Anderson, Bottrell, Sanden & Thompson

1. INTRODUCTION
2. SEXUAL HARASSMENT
1. Sexual Harassment Defined
2. Two Types of Sexual Harassment Claims
1. Quid pro quo harassment:
2. Hostile work environment harassment:
3. Same-Sex Sexual Harassment
4. Defining the Term "Unwelcome"
5. Potential Damages
6. Employer's Affirmative Defenses
1. EEOC Standards:
2. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998):
3. Faragher v. City of Boca Raton, 524 U.S. 775 (1998):
3. THE AGE DISCRIMINATION IN EMPLOYMENT - ACT OF 1967 ("ADEA")
1. General Overview of ADEA
2. Damages
3. Burden of Proof
4. The Older Workers Benefit Protection Act of 1990 (OWBPA)
4. AMERICANS WITH DISABILITIES ACT OF 1990 ("ADA")
1. General Overview of ADA
2. Damages
5. FAMILY AND MEDICAL LEAVE ACT (FMLA):
1. General Overview of FMLA
2. Employee Notice Requirements
3. Damages
6. OVERVIEW OF RECENT U.S. SUPREME COURT AND FEDERAL COURT CASES
1. Davis v. Monroe County Bd. Of Educ., 119 S.Ct. 1661 (1999)
2. Cleveland v. Policy Management Sys. Corp., 119 S.Ct. 1597 (1999)
3. Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999)
4. Murphy v. United Parcel Serv., Inc., 119 S.Ct. 2133 (1999)
5. Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir. 1999)
6. Butler v. City of Prairie Village, 172 F.3d 736 (10th Cir. 1999)
7. Combs v. Central Texas Annual Conference of the United Methodist Church, 173 F.3d 343 (5th Cir. 1999)
8. Trezza v. The Hartford, Inc., 1998 WL 912101 (S.D.N.Y. 1998)

2000 FEDERAL EMPLOYMENT LAW UPDATE

(Presented by Michelle M. Donarski)

1. INTRODUCTION

The purpose of this presentation is to provide an update of recent federal case law and an overview of the following federal laws: Title VII sexual harassment, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of 1990, and the Family and Medical Leave Act.

Before a federal discrimination lawsuit can be initiated, the charging party must file an administrative charge with the EEOC and obtain a right to sue letter. The complainant may request the right to sue letter any time after filing the charge. Once the charging party receives a right to sue letter from the EEOC, the charging party must commence a lawsuit within 90 days of receipt of the letter.

2. SEXUAL HARASSMENT

Title VII prohibits, inter alia, sex discrimination which the United States Supreme Court has held to encompass sexual harassment in the workplace. Harris v. Forklift Systems, Inc., 114 S.Ct. 267 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); and 42 U.S.C.A. § 2000e-2(a)(1).

1. Sexual Harassment Defined

What is sexual harassment? It depends on whom you ask. The severity of sexual harassment must be judged by a "reasonable person" standard. It also must be so offensive as to alter the terms and conditions of the employee's employment.

Since 1980, the EEOC has used the following definition of sexual harassment:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

29 C.F.R. § 1604.11(a).

2. B.Two Types of Sexual Harassment Claims

Sexual harassment encompasses a broad range of conduct. Courts, however, have recognized two types of sexual harassment:

1. Quid pro quo harassment:

Quid pro quo is Latin meaning something for something. This form of harassment typically arises in the context of a superior-subordinate relationship and occurs when submission to or rejection of unwelcome sexual conduct by an employee is used as the basis for employment decision affecting such employee. 29 C.F.R. § 1604.11(a)(2).

To make a prima facie case of quid pro quo harassment, a plaintiff must prove:

1. he or she was a member of a protected class;
2. he or she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
3. the harassment was based on sex; and
4. submission to the unwelcome advances was an express or implied condition for receiving job benefits or refusal to submit resulted in a tangible job detriment.

