Eleventh Circuit Delivers Important Opinion On Retaliation Case

Employee Gets Trial on Title VII Retaliation Claim

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

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

What Happened In The Case

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

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

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

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

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

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

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

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

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

The 11th Circuit Reverses The Retaliation Claim

Title VII’s anti-retaliation provision (42 U.S.C. 2000e-3(a))makes it unlawful for an employer to discriminate against an employee:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter

To prove a case of retaliation under Title VII,  the plaintiff must show:

  1. that she engaged in statutorily protected conduct
  2. that she suffered an adverse employment action
  3. there is some causal connection between the two events

There was no dispute that Alvarez engaged in statutorily protected conduct when she raised issues of discrimination in her complaint letter. The company argued, however, that there was no adverse action because there were plans underway to fire Alvarez even if she had not complained about discrimination in her letter.

The Court rejected this argument The evidence showed that the letter caused Alvarez to be fired the day after she mailed it – sooner than she would otherwise have been fired – and that the Verdezotos decided not to wait until they found a replacement as they had planned. This was sufficient, according to the Court, to establish the “adverse action” part of her retaliation claim.

One of the other reasons given by the defendant for firing Alvarez -- that it would be "awkward" and "counterproductive" to keep her around -- was also rejected by the Court. It stated:

Anyone who complains about unlawful discrimination is not likely to be a happy camper. ….And it will always be “awkward” and perhaps “counterproductive” in the business sense, to work with people who complain that you have discriminated against them.

But recognizing these concerns as legitimate, non-retaliatory reasons to fire someone who complains about unlawful discrimination would do away with retaliation claims and the protection they provide to victims of discrimination.

The final reason give by the company for firing Alvarez after it received her letter of complaint -- that it had to get rid of her because the Verdezotos were afraid that she might vindictively use her position as controller to sabotage the company’s operations --was also rejected by the Court after careful consideration.

The reason was because there was simply no evidence that the proffered reason was a valid one. As the Court pointed out:

Her letter contains no threats against the company or anyone else, nor does it provide a reasonable basis for inferring that Alvarez would try to disrupt operations. … And, of course, there is no evidence that Alvarez’s continued employment posed a physical danger to the Verdezotos or their other employees. The company was not entitled to summary judgment on this ground.

With that, the Court concluded that Alvarez would be entitled to prevail unless Royal Atlantic could convince a jury that:

  • if they didn’t fire Alvarez immediately she would sabotage their operations or harm others and
  • there was no less drastic means of reliably preventing that other than firing her

The Court also stated that Alvarez would be entitled to damages for the length of time she would have remained on the job if she had not sent the letter complaining of discrimination. The Verdozotos both testified that their initial plan was to keep Alvarez on board until they had lined up her replacement. At the time of oral argument of the appeal, the controller position remained vacant for three years after Alvarez was fired.

What all of this means is that it looks like Alvarez has a reasonable shot of winning three years of damages representing her economic loss (minus whatever she earned in the interim) when the case goes back to trial (as well as attorney fees if she prevails.)

Take Away

This is a fascinating and important case. It’s not the first time I have heard of a company defending itself by claiming that it had to fire an employee after he or she raised a discrimination claim because the employee could no longer be trusted. It comes up particularly with employees involved with high levels of responsibility and access to confidential information – like in house lawyers and financial executives -- and it’s a defense that is appealing to many judges. That’s why this thoughtful decision from the Eleventh Circuit will be very helpful to victims of retaliation in the future.

It makes sense that a person should not have to worry about losing her job if she exercises her lawful right to raise a concern about discrimination -- even if the complaint makes the employer uncomfortable. Now there's a recent opinion from a high court which confirms this important principle.

images:  thebsreport.files.wordpress.com

Age Discrimination Gets Attention Of Congress

Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer's adverse decision instead of  "a motivating factor." I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  -- even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases --- and our clients --- to have these evidentiary matters settled once and for all.

image: www.conversantlife.com/files/imagecache/blog_wizard/files/blog_wizard/proof.png

Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial

Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of  Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital ("Hospital') as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion. 

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say, "she's too old to be working here anyway" in reference to Mora.

In the course of  Mora's lawsuit filed under the Age Discrimination in Employment Act, ("ADEA") Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of  Price Waterhouse v. Hopkins  decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination.  In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It  concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise.  And so she lost as a matter of law.

