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McKenna Employment Bulletin – July 2012

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Court Recognizes Cause Of Action For Retaliatory Hostile Work Environment

In Gowski v. Peake, 2012 WL 1986446 (11th Cir. 2012), the U.S. Court of Appeals for the Eleventh Circuit, joining every other circuit, determined that it would recognize a cause of action under Title VII for retaliatory hostile work environment. The Court found that recognizing the cause of action was consistent with Title VII Congressional intent and the EEOC’s interpretation of the statute. The Court found that recognizing a cause of action for retaliatory hostile work environment would prevent supervisors from deterring protected conduct.


Voluntary Demotion Is Adverse Action

In Hicks v. Forest Preserve Dist. Of Cook County, Ill., 2012 WL 1324084 (7th Cir. 2012), an African-American employee voluntarily agreed to a demotion to a non-mechanic position at the employer’s central garage. The Court held this was an adverse employment action sufficient to establish a prima facie case of retaliation under Title VII. The Court found that the employee did not request the demotion, but was given a choice between taking the demotion or staying in his current position but facing termination. In addition, the demotion came with a significant pay cut.


Gender Neutral Criticism Is Not A Basis For A Cause Of Action For Gender Stereotyping

In Morales-Cruz v. University of Puerto Rico, 2012 WL 1172064 (1st Cir. 2012), various university officials described the plaintiff professor as “fragile,” “immature,” and “unable to handle complex and sensitive issues.” These officials also said that the plaintiff engaged in “twisting the truth” and exhibited a “lack of judgment.” The Court held that these statements did not support a reasonable inference of gender stereotyping in an action under Title VII because those descriptions were gender-neutral. Sometimes the officials referred to the plaintiff as “that girl.” The Court held that this characterization did not lead to a plausible conclusion that her probationary term was not extended because of stereotypes associated with her gender.





U. S. Department Of Labor Releases Fact Sheet That States When Interns Will Be Viewed As Employees Entitled To Minimum Wage

The U.S. Department of Labor’s Fact Sheet No. 71 addresses internship programs under the FLSA. It says that interns in the “for-profit” private sector will be viewed as employees entitled to minimum wage and overtime payments unless certain criteria are met. The six criteria include:


  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Termination For Refusing To Certify Subpoenaed Medical Records Is Not Retaliatory Discharge

In Ulm v. Memorial Medical Center, 2011 Il app (4th) 110421 (January 6, 2012), a former employee sued the former employer for among other things retaliatory discharge in violation of the Illinois Whistleblower Act. The plaintiff had refused to certify subpoenaed medical records, expressing concern for the privacy of the new electronic system for preparing and storing records. The Court entered judgment for the employer and held that simply refusing to certify medical records did not constitute retaliatory discharge because it could not have violated any clearly mandated public policy of the State of Illinois. Further, it did not violate the Illinois Whistleblower Act because the Whistleblower Act covers complaints to governmental agencies.


This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Publications



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