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

Posted on May 12, 2010 by Ellen Simon

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog.  For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,"  which the district court gave “little weight," corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift -- during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West's lawyer requested which the Sixth Circuit both addressed and confirmed.

 

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

Posted on April 20, 2010 by Ellen Simon

Wage Discrimination Needs Attention And A Legislative Fix

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

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

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

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

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

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

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

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

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

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

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

images: www.evetahmincioglu.com

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

Posted on December 1, 2009 by Ellen Simon

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

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

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

What Happened In The Case

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

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

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

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

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

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

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

Haddad’s employment was terminated that same day.

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

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

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

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

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

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

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

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

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

The Appeal

Wal-Mart appealed claiming a number of errors.

Sufficiency of the Evidence

Wal-Mart claimed that Haddad did not introduce enough evidence to prove discrimination. The Supreme Judicial Court of Massachusetts disagreed. It held that there was sufficient proof to support the verdict including evidence that:

  • Wal-Mart’s proffered reasons for terminating Haddad were false
  • Similarly situated male employees were treated differently than Haddad for similar infractions of the same policy
  • Other incidents occurred  in which male pharmacists were not disciplined for far more serious infractions, ie. one pharmacist was caught writing prescriptions and taking drugs for himself and was not fired
  • Wal-Mart failed to follow its progressive discipline policy

Front Pay

The jury awarded the plaintiff nineteen years of future economic loss which consisted of the difference in pay and benefits that Haddad would have earned at Wal-Mart compared to the pay and benefits she earned at the job she held at the time of trial.

Nineteen years of compensation represented Haddad’s loss of earning through age 65.

Wal-Mart contended that the front pay award was excessive and speculative. The Court disagreed:

While the award of $733,307 represents a significant dollar figure for front, pay, the evidence supported such an award ....

The plaintiff testified to her difficulty in obtaining a new job. There was evidence that Wal-Mart’s allegations concerning her alleged responsibility for drug losses became generally known....

[T]he award of lost income of nineteen years is consistent with the plaintiff’s anticipated retirement age of sixty-five.

Based on the plaintiff’s ten-year tenure at Wal-Mart, her testimony that she had planned to continue working at Wal-Mart for the remainder of her career, and the limited number of pharmacies in the area around Pittsfield, the jury permissibly could have concluded that an award of nineteen years was appropriate.

The Court discussed other cases (both state and federal) in which employees were awarded economic loss for long periods of time into the future – particularly where the “circumstances indicated that plaintiffs would have difficulty obtaining comparable employment.”

It’s a very helpful opinion for plaintiffs and their lawyers on the issue of damages for future economic loss in wrongful discharge cases

Punitive Damages

It’s not often that we see cases in which an award of punitive damages is affirmed on appeal.

To sustain the award of punitive damages in this case, Haddad had to prove that the defendant’s act "was outrageous, egregious, evil in motive, or undertaken with reckless indifference to the rights of others."

Some of the evidence which the SJC of Massachusetts relied upon to support the award included proof that:

  • Wal-Mart was aware that gender discrimination was not illegal
  • Wal-Mart refused to pay Haddad the hourly rate it paid male pharmacy managers
  • Wal-Mart fired a ten-year employee for a single infraction after a sham investigation
  • Male pharmacists were not disciplined for similar or far more serious infractions

It wrote:

The jury was warranted in concluding that Wal-Mart’s pattern of unequal treatment of male and female pharmacists was outrageous and reprehensible.

Lessons To Be Learned

There is no doubt that in today’s economic climate the chances of finding comparable employment after a discharge are slim. What this means is that when employees unlawfully lose their jobs, and prove it, it’s likely that we will see larger and larger verdicts just like this one. It’s an important case both for its content and as a harbinger of what’s to come.

* Reprinted from Westlaw with permission of Thomson Reuters

 Images:

63.135.122.65/bergdahlphoto/Wal-Mart

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