I recently told the students in my Employment Discrimination class that we don’t see many claims brought under Section 1981 of the Civil Rights Act of 1866. As if to prove me a liar, the Eighth Circuit just this week affirmed a grant of summary judgment in a retaliation case under that very Civil War era statute.
Less than two years ago, the United States Supreme Court limited the availability of arbitrations in class action cases when it decided that a party may not be compelled under the Federal Arbitration Act to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758 (2010).  Two weeks ago, in a case featuring Twin Cities FLSA heavyweights Nichols, Kaster and Dorsey and Whitney, U.S. District Court Chief Judge Michael Davis (D. Minn.) has added some nuance to that general rule in his decision in Mork v. Loram Maintenance of Way, Inc., (No. 11-2069, January 9, 2012).
AÂ unanimous Supreme Court today confirmed what a number of Courts of Appeal have held over the years:Â the First Amendment prohibits certain employees of Church organizations from suing for employment discrimination.
The Minnesota Court of Appeals last week highlighted an important new exception to the general rule that an employee who commits misconduct is not eligible for unemployment compensation.
Last week, the Eighth Circuit Court of Appeals reaffirmed the principle that a union may waive its members’ rights to bring employment-related claims in court and require those claims to be decided in binding arbitration.
A recent decision by Senior Judge David Doty in an inflammatory racial discrimination case arising in the Red Wing public schools provides a good overview of claims that a student who has been harassed based on her race might bring against a school district and its officials, focuses attention on the little-known Title VI (not its more popular sibling Title VII), and perhaps even offers a lesson to school officials.
The 8th Circuit recently issued a major ruling in a significant class action race discrimination lawsuit in Bennett v. Nucor Corp.  Nucor is a large steel manufacturer with a production plant in Blytheville, Arkansas. The plaintiffs initiated race discrimination claims against the company in 2003.  After the district court denied
the plaintiffs’ motion for class certification and dismissed their disparate
impact claims, the six individual plaintiffs tried their disparate treatment
claims to a jury and were each awarded $200,000 in damages. Cross appeals resulted.
Much of the Court’s decision addresses evidentiary issues specific to this case. There are, however, discussions of several points of interest to practitioners and others:
The Minnesota Court of Appeals issued an important decision last week clarifying the standard for imposing “aiding and abetting” liability under the Minnesota Human Rights Act. Going forward, a plaintiff will have to prove that a defendant both knew that another person’s conduct constituted a violation of the act and also gave “substantial” assistance or encouragement to that person’s conduct.
The Eighth Circuit Court of Appeals issued a ruling last week affirming Wal-Mart’s right to fire an African-American manager for a seemingly minor violation of its “Working Off The Clock” policy. The case is an important reminder of the court’s rule in evaluating employer’s decisions.
Plaintiff Chestine Clay was manager of the Vision Center at Wal-Mart’s store in Bloomington, Minnesota. Beginning in 2005, Clay complained several times about the behavior of several co-workers, which she viewed as racially discriminatory. Wal-Mart investigated but concluded that race was not a factor.
In August 2006, one the employees that Clay supervised asked Clay to call her to let her know how Clay was doing. Clay called the employee at home after-hours, and they had a 90 minute conversation that included some work-related issues. Several days later, the employee mentioned to the Bloomington store manager that she and Clay had talked after-hours about work issues. The store manager informed the employee that she should be compensated for the time she spent on the phone with Clay. Two days later, the District Manager who was Clay’s immediate supervisor told Clay that the phone call had violated Wal-Mart’s “Working Off the Clock” policy, which prohibits managers from requesting that associates work off the clock, and that because of this violation Clay was being fired.
Clay sued, but the trial court dismissed her claim on summary judgment, finding that even though the outcome seemed harsh, there was no evidence that Clay’s race had played any role in the decision.
A decision last week by Judge Ann Montgomery in RSM McGladrey v. Epp should be required reading for all attorneys who draft employment agreements, especially those with non-competition and arbitration provisions.
The defendants were managing directors of RSM, working out of its New York office, specializing in RSM’s health care practice. As a condition of their employment, each signed a Managing Director Employment Agreement, which includes covenants restricting the solicitation and servicing of certain RSM clients for a period of two years after termination of employment.  The Employment Agreement also has provisions regarding enforcement, preliminary equitable relief, and arbitration.
What might have otherwise been a routine review of the actions of the National Labor Relations Board instead resulted in an opinion from the Eighth Circuit Court of Appeals in which all three members of the panel wrote separately, reflecting a broader national debate over the effect of vacancies on the NLRB.
The case, Osthus v. Whitesell, arose when Whitesell purchased a manufacturing facility in Iowa. In May 2006, Whitesell began negotiations with the union representing the facility’s production and maintenance workers. Negotiations eventually broke down, and in April 2009 Whitesell implemented its final offer. The NLRB filed administrative charges and sought injunctive relief, which was granted by the District Court. Whitesell appealed to the Eighth Circuit.
I have written about religious accommodation issues before here and here.  Usually, these are tough cases for employees/plaintiffs to make. In a decision earlier this week, however, Sr. U.S. District Court Judge Richard Kyle (D. Minn.) denied a motion for summary judgment on a religious accommodation case in a decision that suggests that obtaining summary judgment in these types of cases could become more difficult.
Maroko is a Seventh Day Adventist who went to work for Werner, a trucking company. After his position was terminated, he sued for religious discrimination.