Employee Rights Post

Another VIctory For Working Moms

Ellen Simon — Fri, 15 Jul 2011 07:16:34 -0700

Gender Stereotyping Constitutes Sex Discrimination

Every once in a while, everything goes right for the employee in a fight to get employment claims heard by a jury. The case of Nancy Falco Chedid, M.D. vs. Children’s Hospital & others is one such example. Here’s what happened in this recent illuminating decision involving the hot issue of caregiver discrimination.

Facts Of The Case

Dr. Nancy Falco Chedid worked at Children’s Hospital and the Boston Plastic and Oral Surgery part time as a plastic surgeon beginning in 2005. At that time, she re-entered her practice after taking six years off for the birth and caretaking of her three children.

In August of 2006, Chedid’s boss, and Chief of Plastic Surgery, was replaced by Dr. John Meara. Shortly after his arrival Chedid had a meeting with Meara.

At that time, Chedid stated that she worked a reduced hours position and had family responsibilities. Meara expressed displeasure with her part time status and told her that there were certain subspecialties -- like dermatology -- which were more amenable to a part-time arrangement than plastic surgery.

He also said that he wanted to rid the department of plastic surgery of all the “part timers.” According to Chedid, when she asked Meara if he was pushing her out he nodded “yes” and that he did so without getting to know her or her abilities.

Because of her concern regarding Meara’s intention to push her out, Chadid met with the hospital’s Director of the Office of the Faculty Development, Dr. Jean Emans. Part of Emans’ job was to act as a problem solver for faculty with issues related to career advancement.

Emans explained that Children’s had a large number of part-time physicians and that with regard to work and family balance some chiefs “get it” and others do not. Chedid stated that she would be willing to increase her hours if it meant saving her job.

Chedid sent a letter to Meara on November 8, 2006 and met with him eight days later. They also exchanged e-mails. Chedid made a number of proposals and explained to him how she could fit into his vision for the department. He assured her that he was not pushing her out, but then stated his intention to hire a full time surgeon in 2007, which might mean that Chedid would have to leave. She reiterated her desire to stay including her willingness to work more hours. Meara again stated that Chedid would not have an indefinite position given his vision and goals for the department. Without Chedid, the department would be all male.

In the months that followed, Chedid continued to address her concern to hospital administrators including the COO and Vice President of Human Resources --- specifically her concern that Meara was pushing her out because she was a woman with childcare responsibilities. They explained that they believed what she was saying, but stated that Meara, as department head, had a right to eliminate part-time positions from the department.

In March or 2007, Emans and Stewart informed Chedid that Meara would only allow her to work through June. Emans explained that Meara wanted someone with special pediatric training in the department and that Chedid should obtain the special training and reapply in the future. She asked why she had to apply when a co-worker was invited to join the Foundation without an application and another doctor was hired with far less experience. In addition, Chedid, who had pediatric training, offered to work full time.

Stewart became exasperated and angry at Chedid’s offer, but said that she would draft a memo of the meeting and discuss matters with Meara. The memo was never circulated.

On March 23, 2007, Meara informed Chedid that her employment with the Foundation would end on June 30^th of that year. After learning that Chedid had been terminated, several of her colleagues circulated a petition to protest the termination. As stated in the opinion, the record contains not a word of criticism about Dr. Chedid’s abilities as a physician and surgeon.

The Lawsuit

Background

Chadid sued for gender discrimination under Massachusetts law. Like federal law,(Title VII) the Massachusetts anti-discrimination statute makes it illegal for an employer to refuse to hire or discharge from employment or discriminate against an individual because of the individual’s sex.

Like federal law, in cases that rely on circumstantial evidence, the court applies a three stage order of proof. In the first stage, the employee shows that:

she is a member of a protected class

performed the job at an acceptable level

was terminated

the position was filled with another individual with qualifications similar to plaintiff

These elements may vary depending on the facts of the case and vary slightly from one jurisdiction to another. Facts which establish these elements create an inference of discrimination.

In the second stage, the employer may rebut the plaintiff’s assertion of discrimination by articulating a lawful reason or reasons for its employment decision. In the third stage, the burden shifts back to the employee to demonstrate that the reason advanced by the employer was a “mere pretext” -- in other words, not true or not believable – from which the jury can conclude that the real reason was discrimination, or that discrimination was a motivating factor. (again, the language varies slightly from jurisdiction to jurisdiction)

In addition, there are two types of discrimination claims. First, there are claims of disparate treatment in which an individual claims that he was treated differently than a similarly situated employee who was not in a protected class (i.e. race, sex, disability, age, religion, nationality) Second, there are disparate impact claims, in which the plaintiff claims that an employment practice, while neutral on its face, has a disproportionately negative impact on a protected class. (for example, if a company has a policy of hiring only individuals that are 5 feet 4 inches or more, that policy would have an adverse impact on women)

In her disparate treatment claim, Chedid contended that the defendant treated her unfavorably based on a perceived stereotype that women with children are less capable of being skilled surgeons due to having family obligations.

In her disparate impact claim, the plaintiff claimed that the defendant’s policy of hiring only full time surgeons has a disparate impact on women with children.

The Court Rules In Favor Of Chedid In Its Summary Judgment Ruling

Disparate Treatment Claim

The defendants filed a motion for summary judgment contending that based on the evidence, Chedid had no legal claims as a matter of law. The Court denied the motion, and found in favor of the plaintiff on all counts – which means that Chedid has the right to take her case to a jury. With these facts, it seems to me that her chance of success in front of a jury is quite high, so the opinion is great news for Chedid.

As the Court sets forth in its opinion, "an adverse employment action based on stereotypical belief that women with children will be less committed to their jobs due to their childcare responsibilities constitutes actionable sex discrimination." (citing Chadwick v. Wellpoint, see here) It was gender stereotyping which motivated the defendants according to Chedid. Any opinion which cites this language is important since "caregiving discrimination" -- a form of employment discrimination -- has been recently recognized and noted in very few decisions.

As to the defendants' arguments, the Court noted in part:

a jury could find that Chedid was at least as qualified as Dr. Greene, who was hired during that period of time

there was a dispute in the evidence as to whether Meara’s actual hiring practices were consistent with his stated criteria to hire only internationally known surgeons

the evidence showed that the physicians spent most of their time doing mostly simple procedures not the complex procedures Meara emphasized in his testimony

other physicians who worked part-time also had shortcomings in their performance

after Chedid tried to persuade her employer to allow her to work part time, she offered to work full time, and the hospital never followed up on her offer

The Court stated:

From these facts, the jury could find that Dr. Meara gave at least one, if not two false and pretextual reasons for terminating the plaintiff, for reducing her privileges and denying her a bonus, purportedly because of her level of qualifications and her alleged refusal to work full time, despite her March 16, 2007 offer to work full time …..

The defendant’s motion for summary judgment of the plaintiff’s sex discrimination claim is therefore denied.

Other Claims

The Court also denied summary judgment or reserved judgment on other claims including:

a claim for disparate impact discrimination based on a policy which has a disparate impact on part-time employees

retaliation (“making things difficult for the plaintiff as a result of her asserting her sincere perceptions of gender discrimination”),

intentional interference with contract/advantageous business relations (her supervisor maliciously interfered with her contract -- discrimination may constitute malice)

breach of contract (patients were referred to Meara rather than Chedid; defendants failed to pay her a bonus and her share of profits for the 2006-2007 fiscal year)

breach of implied covenant of good faith and fair dealing (every contract has an implied covenant of good faith which prohibits a party from exercising its discretionary power to deprive the right of the other party to receive the fruits of the contract) Unlike Massachusetts, most states do not recognize this claim for employees --- particularly employees at will.

This means that Dr. Chedid has a right to gather more evidence regarding her disparate impact discrimination claim, and take the rest of her claims to the jury. It will be up to the jury to decide whether Chedid was discriminated against because of her gender, and whether or not she should prevail on her other claims for relief. As I stated above, on these facts it seems to me that her likelihood of success looks quite good.

