By Carrie M. Harris

In 2013, the Supreme Court of the United States held that plaintiffs claiming retaliation under Title VII must prove that "but for" the retaliation they would not have been discharged. Many had wondered if that decision would change what a disgruntled employee must prove in order to recover on a federal discrimination claim. On May 21, 2015, the Fourth Circuit Court of Appeals decided that, at least for the states it oversees (Maryland, North Carolina, South Carolina, Virginia and West Virginia) it does not. The Court determined that the McDonnell Douglas framework it has used for years has always required a plaintiff to prove that an employer's discriminatory animus was the "but for" cause of retaliation.

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By Kate Sturdivant Gibson

Most employers are at least generally familiar with the The Fair Credit Reporting Act ("FCRA"). FCRA protects consumers whose information is disclosed by consumer reporting agencies. In the employment context, FCRA regulates how employers may use "consumer reports" in the hiring process (or during an investigation) and what rights applicants and employees have regarding their use.

Employers need to be aware of FCRA because many employers use consumer reports, such as credit history reports and background checks, to make important employment decisions. Employees (or potential employees) have several rights as it pertains to consumer reports related to them.

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By Gordon L. Mowen, II

Title VII of the Civil Rights Act of 1964, requires that the EEOC engage in informal conciliation efforts after it finds reasonable cause to support a charge of discrimination, but before it files suit. The EEOC can only bring suit against an employer after the Commission has attempted, in good-faith, to secure from the employer a conciliation agreement acceptable to the Commission.This "good-faith" requirement is critical to the conciliation process because it is the statutory precondition the Commission must follow before it may initiate a lawsuit against an employer.

Over the past several years, however, it has become unclear exactly when the Commission has made this "good-faith" attempt. This point of contention has been litigated among the federal circuits with very mixed results, including whether the judiciary even had the authority to "measure" the Commission's conciliation attempts.

Three weeks ago, the United States Supreme Court clarified this area of law by holding that the courts have the authority to review and enforce the EEOC's conciliation obligation, by that courts should not delve deeply into the process.

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