Employee Rights Post : Ellen Simon's Employee Rights Post : Employment Lawyer & Attorney : Workplace Discrimination & Harassment Advice & Consultations

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.

 image: www.ajsgarage.com   www.topnews.in   www.appliedplanning.com

• Email This
• Print
• Comments (1)
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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?

image:http://nylawblog.

• Email This
• Print
• Comments
• Trackbacks

In his address at the Democratic convention, Barack Obama said:

Surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in the hospital and to live lives free of discrimination.

Do most Americans agree?  Recent studies show that the answer appears to be yes.Surveys show that 72% of Americans support laws which prohibit employment discrimination on the basis of sexual orientation. Recent data reported by The Salt Lake Tribune indicates that even in Utah, one of the most conservative states in the country, a majority supports expanded legal protections for gay and trans gender coupes and individuals.  A poll commissioned by the Tribune of 500 registered voters found that :

56 percent of respondents favor legal protections for same-sex couples such as hospital visitation and inheritance rights and employment protections

The Equality Utah poll of 600 Utahns, also reported in the Tribune at the end of January,  found:

• 62% supported making it illegal to fire workers because of sexual orientation
• 56.5 supported making it illegal to deny housing because of sexual orientation
• 63% favored providing gay and lesbian couples with hospital visitation, health insurance, and inheritance rights

Unfortunately, even though anti-discrimination laws have broad support, only 20 states have such laws in effect. That leaves most gay individuals vulnerable to lawful discrimination.  In other words, just to be clear, this means that an individual can be fired because an employer finds out he is gay and chooses to fire him for that reason.  It also means than an employer can lawfully maintain a policy of not hiring gays or lesbians.

It’s about time that the Congress get in line with the majority view of this country and pass legislation prohibiting discrimination against the gay, lesbian, and transgender community who are certainly entitled to equal opportunity just like other Americans. The Employment Non-Discrimination Act should be passed.

Image: http://www.abc.net.au/reslib/200703/r129060_424471.jpg

• Email This
• Print
• Comments
• Trackbacks