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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

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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

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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 

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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

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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.

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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

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 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 

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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.

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Admission Of EEOC "No Probable Cause" Determination Is Reversible Error

I ran across this case recently and I think it’s definitely worth talking about.  It deals with a real problem in discrimination cases that has been around for as long as I can remember and it affects just about everyone who files an EEOC charge.

The case, Byrd v. BT Foods, Inc., addresses the controversial issue regarding the admissibility of  EEOC findings at trial and it's a good result for employees.

What’s The Problem?

When an individual files an EEOC charge, the EEOC  conducts an investigation. At its conclusion, the EEOC issues a determination letter stating one of two things:

1. there was probable cause to believe that discrimination, retaliation, etc. occurred or
   
2. there was no probable cause to believe that a violation of the civil rights law occurred

After the determination, the EEOC issues a Notice of Dismissal and Notice of Right to Sue which gives the individual the right to go to court.

Here’s the potential problem for the employee who did not prevail at the EEOC (or its state counterpart).  At trial, the employer always tries to introduce the EEOC dismissal and no probable cause determination.

In effect,  the employer wants to argue to the jury, “the government investigated this case, didn’t find discrimination, and you shouldn’t either.”  It doesn’t take Clarence Darrow to figure out that this argument can be quite damaging to the plaintiff’s case at trial.

 What Happened In The Case

Cemeshia Byrd worked at Wendy’s in Coral Springs, Florida. Byrd filed a lawsuit against BT Foods (doing business as Wendy’s Coral Springs) claiming that she was discriminated against when she was terminated because she had Human Immunodeficiency Virus (HIV). 

Discrimination because of AIDS is illegal in the U.S. under the Americans with Disabilities Act. It's also illegal under many state civil rights laws, including the Florida Omnibus Aids Act and the Florida Civil Rights Act.

Before proceeding to court, Byrd filed a charge of discrimination with the Broward County Civil Rights Division, an agency which conducts investigations for the Equal Opportunity Commission.

After receiving a no probable cause letter of determination, Byrd filed a lawsuit in Broward County Circuit Court claiming discrimination and intentional infliction of emotional distress.

Before trial, Byrd filed a Motion in Limine -- which is a request for an order to exclude the admission of particular evidence at trial. Generally the gist of the augment on a Motion in Limine is that:

• the evidence is irrelevant, highly prejudicial, or hearsay and
  

• the jury should not be able to hear or see the evidence nor should there be any reference to it

In this case, Byrd asked for an exclusion of EEOC documents including the Notice of Determination and Notice of Dismissal of her EEOC charge.

She argued that the EEOC “NO PROBABLE CAUSE STATEMENT" written in capital letters in the Notice of Determination were highly misleading, unduly prejudicial, and too conclusory to provide any meaningful probative value . She also argued that the jury would be likely to give the dismissal and “no probable cause determination” more weight than is appropriate.

The judge ruled against Byrd and in favor of BT Foods on the Motion in Limine.  During the trial, according to Byrd, BT Foods made the reasonable cause determination the centerpiece of its defense.

Byrd lost her jury trial and filed an appeal. In it she claimed that the court’s admission of the EEOC findings constituted reversible error which entitled her to a new trial.

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Walmart's Discrimination Against Women In Warehouse Positions Results In 11.7 Million Dollar Settlement

Walmart will pay $11.7 million dollars in lost wages and compensatory damages -- and will provide other relief including jobs -- to settle a sex discrimination class action lawsuit filed by the Equal Employment Opportunity Commission (EEOC).

According the the EEOC, Walmart's London, Kentucky distribution center hired only men into warehouse positions and excluded women who were equally and better qualified between 1998 and 2005 in violation of Title VII of the Civil Rights Laws of 1964.

The EEOC alleged that Walmart regularly used gender stereotypes in filling entry level order filler positions which hiring officials at Walmart contended were not suitable for women.

