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

Posted on March 2, 2010 by Ellen Simon
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/.

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JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Posted on February 28, 2010 by Ellen Simon

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations. 

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste. 

Gorzynski complained  to Celeste on numerous occasions about the discrimination and harassment she experienced and about  the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses
The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

  • permeated with discriminatory intimidation, ridicule, and insult that is
  • sufficiently severe or pervasive to alter the conditions of the victim’s employment and
  • create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

  • grabbed Gorzynsi and other women around the waist
  • tickled them
  • stared at them as if” he was mentally undressing them”
  • made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

  • it exercised reasonable care to prevent and promptly correct any harassing behavior and
  • the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook)  which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

  • only complained to her supervisor -- the harasser
  • did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski's sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed.  It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.


Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

  • the other manager Gorzynski could have complained to was Thro -- the regional manager
  • the evidence showed that Thro was not receptive to receiving complaints from employees
  • the evidence also showed that Thro was intimidating
  • Thro retaliated against those who made complaints

Therefore, the Second Circuit held -- in reinstating the sexual harassment claim --  the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination: 

  • she was over 40
  • she was qualified for her position
  • she was fired
  • she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its "legitimate business reason": it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

  • the negative evaluation Gorzynski received from Celeste -- a 2 out of 5 -- was conducted after he had supervised her for only one week
  • a contemporary, anonymous crewmember gave her a 4 out of 5
  • at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions --Celeste then promoted him
  • JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”
  • Celeste told Gorzynski she reminded him of his 80 year old aunt
  • younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of "age plus" discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

  1. that she participated in a protected activity
  2. suffered an adverse employment action
  3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

  • five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”
  • a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination
  • Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of   gender/age "plus" discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women -- which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management,  the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company's sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images:www.bajanfuhlife.com/news/news  www.chicagoemploymentlawyer.net/

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/.
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The Real Reason Why Sarah Palin Is So Bad For Women

Posted on February 10, 2010 by Ellen Simon
Palin's Run For President Is Huge Setback For Women's Rights

I read the other day in the New York Times that Sarah Palin is considering a run for President – and I have been trying to figure out why it makes me so angry -- other than the fact that I have to listen to her most irritating voice and garbled grammar for the many campaign months ahead.

I know it’s because she’s a woman and because she embodies a major setback to so much I have worked for over the past 30 plus years, but I’m struggling with what really makes me feel this visceral negativity. And I'm not the only one.

Is it simply because of where she stands on the issues -- her harmful views on a woman’s right to choose that would take us back to the dark and dangerous days before Roe v Wade?

Is it because she was against the Lily Ledbetter Fair Pay Act and thought it was ok for a woman with no knowledge that she was a victim of  wage discrimination to be barred from bringing a lawsuit when she first learned about it?

Is it because she touts equal pay for women but takes positions against the Paycheck Fairness Act which would help ensure that women really do get the equal pay they deserve?

Is it because she’s against government programs to help women with issues like affordable child care – concerns which deeply affect working women and for which the US is light years behind other countries?

Is it because she thought it was ok to promote a sexual harasser to her cabinet?

Or is it because she is simply unqualified?

What everyone knows but barely anyone talks about is that Sarah Palin is where she is because she is pretty. As  Todd Purdham noted in his Vanity Fair article about Palin, her beauty queen looks have

captivated people who would never have given someone with Palin’s record a second glance if Palin had looked like Susan Boyle.

Susan Reimer , from the Baltimore Sun put it this way:

Put red high heels and red lipstick on a woman with a cute figure and run her out there and we promise, nobody will notice her mangled syntax or her poor sense of geography.

Unqualified women who get ahead simply because of their looks make it that much harder for intelligent, capable women to get a fair shake. Is it possible that beneath all of the chatter, it’s this harsh reality that makes feminists so upset?

There is no doubt, that for those of us who have long championed equal rights for women, Sarah Palin represents a gigantic step backwards --- and going backwards after the many hard fought struggles to get ahead is always rough. She got where she did simply because of her looks and she rejects policies which would improve the lives of women.

Simply put, for so many women, this major league anti-feminist is just really hard to take.

image: turbo.inquisitr.com

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Workplace Retaliation Results In $1.5 Million Dollar Verdict

Posted on January 31, 2010 by Ellen Simon

Winning Plaintiff In Supreme Court Crawford Decision Gets Big Verdict For Title VII Retaliation

We often read about cases in the courts of appeals, including the ultimate court of appeals -- the United States Supreme Court -- in which the plaintiff prevails and gets the opportunity to take his or her case to a jury.

We study these cases because of the legal principles and precedents involved and how they will affect other clients and cases in the future.

We don't usually hear -- and it's not commonly reported -- what eventually happens to the plaintiff who won the reversal and got the chance to go to court. That's because some of those cases are settled, and the settlements are often times confidential. In other instances, the results of the trial simply don't make the news.

So I was really pleased this morning to read in one the bulletins I receive from the National Employment Lawyers Association about the fantastic verdict on Monday for Vicky Crawford, the plaintiff in the landmark United Supreme Court decision Crawford v. Metropolitan Government of Nashville and Davidson Cty .

Here's what happened in the case.

Facts Of The Case

In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.

