Employee Rights Post : Ellen Simon's Employee Rights Post : Employment Lawyer & Attorney : Workplace Discrimination & Harassment Advice & Consultations

An article by the Associated Press  about Pope Benedict XVI's remarks on Saturday regarding the danger of genetic discrimination has generated a good deal of comment. What is genetic discrimination?

In sum, there are now more than 1,000 genetic tests for various disorders. These tests assess risk for illness ranging from prenatal tests for Down syndrome and birth defects to tests given to individuals with a family history of colon cancer, ovarian cancer and Huntington's disease to name a few. The medical community  strongly advocates the use of testing to help prevent disease and illness. Genetic discrimination refers to adverse decisions which are made as a result of those test results.

According to the Associated Press, Pope Benedict XVI said Saturday that any type of discrimination based on genetic factors,  such as a risk for cancer or other ailments, is an attack against all of humanity:

One's biological, psychological and cultural development and health can never become an element for discrimination.

The article went on to point out that the Pope's comments  were made in reference to to a screening mechanism for embryos created for testing prior to in-vitro fertilization. It comes as no surprise that the Vatican is strongly opposed to the practice.

The issues surrounding genetic discrimination however are far broader particularly as they relate to employment. I did a television interview about this topic last spring. Here's the problem.

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A recent ruling can have a positive financial impact for winning employees in discrimination cases and both plaintiffs and their counsel should know about it. The Third Circuit decision in Eshelman v. Agere Systems addresses a long term tax problem the employment bar has been struggling with for years. 

Here’s the explanation. Awards in discrimination cases usually entail an amount called “backpay” which compensates the victim for wages lost as a result of the discriminatory conduct. So, for example, if a person was wrongfully discharged because of his race and it took him three years to find a new job, the jury is entitled to award three years of “backpay.”

The problem is that when awarded in a lump sum, the taxes owed are more than they would have been had the employee paid the taxes in three consecutive years of work or in the normal course of employment. This result doesn’t jive with the law which entitles the employee to be restored to the economic position he would have been in but for the employer’s conduct.

The lawyer representing Joan Eshelman, who won this important disability discrimination case discussed  here on February 18th, asked the judge in a post-trial motion for an amount to compensate Eshelman for the negative tax consequences of the lump sum back pay award.

The judge granted the request and the Third Circuit Court of Appeals agreed:

We hold that a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create. Our conclusion is driven by the “make whole” remedial purpose of the anti-discrimination statutes. Without this type of equitable relief in appropriate cases, it would not be possible ‘to restore the employee to the economic status quo that would exist but for the employer’s conduct.'

In order to obtain the additional award, employees must be prepared to prove the loss. In Eshelman, the plaintiff provided an affidavit from an economic expert who calculated the amount of tax effect, the applicable tax rates, and Eshelman’s tax returns for the years in question, a method of proof which was approved by the court.

Several years ago, as reported in Lawyers Weekly USA, we got the trial court  in one of our cases to instruct the jury on this issue. In other words, the jury charge included language informing them that the award to the plaintiff would be taxed at a higher rate as a result of the lump sum award than if the plaintiff employee had collected the same amount in income over several years. We provided economic testimony on the issue so that the jury had the appropriate calculations.

Groups advocating for both employers and employees have been trying to address this tax problem for years. We now have precedent to address this issue on a case by case basis. When the Civil Rights Tax Relief Act is reintroduced, Congress should pass it and rectify this situation once and for all.

Image:hffo.cuna.org

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The Wall Street Journal  Law Blog  today discussed a Wall Street Journal article about the disproportionate rate at which plaintiffs' employment  discrimination cases are lost in federal court and asked: Is the federal bench biased against discrimination cases?  As reported:

From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy. 

This is no coincidence. To those of us who have been representing employees in discrimination cases for many years the data comes as no surprise.  We know this because we have lived it. 

Our experience is that many federal judges are hostile to our cases and so are their law clerks.  All you have to do is read the comments to the WSJ Law Blog  today where the former federal law clerk refers to these cases as "dogs" to get a flavor of the attitude.

