All posts by Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.
Employment policies, Hostile work environment, National origin discrimination, Prompt remedial action, Religious discrimination, Result for Employer, WV Human Rights Act, WV Supreme Court

WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v. WV HRC; 10/25/07

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West Virginia Capitol Building at Night Octo­ber 25, 2007: In Col­gan Air, Inc. v. West Vir­ginia Human Rights Com­mis­sion, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Vir­ginia Supreme Court addressed claims of harass­ment (based on reli­gion and nation­al ori­gin) and retal­i­a­tion under the WV Human Rights Act, W. Va. Code § 5–11‑1 et seq.

The plain­tiff was a pilot, Rao Zahid Khan, who alleged that his co-work­ers sub­ject­ed him to fre­quent deroga­to­ry and insult­ing com­ments about his nation­al ori­gin and reli­gion (he was Ara­bic). The West Vir­ginia Supreme Court ruled that Col­gan Air (a) was not liable for harass­ment because it had poli­cies and pro­ce­dures pro­hibit­ing harass­ment and took swift and deci­sive action after learn­ing about the harass­ment, and (b) was not liable for retal­i­a­tion because Col­gan Air ter­mi­nat­ed the employ­ee (Mr. Khan) for a legit­i­mate and non-dis­crim­i­na­to­ry reason–he failed to pass a manda­to­ry FAA pro­fi­cien­cy test for pilots.

Con­tin­ue read­ing WV Supreme Court rules that employer’s pol­i­cy and prompt action pro­tect­ed it against lia­bil­i­ty; Col­gan Air v. WV HRC; 10/25/07 →
Disparate Impact, Equal Pay, Limitations periods, Result for Employer, Sex Discrimination, Title VII of the Civil Rights Act of 1964, US Legislation, US Supreme Court

US Supreme Court rules pay claims must be filed shortly after discriminatory decision; Ledbetter v Goodyear, 5/29/07

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May 29, 2007: In Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007) (Find­Law site opin­ion), the Unit­ed States Supreme Court, in a 5–4 deci­sion, issued an impor­tant deci­sion in a sex dis­crim­i­na­tion case under Title VII of the Civ­il Rights Act of 1964, which sub­stan­tial­ly lim­it­ed the time peri­od avail­able to assert a claim for pay dis­crim­i­na­tion. The Supreme Court affirmed the deci­sion of the Eleventh Cir­cuit in Led­bet­ter v. Goodyear Tire and Rub­ber Com­pa­ny, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

LillyLedbetter Led­bet­ter filed a charge of sex dis­crim­i­na­tion with the EEOC in 1998 and then lat­er in the year retired. She claimed that, years ear­li­er in her career at Goodyear, male super­vi­sors gave her bad per­for­mance reviews com­pared to what men received. She claimed that Goodyear award­ed rais­es based on those per­for­mance reviews, so that her pay rais­es were reduced as a result of the dis­crim­i­na­to­ry per­for­mance reviews.

Led­bet­ter went to tri­al and per­suad­ed the jury that the per­for­mance reviews, years before she filed her EEOC charge, were dis­crim­i­na­to­ry based on her sex, and the jury found her rights had been vio­lat­ed and award­ed her dam­ages based on her low­er pay­checks through­out her career. The tri­al judge entered a “judg­ment” in Led­bet­ter’s favor based on the jury’s ver­dict. So Led­bet­ter won at tri­al on her sex dis­crim­i­na­tion claim under Title VII. The Eleventh Cir­cuit Court of Appeals threw out the jury ver­dict and tri­al court judg­ment for Led­bet­ter, and entered a judg­ment in favor of Goodyear, based on her fail­ure to file her EEOC charge with­in 180 days of when the per­for­mance reviews had been con­duct­ed. The Unit­ed States Supreme Court affirmed, mean­ing that Goodyear won.

Con­tin­ue read­ing US Supreme Court rules pay claims must be filed short­ly after dis­crim­i­na­to­ry deci­sion; Led­bet­ter v Goodyear, 5/29/07 →
Result for Employee, Retaliation claims, US Supreme Court

US Supreme Court Makes it Easier to Prove Retaliation Claims, in Burlington Northern v. White, 2006

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June 22, 2006: In Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006) (“Burling­ton North­ern v. White”), the US Supreme Court sub­stan­tial­ly broad­ened the abil­i­ty of employ­ees to file retal­i­a­tion claims under Title VII of the Civ­il Rights Act of 1964. It was a unan­i­mous (9–0) decision.

US Supreme Court The Supreme Court broad­ened retal­i­a­tion claims in 2 ways:

First: Retal­ia­to­ry con­duct is not lim­it­ed to employ­er’s action at the work­place, and it is not lim­it­ed to action tak­en while the plain­tiff is still work­ing for the employer.

Sec­ond: Action by the employ­er may vio­late the anti-retal­i­a­tion pro­vi­sion even if it does not cause a tan­gi­ble loss, such as pay, for the plain­tiff. The con­duct may vio­late the law if it is “mate­ri­al­ly adverse” (as opposed to “triv­ial”) to the employ­ee, and might dis­suade a “rea­son­able work­er” from “mak­ing or sup­port­ing a charge of dis­crim­i­na­tion”. So, for exam­ple, trans­fers to dif­fer­ent posi­tions, even though they involve no loss in pay or ben­e­fits or pro­mo­tion­al oppor­tu­ni­ties, might con­sti­tute unlaw­ful action because, if the trans­fer is to what a rea­son­able work­er would view as a less attrac­tive job, that might dis­suade a rea­son­able work­er from com­plain­ing of discrimination.