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: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Here are a few employee rights Short Takes worth noting:

It's A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 ("ADAAA"). The law made significant changes with respect to the interpretation of  the term "disability" under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed "disability" and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times  about a recently filed discrimination case and it's worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau's second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 -- Equal Pay Day -- to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 -- because it held that the case was filed too late -- Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009  by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: www.glbtq.comf

It's A Long Road To Justice

Federal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.  

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

  • a record of military service
  • a bachelor’s degree in history
  • completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion. 

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

  • a bachelor’s and doctoral degrees
  • authorship of a length book and numerous scholarly publications
  • a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

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Few And Far Between: Court Decides Female on Male Hostile Environment Sexual Harassment Case

Assumption That Men Welcome Sexual Harassment Is Sex Stereotyping In Violation Of Title VII

You don’t often see sexual harassment cases in which the woman is the aggressor and the man is the victim. Many people (including some judges) don’t interpret those facts to constitute sexual harassment in violation of Title VII. That’s why the recent case of EEOC v. Prospect Airport Services from the Ninth Circuit Court of Appeals is so important.

What Happened In The Case

Rudolpho  Lamas worked for Prospect Airport Services at McCarran International Airport in Las Vegas. He worked as a passenger assistant helping passengers who needed wheelchair assistance.

Lamas, a recent widower, started working for Prospect in April of 2002. That fall, Sylvia Munoz, a married co-worker began making sexual advances to Lamas. Munoz repeatedly:

  • propositioned him for sex
  • asked him out
  • wrote him love notes which were sexually explicit
  • performed gestures simulating fellatio when he walked by
  • recruited co-workers who were telling him that she loved him and wanted him
  • approached him in the parking lot at work and gave him a sexually suggestive photograph

Lamas never made overtures towards Munoz and told her and their co-workers over and over that he was not interested – but she didn’t stop.

Lamas complained to his boss but nothing was done. He talked to his next supervisor up the chain, Dennis Mitchell, and gave him one of the “love” notes. Mitchell told Lamas that he “did not want to get involved in personal matters.” Eventually Mitchell told Munoz that he knew she was “pursuing a coworker … and the coworker wanted the advances to stop.”

But Munoz did not stop and the harassment continued. He testified that every time he walked by her there was something -- a gesture, licking her lips suggestively, asking if he “wanted to have some fun”, performing “blow job imitations” -- and that it was embarrassing and causing constant pressure at work.

Co-workers began to speculate that Lamas was a homosexual -- so in addition to having to deal with Munoz’s remarks and gestures, Lamas had to face co-workers remarks suggesting that he was gay. Lamas complained to four different Prospect management officials about the harassment, but nothing was done to stop it. Munoz kept up the behavior.


Lamas felt helpless, was crying, and consulted a psychologist about his distress. His performance began to suffer. Lomas was demoted because of “complaints about job performance “and his “negative attitude.” A few monthslater, in June of 2003, Lamas was fired.

The District Court Decision

Munoz filed a lawsuit in the federal district court in Nevada for sexual harassment. The district court concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment for a reasonable man.  

In its decision grating judgment against Lamas, the district noted that most men would have “welcomed” the behavior, but Lomas admitted that due to his Christian background he was embarrassed instead. It also noted that Munoz never filed a written report complaining about the conduct.  Lamas appealed.

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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: Don't Ask, Don't Tell, 8 Million Dollar Verdict For Cancer Victim, Race Discrimination And More

Here are a few short takes about discrimination cases that made the news this week:

Don’t Ask Don’t Tell Is Unconstitutional

United States District Court Judge Virginia Phillips ruled last week that “Don’t Ask, Don’t Tell”  (DADT) is unconstitutional because it violates both the first amendment free speech and fifth amendment due process rights of gay and lesbian service members. Judge Phillips is expected to issue an injunction that would bar the federal government from enforcing DADT though government lawyers contend that Phillips does not have the authority to do so. For a good NY Times editorial about it  read here. For the opinion, read here. 

Goldman Sachs Sued For Gender Discrimination

Three former female employees at Goldman Sachs sued the investment bank claiming that it is guilty of systematic discrimination against women. The lawsuit alleges that Goldman discriminates in pay and promotion and that a persistent pattern of bias has resulted in the underrepresentation of women in the firm’s management ranks. Sex discrimination violates Title VII of the Civil Rights Act of 1964. For more about the case read here.

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.

Earlier this year, Goldman and CitiGroup were sued over allegations that the banking firms discriminated against working mothers. Unfortunately, I don’t think we have come close to the end of reading about these kinds of cases in this particular industry.

Roadway Express Settles Racial Harassment Case For $10 Million

The EEOC announced on Wednesday that a federal magistrate in Chicago granted preliminary approval of a 10 million dollar,  five-year consent decree which will settle a race harassment and discrimination case filed against Roadway Express and YRC, Inc. Race discrimination and race harassment violate Title VII of the Civil Rights Act of 1964.

The suit included allegations that the company subjected black employees at its Chicago Heights and Elk Grove Village facilities to a racially hostile work environment and racial discrimination including multiple incidents of hangman's nooses (unbelievable that this still goes on) racist graffiti, racist cartoons, and racist comments.

The EEOC also planned to present evidence that black employees were subjected to harsher discipline and scrutiny that their white counterparts and given more difficult and time-consuming work assignments than white employees.

According to the EEOC, black employees complained over a number of years about all of these conditions but the company failed to take any corrective action.

Cancer Survivor Wins $8.1 Million Verdict For Wrongful Discharge

Lawyers USA reported news of an $8.1 million dollar verdict earlier this month in a case against Michaels Stores, Inc for a Florida woman who was fired after taking time off to get treatment for cancer. Yes, getting fired because of cancer is still a somewhat regular occurrence I am sorry to report.

