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

In the spirit of National Equal Pay Day on Tuesday, I wanted to share the important gender discrimination case of Donlin v. Phillips Lighting North America Corp. decided by the Third Circuit last week.

Here's what happened in the case.

Colleen Donlin was hired by Phillips as a temporary warehouse employee at its Mountaintop, Pennsylvania distributions center. Her job was to help prepare orders for shipment.

Like other temporary workers, Donlin applied for a permanent position. She was not hired and her eight month temporary assignment ended.

Donlin got two other jobs after she left Philips. At the first job, Donlin earned  $14.70 an hour, but it was a 32-mile commute.

She left that job and found a job closer to home at which she made $13.00 an an hour. Had she been hired by Philips, she would have earned $14.67 an hour as a base salary

Donlin learned that Phillips hired several men for the position she had applied for after it refused to hire her.  She filed a Title VII lawsuit for gender discrimination,  won the trial and was awarded damages.

In discrimination cases, the compensation which can be awarded by a judge or jury  is designed to make victims whole and put them in the position they would have been in had they not been discriminated against.

A winning employee can recover "back pay" and "front pay."

• Back pay represents losses from the the time of the discrimination up to the time of trial. 
  

• Front pay represents the losses that the victim will experience in the future if he or she does not find a comparable position.

Based on the premise that Donlin would have worked for another 25 years, an advisory jury awarded Donlin:

• $63,050 in back pay
  

• 395,795 in front pay
  

• for a total of $458,845

The award was based on the difference in pay and benefits between the $13.00 hour job she was holding at the time of trial and the $14.67 hour job she would have had at Phillips had she not been discriminated against when Phillips refused to hire her.

The judge modified the front-pay award by reducing it to account for 10 years of damages instead of 25, finding that a 25 year period was too speculative -- so the total award was $164,850.

Phillips appealed and the decision came out last week. The issues decided are very important for both victims of discrimination and their lawyers. 

Here are the highlights:

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Did you know that:

• 90.7 % of families with children under 18 have at least one working parent

• 1 in 10 workers cares for both children and an elderly relative 
  

It's well documented that most of that burden falls on women who continue to serve as the primary caregivers for children and sick or disabled relatives.

The result is that because of these responsibilities, women have suffered widespread discrimination in employment for as long as they have been working.

That's why it was really good news last week when the U.S. Equal Employment Opportunity Commission (EEOC)  issued a document on best practices to avoid discrimination against workers with caregiving responsibilities.

The Work Life Law Center at UC  Hastings College of the Law  describes "caregivers discrimination"  this way:

Family Responsibilities Discrimination (FRD) is employment discrimination against workers based on their family caregiving responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD.

They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated -- despite good performance -- simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.

The purpose of the new EEOC  document is to educate employers about what caregiver discrimination is, how it is manifested, and how it can be minimized or avoided. It also illuminates the not-so-obvious fact that men are victims too.

The report includes some good examples of flexible workplace policies and their proven benefit to both employees and employers.  Sue Shellenbarger's Wall Street Journal article on some of those programs is referenced in the report and is an interesting read.

The EEOC report also includes helpful examples of what this kind of discrimination looks like and here are a few:

Common unlawful stereotypes

• assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees

• assuming that male workers do not, or should not, have significant caregiving responsibilities

• assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work

•  assuming that female workers who are caregivers are less capable than other workers

•  assuming that pregnant workers are less reliable than other workers. 

 Unlawful conduct that results from the bias

• asking female applicants and employees, but not male applicants and employees, about their child care responsibilities

• making stereotypical comments about pregnant workers or female caregivers

• treating female workers without caregiving responsibilities more favorably than female caregivers

• steering women with caregiving responsibilities to less prestigious or lower-paid positions;

• denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities

Just to be clear, while caregiver discrimination has not been around as a legal concept for very long, it is not just theoretical.   Here's an example of some of the cases where caregiver discrimination has appeared:

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The Supreme Court heard arguments yesterday in Ricci v. DeStefano a case which many are saying is one which may fundamentally change civil rights protection in the workplace.

As noted by Lia Epperson, a law professor at Santa Clara University: 

This is the Roberts court's first major decision on the issue of racial discrimination.

In the world of civil rights law, it doesn't get much more important than this.

When cases get to the United States Supreme Court, they are generally complex and this one is no different. Discrimination cases particularly,  in terms of the law, are never really very easy to explain but here's a try.

In order to understand the case at all, it's important to know the difference between the two kinds of discrimination under Title VII of the Civil Rights Act of 1964.

disparate treatment discrimination

• where a person is being treated differently --  because of his/her race, sex, religion, national origin, disability, veteran status or age -- than a person who is not in the protected class

•  proven with direct or circumstantial evidence of an intent to discriminate

 disparate impact discrimination

• when a neutral policy, standard or test has a disparate impact on a protected class.