Once plaintiff has proven a prima facie case of quid pro quo, the burden shifts to the employer to rebut an element of the employee's prima facie case (e.g., proving that the alleged sexual advances were welcomed), or to assert a legitimate nondiscriminatory reason for the adverse employment action (e.g., plaintiff's poor work performance or violation of company policy).

2. Hostile work environment harassment:

Hostile work environment encompasses a much broader range of conduct, including non-sexual conduct, so long as there is a Title VII violation that created the hostile work environment. For sexual harassment to be actionable under a hostile work environment claim, it must be sufficiently severe or pervasive to alter the conditions of the employment and creative an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). A psychological injury is not a prerequisite to recover under this theory. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) (stating that "so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, . . . there is no need for it also to be psychologically injurious.")

The harassing conduct must be assessed from both an objective (reasonable person) and subjective standpoint to determine whether it is sufficient to create a hostile or abusive work environment. The United States Supreme Court in Harris explained:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is not Title VII violation.

Harris v. Forklift Systems, Inc., 114 S.Ct. at 370. The Court also delineated various factors to be considered in assessing whether conduct creates a hostile work environment:

This is not, and by its nature cannot be, a mathematically precise test. [W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

Id. at 371.

To establish a prima facie case of hostile environment harassment, a plaintiff must prove:

1. he or she belongs to a protected class;
2. he or she was subject to unwelcome sexual harassment;
3. the harassment was based on sex;
4. the harassment affected a term, condition, or privilege of employment; and
5. the employer knew or should have known of the harassment and failed to take proper remedial action.

This five factor test is also used to assess hostile work environment claims under other Title VII discriminatory practices.

The employer may rebut the employee's prima facie showing of hostile work environment by proving that the events did not take place or by showing that they were isolated or trivial. If the plaintiff has proven the existence of a hostile work environment, an employer cannot avoid liability by proving that its actions were motivated by legitimate, non-discriminatory reasons. Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326 (8th Cir. 1994) (explaining that an employer "could never have a legitimate reason for creating a hostile work environment.")

3. Same-Sex Sexual Harassment

In March 1998, the United States Supreme Court recognized same-sex sexual harassment as actionable under the Civil Rights Act (Title VII). Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). Oncale involved a male oil crew worker who worked on an oil platform in the Gulf of Mexico. He was allegedly subjected to sexual harassment, sexual assault and threatened with rape. The Court in Oncale recognized that same-sex harassment is covered by Title VII when the victim can demonstrate that he or she has been subjected to quid pro quo or hostile environment harassment because of his or her gender. However, ordinary socializing in the workplace, such as male-on-male horseplay or inter-sexual flirtation are beyond the scope of Title VII.

The employee need not show that the harassment occurred because of the employee's sex. Rather, the employee is only required to satisfy the definition of "sexual harassment." There is no requirement to prove that the harassment affected one gender differently than the other, or that the harasser is homosexual.

4. Defining the Term "Unwelcome"

One of the most contested elements of the prima facie test is whether the employee was subjected to "unwelcome" sexual harassment. The threshold for determining whether conduct is unwelcome is "that the employee did not solicit or incite it, and the employee regarded the conduct as undesirable or offensive." Burns v. McGregor Electronic Indus., Inc., 955 F.2d 559, 565 (8th Cir. 1992). However, "the fact that the sex-related conduct was 'voluntary' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. . . . The correct inquiry is whether [the complainant] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation . . . was voluntary." Meritor, 477 U.S. at 68.

The issue of whether the conduct was unwelcome is a factual determination and focuses on the conduct of the plaintiff. There does not appear to be a clear definition on what may or may not be unwelcome sexual harassment, and courts have struggled to define the line between what is welcome and what is unwelcome.

5. Potential Damages

Prior to the enactment of the Civil Rights Act of 1991, sexual harassment plaintiffs typically relied upon state discrimination statutes, or common law tort claims, such as intentional infliction of emotional distress, to recover punitive damages or damages for emotional pain and suffering. Under the Civil Rights Act of 1991, employees who prove sexual harassment can recover lost wages and benefits, compensatory damages, attorneys' fees, and punitive damages. 42 U.S.C.A. § 1981A(b). Compensatory damages include future pecuniary loss as well as emotional distress, pain and suffering and mental anguish.

