Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict. 

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns....

 The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers' criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity" and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that's why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that's what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S.  this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

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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.

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