The Seventh Circuit reverses summary judgment in a case involving allegations of racially discriminatory (and retaliatory) treatment of two African American cocktail servers at a Mississippi River casino. The court holds that discrimination in table assignments is an adverse employment action under Title VII and 42 U.S.C. § 1981, because it cut into the servers' tip income.
The Fifth Circuit, in a 10-6 en banc decision, affirms a jury verdict in favor of the government on a male iron worker's claim that he was sexually harassed by a male supervisor on a nearly-daily basis at his worksite, the Twin Spans bridges between New Orleans and Slidell, Louisiana. The full court considers what an employee must prove to establish that a hostile-work-environment is "because . . . of sex," and whether the incident here was severe or pervasive. Meanwhile, the six dissenters between them contribute four separate opinions, lashing out at every aspect of the majority's interpretation of the record and Title VII law.
When does a human-resources executive truly speak for the corporation? This oft-ignored, yet critically important question occupies this Eleventh Circuit decision today, which remands a Title VII national-origin case to the district court for an evidentiary ruling on this issue. The lower court must now rule whether a remark allegedly made by the employer's HR director - that the Korean management of the company "refused to even consider American candidates" for an assistant accounting manager vacancy - may be admitted as evidence. One judge files a partially dissenting opinion on the remand.
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.