Conclusion

There are so many cases where courts throw out plaintiff’s employment claims on summary judgment no matter how strong the evidence is. This case is an example of everything going right for the plaintiff and her lawyer. It’s also another important win for working moms who face pervasive discrimination in the workplace.

images: www.nubar.com/realstock noireventsgroup.files.wordpress.com

ADA Cases Make The News

Ellen Simon — Fri, 10 Jun 2011 09:45:28 -0700

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

A U.S. District Court in Texas ruled that a Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months. Brown was supervised by Glenn Piner. Bown told Piner immediately about Meinelt's condition.

Two days later, Piner began an audit involving employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.” The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, "a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its "more expansive definition" of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications. It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled --- and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

Jury Hits Auto Zone With $600 Thousand Verdict For Failure To Accommodate Disabled Employee

A federal jury in Peoria, Illinois returned a $600,000 verdict against AutoZone, the Memphis-based national auto parts retail giant, for failing to provide a reasonable accommodation to one of its sales managers. An additional claim for $115,000 in back pay will be decided at a later time by the presiding judge.

The case, brought by the EEOC, charged that AutoZone failed to accommodate its sales manager’s medical restrictions relating to his permanent back and neck impairments when it required him to perform certain cleaning tasks like mopping floors.The EEOC presented evidence that mopping floors was not an essential function of the sales manger position, that he requested not to be assigned to mopping floors along with medical documentation, and that mopping floors was a non-essential function of his job which could have been reassigned to other employees. The evidence showed that new store management refused his request, which lead to further injury and necessitated a medical leave.

The moral of the story is that employers had better take seriously the ADA’s provisions which require reasonable accommodations of the known physical limitations of its employees. What’s more, since so many employees suffer from permanent neck and back injuries, this verdict should be a big wake up call. Incidentally, this is not the first time AutoZone has tangled with the EEOC. For more about reasonable accommodations under the ADA, see here and here. For more about the case, read here.

images: www.fortworthonthecheap.com www.spartanburg2.k12.sc.us

Employee Rights Short Takes: Sexual Harassment, Medical Marijuana & More

Ellen Simon — Sat, 28 May 2011 07:15:08 -0700

Here are a few employee rights Short Takes worth noting:

Will Record Of Discrimination Block Bid For Baseball Team ?

The New York Times ran an interesting story about Jim Crane, and a potential wrinkle in his efforts to buy the Houston Astros. Crane, a former college pitcher, runs a Texas freight company called Eagle Global Logistics. In 2000, the EEOC investigated Eagle and found that Eagle failed to promote blacks, Hispanics and women in to managerial positions, It also found that Eagle demoted women from managerial positions, maintained a hostile workplace, paid blacks, Hispanics and women less than male and white counterparts, and shredded important documents.

The EEOC report included other serious findings of civil rights violations. It stated that Crane told his managers not to hire blacks because “once you hire blacks, you can never fire them.” Witnesses also said that Crane did not permit Eagle to advertise job openings because he did not want to build up files of applications by qualified job-seekers.

Needless to say these findings expose an abysmal civil rights record -- so the New York Times posed the question – will the EEOC findings hamper Crane’s bid for the Astros in light of baseball’s troubled history of race discrimination?

According to the Times, baseball’s commissioner Bud Selig called Crane “unaprovable” when Crane tried to buy the Dallas Mavericks last August.

Not so, according to MSNBC on Tuesday which reported that the deal is full steam ahead. For more, read here. and here. It will be interesting to see if the NAACP chimes in again.

Whopping $10.6 Sexual Harassment Verdict Against UBS

UBS Financial Services was hit with a jury verdict of almost $10.6 million in a case brought by a former sales assistant who said she was sexually harassed by a supervisor in Missouri and then fired for complaining about it.

Carla Ingraham, who worked in UBS’s Kansas City office, claimed that the company began investigating her after she complained of sexual harassment in December of 2008. The investigation culminated in her discharge in July of 2009.

The jury awarded Ingraham $10 million in punitive damages, $350,000 for sexual harassment, and $242,000 for retaliation. The punitive damages will be capped at five times the final judgment.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and retaliation for complaining about it.

ACLU Appeals Medical Marijuana Case on Behalf Of Wal-Mart Cancer Victim

I ran across this interesting ACLU case about a Wal-Mart cancer victim fired for using medical marijuana. The case was brought on behalf of Joseph Casias who suffered for more than a decade with sinus cancer and a brain tumor in the back of his head -- a source of constant pain. After Michigan voters passed the Michigan Marihuana Act, his oncologist recommended he try marijuana as a way to cope with his symptoms. The marijuana dramatically reduced his symptoms and caused “according to reports by the ACLU.

Wal-Mart fired Casias, a manager and 10 year employee, when he tested positive for marijuana. He sued, but in February, 2011, his case was dismissed by a U.S. District Judge who ruled that Michigan’s law only protects patients from arrest, but fails to regulate private companies’ drug policies.

The ACLU appealed. In its brief filed in late April with the United States Court of Appeals for the Sixth Circuit, the ACLU argued that its case should be reinstated, both because the case belonged in Michigan state court where the ACLU originally filed it, and because the lower court ignored the text of the state’s medical marijuana law prohibiting companies like Wal-Mart from firing patients like Casias who use marijuana in accordance with state law.

This certainly will be an important case to follow on this cutting edge issue. Casias, was named Associate of the Year at Wal-Mart in 2008, and is one of roughly 20,000 legal medical marijuana patients in Michigan. Sixteen states have medical marijuana laws so the rights of millions of employees are in play. For more, read here.

images: www.glogster.com/media michiganmessenger.com

Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Ellen Simon — Mon, 02 May 2011 09:00:05 -0700

Here are a few employee rights Short Takes worth noting:

It's A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24^th. The new rules were mandated by the ADA Amendments Act of 2008 ("ADAAA"). The law made significant changes with respect to the interpretation of the term "disability" under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed "disability" and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage. As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times about a recently filed discrimination case and it's worth talking about because it will make new law. The case is about El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male.

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden. His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau's second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status. The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances. (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 -- Equal Pay Day -- to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit. After the U.S. Supreme Court ruled against her in 2007 -- because it held that the case was filed too late -- Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111^th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today. For more, read here.

images: blogs.orlandosentinel.com image.spreadshirt.com www.glbtq.comf

Jury Awards $900 Thousand In Age Discrimination Case

Ellen Simon — Fri, 18 Feb 2011 09:36:01 -0700

I just finished trying an age discrimination case and the good news is that we won. Here's an article published yesterday about the case:

Jury awards Cleveland woman $900K in age discrimination employment case
CLEVELAND, OH - A Cleveland jury in the Cuyahoga County Court of Common Wednesday returned a $900,000 verdict in a significant employment discrimination lawsuit brought by a former employee of Cleveland's University Hospitals Case Medical Center. The lawsuit filed by Gloria Parks against University Hospitals alleged that Parks, a medical assistant, was discriminated against because of her age when she was terminated from her job of 30 years in July of 2008.

After a seven-day trial in the courtroom of Judge Carolyn Friedland, the jury found that age was a determining factor in University Hospitals' decision to terminate Ms. Parks' employment. Parks was awarded $450,000 for her economic loss and $450,000 for other compensatory damages.

"We are thrilled that Gloria Parks received the justice that she deserved from the jury", said renowned civil rights lawyer Ellen S. Simon, of counsel with McCarthy, Lebit, Crystal & Liffman, and lead attorney on this case. "Nothing could be better than to see Ms. Parks have the opportunity to be vindicated. What happened to Gloria was tragic and shouldn't happen to anyone."

