Calculating Economic Losses in 11th Circuit Employment Termination Cases
Economic damages from lost pay have always been an important consideration when employment lawyers are advising potential plaintiffs as to the value of their claims, and when employment defense lawyers are deciding whether to recommend going to trial or settling. With the U.S. Supreme Court’s recent expansion of employment discrimination protection to include LGBT employees in Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731 (2020), employment lawyers have yet another reason to ensure they have a sound working knowledge of the standards applicable to calculating economic damages.
Attorneys often ask economists to calculate economic losses and to testify to the amount in court. This article describes nine factors that must be considered when calculating economic losses from lost pay in employment termination cases: back and front pay, fringe benefits, work life, mitigation, collateral benefits, pay raises, present value, pre-judgment interest, and tax liability. This article also reviews the guidance provided by 11th Circuit caselaw for addressing each factor, and it summarizes notable differences between the 11th Circuit and other federal circuits. The article notes which approaches and methodologies tend to benefit the plaintiff by increasing economic damages and which reduce the size of the damages to the benefit of the defendant.
Back and Front Pay
Federal courts award victims of unlawful discrimination in employment termination cases damages for lost pay to make them whole. Lost back pay, which is lost compensation from the discriminatory action to the date of judgment, and lost front pay, which is lost compensation between judgment and reinstatement — both may be recovered. Reinstatement is preferred as a remedy to lost front pay in the 11th Circuit, but when extenuating circumstances warrant, lost front pay in lieu of reinstatement may be awarded. Extenuating circumstances that would make reinstatement ineffective as a remedy include antagonism and discord between the parties, intimidation and threats from management, and a plaintiff’s damaged emotional wellbeing.
Economists have provided lost back- and front-pay calculations for the 11th Circuit. Economics experts may base lost earnings on the amount the plaintiff was earning at the time of the termination or on an average of the terminated worker’s earnings in prior years. This information is typically available from tax returns, W-2 statements, and pay stubs. When earnings had been falling, the amount of economic losses calculated will be larger when using a multi-year average, benefiting the plaintiff. Using earnings at the time of the termination would benefit the defendant in this example. Just the opposite, when earnings were rising over time, the economic losses will be larger using earnings at the time of the termination and smaller using a multi-year average.
Calculations for lost pay should cease once the terminated worker has an opportunity to move to that worker’s “rightful place” (i.e., the worker’s position absent the discrimination). Further, if the terminated worker’s job is eliminated, and that worker would not have been retained in any capacity or reassigned, then calculations for lost pay should cease after that time.
Workers on average receive about 30% of their compensation in the form of fringe benefits, such as “health insurance coverage, life insurance benefits, annual retirement contributions, and profit sharing.” The 11th Circuit awards damages for lost fringe benefits in employment cases, and attorneys have used economists to calculate the value of the lost fringe benefits, such as pensions. The value of a worker’s fringe benefits could be based on the cost incurred by the employer to provide them or on the cost in the market by the terminated worker to replace them. Awarding market replacement costs would likely benefit the plaintiff because employers often pay lower group rates.
Several federal circuits (the Fifth, Sixth, Seventh, Eighth, and Ninth circuits) have restricted the value that can be recovered for lost health insurance to be the plaintiff’s actual out-of-pocket insurance replacement costs, rather than the premium contributions from the terminating employer or market premiums for replacement insurance the plaintiff did not actually purchase. In other circuits, such as the Fourth Circuit, the wronged plaintiff may recover the value of lost health insurance provided by the defendant employer. While the 11th Circuit has yet to address this issue, several district courts in the 11th Circuit have not awarded damages for lost health insurance benefits when the terminated worker did not pay to replace those benefits and the insured risk did not occur. In these districts, the appropriate measure for the loss is either the replacement cost paid by the terminated worker or the out-of-pocket expenses incurred from not having insurance, not the terminating employer’s premiums.
