For the second time in two weeks, the Seventh Circuit reverses summary judgment in a Title VII case where the employee alleged discriminatory discipline. The court finds that similar, if not identical, disciplinary violations were comparable enough to make out a prima facie case of discrimination. The court also reminds us of a simple, though easily-overlooked, principle: that a factual distinction proffered to defeat a "similarly situated" holding at the prima facie stage is immaterial if there is no evidence that the employer actually relied on that reason at the time decisions were made.
The management decision in this case not to separate an employee with a sex-harassment complaint from the alleged harasser (who was also the employee's supervisor) puts the employer in a vice - it now faces a trial for both sex harassment and retaliatory harassment under Title VII and Puerto Rican law. The First Circuit specifically recognizes that a supervisor who ratchets up work and otherwise intensifies harassment against an employee for refusing to yield to sexual demands may create a new claim for retaliation.
A timely reminder from the Seventh Circuit that There is no "bottom-line" defense to Title VII (Connecticut v. Teal, 457 U.S. 440 (1982)): an employer does not earn immunity from Title VII liability by pointing to minority employees whom it did not treat as shabbily.
We don't see too many published Title VII appeals concerning quid pro quo/"tangible employment action" sex harassment - claims that a harasser used his supervisory authority to punish the employee in some way for not submitting to demands for sex - but the Fourth Circuit issued such a decision yesterday. On slightly different reasoning, the panel majority and concurring judge agree that the case should be remanded for a trial on that theory, as well as straight hostile-work-environment and retaliation claims.
Why on earth would an employer defending a federal Title VII sex discrimination lawsuit wait until the day after the plaintiff sits for her deposition to serve her with a Notice of Disciplinary Action, referring to events going back four months? The Seventh Circuit finds direct evidence that this adverse action was motivated by retaliation, reverses summary judgment and sends the plaintiff's retaliation claim back for a trial.
An employer can have the best anti-harassment policy that money can buy, at least on paper, but if it enforces the policy unevenly, the result can be even more legal trouble.
An EEOC charge, the essential first step to filing a Title VII (or ADEA or ADA) case, must characteristically include the basic information that makes up the employee's allegations against the employer. Regrettably, many employees stumble at this stage because they do not have an attorney. But a panel of the Sixth Circuit, dividing 2-1, holds that a bare-bones charge and accompanying "charge information form" was sufficient.
Two decisions issued today demonstrate the challenge employers face in managing claims of retaliation. If the summary judgment records in these cases are to be believed, the decision-makers were all-too-eager to announce their intention to get even with employees who made complaints of discrimination.
A 6-5 en banc decision from the Eighth Circuit affirms summary judgment in a sex and national-origin discrimination case involving the hiring of firefighters, vacating a prior decision that reversed summary judgment. The court disaffirms language located in 62 published, panel decisions since 1987 (collected in an appendix to the opinion) stating that summary judgment ought to be applied sparingly in employment discrimination cases.
The Second Circuit, in an non-precedential opinion, reverses summary judgment and remands an ADEA and New York State Human Rights Act claim back to the district court for trial. The panel concludes that something seemed to smell when a 59-year-old auto service department employee was dropped in favor of 36-year-old, . . . .and the best that the employer could produce was affidavits of witnesses - years after the fact - disparaging the employee's organizational skills, flexibility and attitude.