The consent decree settling the case requires Walmart to provide order filler jobs, as they become available, to eligible and interested female class members. A settlement administrator will administer the proceeds of the settlement to all eligible class members.

Walmart also agreed not to discriminate against females in hiring for order filler positions and not to retaliate against applicants who exercise their rights, complain about discrimination, or assist in an investigation of a discrimination related proceeding.

Walmart had sales of $401 billion in 2009 and employs more than 2.1 million individuals worldwide.

Walmart is notorious for illegal employment practices. This case is just another example. Great job by the EEOC in holding Walmart's feet to the fire.

images: willpen.files.wordpress.com/

Recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman's issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

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EEOC Settlement Shatters Glass Ceiling

The Equal Employment Opportunity Commission announced a whopping 19 million dollar settlement of a class action "glass ceiling" lawsuit against Outback Steakhouse last week.

The lawsuit involved a class of female employees who claimed that they were illegally denied:

• equal opportunity for advancement

• promotional opportunities to high level profit sharing management positions
  

• favorable job assignments, particularly, kitchen management experience, which was required for employees to receive consideration for top restaurant management positions

Stuart J. Ishimaru, EEOC Acting Chairman had this to to say in conjunction with the announcement:

There are still too many glass ceilings left to shatter in the workplaces throughout  corporate America. ...

Hopefully this major settlement will remind employers about the perils of perpetuating promotion practices that keep women from advancing at work.

Let's hope so. It's been almost 30 years since the Wall Street Journal popularized the term "glass ceiling" in an article describing the invisible barriers that women confront as they approach the top of corporate hierarchy.

The Federal Glass Ceiling Commission was created by the Civil Rights Act of 1991 and issued several reports between 1991 and 1996. The last report noted that among Fortune 500 companies:

• 95 -97% of senior managers were men

• 97% of male top executives were white

• 95% of the three to five percent of the top managers who were women were white
  

I don' t know how much better the data would look today but my bet would be that the difference wouldn't be significant.  No doubt  ladies -- after all of these years, we still have a long way to go.

I have talked to hundreds of women through the years who confront these issues at work each day. Many just don't want to rock the boat to fight for the promotions they deserve -- and that's understandable.

That's why cases like this one are so important. Three cheers for the courageous women who brought this class action lawsuit and the EEOC's vigorous pursuit of equal opportunity for women.

 image: pulse.ncpolicywatch.org/wp-content/uploads/feminis_difference_lg.jpg 

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Sex Discrimination Against Men Violates Title VII

It’s not often that you see cases involving discrimination against men, but in the last few weeks the EEOC has reported two noteworthy settlements.

The Sex Discrimination Case Against Lawry’s

In early November, the EEOC announced a $1,025,000 settlement of a class action lawsuit against Lawry’s Restaurants Inc., which operates steak houses in Las Vegas, Chicago, Dallas, Los Angeles, Beverly Hills and Corona del Mar, California. 

In the lawsuit, the EEOC charged Lawry’s with maintaining a longstanding company wide policy of hiring only women for server positions.

The policy, which has been in place since 1938, is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination because of sex.

Lawry’s claimed that the policy was based on long standing tradition. The EEOC found that the policy adversely affected a class of men on the basis of sex.

The parties reached an agreement to settle the case in early November. Under the consent decree Lawry’s agreed to:

• change its practice and actively promote the hiring of men into server positions
  

• provide monetary relief including a class fund of $500,000
  

• pay over $300,000 to initiate an advertising campaign regarding the hiring of food servers
  

• pay $225,000 for training its employees on compliance with Title VII and related laws
  

• take additional steps to insure compliance with Title VII and the decree

In its announcement of the settlement, Olophious E. Perry, who managed the EEOC investigation said:

The EEOC will never condone discrimination in the name of so-called tradition. Every individual deserves a fair chance to obtain a job based on their talent and qualifications, regardless of gender.

