The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.
The D.C. Circuit holds that even facially benign statements about an employee - in a given context - can constitute evidence of discriminatory intent. The panel finds that a supervisor's alleged compliment to a Black employee for "speaking well," and later telling the same employee that he was not a "good fit" for the organization, might be evidence of racial stigmatizing. It also discusses that an employer's "honest belief" must also be reasonable under the circumstances.
Undocumented workers are entitled to protection under Title VII and other federal employment laws, but many fear filing charges and lawsuits because they risk exposure, termination, and deportation. The Fifth Circuit addresses the delicate balance between the public interest in enforcing anti-discrimination laws and the right of an employer under federal discovery procedures to obtain evidence that is potentially important to its defense.
May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of "race"? The panel unfortunately holds that "race" under Title VII is limited to "immutable" physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.
The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.
One pernicious "stereotype is the idea that men are better suited than women for positions of importance or leadership in the workplace." Here, the First Circuit reverses summary judgment in a federal-sector Title VII case, citing (among other things) a male supervisor's allegedly hostile tone and emphasis on the word "she" when he acted to block the only woman in the office from performing her job. Oh, and There's a baseball bat in the case, too.
An Arab-American Muslim woman from Morocco alleges that she suffered years of ethnic and religious harassment by the company's Chief Financial Officer, and was then fired 75 minutes after complaining about it. The fourth Circuit reverses summary judgment on her Title VII and § 1981 complaint, in a blockbuster, 46-page opinion that straightens out several wrong turns that district courts take when ruling on dispositive motions.
The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where There was evidence that the lower-level decision maker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.
In two recent federal-sector race discrimination decisions, the D.C. Circuit - while ruling in the employer-agency's favor - issued opinions that may be even more useful for employees in future cases. Both opinions criticized short-cuts sometimes used by district courts to improperly weigh summary judgment records.
In the Supreme Court's only substantive Title VII case this term, the six-justice majority takes a plaintiff-friendly view of when a claim for constructive discharge accrues - on the date that the employee declares his resignation - while Justice Alito's special concurrence and Justice Thomas's dissent would start the limitations clock with the last discriminatory event. The court also dispenses with the requirement (imposed by some courts) that hostile working conditions be created by the employer with the intent of making the employee resign.