Another VIctory For Working Moms

Gender Stereotyping Constitutes Sex Discrimination

Every once in a while, everything goes right for the employee in a fight to get employment claims heard by a jury. The case of Nancy Falco Chedid, M.D. vs. Children’s Hospital & others is one such example. Here’s what happened in this recent illuminating decision involving the hot issue of caregiver discrimination.

Facts Of The Case

Dr. Nancy Falco Chedid worked at Children’s Hospital and the Boston Plastic and Oral Surgery part time as a plastic surgeon beginning in 2005. At that time, she re-entered her practice after taking six years off for the birth and caretaking of her three children. 

In August of 2006, Chedid’s boss, and Chief of Plastic Surgery, was replaced by Dr. John Meara. Shortly after his arrival Chedid had a meeting with Meara.

At that time, Chedid stated that she worked a reduced hours position and had family responsibilities. Meara expressed displeasure with her part time status and told her that there were certain subspecialties -- like dermatology -- which were more amenable to a part-time arrangement than plastic surgery.

He also said that he wanted to rid the department of plastic surgery of all the “part timers.” According to Chedid, when she asked Meara if he was pushing her out he nodded “yes” and that he did so without getting to know her or her abilities.

Because of her concern regarding Meara’s intention to push her out, Chadid met with the hospital’s Director of the Office of the Faculty Development, Dr. Jean Emans. Part of Emans’ job was to act as a problem solver for faculty with issues related to career advancement.

Emans explained that Children’s had a large number of part-time physicians and that with regard to work and family balance some chiefs “get it” and others do not.  Chedid stated that she would be willing to increase her hours if it meant saving her job.

Chedid sent a letter to Meara on November 8, 2006 and met with him eight days later. They also exchanged e-mails. Chedid made a number of proposals and explained to him how she could fit into his vision for the department. He assured her that he was not pushing her out, but then stated his intention to hire a full time surgeon in 2007, which might mean that Chedid would have to leave. She reiterated her desire to stay including her willingness to work more hours.  Meara again stated that Chedid would not have an indefinite position given his vision and goals for the department. Without Chedid, the department would be all male.

In the months that followed, Chedid continued to address her concern to hospital administrators including the COO and Vice President of Human Resources --- specifically her concern that Meara was pushing her out because she was a woman with childcare responsibilities. They explained that they believed what she was saying, but stated that Meara, as department head, had a right to eliminate part-time positions from the department.

In March or 2007, Emans and Stewart informed Chedid that Meara would only allow her to work through June. Emans explained that Meara wanted someone with special pediatric training in the department and that Chedid should obtain the special training and reapply in the future.  She asked why she had to apply when a co-worker was invited to join the Foundation without an application and another doctor was hired with far less experience. In addition, Chedid, who had pediatric training, offered to work full time.

Stewart became exasperated and angry at Chedid’s offer, but said that she would draft a memo of the meeting and discuss matters with Meara. The memo was never circulated.

On March 23, 2007, Meara informed Chedid that her employment with the Foundation would end on June 30th of that year. After learning that Chedid had been terminated, several of her colleagues circulated a petition to protest the termination.  As stated in the opinion, the record contains not a word of criticism about Dr. Chedid’s abilities as a physician and surgeon.

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Employee Rights Short Takes: Sexual Harassment, Medical Marijuana & More

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.


Employee Rights Short Takes: GOP Private Club Sued For Race Discrimination, Latino Discrimination On The Rise And More

 It’s a political week, so here are a few short takes – admittedly- with a political twist::

GOP Social Club Sued For Racial Discrimination

The National Republican Club of Capitol Hill, an exclusive club known to be the place where the DC Republican “backroom deals” get made, is being sued for race discrimination by its former human resource manager. The plaintiff, Kim Crawford,  alleges that she was repeatedly passed over for raises while “less qualified, less deserving male and white counterparts were given” increases.

Crawford also claims she was fired in July after investigating a racial complaint from the club’s acting executive chef. Race discrimination in employment and retaliation are prohibited by Title VII of the Civil Rights Act of 1964. For more about it read here.

Being A Liberal And Hating Sarah Palin May Be Genetic

I must say this story caught my eye – particularly since we have three generations of Sarah Palin bashers in my immediate family. A new study in the Journal of Politics, as reported in Time,  says that there’s a biological explanation why some people favor big government, oppose the death penalty and can’t stand Sarah Palin – and it’s called the liberal gene.

The DRD4-7R gene affecting the neurotransmitter dopamine has already been linked to a personality type driven to seek out new experiences. Researchers from the University of California, San Diego and Harvard University hypothesized that this predisposition might affect political beliefs.