It seems to me that there are lots of restaurants out there that still have male only, or female only servers. This case makes it clear that this is one "tradition" that has seen its day.

Cheesecake Factory Settles Case Of Male On Male Sexual Harassment 

The EEOC announced this week that Cheesecake Factory, Inc, a nationwide restaurant chain, will  pay $345,000 to settle a sexual harassment suit involving six male employees who were subjected to repeated sexual harassment at the company’s Chandler Mall location outside of Phoenix.

The complaint charged that the restaurant knew about and tolerated repeated sexual assaults against six male employees by a group of kitchen staffers.

The evidence included abuse involving the harassers:

• directly touching the victims’ genitals
  

• making sexually charged remarks
  

• grinding their genitals against them
  

• forcing victims into repeated episodes of simulated rape

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New ADA Regulations Will Bring Necessary Change

I received a call from a reporter from MSNBC a few days ago. She indicated that she wanted to ask me some questions about the new Americans with Disabilities Act regulations recently put out by the EEOC.

The interview caused me to reflect on just how important the amendments to the ADA are --along with the new regulations --- and the struggle we have gone through to get here.

When the ADA was written, I remember being at a meeting in Cleveland with a group of employment lawyers which was sponsored by a committee of the American Bar Association. The guest speaker was a lawyer from D.C. and he was there to talk to us about the new legislation and give us a preview.

I remember listening to and reading all of these complex, confusing terms and thinking “this is going to result in tons of litigation and be a big nightmare." I walked out of the meeting and talked about my deep concern with some friends and colleagues from both sides of the bar.

We all seemed to reach the same conclusion – that this was going to be an ugly litigation mess -- and though we saw the handwriting on the wall, there was nothing we could do about it. The ADA was written and this is what it was going to say.

And indeed what our group of experienced employment lawyers predicted that day in 1990 turned out to be true. While the intent of the ADA was certainly noble, the way in which it was written has caused nothing but problems.

What’s more important is that the problems with the ADA have had a terrible negative effect on those individuals who were supposed to be protected by the legislation.

The ADA was intended to protect individuals with disabilities from discrimination. Because of the way in which the Act was written, combined with the way in which it has been interpreted by an exceedingly conservative federal judiciary, most cases got thrown out on summary judgment because the courts determined that the individual plaintiff employee was not disabled.

If he/she was not disabled, then he/she was not protected by the ADA from disability discrimination, and so they lost. Here’s an example of what I mean.  

A secretary gets fired for going to chemotherapy. We file a case of disability discrimination. The employer argues that cancer is not a disability as defined by the Act. The judge buys the argument and the case gets thrown out. (based on a true story)

That scenario occurred thousands and thousands of times. Employees with disabilities were getting fired, or not hired in the first place, or passed over for promotions – and the cases were thrown out of court because the employers argued that the person was not disabled so the ADA did not apply.

Those rejected included people with AIDS, people with cancer, people with MS, people with epilepsy, diabetes, with prosthetic devices and the list goes on and on.

As a consequence,  those of us who tried to represent these folks never even got to the stage of the case in which we had a chance to prove discrimination.

As I explained to the MSNBC reporter, in other discrimination lawsuits such as age, race, or gender discrimination cases, we don’t have a fight about whether the client is a woman, or over 40, or black.

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Awareness of Pregnancy Discrimination Law Sets Stage For Punitive Damages

When you litigate a discrimination case, you never know for sure when you’re going to recover punitive damages. For those of us who represent employees, the Eighth Circuit Court of Appeals -- in the case of  EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., L.L.P. decided last week -- made that job far easier.

What Happened In The Case

The case involves two women and their experiences at Siouxland, a medical clinic in South Dakota specializing in oral and maxillofacial surgery. 

The First Pregnancy Discrimination Victim

Richelle Dooley, was hired in December of 2001 and started work in January 2002. The day after she began, she filled out health benefit forms.