The problem with the district court’s ruling -- according to the 11th Circuit -- is that the Supreme Court's decision in  Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied,  the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff  was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case,  Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can't get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

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.

images: willpen.files.wordpress.com/

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 www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

New Legislation Bans Arbitration In Federal Defense Contracts

As Congress ended its last session, a legislative victory for employee rights advocates came with it.

The bill, signed by President Obama at the end of December,  came about because of the horrible story involving Jamie Leigh Jones. Here's one description of what happened as reported in September by  Think Progress:

In 2005, Jamie Leigh Jones was gang-raped by her co-workers while she was working for Halliburton/KBR in Baghdad. In an apparent attempt to cover up the incident, the company then put her in a shipping container for at least 24 hours without food, water, or a bed, and “warned her that if she left Iraq for medical treatment, she’d be out of a job.”

Even more insultingly, the DOJ resisted bringing any criminal charges in the matter. KBR argued that Jones’ employment contract warranted her claims being heard in private arbitration — without jury, judge, public record, or transcript of the proceedings. After 15 months in arbitration, Jones and her lawyers went to court to fight the KBR claims. Yesterday, a court ruled in favor of Jones.

The tragedy spurred the bill which became known as both  the "Franken Amendment" and the"Jamie Leigh Jones Amendment" (to the Defense Appropriations Act for 2010) . It's the first federal legislation that prevents employees from forcing binding arbitration on their employees as a forum for resolving employment disputes.

In recent years, many companies have required employees to sign contracts, handbooks, and other documents which require them to go to arbitration to resolve their employment disputes.

When employees sign -- which they are forced to do to either get the job or keep the job -- they give up their right to take claims against their employers to court. Cases involving discrimination and sexual harassment, to name a few, are compelled to go to arbitration instead.

An arbitration is generally held before three arbitrators and is commonly  viewed as a favorable forum for employers versus employees.

Without binding arbitration, employees have the right to take their discrimination cases to court, and with sufficient evidence, in front of a jury. It is this precious right to a jury trial which is at the heart of this issue.

The Franken Amendment prohibits the award of Department of Defense contracts of over one million dollars to any company that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual assault-related tort claims

Under the bill, defense contractors:

  • with over $1 million (which is most) that are funded by 2010 appropriations will not be able to force arbitration of Title VII and sexual assault-related tort claims
  • will not be able to enter into forced arbitration agreements with their employees or independent contractors or enforce any agreements that have such provisions.

The list of covered sexual assault-related tort claims covers:

any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention

The Franken Amendment will protect hundreds of thousands of employees around the country from being forced to arbitrate their Title VII claims. It also provides persuasive authority for employee advocates to strike down forced arbitration clauses in other federal contracts.

It's also a step forward to getting rid of forced arbitration in other employment settings.

All in all, it's a great victory on a critical issue for employee advocates and we thank Senator Franken for his efforts on behalf of employee rights.

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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.

The Lower Court’s Opinion

Duch filed a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 and the statutory laws of the state of New York and New York City.

The Defendants requested that Duch’s claims be dismissed as a matter of law and the federal District Court agreed holding that:

  • OCA provided a reasonable avenue of complaint
  • no reasonable fact-finder could conclude that the employer-defendants had actual or contsrtructive knowledge of the alleged harassment
  • even assuming the employer defendants did know or should have known about the harassment, their response was reasonable

Duch filed an appeal to the Second Circuit Court of Appeals.

Sexual Harassment Law

The law of sexual harassment is a bit complicated.

In short, in order to prove a hostile environment sexual harassment claim Duch was required to establish that:

  • the harassment was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and
  • there was a specific basis for imputing the conduct creating the hostile work environment to the employer

Proving the harassment was not the problem -- Duch could provide that proof with her testimony.

The thorny issue in this case turned on whether Duch could impute the conduct that created the hostile work environment to her employer – and that depended on who did the harassing and who knew about it.

When the harassment of an employee is done by an officer, owner, or manager the company will in most circumstances be automatically liable for the illegal conduct.

When the harassment is that of a co-worker, the employer is not automatically liable. In a co-worker harassment case like this one, Duch was required to have proof that her employer:

  • knew about the harassment or
  • in the exercise of reasonable care should have known about the harassment  and
  • failed to act promptly to stop it

The District Court found that Duch failed to properly report Kohn’s harassment and as a result her employer was not liable.  Duch appealed.

The Court of Appeals Decision

The Second Circuit Court of Appeals reversed and in its opinion gave us some helpful guidance on what does and does not constitute sufficient reporting by a victim of harassment for purposes of imposing employer liability.

