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CITY EMPLOYER VIOLATED TITLE VII BY DISCARDING RACIALLY DISPROPORTIONATE TEST RESULTS TO THE DETRIMENT OF OTHER EMPLOYEES

In this reverse dsicrimination case the Court founf that fear of litigation alone did not justify a City’s reliance on race to the detriment of Fire Department employees who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII. Ricci v. DeStefano U.S. Supreme Court, June 2009

MIXED MOTIVE INSTRUCTION HELD INAPPLICABLE TO ADEA AGE DISCRIMINATION CASE

The U.S. Supreme Court held that ADEA plaintiffs in age discrimination cases are not entitled to a "mix motive" instruction whereby the employee need only show that age was a "motivating" factor in an adverse employment decision, which is avalable as a burden of proof in some Title VII discrimination cases.  Rather, under the ADEA, a plaintiff retains the ultimate burden of proving that the adverse action would not have occurred "but for" plaintiff's age. Gross v. FBL Financial Services, Inc..  U.S. Supreme Court, June 2009

AMERICANS WITH DISABILITIES ACT AMENDMENTS TO TAKE EFFECT ON JANUARY 1, 2009.

In an effort to solidy a variety of coverage issues regarding the definition of individuals with disabilities, Congress has enacted the The ADA Amendment Act of 2008. As a result, more individuals should be entitled to avail themselves of the accommodation and anti-discrimination protections of the statute. The amendments will reverse prior Cout decisions holding that persons who are able to control or mitigate their disabling conditions through medication or medical equipment are not technically disabled

EMPLOYER RETAINS BURDEN OF PROVING A REASONABLE FACTOR OTHER THAN AGE AS AN AFFIRMATIVE DEFENSE TO AN AGE DISCRIMINATION DISPARATE IMPACT CASE

Meacham v. Knolls Atomic Power Lab. U.S. Supreme Court 2008.

EMPLOYEE DOES NOT NEED TO MAKE A SPECIFIC REQUEST FOR LEAVE UNDER FMLA TO GAIN PROTECTION UNDER STATUTE

Krenzeke. Alexandria Motor Cards, Inc. Fourth Circuit, August 15, 2008.

An employee's general request for leave for an incident or condition that an employer has reason to believe would be covered by FMLA may be considered a request for FMLA, prompting the employer to notify the employees of their rights and obligations under the stature.

ISOLATED RACIAL INCIDENT HELD INSUFFICIENT TO FORM HOSTILE WORK ENVIRONMENT

Jordan v. Alternative Resources Corporation and IBM, Fourth Circuit, August 14, 2006

The Fourth Circuit holds that an employee’s complaint regarding a single racial comment by a co-employee, which was not directed towards the complaining employee, was insufficient to constitute a protected complaint of a “hostile work environment,” sufficient to form the basis for the employee’s complaint of unlawful retaliation. In rendering this decision, the Fourth Circuit continues to draw a distinction between isolated acts, which though offensive, are not deemed to be the sort of severe or pervasive conduct that create a hostile work environment.

FEDERAL ADMINISTRATIVE EEOC/OFO DECISIONS NOT BINDING IN SUBSEQUENT FEDERAL LITIGATION

Laber v. Francis Harvey, Secretary of the Army, Fourth Circuit, February 16, 2006

In reversing prior precedent, the Fourth Circuit now holds that federal employees who obtain a finding of liability for discrimination through the EEOC/OFO administrative process can no longer rely on this finding in seeking additional relief through a federal Court action. Previously, a federal employee could seek additional damages in federal Court while operating on the assumption that liability already had been established through the administrative determination. Under the new standard, employees who prevail initially in the EEOC/OFO process could risk losing their entire claim should they elect to pursue greater damages through a Court action.

Miles v. Dell, Incorporated, Fourth Circuit, November 22, 2005

Although a plaintiff, in order to establish a prima facie case of discrimination, normally must show that an employer hired a replacement from outside of plaintiff’s protected class, the Fourth Circuit recognizes several exceptions to this general principle.  One such exception occurs where different persons make contested  firing and replacement hiring decisions.  In such case, the hiring of a similarly situated employee is of no probative value for the employer’s non-discrimination.  Accordingly, where hiring and firing decision were made by separate persons, a plaintiff need not provde that she was replaced by someone outside of her protected class in order to set forth a prima facie case under Title VII or the ADEA. 

Taylor v. Progress Energy, Incorporated, Fourth Circuit, July 20, 2005

The Fourth Circuit upholds a Department of Labor regulation prohibiting the waiver of FMLA claims.  The impact of this decision means that even though an employee may sign a broad waiver agreement as part of a settlement or severance agreement, the waiver will not necessarily prohibit the employee from pursing FMLA claims through a Court action, unless the DOL or a Court initially approves the waiver.