It is indisputable that far too many federal judges decide to disregard the Federal Rules of Civil Procedure and Evidence when it comes ruling on discrimination cases:

• Rather than let the juries decide when material facts are in dispute as the rules require, judges routinely decide to parse through the evidence, weigh each piece separately, and decide why each is not enough to support a claim.  
• They routinely and improperly assess the credibility of the testimony, a task specifically assigned to juries not judges.
• They routinely disregard the employee's evidence, and that of their co-workers, while giving credence to the self serving evidence of the employer. 
• Even when there is direct evidence of discrimination -- like "you're too old to do this job" -- or "women just be at home with their kids"-- it will often be dismissed as a "stray remark" too remote in time to be considered, or not made by someone influential enough in the decision.
• In sexual harassment cases, the judges often decide that the harassment may indeed have occurred but that it wasn't severe enough for a jury to consider.

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Three cheers for the Third Circuit Court of Appeals. In Eshelman v. Agere Systems, Inc., the Court issued a much needed opinion in favor of a cancer victim under the American with Disabilities Act . 

While it might seem obvious to some that discriminating against people who have cancer is against the law, it’s not all that obvious to most courts.

I represented a woman named Christine Hood several years back who was fired for going to chemotherapy treatments. Though it sounds outrageous to most, both the trial court and the court of appeals threw out the case finding that Chris was not protected under the law (the Ohio anti-discrimination statute).

The case, Hood v. Diamond Products, Inc. went all  the way to the Ohio Supreme Court which ultimately found that yes indeed, "cancer could be considered a handicap."  The decision allowed Ms. Hood to have her day in court and proceed with her claim (it took ten years). So while it saddened me to see that cancer victims are still fighting for their right to be protected from discrimination, it warmed my heart to read about this recent victory. 

Joan Eshelman was a twenty year employee diagnosed with and treated for breast cancer. As a side effect of her chemotherapy Eshelman suffered  a cognitive dysfunction resulting in short term memory loss.To compensate, she carried a notebook  and also made arrangements for help with appointments which required driving.

With these adjustments, the parties agreed that she excelled at her job and she continued to receive outstanding performance evaluations. In spite of her strong record, Eshelman was selected for layoff  during a company restructuring in 2001.

Eshelman sued under the American with Disabilities Act. She didn’t allege that she was disabled, but instead claimed that she  was terminated  based on her employer’s belief that she was disabled, or because of her record of disability. The jury found in her favor and awarded $170,000 in back pay and $30,000 in compensatory damages in 2005. On appeal, the Third Circuit affirmed the verdict on January 30,2009.

Because Bailey's testimony afforded the jury a sufficient basis to conclude that Agere slated Eshelman for termination based on its perception -- whether accurate or not -- that her cancer-related memory problems rendered her unfit for any job . . . we must not disturb the verdict insofar as it is based on  a "regarded as" disabled theory.

Even though laws prohibiting disability discrimination have been around since 1974, it’s still really tough for cancer victims to fight prejudice in the workplace. The New York Times reported today that cancer surviviors are 37 percent more likely to be unemployed than healthy peers. That’s why this new Third Circuit decision is such an important case. People with cancer are often discriminated against but are unable to meet the requirement of permanent disability under the ADA and a result their cases are often dismissed. The ADA prohibits discrimination of those “regarded as” having a disability, or having “a record of” a disability in addition to those individuals who are actually disabled.

This case sets forth a clear and well reasoned decision for cancer victims seeking to challenge discriminatory employment decisions which affect their lives. The new ADA amendments should also help.

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In his address at the Democratic convention, Barack Obama said:

Surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in the hospital and to live lives free of discrimination.

