A recent federal court ruling may make it easier for employees to win reverse discrimination lawsuits. The 3rd Circuit Court of Appeals rejected a “heightened” standard adopted by many courts for people charging reverse discrimination and reinstated a white New Jersey postal worker’s suit alleging that he was passed over for promotion because of his race.
Under federal law, a member of a minority group or a woman can make an initial claim of discrimination by showing that he or she was turned down for a job which that person is qualified to do, and that the job remained open. The employer has to show its actions were based not on discrimination, but on legitimate business reasons.
Courts have generally held, however, that the person alleging reverse discrimination must first show background circumstances showing a bias against a majority group. That is, the plaintiff must initially show that the employer tends to discriminate against white people, and that discrimination motivated the employment decision.
The 3rd Circuit rejected such a disparity in placing the burden of proof, and called the background circumstances requirement vague and ill-defined. The court said that a plaintiff charging reverse discrimination need only show that the employer is treating some people less favorably than others based on race, color, sex, religion or national origin.
William E. Adams
One incident, one harassment case
A federal court has ruled that one act of physical aggression by an employee can serve as the basis of a sexual harassment lawsuit — even in cases in which the employee committed no sexual misconduct.
A panel of the U.S. Court of Appeals for the 7th Circuit made the ruling in a case in which the defendant, a jail guard, allegedly battered a female officer at the jail in 1992. The victim’s arm was twisted so badly she needed surgery. Although no explicitly sexual contact occurred, the attacker did use gender-based epithets.
According to the panel’s majority opinion, the offensive conduct doesn’t necessarily have to be “inspired by sexual desire.” The panel cited the Supreme Court’s 1998 opinion in Oncale v. Sundowner Offshore Services Inc., in which the high court found that a claim identifying a workplace as a hostile environment need only be somehow related to the victim’s sex.
In the current case, the opinion said the defendant’s intent to discriminate was shown by his history of verbally abusing only female colleagues. Moreover, the defendant had never been disciplined, and it was the plaintiff, rather than the defendant, who was transferred to a job she deemed inferior.
A dissenting opinion said the case should have been handled as a case of assault, not a sexual discrimination case. A representative of the Cook County state’s attorney’s office, which handled the appeal for the defense, said a petition for rehearing will be filed shortly.
William E. Adams
Records: Keep or toss?
You probably sometimes feel swamped by old records; other times, you’re terrified of throwing anything out. Here is a quick guide of what to keep and for how long:
Forever — Never throw out tax records or related documents, mostly in case the IRS gets curious about them. This includes tax returns, correspondence relating to tax returns, audit reports, financial statements and legal correspondence. Also preserve eternally contracts, real estate transaction documents and leases, and corporate records, all of which may be needed in connection with lawsuits. With employment-related lawsuits increasingly common, keep employment-related records indefinitely.
Six years — Other records which relate to tax returns only need to be kept six years from the date of the return or the date the return is due, whichever is later. This includes financial records such as bank statements, deposit slips and sales records, employee expense records, including expense reports and supporting documentation, and income records such as W-2 and 1099 forms.
Three years — This group includes documents which can be tossed three years after the filing date or due date, whichever is later, of the associated tax returns. This includes canceled checks, paid invoices, payroll records and depreciation schedules, and other documents related to expenses, such as 1098s for mortgage interest received, receipts for charitable donations and real estate tax bills. Inventory records should be kept for at least three years, but much longer if your company uses last-in, first-out inventory accounting.
Eileen R. Sisca
Law briefs is compiled by attorneys from Eckert Seamans Cherin & Mellott, a national law firm based in Pittsburgh.
