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.

Dukes v. Wal-Mart Stores Inc., No. 04-16688 (9th Cir. Apr. 26, 2010)
Posted by: Paul Mollica
April 26, 2010

This 6-5 en banc decision, substantially affirming Judge Jenkins' class certifcation in this case, casts the Ninth Circuit judges in the role of advocates: the majority underplaying the significance of their decision, the dissent howling in outrage. Both groups of judges are playing to the probable, final arbiter (barring a settlement): the U.S. Supreme Court.

Perdue v. Kenny A., No. 08-970 (U.S. S. Ct. Apr. 21, 2010); Conkright v. Frommert , No. 08-810 (U.S. S. Ct. Apr. 21, 2010)
Posted by: Paul Mollica
April 21, 2010

Civil- and employee-rights litigants take it in the neck again, as the Supreme Court (in 5-4 and 5-3) decisions reverse decisions (1) from the Eleventh Circuit, that allowed a fee-enhancement in fee-shifting cases for extraordinary results; and (2) from the Second Circuit, that ratcheted-up judicial review of ERISA plan administrator claims decisions in cases where the administrators' original decisions were found judicially to be unreasonable. Message to the lower courts: don't get too creative.

Staub v. Proctor Hospital (U.S. S. Ct. No. 09-400)
Posted by: Paul Mollica
April 19, 2010

The U.S. courts of appeals have wrestled for years over the proper agency standard to apply under Title VII and other employment statutes when a discriminatory manager sets into motion -- but does not him/herself carry out -- an adverse employment action. The Supreme Court agreed to review the question today, picking up an issue that it once had before it (in the 2006 term) before the petitioner voluntarily dismissed the writ.

West v. Tyson Foods, Inc., No. 08-6516 (6th Cir. Apr. 15, 2010); Pardo-Kronemann v. Donovan, No. 08-5155 (D.C. Cir. Apr. 16, 2010)
Posted by: Paul Mollica
April 17, 2010

Employers have been pursuing an argument in sex (and other) harassment cases that liability cannot attach to the company if an employee complains only to lowest-level figure in the anti-harassment reporting chain. But the Sixth Circuit rejects the suggestion in this unpublished decision, affirming a $1.18 million award for a five-week employee at a chicken processing plant. In the D. C. Circuit, Judges Tatel (writing for the panel, reversing summary judgment) and Williams (in dissent) expend 43 pages in a Title VII retaliation case picking over whether HUD failed to properly frame its legal argument in the district court.

Thompson v. UHHS Richmond Heights Hospital, No. 08-4435 (6th Cir. Apr. 12, 2010)
Posted by: Paul Mollica
April 13, 2010

Is a white manager calling his black employees "troublemakers" guilty of using racial-code language? Could be, says the Sixth Circuit in an unpublished decision reversing summary judgment in a Title VII case.

Sulima v. Defense Support Services, LLC, No. 08-4684 (3d Cir. Apr. 12, 2010)
Posted by: Paul Mollica
April 12, 2010

The Third Circuit picks up on a 1997 Seventh Circuit decision, Christian v. St. Anthony Med. Ctr., 117 F.3d 1051 (7th Cir. 1997), and holds that the side effects from a course of medical treatment may themselves constitute an impairment under the ADA, even if the underlying medical condition itself is not a disability. But the plaintiff loses this case, anyway, because the course of treatment (for weight and sleep apnea) was not supported by his treating doctor.

Merritt v. Old Dominion Freight Line, Inc., No. 09-1498 (4th Cir. Apr. 9, 2010); Edwards v. Prime, Inc., No. 09-11699 (11th Cir. Apr. 9, 2010)
Posted by: Paul Mollica
April 11, 2010

The Fourth Circuit issued a progressive decision Friday, affirming a woman truck driver's right to a jury trial over her Title VII allegation that she was fired for sex-biased reasons -- namely, for supposedly failing a physical exam not given to her male counterparts. The Eleventh Circuit holds that a group of white restaurant workers plead themselves out of court on a racial harassment claim, based on their advocacy of enforcing federal immigration laws against undocumented workers.

Colwell v. Rite Aid of Pennsylvania, Inc., No. 08-4675 (3d Cir. Apr. 8, 2010)
Posted by: Paul Mollica
April 08, 2010

The Third Circuit in an ADA case holds that offering a half-blinded sales clerk the option of daytime-only shifts may be considered a reasonable accommodation. It reverses summary judgment, concluding that a jury could find in this case that the employer caused the breakdown of the interactive process.

Agusty-Reyes v. Department of Education, No. 09-1247 (1st Cir. Apr. 6, 2010); Whitten v. Fred?s Inc., No. 09-1265 (4th Cir. Apr. 1, 2010)
Posted by: Paul Mollica
April 06, 2010

Here are two recent sex harassment opinions, reversing summary judgment against the respective plaintiffs, that coincidently discuss the vicarious liability standard of Faragher/Ellerth. The former case holds that a temporary denial of tenure to a school teacher, otherwise provided by law in Puerto Rico, constitutes a "tangible act" that negates any resort by the employer to an affirmative defense. The latter case, brought under South Carolina law, holds that while the plaintiff presented a genuine issue of material fact about whether she was constructively discharged, she failed as a matter of law to prove that her departure was caused by a "tangible act."