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

There is no doubt that women are still struggling for equality in the workplace.

Last week, Dell agree to pay $9.1 million dollars to settle a class-action lawsuit filed because of claims that the company discriminated against its female employees.

The case was filed in federal court in Austin, Texas in October by two former employees. It alleged that Dell engaged in a “practice of gender discrimination with respect to compensating and promoting female employees within the company."

Under the settlement Dell will pay:

• $5.6 million in back pay for female employees who were in certain jobs between 2007 and 2008
  

• $1 million dollars in plaintiffs' legal costs
  

• $3.5 million to establish a pay-equity fund for current female employees in certain job grades covered by the suit including management and non-management positions

Dell also agreed, as part of the settlement, to hire experts to review compensation, hiring and promotion practices and conduct a pay-equity analysis.

That’s a whopping big settlement and a very quick one considering that the case filed less than a year ago. I have one friend who worked on a gender class-action discrimination case for over twenty-three years (a case against the US Information Agency and Voice of America which ended up in a $508 million dollar settlement for hundreds of women ).

I suspect that part of the reason for the settlement was simply that the plaintiffs had the goods on Dell. One of  women who brought the lawsuit was a former HR manager who apparently had or knew of the data which substantiated the claims.

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Important Win for Employee in Fraud Case Against Employer

It's not often that employees sue their employers for fraud, but that's what Dan Rather did when he sued CBS in 2007. The news is that  he had a significant victory this week in his case. 

The Lawsuit

As some of you may recall, Rather filed a lawsuit claiming that his career was irreparably damaged because CBS intentionally mishandled a 2004 story about Bush's National Guard service.

The story had to do with Bush's allegedly going AWOL during his National Guard Service in 1972. The story was aired on CBS's Sixty Minutes II  during the 2004 election.

According to Rather's lawsuit, the broadcast reported that:

• political influence was used to get Bush into the TexANG so he wouldn't have to go to Vietnam
  

• after being trained as a fighter pilot in 1972, Bush failed to appear for a required physical examination
  

• high level political influence was again engaged to avoid military discharge from the military

As Jackson Williams from the Huffing ton Post put it:

[E]vidence (from the Boston Globe and others) strongly suggests that George W. Bush literally bailed on his Guard duty, got a transfer to Alabama, and then disappeared for at least the final 12 months of his military commitment, perhaps up to 17 months. Some have a lost weekend; he had a lost year.

After the story aired, according to the complaint, the broadcast was attacked by conservative political elements supportive of the Bush Administration. 

In turn, CBS announced that it was going to conduct a thorough independent investigation into the story of the broadcast and its production.

Instead, according to Rather:

Its intention was to conduct a biased investigation with controlled timing and predetermined conclusions in order to prevent further information concerning Bush’s TexANG service from being uncovered.

The complaint further alleges that CBS:

1.     planned to and did use Rather as a scapegoat to pacify the White House

2.     coerced Rather into publicly apologizing and taking personal blame for errors which were a )never established and b) not Rather’s fault

3.     breached its employment contract with Rather by terminating him as anchor on the CBS evening news and thereafter giving him few assignments, little staff, little air time, and basically nothing to do 

The Fraud Case

Generally speaking, in cases of fraud, an individual must prove:

1.  a material representation of a presently existing or past fact,
2.  made with knowledge of its falsity and
   
3.  with the intention that the other party rely on it,
   
4.  resulting in reliance by that party
5.  to his or her detriment

While there is no set way in which fraud claims come up in the employment setting, they are often seen when an employer lures an employee away from a secure position to a new job based on representations which turn out to be false.

They also come up when an employer makes false representations to employees to get them to stay on the job after they announce an intention to leave.

The meat of these cases show that representations were made (either spoken or written) which were known to be false with the purpose of inducing the person to rely on them.

The second part of the proof involves a showing that the person did in fact rely on the false statement(s), and that he or she was damaged as a result.