Parks' lawsuit charged that her termination stemmed from a patient identification incident in July of 2008, involving Parks and a younger co-worker in the pre-admission testing department where they both worked. The mix-up occurred when two patients with the identical name appeared at the department on the same morning to get their blood drawn. UH claimed that Parks failed to follow the proper patient identification policy, but witnesses testified that the policy was not enforced in the department and not properly followed by the employee who checked the patient in that day, pulled the wrong medical chart, and passed it off to Parks. The mistake was discovered and corrected before the patient left the department and the blood work was for both patients was properly processed without any error. Neither patient was harmed. After Parks was fired, the department changed its procedures in the department to require proof of identification at the time of check in with a driver's license.

Parks claimed that Steve Diltz, who became her supervisor five months prior to the incident, had singled her out and treated her differently than her younger coworkers since his assignment to her department. Evidence presented at trial showed that Diltz seized on the identification incident as a means to ensure that Parks was fired, and that his decision to unjustly fire her was supported without question by University Hospitals human resources department as well as Diltz's manager without any independent investigation. The incident resulted in a patient complaint, but the testimony of the patient revealed that it was a third employee involved with the patient -- the department nurse -- not Parks, who had upset the patient on the day in question. The nurse was never disciplined.

Parks' age discrimination claim was supported by the fact that she and the younger co-worker were involved in an identical incident and Parks was fired while the younger co-worker received no discipline whatsoever. The evidence also showed that younger employees made comparable or more serious mistakes with some frequency in the department and received no formal corrective action or discipline, and that no other long term employee had been discharged for a single mistake at UH involving a patient which caused no harm .

Parks, who was 54 at the time of her discharge, and known throughout the hospital as one of the best phlebotomists at UH, had a "Do Not Re-Hire" permanently placed in her personnel file. A day after her termination, Parks was replaced by Diltz with a much younger worker. As a consequence of the firing and the "Do Not Re-Hire" classification, Gloria Parks has since been unable to find permanent employment at any hospitals, and lost her home, as well as her ability to make a living in her field. "I am very pleased with the verdict", said Parks, following the jury's decision. "It's been so hard - I loved my job. I just couldn't believe this was happening to me. Now, I have a chance to make a new start. I am so thankful for my legal team, and my family and friends who stood by me at this difficult time. I thank God for all their support."

For more about the case, read theCleveland Plain Dealer Article, here. Needless to say, we're thrilled. More to come about the case when I get a chance to recuperate.

Employee Rights Short Takes: Scalia's Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Ellen Simon — Sun, 16 Jan 2011 12:28:18 -0700

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14^th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of United States v. Virginia, in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14^th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Scalia’s comments stem from his view that the 14^th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14^th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at Michele Bachmann's tea party / "Constitutional Conservative Caucus" later this month. For more about questions raised regarding Justice Scalia's impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities -- including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here's a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.: Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk" and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was "grossly excessive" under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC: In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee.

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court's statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages As the Court pointed out, both Copidas (the owner of the hotel) and Galaviz:

knew it was against the law to fire an employee because of age

fired a 63 year old employee with a spotless record

replaced her with a 31 year old with documented performance problems

promoted several younger employees with performance issues

altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs -- a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don't often see decisions affirming a punitive damage award, these cases are worth noting.

images: newsimg.bbc.co.uk www.pryers-solicitors.co.uk www.beachvillaresort.com

Employee Rights Short Takes: Race Discrimination, 5.8 Milllion Dollar Verdict, Breach of Contract Damages And More

Ellen Simon — Mon, 27 Dec 2010 03:19:19 -0700

Here are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him ("the white guy") to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files -- over 1800 documents -- which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company's code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims. The law is tricky and changing, and it's best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

images: www.choirboysmctx.org www.insidehighered.com static.howstuffworks.com

It's A Long Road To Justice

Ellen Simon — Mon, 06 Dec 2010 04:08:09 -0700

Federal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer. At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

a record of military service

a bachelor’s degree in history

completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

a bachelor’s and doctoral degrees

authorship of a length book and numerous scholarly publications

a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

is a member of a protected class

objectively qualified for the position

considered for but is denied the promotion

an individual outside of plaintiff’s protected class is selected for the position

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

has no basis in fact

was not the actual reason, or

is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims -- post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

Bartlett’s 24 years of experience as a contract administrator: Lucas had 8

Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college

Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the facts in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

informed him that 34 years on the job was enough

joked about whether he had taken up “antiquing or traveling or something like that”

suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs' employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it -- a hostility on the federal bench to employment cases ---is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it's virtually certain that it's going to be a long road to justice.

images:www.sastharam.com/

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Ellen Simon — Sat, 20 Nov 2010 16:17:43 -0700

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns....

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers' criticism of their bosses or companies on a social networking site are generally protected activity and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27^ththat it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity" and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with lawful restriction of social networking by their workforce and that's why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that's what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision which is expected some time after the hearing before an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

Images: mexico.vg/wp-content www.hecouncil.org static.technorati.com www.lawforwa.org

Employee Rights Short Takes: GOP Private Club Sued For Race Discrimination, Latino Discrimination On The Rise And More

Ellen Simon — Sun, 31 Oct 2010 09:15:18 -0700

It’s a political week, so here are a few short takes – admittedly- with a political twist::

GOP Social Club Sued For Racial Discrimination

The National Republican Club of Capitol Hill, an exclusive club known to be the place where the DC Republican “backroom deals” get made, is being sued for race discrimination by its former human resource manager. The plaintiff, Kim Crawford, alleges that she was repeatedly passed over for raises while “less qualified, less deserving male and white counterparts were given” increases.

Crawford also claims she was fired in July after investigating a racial complaint from the club’s acting executive chef. Race discrimination in employment and retaliation are prohibited by Title VII of the Civil Rights Act of 1964. For more about it read here.

Being A Liberal And Hating Sarah Palin May Be Genetic

I must say this story caught my eye – particularly since we have three generations of Sarah Palin bashers in my immediate family. A new study in the Journal of Politics, as reported in Time, says that there’s a biological explanation why some people favor big government, oppose the death penalty and can’t stand Sarah Palin – and it’s called the liberal gene.

The DRD4-7R gene affecting the neurotransmitter dopamine has already been linked to a personality type driven to seek out new experiences. Researchers from the University of California, San Diego and Harvard University hypothesized that this predisposition might affect political beliefs.

The researches suspect that the D4 novelty seekers would have more exposure to a wider variety of lifestyles, a wider circle of friends and more exposure to broader views, attitudes and beliefs. Apparently, all of this does have an effect on D4 inidviduals' political views and the new study bears out their hypothesis --- those born with the D4 gene are more liberal. It's all quite interesting. I wonder if we're going to hear about a conservative gene too?

More Latinos Concerned About Discrimination

Nearly two thirds of Latinos in the United States think that discrimination against Hispanics is a “major problem” according to a new study from the Pew Hispanic Center. There are 47 million Latinos in the US, which make up 15% of the population and constitute the nation’s largest minority group. According to the study:

Asked to state the most important factor leading to discrimination, a plurality of 36% now cite immigration status, up from a minority of 23% who said the same in 2007. Back then, a plurality of respondents-46%-identified language skills as the biggest cause of discrimination against Hispanics.

The Pew study was released days before the mid-term elections in which the Latino vote is expected to play an important role, particularly in the Florida gubernatorial race and Nevada Senate contest between Senate Majority leader Harry Reid and Tea Party Republican Sharon Angle. Anlge has been sharply criticized for ads run in recent weeks which portray Latinos as menacing interlopers. 17% of voters in Nevada are Latinos who are expected to vote in high numbers this Tuesday.

images: ktnv.images.worldnow rlv.zcache.com politicalmuse.com

Few And Far Between: Court Decides Female on Male Hostile Environment Sexual Harassment Case

Ellen Simon — Mon, 11 Oct 2010 09:04:54 -0700

Assumption That Men Welcome Sexual Harassment Is Sex Stereotyping In Violation Of Title VII

You don’t often see sexual harassment cases in which the woman is the aggressor and the man is the victim. Many people (including some judges) don’t interpret those facts to constitute sexual harassment in violation of Title VII. That’s why the recent case of EEOC v. Prospect Airport Services from the Ninth Circuit Court of Appeals is so important.

