Second Circuit Clarifies Liability Standards for Retaliation and Sexual Harassment under Title VII
An employee conducting an internal investigation into harassment complaints is not protected by the “participation clause” of the anti-retaliation provision of Title VII of the Civil Rights Act, the U.S. Court of Appeals for the Second Circuit has ruled in a question of first impression for the circuit. Townsend v. Benjamin Enters. Inc., No. 09-197-cv (2d Cir. May 9, 2012). The Court also determined that an employer is strictly liable under Title VII for sexual harassment committed by a senior executive who is a proxy or alter ego for the employer. This also was a question of first impression in the circuit. Accordingly, the Court affirmed summary judgment for the employer and its principals on a human resources director’s Title VII retaliation claim and upheld a jury verdict against the employer for sexual harassment committed by the employer’s Vice President. The Second Circuit has jurisdiction over Connecticut, New York, and Vermont.
Happy Mother's Day!
In honor of Mother’s Day, we consider how employers can create workplace policies that recognize the needs of employees – mothers, fathers, even neighbors – with caregiving responsibilities.
Sixth Circuit Raises Obstacles to Defending Discrimination and Retaliation Claims
The U.S. Court of Appeals for the Sixth Circuit provided a recent setback to employers in McDole v. City of Saginaw. McDole involved a former police officer for the City of Saginaw, Michigan. He was terminated after an internal investigation revealed that he physically assaulted and threatened a suspect. McDole filed a lawsuit, claiming that he was terminated due to his race, rather than the alleged assault. A jury awarded McDole $1 million.
Non-traditional Plaintiff Theme Continues
At the start of 2011, I noted that one of the stories of the year might be that more and more of what I would call non-traditional plaintiffs would be filing discrimination suits. See, 2011 ---- the Year of the Non-minority?
Sixth Circuit Raises Obstacles to Defending Discrimination and Retaliation Claims
The U.S. Court of Appeals for the Sixth Circuit provided a recent setback to employers in McDole v. City of Saginaw. McDole involved a former police officer for the City of Saginaw, Michigan. He was terminated after an internal investigation revealed that he physically assaulted and threatened a suspect. McDole filed a lawsuit, claiming that he was terminated due to his race, rather than the alleged assault. A jury awarded McDole $1 million.
Eleventh Circuit Adopts "Manager Rule" and Rejects Manager's Retaliation Claim
The Eleventh Circuit recently held that a manager who voices her disagreement with the way her employer handles an internal investigation into an allegation of sexual harassment is not engaged in protected activity under Title VII. See Brush v. Sears Holding Corp. (11th Cir. March 26, 2012) (unpublished). The court held that the plaintiff did not engage in protected activity under Title VII because she did not oppose an unlawful employment practice. It also adopted the "managerial rule," holding that a manger's disagreement with an employer's actions, expressed in the course of performing her regular job duties, is not protected activity.
You may know where the bodies are buried, but that doesn't mean you can sue your employer for retaliation
A loss prevention manager for a major retail store chain -- we'll call her "Loretta" -- had some performance issues in the past but was only five days away from the satisfactory completion of a performance improvement plan. She and a male loss prevention partner were called to investigate a sexual harassment complaint. During the investigation Loretta and her male partner believed that the victim was "holding back." They agreed that Loretta should interview the victim alone. Apparently in response to some leading questions, the victim told Loretta that her supervisor had raped her, and more than once. The victim said that she did not want her husband to know and did not want to go to the police.
Spring Management Update (March 2002)
Eleventh Circuit Affirms Sex Discrimination in Transgender Termination Case; Communication of FMLA Policy is Key in Defending FMLA Interference Lawsuit; Changes to NLRB Deferral Procedure.
Back pay award in successful retaliation claim against former employer may be based upon position not awarded by a different employer.
It is generally understood that employees can bring Title VII claims – and be awarded damages - for hostile environment, wrongful termination, and retaliation. What is less clearly understood is the extent of the economic damages for which a former employer may be liable in the situation in which a litigant claims to have lost a job opportunity because of a retaliatory action on the part of that former employer.
Title VII Protects Both Current and Former Employees From Discriminatory Adverse Employment Actions
Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer to discriminate against “any individual" on the basis of membership in a protected class. In a reminder to employers, the 4th U.S. Circuit Court of Appeals has reiterated the generally accepted interpretation that in this language, Title VII explicitly allows former employees, as well as current ones, to bring an action under that statute.