Conversations With Christiano

Because Christiano was a co-worker without supervisory authority, her knowledge could only be imputed to her employer if:

  • she had an official duty to act, and whether in light of her knowledge
  • her response was unreasonable

There was no dispute that Christiano knew about Kohn’s harassment.  Duch however told Christiano “absolutely not “  to tell Jukabek about it.  

The Court found that Christiano acted reasonably in honoring Jukabek’s request. In so doing, the Court acknowledged:

[T]here is certainly a point at which harassment becomes so severe that a reasonable employee simply cannot stand by, even if requested to do so by a terrified employee.

In this case, however, the Court sided with the defense. It did so because it concluded that:

  • there was no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch
  • therefore the jury could not conclude that Christiano breached a duty to Duch and
  • the defendant employer could not be liable because of Christiano’s inaction

Conversations With Jakubek

The evidence involving Jukabek caused the Court to reach a different conclusion than it  did with Christiano and reversed the district court.

That’s because Jukabek was Kohn’s supervisor, and as such, “was charged with a duty to act on the knowledge and stop the harassment.”

As the Court stated:

Where the person who gained notice of the harassment was the supervisor of the harasser (e.g. had the authority to hire, fire, discipline, or transfer him, knowledge will be imputed to the employer on the ground that the employer vested in the supervisor.

The Court held that there was sufficient evidence from which the jury could find that Jakubek knew, or should have known about the harassment including proof that Jakubek:

  • knew that Duch asked for a change in her work schedule when she was scheduled to work alone with Kohn
  •  asked Kohn about it, and Kohn admitted that he did or said something “he should not have”
  •  knew that Kohn had engaged in sex-related misconduct toward females in the past
  •  told Kohn, in reference to his conduct towards Duch, to “cut it out and grow up”
  •  knew that the subject of working with Kohn caused Duch to become emotional , teary and red, and lose her composure
  •  said “good”, when Duch said she didn’t want to talk about it, because “I don’t want to know what happened"
  •  agreed to change Duch’s schedule so that she didn’t have to work with Kohn alone

Based on the above, according to the Court, Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and encourage (rather than discourage) her to reveal the full extent and nature of the harassment.

The Court wrote:

In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees.

We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as Jakubek is alleged to have displayed —will not shield an employer from liability under Title VII.

Accordingly, notwithstanding the District Court’s observation that Jakubek ‘was never told of, and did not witness, the alleged harassment,’ we hold that a reasonable jury could conclude that Jakubek knew, or in the exercise of reasonable care should have known about the harassment.

The Adequacy Of The Response

According to the District Court, even if the employer knew about the harassment, the  response was reasonable. The Court of Appeals disagreed:

Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed.

A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment.

Under these circumstances, we cannot say as a matter of law, that defendants’ response was ‘effectively remedial and prompt.'

Lessons To Be Learned

It’s very common for victims of harassment to be fearful of reporting the harassment. It’s also common for an employee to confide in a co-employee, or supervisor, without making a formal complaint and to say,  “don’t tell anyone.

What we learn in this case is that those  informal and non-specific conversations can trigger an employer's obligation  to investigate and take appropriate action to stop the harassment.

We also learn that those conversations may not satisfy an employee’s obligation to report harassment  --- and that of this very much depends on what level of authority the person has who hears what the victim has to say and how much the victim reveals.

This case provides lots of valuable legal analysis in some gray area of sexual harassment law which have been infrequently addressed in the past.

In my opinion, it's an important and useful decision for all employers, victims of harassment, and all practitioners of employment law.

images:  thestar.com


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

According to the EEOC, managers witnessed employees dragging their victims kicking and screaming into the refrigerator. Victims’ complaints  were made to virtually every manager in the restaurant but the conduct never stopped. Eventually the police were called and an EEOC charge was filed.

Mary Jo O’Neill, Regional Attorney of the EEOC’s Phoenix office had this to say:

The evidence was clear, and everyone knew about it. Behind the lavish décor that the company boasts on its web site was a horribly dysfunctional workplace where male workers lived in fear.

I would like to think that this situation is unusual, but the EEOC’s Phoenix District Office’s press release points out that it's currently prosecuting a similar case against Fleming’s Prime Steak House.

What’s with these restaurants?

Lessons To Be Learned

When most of us think about sex discrimination, we think about discrimination against women, and that’s certainly what was contemplated when the “because of sex” language was added to Title VII.