What Happened In The Case

Rudolpho Lamas worked for Prospect Airport Services at McCarran International Airport in Las Vegas. He worked as a passenger assistant helping passengers who needed wheelchair assistance.

Lamas, a recent widower, started working for Prospect in April of 2002. That fall, Sylvia Munoz, a married co-worker began making sexual advances to Lamas. Munoz repeatedly:

propositioned him for sex

asked him out

wrote him love notes which were sexually explicit

performed gestures simulating fellatio when he walked by

recruited co-workers who were telling him that she loved him and wanted him

approached him in the parking lot at work and gave him a sexually suggestive photograph

Lamas never made overtures towards Munoz and told her and their co-workers over and over that he was not interested – but she didn’t stop.

Lamas complained to his boss but nothing was done. He talked to his next supervisor up the chain, Dennis Mitchell, and gave him one of the “love” notes. Mitchell told Lamas that he “did not want to get involved in personal matters.” Eventually Mitchell told Munoz that he knew she was “pursuing a coworker … and the coworker wanted the advances to stop.”

But Munoz did not stop and the harassment continued. He testified that every time he walked by her there was something -- a gesture, licking her lips suggestively, asking if he “wanted to have some fun”, performing “blow job imitations” -- and that it was embarrassing and causing constant pressure at work.

Co-workers began to speculate that Lamas was a homosexual -- so in addition to having to deal with Munoz’s remarks and gestures, Lamas had to face co-workers remarks suggesting that he was gay. Lamas complained to four different Prospect management officials about the harassment, but nothing was done to stop it. Munoz kept up the behavior.

Lamas felt helpless, was crying, and consulted a psychologist about his distress. His performance began to suffer. Lomas was demoted because of “complaints about job performance “and his “negative attitude.” A few monthslater, in June of 2003, Lamas was fired.

The District Court Decision

Munoz filed a lawsuit in the federal district court in Nevada for sexual harassment. The district court concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment for a reasonable man.

In its decision grating judgment against Lamas, the district noted that most men would have “welcomed” the behavior, but Lomas admitted that due to his Christian background he was embarrassed instead. It also noted that Munoz never filed a written report complaining about the conduct. Lamas appealed.

The Ninth Circuit Court Of Appeals Reverses

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in the form of a hostile work environment. Both sexes are protected under the law.

In a hostile environment sex harassment claim, the plaintiff must prove that he or she:

was subjected to verbal or physical conduct of a sexual nature

which was unwelcome

and sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment

In addressing the each of the elements and burden of proof as applied to this case, the Court found the following:

Conduct of a sexual nature

Whether Lamas was subjected to "verbal or physical conduct of a sexual nature" is an "easy question" according to the court.

Munoz propositioned him for sex. Munoz wrote to him that she dreamed of him in a bath, that she gave good “body wash,” and that she wanted him sexually. She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes. His proposition was for sex, not a cup of coffee together. After she recruited coworkers to pressure Lamas, they mocked him suggesting he was homosexual.

Welcomeness

In addressing whether the conduct was welcome or not the Court stated:

It cannot be assumed that because a man receives sexual advances from a woman those advances are welcome. …. This is a stereotype and welcomeness is inherently subjective, so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual advances.

Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.

… Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome.

Severe or Pervasive

It is well established that sporadic use of abusive language, gender-related jokes, and occasional teasing will not, standing alone, establish a hostile environment sexual harassment claim.

As stated above, in order to establish a violation, an employee must prove that the unwelcome sexual conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Whether a working environment is objectively abusive is determined only by looking at all of the circumstances which may include:

the frequency of the discriminatory conduct

its severity

whether it’s physically threatening or humiliating

whether it unreasonably interferes with an employee’s work performance

No single factor is required. In this case, the Court found that:

Monoz’s continued advances created an environment that Lamas reasonably perceived as hostile and abusive. Lamas’ emotional testimony about his co-worker statements about Munoz’s interest in him, his complaints to his supervisors and Prospect managers, as well as his complaints to the EEOC and State of Nevada all evidenced pervasiveness amounting to an abusive work environment.

Prospect Airport’s Response

An employer is liable for an employee’s sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. According to the Court:

The record established that a jury could reasonably find that Prospect knew about the harassment, and that its response was inadequate. Lamas complained to his employer, but Prospect’s responses were ineffectual, and known by Prospect to be ineffectual. … Prospect’s actions were not enough to establish an affirmative defense for Prospect.

With that, the case was reversed.

Take Away

What was really interesting about the case was the district court’s reaction to the evidence -- that is, this was not a case of sexual harassment because Lamas’ reaction to the sexual advances was not the same reaction most men would have. Other judges may have a tendency to view the evidence the same way.

This opinion clearly addresses the problem of erroneously stereotyping men in the context of a sexual harassment case in which the man is the victim. It doesn't come up all that often, but when it does, this new opinion for the Ninth Circuit should be very helpful to male employees who find themselves in a similar situation.

images: www.rollingrains.com www.stencilease.com

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Ellen Simon — Wed, 29 Sep 2010 03:06:51 -0700

Here are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday -- where witnesses talked about the "shockingly slow rate of progress" for women in corporate management positions and the "motherhood wage penalty."

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation -- including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail -- in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,00 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone -- while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

images: www.house.gov www.window.state.tx.us

Employee Rights Short Takes: Don't Ask, Don't Tell, 8 Million Dollar Verdict For Cancer Victim, Race Discrimination And More

Ellen Simon — Sat, 18 Sep 2010 09:50:16 -0700

Here are a few short takes about discrimination cases that made the news this week:

Don’t Ask Don’t Tell Is Unconstitutional

United States District Court Judge Virginia Phillips ruled last week that “Don’t Ask, Don’t Tell” (DADT) is unconstitutional because it violates both the first amendment free speech and fifth amendment due process rights of gay and lesbian service members. Judge Phillips is expected to issue an injunction that would bar the federal government from enforcing DADT though government lawyers contend that Phillips does not have the authority to do so. For a good NY Times editorial about it read here. For the opinion, read here.

Goldman Sachs Sued For Gender Discrimination

Three former female employees at Goldman Sachs sued the investment bank claiming that it is guilty of systematic discrimination against women. The lawsuit alleges that Goldman discriminates in pay and promotion and that a persistent pattern of bias has resulted in the underrepresentation of women in the firm’s management ranks. Sex discrimination violates Title VII of the Civil Rights Act of 1964. For more about the case read here.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Earlier this year, Goldman and CitiGroup were sued over allegations that the banking firms discriminated against working mothers. Unfortunately, I don’t think we have come close to the end of reading about these kinds of cases in this particular industry.

Roadway Express Settles Racial Harassment Case For $10 Million

The EEOC announced on Wednesday that a federal magistrate in Chicago granted preliminary approval of a 10 million dollar, five-year consent decree which will settle a race harassment and discrimination case filed against Roadway Express and YRC, Inc. Race discrimination and race harassment violate Title VII of the Civil Rights Act of 1964.

The suit included allegations that the company subjected black employees at its Chicago Heights and Elk Grove Village facilities to a racially hostile work environment and racial discrimination including multiple incidents of hangman's nooses (unbelievable that this still goes on) racist graffiti, racist cartoons, and racist comments.

The EEOC also planned to present evidence that black employees were subjected to harsher discipline and scrutiny that their white counterparts and given more difficult and time-consuming work assignments than white employees.

According to the EEOC, black employees complained over a number of years about all of these conditions but the company failed to take any corrective action.

