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EEO-1 Reporting Portal Now Open

In addition to filing annual VETS-4212 reports, federal contractors with 50 or more employees and $50,000 or more in contracts (and non-government contract employers with more than 100 employees) must file annual EEO-1 surveys. The reporting portal for filing the EEO-1 reports opened today and will remain open until at least September 30.

Circuit Courts Are Split on Applying the FLSA "Manager Rule"

The extent to which employees who are responsible for investigating or resolving discrimination complaints are protected from retaliation is still up for debate. State and federal discrimination statutes prohibit retaliating against employees who engage in activity pursuant to the same statutes. If the countless managerial employees who routinely investigate discrimination complaints in the normal course of business are found not to be engaging in protected activity, then employers would be free to retaliate against employees who don’t “toe the party line.” However, if those employees are found to be engaging in protected activity, the universe of actionable retaliation claims could balloon. While there has been little case law on this issue — up until this month, only two circuit courts had considered the issue — two additional circuits recently weighed in.

Fourth Circuit Adopts the Joint Employer Test for Title VII Claims

In Butler v. Drive Auto. Indus. of Am., Inc., the Fourth Circuit Court of Appeals (which has jurisdiction over North and South Carolina) joined the majority of federal appellate courts in holding that multiple entities may simultaneously be considered the employers of an employee for purposes of Title VII of the Civil Rights Act of 1964.

Paid Suspension Not Adverse Employment Action under Title VII, Third Circuit Holds

A paid suspension “typically” does not constitute an “adverse employment action” under the substantive provision of Title VII of the Civil Rights Act (Section 703), the federal appeals court in Philadelphia has held in a case of first impression for the circuit, joining other courts that have ruled on the issue. Jones v. SEPTA, No. 14-3814, 2015 U.S. App. LEXIS 14094 (3d Cir. Aug. 12, 2015). The Court, however, declined to address whether a paid suspension could constitute an adverse employment action in the retaliation context under Title VII (Section 704). The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.

Is protected activity part of your job? You may still be protected.

If you try to prevent or end workplace discrimination as part of your job, is it legal for your employer retaliate against you?

First Circuit Invokes Inclusive Communities in Nixing Disparate Impact Challenge and Gifts Safe Harbor Defense to Employer

At the end of the Supreme Court’s term in June, we blogged about a housing discrimination case that might be used by employers to limit disparate impact liability. Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). Less than two months later, a divided three judge panel of the United States Court of Appeals for the First Circuit cited Inclusive Communities’ limitations in an employment matter. Abril-Rivera v. Johnson (1st Cir. July 30, 2015).

Is it “disparaging” to say “Karma is a bi**h”?

Riddle me this: Employee sues her boss for sexual harassment. Case settles for $127,500, and she has to agree to confidentiality and non-disparagement.

Second Circuit Holds Extension of Probationary Employment Can Be Adverse Employment Action

In Tolbert v. Smith, No. 14-1012-cv, 2015 U.S. App. LEXIS 10656 (2d Cir. June 24, 2015), the Second Circuit issued a decision holding that extending a probationary term instead of granting a teacher tenure constitutes an adverse employment action sufficient to support a claim for race discrimination — the fact that the teacher is provided with another year of probationary employment notwithstanding. The court noted that offering a fourth year of probation is intertwined with a denial of tenure, which amounts to the “denial of a material improvement in the conditions of the plaintiff’s employment” — since the benefits of having received tenure are denied, including benefits such as termination only for cause. Accordingly, such a refusal of a material employment benefit for a discriminatory reason is violative of the civil rights statutes.

Court Reaffirms Viability of Disparate Impact Theory in Discrimination Cases

Last week, the Supreme Court issued its highly anticipated ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (Inclusive Communities). For the first time, the Court interpreted the Fair Housing Act (FHA) to permit “disparate impact” claims, in which a plaintiff or group of plaintiffs alleges that a policy or practice, though racially neutral on its face, has the effect of creating disparities between racial groups. While the decision interprets the FHA, the Court relied heavily on analogous provisions in federal employment statutes – namely, Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA) – in reaching its conclusion. In doing so, the Court made clear that disparate impact claims are here to stay for the foreseeable future.

CVS Accused of Engaging in Unlawful Discriminatory Practices

Over the past year, an exceptional number of retailers have been accused by customers of employing discriminatory practices in violation of both federal and state law. For example, just last year, luxury department store, Barneys’ shelled out $525,000 to settle a racial profiling lawsuit instituted by its customers. Shortly thereafter, Macy’s found itself in a similar situation, agreeing to pay $650,000 to settle like claims. Now, in a somewhat unconventional case, CVS is also facing a discrimination class-action lawsuit recently filed by former corporate insiders of the chain on behalf of CVS customers.