March, 2014, three powerful business groups urged the U.S. Supreme Court to consider an important issue at stake for employers in Mach Mining LLC v. Equal Employment Opportunity Commission—can courts review the adequacy of the Equal Employment Opportunity Commission’s (“EEOC’s”) conciliation efforts prior to filing suit? In Mach Mining, the Seventh Circuit held “no,” although six other circuits to address this issue have acknowledged an employer’s ability to raise failure to conciliate as an affirmative defense. If the Supreme Court grants Mach Mining’s February 25, 2014 petition for review, the ruling could have significant impact for employers facing potential litigation with the EEOC. Read More
The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Incognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case. Read More
Last week, the EEOC suffered another major loss when a New York district court found that the EEOC once again shirked its pre-litigation obligations under Title VII. Read More
After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013). Read More
Resolving a split among the circuits, the U.S. Supreme Court held that a “supervisor” for Title VII harassment liability is limited to those who have the power to take a tangible employment action against the alleged victim (e.g., hire, fire, demote, promote, transfer, or discipline). Merely overseeing and directing the alleged victim’s daily work is insufficient to meet this heightened standard. Read More
The U.S. Supreme Court held on Monday that a plaintiff alleging retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) must prove that retaliation was the “but-for” reason for an adverse employment decision. The mixed-motive analysis, whereby a plaintiff need only show that the illegal reason played a part in the decision, now no longer applies to retaliation cases. Read More
Can the EEOC require employers to hire convicted criminals? Last April, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a policy guideline that calls into question the extent to which employers can incorporate a check of criminal records into a hiring decision without risking legal liability. Read More
Reversing a denial of a motion to compel arbitration in Parisi et al. v. Goldman, Sachs & Co. et al., the Second Circuit held that a plaintiff does not have a substantive right to bring a pattern and practice claim under Title VII. The plaintiff at issue in Parisi alleged gender discrimination under Title VII, seeking to bring her claims on behalf of herself and a putative class of female Goldman Sachs employees. During her employment, the plaintiff signed a broad arbitration agreement, which covered her discrimination claims and did not contain a provision providing for class-wide arbitration. Read More
A new opinion from the Department of Labor (“DOL”) makes clear that the department will treat the burden of proof in whistleblower retaliation claims under the Sarbanes-Oxley Act (“SOX”) differently from typical retaliation claims under Title VII. In an opinion issued in late March – Zinn v. American Commercial Lines Inc. – the DOL’s Administrative Review Board (“ARB”) reversed an administrative law judge’s decision that applied Title VII’s “burden shifting” framework to dismiss Zinn’s whistleblower retaliation claim. Specifically, the ARB removed the third prong of the traditional “burden shifting” analysis as discussed further below.
Under Title VII, once an employee makes a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate non-retaliatory reason for taking the adverse employment action at issue in the case. If an employer provides such a reason, the burden then shifts back to the employee to show that the employer’s reasons were actually a pretext for retaliation. In Zinn, the ARB found it was incorrect to apply this framework and “conflat[e] the SOX burden of proof standard with the Title VII burden of proof.” Under SOX, the employee needs to show that she engaged in protected activity that contributed to an adverse employment action. The burden then shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the same adverse action absent the protected activity. However, the ARB clarified that it was unnecessary for the employee to then show that the employer’s actions were pretextual. Instead, once an employer produces evidence to support that its actions were non-retaliatory, an administrative law judge should “weigh the circumstantial evidence as a whole” to “gauge the context of the adverse action in question” and determine whether the case should proceed. With this distinct standard and its rejection of the familiar Title VII framework, the DOL has made it evident that SOX whistleblower cases will continue to be a unique and developing area of employment law.
On Wednesday, April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of criminal conviction and arrest records in employment decisions. The EEOC has had a long-standing policy that, unless job-related and justified by business necessity, a policy or practice of denying employment because an applicant has a criminal record violates Title VII. The new enforcement guidance, however, emphasizes EEOC’s presumption that consideration of a criminal history is unlawful, and undoubtedly illustrates the increased scrutiny under which EEOC will review criminal background check policies. Click here to view the new guidance on the EEOC’s website. Read More