Two opinions this week highlight the power of retaliation claims: in each case, the principal discrimination claim failed on summary judgment, yet the retaliation claim was remanded for trial.
The Sixth Circuit holds that full-time, in-office attendance is not a per se "essential function" for purposes of the ADA, and must be established just like any other element of the claim. The court vacates summary judgment and remands a claim brought under the ADA, Title VII, and the FMLA that the employee needed a reduced schedule to accommodate her post-partum depression and separation anxiety.
One of the maddening things for employee advocates is how rules developed by the courts for one set of facts are used to swat down a case involving an entirely different set of facts. The First Circuit holds that's exactly what happened here, and reverses summary judgment when a judge used a standard developed for failure-to-hire cases to prematurely dismiss a forcible-transfer case.
A Black employee who is denied a transfer and told by her supervisor that another manager "wanted a Korean in that position" - and is then fired a week after complaining about race discrimination - presents a triable case of Title VII discrimination and retaliation, so holds the Eleventh Circuit.
An employee fired during her pregnancy should get a Title VII trial, holds the Tenth Circuit, where one of the putative decision-makers reportedly told the plaintiff "[w]hat, you're pregnant too?," and said "I don't know how I'm going to be able to handle all of these people being pregnant at once" and "I have too many pregnant workers, I don't know what I am going to do with all of them."
The Sixth Circuit affirms a $350,000 jury award for a police officer who was transferred far from her home, in retaliation for complaining about sex harassment. The court rejects a bid by the department to reduce the award, finding that the jury's calculations of back and front pay - and award of compensatory damages for pain and suffering - are supported by the record.
This week, two U.S. Courts of Appeals publish decisions about whether religiously-oriented employers were exempt from Title VII owing to alleged religious-liberty rights: a Methodist hospital wins in the Second Circuit, while a funeral home loses in the Sixth Circuit.
The Sixth Circuit, in a split decision, remands a Title VII retaliation case for a new trial on back pay, and reconsideration of prejudgment interest - holding that the winning plaintiff was conclusively entitled to a greater recovery. It's a reminder to lawyers: whether you're trying a back-pay claim to a jury (as in this case) or to a judge, make sure to offer W-2s or other evidence to substantiate the amount, and to argue methodically for prejudgment interest.
The Tenth Circuit reverses summary judgment in a Title VII religious accommodation case, holding that a jury must decide both (1) whether the employer offered a reasonable accommodation to two Seventh Day Adventist employees who could not work Friday nights or Saturdays, by allowing them to swap shifts with willing co-workers; and (2) whether further accommodating their Sabbath observance would cause undue hardship.
In the ceaseless struggle over what is meant by "similarly situated," an Eleventh Circuit splits over whether the plaintiff - a Black woman detective with a heart condition - presented enough evidence that two white male officers who failed a physical-fitness requirement were treated better. The case also considers, for an ADA claim, whether receiving a Taser shock or pepper spraying in training was an "essential function" of the job.