Do most Americans agree?  Recent studies show that the answer appears to be yes.Surveys show that 72% of Americans support laws which prohibit employment discrimination on the basis of sexual orientation. Recent data reported by The Salt Lake Tribune indicates that even in Utah, one of the most conservative states in the country, a majority supports expanded legal protections for gay and trans gender coupes and individuals.  A poll commissioned by the Tribune of 500 registered voters found that :

56 percent of respondents favor legal protections for same-sex couples such as hospital visitation and inheritance rights and employment protections

The Equality Utah poll of 600 Utahns, also reported in the Tribune at the end of January,  found:

• 62% supported making it illegal to fire workers because of sexual orientation
• 56.5 supported making it illegal to deny housing because of sexual orientation
• 63% favored providing gay and lesbian couples with hospital visitation, health insurance, and inheritance rights

Unfortunately, even though anti-discrimination laws have broad support, only 20 states have such laws in effect. That leaves most gay individuals vulnerable to lawful discrimination.  In other words, just to be clear, this means that an individual can be fired because an employer finds out he is gay and chooses to fire him for that reason.  It also means than an employer can lawfully maintain a policy of not hiring gays or lesbians.

It’s about time that the Congress get in line with the majority view of this country and pass legislation prohibiting discrimination against the gay, lesbian, and transgender community who are certainly entitled to equal opportunity just like other Americans. The Employment Non-Discrimination Act should be passed.

Image: http://www.abc.net.au/reslib/200703/r129060_424471.jpg

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Can a plaintiff support her sexual harassment claim with evidence of sexual harassment she did not observe? According to the Fourth Circuit Court of Appeals in Ziskie v. Mineta the answer is yes.

Cynthia Ziskie sued the Federal Aviation Administration for creating a sexually hostile work environment.

In support of her claim, Ziskie submitted affidavits from co-workers containing examples of crude and inappropriate behavior (i.e. making fun of pregnant worker’s breasts, commenting that women should be home taking care of children instead of working, calling a woman "an alien with big boobs" , calling a woman a “stupidvisor”, telling a female supervisor to “fuck off ”, etc.)

The District Court threw out Ziskie’s case holding that Ziskie’s sexual harassment was not severe enough to support the claim. The District Court refused to consider the affidavits of the other female employees and would only consider what Ziskie personally experienced. In reversing the decision of the District Court, the Fourth Circuit Court of Appeals said:

 When examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself. Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment.

The opinion noted that the district court’s “blanket refusal” to consider the testimony of the other women was inconsistent with the Federal Rules of of Civil Procedure  and Evidence which require that all relevant evidence be considered:

Even if  Ziskie did not witness the conduct  described herein, it is nonetheless relevant because it could contribute to the evidence offered to show that the workplace environment at the Washington Center was indeed a hostile one.

This is a hugely important decision for victims of sexual harassment. In order to prevail in these cases, the plaintiff must prove that the harassment was severe or pervasive. Far too often claims of sexual harassment fail, as did this one initially, because the judge finds that the victim’s testimony alone does not meet that burden. In other words, yes some harassment may have happened, but it wasn’t “severe or pervasive” so you lose and the case is thrown out.

This decision, which allows the testimony of the co-workers to establish the severity or pervasiveness of the sexual hostility in the workplace, will go a long way in helping women assert their rights.     

image: http://www.worktrauma.org/CKF60026.JPG

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There was an interesting decision recently which affected the rights of the disabled: Californians for Disability Rights v. Mervyn's,LLC , that didn’t get the attention it deserved.   

An organization representing disabled individuals (Californians for Disability Rights) sued a retailer  (Mervyn's) claiming that its store violated the American with Disabilities Act and California state law. Disabled shoppers, the suit claimed, were unable to reach the merchandise because of the narrow pathways and the way in which the merchandise was displayed.

The Court of Appeals held that since a retail store was a place of public accommodation under the ADA, the store was required to remove architectural barriers and make its goods and services available to the disabled. The Court also noted that the store failed to provide adequate customer service as an alternative method of making the merchandise accessible.

According to Sid Wolinsky, one of the lawyers for the advocacy group representing the plaintiffs, as reported in the San Francisco Chronicle last July:

"It means that every retail establishment that is newly built or substantially remodeled in the last 15 years - from 1993 on, the date of the Americans with Disability Act - must comply with regular building standards," said Wolinsky. "They have to provide accessible aisles.'"

