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.
Two circuits weigh in today on the award of attorneys fees, with both outcomes favoring plaintiffs' counsel. One, from the Second Circuit, tackles an unreasonably low $204 fee for a successful trial on a claim of FMLA interference. The other, from the Fifth Circuit, reverses the award of Eastern District of Texas attorneys' rates in a Title VII case to a trial team from Oakland, California, where "an avalanche of unrebutted evidence" establishes that no addition al local lawyers could or would have taken the case.
In Title VII retaliation actions, courts often focus on "temporal proximity" - the closeness in time between the protected activity and the employer retaliation - as circumstantial evidence of causation. But this shorthand can be misleading. In this case, the Seventh Circuit reminds us that an employer may be held liable under this provision even where there has been a substantial gap between a complaint of race discrimination and the employee's termination. Here, the manager who brought down the axe down on the employee believed that the employee had raised a fresh complaint, even though the record was otherwise.
A Fifth Circuit panel unanimously affirms a jury verdict for a woman sales representative who suffered discrimination in compensation and termination, in violation of Title VII and Texas state law. The panel divides, though, on the question of the appropriate back pay remedy. It also divides on the question of how to apply the compensatory and punitive damage caps in a multiclaim case under 42 U.S.C. § 1981a(b)
Employers like mandatory arbitration policies, and avoidance of judicial review - until they don't. Here's a case from the Second Circuit (decided 2-1) that affirms an arbitrator's interlocutory decision to allow a putative Title VII pay and promotion class action, over the employer's objection that it did not consent to such a procedure.
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.
Two plaintiffs win at trial and, on appeal, achieve differing results. In the First Circuit, a Title VII plaintiff improves on her win by persuading the court (with an assist from the EEOC as amicus) that the number of employees in the "current or preceding calendar year" - for purposes of setting the damage cap under 42 U.S.C. § 1981a(b)(3) - is based on the number of employees at the time of the act of discrimination, rather than at the time of trial. In the Fifth Circuit, the employee keeps her Equal Pay Act award, but loses a state statutory wage claim.
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.
Employment-law litigators are well-familiar with the provisions of Title VII and other federal employment statutes that penalize retaliation against an employee who files a lawsuit. But the D.C. Circuit reminds us today that there is another pair of federal civil rights statutes that can cover the same claim, the post-Civil War laws 42 U.S.C. §§ 1985(2) and 1986. The court holds that the district court erred in dismissing these claims before trial.
The Wal-Mart decision winds down the current class action against the retail giant, but also - by a bare majority - nudges all of Title VII law, class and individual, back in a familiar and unwelcome direction.