At that time, she told her supervisor that she was pregnant and that her baby was due in July. "Don't worry," the supervisor said, "we can hire a temp. while you're out."

The supervisor told two of the partners including the managing partner, Dr. Harvey Lee Akerson, about Dooley's pregnancy. Akerson decided that Dooley had to be terminated.

According to Kathy Fjellestad, Siouxland's business manager, this is what he said:

[T]he young lady we just hired is going to have a baby this summer. She isn't going to be available to work. It doesn't make any sense to begin training her.. when she won't be able to work the summer ... [W]e are going to have to let her go.

Fjellestad informed Akerson that Siouxland could not terminate Dooley because of her pregnancy. Akerson decided to fire her anyway.

He told Dooley that "her baby was going to be born during our busy season" and if they had known she was pregnant they would not have hired her.'"

The Second Pregnancy Discrimination Victim

In March of 2002, Angie Gacke interviewed for a position at Siouxland. During the interview she told the interviewers : "I don't know if this is going to be a problem or not, but I'm four months pregnant."

Shererena Kost, supervisor of  Siouxlands's surgical staff said:

Yes, it's a problem. Your are just going to end up causing more work for everybody else than you will be helping them.

One of the other interviewers recalled Kost saying:

Because of her pregnancy occurring at the time it was going to be occurring, that it would be best if she just continue her pregnancy, have the baby, have her maternity leave, and then we would talk.

Kost wrote on her resume that she was:

• overqualified for job
  
• needed insurance
  
• "4 months pregnant!"

Kost informed Gacke later that day that she did not get the job. As set forth in the opinion:

Kost was aware throughout this process that discriminating on the basis of pregnancy was illegal.

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Age Discrimination Claimed For Failure to Rehire Former Employees

The Equal Employment Opportunity Commission (EEOC) had hearings last month on recent and alarming developments in age discrimination including the effect on older workers of widespread layoffs, threats to employee benefits, and controversial recent court decisions.

In keeping with its commitment to aggressively enforce the Age Discrimination in Employment Act (ADEA) the Commission announced on Thursday that it filed an age discrimination lawsuit against AT&T and a number of its subsidiaries.

A successful outcome, which is no doubt years away, would be a huge victory for older workers.

About The Case

AT&T, like many companies, offered various retirement incentive programs over the last few years, in order to reduce its workforce. In those types of programs, employees who meet the qualifications (usually a combination of age and years of service) are offered enhanced severance packages if they voluntarily leave the company.

Some of those employees later applied for openings at the company, but were not hired because they had previously participated in the program.

Since October of 2006, AT&T has maintained a policy which prohibited hiring employees who retired under these plans.

The suit maintains the AT&T’s no-hire policies have a disparate impact on employees and applicants for employment who are age 40 and over in violation of the ADEA.

The suit further maintains that AT&T has no legitimate reason or purpose for this policy.

Disparate Impact Lawsuits

Generally speaking, there are two types of employment discrimination cases involving protected classes (age, race, gender, national origin, religion, disability, veteran status) of individuals.

1. Disparate treatment cases:

• involve proof that an individual was treated differently/discriminated against because of his/her protected characteristic

• requires proof (with either direct or circumstantial evidence) of intentional discrimination

2. Disparate impact cases :

• involve the company’s use of a neutral policy which adversely/more harshly affects a protected group

• proof of intentional discrimination is not required

• the plaintiff need only prove that the policy, while neutral on it’s face, has a disparate impact on a protected group when applied to current or prospective employees

• employer must prove a legitimate business reason (a reasonable factor other than age) for the discriminatory policy

Disparate impact litigation was widely used in the 1970’s to combat race discrimination, particularly in the South. It has also been used to challenge various policies and practices which have adversely affected women in the workplace.

It wasn’t until fairly recently that the Supreme Court recognized the use of a disparate impact analysis as a way to prove age discrimination.

Therefore, there are very few cases on this topic, and none that I know of which has challenged a company’s policy of not hiring former  employees who accepted severance packages, voluntarily retired, and then later applied for open positions.

