Whether federal courts of appeal are divided on standards for sexual harassment, disability discrimination, and collective bargaining agreement interpretation

1. Should sexual discrimination claims under Title VII and Title IX be analyzed under the traditional McDonnell Douglas "but-for ” test as the Sixth, Eight and Ninth Circuits have held, or under the broader “reasonable calculation ” test as the Second and Fourth Circuits have held, or under the even broader “increased likelihood ” / “convincing mosaic ” tests as the First, Tenth and Eleventh Circuits have held? 2. Should disability discrimination claims under the FMLA require an actual denial of leave by the employer as the Second, Third, Sixth, Eighth, Ninth and Eleventh Circuits have held, or is mere discouragement of leave enough to sustain a claim as the Seventh Circuit has held; and should such claims be analyzed under the traditional McDonnell Douglas "but-for ” test as the Fourth, Ninth and Eleventh Circuits have held, or the broader “motivating factor ” test as the Second and Third Circuits have held? 3. Should the employer ’s failure to prove that “just cause ” exists for discipline of an employee subject to a collective bargaining agreement constitute pretext under McDonnell Douglas? II DISCLOSURE STATEMENT This document was drafted in whole, or substantial part, by an attorney.