When Vicky Crawford, a 30 year Metro employee , was asked whether she had witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances of sexually harassing behavior including instances where Hughes: 

  • repeatedly put his crotch up to her window and
  • entered her office and grabbed her head and pulled it to his crotch

Two other employees also reported being harassed by Hughes.

Metro took no action against Hughes, but fired Crawford and the two other accusers soon after finishing the investigation.  Metro claimed it fired Crawford for embezzlement.

Crawford filed a lawsuit claiming that she was fired in retaliation for her report about Hughes's behavior in violation of Title VII of the Civil Rights Act of 1964.

Title VII's Anti-Retaliation Provisions

Title VII has two provisions which prohibit retaliation in employment discrimination cases and make it unlawful for an employer to discriminate against any of its employees because:

  1. he or she "has opposed any practice which is unlawful" under Title VII
  2. he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter"

These provisions are commonly known as the "opposition clause" and the "participation clause".

The District Court and Sixth Circuit Decisions

The District Court granted summary judgment in favor of Metro. It held that Crawford did not satisfy the opposition clause because she had not "instigated or initiated any complaint", but had "merely answered questions by investigators in an already-pending investigation, initiated by someone else."

The District Court also concluded that Crawford's claim failed under the participation clause because it held that the only circumstances in which an employee would be protected from retaliation for participation in an employer's internal investigation was where "the investigation occur[ed] pursuant to a pending EEOC charge."

Crawford appealed and the Sixth Circuit Court of Appeals affirmed on the same grounds.

Crawford next filed a petition for certiorari requesting that the United States Supreme Court accept the case. The petition was granted.

The Supreme Court Decision

In one of the most significant 2009 U.S. Supreme Court decisions in the area of employment law --- decided just about one year ago ---  the Court reversed the Sixth Circuit, broadly interpreted the retaliation provisions of Title VII and found in favor of Crawford.

The Court unanimously concluded that the ordinary meaning of “oppose” includes  giving a “disapproving account” of unlawful behavior --  even if the employee does not take any  further action on her own to stop or remedy the conduct.

The Court stated:

[T]here is no reason to doubt that a person can 'oppose' by responding to someone else's questions just as surely as by provoking the discussions, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

Therefore, the Court held, an employee may be protected from retaliation under the opposition clause if he or she discloses information as part of an internal investigation, even if the employee is not the complainant.

The decision was one of the rare cases from this Supreme Court  in which there was no dissent (though Justice Alto and Thomas wrote a concurring opinion.)

In sum, the judgment of the Court of Appeals was reversed which meant that the  case was sent back to the district court for trial. The case was set for trial for January, 2010, and concluded with a verdict last week.

The Verdict

Last Monday the jury returned a verdict  finding that Crawford  -- who has not worked since 2003 -- was retaliated against and awarded $1,556,258.86 in damages. Here's the breakdown:

  • $420,000 in compensatory damages
  • $408,762.12 in backpay (past economic loss)
  • $727,496.74 in front pay (future economic loss)

For more details about the trial, see here and here for articles reported in The Tennessean about the case.

Conclusion

Fear of retaliation for reporting sexual harassment or other discrimination in the workplace is quite common. It's also common for potential witnesses to be fearful that they will lose their jobs if they cooperate with an investigation of a charge of discrimination or harassment.

For those of us who practice in this area, these are concerns that we hear almost daily.

There is no doubt that Title VII --as well as other civil rights statutes-- are intended to protect individuals from retaliation and the Supreme Court  made it clear in the Crawford decision that those provisions are to be interpreted broadly -- not narrowly, as many of the federal courts were erroneously deciding.

The Crawford opinion was certainly one of the most important employee rights decisions of the decade, and it's certainly great to hear about this fantastic verdict for Vicky Crawford and her legal team after this very long road.

image: www.yourhrexperts.com
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Gender Based Profanity Constitutes Sexual Harassment

Posted on January 27, 2010 by Ellen Simon

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

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

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

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

The Facts

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

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

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

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

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

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

What Happened In The Courts

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

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

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

The Eleventh Circuit Finds For Reeves

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

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

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

It stated:

The terms 'whore' 'bitch', and 'cunt,'  the vulgar discussions of women's breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves's gender.

Like 'bitch,' 'whore,' is traditionally used to refer only to women. The dictionary defines 'whore' in terms of gender as a 'woman who practices unlawful sexual commerce'...

A raft of case law ... establishes that the use of sexually degrading, gender-specific epithets, such as 'slut,' 'cunt,' 'whore' and 'bitch,' .... have been consistently held to constitute harassment based upon sex ...

It didn't matter, to the Court, that Reeves co-workers never directly called her a "bitch," a "fucking whore," or a "cunt." Reeves claimed it happened every day, and that the manager accepted and tolerated the behavior in spite of her repeated complaints. As the Court pointed out:

If C.H. Robinson tolerated this environment, it may be found to have adopted the offending conduct and its results, just as if the employer affirmatively authorized it.

The Court also rejected C.H. Robinson's argument that the gender-specific insults were not directed at Reeves, and therefore not "because of her sex," since the conduct started well before Reeves started working there. 

That argument, according to the Court, is inconsistent with the central premise of Title VII -- that is:  workers are to be protected from discrimination on account of gender in the workplace. In the words of the Court:

Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers' employment were not.