• i.e. if a company only hires individuals who are 5 foot 6 inches tall or over -- the qualification while neutral on its face, would have a disparate impact on women.

• no intent to discriminate is required to prove these kinds of cases

These two types of discrimination are implicated  in this case and come together like a perfect storm for the Court. Here's what happened .

In 2003, the New Haven Fire Department was filling captain and lieutenant positions.  The union contract required promotions to be based on examinations,  The city contracted with a company to develop the exams which were given to qualified applicants.

Under the city's rules, once the test results were certified, the department was required to promote those individuals with the top three scores. It turned out that the Black applicants' pass rate on the exam was approximately half of the rate for white applicants which was not the case on prior exams.

The city was concerned that the exam was flawed.  City officials believed that if the results were certified, the city could be subject to a disparate impact discrimination lawsuit from the minority applicants who did not qualify for the promotions.

New Haven is a city where 37 percent of residents are African-American, 21 percent are Hispanic, and only 15 percent of the fire department's officers are minorities.

A group of white firefighters, and one Hispanic,  (the petitioners) who scored the highest on the test filed a disparate treatment discrimination lawsuit claiming that they were being adversely treated because of their race --- what is commonly called a "reverse discrimination" case.

The main question before the Supreme Court is:  Under what circumstances can a plaintiff prove a disparate-treatment case when the employer's justification for it's decision is that it acted to comply with Title VII's disparate-impact provisions?

New Haven's counsel pointed out the dilemna  as reported in The Washington Post:

 The city was placed in a position where it was bound to be sued by one side or the other and opted to "pause" and reconsider how promotions should be made

He added that if it is unfair to white firefighters to have the promotions scuttled, it would be equally unfair to black firefighters who were "locked out" by test results that did not truly produce a list of those most qualified.

"I certainly have sympathy for the plaintiffs, but at the end of the day it was the wrong test," Bolden said

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 It would have been hard to miss the heartwarming story last week about Susan Boyle’s performance on the British version of American Idol called Britain's Got Talent. The New York Times and CBS News  have extensively covered it as have most of the other media outlets.

The episode, according to the Times, has provoked a debate about the "not so young and not so beautiful" that has many people talking.

Here’s how one blogger, Letty Cottin Pogrebin, described  what happened on the show in her excellent piece in The Huffington Post:

Once on stage, her interrogator, Simon Cowell, asks about her dream. To be a professional singer, she says, and as successful as Elaine Page -- a statement that elicits great hilarity and hyperactive camera close-ups of the judges' bemused disbelief and the snickering, eye-rolling audience.  . . .

Cheerful and unperturbed, the contestant blithely announces that she is going to sing, "I Dreamed a Dream" from Les Miserables.

"How old are you, Susan?" asks Simon, in a tone more appropriate to an interview with a toddler.

"Forty-seven," she says. The audience cracks up. Pixels of ridicule fill the screen, incredulity, patronizing sneers, smirks, whispers you can almost hear: Look at her, will you! Frumpy from the Fifties, got a double chin, a silly Scottish accent, hails from some tiny hamlet, can't remember the word "villages," and to top it off, Omigod, she's old! Either she's a ringer and we're in for some weird parody of Dame Edna or we're about to see this dowdy dame make a fool of herself on the hottest show on British telly.

Finally, Susan Boyle steps into the spotlight and opens her mouth, and before she's sung three glorious, crystal clear notes, the audience is cheering, the judges' jaws have dropped, and I'm choking back tears.

It is truly a great story and if you have not seen the video, I strongly suggest that you join the thirty million people who have. It will surely bring a tear to your eye.

But here's what struck me when I first saw the story:  How come she gets to try out  and she's 47? Not so in the U.S.A.

While most people may not have given it much thought, it's pretty obvious that all of the singers on American Idol seem quite young  Well they are, and it's no coincidence

My husband  is a pretty good singer (for sure I have a bit of a bias) and we have a good time at karaoke clubs.  My son is an agent in the entertainment business.  I  mentioned to my son that I thought it would be fun if my husband tried out for American Idol -- not that he would win of course, but that it would be fun to go to a tryout. After he stopped laughing he said:

He can't try out

Why not?  I said. 

Because he's not under 30.

Yes, that's right.  In order  to try out for American Idol  you have to be under thirty years of age.  I checked the rules and here's what I found:

You have to be a legal U.S Citizen or a permanent U.S resident. You also have to be between the ages of 16 and 29. Make sure to bring 2 forms of I.D with you, at least one form must be a photo I.D. If you are under 18 you need to have a parent or legal guardian with you.

So is it age discrimination? It's not a real simple answer.