In Rather’s case, it is claimed that CBS, as well as individually named defendants, made false representations, which they knew to be false at the time they were made, and which they had no intention of fulfilling, including the following:

• CBS intended to conduct a fair and impartial investigation of the broadcast
  

• CBS would at all times take all necessary steps to preserve Rather’s reputation
  

• CBS intended to fully utilize Rather’s experience
  

• If Rather refrained from retained a private investigator to investigate the story underlying the broadcast, CBS would retain one and make the findings available to Rather 
  

• CBS was going to extend his contract

All of these representations were false, according to Rather, and made so that Rather would refrain from making public statements concerning the Bush broadcast in order to defend himself and preserve his reputation

As a result,  according to his compliant, his career were irreparably damaged, he was ostracized, and he gave up significant employment opportunities.

(There appears to be an amended complaint which may have more detail but that’s the gist of what’s I could find)

What happened this week is that the fraud claim, which was previously dismissed, was reinstated by the Court of Appeals in New York -- a big victory for Rather and his lawyers. It also, in theory, gives Rather the opportunity to get punitive damages awarded against the defendants.

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Employers Should Give  Employee References

I have a pet peeve and it has to do with employee references. My pet peeve was triggered last week when I read an article in the National Law Journal about the subject.

“Don’t say anything good about an employee on Linked In” – the lawyers warned – you might get sued for defamation.   

As you know, most employers will not give a reference. The only information they will give to a prospective employer about a former employee is dates of employment and positions with the company. Some will give salary information. That’s it.

It didn’t use to be this way. When I started working, it was common to get a letter of reference from an employer. In fact, it was the practice.

Sometime later, and I can’t precisely pinpoint the date (but I think it was in the late 80’s) that practice stopped.

The reason it stopped is because management lawyers told their clients not to give references because they might get sued for defamation. That advice spread like wildfire and suddenly no one could get a reference.

In my opinion, this is some of the worst advice ever given to corporate America and here’s why.

The Threat of Employee Lawsuits for Defamation is Overblown

So what about the argument that the employer may get sued for defamation? In my opinion it’s overblown and ridiculous.

I have been following the law of defamation in the workplace for a long time. I have written about it, spoken about it, and taught it. The truth is, suits in which employees sue their employers for defamation are just not that common and never were.

I have been representing employees for thirty years. Like many employment lawyers, we get hundreds of calls each month from employees who are having problems at work or who have lost their jobs.

In all of my years of practice, I can only recall two defamation cases. One case involved a medical professor who was terminated and falsely accused of being a “womanizer” and  incompetent teacher. The second case involved an employee  who was fired and falsely accused of stealing.

In both instances, the reasons given for the discharges were false, motivated by racial malice, and were communicated to a large circle of people.

So in thirty years – two cases --that’s two out of thousands. I doubt the statistics are much different for most other employment lawyers. The threat of defamation cases  involving employee references is way overblown.

Employees Should Get References Because It’s The Fair Thing To Do

I have represented hundreds of employees who put in 20, 30, 40 years with a company – with excellent records of performance --who can’t get a letter of reference. This corporate behavior, is seems to me, is plainly cruel and completely counter productive.

 If employees have put their time in with a company, and have done a good job, don’t they deserve a letter of reference? I am talking about employees who were let go through no fault of their own – without cause – downsizing, job elimination, layoff, etc.

I have represented employees who never missed a day of work over decades at a job. Isn’t only fair that he or she gets a letter saying that this person is a very dependable employee who never missed a day of work?

The same is true for employees with an excellent record of performance for the company. Don’t they deserve a letter stating that they were a good employee and solid performer?

Since there is no legitimate reason not to, employers should treat employers fairly and give them the references they deserve.

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We have all heard about employees getting into hot water because of their blogs and online activities:

• the Delta flight attendant fired because she posted a provocative photograph of herself in uniform without a visible name or logo

• the Google employee who speculated online about his employer's finances 
  

• the Burger King executive who used his middle school-aged daughter's online identity to attack a farmworkers' advocacy group that was trying to increase pay and improve conditions for tomato pickers

• the computer worker fired because he posted a photograph of his company's loading dock receiving a rival's shipment of computers

There's even a term for it: DOOCED  -- which means getting fired because of something that you wrote in your weblog.

("Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals. In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed constitutional protection for personal speech on her blog.

Here's what happened in the case.

Tara Richerson worked as a curriculum specialist and institutional coach for the Central Kitsap School District in Silverdale, Washington.

