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.
In this case, a white employee sues and wins at a jury trial over a claim that he was terminated by his employer for speaking up - in support of African-American coworkers - against a racially-hostile work environment. The Eighth Circuit affirms a judgment of $60,000 compensatory damages and $30,608 in back pay in his favor, but refuses him reinstatement or front pay.
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.
An employer that strenuously denied that it fired an employee who complained about sex harassment finds itself short-handed on appeal. The Ninth Circuit - in a 2-1 decision - reverses summary judgment in this Title VII harassment and retaliation case, holding that an employer that fails to offer a reason or explanation for a termination decision creates an issue of fact for the jury to decide.
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.
A common scenario in employment cases is the manager or supervisor who overreacts to a blow-up at work by firing the employee. What the employer may deem as a measured response to insubordination can, after the fact, be held by a court or jury to be the culmination of unlawful discrimination or retaliation. In this case, the First Circuit returns just such a case for a trial, reversing summary judgment entered against a nurse who was fired after complaining that she was being worked beyond her restrictions.
It was a long-time commonplace in federal case law that a mere threat to terminate an employee was not a "materially adverse action" under employment discrimination law. But at least under the anti-retaliation provision of Title VII, the Second Circuit seems to have recognized that such a threat may be actionable in light of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The court also holds that a hostile response to an harassment complaint can itself constitute retaliation.
The Seventh Circuit weighs in on an ERISA issue dividing the circuits: Do participants' informal complaints about plan-related issues constitute protected activity under Section 510, 29 U.S.C. §1140? With a thoughtful parsing of the language, the panel holds that such complaints do trigger the protections of Section 510.
Employees and practitioners in the Eighth Circuit be warned - Title VII claims of post-charge-filing retaliation require the filing of a fresh (or amended) charge with the EEOC. The court decides the issue in a 2-1 decision which widens the circuit split on this issue in the wake of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).