Civil Rights and Discrimination Commons^™

Employment Discrimination, John E. Duvall

Mercer Law Review

Several interesting and noteworthy employment discrimination cases were on the docket of the United States Court of Appeals for the Eleventh Circuit during the survey period, and one Supreme Court of the United States employment decision was announced during the period as well. The vast majority of the Eleventh Circuit's employment discrimination cases continue to be decided in unpublished opinions, most of which were per curiam opinions affirming grants of summary judgments to defendant employers. This year's Article is focused on reported decisions, commenting only on two unpublished decisions. In addition to the cases discussed in this Article, by the …

Employer Beware: Changing The Landscape Of Employment Discrimination Claims At The Summary Judgment Stage, Matthew Bottoms

Mercer Law Review

In Quigg v. Thomas County School District, the United States Court of Appeals for the Eleventh Circuit changed the summary judgment framework for mixed-motive employment discrimination cases. The ruling in Quigg will affect both employers and employees and will lead to more mixed-motive discrimination claims reaching the jury, rather than being dismissed through summary judgment. The newly-adopted framework takes the burden-shifting standard out of summary judgment, and many commentators consider it a much more plaintiff-friendly framework. Under the new framework, in order to survive a motion for summary judgment on a mixed-motive discrimination claim, all the plaintiff must do …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The field of Employment Discrimination continued to be alive and well during the 2016 survey period. Although the United States Court of Appeals for the Eleventh Circuit continued its recent trend of issuing the vast majority of its employment discrimination cases as unpublished opinions (often per curiam opinions affirming a summary judgment for the employer), the court of appeals rendered far more published opinions during the survey period than has recently been its practice. The Eleventh Circuit issued six published Title VII opinions, and fifteen published employment discrimination opinions overall. For instance, in Villarreal v. R.J. Reynolds Tobacco Co., …

Compliance Requires Inspection: The Failure Of Gender Equal Pay Efforts In The United States, Renalia Dubose

Mercer Law Review

On Friday, January 29, 2016, President Barack Obama expanded a previous executive order by requiring the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government. That previous executive order was the April 8, 2014 Executive Order 13665 entitled Non-Retaliation for Disclosure of Compensation Information and was designed to amend the September 24, 1965 Executive Order 11246 entitled Equal Employment Opportunity by President Lyndon Johnson. Executive Order 13665 was issued to require transparency concerning compensation among private entities doing business with the federal government …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Clearly the most significant case handed down during the 2015 survey period was the March 2015 decision by the United States Supreme Court in Young v. United Parcel Service, Inc. In Young, the Supreme Court decided that the Pregnancy Discrimination Act (PDA) does, in fact, require employers to offer workplace accommodations to pregnant employees in order to remain on the job. This case has almost certainly required a host of employers to review and probably revise the leave policies they had in place prior to the decision being handed down. Otherwise, the 2015 survey period was a busy, …

An Onerous Burden: The Impact Of Nassar Upon Mcdonnell Douglas In The Eleventh Circuit, Alec Chappell

Mercer Law Review

Following a flood of employment discrimination and retaliation cases, the United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar announced that an employee alleging retaliation must prove that the employer's motive to retaliate constituted a "but for" cause of the actions adverse to the employee. In addition to creating an awkward and unprecedented union of employment law and traditional tort principles of causation,' this decision upended the conventional application of the framework set forth in McDonnell Douglas Corp. v. Green and left the lower courts to pick up the pieces. ...

This Comment explores the responses …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Perhaps the most significant cases during the 2014 survey period were those that were not handed down by United States Supreme Court, rather than the cases that were decided. Easily the most talked about case during the survey period was the case pending before the Supreme Court, Young v. United Parcel Service, Inc., in which the Court will decide whether the Pregnancy Discrimination Act requires employers to offer work place accommodations to pregnant employees in order to remain on the job. Another high profile case is Mach Mining, LLC v. Equal Employment Opportunity Commission, in which the Supreme Court will …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

Following a relatively quiet and uneventful 2012 survey period, the United States Supreme Court stepped up its activity significantly in the area of employment discrimination during the 2013 survey period. The Supreme Court handed down several significant rulings. In University of Texas Southwestern Medical Center v. Nassar, the Court established a "but-for" rule of causation for purposes of Title VII retaliation cases. In Vance v. Ball State University, the Supreme Court determined the parameters of who qualifies as a "supervisor" for purposes of establishing vicarious liability in workplace harassment actions under Title VII.

At the circuit level, the …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

After last year's blockbuster year, the United States Supreme Court was relatively quiet in the area of employment discrimination during the 2012 survey period. The High Court's most significant ruling was its decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, in which the Court held that the First Amendment's Establishment and Free Exercise Clauses create a "ministerial exception" that barred a disability discrimination lawsuit against a religious organization.

