In Blankenship v. Caterpillar Global Mining, LLC, the Court denied an employer’s motion for summary judgment on the grounds that the Plaintiff, an applicant for employment who the employer had not hired, had presented sufficient evidence to create a jury question about whether the employer’s reason for failing to hire her was a pretext for gender discrimination under the West Virginia Human Rights Act (“WVHRA”). The Court held that, at the summary judgment stage, an applicant plaintiff need only provide circumstantial evidence that could lead a jury to infer a discriminatory motive in the employer’s refusal to hire. With regard to establishing pretext, if the employer has articulated a nondiscriminatory reason for its refusal to hire then the applicant need only provide evidence that would raise a question about whether employer’s offered reason was a pretext for discrimination. Discrimination need not be the sole reason behind the employer’s refusal to hire so long as the applicant can put forth evidence showing that discrimination played a significant part in the employer’s adverse decision.
In McComas v. ACF Industries, LLC, the Supreme Court of Appeals reversed a circuit court’s dismissal in favor of an employer in a deliberate intent case. The plaintiff was a welder employed by ACF which operated an industrial plant for the construction of railroad cars. The plaintiff was directed by his foreman to go to a section of the ACF plant to begin building sides for railroad cars. The area where the plaintiff and other employees were sent to work was dark, and turning on the electric power was necessary for lighting the area and powering the welding machines used to build the cars. Initially, the employees attempted to turn the power on by using the individual circuit breakers. When that attempt was unsuccessful, the plaintiff approached an adjoining 480-volt fused, switch box. The box was enclosed and the side-handle was down in the “off” position. When plaintiff raised the handle to the “on” position, an arc blast blew him backwards and to the floor. Despite wearing protective gear, the plaintiff suffered severe burns to 25% of his body. The Plaintiff filed a deliberate intent suit against his employer under the 2005 version of W. Va. Code 23-4-2(d)(2)(ii). At that time, the deliberate intent action could be satisfied only if a plaintiff could prove the following:
Plaintiff’s lawyers will be lamenting the Supreme Court’s decision in Nassar as a stunning blow to employment retaliation suits for years to come. In a 5 to 4 decision, the Court held that unlike “status-based” discrimination (i.e. discrimination on account of sex, religion, color, race, and national origin), employer retaliation for an employee’s opposition, complaint, or effort to seek remedy for unlawful discrimination requires a showing that the adverse employment action would not have occurred “but for” the employee’s act.
As health care costs continue to rise, many employers are considering creative solutions for keeping costs low without drastically changing the benefits offered to active employees. Active employees who have spouses on Medicare or who are themselves eligible for Medicare may have become more attractive in the cost-benefit analysis done by employers. Some employers report rate jumps of an average of 25% per year in the past four years for Medicare eligible spouses of active employees. But, don’t be fooled. Employers must resist the temptation to treat Medicare eligible active employees and/or their spouses differently than non-Medicare eligible active employees and spouses.