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.

Krolnik v. Prudential Insurance, No. 08-2616 (7th Cir. June 29, 2009); Ricci v. DeStefano, No. 07-1428 (U.S. S. Ct. June 29, 2009):
Posted by: Paul Mollica
June 29, 2009

Because the web will be afire with instant commentary on the Supreme Court's Ricci decision, I will lead off with a little benefits case from the Seventh Circuit. As for Ricci, the majority exposes the roots of the case -- essentially, a re-match of the affirmative-action battles of the 1980s -- and reaches, 5-4, an equivalent result: blanket disapproval of race-conscious solutions to hiring and promotions.

EEOC v. Thompson Contracting, No. 08-1626 (4th Cir. June 25, 2009)
Posted by: Paul Mollica
June 25, 2009

The Fourth Circuit today reverses (in an unpublished order) summary judgment in a Title VII religious discrimination case involving a Sabbatarian truck driver. Whether the termination was the result of missing four Saturdays at work, or because a failed drug test and a collision with the company vehicle, presents a genuine issue of material fact.

Hendricks v. Geithner, No. 07-5392 (D.C. Cir. June 19, 2009)
Posted by: Paul Mollica
June 22, 2009

While the majority disappoints in a predictable affirmance of summary judgment in a federal employee Title VII case, the dissent proves piercing and all the more welcome because of its source.

Paup v. Gear Products, Inc., No. 07-5164 (10th Cir. June 19, 2009); EEOC v. Maricopa County, No. 08-15403 (9th Cir. June 18, 2009)
Posted by: Paul Mollica
June 19, 2009

One day after the Gross decision breaks, the Tenth Circuit begins laying the groundwork for the next assault on ADEA causation, albeit by way of an unpublished decision. In the Ninth Circuit, the EEOC gets out from under attorneys' fees sanctions in another non-precedential decision.

Gross v. FBL Financial Services, Inc., No. 08?441 (U.S. S. Ct. June 18, 2009)
Posted by: Paul Mollica
June 18, 2009

Oh, Gross! A five-justice majority of the U.S. Supreme Court takes the defense bait and, instead of deciding the issue presented, stops down the focus of proof of causation in ADEA cases to a rigid "but for" standard -- previously rejected by every U.S. court of appeals.

Huston v. Procter & Gamble, No. 07-2799 (3d Cir. June 9, 2009)
Posted by: Paul Mollica
June 09, 2009

In a co-worker Title VII/state law harassment case, there are several ways to impute knowledge of the harassment to the employer for liability purposes: the employee can report the harassment through channels, the harassment may be so pervasive that the employer obtains constructive knowledge, or upper-level management may learn of the harassment. The employee in this case attempted to prove her claim through the last of these routes, but the Third Circuit (affirming summary judgment) defines "management" level too narrowly for her to present a genuine issue of material fact on that issue.

EEOC v. Chevron Phillips, No. 07-20661 (5th Cir. June 5, 2009); Zakre v. Norddeutsche, No. 07-2347 (2d Cir. June 8, 2009)
Posted by: Paul Mollica
June 08, 2009

Take cheer in a progressive decision coming out of this unlikeliest of venues, the Fifth Circuit. The EEOC obtains a decision that not only gets it a trial on an ADA claim, but also sheds a light on a totally foul way of disposing of summary judgment. And in an unreported decision from the Second Circuit, a $600,000 punitive award stands in spite of cross-appeals by the parties challenging the size of the award.

Thompson v. No. Amer. Stainless, No. 07-5040 (6th Cir. June 5, 2009)
Posted by: Paul Mollica
June 05, 2009

Victims of second-hand retaliation -- where employers punish people close to the employee who engaged in protected activity under Title VII -- briefly enjoyed a direct cause of action against the employer in the Sixth Circuit. No longer, though: the en banc Sixth Circuit votes it out of existence 10-6.

Nelson v. National Aeronautics and Space Administration, No. 07-56424 (9th Cir. June 4, 2009)
Posted by: Paul Mollica
June 04, 2009

Over a year and a half after its original decision ordering entry of a preliminary injunction to put a halt to intrusive background checks of low-level contract employees at the Jet Propulsion Lab, the Ninth Circuit finally orders the denial of rehearing en banc, with five judges dissenting and four separate opinions trailing behind.

McLain v. Andersen Corp., No. 08-2473 (8th Cir. June 3, 2009)
Posted by: Paul Mollica
June 03, 2009

What appears to have been an attempt to broaden a state anti-discrimination law turns into a trap for the unwary, in this Eighth Circuit case. When Minnesota specifically defined age discrimination to include "acts which interfere with an employee's opportunity to acquire pension credits or pension benefits," it set up a conflict with ERISA § 510, which -- given the complete preemption rule -- the state statute was bound to lose.

Johannsen v. Nike Inc., No. 08-35040 (9th Cir. June 2, 2009)
Posted by: Paul Mollica
June 02, 2009

A bit off-topic, but did you know that Montana has (by statute) reversed the presumption of pure at-will employment? Here's an unpublished Ninth Circuit case applying the law, affirming a bench verdict for the employee.

Williams v. Mohawk Indus., Inc., No. 08-13446 (11th Cir. May 28, 2009); Qamhiyah v. Iowa State University of Science and Technology, No. 08-2548 (8th Cir. June 1, 2009)
Posted by: Paul Mollica
June 01, 2009

Grace (for the plaintiff's bar) comes from an unexpected source, as the Eleventh Circuit -- in an opinion signed by Judge Pryor -- reverses denial of class certification in an employment-related dispute. In more garden-variety news, the Eighth Circuit affirms summary judgment in a "cat's paw" case.