(Discrimination because of cancer violates the Americans with Disabilities Act. (“ADA”).Employees who work for companies with 50 or more employees are entitled to leave under the Family and Medical Leave Act.)

According to the article, Kara Jorud was viewed as an exemplary manager until she went out for double mastectomy surgeries. After that, she received a number of calls from her supervisor urging her to come back to work even though she was projected to need nine to ten weeks of recovery time.

Her job was threatened four days after she returned to work in August of 2008, and within thirty days she was fired. Jorud was accused of a variety of petty offenses. She showed, with evidence from more than twenty co-employees, that others committed similar offenses and were not fired.

The jury awarded Jorud $4 million for pain and suffering, $100,000 in back pay, and $4 million dollars in punitive damages. The court will also be awarding attorneys fees and costs.

It’s not only illegal to fire someone with cancer, it’s a stupid business decision that can obviously offend the sensibilities of many potential jurors. A full and complete damage award –which can often mean a sizable verdict -- is not a surprising outcome in this kind of case.


Employee Rights Short Takes: Employees Win Sex Discrimination Cases On Appeal And More

 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.


Evidence of Non-Sexual Conduct Can Support Title VII Hostile Environment Claim

Harassing Conduct Need Not Be Sexual To Prove Hostile Environment Claim

When does rude conduct in the workplace support a hostile environment sexual harassment claim? The First Circuit Court of Appeals addressed this important issue in the case of Rosario v. The Department of the Army decided last week and you can bet it’s going to make a big difference in sexual harassment cases down the road.

 What Happened In The Case

Ruth Rosario, a civilian employee, worked at the Rodriguez Army Heath Clinic in Fort Buchanan, Puerto Rico as a medical records technician. Her duties included checking patients in and maintaining computerized medical records. 

Rosario worked along side Ivan Arroyo who performed similar duties and trained her. According to the evidence, Arroyo was abusive to Rosario and others on a daily basis.

He threw medical records around, threw personal items in the garbage, disparaged co-workers with derogatory names and made racial comments. According to Rosario, Arroyo:

  • Constantly criticized her clothes as too revealing
  • Constantly talked about her underwear
  • Walked behind her and made faces as he looked at the person she was talking to
  • Complained about the way she would “walk, move, and talk”
  • Would get men together to Rosario’s area where they would “meet, and talk, and then point at her and laugh”

Rosario complained to her supervisor, but the conduct continued.  About a year after the harassment began, Arroyo became Rosario’s supervisor.

Arroyo continued to criticize and mock Rosario and respond to her in ways she found humiliating. According to Rosario, Arroyo watched whatever she was doing or saying and challenged every decision she made. He told her she was fat, had delinquent children, and told her co-workers that she dressed like a “woman of the streets.” Rosario also presented evidence of sexually oriented jokes Arroyo got from the computer which he talked about and passed around.

As a result of Arroyo’s behavior Rosario felt uncomfortable every day, did not want to go to work, became depressed, started losing her hair, experienced panic attacks, and was eventually hospitalized. She needed psychiatric treatment, medication, and attributed the breakup of her marriage to her situation at work.

Rosario filed a formal discrimination complaint with the Army’s Equal Employment Opportunity Office. The agency found against her.

The Lower Court Rules Against Rosario

At the conclusion of the Army’s EEO proceedings, Rosario filed a lawsuit alleging gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964.  After dropping the national origin claim, the Federal District Court ruled on Rosario’s gender-based hostile work environment claim and found against her.

The court held that the record showed “Mr. Arroyo [to be] a rude man that lacked courtesy and professionalism,” but the evidence was inadequate to prove a violation of Title VII. The court granted summary judgment in favor of the defendants. Rosario appealed.

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Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.  

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University's Reuben Clark Law School, wrote an interesting article about the topic which you can read here.  The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU's J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin  Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  -- including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.


Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment And More

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 26th, 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.




Truck Driver Wins Gender Discrimination Case In Fourth Circuit

Court Elaborates On Types Of  Evidence For Proof Of  Discrimination

The recent case of Merritt v. Old Dominion Freight is hands down one of the best decisions I have come across in a long time.

It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.

What Happened In The Case

Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend  nights and weekends at home.

To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.

When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.

The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.

When Merritt asked why she was not hired, Howard told her that :

  • it was decided and they could not let a woman have that position.
  • the company did not really have women drivers in the city (as pick up and deliver drivers)

On another occasion he told her:

  • the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt
  • the VP didn’t think a girl should have that position

Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.

For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.

When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.

Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.

After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.

The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.

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It's Equal Pay Day And Time To Pass The Paycheck Fairness Act

Wage Discrimination Needs Attention And A Legislative Fix

April 20, 2010 is Equal Pay Day. It was established in 1996 to illuminate the gap between men’s and women’s wages. The date symbolizes how far into 2010 women must work to earn what men earned in 2009.

This year, with the support of President Obama, Equal Pay Day should also bring attention to pending legislation intended to address lingering issues of pay disparity in the American workforce.

