By dholmes | Published December 3, 2013 | Posted in Recent Developments 2013, The NLRA and Non-Union Employees | Leave a comment
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The NLRA Does Not Prohibit Class-Action Waivers in Employment Arbitration Agreements: The Fifth Circuit’s D.R. Horton Decision
The Fifth Circuit issued its long-awaited decision in D.R. Horton, Inc. v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013). In its D.R. Horton decision, the NLRB had held that section 7 of the NLRA prohibited class-action waivers in mandatory arbitration agreements imposed by employers, because such waivers impeded the right of employees to engage Read More
Read MoreThe Supreme Court Rejects “Mixed Motive” in Title VII Retaliation Cases
By a 5-4 vote, the United States Supreme Court held that the plaintiff in a Title VII retaliation case cannot rely on a “mixed motive” theory. The case is University of Texas Southwestern Medical Center v. Nassar. The case was discussed and previewed in this article. The majority opinion by Justice Kennedy summarized its reasoning as follows: Read More
Read MoreThe Supreme Court Holds That Title VII Imposes Strict Liability on an Employer for Harassment by a Supervisor Only if the Supervisor Has the Power to Take “Tangible Employment Actions”
By a 5-4 vote, the Supreme Court narrowed the circumstances under which an employer can be held strictly liable for the actions of a supervisor in an harassment case. The case is Vance v. Ball State University (June 24, 2013). In a typical harassment case, one of the key issues is whether the employer is Read More
Read MoreEEOC Wins Landmark Title VII Case on Breast Feeding and Lactation
The Fifth Circuit issued a landmark decision in a sex discrimination case involving breast feeding and lactation in EEOC v. Houston Funding II, Ltd. (5th Cir. May 30, 2013). The Fifth Circuit held that discrimination based on an employee’s post-childbirth lactation is prohibited by Title VII, but expressed doubt about whether, as the law existed Read More
Read MoreFifth Circuit: Volunteer Firefighters Are Not “Employees” Under Title VII
In a case of first impression, the Fifth Circuit considered whether voluntary firefighters are “employees” for purposes of Title VII in Juino v. Livingston Parish Fire District No. 5 (5th Cir. May 30, 2013). The Fifth Circuit held that volunteer firefighters are not covered by Title VII. The plaintiff was a volunteer firefighter who claimed that Read More
Read MoreFifth Circuit Reverses Summary Judgment in Gender Discrimination and Retaliation Case Involving LSU
The Fifth Circuit considered an appeal from a summary judgment in a case involving claims of gender discrimination and retaliation. The case is Haire v. Board of Supervisors of Louisiana State University (5th Cir. May 21, 2013). The plaintiff was an LSU police officer. She applied for the vacant position as chief of police. LSU installed Read More
Read MoreTexas Adopts the Uniform Trade Secrets Act
Historically, trade secret issues in Texas were a matter of common law. As previously discussed on this blog, the Texas legislature finally considered adopting the Uniform Trade Secrets Act this year. The proposed Act is quoted in the prior blog article. The legislature passed the Act, and the governor signed it into law on May Read More
Read MoreDallas Court of Appeals: The Texas Workforce Commission’s Improper Processing of a Charge of Discrimination Is Not a Jurisdictional Bar to Suit
The processing of a Charge of Discrimination by the EEOC or the Texas Workforce Commission can present a number of vexing issues in employment discrimination cases. The Dallas Court of Appeals addressed one of these issues in Dallas County Southwestern Institute of Forensic Sciences and Medical Examiner Department v. Ray (published opinion dated May 16, Read More
Read MoreMcAllen Federal Court Finds Direct Evidence of Race and Sex Discrimination Against a White Applicant
Judge Michaela Alvarez of the Southern District of Texas decided a motion for summary judgment case involving allege race discrimination and sex discrimination in Fischer v. City of Donna, No. 7:12-CV-242 (May 14, 2013). The plaintiff, who is a white female, applied for the position as city manager of Donna, Texas. She was not hired. Instead, Read More
Read MoreFifth Circuit Rejects Title VII Claims Based on Public Displays of Affection by Co-Workers
The Fifth Circuit considered sex discrimination and retaliation claims in Kummerle v. EMJ Corp., No. 12-10869 (5th Cir. May 16, 2013) (unpublished). In affirming the district court’s dismissal of the case, the Fifth Circuit offered an analysis that may be disturbing to plaintiffs. The facts are simple. The plaintiff’s male supervisor and a female co-worker Read More
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