Employees and practitioners in the Eighth Circuit be warned - Title VII claims of post-charge-filing retaliation require the filing of a fresh (or amended) charge with the EEOC. The court decides the issue in a 2-1 decision which widens the circuit split on this issue in the wake of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
A district court needs to be reminded that Title VII and § 1983 protect different (if overlapping) interests in a government workplace, that an employee can elect a remedy under either or both, and that a § 1983 claimant need not pursue the administrative prerequisites for Title VII.
This my favorite kind of entry to write: the Seventh Circuit revives a jury verdict for a victim of sex harassment, and in so doing elaborates that behavior not particularly sexual in nature - such as repeatedly calling a woman employee a "bitch" - can support Title VII liability. Regrettably, though, the plaintiff loses her termination claim and a large percentage of her damages.
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.
In the space of ten days, two circuits issue decisions rejecting a "sole cause" jury instruction under different federal acts. The en banc Sixth Circuit unanimously sweeps away prior circuit law requiring proof under the ADA that disability was the "sole" cause of the discrimination - vacating the jury's verdict under such an instruction - though the judges ultimately divide over what the correct causation standard ought to be. In the D.C. Circuit, the panel rejects a "sole factor" instruction in a Title VII case, distinguishing a prior published decision, but affirms the defense verdict on the ground that the jury charge was overall correct.
The Eleventh Circuit affirms a jury verdict for the employee in a pregnancy discrimination case, and restores $80,000 in back pay damages that the district court erroneously vacated. The case goes to demonstrate that not all discrimination cases involve malice or animus - in this case, the decision appears to have been motivated by a misguided maternalism.
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.
Plaintiffs lately seem to be on a tear in the Seventh Circuit. Here's another reversal of summary judgment where the district court judge misapplied the McDonnell Douglas test to an Equal Pay Act case, earning the storied burden-shifting method of proof yet another swift kick by a Seventh Circuit panel.
Two appeals reviewing jury trials in Title VII cases came down today. In the first, the plaintiff - a physician - wins two claims at trial (retaliation and constructive discharge, centered on claims of racial discrimination), but loses the latter claim on appeal, necessitating a remand for recalculation of damages. In the second, the plaintiff lost her sex discrimination and retaliation trial, but the Seventh Circuit vacates and remands, criticizing the unnecessarily complicated and inaccurate jury verdict and instruction forms.
For employers and their counsel who insist that Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), is a silver bullet against Title VII discrimination class actions, today's decision in the McReynolds case was not good news. The Seventh Circuit sweeps past the employer's arguments and holds that the district court erred by not certifying a Rule 23 class action in a disparate-impact race discrimination case.