(Interestingly, the addition of "sex" by a southern congressman to Title VII in 1964  was seen by most as a cynical attempt to torpedo the bill which was primarily targeted to address race discrimination)

Likewise, when most of us think about sexual harassment, we think of men as the harassers and women as the victims.

(Not so, said the Supreme Court in the landmark case of Oncale v. Sundowner Offshore Services,Inc in 1998; for more on this topic, see my article: What's Going On With Male On Male Sexual Harassment )

These recent EEOC cases draw attention to the fact that men can be victims of gender discrimination as well as outrageous sexual harassment.  Both forms of discrimination are against the law and can lead to serious consequences for all involved.

Images:  www.foodgps.com


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.

Superior Qualifications

As the Court pointed out, Risch had superior qualifications for the position of detective than two of the male candidates (Moore and Spencer) promoted to the position in 2005. Her scores were better and she had greater experience in the department.

As the Court stated:

Taking the facts in the light most favorable to Risch … it is clear that Risch was as qualified as or better qualified than either Moore or Spencer. 

Discriminatory Remarks

The Court noted that male officers frequently made degrading comments regarding the female officers. Some of those remarks included the following:

  • "The chief will never have a female officer on the command staff"
  • "None of you {female officers} will ever go anywhere …"
  • A majority of male officers told Risch that women do not belong in the police force

As the Court stated:

We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext ….

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. …

We do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory animus.

Other Evidence Proving Discrimination

The Court also made note of other evidence it considered to prove a “general atmosphere of discrimination" including discrimination against women in duties, shift assignments, and work distribution.

Part of the evidence was that Lieutenant Foster, who held a senior position in the command staff, gave the men:

  • any kind of detail they wanted
  • all of the plum assignments

The assignments and the work the men didn’t want went to the women.

This evidence, according to the Court, supported Risch’s claim that she was discriminated against regarding her promotion.

As the Court stated (citing its decision in Ercegovich v. Goodyear Tire &Rubber Co.interestingly written by the same judge as this case):

We have explained that management’s consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context.

In light of the above evidence ... we conclude that Risch has produced sufficient evidence to establish a genuine issue of material fact concerning whether the Department's proffered legitimate, nondiscriminatory reason was pretextual.

What's Important About The Case

What's important about the case is that the Court broadly looked at a combination of evidence about Risch's experiences at work (as well as that of other women) and used it to hold that Risch could challenge the department's failure to promote her. That evidence included:

  • a record of comparative qualifications
  • discriminatory statements by decisionmakers and others in the department 
  • an atmosphere of discrimination experienced by Risch and co-workers
  • the lack of women in command positions
  • proof that Risch was arguably better qualified than male candidates

The federal district court disregarded much of the evidence presented by Risch and that, according to the Sixth Circuit Court of Appeals, constituted reversible error.

The simple fact that the Court of Appeals considered all of the evidence of gender discrimination -- instead of narrowly limiting the inquiry to the reasons given by the employer for the denial of the 2005 promotion -- is what's really important about this case.

It's been historically quite difficult for women to prove that they they were denied promotions which went to less qualified male counterparts.

The Sixth Circuit’s opinion in this case --  and its broad interpretation of what kinds of evidence can support these claims --  should go a long way in helping women, as well as other victims of discrimination, get their cases in front of juries where they properly belong.


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.

I give credit to Dell's decision makers for deciding to pay the plaintiffs what they appear to have been entitled to  --- instead of running up the gigantic legal bills which generally correspond with the scorched earth defense of  these kinds of cases.

News of the settlement came in interesting juxtaposition to news of the reintroduction of the Equal Rights Amendment ("ERA").

Representative Carolyn Maloney of New York and more than 50 co-sponsors reintroduced the ERA last week in the House. The amendment would add the following sentence to the US Constitution:

Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

The Equal Rights Amendment was first introduced in 1923 by Lucretia Mott. It passed through Congress in 1972 but fell three states short of the 38 needed for ratification. In her announcement, Representative Malone had this to say:

Women have made incredible progress in the past few decades. But laws can change, government regulations can be weakened, and judicial attitudes can shift. 

The only way for women to achieve permanent equality in the United States is to write it into the Constitution.  These 54 words, when passed by Congress and ratified by 38 states, will make equal rights for women not just a goal to be desired but a constitutional right.

With news of the Dell settlement, coupled with cases of gender discrimination we see on almost a daily basis, it's about time for the Equal Rights Amendment to become part of the constitutional law of the land.

Some say with the new administration, there's actually a chance that it might happen. Wouldn't that be something.