However, the United States Court of Appeals for the Eleventh Circuit offset the Supreme Court's inactivity by handing down six published Title VII opinions and ten published decisions in …

Narrative Pluralism And Doctrinal Incoherence In Hosanna-Tabor, Frederick Mark Gedicks

Mercer Law Review

The federal laws prohibiting employment discrimination are among the most important statutes ever enacted. They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.

The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire leaders, thus avoiding (what we might hope are) hypothetical …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The United States Supreme Court was the center of the action in the area of employment discrimination during the 2011 survey period. The most talked about decision was the Court's opinion in Wal-Mart Stores, Inc. v. Dukes. The much-anticipated decision in Dukes was the most significant opinion handed down by the Court in the area of employment discrimination class actions since its 1982 decision in General Telephone Co. v. Falcon, and perhaps ever. The Court also continued to broaden the scope of potential Title VII retaliation actions with its decision in Thompson v. North American Stainless, LP. …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit issued a significantly higher number of published decisions in the area of employment discrimination during the 2010 survey period. It is too early to tell whether this will become a new trend or is a one year aberration. However, the Eleventh Circuit handed down eight published Title VII decisions during the survey period (as opposed to only one published decision the year before), and thirteen published employment discrimination opinions overall (as opposed to only three during the 2009 survey period). Three of these decisions were in the ever troublesome area …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The United States Supreme Court continued to be extremely active in the realm of employment discrimination during the 2009 survey period. The Court decided five significant employment cases during 2009. Perhaps the most significant was the decision in Gross v. FBL Financial Services, Inc., in which the Court handed employers a huge victory as to the burden of proof necessary to establish age discrimination claims pursuant to the Age Discrimination in Employment Act of 1967 (ADEA). On the other hand, employees were the clear winner in Crawford v. Metropolitan Government of Nashville, in which the Court expanded the …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

During the 2007 survey period, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of issuing many opinions-most unpublished-regarding employment discrimination. The court rendered eight published decisions concerning Title VII of the Civil Rights Act of 1964 ("Title VLI") and fifteen published opinions generally concerning employment discrimination. Unpublished opinions in this area continued to flourish, however, with at least forty-nine unpublished decisions regarding Title VII and fifty-seven unpublished employment discrimination opinions overall. Clearly, the case that received the most press coverage during the survey period was the United States Supreme Court's decision in Ledbetter v. …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The 2005 survey period saw a continuation of the diminished number of published decisions by the Eleventh Circuit Court of Appeals in the area of employment discrimination. However, it is interesting to note that the Eleventh Circuit also handed down at least 141 unpublished opinions in employment discrimination cases. Accordingly, while this trend may mean that the topic of employment discrimination is still very much alive and well within the Eleventh Circuit, it may also indicate that there are fewer unsettled questions of law in this area. However, this does not mean that the 2005 survey period was insignificant

Pennsylvania State Police V. Suders, Letoyia C. Brooks

Mercer Law Review

In Pennsylvania State Police v. Suders, the United States Supreme Court reached two conclusions. First, the Court wrote that an employee who resigns as a result of sexual harassment may assert a Title VII constructive discharge claim where the employee can show that the "working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Second, the Court held that an employer may assert the affirmative defense established in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, ("Ellerth/Faragher") in a situation where an employee …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

For the first time in the life of this Article, the 2003 survey period appears to have experienced a marked decrease in the number of decisions handed down by the United States Supreme Court and the Eleventh Circuit in the area of employment discrimination. As Title VII approaches its fortieth anniversary, perhaps this is an indication that there are fewer and fewer unsettled questions of law in this area. However, this decline in the number of decisions does not mean that the 2003 survey period was insignificant. The Supreme Court, in Raytheon Co. v. Hernandez, continued its string of …

Price Waterhouse: Alive And Well Under The Age Discrimination In Employment Act, H.Lane Dennard Jr., Kendall L. Kelly

Mercer Law Review

Judicial application of the Age Discrimination in Employment Act of 1967 ("ADEA") may be the most divergent of the employment discrimination laws because the ADEA is a hybrid of two statutes: Title VII of the Civil Rights Act of 19642 ("Title VII") and the Fair Labor Standards Act of 1938 ("FLSA"). The ADEA incorporates only selected portions of each of these statutes. For example, the general prohibition against age discrimination contained in the ADEA parallels the substantive provisions of Title VII, while the remedial provisions mirror, at least in part, the FLSA. Courts, however, have generally approached the ADEA in …

The Mixed-Motive Defense In Workplace Discrimination Actions And Its Procedural Issues In The Eleventh Circuit, Richard A. Weller

Mercer Law Review

Being fired from one's place of employment is an unfortunate incident that many Americans face on one or more occasions during their lifetimes. Discharged employees obviously experience some degree of economic loss by losing salaries and benefits. Even when rightfully discharged, employees may suffer emotional and psychological harm because of their perceived failure. This harm may be magnified when the employee has been discharged for wrongful, illegal reasons.

