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.
Can increased scrutiny at work, including a disciplinary letter (later withdrawn), constitute a "materially adverse action" for a claim under Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)? A jury said "yes," to the tune of a $500,000 judgment, but the Second Circuit - in a 2-1 decision - sides with the district court on these facts, and says "no."
Herman Cain, a leading candidate in the primaries for the Republican nominee for president, confirmed today that he had been the subject of sexual harassment allegations while serving as the head of the National Restaurant Association. Coming in the wake of the twentieth anniversary of the Clarence Thomas confirmation hearings, the charges against Mr. Cain remind us how ever-present sexual harassment is in the workplace.
On October 15, 2011, twenty years after Clarence Thomas's confirmation to the Supreme Court, Hunter College held a conference with over 1,000 attendees honoring Anita Hill's courage during the confirmation hearings. The conference was co-hosted by Outten & Golden's own Kathleen Peratis and activist Letty Pogrebin. The inspiration for the conference arose, Professor Hill revealed, in part by a phone message just months earlier from Clarence Thomas's wife asking Professor Hill to apologize to Clarence Thomas for her testimony. After that call made national news, the public outcry demonstrated how strongly people still felt about the hearings today-a fact that the packed audience at Hunter College confirmed to be true. Remarkably, the audience consisted of men and women of all ages and races. It was a true testament that Anita Hill's legacy has and continues to impact generations of civil rights advocates.
Outten & Golden was horned to host Professor Anita Hill on October 12th at our office. Professor Hill discussed both her role in the evolution of raising awareness of sexual harassment in the workplace since the Thomas hearings twenty years ago, as well as the mes in her new book Reimagining Equality: Stories of Gender, Race and Finding Home (Beacon Press, 2011).