Cancer Survivor Wins $8.1 Million Verdict For Wrongful Discharge

Lawyers USA reported news of an $8.1 million dollar verdict earlier this month in a case against Michaels Stores, Inc for a Florida woman who was fired after taking time off to get treatment for cancer. Yes, getting fired because of cancer is still a somewhat regular occurrence I am sorry to report.

(Discrimination because of cancer violates the Americans with Disabilities Act. (“ADA”).Employees who work for companies with 50 or more employees are entitled to leave under the Family and Medical Leave Act.)

According to the article, Kara Jorud was viewed as an exemplary manager until she went out for double mastectomy surgeries. After that, she received a number of calls from her supervisor urging her to come back to work even though she was projected to need nine to ten weeks of recovery time.

Her job was threatened four days after she returned to work in August of 2008, and within thirty days she was fired. Jorud was accused of a variety of petty offenses. She showed, with evidence from more than twenty co-employees, that others committed similar offenses and were not fired.

The jury awarded Jorud $4 million for pain and suffering, $100,000 in back pay, and $4 million dollars in punitive damages. The court will also be awarding attorneys fees and costs.

It’s not only illegal to fire someone with cancer, it’s a stupid business decision that can obviously offend the sensibilities of many potential jurors. A full and complete damage award –which can often mean a sizable verdict -- is not a surprising outcome in this kind of case.

image: www.ajsgarage.com www.topnews.in www.appliedplanning.com

Tenth Circuit Decides Important Age Discrimination Case

Ellen Simon — Sun, 12 Sep 2010 07:48:58 -0700

A Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction. The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

The Tenth Circuit Court Of Appeals Reverses

Interpreting "But For" Causation Under Gross v. FBL Financial Services, Inc.

The first issue addressed by the Court involved an interpretation of the Supreme Court’s Gross v. FBL Financial Services, Inc. 2009 decision and it’s an important holding for anyone litigating a case under the ADEA.

The ADEA prohibits an employer from discriminating against an individual in employment “because of such individual’s age.” The statute, which does not define “because of”, was interpreted in the Gross decision to require “but for” causation.

OKC contended this required a plaintiff to prove that her employer was motivated solely by age discrimination when making an adverse decision. In other words, “but for” causation under the ADEA means that age must have been the only factor in the employer’s decision making process.

The Tenth Circuit rejected the argument. It stated:

The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA (citations omitted). Moreover, we have concluded that this causal standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted)

Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ (citations omitted)

Gross does not hold otherwise … and does not place a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.

McDonnell Douglas Applies To the ADEA

Under the McDonnell Douglas framework of proving discrimination claims, a plaintiff may survive summary judgment by proving circumstantial rather than direct evidence of discrimination. To do that:

the plaintiff must first demonstrate a prima facie case of unlawful discrimination

if she succeeds at this first stage, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason the adverse employment action

once the employer advances its reason, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual

Most circuits have long held that plaintiffs can use the McDonnell Douglas three step analysis to prove age discrimination. The problem is that Gross left open the question of whether the McDonnell Douglas framework was applicable to the ADEA. The Court addressed the issue. It stated:

Although we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims. .. While Phillips (citation omitted) is not precedential, we agree with its reasoning and join all of our sibling circuits that have addressed this issue. (citations omitted)

In sum, the Tenth Circuit joined the majority of other circuits, in holding that McDonnell Douglas applies to ADEA cases which permits proof of discrimination through a framework of inference and circumstantial evidence.

Jones Suffered An Adverse Action

In applying McDonnell Douglas to the case, Jones was required to prove that:

1) she was a member of the protected class

2) she suffered an adverse employment action

3) she was qualified for the position at issue and

4) she was treated less favorably than others not in the protected class

OKC did not dispute that Jones was protected by the ADEA, qualified for her former position, and that she was treated less favorably than others not in the protected class.

It contended that she did not suffer an adverse employment action because she remained in a job with similar responsibilities and a daily rate that was almost exactly the same as her per diem rate as a director. Therefore, according to the defense, she had no case.

The Court rejected this argument pointing to evidence of:

a $17,000 decrease in salary the following year after her reassignment
an immediate reduction of vacation benefits
a reduction of retirement benefits

The Court also noted:

Although OKC argues that Jones did not experience a demotion, she certainly lost professional prestige and fell to a lower position in the district’s hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay is not sufficient to constitute an adverse employment action is simply incorrect. All told, the record in this case conclusively shows that Jones suffered an adverse employment action and proved a prima facie case of age discrimination.

The District Court Erroneously Applied A “Pretext Plus” Standard

In discrimination cases which use the McDonell Douglas framework, once the employer advances its reason for the adverse employment action, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual – in other words, not believable or false.

As explained by the Court:

A plaintiff produces sufficient evidence of pretext when she shows such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that her employer did not act for the asserted non-discriminatory reasons.

There was a period of time in which some courts required plaintiffs using the McDonnell Douglas framework to show pretext plus produce additional evidence of discrimination in order to avoid summary judgment. In 2000, the Supreme Court squarely rejected the so called “pretext plus” standard in Reeves.

As the Court noted:

Reeves expressly held that 'a plaintiff’s prima facie case [of discrimination] combined with sufficient evidence to the find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'

No additional evidence is necessary because proof that the defendant’s explanation is unworthy of belief is simply one form of circumstantial evidence that is probative of intentional discrimination.

In this case, OKC proffered two reasons for Jones reassignment:

the superintendant’s reorganization of IKC’s executive team was done in a revenue ne-neutral fashion

the superintendant’s belief that Jones former position contained only narrow duties that could be absorbed by other directors

Jones produced evidence of pretext:

her former position stayed on the books for the 2007-2008 fiscal year

staff in her department stayed employed in the same positions after her transfer

a new position, with duties just like her former position, was created shortly after her transfer

She also produced evidence of discrimination which included age-related comments by three executive directors all involved in the reassignment decision.

The district court concluded that Jones had created only a weak issue of fact as to whether the employer’s reason for its decision was untrue and that there was abundant evidence that no discrimination had occurred.

The Court of Appeals reversed. It held that Jones’ evidence was sufficient to satisfy McDonnell Douglas’s third step and that the district court’s grant of summary judgment was improper.

According to the Court, the district court:

“improperly favored OKC’s version of the facts" when it was “required to view the facts in the light most favorable to Jones.”

refused to consider Jones' evidence of discrimination which included age-related comments by three executive directors all involved the reassignment decision

erroneously applied “pretext plus.”

As the Court stated:

Rather than properly applying Reeves, the district court erroneously held Jones to the discredited pretext plus standard. The court faulted Jones for not presenting ‘additional evidence that age was a determining factor in her reassignment. But after showing that OKC’ s reasons for her transfer were pretextual, Jones was under no obligation to provide additional evidence of age discrimination. (citations omitted) Accordingly, . . . we reverse the district court’s grant of summary judgment and REMAND for further proceedings.

Take Away

This case covers so much territory on the ever changing battlefield of age discrimination law. It should be very helpful to those facing arguments under Gross which suggest that plaintiffs in age discrimination cases should be held to a higher or different standard of proof than employees in other kinds of discrimination cases.

It gives a much needed reminder that an application of “pretext plus,” even when disguised in a different form, is reversible error.

The case also serves as an admonition to courts to refrain from the all too common practice of crediting an employer’s version of facts over an employee’s instead of viewing the facts in the light most favorable to the employee opposing summary judgment.

Even though Reeves has been around for ten years, it seems that some just don’t get it, so thanks to the Tenth Circuit for this very cogent reminder.

