On June 29, 2010, the Supreme Court granted certiorari to decide whether the anti-retaliation provision of Title VII forbids an employer from “inflicting reprisals on a third party, such as a spouse, family member, or fiancé, closely associated with the employee” who engages in protected conduct, and “if so, may that prohibition be enforced in a civil action brought by the third party victim?”

In Thompson v. North American Stainless, No. 09-291, Thompson’s fiancé, now wife, filed an EEOC complaint alleging that her supervisors discriminated against her based on her gender.  Approximately three weeks after learning of the complaint, North American Stainless fired Thompson.  Thompson sued alleging that his employer violated the anti-retaliation provision of Title VII.  The district court granted summary judgment which the Sixth Circuit affirmed en banc, holding that: 1) Thompson was not a member of a protected class; and 2) Title VII does not create a cause of action for third-parties that suffer retaliation without personally engaging in protected activity.  The case docket is available here.

Title VII prohibits an employer from discriminating against an employee or job applicant based upon that individual’s sex, race, color, national origin, or religion.  Title VII also prohibits an employer from retaliating against an employee or applicant who speaks out against unlawful discrimination.  To learn more about The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On June 18, 2010, the Fourth Circuit reversed summary judgment in a sexual harassment action brought by the EEOC against Fairbrook Medical Clinic, finding that the lower court erred in holding that the EEOC failed to introduce sufficient evidence to prove a hostile work place.  According to the Fourth Circuit, “[w]hat happened here . . . was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment.” 

The case is E.E.O.C. v. Fairbrook Med. Clinic, P.A., and a copy of the opinion is available here.

The employment lawyers at The Employment Law Group® law firm have extensive experience representing employees in Title VII gender discrimination and sexual harassment claims.  To learn more about the firm’s sexual harassment practice, click here.

On May 18, 2010, Law360 reported on the latest news from Kennedy v. Virginia Polytechnic Institute and State University which we previously blogged about here and here.  The plaintiffs, a group of women working in the school’s development office, originally filed suit in November of 2008, claiming that they were paid less than equally qualified men who held the same fundraising jobs.  The plaintiffs have now filed a motion to certify a class action alleging that the school engaged in a pattern and practice of discrimination against female employees in the development office, paying females on average 15.2 percent less their male counterparts.  The motion seeks to certify a class of all female fundraisers hired between 2005 and 2009, approximately 25 individuals. 

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 26, 2010, Law360 reported on U.S. District Court for the Western District of Virginia Judge James C. Turk’s denial of the defendant’s motion to dismiss a putative class action alleging violations of the Equal Pay Act and Title VII.  The lawsuit, Kennedy et al. v. Virginia Polytechnic Institute and State University, claims that the school consistently discriminated against female employees and applicants and paid them less than their male counterparts. 

According to the complaint, Kennedy was offered a position with a salary $20,500 lower than the starting salary of the male she was replacing.  Explaining the difference in pay, the hiring manger told Kennedy, “you are a woman, and you’re not the head of your household.”  Her would-be predecessor “had a family to support and mouths to feed at home – that is why he was paid what he was paid.”  Further justifying her lower pay, Kennedy was told that, “‘hiring a woman can be a liability’ because ‘they could get pregnant’” and need time off.  A copy of the Memorandum Opinion is available here.

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On January 5, 2010, United States District Court Judge Bernice B. Donald denied, on all counts, defendant Hilton Hotels’ motion for summary judgment of state and federal claims of discrimination and retaliation, allowing Kumar v. Hilton Hotels Corp. to proceed to trial.  Mr. Manoj Kumar, an Indian native and former information technology department employee, alleges that he was denied a promotion due to alienage, retaliated against, and ultimately terminated in violation of Title VII of the Civil Rights Act, Section 1981, and the Tennessee Human Rights Act. 

Also included in Mr. Kumar’s complaint are allegations that he was told to start a business selling statues of a Hindu god and ridiculed over his accent.  After attempting to assert his rights, Mr. Kumar was retaliated against and ultimately terminated.  Hilton Hotels claims that the adverse employment actions suffered by Mr. Kumar were related to performance and in no way related to his national origin or alienage.  They also claim that continued poor performance and behavioral issues were to blame for his termination and not his engagement in the protected behavior of asserting his rights.  Finding that genuine issues of material fact exist surrounding all claims, Judge Donald appropriately denied the motion on all counts.  Importantly, Judge Donald also found direct evidence of alienage discrimination, prohibiting summary judgment from being granted.  A copy of the opinion is available here.  A jury trial is scheduled to begin January 19, 2010.