It is no answer to say that the workplace may have been vulgar and sexually degrading before Reeve arrived.

Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law.  Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.

Finally, the Court rejected C.H. Robinson's third contention -- that Reeve's co-workers used the terms "bitch" and "whore" to refer to both men and women and so those terms couldn"t be gender specific. The Court noted:

It is undeniable that the terms "bitch" and "whore" have gender specific meanings. Calling a man a "bitch" belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine , and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and , thereby could be taken as humiliating to women as a group as well.

In sum:

If Reeve's account is to be believed, C.H. Robinson's workplace was more than a rough environment -- indiscriminately vulgar, profane, and sexual. Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex ere not exposed.

Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.

And so, Ingrid Reeves gets her day in court.

Conclusion

There are so many women who are regularly subjected to degrading and offensive work environments particularly where most of the employees are men. It's sad but true that although C.H. Robinson seems to be a blatant repeat offender, what happened to Ingrid Reeves and Julie Gallagher are not isolated events. I have been hearing these stories, and they haven't seemed to change that much, for the past thirty years. This stuff happens, unfortunately, all of the time.

That's why this case is so important. It states why it's illegal to subject women to this type of insult and profanity in the workplace. It's a particularly thoughtful, insightful  and well written opinion  which will be helpful to employers as to what's illegal and what's not -- and why -- and to women and their lawyers who bring hostile environment sex discrimination claims in the future.

It's a great opinion from the Eleventh Circuit.

images: abovethelaw.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

www.a-fib.com/images
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Harassed Female Wins "Locker Room" Hostile Environment Case

Posted on June 2, 2009 by Ellen Simon

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

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

Here's what happened in the case. 

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

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

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

According to the evidence the work atmosphere was filled with:

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

In addition, Gallagher was personally:

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

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

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

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

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

In order to prove a sexual harassment case, the plaintiff must prove that

  1. she is a member of a protected class (female)
  2. she was subjected to harassment either through words or actions, based on sex
  3. the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile, or offensive work environment and
  4. there exists some basis for liability on the part of the employer

The district court, in placing it's remarkable spin on the facts, and applying that spin to the elements of  the claim set forth above, made several reversible errors.

Mistake #1:  The district court held that the conduct was not "based on sex" based on the following conclusions:

  • Because the offensive conduct Gallagher complained of was in an open forum with both men and women, it was not based on sex
  • A person can't prevail on a discrimination case which is based on indiscriminate conduct.

Not so according to the Sixth Circuit which held (joining the 2nd and 11th Circuits):

Even though members of both sexes were exposed to the offensive conduct in the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.

In other words, since women would find the sexually offensive comments more offensive than men would,  and suffer more harm than men because of it -- it is discrimination based on sex.

The defense that someone may be an "equal opportunity curser" or "equal opportunity harasser" is dead -- and it's about time.

Mistake #2: The district court held that the harassment was not severe or pervasive based on the following conclusions:

  • most of the offensive conduct was not directed at Gallagher
  • the harassment was not objectively hostile
  • Gallagher's work performance didn't suffer

Wrong on all three points according to the Sixth Circuit which said:

Whether the offensive conduct was intentionally directed specifically at Gallagher or not, the fact remains that she had no means of escaping her co-workers' loud insulting language and degrading conversations; she was unavoidably exposed to it.

Considering the totality of the circumstances as described in Gallagher's deposition, the conclusion is inescapable that a reasonable person could have found the Cleveland office -- permeated with vulgar language,demeaning conversations and images, and palpable anti-female animus -- objectively hostile ...

Considering Gallagher's description of the offensive conduct to which she was exposed , her reaction can hardly be dismissed as implausible, unreasonable, exaggerated or hypersensitive. Nor is it improbable that the hostility and antagonism she experienced rendered her work more difficult ....

We therefore conclude that the district court erred in its determination that Gallagher presented insufficient evidence that she was subjected to such severe and pervasive harassment  so as to unreasonably interfere with her work performance and create a hostile work environment.

Mistake #3: The district court held that there was no employer liability based on the following conclusions:

  • C.H. Robinson had sexual harassment policies for reporting and Gallagher didn't follow them
  • reporting the misconduct  only to Greg Quast (the office manager) was unreasonable
  • C.H Robinson did not have notice of the harassment

Wrong again according to the Sixth Circuit Court of Appeals which wrote:

According to Gallagher's deposition testimony, Quast witnessed much of the harassing conduct and participated in some.  The facts substantiate a finding that Quast knew or should have known of the offensive conduct and of Gallagher's objection to it.

An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized -- or is reasonably believed by a complaining employee to have been authorized -- to receive and respond to or forward such complaints to management.

 Because a reasonable  jury could find that C.H. Robinson knew or should have known of the sexual harassment Gallagher experienced and yet responded with manifest indifference or unreasonably, the district court's conclusion that the premises for employer liability are lacking is erroneous.

This case is a tremendous win:

  • It interprets Title VII consistently with it's purpose
  • It sets forth very clearly what kind of conduct can constitute a sexually hostile work environment and why that it is so
  • It puts the onus in these cases back on the employer where it belongs
  • It emasculates many of the contrived  and nit -picking employer defenses which too many judges have latched on to and used to throw these cases out

The bottom line is that no one should have to go to work and face what Julie Gallagher did. That's why we have laws which make a sexually hostile work environment illegal.