To receive a damage award for lost front pay, plaintiffs bear the burden of providing the court with evidence of how long they would have worked for the defendant employer absent the termination. This may partially be based on worklife expectancy. Worklife expectancies are calculated by economists using government data and are published in academic journals. Economists have projected worklife expectancy for courts, but, in practice, courts in the 11th Circuit have also simply considered lost front pay over a set number of years, such as five or eight years, or to a common retirement age, such as 65 or 70 years, which, in one case, was a 32-year period. In the 11th Circuit, plaintiffs may not be able to recover damages for lost front pay if their job has since been eliminated, although plaintiffs have successfully argued in this circuit that they could have been reassigned to another position with the defendant employer absent the termination.
Terminated workers are required to mitigate their losses by diligently searching for replacement employment that is substantially equivalent to the lost position. Lost pay can only be recovered for periods when terminated workers are able and willing to accept substantially equivalent replacement employment. With mitigation, the economic losses from lost pay are calculated as the difference in projected pay from the terminating employer (without the termination) and pay from replacement employment.
Terminated workers must use reasonable diligence searching for another job to mitigate damage, but they “need not go into another line of work, accept a demotion, or take a demeaning position.” Terminated workers need not move to another city. Attending school or helping a spouse start a new business after a failed job search following an employment termination is not necessarily a failure to mitigate.
Traditionally, in the 11th Circuit, damage awards for lost pay were vacated if the defendant could prove that 1) the terminated plaintiff did not use reasonable effort searching for replacement employment; and that 2) suitable equivalent positions for the plaintiff were available. More recently, the 11th Circuit has concluded that it is not necessary for the defendant to prove equivalent employment positions exist (the second element) when the terminated plaintiff did not use reasonable diligence searching for replacement employment (the first element). The 11th Circuit has joined several other federal circuits (i.e., the First, Second, Third, Fourth, Fifth, and D.C. circuits) in relaxing the defendant’s burden of proof in this way. To the benefit of the plaintiff, the Sixth, Seventh, Eighth, Ninth, and 10th circuits remain more stringent, requiring the defendant to show both elements to prove a failure to mitigate.
Generally, collateral source rules stipulate that income and benefits from a third party not be deducted from a damage award as an offset. This prevents support provided by others to the plaintiff from being transferred to wrongdoers in the form of reduced damages. However, many circuits (i.e., the First, Second, Fifth, Seventh, Ninth, 10th, and D.C. circuits) in employment cases have declined to establish a rule governing collateral deductions, instead leaving this to the discretion of the court.
Quite differently, the 11th Circuit has mandated that unemployment compensation and Social Security benefits not be deducted as offsets in employment cases. This benefits the plaintiff by increasing the size of the award for economic damages. It seems logical that other collateral benefits should not be deducted either, but pension income received after the termination has been deducted by some district courts in the 11th Circuit. Deducting pension income would benefit the defendant.
The Fourth and Sixth circuits have general rules that collateral benefits should not be deducted. The Eighth Circuit describes the treatment of collateral benefits as a legal matter and lists collateral sources that should not be used to reduce damage awards to include unemployment benefits, Social Security income, and workers’ compensation. Unemployment compensation and Social Security benefits should not be deducted in the Third Circuit.
Wages typically grow over time with price inflation, to maintain purchasing power, and with technological advances, as workers become more productive. Wages also increase over a career as workers gain experience and skills. These may take the form of regular promotions or cost-of-living adjustments.
Economists may use a worker’s past rates of salary increases to project future wage growth. When information on a worker’s past earnings is not available, economists may predict future wage growth using historical growth rates experienced by all or part of the labor force, provided in several reports from the Bureau of Labor Statistics. In addition, economists forecast wage growth for several federal entities such as the Congressional Budget Office, the Council of Economic Advisers, and the Social Security Advisory Board.
Courts have considered wage growth a relevant factor when awarding damages for lost back pay and for lost front pay. In one 11th Circuit case, for example, an economist included wage growth of 3% per year in his calculation of lost back pay between the termination and trial dates. Courts have based wage growth on government statistics and the plaintiff’s history of cost-of-living raises, but absent this information, adjustments for wage growth may be denied.