Title VII, places a cap on the total amount of money damages an employee may receive. This amount depends on the number of employees an employer has and ranges from $50,000 for employers with fewer than 101 employees to $300,000 for employers with more than 500 employees. These caps apply per employee.

The Civil Rights Act of 1991 also provides that any party may demand a jury trial for Title VII claims when the plaintiffs seeks either compensatory or punitive damages. 42 U.S.C.A. § 1981A(c)(1). The court may not inform the jury of the caps placed on the award of compensatory and punitive damages. 42 U.C.S.A. § 1981A(c)(2).

6. Employer's Affirmative Defenses

1. EEOC Standards:

EEOC recently announced standards of liability for employers for unlawful harassment by supervisors under Title VII of the 1964 Civil Rights Act. The EEOC standards implement the two 1998 Supreme Court decisions - Burlington Industries, Inc. v. Ellert, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998) - which provided an affirmative defense for employers who could be vicariously liable for its supervisor's sexually harassing conduct. The affirmative defense for employers consists of an effective anti-harassment policy and complaint procedure. The EEOC guidance implements this affirmative defense and specifically indicates that an employer's anti-harassment policy should include the following:

1. A clear explanation of prohibited conduct.
2. Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation.
3. A clearly described complaint process that provides accessible avenues to the complainant.
4. Assurance that the employer will protect the confidentiality of harassment complainants to the extent possible.
5. A complaint process that provides a prompt, thorough, and impartial investigation.
6. Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.
2. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998):

The U.S. Supreme Court placed more liability on employers by holding employers vicariously liable for the inappropriate conduct of supervisory or managerial employees, provided the plaintiff establishes quid pro quo or hostile environment harassment by that managerial or supervisory employee. The plaintiff need not show that the employer knew or should have known of the conduct.

Ellerth also recognized an affirmative defense for an employer, which comprises of two necessary elements:

1. that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
2. that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the harm. Examples include a disseminated anti-harassment policy and complaint procedure promulgated by the employer and plaintiff's failure to comply with the policy and complaint procedure.
3. Faragher v. City of Boca Raton, 524 U.S. 775 (1998):

This case used the standard enunciated in Ellerth to hold the City of Boca Raton liable for hostile work environment harassment. Although the city had a policy against sexual harassment, it had failed to disseminate that policy to its lifeguard employees and had failed to establish a complaint procedure. Nonetheless, the plaintiff had complained of hostile environment harassment to a supervisor who had taken no action. The absence of a disseminated anti-harassment policy prevented the city from relying on the affirmative defense articulated by the Court in Ellerth.

7. THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 ("ADEA")

1. General Overview of ADEA

The ADEA is located at 29 §§ U.S.C. 621-634 and applies to employers (including federal, state, and local governments) with 20 or more employees. The ADEA protects individuals (employees and job applicants) who are 40 years of age or older from employment discrimination based on age. On the rare occasion, a job may specify an age limit, only if age is shown to be a "bona fide occupational qualification" reasonably necessary to the essence of the business.

An inference of age discrimination is appropriate only when the employer favors "substantially" younger people, which is defined as ten years or more. Scott v. Parkview Memorial Hosp., 175 F.3d 523 (7th Cir. 1999). The ADEA preempts claims brought under section 1983, and thus affords the sole federal remedy for claims of age discrimination. Migneault v. Peck, 158 F.3d 1131 (10th Cir. 1998). The immunity defense, pursuant to the Eleventh Amendment, can be utilized in ADEA cases. Migneault v. Peck, 158 F.3d 1131 (10th Cir. 1998).

2. Damages

Damages collectible under an ADEA claim include back pay, lost benefits, and future wage loss. Liquidated damages (e.g., double back pay) are only allowed when a willful violation is proven. Punitive damages and attorneys' fees are not provided for under the ADEA. The ADEA provides for a trial by jury. The statute of limitations is 300 days from date of the discriminatory action.

