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."
As we approach the final stretch of 2011, I can report two more appeals of race discrimination cases where the plaintiffs (more or less) came out on top. In the Fifth Circuit, the panel reverses summary judgment in a Title VII reverse-race termination case, finding that the plaintiff succeeded in building a plausible claim that her employer lied about the reasons for her termination. And in the Eleventh Circuit, a now-15 year-old, § 1981 case - which took an intervening trip to the U.S. Supreme Court - comes to what may be its final resting place, with the plaintiff keeping a winning verdict and judgment, while losing $1 million in punitive damages.
Apparently, in Cleveland, Ohio public schools, the ability to yell at the class - here, politely termed "verbally control[ling] resistive students" - is deemed an "essential function" of teaching. A teacher's medical restriction not to raise her voice, holds an unreported Sixth Circuit decision today, means that she is not a "qualified individual" under the ADA.
Memo to Directors of Human Resources: what you tell an employee about an adverse employment decision is admissible as evidence in a Title VII case, even if you were not personally involved in the final decision. The Seventh Circuit so holds in a case reversing summary judgment in a pregnancy-discrimination and FMLA case.