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.

Butler v. Alabama Dep't of Transportation, No. 07-13358 (11th Cir. July 30, 2008)
July 30, 2008

Employee advocates have a hell of a problem pinpointing for their clients the exact magic moment when to complain to HR about sex or race harassment. Complain too late, and a court may find that the employee did not reasonably avail herself of corrective measures under Kolstad, Faragher and Ellerth. But complain too early, as today's case lamentably demonstrates, and the employee may not be protected by Title VII's anti-retaliation provisions at all.

Johnson v. Riverside Healthcare, No. 06-55280 (9th Cir. July 28, 2008); Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008)
July 28, 2008

Two decisions from the Ninth Circuit, with a bearing on employee advocates: a partial reversal (on rehearing) and remand of a racial harassment complaint; and reversal of 40% cut in an attorney-fee award in a civil rights case. Notably, the authors of both opinions are regarded as "conservative" on that bench.

Carney v. City and County of Denver, No. 06-1490 (10th Cir. July 24, 2008)
July 25, 2008

Here's another case that demonstrates why employee advocates need Title VII, in spite of the procedural inconveniences, the short limitations periods and the capped damages.

Heaton v. The Weitz Company, No. 07-2851 (8th Cir. July 24, 2008); Collazo v. Nicholson, No. 06-2678 (1st Cir. July 24, 2008)
July 24, 2008

Here's a case from the Eighth Circuit where the employer apparently handled the harassment complaint correctly, but a jury found (to the tune of over $300,000, with fees thrown in) that HR didn't handle the follow-up retaliation so well. Also, the First Circuit reminds us of a gap in the ADEA remedial scheme.

Hall v. Nalco Co., No. 06-3684 (7th Cir. July 17, 2008); Adams v. Rice, No. 07-5101 (D.C. Cir. July 18, 2008)
July 18, 2008

Two cases involving two hot-button issues for women -- infertility treatment and breast cancer -- obtain breathtakingly progressive results in respective decisions from the D.C. and Seventh Circuits.

Attachments:
Hallv.NalcoCo.pdf

O'Brien v. Johanns, No. 07-2274 (8th Cir. July 16, 2008); Carmona v. Southwest Airlines, No. 07-51071 (5th Cir. July 16, 2008)
July 17, 2008

Things have been quiet on the EEO for the past couple of weeks, but here's two decisions from yesterday: a racial hostile work environment/retaliation suit from the Eighth Circuit (summary judgment affirmed, natch) and a Railway Labor Act preemption case that went the plaintiff's way in the Fifth Circuit.

Aryain v. Wal-Mart Stores Texas LP, No. 07-20552 (5th Cir. July 8, 2008)
July 09, 2008

Wal-Mart again!

Orr v. City of Albuquerque, No. 07-2105 (10th Cir. July 8, 2008)
July 08, 2008

Here's a good case of old-fashioned McDonnell Douglas pretext, where the employer claims that it applied a uniform, written leave policy to pregnant employees -- despite that the policy did not even exist until after the plaintiff's pregnancy. While recognizing that employers are entitled to wide latitude in exercising managerial authority, and may act on mistaken though "honest belief" without violating Title VII, the panel notes that the honesty of the employer's belief may not be susceptible to resolution on summary judgment.

Richardson v. Commission on Human Rights & Opportunities, No. 06-0474 (2d Cir. July 7, 2008)
July 07, 2008

The Second Circuit splits with the Seventh Circuit's decision in EEOC v. Board of Governors, 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906 (1992), and holds that it is not unlawful retaliation under Title VII for a collective bargaining agreement to provide that an employee must forfeit her right to grieve a complaint when she files a charge with the EEOC about the same action.

White v. Baxter Healthcare Corp., No. 07-1626 (6th Cir. July 3, 2008)
July 06, 2008

The Sixth Circuit has now created a genuine split in the circuits about how to analyze a claim brought under Title VII's so-called "mixed-motive" section, 42 U.S.C. § 2000e-2(m). It becomes the first circuit to publish a decision fully abandoning the use of the McDonnell Douglas/Burdine framework in mixed-motive cases. The panel majority also takes a step away from pure deference to an employer's "business judgment" in the single-motive context.

Brady v. Wal-Mart Stores, Inc., No. 06-5486 (2d Cir. July 2, 2008)
July 02, 2008

What happens when a disabled 19-year-old takes on the international retailing giant, and wins!

Doe v. The Salvation Army, No. 07-3822 (6th Cir. July 1, 2008); Desmond v. Mukasey, No. 07-5139 (D.C. Cir. July 1, 2008)
July 01, 2008

Today, we have back-to-back Rehabilitation Act claims, both concerning mental disabilities -- the toughest nut to crack in the disabilities field -- and both reversing summary judgment decisions against plaintiffs. The first is a case from the Sixth Circuit: a "record-of" hiring case about an interview for a truck driver position that came to an abrupt end when the applicant was asked about medications. The second, about an FBI trainee who was dismissed from the academy, addresses the nifty question of whether and when "sleeping" may constitute a "major life activity."