June 9, 2003 - The U.S. Supreme Court held in Desert Palace, Inc. v. Costa, that direct evidence of discrimination is not necessary to trigger the burden-shifting feature of a mixed motive case.  This decision should make it easier for plaintiffs to force employers to bear the burden of proving that their reason for terminating an employee would have resulted in the same action even if the discriminatory reason had not been present.  Although this sounds like gibberish to anyone other than an employment lawyer, it is a surprising decision that will help employees.

August 8, 2001 - The U.S. Court of Appeals for the Ninth Circuit reversed a dismissal of an FMLA claim and ordered summary judgment for the plaintiff in Bachelder v. America West Airlines, Inc., No.99-17458.  The decision included several holdings that are significant for employees.  First, the court held that when an employer does not notify its employees of the method it uses for calculating an employee's use of FMLA leave, the court will use the method most favorable to the employee.  Second, the Court noted a distinction between discrimination in retaliation for opposition to unlawful practices and employer conduct that interferes with protected rights.  Applying traditional federal labor law principles, the court held that if an employer considers the employee's use of protected FMLA leave as a negative factor in making an adverse employment decision, the employer is liable for a violation of the FMLA.  The Court rejected the McDonnell Douglas burden shifting analysis that applies in most discrimination cases, and also held that the employer's good faith belief that the leave taken was not covered by the FMLA is irrelevant. 
     This case goes a long way to clarify the responsibilities that employers have in following the FMLA, and it solidifies some important employee protections. 

May 24, 2001 - The U.S. Court of Appeals for the Ninth Circuit reversed a judge's decision to vacate a jury verdict and reinstated the verdict of $237,345.00 awarded to a public school groundskeeper.  The case, Johnson v. Paradise Valley Unified School Dist., No. 99-17530, held that the plaintiff had given the jury sufficient evidence that she was discriminated against based upon the perception that she was disabled.  The Court criticized the lower court judge for substituting his own assessment of the evidence in place of the jury's.  Perhaps the most important aspect of the case was the fact that the employer refused to allow the employee to return to work without a full release.  This became evidence that the employer regarded the employee as unable to perform any of a broad class of jobs, i.e. the employer regarded her as disabled even though she was not.  Employers who refuse to offer light duty to employees returning from injury leave may now be vulnerable to claims of discrimination.  Good news for the little guys. 

April 2, 2001 - Last week the United States Supreme Court held that the Federal Arbitration Act applies to  arbitration agreements contained in employment contracts.  In Circuit City Stores, Inc. v. Adams, the justices held in a 5-4 decision that the FAA's exclusion of employment contracts only applied to seamen and certain other transportation workers.  The ruling may encourage more employers to adopt policies that require binding arbitration of all employment disputes.  Mandatory arbitration of employment disputes has been the subject of much litigation over the past several years, and issues such as who pays the cost of arbitration, how the arbitrator is chosen and what authority the arbitrator is given will continue to be controversial.