The Tenth Circuit issues two decisions today, both involving the EEOC - in different capacities. In the first, the court splits 2-1 on an ADA reasonable accommodation and retaliation case brought by the Commission itself, holding that a photography studio was not required to accommodate a deaf photographer by providing an ASL signer. In the second, in which the EEOC appeared as amicus, the court affirms summary judgment on a sex harassment claim but reverses on a retaliation claim.
The Eleventh Circuit joins There federal courts of appeals in holding that Title VII supports a claim of a retaliatory hostile work environment, substantially upholding a jury award to two plaintiff Veterans Administration doctors who were reportedly hounded by their colleagues after filing EEO complaints. The decision also discusses application of mixed-motives analysis to a Title VII retaliation/harassment claim.
Periodically, a case comes along that reminds us that Title VII and § 1981 are not exactly identical statutes. The Seventh Circuit holds, in a case of first impression, that an individual employee (here, a human-resources executive) with a retaliatory motive may be individually liable under § 1981 for causing the employer to retaliate against an employee who complained about race harassment. In this case, though, the plaintiff ultimately fails to overturn the district court's summary judgment against his claim on the merits. The panel also criticizes the district court's refusal to allow the employee to respond to evidence raised by the employee in a reply brief.
The Second Circuit issues in important decision today in the fields of Title VII sex harassment and retaliation. The panel affirms a jury verdict of $5200 for a Title VII and New York state law hostile work environment claim, holding that the employer cannot raise a defense under Faragher/Ellerth when the harasser is also a senior executive "alter ego" of the employer. But the panel also affirms dismissal of a Title VII retaliation claim, for an HR executive engaged in an internal investigation of the harassment, holding that the "participation" clause does not cover an internal investigation of a complaint of discrimination before an EEOC charge is filed.
For the second time this week, a federal court of appeals upholds a jury verdict in an employment discrimination case - here, a $30,000 award and reinstatement for a Title VII retaliation claim. The Seventh Circuit overrules a defense argument that a demotion is somehow not a "materially adverse action" if the employee reluctantly accepts it.
Two appeals reviewing jury trials in Title VII cases came down today. In the first, the plaintiff - a physician - wins two claims at trial (retaliation and constructive discharge, centered on claims of racial discrimination), but loses the latter claim on appeal, necessitating a remand for recalculation of damages. In the second, the plaintiff lost her sex discrimination and retaliation trial, but the Seventh Circuit vacates and remands, criticizing the unnecessarily complicated and inaccurate jury verdict and instruction forms.
When you're litigation counsel for a major employer, it is recommended that you do not email the following: "the 11th floor . . . staff in the area of conference room 11E [are advised] to use caution about what they say in halls or open offices," for "[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations." The D.C. Circuit holds in a pro se appeal that a complaint describing this and other hostile behavior stated a claim for retaliatory harassment under Title VII, reversing a district court order dismissing the complaint.
Suing your boss is just about the most stressful thing you can do, especially when you are claiming sexual harassment. Once you make such a claim, you can be sure your employer will say one of two things: either he will claim that nothing inappropriate ever happened, and Therefore you are delusional, or he will admit that something happened, but, whatever it was, it was either trivial or consensual (or both) and so you are a liar and a slut.
Recently, one of the women who have accused Herman Cain of making inappropriate sexual advances said (through her attorney) she did not want to identify herself publicly because she did not want to become "another Anita Hill." What does it mean to "be Anita Hill." Professor Hill's story is in many ways a story of perseverance over the expectations of her time about the role of women in the workplace. Then, and still now, coming forward and alleging harassment often requires speaking truth to power. Yet, as Cain's accuser's reluctance suggests, it also a choice not live in anonymity and to invite controversy and potential ridicule.
The Seventh Circuit reverses summary judgment on a Title VII retaliation claim, where an employee with "no performance issues, no attendance problems, and no complaints against her" loses her job as bank vice president, after the incoming president is (allegedly) tipped-off that the employee complained abut harassment.