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.

Indergard v. Georgia-Pacific Corp., No. 08-35278 (9th Cir. Sept. 28, 2009)
Posted by: Paul Mollica
September 29, 2009

A Ninth Circuit panel splits 2-1 over whether requiring a physical capacity evaluation (PCE) for employees returning from medical leave constitutes a prohibited medical examination, or a lawful physical fitness test, under the ADA, 42 U.S.C. § 12112(d)(4)(A).

Erdman v. Nationwide Ins. Co., No. 07-3796 (3d Cir. Sept. 23, 2009); Risch v. Royal Oak Police Dept., No. 08-1883 (6th Cir. Sept. 23, 2009)
Posted by: Paul Mollica
September 23, 2009

The Third Circuit reverses summary judgment in an FMLA retaliation case -- rejecting a dubious defense that the FMLA retaliation section does not prevent an employer from firing someone before they take FMLA leave -- though, in the same decision, the panel rejects a parallel claim under the "association" section of the ADA. In the Sixth Circuit, the panel majority reverses summary judgment on a claim of Title VII gender discrimination for failure to promote an arguably better-credentialed woman over two male applicants.

Jones v. Halliburton Inc., No. 08-20380 (5th Cir. Sept. 15, 2009)
Posted by: Paul Mollica
September 16, 2009

By all appearances, this employment arbitration case is a victory for the plaintiff, because the Fifth Circuit (2-1) held certain personal tort claims non-arbitrable. But the facts are so awful -- a female employee allegedly gang-raped by co-workers in her barracks in Bagdad -- that it ought to be Exhibit A for reform in this area of the law.

Baker v. Silver Oak Senior Living Mgt. Co., No. 08-1036 (8th Cir. Sept. 14, 2009)
Posted by: Paul Mollica
September 14, 2009

How did this case slip by the district court? The Eighth Circuit reverses summary judgment in a termination case under the ADEA and Minesota Human Rights Act, where the employer pounded into its managers -- and plaintiff in particular -- that it "should fire certain workers in their 50s and 60s" so that it could hire "younger workers" who would be "better workers, have more energy, be more enthusiastic and stimulate the residents." The EEOC lends a helpful hand as amicus.

Brown v. J. Kaz, Inc., No. 08-2713 (3d Cir. Sept. 11, 2009)
Posted by: Paul Mollica
September 11, 2009

The Third Circuit issues the first published federal court of appeals decision holding that the Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009), decision did not do away with the Price Waterhouse method of proof under section 1981, citing differences in language between that statute and the ADEA.

Halpert v. Manhattan Apartments Inc., No. 07-4074 (2d Cir. Sept. 10, 2009); Mikula v. Allegheny County, Pennsylvania, No. 07-4023 (3d Cir. Sept. 10, 2009); Hennagir v. Utah Department of Corrections, No. 08-4087 (10th Cir. Sept. 10, 2009)
Posted by: Paul Mollica
September 10, 2009

The Second Circuit today recognizes ADEA liability for employment decisions made by independent contractors of an employer. The Third Circuit reverses itself in a pay discrimination case, vacating summary judgment and remanding under the Lilly Ledbetter Fair Pay Act. The Tenth Circuit nixes the claim of a disabled physician's assistant under the ADA who cannot pass a physical safety training requirement.

Nicholson v. Hyannis Air Service, Inc., No. 08-15959 (9th Cir. Sept. 8, 2009); Jackson v. Rent-A-Center West, Inc., No. 07-16164 (9th Cir. Sept. 9, 2009)
Posted by: Paul Mollica
September 09, 2009

The Ninth Circuit hands down two decisions in two days favoring employees. In the first, the panel analyzes in a Title VII sex discrimination case how to apply the McDonnell Douglas prima facie case when the employee is said to fall short of subjective goals. In the second, over a dissent, the panel holds in a § 1981 discrimination and retaliation case that the district court -- rather than the arbitrator -- ought to determine whether an employment arbitration agreement is unconscionable and therefore unenforceable.

Darchak v. City of Chicago Board of Education, No. 08-2732 (7th Cir. Sept. 3, 2009); Humphries v. Pulaski County, No. 08-2485 (8th Cir. Sept. 3, 2009)
Posted by: Paul Mollica
September 04, 2009

Today, two cases involving public school employees. A Polish, bilingual high-school educator came out the better against the Chicago Public Schools a year ago in Filar v. Board of Educ. of City of Chicago, 526 F.3d 1054 (7th Cir. 2008), and another Polish, bilingual teacher wins reversal of summary judgment in this case as well. The Eighth Circuit joins several other circuits in holding that compliance with an affirmative action program that favors minorities constitutes direct evidence of discrimination under Title VII, § 1981 and § 1983.

Prince v. Stewart, No. 08-1632 (7th Cir. Sept. 2, 2009); DeCaro v. Hasbro Inc., No. 09-1054 (1st Cir. Sept. 2, 2009)
Posted by: Paul Mollica
September 03, 2009

In the Seventh Circuit, a district court gets snagged on the seemingly straight-forward rule that an employee's 90 days to file a Title VII lawsuit runs on the claimant's receipt -- not the agency's mailing -- of the EEOCs right-to-sue letter. In the First Circuit, a district court gets a pass (under the aegis of abuse-of-discretion review) for an ADA instruction that even the panel admits was "awkward" and possibly incomplete.

Schreiber v. Philips Display Components Co., No. 07-2440 (6th Cir. Sept. 2, 2009); In re Unisys Corp. Retiree Medical Benefits ERISA Litig., No. 07-3369 (3d Cir. Sept. 2, 2009)
Posted by: Paul Mollica
September 02, 2009

It is gratifying to see, in one day, two ERISA retiree heath care cases reported on appeal where the plaintiffs came off well. In the Sixth Circuit, the court (2-1) remands a putative class action on a section 502(a)(1) and (a)(3) claim for benefits, holding that the district court erred in finding a collective bargining agreement unambiguous and disregarding relevant evidence in the summary plan description. In the Third Circuit, the court affirms a judgment for twelve retirees who won a breach of fiduciary duty case tried under section 502(a)(3), in which the plaintiffs won reinstatement to the plan and an injunction that the employer not be allowed to remove them in the future.