I think we have the right sign for the Seventh Circuit this week. The same day that the court interred the rule against using an employee's "self-serving" testimony to resist summary judgment in employment-discrimination cases, another panel of the same court helps correct a lingering misunderstanding about what it means for an employee to use a "mosaic" of circumstantial evidence under Title VII - and also backs off a bit from a strict direct/indirect framework of proof enforced by that circuit. Such cases may help district courts reach more sensible decisions at the summary judgment stage.
The Seventh Circuit sends back for trial this Title VII religious-accommodation case, concerning a Nigerian employee's request for five weeks' leave time to attend his father's funeral overseas. One disputed issue was whether the employee clearly indicated a religious purpose for the voyage, where he said that "if he failed to lead the burial rites, he and his family members would suffer at least spiritual death."
The Supreme Court, by identical 5-4 majorities, places the goals of convenience and ease of litigating Title VII cases over the legislative imperative of expanding opportunities in the workplace for all. Vance holds that a "supervisor," for purposes of proving vicarious liability for harassment against employers, must be an agent with the power to take "tangible acts" against the employee, such as firing and setting pay. Nassar holds that employees may never shift the burden to employers to disprove causation for Title VII claims of retaliation under 42 U.S.C § 2000e-3(a). Both based their interpretations in part on the convenience of allowing lower courts to take these issues away from juries.
The Sixth Circuit demolishes a popular defense tactic by employers in discrimination cases, holding that district courts should not readily entertain motions in limine to exclude evidence that are often filed after summary judgment motions fail. The panel holds that such motions often intrude on the jury's role as fact-finder, while denying employees the procedural protections of summary judgment. The court reverses the exclusion of evidence of comparative employees and remands an age and national-origin discrimination case for trial.
The Fifth Circuit holds that discriminating against a woman who is lactating or expressing breast milk violates the Pregnancy Discrimination Act provisions of Title VII.
The Fifth Circuit grapples with how, under Title VII, a court may impute the discriminatory behavior of a co-worker to the ultimate decision-maker, in light of Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). The court reverses summary judgment, holding that a co-worker's campaign to damage a female officer's reputation and prevent her promotion could be attributed to his superiors.
Plaintiff, a female employee, brought a sexual harassment and retaliation claim under the New York City Human Rights Law, N.Y.C. Adm. Code §8-101 et seq. ("NYCHRL"), against her employer, claiming that her supervisor ran the office like a "boys' club" and subjected her to sexually suggestive comments including propositioning her for sex. The Second Circuit, in a 39-page opinion, reversed the lower court's dismissal of Plaintiff's claims and remanded for trial, holding that Plaintiff's claims should be "broadly construed" under the NYCHRL's protections which are intended to go above and beyond the floor provided by federal law.
The U.S. Equal Employment Opportunity Commission (EEOC) has recently released its 2012 Enforcement and Litigation Statistics which provides that although the number of sexual harassment charges filed has decreased from 7,809 in 2011 to 7,571 in 2012, the percentage of charges filed by males has increased from 16.1% to 17.8%. Although women are still filing the majority of EEOC sexual harassment charges, it is worth noting this significant increase in charges filed by men.
Two recent decisions from the Eighth Circuit serve as a reminder that employment discrimination and retaliation cases are being tried and employees are winning. In Hudson, the Court affirms a nearly $180,000 jury verdict in a Title VII and ADA discrimination case, including $100,000 in emotional distress damages. In Al-Birekdar, the court upholds a $200,000 verdict for retaliation under the Missouri Human Rights Act.
This week, the Second Circuit issued two opinions that at least partially reversed summary judgment in Title VII harassment and retaliation cases. In the first, Desardouin, the panel returned a sex harassment claim that concerned sexual comments made to the plaintiff weekly by her supervisor over a two to three month period. In the second, Summa, the court held that under Title VII (and Title IX, governing educational institutions), it can be a protected activity under the statute's anti-retaliation provisions to complain of even a single incident of alleged harassment.