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There's been quite a bit in the news recently about anti-Latino discrimination.

In one EEOC case out of Miami, Nordstrom agreed to a settlement of $292,500 because of a store manager's blatant prejudice.

The manager was heard to say  that she  "hated Hispanics" and that Hispanics were "lazy and ignorant."  Hispanic workers were also chastised for speaking to each other in Spanish.

The same store manager didn't like African American employees either and was known to make remarks like "I don't like Blacks" and "you're Black, you stink".

According to the EEOC:  

The employees complained to Nordstrom about the harassment, but the harassment did not stop. The . . . manager retaliated against those who complained by continuing the racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

In a different  EEOC case out of Los Angeles, Skilled Healthcare Group agreed to pay $450,000 to a class of Hispanic employees who were subjected to harassment and discrimination at its nursing homes and assisted living facilities in California and Texas.

In that case, the EEOC alleged that workers were

• prohibited from speaking Spanish to Spanish speaking residents

• disciplined for speaking Spanish n the parking lot while on breaks

• given less desirable work than non-Hispanic counterparts paid less and promoted less often
  

In other news, the Southern Poverty Law Center issued an alarming report about anti-Latino discrimination in the South

The report — Under Siege: Life for Low-Income Latinos in the South — details the experiences of Latino immigrants who face increasing hostility as they fill low-wage jobs in Southern states that had few Latino residents until recent years.

According to the report, Latino workers are:

• subjected to widespread hostility, discrimination and exploitation.
• consistently cheated out of their pay
• 80% more likely to die on the job than native-born workers

The discrimination against Latina women in the workplace was particularly disturbing.. For example, 77% of the Hispanic women interviewed said sexual harassment was a major workplace problem.

 A recurring theme is the male supervisor using immigration status as leverage to coerce sexual favors from female employees. These women often have little or no idea about sexual harassment laws and have nowhere to turn.

Sadly, for a variety of reasons discussed in the report including language barriers and legal status, most victims do not seek legal recourse even though Title VII of the Civil Rights Act of 1964 prohibits sexual harassment as well as race and national origin discrimination regardless of immigration status according to most courts.

 With all of these recent stories about discrimination targeted against Latinos,  it's good news that President Obama is strongly considering a Hispanic woman for Supreme Court Justice.

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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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There was an interesting piece by Catherine Moreton Gray which reported Peggy Mastroianni's (associate legal counsel for the EEOC)  talk at the Society for Human Resource Managers Employment Law and Legislative Conference  in Washington last week. In that discussion, Mastroianni outlined the Commission's top priorities for 2009.

Here's what she listed:  

Enforcement of the Lilly Ledbetter Fair Pay Act: The EEOC will look closely at complaints it dismissed since May 27, 2007, the effective date of the Act to see if reinstatement is appropriate.  She said that the agency did not expect a surge in wage claims as a result of the new law.  It will be interesting to see if her prediction is correct.

GINA:  I wrote a post about the Genetic Information Non Discrimination Act in February.  In short, GINA prohibits the use of  genetic tests concerning an employee's own or family's medical history to make an employment decision.The EEOC is in the process of formulating regulations for enforcement of the Act.  There will be more to come about this law once the regulations are published.

ADA Amendments Act (ADAA):  The EEOC is working on proposed regulations for the ADAA. The big change of course is that the definition of the term disability will be construed broadly so that more people will be covered by the Act consistent with the Act's original intent. Mitigating measures, such as medications or prosthetic devices, can't be considered for purposes of determining whether a person is disabled.

I attended a Society for Human Resource Management Conference a couple of months ago.  The panel of management lawyers from the large firms all agreed on the advice to the HR manager attendees:  "treat everyone as disabled and accommodate." 

This is a good thing and it's about time.  According to Gray's article, one of  Mastroianni's remarks about the new amendments:  "employer's doing the reasonable thing won't have to make any changes."  We'll see.

