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.
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.
The Fourth Circuit en banc finally undoes an enduring wrong by overruling Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), and holding that an employee remains protected by Title VII's anti-retaliation section (and § 1981) when complaining about race harassment, even if the offending conduct has not yet ripened into a hostile work environment.