Discounting to Present Value
The 11th Circuit has determined that awards for lost future pay should be discounted to present value. Present value calculations identify how much a future sum of money is worth now. These calculations are necessary because a dollar received in the future is worth less than a dollar received today. If the nominal amount of future losses were paid in the present without discounting, then this damage award plus interest when invested would grow to a larger amount in the future than the losses. The present value of future economic losses will be smaller when a larger interest rate is used in the calculations because there will be more discounting, benefiting the defendant. A smaller discount rate benefits the plaintiff. The U.S. Supreme Court, in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 537 (1983), states that the interest rate used for present-value discounting should be that on “the best and safest investments.”
In practice, economists have considered government securities to be closest to a risk-free investment and have, for example, used the rate on the 30-year U.S. treasury bond for their market rate of investment earnings. Economists may use historical average rates, current rates, or forecasted future rates. Historical averages are commonly calculated over the past 10, 20, or 30 years or over a past period whose length mirrors the period into the future over which losses are projected. Current rates represent the rates at which a lump-sum payment could be invested today but may not accurately reflect future rates. Forecasted future rates are provided by economists for the Social Security Advisory Board, the Congressional Budget Office, and the Economic Report of the President. Current rates — in 2020 — tend to be lower than 20- and 30-year historical averages and long-term rate forecasts (but not necessarily lower than 10-year historical averages or short-term forecasts), so using current rates for present-value discounting tends to increase the size of the economic losses for the plaintiff. Using long-term historical averages or long-term forecasts often benefits the defendant.
The Supreme Court lists three acceptable methods for discounting future losses to present value in Jones. The first is the market interest rate method. With this approach, wage growth is incorporated in front pay and a market interest rate is used to reduce future losses to present value — with the wage growth rate and the market rate used for discounting assumed to be independent of one another and incorporated separately. Also listed as acceptable is the real interest rate method. A “real” interest rate is a market interest rate net of inflation. With this second approach, the rate of price inflation is deducted from the wage growth rate and from the market interest rate for present-value discounting. The wage growth rate and the discount rate are then incorporated separately, net of inflation. The Supreme Court also approves of the total offset method, where the rate of wage growth is assumed to equal the market interest rate for present-value discounting. In this approach, the two rates cancel each other out. No explicit present-value adjustments are necessary. Wage growth and discounting are essentially ignored. Historically, market interest rates are larger than the rate of wage growth. This remains true with the rate of inflation deducted from both. As a result, the market interest rate method and the real interest rate method tend to benefit the defendant, while the total offset method tends to benefit the plaintiff.
All but three federal circuits provide no additional guidelines to those from the Supreme Court in Jones for present-value discounting. The 11th Circuit is one of the three exceptions. In the 11th Circuit, the court is to use a ‘below-market discount rate,’ defined as the market interest rate on investments otherwise used for discounting, adjusted for the taxes that would be paid on investment earnings, minus the rate of general price inflation as measured by the consumer price index (CPI). When using the below-market discount method, the effects of price inflation should not be separately incorporated into the loss calculations because this is already accounted for indirectly in the below-market discount rate in the form of a smaller discount rate.
The Fifth Circuit also uses the below-market discount method, but it goes further than the 11th Circuit by identifying an acceptable range of 1% to 3% for the below-market discount rate. Much the same, the Second Circuit suggests a “net-discount rate,” defined as the interest rate used for discounting minus the rate of price inflation (i.e., the real interest rate), of 2% for present-value discounting — in employment cases and in other cases, such as those involving an injury — when the parties do not advocate and present evidence for a different rate. The Second Circuit’s approach leaves promotions and raises net of inflation to be included separately as “real” wage growth. Prior to the Supreme Court’s decision in Jones, the Third Circuit registered a preference for the total offset method, but after that decision, courts in the Third Circuit began also using the market rate and real interest rate methods.
Several exceptions exist where district courts within the 11th Circuit have concluded that discounting future losses to present value was unnecessary because pay increases and cost-of-living adjustments had not been included. This indicates the court agreed it was appropriate to assume the interest rate for present-value discounting and the rate of wage growth are equal. This achieves the same outcome as the total offset method.