The researches suspect that the D4 novelty seekers would have more exposure to a wider variety of lifestyles, a wider circle of friends and more exposure to broader  views, attitudes and beliefs. Apparently, all of this does have an effect on D4 inidviduals' political views and the new study bears out their hypothesis  ---  those born with the D4 gene are more liberal. It's all quite interesting. I wonder if we're going to hear about a conservative gene too?

More Latinos Concerned About Discrimination

Nearly two thirds of Latinos in the United States think that discrimination against Hispanics is a “major problem” according to a new study from the Pew Hispanic Center. There are 47 million Latinos in the US, which make up 15% of the population and constitute the nation’s largest minority group. According to the study:

Asked to state the most important factor leading to discrimination, a plurality of 36% now cite immigration status, up from a minority of 23% who said the same in 2007. Back then, a plurality of respondents-46%-identified language skills as the biggest cause of discrimination against Hispanics.

The Pew study was released days before the mid-term elections in which the Latino vote is expected to play an important role, particularly in the Florida gubernatorial race and Nevada Senate contest between Senate Majority leader Harry Reid and Tea Party Republican Sharon Angle. Anlge has been sharply criticized for ads run in recent weeks which portray Latinos as menacing interlopers. 17% of voters in Nevada are Latinos who are expected to vote in high numbers this Tuesday.

 images: ktnv.images.worldnow

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

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 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.


Employee Rights Short Takes: Sex Discrimination, Retaliation And More

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.


Eleventh Circuit Delivers Important Opinion On Retaliation Case

Employee Gets Trial on Title VII Retaliation Claim

What happens when an employee in a sensitive position complains about discrimination and immediately gets fired because the company claims the employee might use her position to sabotage the business?

It’s a defense that is appealing to many judges, but not one that can be taken at face value according to the case of Alvarez v. Royal Atlantic Developers  decided by the Eleventh Circuit Court of Appeals last week.

What Happened In The Case

Eliuth Alvarez, a Cuban-American, worked as a controller for Royal Atlantic Developers, a Miami based real estate development company owned by the Verdezoto family. The Verdezotos also own Royal Flowers International.  Edwin Verdezoto is CEO of Royal Atlantic and President of Royal Flowers. Heidi Verdezoto, his sister,  is CFO of both companies. The two companies have over 50 employees.

Alvarez had eighteen years of experience in accounting, auditing, and controllership at the time she arrived at the company. Alvarez reported to the Chief Financial Officer, Heidi Verdezoto.

By all accounts Heidi Verdezoto was impossible to please. Alvarez’s two predecessors were fired by her within two to three months of their hiring because they failed to meet her standards.

Alvarez suffered the same fate.  About four months after she was hired, the Verdezotos decided to fire her but wait until a replacement was found before the termination was to take place.

Alvarez got wind of the plan and wrote a letter of protest to her bosses, complaining, among other things, about what she believed to be discrimination against her because of her national origin. The Verdezotos read the letter and fired Alvarez the next morning because of it.

Alvarez filed a lawsuit in federal court in Florida claiming discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The company defended by claiming that Alvarez did not prove discrimination because of her national origin and that she was fired because of poor performance.

Regarding the retaliation claim, the company claimed there was no causal connection between Alvarez’s letter and her firing because she was going to be fired anyway. In addition, the company claimed that even if her letter of complaint was a factor in the firing, it had a legitimate non-retaliatory reason for firing her immediately, specifically because:

  • it would be "awkward" and "counterproductive" for Alvarez to remain in the office after she expressed such unhappiness with the job
  • it feared that she might use her position as controller to sabotage the company’s operations

The district court granted judgment in favor of the company. On the discrimination claim, it found that Alvarez did not show that she was replaced by a non-Cuban or that similarly situated non-Cubans were treated more favorably than she had been. On the retaliation claim, the court concluded that the company offered legitimate reasons for firing Alvarez. Alvarez appealed.

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It's Nothing New: Male Dominated Professions Foster Culture Of Sex Discrimination

Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That's one of the reasons why I think it's important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news.Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

 Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department. 

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’"

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.


JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations. 

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste. 

Gorzynski complained  to Celeste on numerous occasions about the discrimination and harassment she experienced and about  the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses
The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

  • permeated with discriminatory intimidation, ridicule, and insult that is
  • sufficiently severe or pervasive to alter the conditions of the victim’s employment and
  • create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

  • grabbed Gorzynsi and other women around the waist
  • tickled them
  • stared at them as if” he was mentally undressing them”
  • made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

  • it exercised reasonable care to prevent and promptly correct any harassing behavior and
  • the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook)  which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

  • only complained to her supervisor -- the harasser
  • did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski's sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed.  It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

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Workplace Retaliation Results In $1.5 Million Dollar Verdict

Winning Plaintiff In Supreme Court Crawford Decision Gets Big Verdict For Title VII Retaliation

We often read about cases in the courts of appeals, including the ultimate court of appeals -- the United States Supreme Court -- in which the plaintiff prevails and gets the opportunity to take his or her case to a jury.

