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.
On the heels of last week's Ninth Circuit decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), here's another federal-sector case involving a denial of promotion, brought under Title VII and alleging race and sex discrimination (and retaliation). The panel reverses summary judgment in part, finding that the plaintiff's unqualifiedly superior qualifications for the position - combined with the thinness of the agency's explanation for its decision - presented sufficient evidence for a trial.
Last year, in Pickett v. Sheridan Health Care Ctr., 610 F.3d 434 (7th Cir. 2010), the Seventh Circuit affirmed a jury verdict and judgment in favor of the employee in a Title VII retaliation lawsuit. In the follow-on litigation over the award of attorney's fees, the Seventh Circuit vacates the district judge's nearly 50% reduction of the plaintiff lawyer's lodestar amount, creating splits with other circuits about the (ir)relevance of contingency-fee contracts and the so-called "Laffey Matrix" in determining the lodestar rate.
For the second time in three months, The Third Circuit confronts a New Jersey municipal residency requirement - challenged for disparate impact under Title VII - and once again rules in favor of the applicants. One twist in this case was that the residency requirement was, in part, arguably required by a consent decree. The panel rejects a Ricci defense.
Suing your boss is just about the most stressful thing you can do, especially when you are claiming sexual harassment. Once you make such a claim, you can be sure your employer will say one of two things: either he will claim that nothing inappropriate ever happened, and Therefore you are delusional, or he will admit that something happened, but, whatever it was, it was either trivial or consensual (or both) and so you are a liar and a slut.
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.
Recently, one of the women who have accused Herman Cain of making inappropriate sexual advances said (through her attorney) she did not want to identify herself publicly because she did not want to become "another Anita Hill." What does it mean to "be Anita Hill." Professor Hill's story is in many ways a story of perseverance over the expectations of her time about the role of women in the workplace. Then, and still now, coming forward and alleging harassment often requires speaking truth to power. Yet, as Cain's accuser's reluctance suggests, it also a choice not live in anonymity and to invite controversy and potential ridicule.