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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.

Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

Fourth Circuit Sets Employee-Friendly Standard for Title VII Retaliation Claims

A former waitress’s hostile work environment and retaliation claims under Title VII of the Civil Rights Act against the employer should go to a jury, the Richmond-based federal appellate court has ruled in a decision that sets a more employee-friendly standard for such claims. Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (4th Cir. May 7, 2015) (en banc). The Court overruled precedent in the circuit by finding a single incident can be severe enough to trigger Title VII’s protection.

Ninth Circuit Overturns Summary Judgment Issued in Favor of Employer in Retaliation Case

Lukov v. Schindler Elevator Corp., No. 12-17695 (February 24, 2015): In an unpublished decision, the Ninth Circuit recently overturned summary judgment granted to an employer on the plaintiff’s retaliation claims. William Lukov worked as an elevator mechanic for Schindler Elevator Corporation. While employed by Schindler, Lukov reported a safety issue with a department store’s elevator to the California Division of Occupational Safety and Health (DOSH). Several months after he complained, Schindler laid off Lukov off as part of a reduction in force. Lukov sued for retaliation in violation of California Labor Code sections 1102.5 and 6310. Labor Code section 6310 prohibits an employer from discharging an employee who has “made any oral or written complaint to [DOSH].” Labor Code section 1102.5 protects employees from retaliation for disclosing a violation of statute or law to a governmental agency.

A Single "Hitler" Comment Is Insufficient for a Title VII Retaliation Claim in the Fifth Circuit

The Fifth Circuit Court of Appeals recently affirmed a judgment against a City of Houston employee who claimed that he was demoted for reporting another employee’s racially offensive comment made during a workplace meeting. According to the federal appellate court, the worker had not engaged in a protected activity by reporting the single, isolated remark. Satterwhite v. City of Houston, No. 14-20240, Fifth Circuit Court of Appeal (March 3, 2015).

Will Employers Have an Affirmative Defense in EEOC Litigation? A Look at the Supreme Court’s Upcoming Decision

In the coming months, the Supreme Court of the United States will determine the level of judicial review, if any, that will be applied to employers’ pre-litigation negotiations with the U.S. Equal Employment Opportunity Commission (EEOC) in discrimination cases. In Mach Mining, L.L.C. v. Equal Employment Opportunity Commission, the Court will consider language in Title VII requiring the EEOC to “endeavor to eliminate any . . . alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Specifically, the question is whether—and to what extent—courts may review the EEOC’s efforts to conciliate discrimination claims before the agency files suit against an employer. Employers argue that the EEOC’s failure to conciliate provides them with an affirmative defense to the merits of a discrimination suit.

Retaliation Dominated EEOC Charges in 2014, Agency Statistics Show

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in fiscal year 2014 reached the lowest level since 2007, according to recently published statistics from the EEOC. Retaliation charges, however, made up 42.8 percent of all charges in the same time period, the highest percentage ever.

What’s your workplace retaliation IQ?

It’s been a while since we’ve had an employment law quiz, so let’s do it! This one is on retaliation. As always, the answers will be provided after each question — you have our “no-pressure” guarantee.

Fifth Circuit Declines to Clarify When an Employment Action is "Adverse" Enough to Support a Discrimination Claim

When presented with an employment discrimination claim, one of the early questions any agency or court must answer is whether the claimant has suffered an “adverse employment action.” Simply stated, even if a discriminatory motive can be shown, is the harm suffered by the claimant significant enough to support a viable discrimination claim? This question arises regardless of whether the complaint is made under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), or other state or federal employment law. Not every slight, indignity, or inconvenience experienced in the workplace is sufficient to meet this standard, but where does one draw the line?