This decision should help make sure that others aren't subjected to the same miserable experience.

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Harassed Pro Choice Doctor Gets Million Dollar Lawsuit Settlement

Posted on May 29, 2009 by Ellen Simon

 Retaliation  Because of Fight for Abortion Training Gets Doc Million Dollar Lawsuit Settlement

A $1.4 million dollar settlement was reached last week in this important case about a doctor's advocacy for reproductive rights.

Here's the story as reported by the Center for Reproductive Rights and the Feminist Majority Foundation.

Dr. Christopher Carey served for many years as both Chief of Obstetrics & Gynecology and Director of the Obstetrics & Gynecology Residency Program at Maricopa County Hospital in Phoenix.

While in that position, Dr. Carey supported providing OB/GYN residents the opportunity to participate in abortion training if they so desired.

Carey also spoke out against the efforts of the Maricopa County Board of Supervisors and others who wanted to end those training opportunities.

As a result, Carey claimed he was harassed and retaliated against  by the Board of Supervisors and other officials who:

  • carried on an eighteen month campaign to force Carey out of his position
  • spread false statements which damaged his reputation
  • worked to block his re-appointment to the Medical Staff
  • conducted multiple baseless investigations
  • voted to remove him from his position at the hospital

Carey was terminated from his position in September of 2004.

Carey sued alleging that his Constitutional rights were violated under the First and Fourteenth Amendments,  and that he was discriminated against because of his religious and moral beliefs.

A settlement of $1.4 million dollars was announced on May 22nd by the Center for Reproductive Rights and the firm of Weil, Gotshal & Manges which represented Dr. Carey. The case was set to go to trial on June 23rd.

In an interview after the settlement, Dr. Carey said:


I am extremely pleased with the settlement, but it’s important to remember that the shortage of abortion providers in this country is extensive.

A resident’s ability to obtain abortion training is crucial to ensuring women receive quality health care when they need it.

No doubt Dr. Carey is a real champion on this very important and controversial issue.  It's reassuring to many of us that Dr. Carey was vindicated.

In addition to the important principles concerning  quality health care, and freedom free from discrimination and retaliation,  there's a broader lesson to be learned from this case.

It was simply stated by Janet Crepps, deputy director of he U.S. Legal Program at the Center for Reproductive Rights who said:  "Personal politics have no place in medical care."

It's not often that we see cases which send this message -- let's hope it gets delivered.

 Image:blog.lib.umn.edu

            s1.causes.com

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Another Victory for Working Moms

Posted on May 7, 2009 by Ellen Simon

I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out.

It’s a great example of  “caregiver discrimination” about which the EEOC issued a report just last week (I wrote about it : Read Carefully to Avoid Caregiver Discrimination), and it's a case in which the caregiver wins.

The case also has a very clear analysis of what kind of evidence allows a plaintiff to get to a jury in a typical gender discrimination case.  

Here’s what happened in the case.

Karen Gerving worked as a sales manager for Opbiz (Alladin Resort and Casino) until she was fired by her supervisor, Jim Lauster.

Gerving filed a lawsuit alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Gerving’s evidence showed that after she became a stepmother, Lauster:

  • began to give her poor performance reviews
  • told her that working mothers should stay at home
  • told her that she would have to choose between being a mother and a sales manager
  • made similar discriminatory remarks to a pregnant co-worker
  • treated  Gerving differently than a male co-worker when she was reprimanded for making calls to her children while he was not

Because of the discriminatory treatment, Gerving complained to the Human Resource Deparatment. Two weeks later, an angry Lauster tried to get Gerving fired.

It turned out that Luster wasn’t able to fire Gerving until some months later when new management was in place.

In a typical discrimination case, the plaintiff can establish an inference of discrimination if she can prove:

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

4)   she was treated differently than a similarly situated employee who does not belong to the protected class

Once the employee establishes an inference of discrimination – what’s called the prima facie case – the employer is required to "articulate a legitimate, non-discriminatory reason" for it's employment action.

If the employer does that, the employee must prove pretext – meaning that the employee presents evidence that the reason given by the employer is not believable or made-up.

In this case, Alladin said that Gerving was fired because of poor performance and because she used profanity in an argument with a co-worker.

Gerving presented the following evidence of pretext:

1)   her performance reviews were good until she became a stepmother

2)   Lauster tried to fire her shortly after she complained to Human Resources

3)   customer complaints were common

4)   profanity in the workplace was common and not grounds for termination

5)   Lauster began discussing Gerving' termination with new management before the events that were cited as the reasons for her discharge

In spite of all of this evidence, the trial court judge threw out the case and granted summary judgment in favor of Alladin Resort.

The Ninth Circuit Court of Appeals reversed stating:

From this specific evidence, a reasonable jury might conclude that Gerving was terminated in retaliation for complaining about Lauster’s discriminatory comments, and that the termination was motivated by discriminatory animus.

 Accordingly, the order granting summary judgment on Gerving’s gender discrimination and retaliation claims is VACATED and this case is REMANDED for further proceedings.

What this means is that the trial court was wrong when it only gave credit to the employer’s side of the story and either disbelieved or gave no credit to Gerving’s evidence.