Mr. Kumar is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information on the firm’s Discrimination Law Practice, click here.

Earlier this week, Outback Steakhouse agreed to pay $19 million to settle a sex-discrimination class action brought by the Equal Employment Opportunity Commission.  The suit, filed in 2006, alleges that the company discriminated against female employees by not allowing them to advance to management positions.  OSI Restaurant Partners, the parent company of Outback denies the allegations and stated that settling the suit with funds provided by insurance was preferable to continued litigation.  The settlement also requires Outback to hire an outside consultant and implement an online application system to ensure equal opportunities in the future.  In 2001, Outback settled a sex-discrimination brought by a corporate level female employee for $2.2 million.

For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On November 12, 2009, the United States District Court for the District of Columbia issued an opinion reinforcing the notion that “the Supreme Court favors an increasingly broad interpretation of statutes containing anti-retaliation provisions.”  In the case, Mansifield v. Billington, a plaintiff filed a motion for relief upon reconsideration of a previously dismissed retaliation claim brought under the Equal Pay Act. 

The plaintiff delivered a letter to her employer alleging that she was being paid less than her male counterparts.  About two weeks later, she was told her position was being eliminated.  She filed a complaint alleging gender discrimination under Title VII and retaliation under the EPA.  Her retaliation claim was dismissed in June 2006 and her Title VII claim in September 2008.  In October 2009, she filed her motion on the basis that evolving federal case law and recent Supreme Court decisions support her position.  The Court granted the motion, citing the “changing trend in the interpretation of federal laws prohibiting retaliation in the work place.”  The Court also acknowledged that retaliation is another form of intentional discrimination.

For information on The Employment Law Group® law firm’s Equal Pay Act Practice, click here.

On November 3, 2009, the 5th Circuit Court of Appeals held that a Sarbanes-Oxley Act (SOX) claim can be precluded by a failed Title VII discrimination suit.  The per curium decision came in Thanedar v. Time Warner, Inc..  To determine whether the SOX claim was barred, the Court used a transactional test and found that “the two claims rest on ‘the same nucleus of operative facts.’”  Accordingly, the preclusive effect of the prior Title VII judgment “extends to all rights the original plaintiff had ‘with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.’”

For information on The Employment Law Group® law firm’s Sarbanes-Oxley Practice, click here.

On October 9, 2009, the California Court of Appeals issued a decision in Nazir v. United Airlines, Inc. In a case which cautions defendants against over-burdening a plaintiff in the employment context, the Court reviewed “what well may be the most oppressive motion ever presented to a superior court.”  In this opinion, the Court took on the growing problem of abuse of the summary judgment procedure, particularly in employment litigation, “especially by deep pocket defendants,” seeking “to overwhelm less well funded defendants.”

Defendants filed an astounding 1,056 page motion for summary judgment, an 1,150 page further reply, and hundreds of evidentiary objections to plaintiff’s response.  Regarding the numerous objections made by the defendants, the Court asked, “Can this be serious?  Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?”  Given the quality of the objections, the Court reasoned that apparently the defendants “assign[ed] the most junior lawyer to ‘do the objections,’” and suggested that “[p]erhaps a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.”

The motion was harshly criticized by the Court both for its length and frivolity.  The Court reversed the trial court’s granting of the defendants’ motion and awarded costs to the plaintiff.

For information on The Employment Law Group® Law Firm’s Employment Discrimination Law practice, click here

On August 28, 2009, the Third Circuit issued a ruling in Prowel v. Wise Business Forms, Inc., which clearly states that an employee can bring a claim of gender stereotyping sex discrimination under Title VII.  The case was initiated by Brian Prowel who alleged that his employer harassed him and terminated his employment because of his gender.  According to the complaint, Prowel was subjected to multiple instances of harassment, including being called “Princess” and “Rosebud” because he did not fit in with the other men at Wise, i.e., his effeminate mannerisms did not conform to those of the “stereotypical male.” 

Finding that the examples of harassment that Prowel cited in his complaint were all examples of discrimination based on sexual orientation, the district court granted summary judgment for Wise.  The Third Circuit reversed however, concluding that Prowel may have been harassed because of his failure to conform to gender stereotypes and not only because of his sexual orientation.  According to the court, “[t]here is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.” Accordingly, “as long as the employee…marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred because of sex, the case is not appropriate for summary judgment.” 

This ruling is a significant victory for gay and lesbian employees because it affirms the notion that all employees, regardless of sexual orientation, can bring a discrimination claim under Title VII based on a theory of gender stereotyping.  For information on The Employment Law Group® Law Firm’s LGBT Discrimination Practice, click here.