While Mervin's said that this decision might force it to close stores and announced bankruptcy the day before the ruling,  this is nevertheless an important decision for disabled Americans and one that all retailers need to pay attention to.

Image: http://erachelboardandcare.org/yahoo_site_admin/assets/images/Wheelchair_symbol.262170947_std.gif

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This post was first published in OPEN LEFT.com on September 5, 2009

When I first heard about the Sara Palin announcement, I was incredulous. Like many, I was stumped as to why John McCain would choose a vice presidential running mate who was completely lacking qualifications for the position. The obvious reason, the effort to pick up Hillary Clinton supporters, made no sense. Anyone who supported Hillary did so not only because she was a woman, but certainly because of the causes which she has championed and the positions for which she stands. Sara Palin simply did not fill the bill.

Within minutes of the announcement, I received a call from my eighty-three year old father who has always been a close follower of politics. After the primaries were over my dad was on the fence. He wasn’t sure if he was going to vote for McCain or Obama. This was particularly irritating because he votes in Florida, a state where each vote carries a great deal of weight. And so I was very interested to hear what his reaction to the Palin announcement was.

“He doesn’t deserve to be candidate for President if he could make such a dumb decision. How could he pick someone with no experience when he’s seventy-four years old” (even though McCain is seventy two, not seventy four, I chose not to correct him) Obama’s got my vote.” This brief conversation made my day and I happily relayed it to everyone I know who cared about its significance. If my father thinks like this, so do a lot of older Jewish voters in Florida I thought, and now we have a fighting chance in that important battleground state.

But as the weekend has passed, I realize that I had submerged what was as bothersome to me as Sara Palin’s utter lack of qualifications and that was McCain’s proud pronouncement that “Sara Palin is a feminist.”

I consider myself a feminist. I started volunteering on women’s’ rights issues at the Massachusetts Commission against Discrimination in 1972 when we were fighting not only for equal pay for equal work but on issues that many have forgotten, the right for women to get credit and credit cards, and the right to have gender neutral newspaper listings for jobs, not “men’s jobs” and “women’s jobs” as they were then classified.  From there  I went on to work for the Office for Civil Rights for the federal government’s Department of Health Education and Welfare where we were enforcing the first Title IX investigations to help ensure equal opportunity to male and female high school and college students . We also took on the challenges of enforcement of some of the first sexual harassment guidelines issued by the government. Because of my dedication to civil rights issues, I went to law school and have been working through the years along with so many others at enforcing the rights of women to be treated equally and fairly in the workplace.

 So let me just say it.  Sara Palin is no feminist.  Just because she has children and works does not make her a feminist. In fact, I think that she sets feminism back fifty years.

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 This post was originally published in Today's Workplace www.workplacefairness.org on September 10, 2008

Three years ago, I was interviewed by Court TV about the John Roberts nomination. In preparation, I painstakingly reviewed his record. In so doing, I reached the unpleasant conclusion that Roberts was philosophically opposed to civil rights and other legislation for the public good which Roberts deemed to an improper exercise of congressional power.

 The Roberts point of view, it seemed to me, was that since Congress should not have authored this legislation to begin with, it must be as narrowly construed as possible. This was the only logic I could discern which connected a long record of what appeared to be outright hostility to plaintiffs in civil rights cases.

 I was extremely worried about what might happen with Roberts at the helm of the Court. The Alito nomination, with a record equally as hostile to plaintiffs in civil rights cases as that of Roberts, made me feel even more concerned. The harsh reality of Thomas and Scalia combing with these forces was a truly frightening prospect.

But the fact remains; we never really know with any precision what one will do after ascension to the Supreme Court actually occurs. Nothing surprised me more than the Court’s decision this past year in the decision of Sprint v Mendelsohn 128 S. Ct. 1140 (2008) – and it was a very pleasant surprise indeed. 

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