What it doesn’t  mean is that Gerving wins her case. What Gerving wins is her right to have her case decided by a jury which is what she in entitled to under the law.

So what’s the big deal? The big deal is that federal courts have been throwing out cases like hers in the same way for years – giving credit to the employer’s side of the story and ignoring the employees’ evidence.

Finally, after almost thirty years,  I am sensing that the summary judgment tide against employees in discrimination cases may be turning. I can hardly believe it but I think it might be true.

This case is but one of many examples of summary judgment reversals I have read about in the last several months. The Circuit Courts of Appeal seem to be sending these erroneous decisions back to the district courts for trials with more frequency than ever.

It’s not that it never happened before – it’s just that it seems to be happening more often, and it’s not just from one circuit. Employees are winning.

It’s too bad it takes so long for the victimized employee to see the light of day. Appeals delay the opportunity to get a case in front of a jury for years.

Let’s hope the federal district court bench gets the message and gives the plaintiff her day in court the first time around. We’ll be watching.

 Image: api.ning.com
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Read Carefully to Avoid Caregiver Discrimination

Posted on April 27, 2009 by Ellen Simon

Did you know that:

  • 90.7 % of families with children under 18 have at least one working parent
  • 1 in 10 workers cares for both children and an elderly relative 

It's well documented that most of that burden falls on women who continue to serve as the primary caregivers for children and sick or disabled relatives.

The result is that because of these responsibilities, women have suffered widespread discrimination in employment for as long as they have been working.

That's why it was really good news last week when the U.S. Equal Employment Opportunity Commission (EEOC)  issued a document on best practices to avoid discrimination against workers with caregiving responsibilities.

The Work Life Law Center at UC  Hastings College of the Law  describes "caregivers discrimination"  this way:

Family Responsibilities Discrimination (FRD) is employment discrimination against workers based on their family caregiving responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD.

They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated -- despite good performance -- simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.

The purpose of the new EEOC  document is to educate employers about what caregiver discrimination is, how it is manifested, and how it can be minimized or avoided. It also illuminates the not-so-obvious fact that men are victims too.

The report includes some good examples of flexible workplace policies and their proven benefit to both employees and employers.  Sue Shellenbarger's Wall Street Journal article on some of those programs is referenced in the report and is an interesting read.

The EEOC report also includes helpful examples of what this kind of discrimination looks like and here are a few:

Common unlawful stereotypes

  • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees
  • assuming that male workers do not, or should not, have significant caregiving responsibilities
  • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work
  •  assuming that female workers who are caregivers are less capable than other workers
  •  assuming that pregnant workers are less reliable than other workers. 

 Unlawful conduct that results from the bias

  • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities
  • making stereotypical comments about pregnant workers or female caregivers
  • treating female workers without caregiving responsibilities more favorably than female caregivers
  • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
  • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities

Just to be clear, while caregiver discrimination has not been around as a legal concept for very long, it is not just theoretical.   Here's an example of some of the cases where caregiver discrimination has appeared:

Sheehan v. Dolan, a case in which an accounts manager and mother of three was told ,"hopefully this will give you some time to spend with your children," when she was terminated.

Santiago-Ramos v. Centennial P.R. Wireless Corp, a case in which a finance director was asked:

  • how she manged to juggle work, child care and marriage
  • how her husband managed since she wasn't home to cook for him
  • how she could do her job after the birth of her second child

Gallina v. Mintz,  a case in which an attorney was ordered to decide whether she wanted to be "a successful mommy or a successful lawyer."

Chadwick v. Wellpoint, a case I wrote about a few weeks ago  in which a woman with four children was denied a promotion by her female supervisor who said:

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.

Knussman v. Maryland a case in which a state trooper,  who asked for leave to take care of his sick wife and newborn baby, was told that he could only qualify as the primary caregiver if his wife was "in a coma or dead."

While these snippets may seem sound like blatant examples of discrimination, I can assure you that these cases are extremely complex, difficult to litigate and hard to win. Because there is just not very much established law on this issue, the cases often turn on whether the particular judge views the case as one of gender discrimination or not.

It gets particularly complicated when the person who made the discriminatory decision was also a woman as happened in the Chadwick case. It was indeed a woman who denied the promotion to Laurie Chadwick because "she had too much on her plate" --  not a man.

What makes it even more complicated is that there is no specific federal law which prohibits FRD or "caregivers' discrimination." 

One article in the Vermont Bar Journal points out that there are seventeen documented theories under which these cases have been brought  including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and other state and federal laws.

That's why the education to employers about gender bias and gender stereotyping is so important, and why this report is so significant.

Some of my fellow bloggers have written good summaries about the new  guidance manual put out by the EEOC including the Delaware Employment Law Blog, the Ohio Employer's Law Blog and the Connecticut Employment Law Blog and I am glad they did.

I was surprised that some think there was nothing groundbreaking about the report.  I guess I have a different take on it.

As a working mother for many years in an all male environment, and as a practitioner with a thirty year perspective of representing women in the workplace,  I think it's monumental that the government is bringing clarity to the issue of caregiver discrimination.

People who have to deal with this kind of bias, or with with the conflict of taking care of their loved ones and being treated unfairly in the workplace because of it,  need all the help that they can get. No doubt, the support of  the federal government is a huge help.