Here are some facts about pay equity from the National Organization for Women:

  • In 2007, women's median annual paychecks reflected only 78 cents for every $1.00 earned by men. Specifically for women of color, the gap is even wider: In comparison to a man's dollar, African American women earn only 69 cents and Latinas just 59 cents. 
  • In 1963, when the Equal Pay Act was passed, full-time working women were paid 59 cents on average for every dollar paid to men. This means it took 44 years for the wage gap to close just 19 cents -- a rate of less than half a penny a year.
  • The narrowing of this gap has slowed down over the last six years, with women gaining a mere two cents since 2001. 
  • Women's median pay was less than men's in each and every one of the 20 industries and 25 occupation groups surveyed by the U.S. Census Bureau in 2007. Even men working in female-dominated occupations earn more than women working in those same occupations.
  • According to the Institute for Women's Policy Research,  if equal pay for women were instituted immediately, across the board, it would result in an annual $319 billion gain nationally for women and their families (in 2008 dollars).
  • When The WAGE Project looked exclusively at full-time workers, they estimated that women with a high school diploma lose as much as $700,000 over a lifetime of work, women with a college degree lose $1.2 million and professional school graduates may lose up to $2 million because of pay disparity.
  • As a result, these inequities follow women into their retirement years, reducing their Social Security benefits, pensions, savings and other financial resources.
  • A study by the American Association of University Women examined how the wage gap affects college graduates. Wage disparities kick in shortly after college graduation, when women and men should, absent discrimination, be on a level playing field.
  • One year after graduating college, women are paid on average only 80 percent of their male counterparts' wages, and during the next 10 years, women's wages fall even further behind, dropping to only 69 percent of men's earnings ten years after college

I have represented women in discrimination cases for many years.  From my vantage point it's clear that while the pay equity issues are not as blatant as they once were, wage discrimination is still a prevalent concern for women of all socio-economic groups.

It's also true that the Equal Pay Act of 1963, while well intentioned, has not come close to fulfilling its goal due to a whole host of reasons.

The good news is that there is a bill pending in Congress aimed at correcting unlawful wage disparities and which offers a legislative fix for some of the problems with the Equal Pay Act.

The Paycheck Fairness Act (H.R.12 and S.182) was introduced January 2009 by then-Senator Hillary Clinton and Rep. Rosa DeLauro to strengthen the Equal Pay Act of 1963. The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense which will be a real help to victims of pay discrimination.

The Paycheck Fairness Act also prohibits retaliation against inquiring about or disclosing wage information  and proposes voluntary EEOC guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities. The bill was passed by the House in January of 2009 and is pending in the Senate. It's lead sponsor is Sen. Christopher Dodd.

There were hearings about the bill in March of this year with lots of illuminating testimony, including the remarks of Stuart Ishimaru, acting Chariman of the EEOC, which you can read here if you are interested in more detail about the subject.

The bottom line is if you care about equal rights for women and want to make a difference, please call or write your Senator and urge passage of the Paycheck Fairness Act. Here's a link that will help you send the message. We know that the President  supports it -- we just need to get it on his desk.


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.


Employee Rights Post Short Takes: Walmart Settles Sex Discrimination Case For $11.7 Million

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.


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 has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at

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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Employee Rights Short Takes: Discrimination By Transportation Authorities Out Of Control

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.

Gender Based Profanity Constitutes Sexual Harassment

C.H. Robinson Loses Another Sexual Harassment Hostile Environment Appeal

I read about this case decided by the Eleventh Circuit Court of Appeals last week with great interest. In it the Court held quite clearly that a constant flow of profanity in the workplace can constitute sexual harassment and gender discrimination.

After reading it I thought,  "this sounds familiar."  In fact I thought, "I've already written about this case," so I researched my blog and there it was -- an almost identical lawsuit against the same company for the same awful conduct decided in June by  the Sixth Circuit Court of Appeals and I thought, "doesn't this company ever learn?"

Reeves v. C.H. Robinson Worldwide, Inc. is  a long decision -- 27 pages -- and one definitely worth the read. In a nutshell, here's what happened in the case.

The Facts

Ingrid Reeves worked as a sales representative from July 2001 to March 2004 in the Birmingham, Alabama branch of C.H. Robinson.  She worked in a cubicle in an open area with six male co-workers.

During that time, she was subjected to an onslaught of foul and disgusting language at work on a daily basis.  Women were repeatedly referred to as:

  • bitch
  • fucking bitch
  • fucking whore
  • crack whore 
  • cunt

Co-workers also listened to a crude radio show each morning, displayed pornography on a computer, and sang songs about gender-derogatory topics.

Though she complained to her co-workers they persisted in the conduct.  She complained to her branch manager on at least five separate occasions and in two separate work evaluations. She also contacted two C.H. Robinson executives. Nothing changed, and Reeves resigned.

Reeves filed a lawsuit alleging that she had been subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

What Happened In The Courts

The federal district court granted judgment in favor of C.H. Robinson and threw out the case. Its reasoning was that the offensive conduct was not motivated by sex and not directed at Reeves.

Reeves appealed. A panel of the appellate court reversed the district court's decision holding, among other things, that Reeves presented jury issues as to whether the offensive conduct was based on sex.

That decision was vacated and a rehearing en banc was granted -- meaning that the whole court was going to hear and decide the case.

The Eleventh Circuit Finds For Reeves

The Court started the opinion with some "core principles of employment discrimination law" in hostile work environment cases:

  • a plaintiff must show that
  1. her employer discriminated because of her membership in a protected group (race, sex, etc.) and that
  2. the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment
  • Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination
  • workplace conduct can not be viewed in isolation, but but must be viewed cumulatively and in its social context
  • a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out

Applying these principles, the Court held that sufficient evidence had been presented for a jury to find that Reeves was subjected to a  "discriminatorily abusive working environment."

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Outback To Pay 19 Million For Sex Discrimination Case

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.


Sexual Harassment Victim Wins Important Appeal In Second Circuit

When Do Discussions About Sexual Harassment At Work Constitute Reporting Which Requires Investigation?

This case addresses an issue in sexual harassment cases that comes up often in real life experience but is not often the central issue of an opinion from a federal court of appeals.

It has to do with reporting of sexual harassment when a victim talks about the harassment with others at work -- but doesn't file a formal complaint. Does the conversation constitute a complaint which requires an investigation?

The case also addresses discussions at work about sexual harassment where the victim says: "don't tell anyone. What's an employer to do?

