A continuing, unresolved issue under Title VII is what constitutes discrimination in "terms, conditions, or privileges of employment." Most courts require proof of a "materially adverse employment action," which can include - by way of example - being placed on an onerous schedule or subjected to unhealthful conditions. But the Fifth Circuit has long required proof of a more exacting "ultimate" employment decision, e.g., "hiring, firing, demoting, promoting, granting leave, and compensating." In yesterday's 2-1 decision, though, a panel of the court holds that a material diminution of duties not otherwise accompanied by a change in title or pay may be actionable.
The Fifth Circuit addresses a seldom-litigated question under Title VII, 42 U.S.C. § 2000e(j): whether plaintiffs in religious reasonable-accommodation cases must prove both that they hold sincere ("bona fide") religious convictions, and that the activities to be accommodated constitute true religious beliefs. The panel splits 2-1, with the majority reversing summary judgment for the employer and holding that even a non-religious observance (here, a community service event for the plaintiff's church) might require accommodation.
The Tenth Circuit addresses two issues of interest to those who regularly represent employees, especially those in the federal sector. First, the panel holds - in a widening circuit split - that a claim of constructive discharge under Title VII accrues not at the time that an employee quits, but when the last act of alleged discrimination by the employer occurs. In the federal sector, this significant because of the narrow 45-day window for complaining about discrimination. Second, the panel holds that a threatened suspension without pay may, even if it does not materialize, constitute a "materially adverse action" for a Title VII claim of retaliation.
This case presents the nice question of whether an employer violated Title VII by punishing a woman more harshly than her male counterpart for the same misconduct, i.e., jointly carrying on a workplace affair. The Seventh Circuit says that there is enough of a genuine dispute of facts to reverse summary judgment and remand for further discovery. The court also remands a claim of sex harassment, which included the extraordinary complaint that the employer tolerated employees having after-hours sexual liaisons on the plaintiff's office desk (which the panel found, notably, was not a form of sex harassment).
The U.S. Supreme Court in recent terms has encouraged federal courts to weed out supposedly meritless civil claims by use of the Rule 12(b)(6) motion to dismiss for failure to state a claim. Yet the Seventh Circuit reaffirms this week that this method is often not appropriate for Title VII discrimination and retaliation claims. The panel vacates and remands dismissal of a Title VII complaint, holding that the district court was too quick to demand facts and evidence in support of the class before discovery commenced. The court also reverses a decision holding that some of the claims were allegedly preempted by the Railway Labor Act.
Racial coding continues in the workplace today, the jotting of surreptitious entries on job applications to avoid hiring disfavored minorities. And in this case, even when the evidence was staring the trial judge in the face - plaintiff's unsuccessful application said "black" in handwriting, and no witness from the employer offered an explanation why - the judge still found that there was an innocent explanation for it. The Seventh Circuit tosses a bench verdict in favor of the employer, decreeing that the trial judge must reconsider evidence that clearly favored the employee's claim of race discrimination.
In a non-precedential opinion that may nevertheless be important to litigators, a Fifth Circuit panel splits three ways on whether an employee must continue to defend her Title VII prima facie case under the McDonnell Douglas rubric after the employer presents a legitimate, non-discriminatory reason for an employee's termination. The courts continue to disagree on this issue even decades after the Supreme Court first framed-out this method of proof.
A Sixth Circuit case addresses the occasional issue of whether Title VII supports "sex-plus" claims - in this case, a claim that she suffered discrimination specifically as an African-American woman. The panel agrees that such a claim can be made, and that the employee may point to treatment of non-African-American women as comparable employees. The case also goes to show the importance of email traffic in discrimination cases.
Often, employees must fight and fight again to enforce their rights. A woman denied employment as a firefighter in 2001 sued to corps for sex discrimination in 2005. Four years later, she obtained a settlement to employ her as a "transitory" firefighter until a slot opened up in the training academy. But she was compelled to sue once again when her sergeant allegedly harassed her in retaliation for bringing the original complaint. The First Circuit holds that she states a claim for violation of the Title VII anti-retaliation section 42 U.S.C. § 2000e-3(a).
Can a job transfer originally requested by an employee constitute an "adverse employment action" (for purposes of Title VII, the ADEA and § 1983)? The Sixth Circuit panel in this case split over the issue, 2-1. The panel majority holds, in reversing summary judgment on this issue, that such a transfer may be "adverse" to the employee when the terms and conditions of the transfer are inferior to what the employee originally sought.