Courts in the 11th Circuit have the discretion to include pre-judgment interest in the economic losses. The presumption of pre-judgment interest is favored in some districts within the circuit. Pre-judgment interest compensates the plaintiff for the time value of money and for the effects of price inflation. When considering whether to award pre-judgment interest, courts have evaluated the extent to which lost back pay is easily ascertainable and the plaintiff has attempted to mitigate damages. Economists in employment cases have included pre-judgment interest in their calculations of past economic losses.
For many years, the 11th Circuit stated a preference for using the IRS prime rates (multiple rates exist, a rate for underpayment and one for overpayment of federal income taxes) to calculate pre-judgment interest according to the procedures specified in 28 U.S.C.A. §1961. Recently, the Middle District of Florida has determined that this guidance has changed, such that the statutory federal post-judgment interest rate for civil cases stated in 28 U.S.C.A. §1961 is now preferred. This is the rate on the one-year Treasury bill. Most other federal circuits leave the rate for pre-judgment interest to the court’s discretion, but the Seventh Circuit registers a preference for the federal prime rate and the Ninth Circuit for the federal post-judgement rate. Interest has been compounded annually in the 11th Circuit.
Damage awards in employment cases for lost pay and lost fringe benefits are taxable as wages. A large award for lost earnings, such as an award for 20 years of lost pay, may move a terminated worker in a higher income tax bracket in the year of the award. Additionally, a portion of the award may be damages for lost fringe benefits, but these benefits (e.g., health insurance benefits) when otherwise received might not have been taxable.
There is no evidence in the 11th Circuit of damage awards in employment cases being “grossed up” to account for adverse tax liabilities. However, this may be due to a lack of evidence on the appropriate adjustment rather than to tax adjustments being deemed inappropriate. Some other circuits (e.g., the Seventh and Ninth circuits) have recently begun to permit compensation for adverse tax liabilities in employment cases. The 10th Circuit now allows tax adjustments in response to changes in the federal tax code (i.e., Congress in 1986 eliminated provisions allowing tax-averaging across tax years). The Third Circuit does so when provided expert testimony from an economist on the necessary adjustment; the Eighth Circuit does not when evidence to guide a tax adjustment is not provided. The D.C. Circuit by rule does not support tax gross-ups.
Related to this, the size of the economic losses will depend on whether calculations of lost pay are based on gross pay before taxes or net pay after tax deductions. Basing losses on gross pay, which is larger, benefits the plaintiff; using net pay benefits the defendant. For example, in one 11th Circuit case, the economist based his calculations on after-tax earnings, which resulted in smaller losses. However, caselaw is essentially silent about whether economic losses should be based on gross or net pay.
Calculating economic damages from lost pay will likely now become more prevalent because the Supreme Court has ruled Title VII protections in the Civil Rights Act extend to LGBT workers. This article describes nine factors that must be addressed when calculating economic losses from lost pay in employment termination cases and reviews stipulations and guidance for each factor in 11th Circuit caselaw. Differences between the 11th and other federal circuits are highlighted and approaches benefiting plaintiffs and defendants are distinguished.
 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).
 Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985).
 Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1528 (11th Cir. 1991), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as stated in Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000).
 Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1339 (11th Cir. 1999).
 Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1449 (11th Cir. 1985).
 United States Equal Employment Opportunity Commission v. W & O, Inc., 213 F.3d 600, 619 (11th Cir. 2000).
 Virgo v. Rivera Beach Associates, Ltd., 30 F.3d 1350, 1364 (11th Cir. 1994).
 Weaver, 922 F.2d at 1529.
 Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1350 (11th Cir. 2000).
 Sennello v. Reserve Life Ins. Co., 667 F. Supp. 1498, 1512 (S.D. Fla. 1987).
 Crabtree v. Baptist Hosp. of Gadsden, Inc., 749 F.2d 1501, 1502 (11th Cir. 1985).
 Carl v. Fulton County, Georgia, 2013 WL 12357465, at *12 (N.D. Ga. Arch 13th 2013).
 Pearce v. Carrier Corp., 966 F.2d 958, 959 (5th Cir. 1992).
 Gunter v. Bemis Co., Inc., 906 F.3d 484, 493 (6th Cir. 2018).
 Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 161 (7th Cir. 1981), overruled on other grounds by Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir. 1988).
 Tolan v. Levi Strauss & Co., 867 F.2d 467, 470 (8th Cir. 1989).
 E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994).
 Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 (4th Cir. 1985).
 King v. CVS Caremark Corp., 163 F. Supp. 3d 1165, 1193 (N.D. Ala. 2016).
 Stinson v. City of Centre, Alabama, 2009 WL 10703442, at *3 (N.D. Ala. Oct. 20, 2009). See also Pattee v. Georgia Ports Auth., 512 F. Supp. 2d 1372, 1380 (S.D. Ga. 2007).
 Warren v. Cty. Comm’n of Lawrence Cty., Ala., 826 F. Supp. 2d 1299, 1311 (N.D. Ala. 2011).
 Id. at 1312.
 Gary R. Skoog, James E. Ciecka, & Kurt V. Krueger, The Markov Process Model of Labor Force Activity: Extended Tables of Central Tendency, Shape, Percentile Points, and Bootstrap Standard Errors, 22 (2) J. Forensic Econ. 165-229 (2011).
 Hurley v. Kent of Naples, Inc., 2012 WL 12903849, at *3 (M.D. Fla. Sept. 17th 2012).
 Carl, 2013 WL 12357465, at *11.
 Munoz, 223 F.3d at 1349.
 Warren, 826 F. Supp. 2d at 1313.
 Nord, 758 F.2d at 1473.
 Munoz, 223 F.3d at 1350.
 Nord, 758 F.2d at 1470.
 Miller v. Marsh, 766 F.2d 490, 492 (11th Cir. 1985).
 Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231 (1982).
 Lathem v. Dep’t of Children and Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999).
 Ford Motor Co., 458 U.S. at 231.
 Carl, 2013 WL 12357465, at *10.
 Nord, 758 F.2d at 1470.
 Weaver, 922 F.2d at 1527.
 Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st Cir. 1999).
 Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998).
 Tubari Ltd., Inc. v. N.L.R.B., 959 F.2d 451, 454 (3d Cir. 1992).
 Martin v. Mecklenburg Cnty., 151 Fed. App’x 275, 282, 2005 WL 2764755 (4th Cir. 2005).
 Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990).
 NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972).
 Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 623 (6th Cir. 1983).
 Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994).
 Coleman v. City of Omaha, 714 F.2d 804, 808 (8th Cir. 1983).
 Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995).
 EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980).
 Lussier v. Runyon, 50 F.3d 1103, 1107 (1st Cir. 1995).
 Dailey v. Societe Generale, 108 F.3d 451, 460 (2d Cir. 1997).
 Johnson v. Chapel Hill Independent School Dist., 853 F.2d 375, 382 (5th Cir. 1988).
 EEOC v. O’Grady, 857 F.2d 383, 389 (7th Cir. 1988).
 Naton v. Bank of California, 649 F.2d 691, 700 (9th Cir. 1981).
 Sandia Corp., 639 F.2d at 624.
 Swanks v. Wash. Metro. Area Transit Auth., 116 F.3d 582, 587 (D.C. Cir. 1997).
 Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549, 1550 (11th Cir. 1983).
 Dominguez v. Tom James Co., 113 F.3d 1188, 1191 (11th Cir. 1997).
 Carl v. Fulton County, Georgia, 2015 WL 12357465, at *12.
 Fariss v. Lynchburg Foundry, 769 F.2d 958, 966 (4th Cir. 1985).
 Hamlin v. Charter Tp. of Flint, 165 F.3d 426, 432 (6th Cir. 1999).
 Salitros v. Chrysler Corp., 306 F.3d 562, 573 (8th Cir. 2002).
 Maxfield v. Sinclair Int’l, 766 F.2d 788, 793 (3d Cir. 1985).
 U.S. Bureau of Labor Statistics, Office of Publications & Special Studies, Employment & Earnings Online (2019), http://www.bls.gov/opub/ee/; U.S. Bureau of Labor Statistics, Employment Cost Index (2019), http://www.bls.gov/news.release/eci.toc.htm.