Image: z.about.com

Timing is Right for Hispanic Supreme Court Pick

There's been quite a bit in the news recently about anti-Latino discrimination.

In one EEOC case out of Miami, Nordstrom agreed to a settlement of $292,500 because of a store manager's blatant prejudice.

The manager was heard to say  that she  "hated Hispanics" and that Hispanics were "lazy and ignorant."  Hispanic workers were also chastised for speaking to each other in Spanish.

The same store manager didn't like African American employees either and was known to make remarks like "I don't like Blacks" and "you're Black, you stink".

According to the EEOC:  

The employees complained to Nordstrom about the harassment, but the harassment did not stop. The . . . manager retaliated against those who complained by continuing the racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

In a different  EEOC case out of Los Angeles, Skilled Healthcare Group agreed to pay $450,000 to a class of Hispanic employees who were subjected to harassment and discrimination at its nursing homes and assisted living facilities in California and Texas.

In that case, the EEOC alleged that workers were

  • prohibited from speaking Spanish to Spanish speaking residents
  • disciplined for speaking Spanish n the parking lot while on breaks
  • given less desirable work than non-Hispanic counterparts paid less and promoted less often

In other news, the Southern Poverty Law Center issued an alarming report about anti-Latino discrimination in the South

The report — Under Siege: Life for Low-Income Latinos in the South — details the experiences of Latino immigrants who face increasing hostility as they fill low-wage jobs in Southern states that had few Latino residents until recent years.

According to the report, Latino workers are:

  • subjected to widespread hostility, discrimination and exploitation.
  • consistently cheated out of their pay
  • 80% more likely to die on the job than native-born workers

The discrimination against Latina women in the workplace was particularly disturbing.. For example, 77% of the Hispanic women interviewed said sexual harassment was a major workplace problem.

 A recurring theme is the male supervisor using immigration status as leverage to coerce sexual favors from female employees. These women often have little or no idea about sexual harassment laws and have nowhere to turn.

Sadly, for a variety of reasons discussed in the report including language barriers and legal status, most victims do not seek legal recourse even though Title VII of the Civil Rights Act of 1964 prohibits sexual harassment as well as race and national origin discrimination regardless of immigration status according to most courts.

 With all of these recent stories about discrimination targeted against Latinos,  it's good news that President Obama is strongly considering a Hispanic woman for Supreme Court Justice.

After all, though Hispanics make up 15% of the population, less than 4% of federal judges are of Hispanic descent and not one has served on the nation’s highest court.

According to Kara Hadge in Slate on Saturday

Appointing a Supreme Court justice gives the president a chance to leave a lasting impact on the judicial system, and Obama is under pressure to choose someone who is not only qualified but also symbolic.

There is a general consensus among the coverage that Obama could consider Sonia Sotomayor, a New York federal appeals court justice who would be the first Hispanic Supreme Court justice...

The Daily Beast called Judge Sotomayor a "frontrunner. " On Meet the Press Sunday morning, I couldn't help but notice Senator Arlen Specter's mention of a Hispanic female judge as a consideration for Justice Souter's spot.

Frankly, I'm too ignorant about Judge Sotomayor to render an educated opinion as to whether she's  the best choice for the seat. Her credentials are certainly impressive.

But I don't yet know her views on Constitutional interpretation or her positions on  the many issues I care deeply about -- civil rights, pro-choice, civil liberties, to name a few, so I'm not ready to jump on the Sotomayer bandwagon.

The National Journal had this to say about Judge Sotomayor last year, and it looks promising:

One of the nation's most prominent Hispanic judges, she is liberal and very smart. Born to a Puerto Rican family and raised in a Bronx housing project, she won highest honors at Princeton and distinction at Yale Law School. She was an assistant district attorney and commercial litigator before becoming a federal district judge and, in 1998, an appellate court judge.

According to the Wall Street Journal President Obama has been quoted to say  that he would seek a nominee with:

a record of excellence and integrity...who understands that justice isn't about some abstract legal theory or footnote in a case book.

The President also stated his preference for someone attuned to the "daily realities of people's lives." I take him at his word.

The bottom line is that more diversity on the United States Supreme Court is an imperative. A Hispanic female for the United States Supreme Court would be an exciting and historic pick.



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:

1. Front Pay:

Donlin was in her 30's at the time of her employment with Phillips and 40 at the time of trial. The question presented was: was how far into the future can a younger employee like Donlin claim economic loss?

