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Showing 9 posts from May 2012.

Seventh Circuit: Section 1981 Allows Individual Liability in “Cat’s Paw” Claim

The U.S. Court of Appeals for the Seventh Circuit has determined that employees may be held individually liable under Section 1981 if their discriminatory actions led their employer to terminate another employee. This was a case of first impression involving the so-called “cat’s paw” theory of liability, so-named for a fable involving a monkey that persuades a cat to pull roasting walnuts from a fireplace, only to burn his paw and get no walnuts himself. “Why should the ‘hapless cat’ (or at least his employer) get burned,” the panel asked, “but not the malicious ‘monkey?’” More ›

Seventh Circuit Explains the Burden of Proof Applied to Retaliation Claims

In Kidwell v. Eisenhauer, the plaintiff police officer sued the Mayor of Danville, Illinois, along with the Director of Public Safety and two Deputy Directors. The officer pursued his First Amendment retaliation claim under 42 U.S.C. sec. 1983, and alleged that the defendants responded unlawfully by disciplining him and subjecting him to termination charges because of his public criticisms of various departmental officials at police officer union meetings. The case narrative contains many vivid facts, including the claims by a parolee informant of the officer that he had an explosive, which proved to be a piece of firework, and the officer transporting the same informant across state lines. More ›

Second Circuit Rules on Issues of First Impression Regarding Title VII Protected Activities and the Application of Affirmative Defenses

In its May 9, 2011 decision in Townsend v. Benjamin Enterprises, Inc. the Second Circuit ruled upon two issues of first impression concerning Title VII sexual harassment and retaliation claims. First, it joined the Seventh, Ninth, and Eleventh Circuits in holding that an employee’s participation in an internal employer investigation is not a protected activity under Title VII. Second, it confirmed that the Faragher/Ellerth affirmative defense generally available to employers in sexual harassment cases does not apply when the harassment is committed by a senior executive who is a proxy or alter ego for the employer. More ›

Massachusetts Court: Employee had no Reasonable Expectation of Privacy in Employer-Provided Gmail Account

At the developing intersection of employment law and the internet, every decision is important. It is, therefore, worth taking note of a recent decision out of Massachusetts state court, wherein the court found that an employee had no reasonable expectation of privacy in e-mails sent and received using a Gmail account provided and administered by his employer.  More ›

Illegal Alien Status not a Protected Class Under Title VII

Recently, the United States Court of Appeals for the Seventh Circuit held that an employer bank did not unlawfully discriminate against a female employee based on her husband’s immigration status. More ›

Police Chief Not Protected by Qualified Immunity for Employee’s Free-Speech Retaliation Claim

A police department employee offered testimony in connection with a lawsuit which was filed by a co-worker against their employer. Thereafter, the Assistant Chief of Police terminated the employee. She sued under 42 U.S.C. 1983, claiming that her constitutional right to free speech was violated when she was terminated in retaliation for providing testimony about alleged government misconduct. The Assistant Chief of Police sought to defend against that claim on the grounds of qualified immunity. The U.S. District Court for the Western District of Washington denied his request for qualified immunity on the grounds that a supervisor cannot retaliate against a public employee for her subpoenaed deposition testimony when offered as a citizen in the context of a civil rights lawsuit. He then appealed. More ›

Physician Partner may sue Physician’s Partnership for Retaliation Under FEHA

The California Court of Appeal recently determined that a physician partner could sue her partnership under the California Fair Employment and Housing Act (“FEHA”) for retaliation based upon that partner’s opposition to, and efforts to prevent, the sexual harassment of the partnership’s non-partner employees. The Court acknowledged that a partner cannot sue the partnership under the FEHA for alleged harassment or discrimination against the partner, or for retaliation for opposing harassment or discrimination against the partner. The Court further confirmed that a partner cannot sue her partnership for harassment, discrimination or retaliation under Title VII of the federal Civil Rights Act, however, the Court recognized that a partner is a "person" protected from retaliation under the FEHA for opposing alleged sexual harassment of the partnership's employees, because the anti-retaliation provision shields "any person" who opposes employment discrimination, even if there is no existing employment relationship with defendant. The Court noted that the circumstances before it were "unique" thus implying that such a retaliation claim will not be raised often. Nevertheless, the Court of Appeal's decision reflects a broadening of the FEHA prohibition against retaliation claims, which previously seemed to only apply to a relationship between employer and employee.

Federal Judge Strikes Down NLRB “Speedy Election” Rule on Technicality

A federal district court in Washington D.C. has struck down the recently enacted National Labor Relations Board rule that expedited union representation elections. The rule, which had been in effect since April 30, sped up union elections from an average of 38 days after a petition is filed to as few as 10 days. In a May 14 decision in the case of Chamber of Commerce v. National Labor Relations Board, however, District Court Judge James Boasberg found that the Board was acting without a quorum when two of its members enacted the rule in December 2011. As a result, Judge Boasberg determined, the so-called "speedy election" rule is invalid. More ›

Florida Court Relies upon GPS Information to deny Employee’s Workers’ Compensation Claim

The District Court of Appeal of Florida recently addressed an issue which will undoubtedly be of interest to employers nationwide. In Roloff v. Lock Busters of Southwest Florida, the locksmith employee was required to be on call “waiting to be engaged” during his shift. The company vans contained GPS devices which provided for the location of the vehicle. More ›

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