American Association for Justice
2008 Annual Convention,
July 14, 2008

Employment Discrimination Law Update

By Richard T. Seymour*

Click here to download a PDF version of this paper

I.       The Statistics


13,107 new EEO Cases were filed in Federal district courts in the twelve months ending Sept. 30,

2006, compared to 24,174 in 1997. The striking figure is that there has been a 45.8% decline since 1997 in the number of new fair employment cases filed in Federal district courts.

II.       The EEOC


From FY 1997 to FY 2007, there were significant differences in the types of discrimination charges

filed. Equal Pay Act charges declined 27.9%, and ADA charges declined 2.1%.  Race discrimination charges increased only 4.5% and sex discrimination charges increased only 0.4%.  By contrast, age discrimination charges increased 21.0%, national origin discrimination charges increased 40.0%, retaliation charges under all statutes increased 46.5%, and religious discrimination charges increased 68.5%.

III.      The Constitution, Statutes, and Rules


A.       The First Amendment


Charles v. Grief, __ F.3d __, 2008 WL 788618 (5th Cir. March 26, 2008) (No. 07-50537),

affirmed the lower court’s denial of qualified immunity to the defendant official of the Texas Lottery Commission, as to plaintiff’s § 1983 claim that he was fired in retaliation for complaining of racial discrimination and mismanagement by the Commission. The court held that plaintiff complained as a private citizen, not as a Commission employee.  The case provides a useful road map for developing the facts—where available—to meet the Garcetti test.

B.       The First and Fourteenth Amendments as to the Ministerial Exception


Rweyemamu v. Cote, __ F.3d __, 2008 WL 746822 (2d Cir. March 21, 2008) (No. 06-1041-cv),

affirmed the dismissal for lack of jurisdiction of the plaintiff priest’s promotional and termination claims against the Bishop of his diocese.  The court stated at p. *8 that “our limited precedent to date supports the following propositions: (1) Title VII and the ADEA are not inapplicable to religious organizations as a general matter; (2) we will permit lay employees—but perhaps not religious employees—to bring discrimination suits against their religious employers; and (3) even when we permit suits by lay employees, we will not subject to examination the genuineness of a proffered religious reason for an employment action.”

C.       42 U.S.C. § 1981


       Application to Municipalities


Arendale v. City of Memphis, __ F.3d __, 2008 WL 731226 (6th Cir. March 20, 2008) (No. 07-5230),

affirmed the grant of summary judgment to defendant on plaintiff’s § 1981 claim, holding that § 1981 does not allow a private cause of action against municipalities.  Commen