For those of us who represent individuals in employment cases, the issue  has always been a hard one to deal with when it comes to a younger worker.  The reason is because past damages can be calculated with certainty, but future losses can not:

  • Is the person going to get another job?
  • If so when and for how much?
  • How do we know what someone will be doing 20 or 30 years from now?

When we  represent someone in an age discrimination case, and the terminated employee is 55 for example,  it's easy for us to project damages until age 65 or 70  ( whatever the age is that the person was likely to retire).

It's not speculative to assume that the person would have worked for another 10 or 15 years, and it's not hard to calculate what he or she would have earned and what the total losses are.

It's much more complicated when we represent a younger person.  Since the law does not allow "speculative" damages, it's simply very difficult to predict how far into the future the court will allow us to project.

In this case, the  district court judge ruled that Donlin was entitled to receive damages for economic loss for 10 years into the future. The Court of Appeals affirmed the ruling :

We note that there will often be uncertainty concerning how long the front-pay period should be, and the evidence adduced at trial will rarely point to a singe, certain number of weeks, months , or years.  More likely, the evidence will support a range of reasonable front-pay periods.  Within this range, the district court should decide which award is most appropriate to make the claimant whole ...

We find that the District Court did not abuse it's discretion when it awarded Donlin front- pay for 10 years.

This means that we now we have a decision with a sound analysis for front -pay involving a relatively young employee from a high level court.  It's a decision that other victims and their lawyers can rely on and it's a decision that carries considerable weight. It's very good news.

2. Mitigation

In an employment case, the employee  who has lost a job has a duty to mitigate -- which means that she  (or he) must make reasonable efforts to minimize her loss of income. The precise language of the statute says

Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

In other words:

  • a person who is claiming damages in an employment case has a duty to look for work
  • damages into the future end if an employee gets an equivalent job or better job

In this case, Donlin first got a job in which she earned $14.70 and hour.  The problem was that it was a 32 -mile commute. She worked at the job for two years, and then found a job closer to home at which she made $13.00 an an hour.

She would have  received $14.67 an hour as a base salary had she been hired at Philips.

Phillips argued:

  • Donlin's "voluntary transfer" to a lower-paying job was inconsistent with her "duty to mitigate"
  •  Phillips should not have to make up the difference.

Donlin argued:

  • once you factor the cost of the commute
  • the the two jobs were substantially the same.

The Court of Appeals agreed with Donlin:

An employee need not seek employment which involves conditions that are substantially more onerous than [her] previous position...

It is well settled that a claimant has not failed to make a reasonable effort to mitigate damages when she refuses to accept employment that is an unreasonable distance from her residence.

[T]he job at Mission constituted a substantially equivalent opportunity as that available at Romark.  Donlin should not be penalized for accepting that opportunity.

Accordingly, the District Court's finding that Donlin sufficiently mitigated her damages was not clearly erroneous ...

Certainly our clients still have a duty  to mitigate and make a "reasonable effort" to find comparable work if they intend to claim damages in a lawsuit.  This decision does not change that fact.

But this decision certainly delivers great news since it clearly states that a person is not required take a job which places an onerous burden on him (or her)  in order the meet that obligation.

On many fronts,  this is a hugely helpful case on questions of damages in employment cases. While we deal with these problems every day, it's certainly not every day that we get federal circuit court case law on these particular issues.

It's also a wake up  to employers to be careful about their hiring practices.

The bottom line is that Donlin worked as a temp at  a company  for eight months. Because she was discriminated against when the company hired a man instead of her into a permanent position, she is now entitled to all of her past losses plus 10 years of damages into the future. That's a big win.

Images: images.businessweek.com

Supreme Court Faced With Perfect Storm In Firefighters' Discrimination Case

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

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

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

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

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

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

disparate treatment discrimination

  • where a person is being treated differently --  because of his/her race, sex, religion, national origin, disability, veteran status or age -- than a person who is not in the protected class
  •  proven with direct or circumstantial evidence of an intent to discriminate

 disparate impact discrimination

  • when a neutral policy, standard or test has a disparate impact on a protected class.
  • i.e. if a company only hires individuals who are 5 foot 6 inches tall or over -- the qualification while neutral on its face, would have a disparate impact on women.
  • no intent to discriminate is required to prove these kinds of cases

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

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

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

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

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

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

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

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

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

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

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

It's no surprise that there were over twenty five "friends of the court " briefs filed by various civil rights, governmental, management, and other organizations.  If you care to see everything there is to see on this case, the best place to go is the Supreme Court of the United States Blog which has an excellent summary as well as all of the court filings.