The new case --  Duch v. Jakubek  from the United States Court of Appeals for the Second Circuit -- addresses these common but thorny issues.

Here’s what happened in the case:

The Harassment

Karen Duch was employed as a court officer by the New York Unified Court System and was assigned to the Midtown Community Court “(MDC) in August of 1999.

In May of 2001, Brian Kohn began working at MCA as a court officer along with Duch. Several months later Kohn and Duch had a consensual sexual encounter at Duch’s apartment. The encounter did not involve sexual intercourse.  

Duch told Kohn the next day that she had made a mistake and did not want to pursue any further relations with him.

After the encounter, and until January 2002, Kohn made a series of sexual advances towards Duch and continued to harass her with unwanted physical contact, sexually graphic language, and physical gestures.

In the months that followed Duch became seriously ill with depression. She stopped eating and began avoiding work. She became suicidal and eventually left the job.

The Reporting

Duch told three people about the harassment:

  1. Edward Jakubek : The Highest Ranking Court Officer at MCC

In October of 2001, when Duch learned that she was scheduled  to work alone with Kohn on an upcoming Saturday she approached Jakubeck  and asked for the day off. She didn’t tell him why she wanted the change.

Later that day, Jakubek called Duch in her office and told her that he heard she wanted to change her schedule to avoid working with Kohn. He also told her that he had talked to Kohn and asked him directly why Duch didn’t want to work with him.

 Kohn responded to Jakubek by saying, “well, maybe I did something wrong or said something that I should not have.”

Jaubek told Kohn to “cut it out and grow up.” He then asked Duch if she had a problem with Kohn. According to the testimony, Duch became emotional and after gaining her composure said, “I can’t talk about it.”

Jakubek replied, “that’s  good because I don’t want to know what happened,” and then laughed.

Jakubek offered to change Duch’s schedule so she would not have to work alone at night with  Kohn, and thereafter did not schedule her to work alone with him.

  1. Rosemary Christiano: The EEO Liaison

Later in October 2001, Duch told Christiano about Kohn’s harassment. When asked “are you speaking to me as a friend or as an EEO Liaison, Duch responded “I think I am telling you as a friend”.  

When Chritsiano asked Duch whether she wanted her to report Kohn’s behavior, Duch said “absolutely not.” Christiano did not report the harassment to anyone.                                                                                                  

3.  David Joseph: Chrisitano’s Replacement As EEO Liaison

In December of 2001, David Joseph replaced Christiano as the EEO Liaison. Within days, Duch informed him that she wanted to file a formal complaint about Kohn’s conduct. 

An investigation was conducted, and disciplinary charges were brought against Kohn. Duch refused to be cross-examined claiming that she was medically unfit to testify.

All charges were eventually dropped against Kohn. Duch stopped working at the court in 2002 and filed a lawsuit in 2004.

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Court Upholds $1.9 Million Dollar Verdict In Gender Discrimination Case Against Wal-Mart

Female Pharmacist Wins Appeal Including Punitive Damages and Huge Front Pay Award

It’s one thing to prove discrimination. It’s an altogether different thing to prove damages which occurred as a result of it.

In the recently published gender discrimination case of Haddad v Wal-Mart Stores Inc,*, the  Supreme Court Court ("SJC") of Massachusetts affirmed a jury verdict which included $733,000 for 19 years of front pay (future economic loss) and $1 million dollars in punitive damages – and that’s big news.

What Happened In The Case

Cynthia Haddad worked as a pharmacist at Wal-Mart for ten years (seven of those in the Pittsfield, Massachusetts store) mostly as a staff pharmacist..Throughout her time at Wal-Mart, she received excellent evaluations.  

Towards the end of her employment, Haddad accepted the position of pharmacy manager.

During that time, she received less pay than any male pharmacy manager which she consistently complained about.

On April 14th, 2004, Haddad was questioned by three Wal-Mart managers about abut two fraudulent prescriptions.

One of the prescriptions was written in 2002 while Haddad was on duty, and another was written in 2004 while a male pharmacist was on duty.

Haddad told the managers that she did not know anything about the fraudulent prescriptions.

She did admit that the 2002 fraudulent prescription could have been written when she briefly left the pharmacy area to buy a soda at a nearby counter, or when she was in the restroom, eating lunch, or talking to customers.

Haddad’s employment was terminated that same day.

She was told that the reason for her termination was based on her statement during the interview that she failed to secure the pharmacy and left Baran (the technician) unattended in the pharmacy area. Baran, who admitted that she falsified the prescription,was also terminated.

The other pharmacist involved -- Richard Blackbird -- was on duty the day the fraudulent 2004 prescription was written. That prescription contained his initials.

In a clear case of unequal treatment, neither Blackbird, nor any other pharmacist was questioned about or disciplined for the 2004 fraudulent prescription.

In stark contract to the treatment Haddad received,  Blackbird was appointed to be pharmacy manager at the time of Haddad's departure.

In addition, Blackbird testified that he commonly left the pharmacy area unsecured to talk to a customer, go the restroom, or get a snack – and that he was unaware of any policy prohibiting this practice.

Haddad filed a lawsuit alleging unequal compensation and termination of employment in violation of Massachusetts laws against discrimination. ( M.G.L. c. 151B, s.4) The complaint also stated a claim for defamation.

The jury found in Haddad’s favor and awarded $922,774 in compensatory damages which included:

  • $17,700 in special damages
  • $125,000 for emotional distress
  • $95,000 in back pay
  • $733,000 in front pay

The jury also awarded $1 million dollars in punitive damages.

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Big Settlements InTwo Male Sex Discrimination Cases

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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Important Decision From Sixth Circuit in Discriminatory Failure to Promote Case

Female Officer Wins Big In Fight For Discriminatory Denial Of Promotion

It’s not uncommon for women to be passed over for promotions they deserve – but proving gender discrimination has been difficult.