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Employee Rights Short Takes: Employees Win Sex Discrimination Cases On Appeal And More

Ellen Simon — Sat, 04 Sep 2010 14:00:50 -0700

Here are three Short Takes about some interesting sex discrimination cases worth noting:

Verizon Field Technician Wins Hostile Environment Case

A Verizon field technician scored a significant victory in the Second Circuit Court of Appeals last month in the case of Pucino v. Verizon Communications, Inc. Pucino claimed that she was singled out because she was a woman, subjected to vicious treatment, harsh and dangerous work conditions unlike her male counterparts, denied equipment, denied access to public restrooms, forced to use bathrooms without locks, denied overtime, subjected to discipline for conduct that was commonplace among the men, and constantly referred to as a “bitch” and “stupid”.

The district court concluded that the challenged conduct amounted to “nothing more than minor annoyance and inconveniences” and that the allegations were too conclusory and non specific because Pucino stated that the alleged abuse occurred “constantly” and “frequently.”

The Second Circuit Court of Appeals disagreed stating that a trier of fact “might easily find that the harassment and abuse was sufficiently severe to alter Pucino’s working conditions” and that a “plaintiff, need not recount each and every instance of abuse to show pervasiveness” in order to prove a sexual harassment hostile environment case.

The case is particularly important on this last point – that is, that the victim is not required to present a list of specific acts in order to prove a sexual harassment case. Pucino’s testimony that the abuse, which was described in some detail, constant and corroborated by other witnesses, was sufficient to support the claim.

Police Officer Wins Appeal On Denial Of Promotion Sex Discrimination Case

The Fifth Circuit Court of Appeals affirmed a jury verdict last week in favor of a female police officer whose constitutional rights were violated when she was denied a promotion to the position of Detective because of her sex in the case of Lewallen v. City of Beaumont.

Although “a female employee is not required to show that she was a more qualified applicant than her male counterpart" to prove sex discrimination in employment, stated the Court, Tina Lewallen presented evidence that she had numerous attributes that made her more qualified for the Detective position than either of the male applicants that were selected instead of her including :

a college degree
more experience
an outstanding reputation
extra law enforcement training
receipt of a highly prestigious award

As the Court stated:

Based on the extensive record evidence of the disparity between the relative qualifications of Lewallen and Breiner, a reasonable jury could find that Lewallen was the better of those two applicants – indeed, the best among all four applicants – and the the Department’s profferred reasons for choosing the two make applicants ahead of Lewallen were but a gossamer pretext for sex-based discrimination.

In addition to the award to the plaintiff, the appeal affirmed an award of attorneys fees of $428, 421.75.

It’s important to understand that a victory in many civil rights cases includes an award of attorneys fees to the prevailing party. Therefore, Defendant employers in civil rights cases should carefully consider the strength of their defense before taking it to to a jury. This case is a good example of how a relatively small monetary award to the employee can result in a huge loss to an employer.

EEOC Settles Sexual Harassment Class Action Case For 5.8 Million

The Equal Employment Opportunity Commission announced on Thursday that ABM Industries and ABM Janitorial Services will pay $5.8 Million dollars to settle a class action sexual harassment lawsuit involving 21 Hispanic female janitorial workers. The class members asserted that they were victims of varying degrees of unwelcome touching, explicit sexual comments and requests for sex by 14 male co-workers and supervisors, one of whom was a registered sex offender.

According to the EEOC, some of the harassers often exposed themselves, groped female employees’ private parts from behind and even raped one of the victims. The suit charged that ABM failed to respond to the employees repeated complaints of harassment. The case, filed in 2007, claimed the conduct violated Title VII of the Civil Rights Act of 1964.

images: www.google.com/imgres bensbiz.mlblogs.com aremploymentlaw.com

Employee Rights Short Takes: Sex Discrimination, Retaliation And More

Ellen Simon — Thu, 22 Jul 2010 11:15:00 -0700

Here are three Short Takes about discrimination cases that made the news this month:

Jury Awards Over 1M In Sexual Orientation Discrimination Case

A Maine jury awarded over one million dollars to a man who claimed discrimination based on sexual orientation. According to the Portland Press Herald, it’s the largest award of its kind to date in Maine. The plaintiff, Guy Loranger, contended that he was repeatedly denied promotions by his former employer, Express Jet Airlines, because he was gay. Jurors awarded Loranger $500,000 for emotional distress, $500, 000 for punitive damages, and $47,000 in lost wages – though his attorney speculated that the overall award would be capped by the judge at $547,000 plus attorney’s fees and costs.

Maine is one of about half of the states in the U.S. which prohibits employment discrimination based on sexual orientation.

D.C. Police Officers Win Retaliation Case

Five police officers in Washington, D.C. won a lawsuit in which they alleged they were retaliated against after filing racial discrimination complaints. The officers claimed that four days after they submitted an anonymous race discrimination complaint, the unit’s employees were told they would have to reapply for their jobs. Over the next two months, the five wrote and filed formal complaints with the D.C. Office of Human Rights and the federal government. Later, each was assigned to a less desirable post. After an eleven day trial, the jury ruled in favor of all five officers and awarded $900,000 damages plus legal fees.

Title VII of the Civil Rights Act of 1964 prohibits retaliation against an employee who complains about discrimination.

Transgender Employee Wins Equal Protection Sex Discrimination Case

It’s almost unheard of for a plaintiff to win a case on summary judgment but that’s what happened in Glenn v. Brumby decided by the U.S. District Court for the Northern District of Georgia earlier this month. In its opinion, the court ruled in favor of a transgender employee whose constitutional rights were violated when she was fired after advising her employer -- the Georgia General Assembly -- of her plans to have a sex change. The plaintiff’s supervisor decided to terminate her after concluding that her transition from male to female would be too disruptive of the workplace.

The plaintiff brought suit under 42 U.S.C. s.1983 claiming a violation of the equal protection clause. The court held that she proved sex stereotyping under the U.S. Supreme Court’s Price Waterhouse decision, and that the defendant failed to come forward with proof that it terminated Glenn for a legitimate, nondiscriminatory reason. It said:

The record demonstrates that the plaintiff’s desire to come to work dressed as a woman did not comport with how [the supervisor] believed a biological male should act and that served as a basis for her termination. The record also indicated that [her supervisor] was concerned about negative reactions from others …Neither is an ‘exceedingly persuasive justification,’ and neither explanation is sufficient to survive intermediate scrutiny review.

Section 1983 was enacted as part of the Civil Rights Act of 1871. Its primary purpose was to provide a civil remedy against the abuses that were being committed in southern states, particularly by the Ku Klux Klan, in the wake of the Civil War. The law is intended to provide a civil remedy for certain violations of federal law by government officials and is often used to prove violations of the Equal Protections Clause of the Constitution.

Men Win Sex Discrimination Appeal In Ninth Circuit

Male officers can’t be excluded from applying for supervisory positions at a women’s prison according to the Ninth Circuit Court of Appeals in the recent opinion of Breiner v. Nevada Department of Corrections. The Nevada Department of Corrections adopted a policy of hiring only female correctional lieutenants at a women’s prison after an investigation revealed instances of sexual abuse by male guards.

Four male guards sued contending that the policy violated Title VII of the Civil Rights Act of 1964. The state argued that the policy fell within the bona fide occupational qualification exception in Title VII which permits gender based assignment if gender is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e).

The court ruled in favor of the guards and concluded that:

[The state had] not met its burden of showing a ‘basis in fact’ for concluding that all male correctional lieutenants would tolerate sexual abuse by their subordinates; that all men in the correctional lieutenant role would themselves sexually abuse inmates; or that women by virtue of their gender, can better understand the behavior of female inmates.

Title VII prohibits discrimination based on sex. Usually Title VII cases involve women claiming discrimination because of their gender. Cases where men prevail in sex discrimination cases are unusual and worth noting.

images: www.commondreams.org www.wmich.edu/aviation www.google.com/imgres

Eleventh Circuit Delivers Important Opinion On Retaliation Case

Ellen Simon — Fri, 09 Jul 2010 03:48:00 -0700

Employee Gets Trial on Title VII Retaliation Claim

What happens when an employee in a sensitive position complains about discrimination and immediately gets fired because the company claims the employee might use her position to sabotage the business?