I thought that the brief filed by the United States not only made some good points, but really could help the Court steer clear of this hot potato.  Here's the gist of the government's argument:

  • An employer does not violate Title VII disparate treatment prohibition when it decides not to certify the results of a promotional test so that it could comply with Title VII's prohibitions against disparate impact discrimination.
A contrary reading would needlessly pit Title VII's basic anti-discrimination provisions against one another and would defeat Congress's intent to encourage employers to comply voluntarily with Title VII
Titlve VII's ban on both disparate-treatment and  disparate-impact discrimination reflects Congress's obvious desire that the provisions be read in harmony so that one provision does not defeat the other
  • An employer's concern that it's test may violate Title VII does not equate with intentional discrimination -- it is consistent with Congress' core objective to prevent discrimination
  • Employers are encouraged to take appropriate and lawful measures to eliminate adverse impact from selection procedures under EEOC guidelines which is exactly what the city of New Haven was doing
  • The city of New Haven did not make any racial classifications and did not  make any intentional promotional decisions based on race because no one was selected for the promotions, much less selected based on race. 
  • The case should be decided like other disparate treatment cases -- the plaintiff provides evidence of discrimination; the employer articulates its justification for the decision; the plaintiff comes forward with evidence that the justification is pretextual  -- meaning not credible or made-up
  • As applied to this case, that would  mean that the plaintiff would be entitled to prove that the stated reason for New Haven's decision -- compliance with Title VII -- was merely a pretext for intentional race discrimination
  • Thus, the  jury should be permitted to find pretext  when the plaintiff establishes that: 

                     1. the employer's proffered motive of Title VII compliance is  reasonable

                             (suspending a selection process to investigate the possibilities of                                   alternate selection methods would be considered reasonable ) or

                     2. there is other separate evidence that the employer's stated reason is not credible

The real bottom line of the argument is that the Court  can and should  write an opinion which relies on an analysis that already exists and send the case back down to the district court to apply it.  It's a solution to a catch-22 problem that makes sense.

No doubt, this is a very important case and most Supreme Court observers agree that it will be decided by the swing vote of Justice Kennedy. 

I hope he sees the path that has been cleared in the government's brief. The logic is great, the law is sound, and the Court does not have to pick an outright winner or loser.


Supreme Court Hears "Mixed-Motive" Age Discrimination Case

Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services  case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it's almost impossible.

For one, in my opinion, the outcome will not affect most employees who are trying to bring age discrimination cases. Two, even most lawyers who do this work don't get bogged down in the subject of the argument because it's just too complicated, and not particularly beneficial, but let me try to explain it.

Jack Gross sued  his employer under the Age Discrimination in Employment Act ("ADEA") alleging that he was demoted because of his age. The Defendant employer, FBL Financial Services:

  • denied that it took Gross' age into consideration                        
  • said even if it did, it had a legitimate reason for doing so, and
  • it would have made the same decision anyway.

The questions presented are:

  1. In a "mixed-motive" age discrimination case -- where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
  2. What kind of evidence needs to be presented -- direct or circumstantial -- to prove a "mixed-motive" case?
  3. Does the discriminatory reason need to be a "substantial reason" or "a motivating reason" for the employee to prevail?
  4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. ("CRA"); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it  may have discriminated,  it would have reached the same result anyway in denying Ms. Hopkins her promotion.

In it's fractured decision,  the Supreme Court came up with a new way of proving discrimination in what it called a "mixed-motive" case.  Simply said, this new method of proof set forth a complicated and confusing burden shifting framework.

After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor.

In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination.

As a result, Congress overturned that portion of Price Waterhouse  when it enacted the Civil Rights Act of 1991.  In so doing, it specifically lowered the standards for employees in "mixed-motive" cases.  Theoretically, the CRA  makes it easier for employees to win these cases.  Under the Act:

  • the employer is not absolved of liability in "mixed-motive cases" even if it proves it would have made the same decision anyway, but damages to the employee are restricted.
  • in  order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must “demonstrate” that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation.

The issue of what kind of evidence was required was decided by the Supreme Court in Desert Palace, Inc. v.Costa in 2003.  According to that decision, Congress intended the term "demonstrate" to mean that an employee could prove his or her case by direct or circumstantial evidenceAs the Court stated:

Title VII’s silence with respect to the type of evidence required in mixed-motive cases . . .suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.” ... That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” . . . by using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983). 

You would think that would settle it but there's always a wrinkle, and the wrinkle for Mr. Gross is that  the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross' case.

Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument.

One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII  (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court.