However, in some cases an employer may have legitimate, legal reasons to terminate an employee and simultaneously have illegal, discriminatory reasons. In such a "mixed-motives" situation, employers may be able to limit …

Mixed-Motive Cases On Employment Discrimination Law Revisited: A Brief Updated View Of The Swamp, Robert Belton

Mercer Law Review

In 1973 the Supreme Court enunciated an analytical framework in McDonnell Douglas Corp. v. Green with the purpose of providing plaintiffs in statutory employment discrimination cases a full and fair opportunity to prove intentional discrimination despite the unavailability of direct evidence. The McDonnell Douglas framework is used primarily in cases litigated under the disparate treatment theory of discrimination and is based upon presumptions and burden-shifting schemes. McDonnell Douglas was the predominant analytical framework for statutory employment discrimination cases until the Supreme Court decided Price Waterhouse v. Hopkins in 1989. ...

Congress overturned the fundamental holding of Price Waterhouse in the …

Burlington Industries, Inc. V. Ellerth: An Affirmative Defense Against Employer Liability For Supervisory Harassment, Joyelle K. Werner

Mercer Law Review

In Burlington Industries, Inc. v. Ellerth, the Supreme Court held that an employer is vicariously liable for its supervisor's harassment that creates a hostile work environment, subject only to the affirmative defense that the employer "exercised reasonable care to prevent and correct" the harassment and that the "employee unreasonably failed to take advantage" of the employer's remedial procedure or corrective opportunities offered after the fact.

Employment Discrimination, Peter Reed Corbin, Richard L. Ruth

Mercer Law Review

The 1998 survey period presented an extremely active year in the employment discrimination arena, not only for the Eleventh Circuit, but also for the United States Supreme Court.' Three key decisions were rendered by the Supreme Court on sexual harassment and same-sex discrimination, and another decision was rendered on the arbitrability of ADA claims. Yet, ironically, in this year of inordinate Supreme Court activity in the field of labor and employment law, the Court's arbitration decision did not "live up to the hype" of being a landmark decision on the legality of mandatory predispute arbitration of statutory discrimination claims. On …

Mckennon V. Nashville Banner Publishing Company: Progression Of The After-Acquired Evidence Doctrine, Lauren L. Logan

Mercer Law Review

In McKennon v. Nashville Banner Publishing Co., the United States Supreme Court held that after-acquired evidence of employee wrongdoing that would have led to termination on lawful and legitimate grounds does not bar the employee from all relief sought under an employment discrimination action. The plaintiff, Christine McKennon, had worked for the defendant, Nashville Banner Publishing Company, for thirty years when, as claimed by Banner, she was discharged as part of a work force reduction plan. McKennon, who was sixty-two years old at the time of her discharge, claimed that her termination was based on her age. She filed …

Wallace V. Dunn Construction Co.: Defining The Role Of After-Acquired Evidence In Federal Employment Discrimination Suits, Hugh Lawson Iii

Mercer Law Review

In Wallace v. Dunn Construction Co. the Eleventh Circuit Court of Appeals faced an issue of first impression in the circuit: the role of after-acquired evidence in actions arising under federal employment discrimination statutes, namely Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. The court held that after-acquired evidence cases in which an employer discovers evidence constituting a permissible reason for discharging an employee after that employee has already been discharged for an impermissible reason are distinguishable from mixed-motive cases in which an employer discharges an employee for several reasons, some permissible and …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

In what no doubt will prove to be the calm before the storm, the number of cases decided in the area of employment discrimination during the 1990 survey period decreased significantly, both in the United States Supreme Court and in the United States Court of Appeals for the Eleventh Circuit. The decline in the number of Supreme Court pronouncements is not surprising, since the succession of landmark cases decided in the previous two years was truly remarkable, and such a pace realistically could not have continued. It also appears as if the Eleventh Circuit held back, waiting to see whether …

Employment Discrimination, Susan A. Cahoon

Mercer Law Review

During 1980, the Fifth Circuit again had a full docket of employment discrimination cases. For the most part, the cases tended to turn on the particular facts at issue, and there were few pronouncements by the court of broader significance. An en banc court did decide an important question about limiting communications in class actions, and a panel of the court considered for the first time, whether there is an implied private cause of action to sue for discrimination against the handicapped under Section 503 of the Rehabilitation Act of 1973. The Fifth Circuit also continued to follow a unique …

Garcia V. Gloor: Mutable Characteristics Rationale Extended To National Origin Discrimination, Dwight J. Davis

Mercer Law Review

In Garcia v. Gloor, the Fifth Circuit Court of Appeals upheld a district court ruling that an employer's policy requiring employees to speak only English while at work did not violate the Civil Rights Act of 1964 prohibition against national origin discrimination. In so ruling, the court extended the mutable-immutable characteristics rationale that the Fifth Circuit first outlined in Willingham v. Macon Telegraph Publishing Co.