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On March 27, 2008, the Supreme Court released two opinions addressing discriminatory retaliation in the workplace. In the pair of opinions, the Court broadened the scope of potential claims for retaliatory conduct by holding that: (1) employees may bring a private action for discriminatory retaliation under §1981; and (2) the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees who complain of age discrimination.

In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not include the word “retaliation.” Although this particular issue had been addressed by several appellate courts, the Supreme Court had never addressed the question squarely.Continue Reading Two Supreme Court Decisions Expand Retaliation Claims

In an unusual procedural move, a Ninth Circuit panel issued a revised opinion and rejected—for the second time—Wal-Mart’s request to overrule a lower court decision granting class action status to a lawsuit by six women representing a class of more than 1.5 million female workers. Dukes v. Wal-Mart, Inc., Case Nos. 04-16688 and 04-16720, 2007 U.S. App. LEXIS 28551 (9th Cir. Dec. 11, 2007). The class includes all female workers—from part-time, entry-level hourly employees to full-time, salaried managers—at Wal-Mart stores from December 1998 to the present “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions, policies and practices.” The lawsuit alleges that female employees were paid less than men and given fewer promotions. If the case proceeds, it will be the largest sex discrimination case in U.S. history. The revised opinion addresses some of the criticisms directed toward the earlier opinion and changes some of the reasoning, though not the result, of the court’s earlier decision.
Continue Reading Ninth Circuit Panel Again Upholds Granting of Class Action Status to Wal-Mart Female Workers; Wal-Mart Again Petitions For En Banc Review

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm One) has overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings …

Adding clarity to an often-litigated area of wage and hour law, the Sixth Circuit recently held that a small store manager was exempt from wage and hour overtime requirements despite her performance of non-managerial tasks and close supervision by her district manager.
Continue Reading Sixth Circuit Holds That Gas Station Manager Is An Executive Employee Under the FLSA