The good news is that the recent decision from the Sixth Circuit Court of Appeals in Risch v. Royal Oak Police Department will make it easier to succeed in these cases in the future. 

What Happened In The Case

Karen Risch was a patrol officer for the Royal Oak Police Department for seventeen years.

In 2005 Risch was passed over for a promotion to the position of detective. Two male applicants, who had lower scores than Risch under the promotion system used by the Department, were awarded the positions instead of her.

Risch claimed that the Department failed to promote her to a command position six times between 2002 and 2005.

Risch filed a gender discrimination claim under Title VII of the Civil Rights Act of 1964. The federal district court (Eastern District of Michigan) granted judgment in favor of the Royal Oak Police Department and threw out Risch's case.

On September 23, 2009, the Sixth Circuit Court of Appeals reversed and this is why.

Evidence of Pretext

Discrimination cases are hard to prove but here's how it's done in a nutshell.

The plaintiff can prove her lawsuit by establishing what is called a prima facie case which can establish an inference of discrimination. If she does that, the defendant must come forward with admissible evidence of a legitimate, nondiscriminatory reason for its action.

Once the Defendant establishes a legitimate nondiscriminatory reason for its conduct,  the plaintiff must identify evidence from which a reasonable jury could conclude that the employer's proffered reason is a pretext for unlawful discrimination.

A plaintiff can prove pretext by showing that the employer’s stated reason for the adverse employment action either:

  1. has no basis in fact or
  2. was not the actual reason or
  3. is insufficient to explain the employer’s action

In this case, the trial court granted judgment against Risch because it concluded that Risch failed to present sufficient evidence that the Department’s proffered explanation for not promoting her was pretextual.

The Sixth Circuit Court of Appeals disagreed and reversed, holding that Risch did present ample proof of discrimination to to go before a jury.

Here’s the evidence the Court determined to be  evidence of pretext and gender discrimination.

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Punitive Damages Go To Jury In Pregnancy Discrimination Case

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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Equal Rights For Woman Still A Battleground

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

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

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

Under the settlement Dell will pay:

  • $5.6 million in back pay for female employees who were in certain jobs between 2007 and 2008
  • $1 million dollars in plaintiffs' legal costs
  • $3.5 million to establish a pay-equity fund for current female employees in certain job grades covered by the suit including management and non-management positions

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

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

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

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Male Sex Stereotyping: Going Where No Man Has Gone Before

Stereotyped Statements As Discrimination Evidence

illustrating stereotyping of males -- cartoon of Star Trek man emergeing from ladies' room saying he was going where no man has gone before

Employment decisions based on stereotyping can be illegal. For example, comments suggesting that "women should be home with children instead of working", or that "Hispanics are lazy", or that "older workers can't adapt to change" -- can be used as proof in discrimination lawsuits and sometimes are.

I wrote recently about the case of Chadwick v. Wellpoint. In that case Laurie Chadwick, the mother of four --including a set of triplets -- was denied a promotion because she had "too much on her plate." It's an example of a fairly typical case in which we see gender stereotyping at play.

There was no evidence that Ms. Chadwick's family obligations were actually interfering with her work. Rather, her superiors simply assumed this would occur. The court in Chadwick v. Wellpoint stated: "the assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and ... adverse job actions on that basis constitute sex discrimination."

What we haven't seen much of -- in fact, haven't seen any of -- are cases in which evidence of gender stereotyping has been used to prove discrimination against a man -- certainly not a man who has been accused of sexual harassment. That's why the new case of Sassaman v. Gamache from the Second Circuit Court of Appeals is so interesting and important.

Facts of the Case

The Workplace Relationship Leading to He-Said, She-Said Harassment Complaint.

Carl Sassaman worked for the Board of Elections for Dutchess County, New York. He worked with a woman named Michelle Brant. According to the evidence, Brant and Sassaman spent time together. They ate lunch together, smoked cigarettes together, and considered themselves to be friends.

At some point, Brant became Sassaman's boss and their relationship soured. According to the testimony, Sassaman asked Brant out for a drink. She said no, so he suggested they meet for coffee. She declined that offer too, but according to Sassaman, she began to reveal intimate aspects of her personal life to him.

During that same conversation, as the story goes, she asked Sassaman whether he wanted to have a one-time sexual encounter with her. His reaction to the overture was that it was not a good idea to be friends with her anymore.

Brant had a different recollection of the conversation. She testified that in response to Sassaman's changed demeanor towards her, she asked Sassaman whether "he was going to let their friendship go down the tubes because she did not want to have sex with him."

A couple of months and a few incidents later, Sassaman learned from David Gamache -- the Board Commissioner -- of Brant's complaint that he was harassing and stalking her. Gamache told Sassaman to stay out of the office.

The Employer's Inadequate Response to the Harassment Complaint.

Brant filed a written complaint against Sassaman, which Gamache referred to the Dutchess County Sheriff's Department for investigation. The sheriff's investigation found insufficient evidence to support any type of criminal charge.

Gamache did not refer the matter for an internal investigation. Instead, a week after the sheriff's report, Gamache called Sassaman and told him that he would be terminated unless he chose to resign.

The "Smoking Gun" Comments

According to the testimony, Gamache defended his decision with this explanation:

  • "I really don't have any choice. Michelle knows a lot of attorneys; I'm afraid she'll sue me."
  • "And besides you probably did what she said you did because you're a male and nobody would believe you anyway."

The Lawsuit

Sassaman resigned, feeling that he had no other choice, and then filed a lawsuit alleging that he was terminated on the basis of sex stereotyping in violation of Title VII of the Civil Rights Act of 1964. The District Court judge threw out the case on the grounds that Sassaman failed to provide any evidence of sex discrimination.

