News for February 17, 2015

Featured this week:

In state law news:

Featured this week:

Suspicious timing of female captain’s negative review not enough to pass pretext hurdle
Although a female fire department captain engaged in protected activity when she complained about discrimination after a male subordinate successfully arbitrated his union grievance claiming her bias against him (after she reported his immature sexual behavior) affected his promotional opportunity, she was unable to advance her Title VII reprisal claim since she failed to show that her subsequent negative performance review and promotion delay were pretextual. Granting the city’s motion for summary judgment, a federal district court in Nevada noted that although the timing was suspicious, the review was not exclusively negative, she did not deny the conduct to which it referred, and she had received negative feedback in prior reviews (Sievert v City of Sparks, DNev, February 4, 2015, Hicks, L.).

Gender-reassigned employee’s race, sex bias claims proceed in part
An employee, who was born male but had gender reassignment surgery, had standing to assert state law gender and gender identity discrimination claims as a female. She also adequately stated claims for race discrimination, and violations of the Ohio Equal Pay Act, as well as Sec. 1983 claims for violations of her federal equal protection and free speech rights. However, the federal district court in Ohio dismissed her claims of failure to promote in violation of public policy and intentional infliction of emotional distress (Cummings v Greater Cleveland Regional Transit Authority, NDOhio, January 29, 2015, Gwin, J.).

Tenure denied after complaints of racist Facebook posts; Title VII, Sec. 1981 claims advance
Denying a university’s motion for summary judgment on the Title VII race discrimination and retaliation claims of a professor who was denied tenure after complaining about racist Facebook comments made by three other professors, a federal district court in Oklahoma found it significant that two of the professors were allowed to vote on his tenure application. The employee’s Sec. 1981 claims against several individuals also proceeded based on evidence that a clearly established constitutional right was violated. However, his state law claims failed (Hannah v Northeastern State University, EDOkla, February 5, 2015, White, R.).

EEOC violated Title VII by quoting discrimination charge in public record
Granting an employer’s motion to seal the EEOC’s application to enforce its administrative subpoena, a federal district court in Texas found that the agency violated Title VII by reproducing large parts of an employee’s discrimination charge in the public record. However, the entire application need not be sealed so the agency was ordered to file a redacted version. In addition, the employer’s request for attorneys’ fees was denied because the EEOC did not act in bad faith or for oppressive reasons (EEOC v A’GACI, LLC, WDTex, February 5, 2015, Ezra, D.).

High court recognizes Faragher/Ellerth affirmative defense, rejects narrow Vance definition of supervisor
New Jersey employers facing vicarious liability for a supervisor’s sexual harassment under the New Jersey Law Against Discrimination (LAD) may assert a Faragher/Ellerth affirmative defense, the New Jersey Supreme Court held in a 5-2 opinion, definitively adopting the federal standard set forth by the U.S. Supreme Court and allowing an employer to establish that it had an effective anti-harassment policy in place but that the plaintiff failed to take advantage of it. However, the state high court declined to adopt the narrow definition of “supervisor” set forth by the U.S. Supreme Court in Vance v Ball State University, favoring the EEOC’s broader construction. The high court reversed the appellate court’s affirmance of summary judgment to the employer so that the trial court, on remand, could decide the case in accordance with the standards set forth here (Aguas v State of New Jersey, NJSCt, February 11, 2015, Patterson, A.).

OFCCP posts directory of resources to assist in compliance with new LGBT regulations
In response to federal contractor requests, the OFCCP has created a non-exhaustive directory of organizations and other entities that offer resources and guidance to employers around issues related to creating an inclusive workplace for lesbian, gay, bisexual, and transgender (LGBT) employees. These resources are intended to assist federal contractors in complying with a final rule published last December on regulations to implement an executive order (EO) banning discrimination against LGBT workers by federal contractors.



H-2B petitions capped out
USCIS has received a sufficient number of petitions to reach the congressionally mandated cap on the total number of foreign nationals who may seek a visa or otherwise obtain H-2B status for the first half of fiscal year (FY) 2015, the agency has announced.



Recruiting difficulty hits four-year high in January, SHRM LINE Report shows
In January, recruiting difficulty for key positions reached a four-year high for both the manufacturing and service sectors, according to the Society for Human Resource Management’s (SHRM’s) Leading Indicators of National Employment® (LINE) Report. January was the ninth consecutive month recruiting difficulty reached four-year highs. Survey results from this month show that a net of 24.8 percent of manufacturing and 14.4 percent of service-sector respondents had difficulty recruiting for key positions, which notably represents a 17.2-point increase in manufacturing and an 8.4-point increase in the service sector when compared to January 2014.



Payroll employment rises in January, but unemployment changes little, BLS reports
Total nonfarm payroll employment rose by 257,000 in January, and the unemployment rate was little changed at 5.7 percent, the U.S. Bureau of Labor Statistics reported February 6. The unemployment rate has shown no net change since October. The number of unemployed persons, at 9.0 million, was little changed in January.



In state law news:

High Court won’t halt same-sex marriage in Alabama
The U.S. Supreme Court has refused the state of Alabama’s request to stay a lower court decision striking down a ban on same-sex marriage pending the High Court’s consideration this term of similar bans in Kentucky, Michigan, Ohio, and Tennessee. The refusal by a majority of the Justices to stay the district court’s injunction in Strange v Searcy prompted a sharp dissent from Justice Thomas, joined by Justice Scalia.



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Employment NetNews is a broader look at labor and employment law issues, with both attorneys and HR professionals in mind. Delivered to you every Monday, Employment NetNews offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by wkl&b editors.


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Special Report

FY 2014 saw overall decline in charges, but retaliation still tops the list


The data released by the EEOC on Wednesday, February 4, show an overall decline in the number of discrimination charges filed compared to recent years, with the agency attributing it in part due to the period of the 2013 government shut-down— 3,000 to 5,000 fewer charge receipts were logged that quarter than in others quarters of fiscal year (FY) 2014. The EEOC received a total of 88,778 discrimination charges during the fiscal year, which ran from October 1, 2013, through September 30, 2014.

The data tables also revealed that the percentage of charges alleging retaliation reached a record high of 42.8 percent. The EEOC noted in a release that the percentage of charges alleging race discrimination, the second most common allegation, has remained steady at about 35 percent. Through its enforcement program, the agency obtained $296.1 million in total monetary relief prior to the filing of litigation.


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