It's also a big help to employers to have the best practices guide on caregivers' discrimination available as a resource.  I hope they read it carefully.

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Are Fox and American Idol Guilty of Age Discrimination?

Posted on April 20, 2009 by Ellen Simon

 It would have been hard to miss the heartwarming story last week about Susan Boyle’s performance on the British version of American Idol called Britain's Got Talent. The New York Times and CBS News  have extensively covered it as have most of the other media outlets.

The episode, according to the Times, has provoked a debate about the "not so young and not so beautiful" that has many people talking.

Here’s how one blogger, Letty Cottin Pogrebin, described  what happened on the show in her excellent piece in The Huffington Post:

Once on stage, her interrogator, Simon Cowell, asks about her dream. To be a professional singer, she says, and as successful as Elaine Page -- a statement that elicits great hilarity and hyperactive camera close-ups of the judges' bemused disbelief and the snickering, eye-rolling audience.  . . .

Cheerful and unperturbed, the contestant blithely announces that she is going to sing, "I Dreamed a Dream" from Les Miserables.

"How old are you, Susan?" asks Simon, in a tone more appropriate to an interview with a toddler.

"Forty-seven," she says. The audience cracks up. Pixels of ridicule fill the screen, incredulity, patronizing sneers, smirks, whispers you can almost hear: Look at her, will you! Frumpy from the Fifties, got a double chin, a silly Scottish accent, hails from some tiny hamlet, can't remember the word "villages," and to top it off, Omigod, she's old! Either she's a ringer and we're in for some weird parody of Dame Edna or we're about to see this dowdy dame make a fool of herself on the hottest show on British telly.

Finally, Susan Boyle steps into the spotlight and opens her mouth, and before she's sung three glorious, crystal clear notes, the audience is cheering, the judges' jaws have dropped, and I'm choking back tears.

It is truly a great story and if you have not seen the video, I strongly suggest that you join the thirty million people who have. It will surely bring a tear to your eye.

But here's what struck me when I first saw the story:  How come she gets to try out  and she's 47? Not so in the U.S.A.

While most people may not have given it much thought, it's pretty obvious that all of the singers on American Idol seem quite young  Well they are, and it's no coincidence

My husband  is a pretty good singer (for sure I have a bit of a bias) and we have a good time at karaoke clubs.  My son is an agent in the entertainment business.  I  mentioned to my son that I thought it would be fun if my husband tried out for American Idol -- not that he would win of course, but that it would be fun to go to a tryout. After he stopped laughing he said:

He can't try out

Why not?  I said. 

Because he's not under 30.

Yes, that's right.  In order  to try out for American Idol  you have to be under thirty years of age.  I checked the rules and here's what I found:


You have to be a legal U.S Citizen or a permanent U.S resident. You also have to be between the ages of 16 and 29. Make sure to bring 2 forms of I.D with you, at least one form must be a photo I.D. If you are under 18 you need to have a parent or legal guardian with you.

So is it age discrimination? It's not a real simple answer.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA applies to:

  • all employees and job applicants.
  • all terms and  conditions of employment including: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is crystal clear that an employer can not lawfully have a rule which prohibits it from employing anyone over the age of 30.

There are times when employers can lawfully use age in making employment decisions.  For example,commercial airline pilots are required to retire at a certain age. It's simply not safe to have 80 year old pilots flying commercial jet planes with hundreds of  lives at risk. 

For that logical reason, the Age Discrimination in Employment Act permits exceptions for:

a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business

That provision, commonly called the "BFOQ" exception, allows airlines as well as other industries (where safety, for example, may be an issue) to require retirement at a designated age.

But singing?  What could possibly be the bona fide occupational justification for statinging that an excellent singer has to be under 30?  Paul McCartney and Barbara Streisand still sound just fine. In fact, it seems to me that many singers get better with age.

The problem with this scenario is that the Age Discrimination in Employment Act prohibits age discrimination in employment and folks on American Idol are not applying for jobs, so the the act arguably does not apply.

I am not, however, completely convinced that's the end of the story and this is why.

American Idol is broadcast by Fox. Fox Broadcasting Company is a network that is heavily regulated by the federal government.

In fact , Fox is licensed by the Federal Communications Commission to do business and is subject to the Cable Television Consumer Protection and Competition Act of 1992  as well as a host of other federal laws.Television networks have all sorts of civil rights compliance requirements and regulations which prohibit discrimination.

While I understand that this is not a case of discrimination in employment, it certainly seems to me that it may be a case of discrimination in the award of a contract.

This is my argument:

  • when you win American Idol you get a recording contract
  • the contract is offered on to those under 30
  • Fox Broadcasting, through American Idol, is committing age discrimination in the award of contracts by not allowing those over 30 to compete.

I am not entirely sure whether the argument is constitutionally sound, but I am not convinced that it's not.

As a constitutional matter, if a governmental entity awarded contracts to whites only,  we would no doubt be outraged. The government would have the impossible burden of showing that it had a "compelling governmental purpose" for doing so and the alleged justification would be given "strict scrutiny". In other words, we would have little trouble proving that the contract is unconstitutional and illegal.

