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McKenna Employment Bulletin – June 2012


Individual Supervisors Are Liable Under 42 Usc Section 1981

In Smith v. Bray, No. 11-1935, May 24, 2012 (7th Cir. 2012), the plaintiff alleged a Section 1981 action against a human resources official at the employer alleging that the official conspired with others to retaliate against the plaintiff by getting others to terminate the plaintiff for having complained of racial harassment. The Court acknowledged that even a subordinate employee may potentially be liable individually under Section 1981 for retaliatory conduct. However, the plaintiff failed to present sufficient evidence to establish that his complaint of discrimination motivated the human resources official to seek the plaintiff’s termination. The plaintiff’s only evidence of retaliation consisted of threats of termination made by others and the human resources official’s refusal to return the plaintiff’s telephone calls or to otherwise speak with the plaintiff.  

Denial Of Non-Contractual Benefits Can Be An Adverse Employment Action

In Gerner v. County of Chesterfield, Va., 2012 WL 887597 (4th Cir. 2012), a female employee filed a Title VII suit against her employer for alleged disparate treatment on the basis of sex. The employee alleged that the employer purportedly offered her a less favorable severance package than the purported “sweetheart” severance packages afforded to male employees holding similar positions. The lower court dismissed the employee’s claim on the basis that it failed to allege an adverse employment action because the severance offer was not a contractual entitlement and was made after the employee was terminated. However, the U.S. Court of Appeals reversed the dismissal and held that discriminatory denial of non-contractual employment benefits constitutes an adverse employment action. The Court further held that Title VII protects both current and former employees.  

No Overtime Necessary For Clothes-Changing Excluded By Union Contract

In Sandifer v. U.S. Steel Corp., Nos. 10-1821 and 10-1866 Cons., May 8, 2012 (7th Cir. 2012), the plaintiffs-employees brought an action under the Fair Labor Standards Act alleging that the employer wrongfully failed to compensate them for their time spent walking to and from their locker room at the beginning and at the end of their shifts. The employer and the employees’ union had agreed that clothes-changing activities that occurred in the locker room were not compensable under the collective bargaining agreement. The Court held, therefore, that the alleged “travel time” to and from the locker room was exempt under the Fair Labor Standards      Act. This is because the clothes-changing activities could not be viewed as principal employment activities where they were not compensable under the collective bargaining agreement and the employees could not make the required showing that the travel occurred between two separate principal employment activities.   Thus, the exclusion in the Fail Labor Standards Act for time spent changing clothes is operative under the Fair Labor Standards Act only if excluded by express terms of a collective bargaining agreement.  

Individual Must Have Control Over The Worker To Be A Supervisor For Harassment

In Jajeh v. County of Cook, No. 11-2331, May 2, 2012 (7th Cir. 2012), the plaintiff alleged that the employer subjected the plaintiff to a hostile environment on account of his religion and national origin and then terminated the plaintiff in retaliation for having filed an EEOC charge. The alleged harasser was a supervisor of others, but was essentially a co-worker of the plaintiff because the alleged harasser had no control over the plaintiff’s working conditions. Further, the plaintiff could not show that the employer was negligent in failing to address the plaintiff’s complaints of harassment because the plaintiff failed to identify either his religion or national origin as the basis for the harassment when the plaintiff complained to the employer’s management about the alleged harasser’s conduct. Judgment was also proper with respect to the plaintiff’s retaliation claim because the plaintiff’s termination did not take place until five months after the filing of the plaintiff’s EEOC charge. Furthermore, the plaintiff failed to present evidence that the decision-maker harbored retaliatory animosity or that the employer’s reason for terminating the plaintiff, cost-savings, was unworthy of belief. It made no difference that others expressed to the decision-maker a desire to terminate the plaintiff where those statements took place before the plaintiff filed the EEOC charge.  

Title Vii Does Not Protect The Status Of Illegal Alien

In Cortezano v. Salin Bank & Trust Co., No. 11-1621, May 21, 2012 (7th Cir. 2012), the plaintiff brought a Title VII action alleging national origin discrimination based on the plaintiff’s marriage to a Mexican citizen whose presence in the United States was unauthorized. The employer terminated the plaintiff after the employer became concerned that the plaintiff’s husband was an illegal alien who used fraudulent documents to open accounts in the bank. The Court held that Title VII does not cover any discrimination based on the status of illegal alien.   The Court found that some U.S. Courts of Appeals hold that Title VII protects against discrimination based on the natural origin or race of a spouse. But, that is not this case. Here the termination was based on the spouse’s status as an illegal alien.  

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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