Although employment discrimination provisions of Title VII mention specific employment decisions with immediate consequences, scope of the prohibition is not limited to “economic” or “tangible” discrimination and covers more than terms and conditions of employment in the contractual sense. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). … [Read more...]
Vicarious liability to employer for actionable hostile work environment
August 1, 2015 by
Under antidiscrimination provisions of Title VII, employer is subject to vicarious liability to victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over employee; when no tangible employment action is taken, employer may raise an affirmative defense to liability or damages, subject to proof by preponderance of evidence and comprising two necessary elements: (a) that employer exercised reasonable care to prevent and … [Read more...]
Employee’s failure to use a complaint procedure
August 1, 2015 by
Demonstration that an employee failed to use a complaint procedure provided by the employer in response to sexual harassment by a supervisor will normally suffice to satisfy the employer's burden of demonstrating lack of reasonable care by employee to avoid harm, as element of affirmative defense to a vicarious liability claim under Title VII. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). … [Read more...]
No affirmative defense available to an employer……
August 1, 2015 by
Under Title VII, no affirmative defense is available to an employer on an employee's claim of vicarious liability for an actionable hostile environment created by a supervisor when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Civil Rights Act of 1964, § 703(a)(1),42 U.S.C.A. § 2000e-2(a)(1). … [Read more...]
Six Years or Less Age Gap to Support Age Discrimination Claim
April 30, 2014 by
It is a common and curious question as to what age gap is necessary to justify an age discrimination claim. The Sixth Circuit Court of Appeals in the matter of Blizzard v. Marion Technical College (No. 3:09-cv-1643 Northern District Ohio) narrowed the age gap as to what is or is not a "significant" difference. The Court held that the magic number of six years or less would not constitute a "significant" gap in age to make out a prima facie claim of age discrimination. This case involves a … [Read more...]
Cancer Patient Can Be Fired by Wal-Mart for Medical Marijuana Use.
April 29, 2014 by
There was dominant debate in the Tennessee legislature this year for passing a medical marijuana bill allowing patients with a prescription to benefit from its medicinal properties. The issue that was not part of the debate was its impact on private employers and whether they must adopt a similarly progressive policy or regulate private employment in any way. A recent case out of the Michigan district which is part of the Sixth Circuit as Tennessee is may have application to a potential … [Read more...]
NFL Cheerleader Lawsuits: Employees or Independent Contractors?
April 25, 2014 by
Employees are entitled to prosecute a cause of action for failure to pay wages and other unfair employment practices. There are a variety of avenues to pursue such as in federal court citing the regulations promulgated by the National Labor Relations Board or state court citing statutes prohibiting in effect wage theft. A number of class actions have been filed against three NFL franchises by cheerleaders. Specifically, the suit against the Oakland Raiders charges that the team withholds … [Read more...]
6th Circuit: General contractors liable as ‘joint employers’ with subcontractors’ discrimination
April 24, 2014 by
The U.S. Court of Appeals for the Sixth Circuit held Dec. 10 (EEOC v. Skanska USA Bldg., Inc., 2013 BL 341867, 6th Cir., No. 12-5967, unpublished opinion 12/10/13) that a contractor can be held liable as a 'joint employer' for discriminatory acts of a subcontractor if certain facts exist. The Sixth Circuit heard this as a matter of first impression in that it has not applied the 'joint employer' theory in a Title VII Civil Rights Act of 1964 discrimination case though it has expressed "in … [Read more...]
FMLA Leave: Vegas here I come!
April 22, 2014 by
In Ballard v. Chicago Park District, No. 13-1445 (7th Cir., January 28, 2014) the Seventh Circuit Court of Appeals considered whether the FMLA (Family Medical Leave Act) applies to protect an employee’s trip to Las Vegas with her ill mother. The employee was an employee for the City of Chicago and resided with her mother who was receiving hospice and palliative care due to end stage congestive heart failure. The employee's care of her mother included cooking meals, administering insulin and … [Read more...]