3. Burden of Proof

The employee (plaintiff) has the initial burden of proving, by a preponderance of the evidence, that discrimination occurred. The employee must show:

1. that he/she belongs to a minority;
2. that he/she applied for and was qualified for a job/promotion/raise, etc.;
3. that despite employee's qualifications, he or she was rejected; and
4. that after such rejection, person(s) with similar qualifications received the job/promotion/raise, etc.

Proof of these elements creates a presumption that the employer unlawfully discriminated against the employee. The employer must then rebut this presumption by proving, by a preponderance of the evidence, that the employer's action was motivated by one or more legitimate, nondiscriminatory reasons (e.g., poor work performance, reduction in force, etc.). If the employer can prove this, the burden then shifts back to the employee to prove that the reason(s) offered by the employer are untrue.

4. The Older Workers Benefit Protection Act of 1990 (OWBPA)

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

An employee may agree to waive his or her rights or claims under the ADEA, so long as the waiver is:

1. voluntary;
2. in writing and fully understandable to the releasing employee;
3. specifically refers to ADEA rights or claims;
4. does not waive rights or claims that may arise in the future;
5. must be in exchange for valuable consideration, which is in addition to any benefits or wages employee, was already entitled;
6. must advise the individual in writing to consult an attorney before signing the waiver; and
7. must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.

DISCLAIMER:

If an employer requests an ADEA waiver in connection with an exit incentive program or an employee termination program, the following additional requirements must be included in the waiver:

8. description of class or group of employees that are eligible for the program, including a description of the eligibility factors and applicable time limits; and
9. job titles and ages of all employees eligible or selected for the programs and ages of all employees in the same job classification who are not eligible or selected.
29 U.S.C.A. § 626(f).

The OWBPA does not create an irrevocable 21-day power of acceptance for employees offered separation agreements that include waivers of ADEA claims. Ellison v. Premier Salons Int'l, Inc., 164 F.3d 1111 (8th Cir. 1999).

8. AMERICANS WITH DISABILITIES ACT OF 1990 ("ADA")

1. General Overview of ADA

The ADA applies to employers who employ 15 or more employees and who engage in an industry affecting commerce. 42 U.S.C.A. § 12111(5). It protects qualified applicants and employees who have a recognized disability. "Disability" includes physical or mental impairments that substantially limit one or more major life activities. A "qualified" individual is someone with a disability that can perform the essential functions of the job, with or without reasonable accommodation. 42 U.S.C.A. §§ 12111 and 12112.

Employers with 15 or more employees must reasonably accommodate qualified employees with a disability to allow performance of the job's essential functions. Examples include job restructuring, part-time or modified work schedules, reassignment to a vacant position, modification of equipment, modification of policies, etc. The ADA does not require an employer to create a light duty position for a qualified individual with a disability. Furthermore, a reasonable accommodation is not required if it would impose undue hardship on the employer. Examples of undue hardship include significant difficult or expense. The obligation to provide reasonable accommodation is limited to the known disability. 42 U.S.C.A. §§ 12111 and 12112.

Employers may not ask disability related questions or conduct medical examinations until after it makes a conditional job offer to the applicant. However, an employer can inquire of an applicant's ability to perform the functions of the job. 42 U.S.C.A. § 12112. Once a job offer is made, an employer can ask about an individuals physical and mental health, including the individual's workers' compensation history, prior sick leave usage, illnesses, diseases, and impairments. Such questioning should be job-related and consistent with business necessity. Furthermore, all applicants in the same job category must be subjected to the same examination or inquiry, regardless of disability. 42 U.S.C.A. § 12112.

If applicant is not offered a job because of a disability, the employer must demonstrate that the reason for the rejection is job-related and consistent with business necessity. The employer must also notify the individual (orally or in writing) if his or her potential job placement was adversely affected by the results of a post-offer medical examination or disability related question. Medical information must be kept confidential. This means that the medical information must be collected and maintained on separate forms and in separate files. 42 U.S.C.A. § 12112(d)(4).

