Management’s Negligence Not Enough for Punitive Damages

By Joseph Hunt The Fourth Circuit Court of Appeals recently reversed a jury award of punitive damages under Title VII because the plaintiff had not established the employer acted with malice or reckless indifference. The Court held that a plaintiff must show culpability beyond mere negligence at the management level in order to hold the […]

Ninth Circuit Benchslaps EEOC’s Perplexing ADA Position Shift

By John Doran The Ninth Circuit Court of Appeals recently held that an employer may use after-acquired evidence to demonstrate that an employee is not qualified and therefore is not entitled to ADA protection. Anthony v. TRAX International Corporation, No. 18-15662 (9th Cir. April 17, 2020). In reaching this holding, the Court flatly rejected the EEOC’s […]

SCOTUS Raises Bar on Contract Discrimination Claims

By John Doran Today the U.S. Supreme Court raised the bar on a wide-ranging Civil War Era statute that prohibits discrimination in the making and enforcement of contracts. Comcast Corp. v. National Association of African-American Owned Media (No. 18-1171, March 23, 2020) Congress enacted 42 U.S.C. Section 1981 in 1866 in order to ensure that former slaves enjoyed […]

Transgender Employee Advances Title VII Claims Based on Sex, Gender Identity, and Gender Expression

By Lindsay H. S. Hesketh A former employee who transitioned to female during her employment brought claims of hostile work environment, discriminatory termination, and retaliation under Title VII. The complaint alleged multiple instances of coworkers and third parties refusing to call her by her preferred pronouns and female name (purposefully misgendering her), and expressing disapproval […]

EEOC Weighs In On NLRB Protections For Offensive Statements

By James Korte Recently, the National Labor Relations Board (“NLRB”) invited the public to file amicus briefs regarding the treatment of “profane outbursts and offensive statements of a racial or sexual nature.” Gen. Motors LLC & Charles Robinson, 368 NLRB No. 68 (Sept. 5, 2019). The Equal Employment Opportunity Commission (“EEOC”) accepted the invitation.                […]

Policing Gender Stereotyping

By Alyssa Levy A jury awarded a sergeant of the St. Louis County Police $19.9 million for his sexual orientation discrimination and retaliation claims in state court. Keith Wildhaber v. St. Louis County, Missouri, No. 17SL-CC00133 (Mo. Cir. Ct. 21st  Cir. October 25, 2019).  The plaintiff said the police department passed him over for promotion […]

NLRB Enhances Its View of Property Rights

By Patrick Scully The National Labor Relations Board (“NLRB” or “Board”) has settled a long-brewing controversy over what constitutes “discrimination” with respect to non-employee access to employer property.  Twenty years ago, the Board held in Sandusky Mall, 329 NLRB 618 (1999), that an employer discriminates against non-employee union representatives if it bars them from its […]

Landmine in the Eleventh Circuit

By Joe Hunt When Kia discovered that its human resources manager had encouraged an employee to file a charge of discrimination, Kia discharged the HR manager.  Kia decided it could not trust the HR manager to do her job, specifically, to refer employees to the internal complaint system, protecting Kia from litigation.  The HR manager […]

EEOC Brags While Employees Look for New Jobs

By John Alan Doran On April 2, 2018, the EEOC issued a self-congratulatory press release in which it bragged mightily about a $100,000 judgment it just obtained in a discrimination lawsuit. The press release identified the defendant in the lawsuit as an Arizona wine bar by the name of 5th & Wine.  The press release is […]

Second Circuit Rules Title VII Protects Sexual Orientation

By Bill Wright The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if […]