It is uncommon for a losing party to persuade a U.S. Court of Appeals panel to reverse its outcome on a motion for rehearing, but the age discrimination plaintiff in this case pulled it off, winning a remand (in a 2-to-1 decision) of his claim for a trial under the Missouri Human Rights Act (MHRA).
Hats off to the EEOC for persuading the Fourth Circuit to remand, for a trial, a claim that a manufacturer did not act quickly enough in 2005-06 to protect African-American assembly plant employees from a racially hostile environment. The court affirms judgment for the employer, on the other hand, on claims after that period when the employer picked up the pace and started disciplining and (in one case) firing the offenders.
In an unpublished decision issued today, the Tenth Circuit remands for trial the Title VII claim of a fired certified medication aide (CMA), who alleged that she was sexually harassed by a resident. The panel holds that there were genuine issues of material fact about whether the behavior was "severe or pervasive," and whether the employer did all it reasonably could to prevent the harassing behavior.
Courts have applied the McDonnell Douglas burden-shifting method of proof to Title VII, § 1983 and other discrimination cases countless times since its inception in the 1970s. The test classically allows employees who lack direct proof that their employers discriminated against them to raise an inference of discrimination, indirectly, by disproving the other lawful reasons that the employer might have had for its decision. Many courts get this test wrong, but here the Seventh Circuit gets it on the nose and - as a bonus - corrects the district court's application of the "stray remarks" rule and the "same actor" inference.
From the Fourth Circuit, here's a decision reminding district courts that the summary judgment standard allows all employment discrimination cases - the weak with the strong - to go to trial, provided that there are genuine issues of material fact for a jury or bench trial to resolve. Here, the panel finds that the district court read too much into the Fourth Circuit's Title VII precedent on sex harassment, and that the degree of severe-or-pervasive behavior is quite often a fact issue suited to a trial. (And the plaintiff, helpfully, got an assist here from the Appellate Division of the EEOC as amicus.)