Yes Virginia, the Supreme Court Does Matter - A Cat's Paw in the 5th Circuit
Although as an object fact we know that it is important when the Supreme Court issues a decision, see my discussion just above about the importance of a SOX case that will be decided next term, but it never hurts to be reminded.
The Next Protected Class - Ex-cons
The EEOC last year issued some updated guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. It laid out a blue print for how to plead a case under Title VII using the disparate impact theory of discrimination. Although not as common as disparate treatment cases, disparate impact cases tend to have much broader application because one of the requirements is a business practice that is applied uniformly with a disparate impact on a protected category.
Title VII Retaliation Suit to Proceed Despite Failure of Underlying Hostile Work Environment Claim, Federal Court Rules
The offensive conduct of a co-worker and a supervisor, consisting of comments and incidents sexual in nature alleged by the plaintiff, was not severe or pervasive enough to create a hostile work environment under Title VII of the Civil Rights Act of 1964, a federal appeals court in San Francisco has ruled. Westendorf v. West Coast Contractors of Nevada, Inc., No. 11-16004 (9th Cir. Apr. 1, 2013). However, the Court held the employee raised sufficient factual questions as to whether her termination from employment was in retaliation for her complaints. Accordingly, the Court affirmed in part, and reversed in part, summary judgment in favor of the employer. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
"Looks" discrimination can be a problem even if you're in retail, fashion, or marketing
Are you in retail, fashion, or marketing, and getting ready to reject a job candidate because he or she doesn't have the "look" you want?
Lawful Discrimination and Off-Duty Conduct
Is discrimination ever legal? Most definitely. We all discriminate all day, every day. For example, nearly every morning, I discriminate against decaf coffee in favor the full-strength brew. The two pods are similarly situated right there in the rack. They brew in the same amount of time and cost the same. But I just can't bear the thought of the decaf.
But-for and mixed-motive causation squaring off in U.S. Supreme Court case, Nassar v. UT Southwestern Medical Center, that was tried in Dallas
On Jan. 18, the U.S. Supreme Court granted cert in a blockbuster employment case. The issue is whether Title VII's retaliation provision and similar worded statutes “require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).”
Employment Law Update: US Supreme Court Set to Define "Supervisor" for Purposes of Title VII
The U.S. Supreme Court recently heard arguments in a case that could have a significant impact on employer liability. Specifically, as the result of an appeal in Vance v. Ball State University, et al, 646 F.3d 461 (7th Cir. 2011), the Court is poised to decide who qualifies as a “supervisor” for purposes of liability under Title VII of the Civil Rights Act.
Don't Be a Quitter: The Duty to Mitigate
An employee who is unlawfully terminated may be entitled to recover damages in a variety of forms, including front pay. Front pay can be a frightening prospect for the employer-defendant--just imagine having to pay a former employee for time he doesn't work for you. Not pleasant.
Supreme Court Agrees to Decide Burden of Proof Standard for Retaliation Claims
On Friday the U.S. Supreme Court agreed to decide whether a plaintiff asserting a retaliation claim under Title VII of the Civil Rights Act and similarly worded statutes must prove that the protected activity was the sole cause of, or merely a motivating or contributing factor to, the adverse employment action. A Supreme Court determination that such cases call for a motivating factor standard of proof instead of the more stringent “but-for cause” threshold could significantly increase the number of retaliation lawsuits filed against employers.
EEOC and NLRB Caution Employers Against Asking or Requiring Employees to Keep Workplace Complaints Confidential
It is fairly common practice for employers to require that employees who have complained or participated in an investigation of alleged workplace wrongs keep the matter confidential during, and even after, the employer’s internal investigation into the matter. Some employers include this type of confidentiality requirement in personnel policies, as part of the investigator’s talking points, or in oral or written statements to the complainant or witnesses. Employers have many legitimate reasons for expecting confidentiality, including protecting the integrity of the investigation and the parties involved. According to the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC), however, these blanket confidentiality requirements are unlawful.