Blog Topic

Daily Developments in EEO Law

A running commentary (since 2004) on the follies and fortunes of employment discrimination law in the federal courts of appeal - with occasional detours, at the author's discretion.

Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)
Posted by: Paul Mollica
August 31, 2010

The Seventh Circuit enters into a long-standing split about what level of protection - for purposes of the Title VII anti-retaliation section - an employer must give the employee's "participation" in an internal harassment investigation prior to an EEOC charge being commenced. While some circuits have treated it as a litigation privilege, with nearly absolute protection against retaliation even if the complaints are frivolous or false, the Seventh Circuit holds that (1) there is a good-faith requirement for "participation," and (2) in any event, "participation" means only involvement in an official Title VII proceeding.

Watson v. CEVA Logistics U.S., Inc., No. 09-3322 (8th Cir. Aug. 30, 2010); Sheriff v. Midwest Health Partners, No. 09-3367 (8th Cir. Aug. 30, 2010)
Posted by: Paul Mollica
August 30, 2010

Plaintiffs score two wins in the Eighth Circuit today. In the first case, the panel reverses summary judgment in a race hostile-work-environment case with especially corrosive facts. In the second, the plaintiff wins affirmance of a jury verdict in a Title VII case; the panel splits over the question of what kind of record is required to support employee-numerosity for the damage-ceiling provisions in section 1981a(b)(3)(A).

EEOC v. UPS Supply Chain Solutions, No. 08-56874 (9th Cir. Aug. 27, 2010); Lewallen v. City of Beaumont, No. 09-40826 (5th Cir. Aug. 23, 2010)
Posted by: Paul Mollica
August 27, 2010

The EEOC reverses summary judgment in an ADA reasonable accommodation case in the Ninth Circuit, concerning ASL interpreters for the deaf. And cheers to a tough trial team in Texas who prevailed in a equal-protection sex discrimination case against a city police department - also winning an appeal, in an unpublished Fifth Circuit opinion - showing all that it takes to win justice in one of these cases.

Fuller v. Fiber Glass Systems, L.P., No. 09-2732 (8th Cir. Aug. 25, 2010)
Posted by: Paul Mollica
August 25, 2010

In the Eighth Circuit today, a plaintiff keeps her jury verdict and $65,000 emotional distress award following a Title VII/? 1981 trial, in a case demonstrating that some racist tendencies persist in the workplace.

Berry v. Chicago Transit Authority, No. 07-2288 (7th Cir. Aug. 23, 2010); Jones v. Oklahoma City Public Schools, No. 09-6108 (10th Cir. Aug. 24, 2010)
Posted by: Paul Mollica
August 24, 2010

Two new opinions reminding us of two well-settled propositions in employment discrimination law: that a single act of sex harassment, if severe enough, may violate Title VII; and that ADEA plaintiffs do not have to meet a pretext-plus standard of proof to survive summary judgment.

Stagi v. National Railroad Passenger Corporation, No. 09-3512 (3d Cir. Aug. 16, 2010)
Posted by: Paul Mollica
August 18, 2010

The Third Circuit reverses and remands summary judgment, in a (suprisingly) unpublished opinion, for a putative class of female Amtrak employees who complained that "requiring all union employees to have one year of service in their current position before they could be considered for promotion has a disparate impact" in violation of Title VII.

Pucino v. Verizon Communications, No. 07-7176 (2d Cir. Aug. 13, 2010); Szekeres v. CSX Transportation, Inc., No. 09-3835 (6th Cir. Aug. 16, 2010)
Posted by: Paul Mollica
August 16, 2010

Start the week with two cases concerning bathrooms.

Spees v. James Marine, Inc., No. 09-5839 (6th Cir. Aug. 10, 2010)
Posted by: Paul Mollica
August 10, 2010

A pregnant employee, who was transferred from welding to the tool room, gets a second chance to take her employer to trial under Title VII, the ADA and the Kentucky Civil Rights Act. The panel majority holds that the district court prematurely terminated the discrimination claims on summary judgment. The panel opens a new door for claims associated with pregnancy, holding that long-term conditions associated with pregnancy may qualify as "disabilities" under federal law.

Collazo v. Bristol-Myers Squibb Mfg. Co., No. 09-1665 (1st Cir. Aug. 5, 2010)
Posted by: Paul Mollica
August 06, 2010

The First Circuit has its first occasion in a published opinion to apply Crawford v. Metropolitan Government of Nashville & Davidson County, Tenn., 129 S. Ct. 846 (2009), reversing summary judgment and holding that a supervisor who attends HR meetings with an subordinate to support her claims of sex harassment was engaged in protected activity. And the court gives us a reminder of a neglected provision that Title VII cases are to be "in every way expedited."

Flitton v. Primary Residential Mortgage, Inc., No. 09-4108 (10th Cir. Aug. 5, 2010)
Posted by: Paul Mollica
August 05, 2010

A three-way split over whether this Title VII plaintiff, who partially prevailed at trial, is entitled to fees for an intervening appeal and a second jury trial. The opinion for the court by Judge Tacha affirms the award of $367,689.00 below, holding (1) that fees could be awarded for the second trial, despite that the jury entered a defense verdict (joined by Judge Gorsuch); and (2) that fees could not be awarded for the first appeal, because the plaintiff failed to apply in the first instance to the Tenth Circuit (joined by Judge McKay).