We study these cases because of the legal principles and precedents involved and how they will affect other clients and cases in the future.

We don't usually hear -- and it's not commonly reported -- what eventually happens to the plaintiff who won the reversal and got the chance to go to court. That's because some of those cases are settled, and the settlements are often times confidential. In other instances, the results of the trial simply don't make the news.

So I was really pleased this morning to read in one the bulletins I receive from the National Employment Lawyers Association about the fantastic verdict on Monday for Vicky Crawford, the plaintiff in the landmark United Supreme Court decision Crawford v. Metropolitan Government of Nashville and Davidson Cty .

Here's what happened in the case.

Facts Of The Case

In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.

When Vicky Crawford, a 30 year Metro employee , was asked whether she had witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances of sexually harassing behavior including instances where Hughes: 

  • repeatedly put his crotch up to her window and
  • entered her office and grabbed her head and pulled it to his crotch

Two other employees also reported being harassed by Hughes.

Metro took no action against Hughes, but fired Crawford and the two other accusers soon after finishing the investigation.  Metro claimed it fired Crawford for embezzlement.

Crawford filed a lawsuit claiming that she was fired in retaliation for her report about Hughes's behavior in violation of Title VII of the Civil Rights Act of 1964.

Title VII's Anti-Retaliation Provisions

Title VII has two provisions which prohibit retaliation in employment discrimination cases and make it unlawful for an employer to discriminate against any of its employees because:

  1. he or she "has opposed any practice which is unlawful" under Title VII
  2. he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter"

These provisions are commonly known as the "opposition clause" and the "participation clause".

The District Court and Sixth Circuit Decisions

The District Court granted summary judgment in favor of Metro. It held that Crawford did not satisfy the opposition clause because she had not "instigated or initiated any complaint", but had "merely answered questions by investigators in an already-pending investigation, initiated by someone else."

The District Court also concluded that Crawford's claim failed under the participation clause because it held that the only circumstances in which an employee would be protected from retaliation for participation in an employer's internal investigation was where "the investigation occur[ed] pursuant to a pending EEOC charge."

Crawford appealed and the Sixth Circuit Court of Appeals affirmed on the same grounds.

Crawford next filed a petition for certiorari requesting that the United States Supreme Court accept the case. The petition was granted.

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Harassed Pro Choice Doctor Gets Million Dollar Lawsuit Settlement

 Retaliation  Because of Fight for Abortion Training Gets Doc Million Dollar Lawsuit Settlement

A $1.4 million dollar settlement was reached last week in this important case about a doctor's advocacy for reproductive rights.

Here's the story as reported by the Center for Reproductive Rights and the Feminist Majority Foundation.

Dr. Christopher Carey served for many years as both Chief of Obstetrics & Gynecology and Director of the Obstetrics & Gynecology Residency Program at Maricopa County Hospital in Phoenix.

While in that position, Dr. Carey supported providing OB/GYN residents the opportunity to participate in abortion training if they so desired.

Carey also spoke out against the efforts of the Maricopa County Board of Supervisors and others who wanted to end those training opportunities.

As a result, Carey claimed he was harassed and retaliated against  by the Board of Supervisors and other officials who:

  • carried on an eighteen month campaign to force Carey out of his position
  • spread false statements which damaged his reputation
  • worked to block his re-appointment to the Medical Staff
  • conducted multiple baseless investigations
  • voted to remove him from his position at the hospital

Carey was terminated from his position in September of 2004.

Carey sued alleging that his Constitutional rights were violated under the First and Fourteenth Amendments,  and that he was discriminated against because of his religious and moral beliefs.

A settlement of $1.4 million dollars was announced on May 22nd by the Center for Reproductive Rights and the firm of Weil, Gotshal & Manges which represented Dr. Carey. The case was set to go to trial on June 23rd.

In an interview after the settlement, Dr. Carey said:

I am extremely pleased with the settlement, but it’s important to remember that the shortage of abortion providers in this country is extensive.

A resident’s ability to obtain abortion training is crucial to ensuring women receive quality health care when they need it.

No doubt Dr. Carey is a real champion on this very important and controversial issue.  It's reassuring to many of us that Dr. Carey was vindicated.

In addition to the important principles concerning  quality health care, and freedom free from discrimination and retaliation,  there's a broader lesson to be learned from this case.

It was simply stated by Janet Crepps, deputy director of he U.S. Legal Program at the Center for Reproductive Rights who said:  "Personal politics have no place in medical care."

