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Case Law Update

Case Law Update. L. Jack Vasquez, Jr. Deputy District Director U.S. EEOC, St. Louis District Office April, 2013. Retaliation & Protected Activity. Protected Activity: Opposition Participation. 2006 – 2011 Developments.

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Case Law Update

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  1. Case Law Update L. Jack Vasquez, Jr. Deputy District Director U.S. EEOC, St. Louis District Office April, 2013

  2. Retaliation & Protected Activity • Protected Activity: • Opposition • Participation

  3. 2006 – 2011 Developments • 2006: Burlington N. & Santa Fe Ry. Co. v. White: What is an Adverse Action? • 2009: Crawford v. Metropolitan Gov’t of Nashville & Davidson Cnty.: What is Opposition? • 2011: Thompson v. North Am. Stainless, L.P.: Who is within the Zone of Protection

  4. Exhaustion of Administrative Remedies after Morgan • Nat’l R.R. Passenger Corp. v. Morgan: The term, “practice” in Title VII does NOT convert, “related discrete acts into a single unlawful practice for purposes of timely filing.” • Distinguish multiple instances of failure to promote (e.g., discrete acts) v. multiple instances in a hostile environment (e.g., ongoing violation that can endure/recur temporally)

  5. Circuit Split • Richter v. Advanced Auto Parts, Inc. (8th Cir.): Retaliation claim requires filing with EEOC as it is NOT “like or reasonably related” to the underlying charge(s). • CP/Plaintiff had filed charge alleging race and sex (female); subsequently filed suit alleging retaliation. District Court dismissed, and the 8th Circuit affirmed. • Tenth Circuit is in accord with 8th Circuit. • 4th, 5th, 6th and 9th Circuits: Administrative Exhaustion Exception for “like or reasonably related”.

  6. FY 2012 Statistics/Trends • Retaliation Claims: 37,836 Charges (of 99,412 Total Charges) = 38.1% FY 2011 & FY 2010 Respectively: 37,334 (37.4%) & 36,258 (36.3%)

  7. Investigation, Conciliation & Discovery – Or NOT • Title VII: Sections 706 & 707 • 706: Permits EEOC to bring a lawsuit in federal court • Requires Investigation & Conciliation for Victims • 707: Permits suits to redress “pattern or practice” discrimination • The Teamsters Framework: Initial Focus on SOP

  8. Another Split in the Circuits • 8th Circuit: CRST v. 6th Circuit: Cintas & N.D. Illinois: UPS CRST: Section 706 requires victim identification at investigative/conciliation stage; victims may not be identified and added during discovery. Cintas: The Teamsters Framework of Section 707 may be used when suit is filed under Section 706; investigation, conciliation & discovery of victims

  9. LGBT Rights: An Emerging Issue • Within Title VII, “sex” includes discrimination because of biological sex and gender stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) In accord: 1st, 6th & 9th Circuits Complaint could prove discrimination by showing decision maker believed biological males should present as men (gender stereotyping) OR decision maker was not willing to hire complainant one he found out complainant was now a woman (sex). Macy v. Holder, Appeal No. 0120120821 (4/20/12)

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