Eighth Circuit: Business – Judgment Jury Instruction Is Inappropriate For Claim Under Equal Pay Act

June 7, 2012 by Hinshaw & Culbertson LLP

The Eighth Circuit has issued a decision which serves as a clear reminder to employees that the federal Equal Pay Act is a strict liability statute. Basically, this means that an employer may not be able to avoid liability by simply articulating a non-discriminatory reason for its actions, as it could in a Title VII discrimination claim. Rather, when a female employee shows that she was paid less than a male employee for the same work, the employer can avoid liability under the Act only by affirmatively proving that it had a justification for the disparity in pay.  More ›

California Court Compels Arbitration and Dismissal of Class Claims, Invalidating Gentry Based on AT&T Mobility v. Concepcion

June 4, 2012 by Hinshaw & Culbertson LLP

For many years, pursuant to Gentry v. Superior Court (2007) 42 Cal.4th 443, California courts have held that class waiver provisions in arbitration agreements should not be enforced if class arbitration would be a significantly more effective way of redressing the rights of affected employees. But that was before the U.S. Supreme Court issued its April 2011 ruling in AT&T Mobility LLC v. Concepcion, holding that the principal purpose of the Federal Arbitration Act is to ensure that arbitration agreements are enforced pursuant to their terms. Further, the Supreme Court held that “requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme consistent with the FAA.” More ›

New Report Issued on Employee use of Social Media and the National Labor Relations Act

June 1, 2012 by Hinshaw & Culbertson LLP

On May 30, 2012, the National Labor Relations Board’s General Counsel issued a Report Concerning Social Media Cases. In it, the General Counsel’s Office reviewed seven cases concerning employers’ social media policies regarding. In its review, the General Counsel found several aspects of these policies to be overbroad while affirming others. More ›

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

May 31, 2012 by Hinshaw & Culbertson LLP

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

May 29, 2012 by Ambrose V. McCall

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

May 25, 2012 by Hinshaw & Culbertson LLP

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

May 25, 2012 by Hinshaw & Culbertson LLP

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

May 23, 2012 by Hinshaw & Culbertson LLP

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

May 22, 2012 by Hinshaw & Culbertson LLP

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

May 22, 2012 by Hinshaw & Culbertson LLP

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.

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