It’s a defense that is appealing to many judges, but not one that can be taken at face value according to the case of Alvarez v. Royal Atlantic Developers decided by the Eleventh Circuit Court of Appeals last week.

What Happened In The Case

Eliuth Alvarez, a Cuban-American, worked as a controller for Royal Atlantic Developers, a Miami based real estate development company owned by the Verdezoto family. The Verdezotos also own Royal Flowers International. Edwin Verdezoto is CEO of Royal Atlantic and President of Royal Flowers. Heidi Verdezoto, his sister, is CFO of both companies. The two companies have over 50 employees.

Alvarez had eighteen years of experience in accounting, auditing, and controllership at the time she arrived at the company. Alvarez reported to the Chief Financial Officer, Heidi Verdezoto.

By all accounts Heidi Verdezoto was impossible to please. Alvarez’s two predecessors were fired by her within two to three months of their hiring because they failed to meet her standards.

Alvarez suffered the same fate. About four months after she was hired, the Verdezotos decided to fire her but wait until a replacement was found before the termination was to take place.

Alvarez got wind of the plan and wrote a letter of protest to her bosses, complaining, among other things, about what she believed to be discrimination against her because of her national origin. The Verdezotos read the letter and fired Alvarez the next morning because of it.

Alvarez filed a lawsuit in federal court in Florida claiming discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The company defended by claiming that Alvarez did not prove discrimination because of her national origin and that she was fired because of poor performance.

Regarding the retaliation claim, the company claimed there was no causal connection between Alvarez’s letter and her firing because she was going to be fired anyway. In addition, the company claimed that even if her letter of complaint was a factor in the firing, it had a legitimate non-retaliatory reason for firing her immediately, specifically because:

it would be "awkward" and "counterproductive" for Alvarez to remain in the office after she expressed such unhappiness with the job

it feared that she might use her position as controller to sabotage the company’s operations

The district court granted judgment in favor of the company. On the discrimination claim, it found that Alvarez did not show that she was replaced by a non-Cuban or that similarly situated non-Cubans were treated more favorably than she had been. On the retaliation claim, the court concluded that the company offered legitimate reasons for firing Alvarez. Alvarez appealed.

The 11th Circuit Reverses The Retaliation Claim

Title VII’s anti-retaliation provision (42 U.S.C. 2000e-3(a))makes it unlawful for an employer to discriminate against an employee:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter

To prove a case of retaliation under Title VII, the plaintiff must show:

that she engaged in statutorily protected conduct
that she suffered an adverse employment action
there is some causal connection between the two events

There was no dispute that Alvarez engaged in statutorily protected conduct when she raised issues of discrimination in her complaint letter. The company argued, however, that there was no adverse action because there were plans underway to fire Alvarez even if she had not complained about discrimination in her letter.

The Court rejected this argument The evidence showed that the letter caused Alvarez to be fired the day after she mailed it – sooner than she would otherwise have been fired – and that the Verdezotos decided not to wait until they found a replacement as they had planned. This was sufficient, according to the Court, to establish the “adverse action” part of her retaliation claim.

One of the other reasons given by the defendant for firing Alvarez -- that it would be "awkward" and "counterproductive" to keep her around -- was also rejected by the Court. It stated:

Anyone who complains about unlawful discrimination is not likely to be a happy camper. ….And it will always be “awkward” and perhaps “counterproductive” in the business sense, to work with people who complain that you have discriminated against them.

But recognizing these concerns as legitimate, non-retaliatory reasons to fire someone who complains about unlawful discrimination would do away with retaliation claims and the protection they provide to victims of discrimination.

The final reason give by the company for firing Alvarez after it received her letter of complaint -- that it had to get rid of her because the Verdezotos were afraid that she might vindictively use her position as controller to sabotage the company’s operations --was also rejected by the Court after careful consideration.

The reason was because there was simply no evidence that the proffered reason was a valid one. As the Court pointed out:

Her letter contains no threats against the company or anyone else, nor does it provide a reasonable basis for inferring that Alvarez would try to disrupt operations. … And, of course, there is no evidence that Alvarez’s continued employment posed a physical danger to the Verdezotos or their other employees. The company was not entitled to summary judgment on this ground.

With that, the Court concluded that Alvarez would be entitled to prevail unless Royal Atlantic could convince a jury that:

if they didn’t fire Alvarez immediately she would sabotage their operations or harm others and

there was no less drastic means of reliably preventing that other than firing her

The Court also stated that Alvarez would be entitled to damages for the length of time she would have remained on the job if she had not sent the letter complaining of discrimination. The Verdozotos both testified that their initial plan was to keep Alvarez on board until they had lined up her replacement. At the time of oral argument of the appeal, the controller position remained vacant for three years after Alvarez was fired.

What all of this means is that it looks like Alvarez has a reasonable shot of winning three years of damages representing her economic loss (minus whatever she earned in the interim) when the case goes back to trial (as well as attorney fees if she prevails.)

Take Away

This is a fascinating and important case. It’s not the first time I have heard of a company defending itself by claiming that it had to fire an employee after he or she raised a discrimination claim because the employee could no longer be trusted. It comes up particularly with employees involved with high levels of responsibility and access to confidential information – like in house lawyers and financial executives -- and it’s a defense that is appealing to many judges. That’s why this thoughtful decision from the Eleventh Circuit will be very helpful to victims of retaliation in the future.

It makes sense that a person should not have to worry about losing her job if she exercises her lawful right to raise a concern about discrimination -- even if the complaint makes the employer uncomfortable. Now there's a recent opinion from a high court which confirms this important principle.

images: thebsreport.files.wordpress.com

Employee Rights Short Takes: Age Discrimination Cases In The News

Ellen Simon — Thu, 24 Jun 2010 19:45:50 -0700

Here are two Short Takes about some interesting age discrimination cases that made the news this month:

Forced Retirement At Age 70 Is Illegal

Nini v. Mercer County Community College: Rose Nini was a Dean at Mercer Community College from 1982 until 2005 when her contract expired and was not renewed. She was 73 years old at the time.

According to Nini, the college President, Dr. Robert Rose:

complimented her on her performance but “made it very clear to [her] that he thought [she] had no right to be working at [her] age”

said that employees of her age were considering retirement and suggested she should consider taking early retirement too

told her that people who have been in a job for twenty-five years "lose their effectiveness."

told her that it was her last chance to get an early retirement and leave with dignity.

held meetings with department heads in which he made jokes about getting rid of older employees

held meetings where several people discussed “age and incompetence and being dead wood”

Nini also stated that she heard from another employee that College Human Relations Director Vanessa Wilson said the College had to "get rid of old-timers and bring in new blood."

The lower court granted judgment in favor of the college holding that the college did not violate the New Jersey Law Against Discrimination because the statute allows an employer to refuse to renew an employment contract of an employee over seventy years of age. The Court of Appeals reversed and the the New Jersey Supreme Court affirmed in an opinion issued on June 1^st holding that refusing to renew contracts for employees over the age of 70 because of their age violates the New Jersey’s age discrimination laws.

In other words, the failure to renew a contract because of age is equivalent to a termination -- not a failure to hire --according to the New Jersey Supreme Court. This case is good news for the many employees who are employed with contracts that are renewed year to year, or at the end of a certain term, particularly in states with statutory exceptions in discrimination laws similar to New Jersey’s.

Employees Replaced By Younger Individuals Can Prove Age Discrimination In Workforce Reduction Case

Equal Employment Opportunity Commission v. Tin, Inc.: The EEOC announced last week that Tin, Inc., a manufacturing plant in Glendale, Arizona will pay $250,000 to settle a discrimination case filed by three employees who claimed they were fired because of their age in violation of the Age Discrimination in Employment Act.(ADEA).

