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.

Pedreira v. Kentucky Baptist Homes for Children, No. 08-5538 (6th Cir. Aug. 31, 2009); Floyd v. Amite County School Dist., No. 08-60799 (5th Cir. Aug. 27, 2009); EEOC v. Exxon Mobil Corp., No. 08-10624 (5th Cir. Aug. 27, 2009)
Posted by: Paul Mollica
August 31, 2009

Within days of Prowel v. Wise Business Forms, Inc., No. 07-3997 (3d Cir. Aug. 28, 2009), which rejected a Title VII religious discrimination claim by a gay man who alleged harassment by Christians because of his sexual orientation, we get a second Title VII case -- this from the Sixth Circuit -- challenging the termination of a lesbian social worker. We get the same bottom-line result, dismissing the claim, but leaving a door open for an Establishment Clause challenge. From the Fifth Circuit, we have an inventive-but-failed attempt to bootstrap what looks like a Title IX claim into a Title VII "racial association" case, and an unpublished opinion reversing summary judgment against the EEOC in an ADEA case involving private jet pilots for the oil giant.

Prowel v. Wise Business Forms, Inc., No. 07-3997 (3d Cir. Aug. 28, 2009); Calef v. FedEx Ground Packaging System, Inc., No. 08-2031 (4th Cir. Aug. 27, 2009)
Posted by: Paul Mollica
August 29, 2009

Two fantastic results for plaintiffs this week. In the Third Circuit, a gay man succeeds in reversing summary judgment in a Title VII case -- on a sex-stereotyping theory -- claiming harassment and retaliation, although his parallel religious harassment case fails. In the Fourth Circuit, in an unpublished decision, the panel affirms an jury award and judgment of over $1 million for a plaintiff under a state-law disability discrimination statute.

EEOC v. Siouxland Oral Maxillofacial Surgery, LLC,, No. 07-2419 (8th Cir. Aug. 27, 2009); Dixon v. Pulaski Co. Special School Dist., No. 08-3201 (8th Cir. Aug. 27, 2009); Hutson v. Wells Dairy, Inc., No. 08-3895 (8th Cir. Aug. 27, 2009)
Posted by: Paul Mollica
August 27, 2009

An Eighth Circuit trifecta: The EEOC wins a Title VII punitive damage issue in a pregnancy discrimination case, a Title VII/§ 1981/§ 1983 hiring claim flames out on the issue of pretext, and an ADEA claim is three days late to the start line.

Hunter v. Valley View Local Schools, No. 08-4109 (6th Cir. Aug. 26, 2009); Sandoval v. American Building Maintenance Industries, Inc., No. 08-2271 (8th Cir. Aug. 26, 2009)
Posted by: Paul Mollica
August 26, 2009

Two cases, both involving custodians, lead to good results for the employees. The Sixth Circuit adresses the significance of Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), in the context of the Family and Medical Leave Act. It holds -- in spite of that recent Supreme Court blockbuster -- that the circuit will continue to apply a mixed-motives theory under the FMLA retaliation section, 29 U.S.C. § 2615(a). In the Eighth Circuit, we have a progressive result -- with an assist from the EEOC and National Employment Lawyers Association as amici -- (1) applying the "integrated enterprise" rule under Title VII, and (2) extending the reach of when an employer might be on constructive notice of co-worker harassment (over a partial dissent).

EEOC v. The Boeing Co., No. 07-16903 (9th Cir. Aug. 18, 2009); Ikossi-Anastasiou v. Louisiana State Univ., No 06-3111 (5th Cir. Aug. 18, 2009)
Posted by: Paul Mollica
August 19, 2009

Two more plaintiffs' wins reported yesterday -- the publication of a previously non-precedential Title VII casein the Ninth Circuit, and a partial reversal of summary judgment in a Title VII case that sends a retaliation claim back to the district court for trial in the Fifth Circuit.

Courie v. Alcoa Wheel & Forged Products, No. 07-4440 (6th Cir. Aug. 18, 2009); Fowler v. UPMC Shadyside, No. 07-4285 (3d Cir. Aug. 18, 2009)
Posted by: Paul Mollica
August 18, 2009

The Sixth and Third Circuits both hold today that the "plausibility" pleading standard of Ashcroft v. Iqbal, 129 S. Ct. 1955 (2009), applies to garden-variety employment discrimination cases. In the same opinion, the Third Circuit declares a four-year limitations period for a Rehabilitation Act failure-to-transfer claim under 29 U.S.C. § 794(d).

Anderson v. Oklahoma State University Bd. of Regents, No. 08-6249 (10th Cir. Aug. 17, 2009)
Posted by: Paul Mollica
August 17, 2009

You would think that having to compete for a job with someone who's having sex with the boss would present a sex discrimination case under Title VII, but courts (as this unpublished Tenth Circuit decision demonstates) generally do not agree.

DeFreitas v. Horizon Investment Mgt.. Corp., No. 08-4034 (10th Cir. Aug. 14, 2009); Upshaw v. Ford Motor Co., No. 08-3246 (6th Cir. Aug. 14, 2009); Alexander v. CareSource, No. 08-3880 (6th Cir. Aug. 14, 2009)
Posted by: Paul Mollica
August 14, 2009

At the end of the week, we have comparable outcomes in diverse quarters. From Utah, courtesy of the Tenth Circuit, we have a reversal of summary judgment in an FMLA interference case, while the same opinion affirms summary judgment in a Title VII religious discrimination claim. In Michigan, the Sixth Circuit grants a similarly-divided outcome in a Title VII/Ohio state-law race discrimination case, affirming summary judgment on the discrimination claim but returning the retaliation claim for trial. Finally, also from the Sixth Circuit, we have a reminder that the Federal Rules of Evidence apply with equal force at the summary judgment stage via Fed. R. Civ. P. 56(e).

Brown v. Nucor Corp., No. 08-1247 (4th Cir. Aug. 7, 2009); Porter v. Erie Foods Intl, Inc., No. 08-1996 (7th Cir. Aug. 7, 2009)
Posted by: Paul Mollica
August 11, 2009

Two new racial harassment cases featuring nooses found their way into the books last week. In a Fourth Circuit case, the panel reverses denial of class certification in a Title VII racial harassment/promotion case. In a Seventh Circuit case, the panel somewhat reluctantly affirms summary judgment where it appeared that management accomplished what it could in response to the employee's complaint, despite that the manager herself tacked the noose on her own bulletin board for most of a shift.

Simmons v. N.Y.C. Transit Auth., No. 08-4079 (2d Cir. Aug. 3, 2009); Blackmon-Malloy v. U.S. Capitol Police Board, No. 07-5320 (D.C. Cir. Jul. 31, 2009)
Posted by: Paul Mollica
August 04, 2009

The Second Circuit issues another warning to lawyers from high-billing jurisdictions who choose to represent clients in courts where the market rate is lower, here tamping down an award of fees in an ADA/Rehab Act case. The D.C. Circuit construes the Congressional Accountability Act of 1995 to find that the employee satisfied the three-step process for commencing an action related to her Capitol Hill employment, and on behalf of a putative class.

Bryant v. Jones, No. 06-16591 (11th Cir. Jul. 31, 2009)
Posted by: Paul Mollica
August 03, 2009

In a case alleging a racial spoils system in county employment under § 1981, plaintiffs pretty nearly sweep the board in this interlocutory appeal of qualified immunity. One anomaly: while hounding someone out of job for racial/retaliatory reasons enjoys no qualified immunity, recommending elimination of an employee's job from the county budget for the same reason is absolutely protected under legislative immunity.