Religious Discrimination:  I thought this discussion was  very interesting,  Three areas mentioned were:

1. Scheduling cases: While an employer is not required to make other employees swap shifts to accommodate scheduling around religious observances, they can't interfere with employees switching on a volunteer basis
2. Muslim prayer breaks:  Observant Muslims are required to pray five times a day. Employers may need to stagger breaks to accommodate this request so long as it does not pose an undue hardship on the business. This apparently has been a problem.
3. Modifying duties: If pharmacists do not want to fill prescriptions for contraceptives on religious grounds, the employer may  have to accommodate and pass the prescription on to another pharmacist. Again, this is a story we have heard about, and it's good to see that the EEOC is tackling it.

We'll be talking more about these topics as the regulations and new cases get reported.

Image: www.theaccidentalitleader.com

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There have been a number of good articles this week which reported the Equal Employment Opportunity Commission's news that discrimination charges are on the rise. including the Workplace Prof Blog  the Connecticut Employment Law Blog,and The Wall Street Journal. There's also some debate as what these new statistics mean.

These are the statistics:

• Overall discrimination charges are at a record high up 15%
• Age discrimination charges are at a record high up 29%                               
• Sex discrimination charges are up 14%                                                
• Religious discrimination charges are up 14%
• National Origin discrimination charges are up 13%
• Race discrimination charges are up 11%
• Disability discrimination charges are up 10%

I think it's pretty obvious that discrimination is going to occur in a time of economic distress.  When managers are given the opportunity to let people go, it is an opportunity to discriminate for:

• younger managers who don't like or who are uncomfortable with the "old timers" and replace them with younger cheaper workers
• men who think women should be at home instead of work
• whites who don't like blacks and other minorities

I wrote about this topic last  week in an article about the hidden dangers of workforce reductions.  My opinion comes from thirty years of representing employees in discrimination claims and both proving and winning those cases.

Not surprisingly, those who represent managers have a different perspective. I just read an article on Job-Bias Claims Soaring  to Record Highs in 2008 which quoted a management lawyer with one of the top firms in the country.  His opinion was that there really is very little discrimination and that people are just looking for money:

Someone who has lost his job is in a very tough situation and may be looking for a number of avenues where he can replace revenue, said Gerald Hathaway, and employment lawyer with Littler Mendelson in New York.  But true victims of discrimination are rare.  Most commonly, someone files a claim thinking he's a victim of discrimination, but is not.

I had lunch a couple of weeks ago with a very well regarded insurance executive who handles discrimination claims nationwide and she sincerely expressed a similar view.

Obviously, there is a real difference of opinion.

Those of us who represent employees and have done so over time have seen the patterns of a spike in discrimination claims when downsizing takes place.  We have scrutinized the documentation, explanations, and business justifications for the decisions that have been made.  Often times the objective support for the termination decision simply does not exist.  In other cases we find that the particular manager has a history of racist, ageist, or sexist remarks, or that other minorities, women, or older workers were selected in disproportionate numbers by the same manager or management group.

Certainly there are some employees who believe that they were discriminated against when they were not.  Many do not understand what the term means or how discrimination is proven.   Many believe that they were treated unfairly, and perhaps they were, but an unfair decision is not necessarily a discriminatory one.  There is no doubt that some of the charges filed with the EEOC have no merit.

On the other hand, there is real discrimination that takes place in the workplace.  If these prejudices did not exist, there would be no need for civil rights laws to protect these groups.  These claims do rise in times of economic distress when people are being singled out for termination or layoff.The news from the EEOC this week is no surprise.

Certainly everyone is entitled to their opinion. But it seems to me the belief that little discrimination occurs, or that most of the claims have no merit, or that people are just looking for money  is a belief that may not fully appreciate the real prejudice which still exists and is patently manifested in  times of economic distress.  

Image: eeopreventionorpenalty.com

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