 Chairman of the Council of Economic Advisers, Economic Report of the President, March 2019 (2019); Congressional Budget Office, An Update to the Budget and Economic Outlook: 2019-2029 (Aug. 2019); Social Security Trustees Report, 2019 OASDI Trustees Report; Social Security Administration, 2016 OASDI Trustees Report, Economic assumptions and Methods, Tables V.B1 and V.B2 (2019).
 Warren, 826 F. Supp. 2d at 1312.
 Virgo, 30 F.3d at 1364.
 Sennello, 667 F. Supp. at 1516.
 Armstrong v. Charlotte County Board of County Commissioners, 273 F. Supp. 2d 1312, 1316 (M.D. Fla. 2003).
 Sennello, 667 F. Supp. at 1516.
 Deakle v. John E. Graham & Sons, 756 F.2d 821, 832 (11th Cir. 1985).
 Shealy v. City of Albany, 137 F. Supp. 2d 1359, 1368 (M.D. Ga. 2001).
 Carl, 2015 WL 12357465, at *11.
 Joseph I. Rosenberg & Rick R. Gaskins, Damage Awards Using Intermediate Term Government Bond Funds vs. U.S. Treasuries Ladder: Tradeoffs in Theory and Practice, 23 J. Forensic Econ. 1-31 (2012).
 Chairman of the Council of Economic Advisers (2019), Congressional Budget Office (2019), Social Security Trustees Report (2019).
 Shealy v. City of Albany, 137 F. Supp. 2d at 1368, based on Deakle v. John E. Graham & Sons, 756 F.2d at 832, and Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983), which are personal injury cases.
 Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 622 (5th Cir. 1996).
 Oliveri v. Delta Steamship Lines, Inc., 849 F.2d 742, 746 (2d Cir. 1988); Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 39 (2d Cir. 1980).
 Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 461 (3d Cir. 1982), judgment vacated by Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983)
 Warren, 826 F. Supp. 2d at 1318.
 Lindsey v. Am. Cast Iron Pipe, Co., 810 F.2d 1094, 1101 (11th Cir. 1987).
 Carl, 2015 WL 12357465, at *12.
 Garner v. G.D. Searle Pharm. & Co., 2013 WL 568871, at *5 (M.D. Ala. 2013).
 Tucker v. Housing Auth. of Birmingham Dist., 507 F. Supp. 2d 1240, 1284 (N.D. Ala. 2006).
 Williams v. Consolidated City of Jacksonville, 2006 WL 8439161, at *2 (M.D. Fla. 2006).
 McKelvy v. Metal Container Corp., 854 F.2d 448, 453 (11th Cir. 1988).
 Mock v. Bell Helicopter Textron, Inc., 2007 WL 2774230, at *5 (M.D. Fla. 2007).
 Gorenstein Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 437 (7th Cir. 1989).
 Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 628 (9th Cir. 2007).
 Weaver, 922 F.2d at 1528.
 United States v. Burke, 504 U.S. 229 (1992).
 Garner, 2013 WL 568871, at *15.
 Equal Emp’t Opportunity Comm’n v. N. Star Hospitality, Inc., 777 F.3d 898, 904 (7th Cir. 2015).
 Clemens v. Centurylink Inc., 874 F.3d 1113, 1116 (9th Cir. 2017).
 EEOC v. Beverage Distribs. Co., 780 F.3d 1018, 1024 (10th Cir. 2015).
 Eshelman v. Agere Systems, Inc., 554 F.3d 426, 441 (3d Cir. 2009).
 Hukkanen v. International Union of Operating Eng’rs, Hoisting & Portable Local No. 101, 3 F.3d 281, 287 (8th Cir. 1993).
 Dashnaw v. Pena, 12 F.3d 1112, 1116 (D.C. Cir. 1994).
 Virgo, 30 F.3d at 1364.
 Bostock v. Clayton Cty., Ga., No. 17-1618 (June 16, 2020).
This column is submitted on behalf of the Labor and Employment Law Section, Robyn Sue Hankins, chair, and Robert Eschenfelder, editor.