Henry v. Wyeth Pharmaceuticals, No. 08-1477 (2d Cir. Aug. 4, 2010)
Posted by: Paul Mollica
August 04, 2010

The Second Circuit today reaches a mixed decision reviewing a jury verdict for the defense in a Title VII and state-law race discrimination and retaliation case. It affirms the verdict on the discrimination claim, in the process enunciating a multi-factor standard (is there any other kind?) for the admissibility of allegedly discriminatory statements in the workplace. It reverses on the retaliation claims, finding that the jury was mis-instructed on the causation standards.

EEOC v. GEO Group Inc., No. 09-3093 (3d Cir. Aug. 2, 2010)
Posted by: Paul Mollica
August 03, 2010

The Third Circuit splits over the question of whether a private-contract operator of a Pennsylvania prison was required to accommodate Muslim head coverings (khimars) at work. The majority accepts the correctional-safety account, and affirms summary judgment; Ninth Circuit visiting-judge A. Wallace Tashima dissents.

Swanson v. Citibank, N.A., No. 10-1122 (7th Cir. July 30, 2010)
Posted by: Paul Mollica
August 02, 2010

Three Seventh Circuit heavyweights battle over the meaning of Iqbal and Twombly in a straight discrimination pleading, here a case filed under the Fair Housing Act. Judge Diane Wood - writing for herself and Chief Judge Frank Easterbrook - find the plaintiff's modest allegations to be enough to pass Rule 8, but Judge Richard Posner in dissent argues that the district court properly dismissed them.

Mogenhan v. Napolitano, No. 08-5457 (D.C. Cir. July 27, 2010)
Posted by: Paul Mollica
July 29, 2010

Possibly a no-brainer, but here goes: Employers, gratuitously publicizing an employee's complaint of discrimination, besides simply being cruel, may be an act of "retaliation" under federal anti-discrimination laws.

Sixth Anniversary; Marion County Coroners Office v. EEOC, No. 09-3595 (7th Cir. July 27, 2010); Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. July 27, 2010)
Posted by: Paul Mollica
July 27, 2010

This week marks six years of blogging EEO law at this site. In a curious wrinkle of anti-discrimination law, claims of racial and other discrimination by governmental, policy-making officials are governed not directly by Title VII, but by the Government Employee Rights Act (GERA), 42 U.S.C. ? 2000e-16a to 16c, covering any "individual chosen or appointed . . . to serve the elected official on the policymaking level." Such employees may obtain relief though an administrative hearing before an ALJ, with review by the EEOC, and administrative review before the U.S. Courts of Appeals. Here's a rare, reported instance of such a case. And an Eleventh Circuit en banc Title VII case evaporates with a settlement.

Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir. July 20, 2010)
Posted by: Paul Mollica
July 20, 2010

Can it really be 2010, and there's a defendant (and willing counsel) arguing to a court that it is allowed under Title VII to accommodate a client's racial preference not to have a black nursing assistant? Sadly, yes. The Seventh Circuit reverses and remands summary judgment on this issue.

Gacek v. American Airlines, No. 09-3131 (7th Cir. July 15, 2010)
Posted by: Paul Mollica
July 15, 2010

When the only tool in your box is a hammer, everything looks like a nail. Some days, it seems that McDonnell Douglas is the only tool in the federal judiciary's box to decide employment law cases. Judge Posner, in this opinion decided under Illinois tort law, tries to curb that habit a little.

Skrzypczak v. Roman Catholic Diocese of Tulsa, No. 09-5089 (10th Cir. July 13, 2010); Narayan v. EGL, Inc., No. 07-16487 (9th Cir. July 13, 2010)
Posted by: Paul Mollica
July 13, 2010

The Tenth Circuit affirms dismissal of federal employment law claims against the Catholic Church based on the ministerial exception, declaring a partial split with the Ninth Circuit. The Ninth Circuit calls foul on a contract by an employer that attempted, baldly, to opt-out of California state-law labor protections.

Breiner v. Nevada Dept. of Corrections, No. 09-15568 (9th Cir. July 8, 2010)
Posted by: Paul Mollica
July 08, 2010

Following the Seventh Circuit's decision in Henry v. Milwaukee County, 539 F.3d 573 (7th Cir. 2008), the Ninth Circuit also rejects a BFOQ defense for female-only lieutenants at a women's correctional facility.

Alvarez v. Royal Atlantic Developers, No. 08-15358 (11th Cir. July 2, 2010)
Posted by: Paul Mollica
July 02, 2010

The Eleventh Circuit passes on a facinating case, reversing summary judgment in a Title VII retaliation case where the employee "wrote a letter of protest to her bosses, complaining, among other things, about what she perceived to be discrimination against her based on her national origin," and "[t]he company admits that Alvarez was fired sooner instead of later because of that letter, which it concedes is protected conduct"