granting same-sex couples the right to marry under the Fourteenth Amendment. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).
EEOC to Investigate Denial of Gender-Appropriate Restrooms in Private Sector as Sex Discrimination under Title VII Post-Lusardi
The Maine Human Rights Act protects employees who express "actual or perceived ... bisexuality." The First Circuit holds that the district court erred in not crediting evidence that two women employees who began dating at work, and who were discouraged from expression of their relationship in the workplace (while Theres were allowed to do so), were subjected to a hostile work environment. The district court also erred in handling a termination claim, misperceived as a constructive discharge claim.
Should a pregnant employee be treated the same as a non-pregnant employee with a similar work limitation? The Supreme Court will hear argument on that simple yet hotly contested question on December 3, 2014 in Young v. United Parcel Service, Inc., on appeal from the Fourth Circuit. 707 F.3d 437, 441 (4th Cir. 2013).
The Seventh Circuit today reverses dismissal of a union member's complaint that she was discriminated against in job referrals because of sex, in violation of Title VII. The court observes that she was not obliged to file an EEOC charge the first time she suffered discrimination, and was timely provided that she suffered one denial or more during the 300-day period before filing. The panel also notes that a failure of an applicant to register formally and repeatedly for openings does not necessarily bar a Title VII action.
Lawyers who represent employees in the state and local public sector know that, for sex discrimination and harassment claims, they can bring suit under both Title VII of the Civil Rights Act of 1964 and Section 1983 of the Civil Rights Act of 1871. The former law was passed specifically to combat sex discrimination, while the latter attacks discriminatory practices by way of the Fourteenth Amendment Equal Protection Clause. Yet while section 1983 has some specific advantages to employees - there is no administrative prerequisite to file a charge with the EEOC, the limitations period is longer, there is individual liability, and legal relief is uncapped - there are also some distinct disadvantages, such as overcoming qualified immunity. So, in this case, the Second Circuit holds that in contrast to Title VII, a plaintiff must show that each individual defendant was personally motivated by gender in order to establish liability. On this basis, the panel mostly reverses denial of qualified immunity for several individual police officers charged with sex harassment and discrimination.
This case presents the nice question of whether an employer violated Title VII by punishing a woman more harshly than her male counterpart for the same misconduct, i.e., jointly carrying on a workplace affair. The Seventh Circuit says that there is enough of a genuine dispute of facts to reverse summary judgment and remand for further discovery. The court also remands a claim of sex harassment, which included the extraordinary complaint that the employer tolerated employees having after-hours sexual liaisons on the plaintiff's office desk (which the panel found, notably, was not a form of sex harassment).