Koziara v. BNSF Railway: Proximate causation and why you shouldn't blame the Big Bang if Donald Trump is elected President next Tuesday

Judge Richard Posner's opinion in Koziara v. BNSF Railway Co., No. 16-1577 (7th Cir. Oct. 31, 2016), is a terrific primer on the difference between causation and proximate causation. A finding of legal liability generally requires that a plaintiff establish not merely causation but proximate causation. Essentially, what this boils down to is that not every cause is a proximate cause, and it's only the latter that we care about. 

Gloucester Cnty. Sch. Bd. v. G.G.: The Supreme Court takes up transgender bathroom access

On October 28, 2016, the Supreme Court granted certiorari in the case of Gloucester County School Board v. G.G., in which Gavin Grimm has sued the defendant school board because he has been denied access to the boys' bathroom. Grimm identifies as male, but was designated as female when he was born. In granting certiorari, the Court agreed to consider two issues: (1) whether courts should defer to an agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the Department of Education, the agency's interpretation of Title IX and 34 C.F.R. § 106.33 should be given effect. The first of these is strictly procedural, so it's quite possible that the Court will resolve the case by merely addressing the deference issue without having to consider the substantive issue of transgender bathroom access. 

Native American Tribes and the Age Discrimination in Employment Act: A Right Without a Remedy

In Williams v. Poarch Band of Creek Indians, No. 15-13552 (11th Cir. Oct. 18, 2016), the Eleventh Circuit affirmed the dismissal of Christine Williams's age discrimination claim against the defendant Native American tribe, holding that the claim was barred by the doctrine of tribal sovereign immunity. As the court explained, "even though the ADEA is a statute of general applicability, and the Poarch Band might be generally subject to its terms, the doctrine of tribal sovereign immunity protects the Poarch Band from suits under the statute."

Villarreal v. R.J. Reynolds Tobacco Co.: Do Title VII and the Age Discrimination in Employment Act protect applicants against unintentional discrimination?

In Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602 (11th Cir. Oct. 5, 2016), the Eleventh Circuit held that the disparate impact provision of the Age Discrimination in Employment Act, which covers facially neutral practices that have a disproportionately adverse effect on older workers, only applies to employees. Therefore, older job applicants are only protected against intentional age discrimination. Although Villarreal is an ADEA case, its reasoning strongly suggests that applicants are also excluded from protection under the disparate impact provision of Title VII of the Civil Rights Act of 1964.

Betz v. Temple Health Systems: Sexual conduct is not always based on sex

In Betz v. Temple Health Systems, No. 16-1423 (3d Cir. Oct. 5, 2016), the Third Circuit affirmed the dismissal of Ellen Betz's claim that she was subjected to sexual harassment in violation of Title VII based on her female coworkers' sexually explicit conduct. Betz alleged, among other things, that her coworkers would "regularly 'joke' with each other by licking, groping, making lewd gestures, or pretending to grope each other's breasts and genitals." The Third Circuit agreed with the lower court's conclusion that the alleged facts did not state a plausible claim that the challenged conduct discriminated against Betz because of her sex.

Roberts v. Clark Cnty. Sch. Dist.: Barring a transgender man from all single-sex restrooms is not the same as barring him from just the men's room

In Roberts v. Clark County School District, No. 2:15-cv-00388-JAD-PAL (D. Nev. Oct. 4, 2016), District Court Judge Jennifer Dorsey granted summary judgment to Bradley Roberts, a transgender male police officer, on his claim that he was subjected to sex discrimination when he was denied access to either the women's or the men's restroom and was required to use gender-neutral restrooms.

Lord v. High Voltage: Is it unlawful to fire an employee because he failed to report harassment immediately?

In Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. Oct. 5, 2016), the Seventh Circuit held in a 2-1 decision by Judge Diane Sykes that Ryan Lord failed to show that he was fired in retaliation for complaining about sexual harassment by male coworkers. Notably, the majority credited the employer's assertion that it fired Lord in part because he failed to report new incidents of harassment immediately, contrary to what he had been instructed to do after previously complaining about harassment. In dissent, Judge Ilana Rovner criticized the majority for upholding a practice that would have a "chilling effect" on the reporting of harassment and that "provides the employer with an end-run around the Title VII retaliation provision."

The Onionhead Case: Stretching Title VII While Ignoring the Constitution

EEOC v. United Health Programs of America, Inc. and Cost Containment Group, Inc., No. 14-3673 (KAM)(JO) (E.D.N.Y. Sept. 30, 2016), is an eyebrow-raising case about a workplace team-building program inspired by Onionhead, an anthropomorphic onion. In United Health, Federal District Court Judge Kiyo Matsumoto addressed whether the defendants subjected employees to unlawful religious discrimination in violation of Title VII of the Civil Rights Act of 1964 by allegedly requiring them to participate in their Onionhead program. Judge Matsumoto identified two groups of claims: "reverse religious discrimination claims," which alleged that the defendants imposed their religious practices and beliefs on employees, and "more traditional" religious discrimination claims, which alleged that the defendants discriminated against employees based on employees' own religious beliefs. As discussed below, I believe that Judge Matsumoto erred in allowing claimants to proceed with their reverse discrimination claims.