Gross' argument is that there would be no reason not to interpret the ADEA  consistently with Title VII and no reason not to do so in this case.  That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters)

If anyone wants more, better, or different analysis of  the Gross case,  there are lots good pieces on it (SCOTUSBLOG, Ross Runkel's Law Memo are two)

Whatever the outcome, as a practical matter I don't think it will change the way employees and their lawyers go about proving age discrimination cases:

  • Plaintiffs are going to present all the evidence they have whether it's direct or circumstantial, or both.
  • Most of us who represent employees have never seen the benefit of getting a "mixed motive" instruction even when we have direct evidence of discrimination because it's too confusing to the jury.
  • It's just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision.

For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one.  Other than that, it's not very interesting at all, but since it's not often that an age discrimination cases hit  the Supreme Court, it's got to be talked about even though I am the first to admit --it's mostly academic.

Image: www.visitingdc.com

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.

The federal district court threw out Chadwick's claim because, according to the court, nothing in the record showed that  Wellpoint failed to promote Chadwick because of her sex.

Chadwick appealed the decision. The First Circuit Court of Appeals reversed the lower court, finding in Chadwick's favor, and stated:

  • an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities.
  • unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities

In sum, according to the Court of Appeals:

The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.

In reaching it's decision, the Court relied on two important lines of cases involving gender discrimination:

1.  Stereotyping  based on Sex:

2. "Sex Plus" Discrimination: 

  • cutting edge cases in which an employer may be liable under Title VII when it does not discriminate against the class of men or women as a whole, but
  •  treats a subset differently -- for example, the employer discriminates against working mothers as opposed to all women

The new First Circuit case is an extremely important win for working women who are discriminated against because of their family responsibilities. In my experience, this kind of discrimination often occurs in situations just like Laurie Chadwick's -- a woman deserving of a promotion is passed over on account of a presumption that she just can't do the job because she has "too much on her plate."

The lower court refused to recognize  Wellpoint's failure  to promote Chadwick as a discriminatory decision even in the face of undisputed evidence that she was the more qualified candidate for the job.  In so doing, it chose to ignore United States Supreme Court decisions which plainly state that sex stereotyping is sex discrimination.

Thankfully, the First Circuit Court of Appeals set the record straight.

Image: www.makkstrategies.com


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:

  1. A difference of treatment between the pregnant employee and a similarly situated non-pregnant employee
  2. Remarks which show prejudice against pregnant women or working mothers
  3. Statistical disparity
  4. The reason given for the discharge is not credible along with a prima facie case of discrimination
  5. Circumstantial or direct evidence  a motivating factor for the termination was pregnancy related

No doubt, there are a host of problems with the Pregnancy Discrimination Act. Gillian Thomas of Legal Momentum and Joanna L. Grossman of Hofstra University School of Law recently published an excellent article about this topic.  As the authors point out:

Pregnancy discrimination claims have been steadily rising in the last ten years, at a faster rate than other types of discrimination claims.  The rise in claims -- and the millions of dollars paid out in response -- suggest the persistence of unlawful treatment of pregnant women at work.

The article goes on to illuminate the many gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. It's a must read for anyone trying to maneuver the legal maze of the PDA.

But while it may not be easy to prove discrimination, there are many cases in which women who have been discriminated against because of their pregnancy have won. The Sixth Circuit Court of Appeals case of Ensley-Gaines v. Runyon spells it out:

As recognized by the United States Supreme Court, '[t]he second clause [of the PDA] could not be clearer: it mandates that pregnant employees ´shall be treated the same for all employment-related purposes' as nonpregnant employees similarly situated with respect to their ability to work'"Int'l Union v. Johnson Controls , 499 U.S. 187, 204-05 (1991)

Women make up half of the workforce and 85% of working women will become mothers at some point in their working lives. Last year the number of pregnancy discrimination charges filed with the Equal Employment Opportunity Commission was up 50%.  Certainly pregnancy discrimination is a huge issue for working women and their families who suffer the affects of an unexpected job loss.

I do agree with the NY Times article in this respect:  If you believe that you have been discriminated against because of pregnancy, contact an employee rights attorney or the EEOC and get the proper advice -- and don't wait long.



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.

Images: http://www.gpac.org/images/PressReleasePics/maleworkplace.jpg and http://img.dailymail.co.uk/i/pix/2007/10_04/bullyingDM2810_468x720.jpg

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.

Image: http://www.methodist.org.uk/static/interface/if_distressedwoman_05.07.jpg