2. Damages

Damages include compensatory damages for future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish and loss of enjoyment of life, punitive damages, reasonable attorney's fees, and other non-pecuniary losses. Compensatory and punitive damages are not allowed in reasonable accommodation cases where good faith is shown. 42 U.S.C.A. §§ 12205 and 12117.

3. FAMILY AND MEDICAL LEAVE ACT (FMLA):

1. A.General Overview of FMLA

The FMLA applies to employers who employ 50 or more employees and who engage in an industry affecting commerce. 29 U.S.C.A. § 2611. The employee must have been employed by the employer for at least 12 months and worked at least 1250 hours during the previous 12 months. 29 U.S.C.A. §§ 203(e) and 2611. The FMLA requires employers to provide up to 12 workweeks of leave during any 12-month period to all qualifying employees. 29 U.S.C.A. § 2612(a). Leave may be taken by the employee who is unable to perform the functions of his or her job due to a serious health condition. 29 C.F.R. § 825.115.

The employer can require an employee to first take accrued paid vacation, personal leave, and medical or sick leave as part of the employee's family or medical leave. 29 U.S.C.A. § 2612(d). The employer must maintain coverage under any group health plan on the same conditions that coverage would have been provided if the employee were not on leave. The employer can recover its share of premium payments if the employee fails to return from leave for reasons other than the continuation, recurrence, or onset of a serious health condition, or other circumstances beyond the employee's control. 29 U.S.C.A. § 2614(c).

The employee is entitled to reinstatement to the position held before the leave or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. 29 U.S.C.A. § 2614(a).

2. Employee Notice Requirements

If the employee has notice of the leave, (e.g., anticipated pregnancy due date), the employee must give to his or her employer 30 days notice. If the 30 days notice is not possible, notice must be given as soon as practicable. 29 C.F.R. § 825.303.

The employer can require a medical certification to support the employee's request for leave. An employer can also request periodic medical statements regarding the employee's status and intent to return to work. 29 C.F.R. §§ 825.303, 825.305, 825.306, and 825.307. Medical certifications and other related documents must be maintained in separate confidential files. 29 C.F.R. § 825.500(g).

3. Damages

Damages collectible under the FMLA include actual damages, such as lost wages and benefits; injunctive relief; equitable relief, such as reinstatement or promotion; interest, reasonable attorney's fees and costs. 29 U.S.C.A. § 2617.

4. OVERVIEW OF RECENT U.S. SUPREME COURT AND FEDERAL COURT CASES

1. Davis v. Monroe County Bd. Of Educ., 119 S.Ct. 1661 (1999)

The Supreme Court held that if a school board manifested deliberate indifference to severe or pervasive student-on-student sexual harassment, such that the victim is deprived of access to educational opportunity or school benefits, the school board may be liable for damaged under Title IX.

Davis was a fifth grade student who was subjected to persistent sexual harassment by a male student. The harassing conduct lasted over five months. Throughout this period, Davis and her mother reported the incidents to teachers and to the principal. No disciplinary action was taken and no effort was taken to separate the students. The incidents ended when the male student was charged with, and plead guilty to, sexual battery.

The Supreme Court addressed the issue of whether deliberate indifference to known acts of harassment amounts to an intentional violation of Title IX and therefore, supports a private damages action when the harasser is a fellow student. A funding recipient is subject to a private action when the recipient is deliberately indifferent to known acts of teacher-student discrimination. However, student-on-student harassment must be sufficiently severe to fall under the operations of a funding recipient. The Court explained that when a recipient exercises substantial control over the harasser and the environment in which the harassment occurs, the recipient can be found to have exposed its students to harassment. Because the incidents at issue in Davis occurred during school hours and on school grounds, the misconduct was said to have taken place under the operation of the funding recipient.

The Court concluded "that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, and that is so severe or pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school."