The Second Circuit reversed. It found that the evidence of stereotyping -- Gamache's statement that because Sassaman was a man he probably did sexually harass Brant as she claimed -- was sufficient to support Sassaman's sex discrimination claim. The court's decision was soundly based on precedent concerning sex stereotyping -- developed in cases brought by women.

Legal Background on Sex Stereotyping

Back in 1989, the Supreme Court of the United States decided the landmark case of Price Waterhouse v. Hopkins. In that case, Ann Hopkins, a senior manager at the accounting firm of Price Waterhouse, was considered for, but denied partnership.

Statements in the review process leading to that decision described Hopkins as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Clients described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Others had a different view -- and a sexist one at that:

  • One partner described her as "macho."

  • Another suggested that she "overcompensated for being a woman"

  • A third advised her to take "a course at charm school."

  • Several partners criticized her use of profanity; in response, one suggested that they objected to this only "because it's a lady using foul language."

Hopkins sued for sex discrimination under Title VII. The Supreme Court, for the first time, addressed the legal significance of sex stereotyping in the context of Title VII case:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group ... "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

As applied to Ms. Hopkins, the Court went on to say:

It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course at charm school."

Nor. . . does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism.

While the Price Waterhousecase was hugely important at the time for victims of this type of discrimination, its main significance has had to do with technical issues regarding burdens of proof -- and little with to do with blazing a trail for litigation based on sex stereotyping evidence. So it came as a big surprise when the Second Circuit relied on the Price Waterhouse language above and reversed the district court in the Sassaman case.

Sex Stereotyping Sassaman As Likely To Harass female Employees

Holding no punches, the court in Sassaman stated that Gamache's decision to terminate Sassaman because men, as a group, have a propensity to sexually harass women, was "overt sex stereotyping." According to the Court:

Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a a group, to sexually harass women. . .

A jury could reasonably construe Gamach's statement as persuasive evidence that he pressured Sassaman to resign because of his discriminatory assumptions about the propensity of men to sexually harass their female co-workers.

Failure to Investigate the Harassment Complaint

Compounding the problem for this employer was that it failed to investigate Brant's complaint. That too, according to the Court, constitutes evidence in support of Sassaman's claim. As the Court pointed out, when faced with a sexual harassment complaint:

The failure of an employer to conduct an adequate investigation or to undertake an appropriate response can constitute evidence in support of a Title VII plaintiff's allegations.

What's more, fear of a lawsuit , another defense raised by this employer, was also deemed to be a lousy excuse to terminate Sassaman. According to the Second Circuit:

An employer many not rely on an alleged fear of a lawsuit as a reason to shortcut its investigation of harassment and to justify an employment decision adverse to the putative harasser that itself violates Title VII.

This part of the decision is particularly interesting in light of the City Of New Haven's position in the Ricci case currently pending in the Supreme Court -- see Workplace Prof. Blog, suggesting that the employer in Sassaman may have felt in something of a bind, liable to the coworker if the allegations of harassment weren't taken seriously"; the Ricci decision is also at the center of the controversy surrounding the Sotomayer nomination.


In sum, Sassaman prevailed for two related reasons:

  1. He presented evidence which constituted male sex stereotyping.
  2. Because of such stereotyping, his employer credited the woman's version of the sexual harassment events and failed to properly investigate the charges she lodged against him.

While the law prohibiting sex stereotyping as the basis for an adverse employment decision has been around for a long time, there are a paucity of decisions that rely on it to substantiate favorable outcomes for the plaintiff.

There has never been a case that I know of where a sex stereotyping argument has been used in favor of a man who claims to have been improperly accused of sexual harassment. What this means is that men who have been victimized by false accusations of sexual harassment now have a powerful case to rely on that did not previously exist. Those deemed guilty of sexual harassment based on a "boys will be boys" knee-jerk reaction will finally have some relief.

Also, the defense of "we might get sued" may not carry the day to justify an unsubstantiated termination decision in such a situation. (We'll have to wait and see if the Supremes address this aspect of Ricci, in which the alleged discrimination may likewise have been motivated by fear of a lawsuit.) Employers, it seems to me, have a whole new can of worms to worry about.


This post  originally appeared in George's Employment Blawg.

Harassed Female Wins "Locker Room" Hostile Environment Case

For all employees who are subjected to a sexually hostile work environment, the recent case of Gallagher v.. C.H. Robinson  from the Sixth Circuit Court of Appeals is fantastic news -- and that's an understatement.

There are so many women who are faced with a regular onslaught of  dirty jokes, pornography, demeaning references about women, and sexual bantering in the workplace.  For those victims, this case is a godsend.

Here's what happened in the case. 

Julie Gallagher worked for C.H. Robinson Worldwide Inc. in a sales position in the Cleveland office. The area in which she worked had 20 employees and 3 support staff.

The sales staff worked in cubicles that were organized in pods in an open floor plan. Short dividers between the cubicles provided little privacy.

During the four months during which Gallagher worked at C.H.Robinson ("CHR") she described a “locker room” atmosphere characterized by unprofessional behavior and an environment that was hostile to women. 

According to the evidence the work atmosphere was filled with:

  • Prevalent use of foul language
  • References to female customers, drivers, and co-workers as" bitches, whores, sluts, dykes and cunts"
  • Pornography and nude pictures of girlfriends in various sexual poses
  • Dirty jokes and graphic discussions of sexual liaisons, fantasies and preferences on a daily basis

In addition, Gallagher was personally:

  • Called a bitch in anger on several occasions
  • Called fat and referred to as a “heifer with “milking udders”
  • Told that by hiring her CHR covered it’s “girl quota and fat quota”

Gallagher complained frequently to the branch manager, Greg Quest, but things only got worse. Four months after starting, and following an incident during which some drunk male so-workers “flipped her off”, she finally quit and took a job working for a former employer.

