Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Bill Aims to Expand Protection from Discrimination to Sexual Orientation and Gender Identity

Posted: June 23, 2009 Filed under: Uncategorized

Massachusetts Congressman Barney Frank has introduced a revised version of the Employment Non-Discrimination Act. The bill, if passed into law, will create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. Florida representative Ileana Ros-Lehtinen is the leading Republican sponsor of the bill. Read the bill here.

Supreme Court Deals Setback to Older Workers

Posted: June 18, 2009 Filed under: Case Law, Employment Law

In a 5-4 decision, the Supreme Court made it harder for employees to prove a case of age discrimination. No longer may an employee demonstrate simply that age was a motivating factor in the employer’s decision. Rather, “[a] plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.” Gross v. FBL Financial Services, Inc.

Who is a Manager ?

Posted: June 17, 2009 Filed under: Case Law, Employment Law

Last week, in Huston v. The Procter & Gamble Paper Products Corp., the U.S. Third Circuit Court of Appeals took “the opportunity to offer some guidance to the district courts as to who qualifies as a “management level” employee” for purposes of determining an employer’s liability for sexual harassment by non-supervisory co-workers.

The court prefaced its holding by restating three general rules: (1) the basis of an employer’s liability for hostile environment sexual harassment depends on whether the harasser is the victim’s supervisor or merely a coworker; (2) an employer may be directly liable for non-supervisory co-worker sexual harassment only if the employer was negligent in failing to discover the co-worker harassment or in responding to a report of such harassment; and (3) an employer knew or should have known about workplace sexual harassment if management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment.

Relying on the concept of agency, the Third Circuit summarized:

Thus, to justify imputing an employee’s knowledge of facts to an employer, the facts must be important or significant to the employee’s duties to the employer. This is the case when the employee uses that knowledge in the performance of the employee’s duties to the employer. In other words, the employee’s knowledge of facts may be imputed to the employer only if that knowledge is important to the function the employee is employed to perform.”

Under this approach, an employee’s knowledge of sexual harassment may be imputed to the employer when the employee is employed to report or respond to sexual harassment. We thus conclude that an employee’s knowledge of allegations of coworker sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties.

In short, knowledge of harassment by someone with the title “supervisor” is not enough to put the employer on notice of the harassment unless the supervisor has a mandate “generally to regulate the workplace environment.”

Benefits to be Extended to Same-Sex Partners of Federal Employees

Posted: June 16, 2009 Filed under: Law-Related News, Uncategorized

President Obama is expected to announce tomorrow (Wednesday) that he will extend benefits to same-sex partners of federal employees by executive order. Stay tuned.

Discrimination Cases Fare Poorly in Federal Court

Posted: June 15, 2009 Filed under: Employment Law

A recent article appearing in the Wall Street Journal discussed a study of employment discrimination cases filed in federal courts around the country between 1979 and 2006. According to the article “employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs.” In fact, the article states:

From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, in all other civil cases, the win rate was 51%, according to a study to be published this month by the Harvard Law & Policy Review.

Two morals to take from the Journal story are these: cases should be methodically documented and an attorney should be chosen carefully. Read the article here.

19 Apply for Federal Judgeship in the Middle District of Florida

Posted: June 13, 2009 Filed under: Law-Related News

Read about the 19 men and women who hope to become a federal judge in the Middle District of Florida here.

Admitted: Florida, Kansas, New Mexico (inactive)