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

Jury Awards Over 1M In Sexual Orientation Discrimination Case

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

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

D.C. Police Officers Win Retaliation Case

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

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

Transgender Employee Wins Equal Protection Sex Discrimination Case

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

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

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

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

Men Win Sex Discrimination Appeal In Ninth Circuit

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

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

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

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

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

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

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Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26^th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog.  For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,"  which the district court gave “little weight," corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift -- during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West's lawyer requested which the Sixth Circuit both addressed and confirmed.

 images: www.hickmankytourism.com

                www.reclaimdemocracy.org

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Claims Of Gender, Race, Disability And National Origin Discrimination By Transportation Authorities

Earlier this month, a group of female and Hispanic Massachusetts Bay Transportation Authority (MBTA) employees filed a class action complaint with the Massachusetts Commission Against Discrimination alleging that women and Hispanic workers were "pigeonholed in entry-level positions and grossly underpaid compared to non-Latino and male counterparts.

One day later, a federal class action was filed alleging that  racism and sexism "pervade the culture" of the Chicago Department of Transportation which includes referring to black employees as "Mambo Gorilla," "nigger," and segregating minority employees by assigning them to work only on the city's "gang-infested" South Side.

Last Thursday ,the Los Angeles County Metropolitan Transportation Authority  reached a settlement agreement resolving a class action lawsuit in Los Angeles County Superior Court.

The lawsuit alleged disability discrimination against visually-impaired Metro bus passengers by:

• failing to announce stops on buses
  
• failing to stop and pick up visually-impaired passengers
  
• failing to provide schedule and route information in accessible formats
  
• failing to make its public website accessible with screen-readers commonly used by the visually-impaired.

For more information about the settlement, look here.

Unfortunately, discrimination of all kinds in the government transportation business seems to be out of control.

 images:website.lineone.net

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

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

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

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

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

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

disparate treatment discrimination

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

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

 disparate impact discrimination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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Is it illegal to discriminate against a Caucasian employee against because of her friendship with and advocacy for African-American co-employees? According to a new decision from the Sixth Circuit Court of Appeals, Barrett, et al v. Whirlpool Corporation, the answer is yes. 

In this important case, three Caucasian production workers  sued Whirlpool claiming that they were retaliated against and subjected to a hostile work environment. They said it was because they were friendly  with African American co-employees and stuck up for them when faced with racial hostility at work.

Title VII of the Civil Rights Act of 1964, and 42 U.S.C. Sec.1981 both forbid discrimination on the basis of association with or advocacy for non-whites.

While admitting that association discrimination claims could be valid, Whirlpool contended that the plaintiffs' claims fell short because the associations with their black co-workers were only casual work friendships and not the type protected under these statutes. Only a significant association that extends outside of the workplace could give rise to a claim according to Whirlpool.

Put another way,  Whirlpool argued that the only kinds of  association claims which can be brought are the kind where an employee was discriminated against because of an intimate or family relationship with a minority like the cases where:

•  an employer discharged an employee after leaning that his daughter was bi-racial (see 6th Circuit  Court of Appeals, Tetro v. Elliott Popham Ponitac, Oldsmobile, Buick, & GMC Trucks, Inc.) or
• an employer discharged an employee upon learning of an interracial marriage (see llth Circuit Court of Appeals, Parr. v Woodman of World Life Ins. Co.)

The Court  rejected this argument and held (like the7th Circuit Court of Appeals in Drake v. 3M ) that associational discrimination could be found in the case of friendship between co-workers of different races:

If a plaintiff shows that 1)she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant. … The absence of a relationship outside of work should not immunize the conduct of harassers who targets an employee because she associates with African-American co-workers.

While the Court  of Appeals found insufficient evidence to support two of the employees claims, it found in favor of the third -- Treva Nickens, a Caucasian woman who worked at Whirlpool since 1983 and testified:

• it was commonplace to hear racist jokes and racist slurs including he word “nigger”
• she complained on a daily basis about theses comments but that her supervisor refused to do anything to stop it.
• she was harassed for “hanging around with blacks”
• she was told that “she needed to stay with her own kind”
• when she reported the conduct she was physically threatened
• she was directly harassed by her supervisors
• she was denied promotions for higher paying jobs because she spoke out on behalf of her African American friends.

The Court also held reaffirmed the proposition that advocacy on behalf of African-American co-workers was protected. According to the Court:

[A]s long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a discrimination claim under Title VII.

The bottom line is that  when friends stick up for their minority co-workers in the face of discrimination or harassment, and as a result are subjected  to a a hostile work environment , there is legal protection.  I don't  remember seeing another case quite like it .

What's more, there is little doubt that its reasoning extends beyond race and can be relied upon to protect co-workers who stick up for women, the disabled, or anyone else in a protected class if the individual is then harassed because of it.

This is an excellent case for the promotion of fairness and dignity in the workplace and one that  all managers and human resource professionals should keep in their back pocket. 

 image:http://images.publicradio.org

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