Gallagher filed a case for hostile environment sexual harassment under both state (Ohio R.C. 4112.02)  and federal law (Title VII of the Civil Right Act of 1964).

What's truly shocking about this case is that the district court judge -- for reasons that I am at a complete loss to genuinely understand -- threw out the case.

Fortunately, the Sixth Circuit wrote a fantastic opinion reversing the district court judge. Here are the highlights and the meat of the decision -- all of which will be very helpful to other victims of this sort of disgusting conduct in the future.

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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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Third Circuit Sends Wake Up Call to Employers About Discriminatory Hiring Practices

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

Here's what happened in the case.

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

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

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

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

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

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

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

  • Back pay represents losses from the the time of the discrimination up to the time of trial. 
  • Front pay represents the losses that the victim will experience in the future if he or she does not find a comparable position.

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

  • $63,050 in back pay
  • 395,795 in front pay
  • for a total of $458,845

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

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

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

Here are the highlights:

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Read Carefully to Avoid Caregiver Discrimination

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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Big Victory for Working Moms

What happens when a working mother is denied a promotion because "she has too much on her plate"?  According to the First Circuit Court of Appeals in the new opinion Chadwick v. Wellpoint, Inc. her employer can be held liable for sex discrimination. Here's what happened in the case.  

Laurie Chadwick was an employee of  WellPoint, an insurance company, since 1997.  In 2006 she was encouraged by her supervisor to apply for her second promotion to "Team Leader" because:

  • she was already performing several of the functions of the Team Lead position
  • the supervisor believed she was the front-runner for the job
  • she received excellent reviews

At the time of the decision Chadwick was the mother of an eleven year old son and six year old triplets in kindergarten.  Her husband stayed home with the kids while Chadwick worked. She took care of the kids while he worked nights and weekend shifts.  She was also taking one college course a semester.

There was no allegation nor any evidence whatsoever that Chadwick's work suffered because of her childcare responsibilities.

Even though Chadwick was the more qualified candidate, she did not get the promotion. Another employee, Donna Ouelette, with less experience and inferior evaluations, got the position instead.

When Chadwick didn't get the job,  Nanci Miller, the manager responsible for making  the decision explained why:

It was nothing you did or didn't do.  It was just that you're going to school, you have the kids and you just have a lot on your plate right now.

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The New York Times has a long article today about pregnancy discrimination and it is certainly worth reading with one caveat.  While it is informative, I don't think it's entirely correct.

It starts off with this:

HERE’S a pop quiz: Which of the following would violate federal employment law?

1. Laying off a pregnant woman.

2. Laying off a woman on maternity leave.   

Pencils down. The answer is “neither.

I hate to disagree with the NY Times, but I think it's more accurate to say "it could be".

It's quite possible that laying off someone who is pregnant or on maternity leave is illegal under the Pregnancy Discrimination Act and to suggest otherwise is a bit misleading.

Just to set the record straight, the Pregnancy Discrimination Act, ("PAD"), which was an amendment to Title VII of the Civil Rights Act of 1964 provides that:

  • An employer cannot refuse to hire a pregnant woman because of her pregnancy
  • Pregnant employees must be permitted to work as long as they are able to perform their jobs
  • Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination under Title VII

As I have written about before, times of workforce reductions unfortunately create settings where discrimination is rampant.  It is an inescapable truth that when managers are given discretion to terminate employees, some bias may come into play. It is also a fact that EEOC claims are on the rise. 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

What's also true is that women who are terminated when they are pregnant can prove discrimination just like anyone else with a combination of proof showing:

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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.

Top 2009 Priorities for EEOC

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.


Why EEOC Claims Are On The Rise

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.  


Few Women Law Partners Comes As No Suprise

It's very well known and often bragged about that over 50% of law school graduates are women. So what's the problem with women in the legal profession?

The problem reported last week is that while women represent over 50% of those graduating from law school, they made up only 28% of those granted partnership at the 85 major law U.S. law firms according to a  new study published by the Project for Attorney Retention at the Hastings College of Law.

The disparity between the number of female law school graduates and female partners is quite remarkable. And it's not because the women are less intelligent or capable than their male counterparts. As cynical as I may be, I don't think anyone would even argue that.

While few want to come out and accuse the legal profession of  gender discrimination,  I have no problem doing so. (Of course, not every firm, not every lawyer)  It's all over the legal profession -- wage discrimination, lack of promotional opportunity, sexual harassment, pregnancy discrimination, stereotyping, including a particularly horrible record  for women of color. It's all there, and it occurs for many reasons.

We all know that many law firms have a hard time accommodating the needs of working wives and mothers.  While firms are certainly much better than they were twenty-five or thirty years ago about flexible schedules and part-time work, they still have a long way to go.

The Amercian Bar Association's (ABA) Commission on Women in the Profession studies this subject and published it's findings in 1988, 1995, and 2003. The contents are neither encouraging nor surprising. The last report notes:

Current data indicates that more and more firms are allowing part-time schedules, but women testifying at the the 2003 hearings still reported that choosing the part-time option posed professional risks.  A partner at a large national law firm reported a consensus at her firm that the part-time policy is simply 'words on a piece of paper''. . .[Y]our commitment to the firm is still questioned once you have decided to go on a reduced hours schedule.

In addition, women who have obligations to their families are eliminated from mentoring and networking opportunities with clients.  Often times even single women are eliminated from these events -- the golf game, the baseball game, the hunting trip -- simply because they are women.  If you don't  meet and interact with the clients, you don't get the business.  If you don't get the business, you don't produce the revenue and you don't make partner. It's really pretty straightforward.

