A federal lawsuit alleging discrimination under Title VII must be filed within ninety days after the EEOC has completed its handling of the related discrimination charge and issued its Notice of Right To Sue. Some employers attempt to shorten the time for filing discrimination charges by getting employee or applicants to sign agreements to that

The U.S. Supreme Court ruled recently that Title VII’s administrative exhaustion requirement – whereby an employee must file a claim with the EEOC prior to filing a lawsuit – is not a jurisdictional rule. This means that the employee’s failure to file a charge does not automatically mean the case cannot go to court. Instead, the employer must raise the “failure to file” issue as an affirmative defense and do so in a timely fashion. The case is Fort Bend County v. Davis.

Facts

Lois Davis filed a charge against her employer, Fort Bend County, with the Texas Workforce Commission (Texas’ EEOC equivalent) claiming sexual harassment and retaliation. While that charge was pending, Davis was terminated. She claimed it was  for failing to report to work due to a church commitment. After her termination, Davis attempted to raise the issue of religious discrimination in the ongoing Texas Workforce Commission investigation, but she did not add it to the actual charge. Shortly thereafter, she filed a lawsuit in federal district court alleging sexual harassment, retaliation, and religious discrimination under Title VII.
Continue Reading United States Supreme Court makes it easier to get discrimination cases into court

Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.

The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination was really a pretext for age discrimination because other, younger tellers committed the same errors yet were retained.


Continue Reading Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases

Employers cannot discriminate against employees based on their transgender or transitioning status, despite (at least in some cases) the employer’s sincere religious objections. Those are the key takeaways of the 6th Circuit’s landmark decision in EEOC v. R.G. & G.R. Employers who are subject to Title VII, particularly those in the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), should review their policies to ensure that they comply with this decision.

In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired because of her intent to transition from male to female. The owner of the funeral home, Thomas Rost, is a lifelong Christian who believes that employing a transgender funeral director will make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost also believes that employing a transgender funeral director will distract his clients and interfere with their healing process, will interfere with his calling to serve God by ministering to grieving people, and will pressure him to leave the funeral industry and end his ministry.


Continue Reading Sixth Circuit holds that Title VII prohibits discrimination based on transgender and transitioning status notwithstanding the employer’s religious objections

In a landmark decision, the 2nd Circuit Court of Appeals in Zarda v. Altitude Express, Inc., en banc, became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, also prohibits discrimination on the basis of a person’s sexual orientation. It appears that the defendant does not intend to seek Supreme Court review. Therefore, employers subject to Title VII, particularly those in the Second Circuit (i.e., Connecticut, New York and Vermont), should know about this opinion and consider how and whether it may apply to them.

Continue Reading Second Circuit holds that Title VII prohibits sexual orientation discrimination

Never underestimate the power of a pro se litigant. That’s one lesson to take away from the Seventh Circuit’s en banc opinion in Hively v. Ivy Tech Community College, which is the first appellate decision to hold that Title VII bars employment discrimination on the basis of a person’s sexual orientation. Because Ivy Tech has stated that it does not plan to seek Supreme Court review (despite a Circuit split on the issue), employers subject to Title VII, particularly in Illinois, Wisconsin and Indiana, should know about this opinion and consider how and whether it may apply to them.

Surprisingly, this momentous decision resulted not from a national impact-litigation strategy but rather from the humble efforts of one pro se litigant. Math teacher Kimberly Hively filed a form complaint in federal court that alleged she was denied full-time teaching positions and promotions based on her sexual orientation, and sought damages based on Title VII and 42 U.S.C. § 1981. Ivy Tech Community College moved to dismiss and the Northern District of Indiana granted the motion. Undeterred, Ms. Hively retained advocacy group Lambda Legal to prosecute an appeal. Although she initially lost in a now-vacated opinion filed by a Seventh Circuit panel, Ms. Hively successfully sought reconsideration by the en banc Seventh Circuit with the support of amici EEOC and five Members of Congress, among others. The full Court voted 8-3 in favor of Ms. Hively and issued four opinions.


Continue Reading Pro se litigant sets off Title VII avalanche: Seventh Circuit holds that Title VII prohibits sexual orientation discrimination

A special thanks to Adam Bennett for his assistance with this article.

An Ohio federal court in Longoria v. Autoneum N. Am., Inc. has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under Ohio law. The court also rejected Longoria’s claims of race discrimination and retaliation on the merits.
Continue Reading Ohio federal court rejects perceived national origin discrimination claim

In 2011, the U.S. Supreme Court in Staub v. Proctor Hospital first endorsed the “Cat’s Paw” theory of liability in a USERRA case. Derived from an Aesop Fable, the Court held that an employee termination based on information from a supervisor with discriminatory or retaliatory intent can provide the basis for employer liability even if the biased supervisor did not participate in the adverse employment decision. Following up on this decision, federal courts began applying the theory to Title VII and other federal discrimination laws. Last week’s 2nd Circuit decision in Vasquez v. Empress Ambulance Service, Inc., took the “Cat’s Paw” theory one step further when it upheld an employer’s liability under Title VII when the adverse employment decision was influenced by the retaliatory intent of a low level co-worker who had no supervisory responsibilities.

Continue Reading 2nd Circuit “Cat’s Paw” decision highlights importance of employer investigations before termination

Updating our previous posts on Thompson v. North American Stainless, the Supreme Court yesterday reversed the Sixth Circuit’s en banc decision holding that an employee who claims he was fired in retaliation for his fiancé’s complaint of sex harassment had an actionable retaliation claim under Title VII. The Supreme Court reversed the Sixth Circuit’s