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 July 2, 2010, the U.S. District Court in the Northern District of Georgia issued a judgment declaring that employees are protected from discrimination for not conforming to gender stereotypes.  Judge Richard Story granted summary judgment in the case of Glenn v. Brumby, stating that transgendered individuals are protected from employment discrimination under Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment.  Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.  The plaintiff, Glenn, was an employee of the Georgia General Assembly’s Office of Legislative Counsel (OLC) when she informed her boss that she would begin dressing as a woman instead of a man.  Upon learning of her decision, the OLC fired her.

Judge Story stated, “[w]hile transsexuals are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex.”  Transsexuals are individuals who identify with the opposite gender, while transgendered individuals are those who do not conform to gender norms or stereotypes.  The Court further elaborated that everyone, including transsexuals, is protected from employment discrimination for not acting or appearing “manly enough” or “feminine enough,” regardless of their sex, sexual orientation, or gender identification.  Click here for the full opinion.

The employment lawyers of The Employment Law Group® law firm have substantial experience litigating LGBT discrimination claims.  For more information about the 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 March 1, 2010, it was announced that Wal-Mart reached an $11.7 million settlement with the EEOC, ending an almost nine-year-old class action lawsuit.  The action, filed August 24, 2001, accuses Wal-Mart of discriminating against female job candidates for orderfiller positions at its London, Kentucky distribution center. 

Under the settlement, the first 50 openings for orderfiller positions at the London, Kentucky distribution center must be filled by female class members from a list provided by the EEOC.  For the next 50 orderfiller openings, every other position will be filled by a female class member from the EEOC list.  Thereafter, one of every three available orderfiller positions must be filled by an individual from the list.  Individuals offered the job are still subject to the criteria applicable all applicants for that position. 

In addition, Wal-Mart has agreed not to discriminate against females in filling orderfiller positions, to refrain from retaliating against those who oppose unlawful employment practices or participate in investigations or proceedings under Title VII, and to provide ongoing Title VII training to interviewers and managers.  Wal-Mart will also “make an effort to place its advertisements for employment in local publications which are geared toward female readers.”  A copy of the consent decree is available here.

For more information on The Employment Law Group® law firm’s Employment Discrimination 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.

In the first seven days of this month, the United States Court of Appeals for the Fourth Circuit reversed two lower court rulings in favor of employee-plaintiffs.  In Wesley v. Arlington County, the Court held that the district court erred in its application of the McDonnell Douglas burden shifting framework when it granted a motion for summary judgment for the employer. 

Wesley, a firefighter in Arlington County, Virginia, claimed that she was discriminated against and refused a requested promotion due to her race and sex.  For years she met all of the department’s published and formal objective requirements for promotion to Captain but she was continually passed up by the Chief during a final “roundtable,” where unpublished subjective criteria are discussed. 

The McDonnell Douglas framework requires an employee to present a prima facie case of discrimination which the employer may then rebut by showing an alternative cause for the allegedly discriminatory act.  To be victorious, an employee must then prove that the employer’s cause was merely pretextual.  To survive a motion for summary judgment, an employee need only present a prima facie case.  The Court found that the trial judge wrongly applied the second and third prongs of the McDonnell Douglas frame work when it granted a motion for summary judgment for the County. 

In the second case, Harman v. Unisys Corp., the court granted a motion to dismiss an employee’s numerous discrimination and Fair Labor Standards Act allegations.  The Court agreed with the trial judge’s dismissal of several counts and even stated that the complaint was “cumbersome and voluminous and contains numerous irrelevant allegations.”  However, the Court found that the district court should have allowed the employee an opportunity to refine her pleading and cure formal defects, even if the court doubted her ability to do so.

While these decisions are unpublished and therefore non-binding authority, they nonetheless show an increased willingness of the Court of Appeals of the Fourth Circuit to give employee-plaintiffs an opportunity to properly present their case. 

 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.