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The recent US Supreme Court decision in the14 Penn Plaza v. Pyett case was a huge blow to employee rights. The case held that a worker can't go to court on a discrimination case when the union bargaining contract  requires that  civil rights claims must go to arbitration instead of a judge or jury.  There's are lots of summaries of the case including those in  Ross Runkel's Law Memo  the SCOTUS BLOG and The Wall Street Journal.

The 14 Penn Plaza case is another chapter in the ongoing battle regarding mandatory arbitration of civil rights and employment claims and the decision couldn't be worse.

The only bright spot on the topic is that there was a very good decision from the Third Circuit  Court of Appeals just days before 14 Penn Plaza in the case of Kirleis V. Dickie, McCamey & Chlcote, P.C. . 

In Kirleis, the Court  held that the plaintiff was not required to arbitrate her civil rights claims. Here's what happened in the case.

The plaintiff, Alyson Kirleis, practiced law with the firm of Dickie, McCamey & Chilcote. She worked there since 1987. She became a shareholder in 1998.

Kirleis filed complaints against the firm alleging sex discrimination, retaliation, and hostile work environment in violation of state and federal law. The firm filed a motion to compel arbitration  based on a provision of its bylaws which mandated arbitration of any disputes.

Kirleis submitted undisputed evidence stating that:

•  she never got a copy of the by-laws
  

•  she never saw the document which contained the mandatory arbitration language
  

• she was never given a copy of the document which contained the mandatory arbitration language
  

• she never signed any agreement to arbitrate
  

• she never agreed to arbitrate her claims against the firm 

Therefore, she argued, that since she never agreed to the arbitration provision she could not be bound by it.

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It's not often that we see a case in which the verdict for the employer is reversed in favor of the employee because the judge improperly excluded evidence -- but that's exactly what happened in the case of Cobbins v. Tennessee Department of Transportation .   Here's the story:

The plaintiff, Greg Cobbins,  an African-American  was employed by the Tennessee Department of Transportation ("TDOT") since 1994.

In 2005 Cobbins became eligible for a promotion for which he was qualified.  He was considered along with another candidate ( white male) named Bradford Staggs.

Staggs got the job instead of Cobbins.  Cobbins believed he was discriminated against and filed a lawsuit.

Part of the reason stated for the decision to choose Staggs over Cobbins, according to the Regional Director of TDOT, was that Cobbins had "less education" and "several oral and written warnings in his work file".

The most common way that discrimination cases are proven is with circumstantial evidence showing that the reasons given for the adverse employment decision are not valid, not credible, or not believable -- it's called pretext.

During the trial, when Cobbins attempted to offer his evidence of pretext as to the reasons stated for the denial of his promotion, the judge refused to allow it:

• "Less education": Cobbins had evidence that Staggs lied about his education on his promotion application.  Staggs' application stated that he had "postsecondary education after high school" during the years 1991-1995. It turns out that Stagss didn't even graduate from high school until 1995 so the statement could not have been true.
  

The trial court judge refused to allow Cobbins to introduce the evidence showing that Staggs had lied about his education.

• "Several oral and written warnings in his work file": Cobbins did have several warnings in his file. However, Cobbins had evidence that his former supervisor, Wayne Youcum, was biased and discriminated against him. Several years earlier, Cobbins charged Yocum with discrimination and Yocum retaliated by:

1. marring Cobbins work record with unfounded complaints,
   
2. refusing to give Cobbins supervisory responsibilities, and
   
3. treating him more harshly than the white employees.
   

• The first lawsuit over Yocum's conduct was dismissed because Cobbins failed to file a brief on time. (Cobbins blamed  the new electronic filing system of the court for the failure to process the brief )
• The important point is that the previous case was never decided "on the merits" but rather was dismissed due to a technical matter.

The trial court judge refused to allow Cobbins to introduce evidence showing that the warnings in his file were prompted  by his former supervisor's discriminatory motives.

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Last Thursday, Northrop Grumman Corporation agreed to pay the United States government $325 million to settle a whistleblower case, reported in the Wall Street Journal to be the largest case ever alleging military-procurement fraud.  Robert Ferro, the whistleblower, and his lawyers will share  $48.7 million dollars of the settlement.  Here's the story.   

TRW, which was acquired by Northrop in 2002, made parts for spy satellites that malfunctioned which resulted in:

• satellites failing in orbit
• expensive fixes
• launch delays

Robert Ferro, an Aerospace Corporation engneer who worked with TRW,  discovered the problem with defective microelectronic parts.  Ferro claimed that TRW pressured him against publishing his findings. 

According to the Wall Street Journal, even after TRW tests confirmed Ferro's conclusions, TRW continued to tell the government "it did not know and could not have been expected to know"  about the problems.

