We have learned a lot in the few short days since Gretchen Carlson, former for News anchor, filed her lawsuit alleging sexual harassment and retaliation against for CEO Roger Ailes. While the allegations underlying the lawsuit may not be particularly surprising to anyone who knew anything about Ailes or the culture of for News, the fact that a lawsuit was filed, and the way it was filed, demonstrates remarkable legal ingenuity and personal bra very. The Carlson lawsuit underscores just how high the chips are stacked against women coming forward to report harassment and discrimination, but also may give us a roadmap to even those odds.
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.
Today's Two-fer Tuesday in the Second Circuit: a pregnancy discrimination case is returned for retrial, in light of the intervening decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015); and a panel holds that a state human-resource professional's opposition to changes in the EEO complaint-reporting procedures is not a "protected activity" under Title VII.
The Sixth Circuit holds, in an opinion that potentially expands remedies for Title VII claimants, that a back-pay award may include amounts that an employee could have earned from alternative employment, had the employer not engaged in discrimination or retaliation. Nonetheless, the court holds that the employee in this particular case failed to prove that she suffered such damages.
The Fifth Circuit affirms that an employee interviewed as part of a company's internal investigation into sex harassment complaints is protected under the "opposition" prong of the anti-retaliation section of Title VII. Yet it also holds that the witness must manifest at least a "reasonable belief" that what she witnessed rose to a violation of that act.
In the first-published federal court of appeals EEO decision of 2016, the Eighth Circuit (in a 2-1 decision) reverses summary judgment in a sex harassment case. The plaintiff - a woman truck driver - was forced to share close quarters with a male co-worker for a week-long trip. The panel majority holds that a jury could find that the employer could have taken greater steps to prevent the harassment.
The Tenth Circuit reverses summary judgment and remands in a section 1981 case involving harassment of a call-center's only black employee. The panel reminds district courts and litigants that even non-racial remarks, against a backdrop of racially-offensive chatter, may constitute harassment. It also notes that "whether a workplace environment is sufficiently polluted for purposes of a § 1981 claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense."
Courts in Title VII retaliation cases continue to werestle with what constitutes a "materially adverse action" under Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). While accepting an employee's voluntary resignation may not itself be an adverse action, the Fifth Circuit here holds that an employer's refusal to honour an employee's rescission of a resignation may be deemed materially adverse.
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.