It's not often that we see cases which send this message -- let's hope it gets delivered.


Another Victory for Working Moms

I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out.

It’s a great example of  “caregiver discrimination” about which the EEOC issued a report just last week (I wrote about it : Read Carefully to Avoid Caregiver Discrimination), and it's a case in which the caregiver wins.

The case also has a very clear analysis of what kind of evidence allows a plaintiff to get to a jury in a typical gender discrimination case.  

Here’s what happened in the case.

Karen Gerving worked as a sales manager for Opbiz (Alladin Resort and Casino) until she was fired by her supervisor, Jim Lauster.

Gerving filed a lawsuit alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Gerving’s evidence showed that after she became a stepmother, Lauster:

  • began to give her poor performance reviews
  • told her that working mothers should stay at home
  • told her that she would have to choose between being a mother and a sales manager
  • made similar discriminatory remarks to a pregnant co-worker
  • treated  Gerving differently than a male co-worker when she was reprimanded for making calls to her children while he was not

Because of the discriminatory treatment, Gerving complained to the Human Resource Deparatment. Two weeks later, an angry Lauster tried to get Gerving fired.

It turned out that Luster wasn’t able to fire Gerving until some months later when new management was in place.

In a typical discrimination case, the plaintiff can establish an inference of discrimination if she can prove:

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

4)   she was treated differently than a similarly situated employee who does not belong to the protected class

Once the employee establishes an inference of discrimination – what’s called the prima facie case – the employer is required to "articulate a legitimate, non-discriminatory reason" for it's employment action.

If the employer does that, the employee must prove pretext – meaning that the employee presents evidence that the reason given by the employer is not believable or made-up.

In this case, Alladin said that Gerving was fired because of poor performance and because she used profanity in an argument with a co-worker.

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Race Discrimination Plaintiff Gets a New Trial

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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Fighting for Employee Rights the American Way

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

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

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

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

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

  • Workers at a 3M plant held their boss for more than 24 hours at a plant in Central France.
  • Workers at a Sony plant in southwest France held their boss overnight when they were trying to get better severance packages.

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

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

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

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

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

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

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

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Different Strokes for Different Folks

I got a call last week from a woman in Michigan who was in a great deal of distress about what  was happening to her at work.  She is employed in a  sales  position for a large company.  She told me that she became aware of different criteria being used to judge performance for different individuals in the sales department in which she worked.

From documents she saw, one formula was being used to evaluate the white men,  and a second formula was being used for the one African American in the sales department.   A third formula was being used for the one and only woman. She shared her concern with the African American employee.  He filed a grievance.  She believes that she is now being retaliated against and is fearful that she will lose her job. Let's hope not.

There are three important points to share about this scenario: 

  1. One of the prime ways to prove discrimination is by proving a difference in treatment.  If different standards are being used to evaluate performance for the same or similar jobs, it very well may prove discrimination. The practice of using different criteria to judge the same people in the same jobs is exposing a company to risk.
  2. Retaliation is a separate claim under the law which prohibits discrimination. If a person raises a complaint  -- whether formal or informal -- about discrimination or a perceived civil rights violation and is retaliated against because of it, it's illegal.
  3. If a person sticks up for or advocates on behalf  of a minority who is being discriminated against, and then is retaliated against because of it, the retaliation is illegal.

I wrote about the topic of  white employees sticking up for black friends in a recent article. The 6th Circuit Court of Appeals case of Barrett v. Whirlpool Corporation  involved a white employee who protested the racially hostile atmosphere confronting some of her friends at work.  She was retaliated against because of her advocacy.  The court stated that she had a right to be free from retaliation under those circumstances under Title VII of the Civil Rights Act.

It is sad but true that many women in sales positions are discriminated against with regularity. They are often held to higher standards, given less preferential accounts, and excluded from networking opportunities. When they complain, they are commonly retaliated against.

I had one case involving a woman who worked for seventeen years in sales for a very large corporation without a promotion.  She was regularly training young men brought in by her bosses. The trainees were then promoted over her. Since she was a single mom with a pretty good paying job she felt she could not complain.

Finally one day she had it and decided enough was enough. She voiced her concern to her boss and was immediately shut down.  She filed a complaint with the EEOC claiming gender discrimination. When her boss found out about the charge, he fired her on the spot shouting: "You better find the best god damn lawyer that you can."  We settled the case about eighteen months later.

It seems like no matter how much training and education is provided, there is still is a lack of awareness that a difference in treatment of individuals in similar positions is discriminatory. Sadly true is that when an employee has the nerve to point it out, retaliation is often common which exposes the employee to all sorts emotional and financial distress and the employer to needless liability.