But even at the lower level of constitutional scrutiny used in cases of gender or age discrimination, how could  a contract awarded only to singers under the age of 30 be "rationally related to any legitimate governmental purpose" ? ( if Fox is considered to be taking governmental action because of it's federal license or because it is heavily regulated by the federal government a constitutional analysis could kick in)

Yes, it's all quite complicated.  Constitutional law is not easy. But it's not hard to ask this question: If American Idol only permitted white individuals to audition, or permitted only men to try out, how would we feel about it and what would we do?

Putting all of the legal complexities aside, from one Simon to another, I feel compelled to ask: why can't the show let everyone try out  to be the next American Idol?

Equal opportunity in England, but not the United States, just doesn't seem right.

image: weblogs.newsday.com
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Big Victory for Working Moms

Posted on March 31, 2009 by Ellen Simon

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.

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GETTING FIRED BECAUSE OF PREGNANCY IS ILLEGAL

Posted on March 28, 2009 by Ellen Simon

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.

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Another Shameful Report About Sexual Assault in US Military

Posted on March 25, 2009 by Ellen Simon

Last week Katie Couric did an excellent and important story on the topic of sexual assault in the military on the CBS evening news.The story was prompted by an annual Pentagon study presented to the Congress on March 17th. The alarming data from the CBC story and Pentagon report included the following:

  • One in three female soldiers will experience sexual assault while serving in the military 
  • For fiscal year 2008, there were 2,923 reports of sexual assaults among active duty U.S. troops worldwide, up from 2,688 reported the previous fiscal year
  •  80 percent of rapes are never reported - making it the most under-documented crime in the military

For someone like me who follows subjects like this, the news was not new. It seems like there is a constant stream of awful stories about sexual abuse involving the military and there has been for many years.

Last summer, for example, there was a CNN article about a House panel which was investigating the way the military handles reports of sexual assault. The story relayed testimony from Congressman Jane Harman of California.

Rep. Harman said she recently visited a Veterans Affairs hospital in the Los Angeles area, where women told her horror stories of being raped in the military:

'My jaw dropped when the doctors told me that 41 percent of the female veterans seen there say they were victims of sexual assault while serving in the military,' said Harman . ..

'Twenty-nine percent say they were raped during their military service. They spoke of their continued terror, feelings of helplessness and downward spirals many of their lives have taken since.

'We have an epidemic here,' she said. "Women serving in the U.S. military today are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq.'

And that's not all.  A few years ago CBS reported frightening statistics about sexual abuse by military recruiters which included the following:

  • More than 100 young women who expressed interest in joining the military in the past year were preyed upon sexually by their recruiters
  • Women were raped on recruiting office couches, assaulted in government cars and groped en route to entrance exams
  • The Army, which accounts for almost half of the military, has had 722 recruiters accused of rape and sexual misconduct since 1996

And it gets even worse if you can believe it.  At the end of 2007, Newsweek published a disturbing story about sexual abuse by military chaplains. 

According to the article, as many as sixty military chaplains were convicted of or at least strongly suspected of committing sexual abuse over the past four decades, sometimes against the kids of military personnel. 

The article also revealed that in many instances regarding the chaplains, complaints of sexual abuse were made to their churches well before they joined the military but were never brought to the military's attention.

All of the studies come to the same conclusion about what happens to the offenders --usually next to nothing.  Most perpetrators found guilty of sexual misconduct are disciplined administratively which means a reduction in rank or forfeiture of pay. Sadly, the consensus is that  military and civilian prosecutions are rare.It's no wonder that crimes of this sort are vastly under reported.

There is also fear of retaliation.  An article in WOW last summer noted that  most women feel they will be punished, removed from duty or further harassed or assaulted if they report incidents, especially if their aggressor is their superior.

Michelle Obama has stated repeatedly that she wants to shine the spotlight on the plight of military families. In so doing, we must hope that the First Lady, the administration, as well of the members of Congress make a concerted effort at fixing this outrageous problem of sexual abuse which dangerously affects members of our military as well as their families.

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Few Women Law Partners Comes As No Suprise

Posted on March 5, 2009 by Ellen Simon

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

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

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

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

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

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

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

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

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

The latest  ABA report on this subject included the following:

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

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

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

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

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

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Sexual Harassment Not Observed by Victim Can be Used Against Employer

Posted on February 16, 2009 by Ellen Simon

Can a plaintiff support her sexual harassment claim with evidence of sexual harassment she did not observe? According to the Fourth Circuit Court of Appeals in Ziskie v. Mineta the answer is yes.

Cynthia Ziskie sued the Federal Aviation Administration for creating a sexually hostile work environment.

In support of her claim, Ziskie submitted affidavits from co-workers containing examples of crude and inappropriate behavior (i.e. making fun of pregnant worker’s breasts, commenting that women should be home taking care of children instead of working, calling a woman "an alien with big boobs" , calling a woman a “stupidvisor”, telling a female supervisor to “fuck off ”, etc.)

The District Court threw out Ziskie’s case holding that Ziskie’s sexual harassment was not severe enough to support the claim. The District Court refused to consider the affidavits of the other female employees and would only consider what Ziskie personally experienced. In reversing the decision of the District Court, the Fourth Circuit Court of Appeals said:

 When examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself. Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment.

