Employment Law News - U.S. Tenth Circuit
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Jury instructions regarding the "direct threat" affirmative defense in an employment discrimination case required an employer to prove more than legally necessary, the Tenth Circuit ruled on Monday. An employer must only show that he had a reasonable belief that an impaired worker's job performance would pose a significant risk of substantial harm in order to avoid liability. Contrary to the district court instructions, a jury need not determine if such a threat actually existed.

The case involved a legally blind employee of Beverage Distributors Company in Colorado. The company rescinded the worker's job offer in the company's warehouse, believing that he would need reasonable accommodations under the ADA.

Is it "retaliation" to be fired from your job as a student teacher if another school employee sees you masturbating in your car in a parking lot?

No, it's not a rhetorical question. And this time, it's not from Florida. Carlos Bassatt was a student teacher at a Denver high school, and another employee did catch him masturbating in his car in the high school parking lot. Bassatt died during the district court proceedings, but his estate pressed on. After losing there, the estate appealed to the Tenth Circuit.

In October 2013, the Tenth Circuit determined that Abercrombie & Fitch, the nation's No. 1 purveyor of that weird cologne smell in the mall, didn't violate Title VII of the Civil Rights Act when it refused to hire a Muslim job applicant for wearing a hijab in contravention of Abercrombie's dress code.

The EEOC has since been granted a cert. petition, and filed its opening brief earlier this month. The case has garnered a whole heck of a lot of amici including religious organizations, the Lambda Legal foundation, and the State of Arizona, for some reason.

When the U.S. Supreme Court invalidated President Obama's NLRB "recess" appointments in NLRB v. Noel Canning, the question arose: what happens to all the decisions these now-unlawfully-appointed NLRB members made?

That's the first issue the Tenth Circuit had to grapple with in Teamsters Local Union No. 455 v. NLRB (Harborlite). When the union and management at Harborlite couldn't agree on a new contract, the union members wanted to keep working. The law lets them, but is also allows the employer to conduct a "lock out" and hire temporary replacements until an agreement is reached. Harborlite did more than that, though: it threatened to hire permanent replacements if the union didn't agree with management. The NLRB found this was not OK, but in light of Noel Canning, does that determination mean anything?

Oh, the good ol' Tenth Circuit. For a circuit that covers a geographically large portion of the United States, the case law coming out of there can sometimes not be as compelling as circuits with cities like New York or San Francisco. But, that doesn't mean all Tenth Circuit cases are folly. In fact, when they mean business, they get the whole country's attention.

Tenth Circuit in the News

With Utah's large Mormon population, we suppose it was just a matter of time before a polygamy case was heard. And just in time for the end of 2013, Judge Waddoups of the U.S. District Court for the District of Utah struck down Utah's bigamy statutes' cohabitation provision as unconstitutional.

Ever get mad at your boss? Ever think it was a good idea to log onto Facebook during working hours and complain about said boss? Yeah, us neither.

Sara Debord let loose on Facebook about her boss adding money to her paycheck, and saying that he needed "to keep his creapy [sic] hands to himself." Many of her coworkers, and supervisor, saw the post and disruption ensued.

Abercrombie & Fitch, and it's company Hollister, have been involved in litigation around the country concerning its discriminating hiring and employment practices in the name of staying true to its "look policy," with women who wear the hijab bearing the brunt of the burden.

In October of this year, the Tenth Circuit adopted a stricter view of Title VII's notice requirements for religion-accommodation theory, holding that a claimant "must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice."

Last week the Tenth Circuit, reaffirmed the deference it accords arbitration agreements. Taking down plaintiff's three arguments one by one, the court upheld the arbitrator's award in favor of defendants.


The Air Methods Corporation ("AMC") is an air transportation company that provides transport of medical personnel to accident sites, and of injured people to hospitals. As an air transport company, AMC is subject to FAA requirements, and its operating manual must be approved by the FAA.

No Title VII Violation in Termination of Employee, 10th Cir. Says

The Tenth Circuit has upheld a district court's grant of summary judgment in favor of the New Mexico Environment Department's Farmington office, finding no violation under Title VII.

Michael Lobato was a probationary employee at NMED as an inspector of food service providers, liquid waste systems, and public swimming pools. NMED served Lobato with a notice of dismissal listing several grounds for his termination, including the fact that Lobato was dishonest in his employment application and about staying at a hotel in order to receive a per diem reimbursement. They also mentioned his rude and unprofessional attitude.

Lobato, in turn, contends that his firing was in violation of several acts, including Title VII of the Civil Rights Act.

Earlier this week, the Tenth Circuit stuck its head in the sand, and proceeded to draw a thick, long line with it. It took 76 pages to explain why the court was reversing the district court's decision granting the Equal Employment Opportunity Commission's ("EEOC") motion for summary judgment against Abercrombie & Fitch.

To quote Shakespeare: "The lady doth protest too much, methinks."