The job required her to engage in "trusting mentor relationships" with less experienced teachers in order to give them "honest, critical and private feedback."

Richerson wrote a blog which, according to the opinion, contained highly personal and vituperative comments about her employers, union representatives, and fellow teachers.

Although Richerson did not refer to these individuals by name, many were easily identifiable because of the description of the positions or their personal attributes. Here's one of Richerson's blog posts about her replacement:

Save us White Boy!

I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice ... and a reluctant one at that. I truly hope that I have to eat my words about this guy.... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him ... He comes across as a smug know-it-all creep. And that's probably the nicest way I can describe him.... He has a reputation of crapping on secretaries and not being able to finish tasks on his own.... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community.... Mighty White Boy looks like he's going to crash and burn

You don't have to be a lawyer to sense that this blog was going to getting her into trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of Human Resources received complaints and several individuals refused to work with Richerson. 

As a result, Beckon transferred Richerson out of her coaching position and into a classroom teaching position, claiming that Richerson's blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Richerson sued.

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Supreme Court's Ricci Decision Is Bad For Business and Everyone Else

It took me almost a whole day to read and digest the 89 page Ricci v. DeStefano decision. I have spent most of a  whole second day reading the commentary and analysis.    

Here's where I'm at regarding this case:

• it's really hard for businesses to deal with   

• it's also really bad for everyone else

• it's procedurally unsound

• it's got to go

Bad For Business

There is a general consensus that business is the big loser in the Ricci decision. Almost without exception, all of the commentary points to the fact that the Supreme Court has now made it harder than ever for employers to follow Title VII law which prohibits discrimination in the workplace. That's not good.

A described in a Lawyers USA article today, the lawyers who represent employers believe that they have been put in a "lose-lose" situation:

The outcome really puts employers in a box, said Andrew J. Pincus, a partner in the Washington office of Mayer Brown who filed an amicus brief on behalf of the National League of Cities and other groups. Before, employers had some leeway. Under the new standard, they are really in a box because they will be facing costly litigation no matter what they do.

In sum, the Supreme Court in a 5-4 decision found in favor of white firefighters who claimed discrimination because of race when test results for promotions were discarded because no black employees scored high enough to be considered for promotions. The city feared a disparate impact discrimination lawsuit and set aside the test results.

The Court held  that an employer may not discard test results on account of race unless it shows a "strong basis in evidence" that it would be subject to disparate impact liability. Statistics alone are not enough to make a "strong showing in evidence",  but no one seems to know what is.

As Rae T. Vann,  general counsel for the Equal Employment Advisory Council, which submitted an amicus brief in the case commented:

“I think [the justices] made the situation a little more challenging as far as navigating that Catch-22 because they changed the rules of the game without giving employers the guidance that they need.”

Without knowing just what qualifies as a “strong basis in evidence” of the likelihood of being found liable for creating a disparate impact, many employers will chose not to discard a selection or promotion process that yields few minority candidates once it is in place, possibly drawing a disparate impact suit.

What's ironic is that this decision came from the Roberts pro business court. Ilya Somin wrote a very interesting piece about the subject in the Volokh Conspiracy and here are some excerpts:

The Supreme Court's decision in Ricci v. DeStefano has interesting implications for the longstanding debate over whether the Roberts Court is "pro-business."

The bottom line is that the business interests were among the big losers here. The Court's ruling makes it difficult for employers to use race-conscious measures to avoid disparate impact liability under Title VII of the Civil Rights Act. And this defeat was inflicted by the supposedly business-friendly conservative justices. Although Ricci addressed promotion decisions by a government employer, the same Title VII standards apply to private employers too.

 If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities.

But if the business adopts race-conscious measures to try to shield itself from liability (e.g. - by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to "disparate treatment" lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

No One Seems to Like the Decision

It's not like anyone else likes the decision either. John Payton, the president of he NAACP Legal Defense Fund said that the Ricci decision is a "step backward from the goal of equal employment opportunity.

The law professors have written excellent articles for the academics and theorists on the many things that are flat out wrong and troubling about the decision. The New York Times Opinionator did a good job of gathering some of them.

One was an excellent analysis on the Workplace Prof Blog by Marcia McCormick. Here's a piece of it:

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