The case was brought under the False Claims Act also known as Qui Tam. Under the Act, it is illegal to knowingly present a false or fraudulent claim for payment to the federal government or use a false or fraudulent record to get paid. The way it works is:

• individuals and entities with evidence of fraud involving the United States or its programs or contracts can sue the wrongdoer on behalf of the government.
• The government has the right to intervene and join the action
• If the government declines, the private plaintiff may proceed on his or her own behalf

Those who violate the Act are liable for three times the dollar amount of the fraud and additional civil penalties.   As far as the whistleblower goes, the Whistelblowers Protection Blog explains it this way:

A qui tam plaintiff can receive between 15 and 30 percent of the total recovery from the defendant, whether through a favorable judgment or settlement. To be eligible to recover money under the Act, you must file a qui tam lawsuit. Merely informing the government about the violation is not enough. You only receive an award if, and after, the government recovers money from the defendant as a result of your suit. 

So that's how Robert Ferro got the 48 million. 

The author of  the  Wall Street JournalLaw Blog reported on the story. He wrote that he keeps a journal of "all those people he'd like to be in his next life" and Ferro has made the list -- understandably so considering the size of the award.

I don't know Mr. Ferro's personal story.  All I know is what has been reported.

But I have represented many whistleblowers through the years and I feel compelled to add that it's not always a bright and rosy picture.

Individuals who "blow the whistle" go through enormous stress, often lose their jobs,  and suffer enormous guilt because of  the harm imposed upon their families.  They are ridden with conflict:  Did I do the right thing or should I have kept my mouth shut?  With regularity, they are blackballed from their professions. Bankruptcy and depression are common.

I congratulate Mr. Ferro.  He is a courageous man and deserves credit and our thanks for sticking his neck out and doing the right thing.

The bottom line is that this is one important story that had a happy ending, but unfortunately, that is not always the case. That's why so many are fighting very hard to get broader and uniform  whistleblower protection which is both needed and deserved.

 image: www.defensetech.org

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I was both surprised and amused when I read this piece in the New York Times about  the French way of handling labor troubles.

According to what's reported, at least three times in recent weeks workers in France have held their bosses hostage in order to get management  to accede to their demands.

Last week workers at a Caterpillar plant in the French Alps held five of their bosses in a dispute over their severance packages. Pierre Piccarreta, a French union representative, justified the conduct this way :

“There is no violence or sequestration, but simply pressure so they restart negotiations . . . .At a time when the company is making a profit and distributing dividends to shareholders we want to find a favorable outcome for all the workers and know as quickly as possible where we are going.

The same type of hostage taking occurred at two other French plants in recent weeks:

• Workers at a 3M plant held their boss for more than 24 hours at a plant in Central France.

• Workers at a Sony plant in southwest France held their boss overnight when they were trying to get better severance packages.

France has  a long history of labor militancy and as reported in the Times has become increasingly restless as the impact of the global economic crisis worsens . The French unemployment rate rose to 8.3 percent in February, according to the European Union.

It certainly struck me as an interesting contrast to the way we do things in America.

It's no secret that we are in a hot debate over the passage of the Employee Free Choice Act. The bill provides a bypass to the traditional union election process and allows for a certified bargaining unit if a majority of workers sign cards indicating their support for a union.

The bill would also provide stiffer penalties against employers for intimidation and retaliation of union organizers.

Labor suffered a real blow this past week when Senator Arlen Spector backed out of his support for the bill.  Another hurdle came came from Senator Diane Feinstein, a past sponsor of the act. Citing the flailing economy as a reason, her office issued a statement indicating she would seek alternative legislation that was less divisive.

There are many compelling reasons for the bill and it still has lots of support. One example is the excellent editorial by David Freiboth in Friday's Seattle Times who wrote:

The debate over pending labor-law reform, the Employee Free Choice Act, is getting mired in concerns about an employee's role in democratic determinism, thereby missing the larger economic issue that drives the real issue. Scare tactics that highlight problems with union intimidation during organizing campaigns are just that — scare tactics — designed to subvert the essence of the issue.

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Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services  case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it's almost impossible.

For one, in my opinion, the outcome will not affect most employees who are trying to bring age discrimination cases. Two, even most lawyers who do this work don't get bogged down in the subject of the argument because it's just too complicated, and not particularly beneficial, but let me try to explain it.

Jack Gross sued  his employer under the Age Discrimination in Employment Act ("ADEA") alleging that he was demoted because of his age. The Defendant employer, FBL Financial Services:

• denied that it took Gross' age into consideration                        
• said even if it did, it had a legitimate reason for doing so, and
• it would have made the same decision anyway.

The questions presented are:

1. In a "mixed-motive" age discrimination case -- where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
2. What kind of evidence needs to be presented -- direct or circumstantial -- to prove a "mixed-motive" case?
3. Does the discriminatory reason need to be a "substantial reason" or "a motivating reason" for the employee to prevail?
4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. ("CRA"); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

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