The settlement follows a Ninth Circuit Court of Appeals decision in October that reversed summary judgment in favor of Tin and sent the case back to the district Court for trial.

According to the opinion, one of the plaintiffs, Neal, was replaced by an individual 15 years younger as plant manager. The EEOC provided evidence that Neal never received a negative performance review and in fact was told by his supervisors that they were satisfied with his performance.

The company contended that Neal’s younger replacement was better qualified because a facility he had run was profitable.

Interestingly, the Court stated that “the fact that a facility was profitable under one manager and not another does not mean that the two managers qualifications differed.” In addition, according to the Court, there was little evidence of the replacement's success at the plants in question. Therefore, the Ninth Circuit held, the district court erred in granting summary judgment against Neal since material facts were in dispute.

The other two plaintiffs, McGraw and Vanecko, positions were terminated because their positions were eliminated according to Tin. In order to establish an inference of discrimination in this type of case, the Court stated, the plaintiff is entitled to show “that the employer had a continuing need for the employee’s skills and services in that his various duties were still being performed.”

The evidence showed that McGraw’s logistics manager duties were redistributed to the production manger and sales manager who were 20 and 23 years younger. It also showed that Vanecko’ s plant controller duties were given to someone 24 years younger.

In addition, the EEOC presented evidence that the two supervisors with decision making authority over all three plaintiffs made comments from which a jury could find “that they harbored animus towards older workers.” Therefore, the Court concluded that the EEOC provided sufficient evidence from which a jury could find that age was the “but –for” cause of the terminations.

The opinion helps explain the kind of evidence that is useful in proving age discrimination in the often difficult cases of job elimination and workforce reduction.

Evidence of Non-Sexual Conduct Can Support Title VII Hostile Environment Claim

Ellen Simon — Thu, 10 Jun 2010 09:28:44 -0700

Harassing Conduct Need Not Be Sexual To Prove Hostile Environment Claim

When does rude conduct in the workplace support a hostile environment sexual harassment claim? The First Circuit Court of Appeals addressed this important issue in the case of Rosario v. The Department of the Army decided last week and you can bet it’s going to make a big difference in sexual harassment cases down the road.

What Happened In The Case

Ruth Rosario, a civilian employee, worked at the Rodriguez Army Heath Clinic in Fort Buchanan, Puerto Rico as a medical records technician. Her duties included checking patients in and maintaining computerized medical records.

Rosario worked along side Ivan Arroyo who performed similar duties and trained her. According to the evidence, Arroyo was abusive to Rosario and others on a daily basis.

He threw medical records around, threw personal items in the garbage, disparaged co-workers with derogatory names and made racial comments. According to Rosario, Arroyo:

Constantly criticized her clothes as too revealing

Constantly talked about her underwear

Walked behind her and made faces as he looked at the person she was talking to

Complained about the way she would “walk, move, and talk”

Would get men together to Rosario’s area where they would “meet, and talk, and then point at her and laugh”

Rosario complained to her supervisor, but the conduct continued. About a year after the harassment began, Arroyo became Rosario’s supervisor.

Arroyo continued to criticize and mock Rosario and respond to her in ways she found humiliating. According to Rosario, Arroyo watched whatever she was doing or saying and challenged every decision she made. He told her she was fat, had delinquent children, and told her co-workers that she dressed like a “woman of the streets.” Rosario also presented evidence of sexually oriented jokes Arroyo got from the computer which he talked about and passed around.

As a result of Arroyo’s behavior Rosario felt uncomfortable every day, did not want to go to work, became depressed, started losing her hair, experienced panic attacks, and was eventually hospitalized. She needed psychiatric treatment, medication, and attributed the breakup of her marriage to her situation at work.

Rosario filed a formal discrimination complaint with the Army’s Equal Employment Opportunity Office. The agency found against her.

The Lower Court Rules Against Rosario

At the conclusion of the Army’s EEO proceedings, Rosario filed a lawsuit alleging gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. After dropping the national origin claim, the Federal District Court ruled on Rosario’s gender-based hostile work environment claim and found against her.

The court held that the record showed “Mr. Arroyo [to be] a rude man that lacked courtesy and professionalism,” but the evidence was inadequate to prove a violation of Title VII. The court granted summary judgment in favor of the defendants. Rosario appealed.

The 1st Circuit Reverses

Legal Principles of Hostile Work Environment Claims

Here’s some basic legal principles regarding sexual harassment claims which the First Circuit relied on in making its decision:

In order to prove a sexual harassment hostile environment claim, the plaintiff must demonstrate that the complained of conduct was sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment and create an abusive work environment (see Harris v Forklift Systems, Inc)

While ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to a hostile work environment, the accumulated effect of repeated verbal attacks and physical intimidation in the workplace may reasonably be found to constitute sexual harassment (See Oncale v. Sundowner Offshore Services, O'Rourke v. City of Providence)

Where a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile environment claim.(See O'Rourke)

The Court’s Reasoning

According to the Court, even if Arroyo’s behaviors could be reasonably viewed as offhand comments or isolated episodes, some of which may have been motivated by legitimate workplace concerns, a jury could draw a different view from the record.

For example, the Court noted, there was evidence that throughout a two year period Arroyo:

complained abut Rosario’s appearance on a daily basis

regularly drew the attention of her co-workers to her body and undergarments

shadowed her closely when she interacted with patients

challenged her decisions

mocked her when she spoke to him

described her as a street woman to other employees

criticized her to doctors and patients

The Court further noted that:

Rosario’s allegations were substantiated by multiple witnesses at the EEO hearing, including Arroyo’s immediate supervisor

Arroyo’s supervisor testified that Arroyo treated other females who worked at the clinic harshly stating that “he’d just intimidate them”

Arroyo’s conversations with others about Rorsario’s underwear “and especially her panties”, as well as his references to her as a "woman of the streets" in conversations with Moldonado and “other guys” provided additional support for a finding that his behavior toward Rosario was sex based

The sexually oriented jokes suggested a lack of respect by Arroyo for his female colleagues, lending weight to the inference that his behavior toward Rosario was inappropriately motivated by gender

In addition, the court noted that the defendant’s focus on the absence of evidence showing that Arroyo was attracted to Rosario was “misdirected.”

The Court stated:

Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. …

The fact that certain complained-of conduct appeared to have no sex-based connotation at all – for example, throwing her food away and removing items from her desk – does not diminish the force of the evidence indicating gender-based animus. Indeed, as we have noted, such acts may be added to the mix in assessing a hostile work environment claim.

In sum, according to the Court,

Rosario presented evidence of longstanding harassment that interfered with her work on a daily basis and ultimately caused harm to her emotional stability and health …..A jury could reasonably find that Rosario met her burden to show conduct that created a hostile work environment within the meaning of Title VII. Hence we vacate the district court’s award of summary judgment for defendants …

Take Away

This case does not present the usual facts which support sexual harassment claims --unwelcome sexual advances and requests for sexual favors-- and that's what makes it so important. It's a fantastic example of other kinds of evidence of gender animosity that can support a hostile environment claim.

It is clear from this decision that intimidating and abusive behavior which is non-sexual can support a hostile environment case as long as there is evidence of gender animus or gender discrimination. The legal point is not obvious to many, including many judges, and that's why this case will be so helpful to so many.

The case also helps address the defense argument raised so often in an effort to get sexual harassment cases dismissed -- that Title VII is not a civility code. The Rosario decision illuminates evidence of rude, intimidating behavior -- which has nothing to do with sexual advances or sexual references -- which can support a sexual harassment claim. Three cheers for the First Circuit for getting it right.

images: resources3.news.com dianamaierlaw.com

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Ellen Simon — Mon, 24 May 2010 03:15:40 -0700

**Here are a few Short Takes worth sharing:**

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University's Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue of the Clark Memorandum, a publication of BYU's J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates -- including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

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