Two opinions this week highlight the power of retaliation claims: in each case, the principal discrimination claim failed on summary judgment, yet the retaliation claim was remanded for trial.
The Sixth Circuit holds that full-time, in-office attendance is not a per se "essential function" for purposes of the ADA, and must be established just like any other element of the claim. The court vacates summary judgment and remands a claim brought under the ADA, Title VII, and the FMLA that the employee needed a reduced schedule to accommodate her post-partum depression and separation anxiety.
The Fourth Circuit reverses summary judgment in a Title VII retaliation case, where the plaintiff's direct boss allegedly declared that she "wanted someone of a different race" in the job, then proceeded to subject her to "constant surveillance, badgering, and criticism." When the plaintiff "told the City that she intended to file a formal grievance" about the hostile work environment, the defendant fired the plaintiff the very next day.
There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
Title VII sex harassment law has persisted over the decades to place the onus on the victim to report the violation through the employer's anti-harassment policy, and - failing in that step - most courts find no employer liability. But the Third Circuit today issues an opinion that takes a step away from that stance, holding that there can be a genuine dispute about liability for supervisor harassment even when there was no complaint to the employer at all.
One of the maddening things for employee advocates is how rules developed by the courts for one set of facts are used to swat down a case involving an entirely different set of facts. The First Circuit holds that's exactly what happened here, and reverses summary judgment when a judge used a standard developed for failure-to-hire cases to prematurely dismiss a forcible-transfer case.
Here's a case that may be of value to Title VII litigants, as well as in First Amendment cases. The Eighth Circuit holds that for an employer to win a mixed-motive case, where the claimed reason for termination was poor performance, it must offer "evidence showing [that the plaintiff's] performance would have indisputably caused her termination." That proves a heavy lift.
Can a boss's repeated offer of a "big bonus" to a woman employee as an inducement to date an important customer constitute quid pro quo sexual harassment? The Fifth Circuit today holds that it can ... but also holds (2-1) that the plaintiff failed to present a genuine dispute that she was entitled to such a bonus in the first place.
ADA opinions released in the Eighth and Ninth Circuits today underscore that the burden of proof, ultimately, is always on the employee to show that the employer failed to provide a reasonable accommodation. These serve as a reminder to disabled employees and counsel that when seeking reassignment as an accommodation, it is vital to request the reassignment clearly and to set one's sights realistically.
The panel majority reverses and remands judgment for the state in an Equal Pay Act case. It agrees with the Third and Tenth Circuits that the employer's burden on its affirmative defense is to show not only that a "factor other than sex" could have motivated a pay differential, but actually did motivate it. The dissenting judge would impose a higher burden of proof on the EEOC when it enforces the EPA against a state agency, citing the Tenth Amendment.