News, Cases & Events

Nov. 8, 2015:

Anti-gay employment discrimination is barred under federal law (and has been since 1964): Isaacs v. Felder Services, LLC M.D. Ala. 

1st U.S. judge to adopt Baldwin, EEOC's opinion that Title VII bars employment discrimination based on sexual orientation:  Isaacs v. Felder Services, LLC

Oct. 21, 2015:

3rd Circuit: “Intentional discrimination” does not require ill will, hostility, or intent to harm: Hassan v. City of New York

3rd Circuit: Intentional religious discrimination by government violates 14th Amendment’s Equal Protection Clause unless it passes “heightened scrutiny” test Hassan v. City of New York

3rd Circuit won’t say what level of “heightened scrutiny” applies to intentional religious discrimination by government. [The two levels are (1) “intermediate scrutiny” (discrimination is legal as long as it is substantially related to an important governmental objective) and (2) “strict scrutiny” (discrimination must be narrowly tailored to further a compelling governmental interest). Race discrimination gets strict scrutiny and is usually impossible to justify; sexist practices get intermediate scrutiny and can be justified.] Hassan v. City of New York 

3rd Circuit concurrence: Muslims can’t be more protected than women: Judge says religious discrimination by government need only pass intermediate scrutiny (rather than strict scrutiny) because government sexism only faces intermediate scrutiny. Court’s majority refuses to weigh in. Hassan v. City of New York  

3rd Circuit reaffirms: Discriminatory policy need not be in writing to violate 14th Amendment: Hassan v. City of New York

Oct. 20, 2015:

NJ whistleblower claim properly pleaded a pattern of retaliation where it alleged: After employee opposed drug maker’s illegalities, supervisors (1) quickly accused him of putting company in “bad light,” (2) continually insulted his performance, (3) downgraded his evaluations at year’s end, (4) “surreptitiously” advertised his position in March and (5) fired him in May: Kerrigan v. Otsuka America Pharmaceutical, Inc. E.D. Pa. 12(b)(6) CEPA

Federal courts follow NJ Supreme Court: “Watchdog” employees are protected by NJ’s CEPA law from retaliation when their jobs involve whistleblowing: Kerrigan v. Otsuka America Pharmaceutical, Inc. E.D. Pa. 12(b)(6)

Oct. 16, 2015:

EEOC charge mentioned suspension & relocation, didn’t need to mention reduction in hours in order to sue on it: Sullivan v. Perdue Farms, Inc. E.D. Va.

Claim that boss “routinely singled out” & falsified bad ratings for older workers is specific enough for suit: Sullivan v. Perdue Farms, Inc. E.D. Va. 

Oct. 14, 2015:

Janitor fired for falling asleep had valid claim against union for breaching its duty of fair representation where he alleged that, due to his race, (1) the union failed to informally defend him at the outset; (2) the union said it would use its top lawyer, but used a newly hired lawyer at the last minute; (3) the new lawyer refused to make a “meritorious” argument that sleeping was not a 1st-time fireable offense; (4) the union failed to prepare the janitor for his hearing; & (5) the union did not rally the public or use other informal defenses as it had with white employees: Danao v. ABM Janitorial Services, E.D. Pa. 12(b)(6)

In suit against union for biased representation, a fired African-American janitor may be “similarly situated” to non-fired white union members, at least on motion to dismiss: Danao v. ABM Janitorial Services, E.D. Pa. 12(b)(6)

Union violates § 1981 if it fails to represent African American member as diligently as white members + evidence of racial animus. Danao v. ABM Janitorial Services, E.D. Pa. 12(b)(6)

Oct. 13, 2015:

Jury could infer worker earned overtime if she & others say she generally arrived before 7 AM & “pretty much worked through lunch”: Saldivar v. Austin Independent School District W.D. Tex.

If manager saw workers eating lunch at desk & didn't stop them→Jury can infer employer should've known overtime was due: Saldivar v. Austin Independent School District W.D. Tex.

If an employer tells workers not to “abuse” overtime &  sets high expectations→workers may reasonably think overtime isn't available: Saldivar v. Austin Independent School District W.D. Tex.

Oct. 12, 2015:

7th Circuit: Army reservist makes prima facie (step one) USERRA case where jury could reasonably find  (1) she suffered adverse action by being fired, (2) people “with power over her job” complained about accommodating her military service, and (3) the complaints were “arguably connected” to her firing. Arroyo v. Volvo Group North America, LLC

7th Circuit: An employer rebutting a fired reservist’s prima facie (step one) USERRA case must PROVE not just that the reservist committed a “fireable offense,” but also that she would have been fired regardless of her military service: Arroyo v. Volvo Group North America, LLC

7th Circuit: Evidence of ADA disability discrimination: Boss jokes that employee on sick leave for PTSD is actually on vacation in Hawaii. 

Arroyo v. Volvo Group North America, LLC

7th Circuit: ADA discrimination claim gets jury due to “suspicious timing”: With onset/diagnosis of Army reservist’s PTSD, her employer, already resentful of accommodating her military service, begins steps that lead to her firing. (USERRA anti-military discrimination claim also gets jury.) Arroyo v. Volvo Group North America, LLC

7th Circuit: Even if disabled Army reservist refused to cooperate with employer’s reasonable accommodations process before she was fired, she may still prove discrimination under ADA & USERRA. Arroyo v. Volvo Group North America, LLC

Oct. 11, 2015:

Despite 3 non-racist approvals of firing decision, initial investigation that led to decision may be tainted: Mason v. SEPTA (E.D. Pa.)

Pay stub showing unused vacation may be contract to pay employees unused vacation—even employees who do not last the year: Bair v. Baratz Dental (M.D. Pa.)

Oct. 10, 2015:

Allegedly malicious/reckless county commissioners can be sued as third parties for getting county employee fired: MDPA 

To claim §1983 property interest in job, gov’t worker must say how his old contract was renewed before he was fired: MDPA

Worker claims the process of firing him began “a few days” after he requested medical leave. That’s enough to suggest FMLA retaliation: MDPA

Oct. 9, 2015:

But-for causation might not need to be pleaded in age-bias suit: D Colo 

Oct. 8, 2015:

Male worker’s arrest history admissible to show Co. disciplined women more than man: NDFL 

Unlitigated sexual harassment accusations admissible to show upper management did nothing, was sexist: NDFL 

Oct. 7, 2015:

Dismissal from UNPAID gov’t post counts as adverse action for 1st Amendment claim (easier than bias laws): SDNY

No qualified immunity before discovery for officials who dismissed gov’t volunteer in 1st Amendment case: SDNY

Oct. 6, 2015:

New home-care worker pay rules won't be blocked for now: Supreme Court

Service agreement in complaint not enough to show plaintiff was #IndependentContractor rather than employee: SDMS 

“Close supervision” can count as retaliation in civil rights case:11c unpublished 

Defense backfires: Worker admonished well before FMLA request can show that his behavior did not trigger firing:EDWI 

Appeals ct rips judge for placing burden on harassment accuser to prove employer failed to protect her from boss:11c 

Worker could reasonably not report boss’s harassment even if she doesn't fear tangible-job-action as retaliation:11c