2. Cleveland v. Policy Management Sys. Corp., 119 S.Ct. 1597 (1999)

After suffering a disabling stroke and losing her job, plaintiff applied for and received SSDI benefits claiming she was unable to work due to her disability. Plaintiff also filed a lawsuit under the ADA claiming that her former employer, the defendant, had discriminated against her because of her disability. The Supreme Court held that claims for Social Security Disability Insurance (SSDI) and for ADA damages did not necessarily conflict.

The Supreme Court identified situations where no conflict exists, e.g., individuals who qualify for SSDI under administrative rules defining certain physical conditions as per se disabling and yet, are still able to perform the essential functions of their job; and employees whose situations might have changed between the time of the SSDI application and the time of the employment decision. The Court held that the plaintiff was entitled to explain the discrepancy between her statement in her SSDI application that she was totally disabled, and her ADA allegation that she could perform essential functions of her job.

The Court acknowledged situations where SSDI and ADA claims conflict, and explained that in order to survive summary judgment, an ADA plaintiff must explain why her SSDI contention is consistent with the ADA claim. The explanation must be sufficient to warrant a reasonable juror's conclusion that despite earlier SSDI statement, the plaintiff could nonetheless perform the essential functions of her job with or without reasonable accommodation.

3. C.Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999)

The Supreme Court held that severely myopic job applicants, who brought disability discrimination claims challenging an airlines minimum vision requirements for pilots, were not disabled under the ADA. The Court explained that "the determination whether an individual is disabled should be made with reference to measures, such as eyeglasses and contact lenses, that mitigate the individual's impairment."

4. Murphy v. United Parcel Serv., Inc., 119 S.Ct. 2133 (1999)

The Supreme Court held that an employee's high blood pressure did not substantially limit his major life activities when he was medicated and thus the employee was not disabled under the ADA. The determination whether an employee's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs.

5. Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir. 1999)

The Eight Circuit held that the issue of whether an employee furthers harassment by using apparent authority or actual authority is a question of fact. In a concurring opinion, Judge Arnold stated that a single severe act may be actionable under Title VII and that apparent authority would be enough to define an employee as a supervisor because plaintiff thought her assailant made or could have made employment decisions. F.Butler v. City of Prairie Village, 172 F.3d 736 (10th Cir. 1999)

The Tenth Circuit held, consistent with the Seventh and Eleventh Circuits, that supervisors cannot be sued in their individual capacity under the ADA. The Court explained that individual liability under the ADA is precluded for the same reasons that it is precluded under Title VII. Both statutes impose liability only on employers that have fifteen or more employees, and their agents.

6. Combs v. Central Texas Annual Conference of the United Methodist Church, 173 F.3d 343 (5th Cir. 1999)

The Fifth Circuit upheld the validity of the ministerial exception post Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990)(allowing the State of Oregon to interfere with religious organizations by denying unemployment benefits to church employees who used the ceremonial drug peyote). Combs was a female minister who filed a sex and pregnancy discrimination claim against her employer, Central Texas Annual Conference of the United Methodist Church. The Fifth Circuit held that the First Amendment precludes consideration of the female minister's discrimination claims as part of the "ministerial exception" to Title VII. The Court concluded that the ministerial exception protects the freedom of a church to "select those who will carry out its religious mission."

The Court further concluded that it would be impossible for the federal judiciary to determine whether a decision concerning a minister is based on legitimate or illegitimate grounds, without intruding into a realm forbidden by the Free Exercise and Establishment clauses of the First Amendment of the Constitution.

7. Trezza v. The Hartford, Inc., 1998 WL 912101 (S.D.N.Y. 1998)

Recognition of "sex plus" discrimination claim when a plaintiff is discriminated against not solely because of her sex, but because of her sex "considered in conjunction with a second characteristic." The second characteristic was discrimination based on Trezza having young children. The Court explained that Trezza could pursue a Title VII claim alleging that she was unlawfully discriminated against because she had young children and the woman who received the promotion had no children. However, to prevail, Trezza must prove that similarly situated men with young children were treated more favorably that she.