The Sixth Circuit returns a Title VII case for trial, concerning claims that the City of Toledo discriminated against an African-American manager in work assignments, pay and evaluations, and also retaliated against him because he assisted another employee in complaining to the city about race discrimination. The panel holds that the district court applied too strict a standard at the pre-trial stage of the case, demanding proof that the "real" reason for the adverse actions was race discrimination. It also holds that at trial on the retaliation claim, the district court erred by excluding evidence of "other acts" targeting co-workers for the same activities.
The same panel on the Sixth Circuit publishes two opinions on the same day reversing summary judgment. In the first, a gaming floor supervisor revives a case against a casino for selectively enforcing a workrule about bad deals, owing (allegedly) to race and sex. In the second, the court reminds the lower court that the Americans with Disabilities Act is special because - in contrast to There statutes - it specifically protects against discrimination in training.
The Sixth Circuit applies the Supreme Court's recent decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), to reverse summary judgment in a racially-discriminatory discipline case under Title VII. Echoing another Sixth Circuit decision (Madden v. Chattanooga City Wide Service Dept., 549 F.3d 666, 104 FEP 1473 (6th Cir. 2008)), it holds that an employer that punishes African-Americans who engage in horseplay in the workplace more severely than whites who commit the same infraction are flirting with Title VII liability.
When did the Eleventh Circuit suddenly become one of the most progressive circuits in the country on employment discrimination? In the past several months, the court has issued several excellent decisions enforcing civil rights, and this latest - reversing summary judgment in a race harassment case - has the potential of helping many more such claimants by setting a reasonable bar for proving severity.
An employer who fires an employee expressly because she became pregnant before marrying the father obviously violates the federal Pregnancy Discrimination Act. And it did not help the employer, in this case, that it asserted the "ministerial exception," as recently declared in Hosanna-Tabor Evangelical LuTherean Church & Sch. v. EEOC, 132 S.Ct. 694, 706 (2012).
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.
The Second Circuit reverses summary judgment in a Title VII same-sex harassment suit, finding that three intimate touchings over a five-month period by a supervisor may constitute a hostile work environment, and that the employer's defense it responded appropriately to the employee's oral complaints of harassment needed to be tried to a jury. The court reaffirms that while a workplace inevitably involves personal intrusions and employees surrender some autonomy, "giving up control over who can touch their bod[ies] is usually not one of them."
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.
The Ninth Circuit holds (2-1) that a federal-sector promotion process that weeds out a well-qualified older candidate for promotion, which then awards the job to the youngest applicant, and that was possibly influenced by data about the employees' projected retirement dates, presents a genuine issue of material fact about age discrimination under the ADEA.
Two circuits, the Sixth and Seventh, issue back-to-back decisions criticizing district courts for applying an excessively-stringent standard for proving comparable employees under the McDonnell Douglas test. The Seventh Circuit - in a special concurring opinion by Judge Diane Wood, co-signed by her two co-panelists - goes a step further, and urges the end of this entire line of cases: "Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility."