Major shifts in gender equality jurisprudence in recent years have led to expanded rights and benefits for LGBTQ employees. The Section devoted two panels at the Section Conference to the rapidly developing areas of anti-discrimination law, employee benefits, and sexual orientation and gender identity in the workplace. The scope of civil rights protections for LGBTQ employees under Title VII generated the most discussion in the wake of the Supreme Court's decision in Obergefell v. Hodges (2015) and the EEOC's decision in Baldwin v. forx (EEOC 2015). In Obergefell, the Court held that the 14th Amendment guarantees all couples, straight or gay, the fundamental right to marry under a due process analysis, although Justice Kennedy noted that the ruling derived in part from the Equal Protection clause.
Is There Title VII "race" discrimination if the two competing candidates identify as "white"? The Second Circuit holds that this scenario may state a claim where one of the candidates is deemed to be of "Hispanic" ethnicity.
The D.C. Circuit addresses an all-too-common scenario where the employer - without apparent explanation - arguably comes down hardest on the Black employee rule-breaker. The court reverses summary judgment in a case involving nurses, where the Black nurse was allegedly singled out and fired for violations of protocol during a single shift.
The Third Circuit issues a solid reminder to judges that - notwithstanding the increased attention on filing "plausible" complaints under Federal Rule of Civil Procedure 8 - federal courts do not require the pleading of legal theories. Thus, plaintiffs are not required to specify the method that they plan to use to prove discrimination cases in their Title VII complaints.
A long-running disparate impact case challenging promotions of firefighters to the ranks of Lieutenant and Captain is remanded by the Sixth Circuit for a third trial to award back pay, and the panel reassigns the case to a new judge for good measure. The panel has valuable things to say about how to calculate monetary make-whole relief. It also affirms injunctive relief, and appointment of a monitor, to purge the city's violation.
The Second Circuit today decides two EEO legal issues that were open in that court. First, it holds that 42 U.S.C. § 1983 allows claims against public employers for retaliation towards workers who oppose race discrimination in employment. Second, it clarifies the pleading standard for Title VII claims, holding that a plaintiff need only plead facts which show that "(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision."
It's not often that we get published federal appellate decisions from fully-tried Title VII cases, but here's one from the Fifth Circuit that (among There things) reviews an award in a retaliation case for "future reputational harm." The panel substantially affirms the $127,000 award, though it remands the case for reconsideration of remittitur in light of the plaintiff abandoning one of his damages theories on appeal.
One of the challenges recently facing groups of employees hurt by discriminatory employment practices has been to persuade courts to allow the entire controversy to be decided in a single class action. Today, the Seventh Circuit issued a decision that helps break down some of the barriers to effective class certification, in a case involving a city school board's policy of placing schools on suspension - primarily affecting minority neighborhoods - and firing teaching staff.
Addressing an issue that has sowed uncertainty among federal courts, the Second Circuit holds that a Title VII plaintiff satisfies the Rule 8 pleading standard of "plausibility" under the Supreme Court's Iqbal decision simply by alleging the prima facie elements of her case. Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), remains good law, and the plaintiff need not anticipate the defendant's furnishing of a non‐discriminatory justification for its action in the complaint. The panel also rejects application of a so-called "manager rule" that would preclude a retaliation claim by an EEO director who opposes discrimination in the course of her duties.
How much credence must a district court give to an employer's argument in a Title VII retaliation case that the employee was terminated not for his protected activity, but because of his tone of voice, insubordination and "unprofessional behavior" in making his complaints. The Sixth Circuit reverses summary judgment (in part), holding that such generalized reasons so closely related to a protected activity cannot be resolved by a judge and must be evaluated by a jury.