The opinion noted that the district court’s “blanket refusal” to consider the testimony of the other women was inconsistent with the Federal Rules of of Civil Procedure  and Evidence which require that all relevant evidence be considered:

Even if  Ziskie did not witness the conduct  described herein, it is nonetheless relevant because it could contribute to the evidence offered to show that the workplace environment at the Washington Center was indeed a hostile one.

This is a hugely important decision for victims of sexual harassment. In order to prevail in these cases, the plaintiff must prove that the harassment was severe or pervasive. Far too often claims of sexual harassment fail, as did this one initially, because the judge finds that the victim’s testimony alone does not meet that burden. In other words, yes some harassment may have happened, but it wasn’t “severe or pervasive” so you lose and the case is thrown out.

This decision, which allows the testimony of the co-workers to establish the severity or pervasiveness of the sexual hostility in the workplace, will go a long way in helping women assert their rights.     

image: http://www.worktrauma.org/CKF60026.JPG

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It Takes a Woman

Posted on February 9, 2009 by Ellen Simon

This post was first published in OPEN LEFT.com on September 5, 2009

When I first heard about the Sara Palin announcement, I was incredulous. Like many, I was stumped as to why John McCain would choose a vice presidential running mate who was completely lacking qualifications for the position. The obvious reason, the effort to pick up Hillary Clinton supporters, made no sense. Anyone who supported Hillary did so not only because she was a woman, but certainly because of the causes which she has championed and the positions for which she stands. Sara Palin simply did not fill the bill.

Within minutes of the announcement, I received a call from my eighty-three year old father who has always been a close follower of politics. After the primaries were over my dad was on the fence. He wasn’t sure if he was going to vote for McCain or Obama. This was particularly irritating because he votes in Florida, a state where each vote carries a great deal of weight. And so I was very interested to hear what his reaction to the Palin announcement was.

“He doesn’t deserve to be candidate for President if he could make such a dumb decision. How could he pick someone with no experience when he’s seventy-four years old” (even though McCain is seventy two, not seventy four, I chose not to correct him) Obama’s got my vote.” This brief conversation made my day and I happily relayed it to everyone I know who cared about its significance. If my father thinks like this, so do a lot of older Jewish voters in Florida I thought, and now we have a fighting chance in that important battleground state.

But as the weekend has passed, I realize that I had submerged what was as bothersome to me as Sara Palin’s utter lack of qualifications and that was McCain’s proud pronouncement that “Sara Palin is a feminist.”

I consider myself a feminist. I started volunteering on women’s’ rights issues at the Massachusetts Commission against Discrimination in 1972 when we were fighting not only for equal pay for equal work but on issues that many have forgotten, the right for women to get credit and credit cards, and the right to have gender neutral newspaper listings for jobs, not “men’s jobs” and “women’s jobs” as they were then classified.  From there  I went on to work for the Office for Civil Rights for the federal government’s Department of Health Education and Welfare where we were enforcing the first Title IX investigations to help ensure equal opportunity to male and female high school and college students . We also took on the challenges of enforcement of some of the first sexual harassment guidelines issued by the government. Because of my dedication to civil rights issues, I went to law school and have been working through the years along with so many others at enforcing the rights of women to be treated equally and fairly in the workplace.

 So let me just say it.  Sara Palin is no feminist.  Just because she has children and works does not make her a feminist. In fact, I think that she sets feminism back fifty years.

She is vociferously pro-choice. She is against termination of pregnancy in all circumstances, even rape and incest. She has never that I know of championed the rights of women. She is a creationist and believes that creationism should be taught in schools a view which hardly encompasses the teachings of equality of the sexes.

 Finally, her choice to work with five children is one that does not advance the rights of working women. Sara Palin went to work four days after she gave birth to a physically and mentally challenged baby. Her teenage daughter is pregnant. They are both in obvious need of their mother as are the rest of her school age children.   She has chosen to place herself in a position just a heartbeat away from the most demanding job in the country and plans to do so while having the concerns of five children to worry about.

I have worked very hard as a trial lawyer and raised two children while doing so. Let me be the first to say, I can not imagine working at a job as full time as the one I had and taking care of five children at the same time. I could barely handle two. In my heart I know that that with five children and the demands of the position something or someone would have suffered. What’s more, the scenario I am imagining does not even contemplate the additional time required for the medical needs of a downs syndrome child.

And so when we have been fighting so long and so hard for the rights of working women, it’s my gut feeling that there is nothing about Sara Palen that advances our cause. For one, she’s seeking a position for which she is not qualified. Two, if her proposal to be mother of five, including a pregnant teenage daughter and a severely handicapped child raises doubts in my mind about her capacity to be President, I can only imagine the doubts it raises in the minds of many employers whose minds and views we have been trying to influence for over a generation. When we fight for our belief that we can do it all and that others can too we simply can’t be bluffing and we can’t afford to be wrong. It’s too important and too much rides on the outcome. 

I am in complete awe of any woman who could handle this challenge. But the fact remains, it takes a woman to know a woman, and most of us know this is jut too much. She’s a bad example, she’s not qualified, and she’s wrong on the issues.  As important, she’s a setback for all of us who have worked so hard to strike the balance and advance the cause.

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Firing Because of Abortion is Illegal Gender Discrimination

Posted on January 12, 2009 by Ellen Simon

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

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