There's also the plain old fashioned gender bias that is rampant in law firms. Many men believe that women should be home with their children and not working at all or don't have the appropriate composition to practice law. The fact that these views are held by lawyers, and that this attitude is illegal when acted upon in the workplace, does not seem to prevent many partners from discriminating against the women in their firms in a variety of ways.

The latest  ABA report on this subject included the following:

The 1995 report noted that '[b]oth men and women report that women lawyers are viewed as insufficiently aggressive, uncomfortably forthright, too emotional, or not as serious as men about their careers.  When women opt for family leave or report sexual harassment, these stereotypes are reinforced.'

In 2003, there was evidence that those stereotypes have not dissipated .....

One can hardly go a week without reading an article about a law firm being sued for or settling, or  losing  some kind of discrimination lawsuit.   It's not just because law firms are easy targets.  They really do discriminate against their lawyers at an extraordinary rate.

The fact is that many women simply leave the profession and won't sue.  I have had dozens of calls through the years from women who were discriminated against and sexually harassed at their firms.  Without exception, each decided not to sue for fear that they would never find another job.

So while it's better than it was, we are not nearly where we should be in our profession in terms of providing equal opportunity in the workplace. Wouldn't it be nice if we were at the forefront, instead of the rear, on this issue?


What's Going on with Male on Male Sexual Harassment?

Why are we reading so much about male on male sexual harassment lately? 

Just last week the New York Times reported that Knicks basketball player, Ed Curry, was accused of sexual harassment by his former driver. On the same day, the ABA Journal reported  a story about a Nixon Peabody lawyer who sued for discrimination stating that he was  was regularly taunted, ridiculed, and subjected to partner's and co-workers  homophobic statements and comments about oral sex during his time at the law firm.

 A few days earlier, the 6th Circuit Court of Appeals decided, in Patterson v. Hudson Area Schools, that a school district could be held liable for its failure to stop the harassment of one of its students who was  taunted and victimized by name calling (ie. "queer " "fagot"  "pig")  and pushing  and shoving over a period of years all which escalated into an episode of sexual assault in the locker room.

Is male on male sexual harassment on the rise?  Are men more willing to report the harassment? Was male on male sexual harassment reported but were the courts unwilling to recognize it?

I tried one of the first male on male sexual harassment cases in the country in 1998 -- Hampel v. Food Ingredients Specialties, Inc. . The plaintiff Laszlo Hampel worked at FIS- Nestle in Solon, Ohio  in the production line as a cook.  In short,  the case involved one disgusting outburst of sexual provocation by my client's supervisor,  followed by reporting of the incident, a failure to act on the part of the company to take prompt, remedial action (required under the law) continued harassment by the supervisor, and homicidal behavior on the part of my client. These kinds of cases were simply unheard of ten years ago. 

Shortly before the trial, my father asked my what kind of case I was working on.  When I told him he responded,  "I wouldn't give you five dollars for that case. Why didn't he just punch him in the nose."  While my father's reaction certainly concerned me, fortunately the jury did not see it that way and awarded $1.6 million dollars the majority of which constituted punitive damages.

The case was of course appealed. The  Ohio Supreme Court  decision in Hampel   recognized male on male sexual harassment as a valid claim in line with Oncale v Sundowner Offshore Services, Inc   a case recently decided by the  United States Supreme Court. Interestingly though,  it  held that there  was no sexual harassment in our case, a decision which to this day I completely fail to understand no matter how many times I read it.  Fortunately for Mr. Hampel, the Court affirmed the verdict in sustaining the claim for intentional infliction of emotional distress.

So I come back to, how come we practice for over twenty five years and we see little to no cases of male on male sexual harassment and then we see three in  in one week? Does it have  anything to do with my father's "why doesn't he just punch him in the nose" method of resolving the problem?

Let's assume that employees out there are simply more aware of their rights and courts are more enlightened.

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Firing Because of Abortion is Illegal Gender Discrimination

What happens when a woman gets fired because she has an abortion? The Third Circuit Court of Appeals, in Doe v. C.A.R.S Protection Plus decided that the discharge was gender discrimination and reversed the lower court which had thrown out the case.

The Jane Doe plaintiff worked as a graphics designer for CARS, a car insurance business with offices in several states. During her pregnancy, Doe learned that the baby had severe deformities. In accordance with her physician’s recommendation she and her husband chose to terminate the pregnancy.

Doe’s husband called CARS on his wife's behalf and asked for a week’s vacation for her.  According to his testimony  the request was approved.  CARS discharged Doe several days later  -- on the same day as the baby’s funeral.

In a question of first impression for the Third Circuit, the Court held that the Pregnancy Discrimination Act’s coverage extended to women who elected to terminate their pregnancies. In so doing, the Court relied on:

  1. Precedent from the Sixth Circuit Court of Appeals in Turic v. Holland Hospitality , Inc.
  2. EEOC guidelines ( which state that “a woman who is affected by pregnancy and related conditions must be treated the same as all other employee … and is therefore protected against such practices as being fired merely because she is pregnant or has had an abortion”) ;and
  3. Language from the legislative history of the Pregnancy Discrimination Act ( “no employer may fire or refuse to hire a woman simply because she has exercised her right to have an abortion” and concluded:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may  not discriminate against a woman employer because she has exercised her right to have an abortion.

In comparing Doe to other employees who were temporarily disabled, the Court found evidence that Doe had been treated differently when she was fired instead of given leave.

Although we have held that the 'PDA does not require that employers treat pregnant employees better than other temporarily disabled employees '... the PDA does require that employers treat pregnant employees no worse.

The judgment of the district court was reversed and Jane Doe was given the right to have her day in court.

The opinion is certainly an important one for all working women. There is certainly no room in the law for discrimination in the workplace based upon a woman’s Constitutional right of privacy and freedom of choice. Fortunately there are some courts which agree.