Sex harassment is often conflated with sexual misconduct, yet belittlement of and failure to cooperate with women at work - no less than sexual comments or physical grabbing - violates their rights as well. The First Circuit sends such a case back for trial, also addressing when a non-employer may be liable for retaliation.
EEOC v. North Memorial Health Care, No. 17-2926 (8th Cir. Nov. 13, 2018)
In a contentious 2-1 opinion, the Eighth Circuit holds that a job applicant who requests a religious accommodation - here, not to work Saturdays - is not engaged in a "protected activity" under the opposition clause of Title VII's retaliation provision.
Donley v. Stryker Corp., No. 17-1195 (7th Cir. Oct. 15, 2018)
In a short-but-sweet opinion, the Seventh Circuit reverses summary judgment in a Title VII retaliation case, where the district court failed to perceive a genuine dispute of material fact: specifically, when company management first became aware of the plaintiff's alleged violation of work rules. By the plaintiff's account, management knowingly overlooked her alleged breach .... until she complained about sex harassment.
Gogel v. Kia Motors Mfg. of Georgia, Inc., No. 16-16850 (11th Cir. Sept. 24, 2018)
There have been various cases that have addressed whether human-resource professionals may benefit from the anti-retaliation provisions of federal employment law when they are fired for investigating or pursuing an EEO claim, as part of their duties. In this fascinating case, the Eleventh Circuit (dividing 2-1) holds that an HR manager who the company believed "encouraged or even solicited" an employee to sue her employer was protected by Title VII.
EEOC v. Costco Warehouse Corp., No. 17-2432 (7th Cir. Sept. 10, 2018)
Title VII requires that employers exercise due care to prevent sexual harassment of their employees by customers. The EEOC prevailed at trial on just such a claim, winning a $250,000 verdict for a woman shelver who - a jury found - was stalked for over a year by a male customer, while Costco took inadequate measures to protect her. The Seventh Circuit upholds the verdict, and even remands the case back to the district court for award of more back-pay relief.
McClellan v. Midwest Machining, Inc., No. 17-1992 (6th Cir. Aug. 16, 2018)
The Supreme Court in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), held that an ADEA plaintiff does not have to tender back (offer to return) consideration paid in settlement of a claim as a condition to challenge that settlement in court. Today, the Sixth Circuit (in a 2-1 decision) extends that ruling to Title VII and Equal Pay Act (EPA) claims.
Rogers v. Henry Ford Health Sys., No. 17-1998 (6th Cir. July 31, 2018), and Batson v. The Salvation Army, No. 16-11788 (11th Cir. July 31, 2018)
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.
Hostettler v. College of Wooster, No. 17-3406 (6th Cir. July 17, 2018)
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.
Caraballo-Caraballo v. Administración de Correccion, No. 16-1597 (1st Cir. June 8, 2018)
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.
Jefferson v. Sewon America, Inc., No. 17-11802 (11th Cir. June 1, 2018)
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.
