The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.
In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the court reviewed the jury’s findings and awarded damages. The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”
This case arose when a worker, Kerry Woods, was subjected to sex harassment. Woods was often sexual derogatory terms regarding Woods’ sexuality. In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods. When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”
After trial the jury found that this verbal and physical harassment occurred daily. The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.
via Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer.
This is a very interesting case regarding immigration and obtaining citizenship through a U.S. citizen parent. Basically, this case used Article 314 of the Mexican Constitution when determining whether to deport individuals who claim American citizenship.
In Mexico, Saldana was born to an American male and a Mexican female. His birth certificate listed both parents. DHS deported him and denied his citizenship application on the basis that he was born out-of-wedlock.
According to DHS, Article 314 provided that children born out of wedlock can only be legitimized if the couple marries subsequently. At oral argument, however, the government admitted that Article 314 did never existed. DHS then cited Article 130 alleging it required marriage for legitimacy of children.
The Fifth Circuit Court of Appeals held in their opinion disagreed. Article 130 merely cited that marriage was a civil contract, rather than a religious one. In addition, the court noted that this article said nothing about the legitimization of children. The court explained,
In sum, under the laws of Tamaulipas, Mexico, where Saldana was born and resided as a child, he was acknowledged by his father when his father placed his name on the birth certificate before the Civil Registry. As an acknowledged child, Saldana had the same filial rights vis-a-vis his father as a “legitimated” child.
In Torres et al. v. Gristedes Operating Corp. et al., Case No. 11-4035 (July 9, 2013), the Second Circuit Court of Appeals held that a mayoral candidate, a supermarket owner, and an executive can be individually liable for settlement payments arising of a Fair Labor Standard Act class action.
In this case, the parties settled the class action. A class action is a discrimination case brought by a few plaintiffs on behalf of many employees. All of the members who agreed to be part of the class (the individuals who were discriminated against) receive their part of the settlement. In order for a fair disbursement, the Judge must adopt the settlement.
Under the settlement, the defendants agreed to pay $3.5 million to the class. However, the defendants defaulted on the payments. The judge’s order allowed the class to enforce the settlement. Defendants, who sought to change the settlement, stated that they were not bound by the settlement because they were not “employers.”
The Second Circuit Court of Appeals disagreed. The Court noted that the defendants exercised “operational control” that affected the class’ employment. For example, based of their decisions, the employees’ wages were affected. Because defendants were employers, defendants were bound by the settlement. Based on this decision, defendants now have to pay the owed money.
via Labor Employment Law Blog: Second Circuit Imposes Individual Liability on New York Mayoral Candidate for Fair Labor Standards Act Settlement.
The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.
In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her. In this case, the female employee was lactating or expressing milk. The female employee asked her employer if she would be able to pump breast milk at work. The company then fired the employee.
The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987. The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.
The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth. In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy. In other words, women, not men, lactate or express milk. Therefore, a company discriminates based on sex when it fires a woman for lactating.
via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.
Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that a buyer of a company’s assets can’t rely on state law to keep a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets. This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.
The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law. Further, the court explained that employees do not have the power to stop an owner from selling the company. Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.
To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:
- Whether the successor had notice of the pending law suit;
- Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
- Whether the predecessor could have provided relief after the sale;
- Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
- Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.
via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.
The Senate confirmed the nomination of Jane Kelly to the 8th Circuit Court of Appeals by a vote of 96-0. There were 4 non-voting votes. If you can’t find the link, go here and find Vote 00108 (April 24th).
Jane Kelly will be the second woman and first public defender to serve in the history of the court since its establishment in 1891.
Jane Kelly received her bachelor’s degree from Duke University and her law degree from Harvard Law School in 1991. After her graduation, Jane Kelly clerked for U.S. District Judge Donald J. Porter of South Dakota and Eighth Circuit Court Judge D. Hansen.
Jane Kelly has been an assistant public defender in the Northern District in Iowa since 1992, and the supervising attorney since 1999.
On the Senate floor, Senator Chuck Grassley stated, “She is a credit to all of use who have chosen public service.”
Minnesota Lawyer (Dec. 24, 2012, subscription required) has an interested article regarding Minn. Stat. 256B.0659 (2011). In 2011, the Minnesota legislature passed a bill stating that non relative personal care attendants were to receive a pay rate of 80% of the non relative pay. In other words, relative personal care attendants would receive a 30% pay cut. In Healthstar v. Home Health, Inc. v. Jesson, the Court of Appeals reversed the Ramsey District Court decision. The court struck down the statute.
The court held that the statute did not meet the prong of showing that the bill was not manifestly arbitrary of fanciful, but that it must be genuine and substantial. The court stated that the commissioner’s argument was “based on an assumption that relative PCAs will continue to provide care even if affected by a pay cut.”
The court further stated that “the rationale for the distinction advanced by respondent is based purely on assumptions rather than facts, including the apparently unchallenged assumption that a moral obligation to provide care for a relative necessarily equates to a moral obligation to personally provide such care at a lower rate of pay than a nonrelative PCA would receive for the same work.”
The Court of Appeals also held that the statute did not meet the prong that the classification must be genuine or relevant to the purpose of the law. The court stated that the commissioner did not show any facts in support of its assumption.
Today, the D.C. Circuit Court of Appeals held that the NLRB recess appointments were unconstitutional. It goes without saying that the possible ramifications of this decision, which may impact other NLRB decisions.
In Noel Canning, the NLRB held that the issue presented was mooted because the NLRB recess appointments were unconstitutional. In its decision, the court essentially stated that the Senate wasn’t in recess. The court reasoned that “recess” occurs when Congress is not in one of its regular two or three sessions.
via Workplace Prof Blog: D.C. Circuit Holds NLRB Recess Appointments Unconstitutional.
The Ninth Circuit (en banc) held that a state-law failure-to-warn was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act. The Ninth Circuit explained that the Amendments parallels the state-law claim, and therefore does not preempt, either expressly or impliedly.
What does this mean? The federal court of appeals made a decision whether a federal court or a state court had jurisdiction over the failure-to-warn claims. The failure-to-warn state-law claims arise when a medical manufacturer fails to warn the patients or its physicians of known-dangers of the medical device.
The arguments in the lawsuit were rooted on the MDA explicit preemption clause – which provided that federal courts had the power to hear the case exclusively.
So why was that preemption clause irrelevant to this situation? The Supreme Court had previously ruled, in 3 preemption cases under the MDA, that the MDA does not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the MDA.
If anything else, this is a very interesting read if you are interested in preemption rationales – express, field, and conflict.
The Minnesota Lawyer Blog reports on the most recent appointment to the Minnesota Court of Appeals.
Judge John P. Smith was appointed to the Minnesota Court of Appeals. Smith will replace Judge Wilhelmina M. Wright, who was appointed earlier this year to the Minnesota Supreme Court.
Smith has served on the Ninth District Court for over 21 years. He was appointed to the bench by Gov. Arne Carlson in 1991, and has served as chief judge and assistant chief judge. He has is currently president of the Minnesota District Judges Association.
via John Smith appointed to Court of Appeals – MinnLawyer Blog.