Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

The EEOC has released a series of helpful videos regarding various issues relating to discrimination in the workplace but they can be a little difficult to locate so we thought we would start posting them here as well.  This week EEOC Attorney, Robert Canino, discusses some important issues relating to harassment in the workplace.

 

 

The only thing that I would add to Mr. Canino's comments is this: If you believe you are being unlawfully harassed, don't hesitate to contact a board certified employment lawyer.  Even if your situation does not present a case that can be immediately filed in court, an employment lawyer can assist you evaluating your situation and advising you as to the most appropriate course of action to take to stop the unlawful harassment.

 

 

 

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On Friday, the Supreme Court granted cert in University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases.  In Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 268-69 (1989), the Supreme Court held that the discrimination provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), requires a plaintiff to prove only that discrimination was "a motivating factor" for an adverse employment action. In contrast, in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179-80 (2009), the Court held that the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, 81 Stat. 602, requires proof that age was "the but-for cause" of an adverse employment action, such that a defendant is not liable if it would have taken the same action for other, nondiscriminatory reasons.

The courts of appeals have since divided 3- 2 on the question of whether Gross or Price Waterhouse establishes the general rule for other federal employment statutes, such as Title VII’s retaliation provision, that do not specifically authorize mixed-motive claims.

The question presented in Nassar is stated by the Court as follows:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

Read More: Supreme Court's Docket Page for University of Texas Southwestern Medical Center v. Nassar

 

 

 

 

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 Reading a recent article authored by Kerri Lynn Stone and published by Florida International University's Legal Studies Research Paper Series.  The article discusses the growth of the so-called "stray-remarks" doctrine from a its beginning as a relatively narrow idea to its current state - a tool used too often to ignore summary judgment evidence and turn the burden of proof at the summary judgment stage of a case on its head.

Here is the abstract:

A decision maker repeatedly used the word “boy” when addressing two African-American employees, who then did not receive a promotion for which they had applied. A Puerto Rican doctor whose employer did not renew her contract proffered testimony that her employer's Director of Clinical Services said, “‘Dominican doctors were better’ than ‘the other physicians who were there, who were Puerto Rican.”’ In each case, despite the fact that a jury rendered a verdict for the plaintiff, the court held that the comments were insufficient as a matter of law to evince employment discrimination. 

Significantly, in each of these cases, the court used an increasingly amorphous and insidious doctrine called the “stray comments” or “stray remarks” doctrine to wholly or partially devalue what was alleged to be probative evidence. The United States Supreme Court looks to have unwittingly created this doctrine in a decision over twenty years ago, and it has operated since then, unchecked and hardly discussed, to aid courts in holding that a revealing or indicative comment that an employment discrimination plaintiff proffers is insufficient as a matter of law (as opposed to merely a matter of fact) to prove the discrimination alleged. Moreover, courts have interpreted the word “stray” to mean different things, including, but not limited to, too far removed in time, too out of context, and too isolated, as a matter of law, to permit a plaintiff's case to go forward or to sustain a jury verdict.

This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the designation “stray,” with some courts using it to deem evidence to be circumstantial rather than direct (and thus invariably insufficient), and other courts using it to deem potentially viable evidence worthless as a matter of law.

This Article argues that the stray comments “doctrine” does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later.

This Article draws attention to a phenomenon that, used unsparingly over two decades ago, has grown unfettered into a grave problem for employment discrimination plaintiffs. It calls for a much-needed return to an adjudication of employment discrimination cases that comports with the summary judgment standard and factors in all potentially relevant evidence, construing all facts in the light most favorable to the non-movant, who usually is the plaintiff.

 

You can download the full text of the article here.  I commend it to your reading.

 

 

 

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This blog's humble author is quoted in a Law360 story today about the dubious distinction Texas has as the state responsible for more EEOC Charge filings than any other state:

"More federal workplace discrimination charges were filed in Texas than in any other state in 2011, with 10 percent of all charges nationwide lodged there, according to state-by-state data released by the U.S. Equal Employment Opportunity Commission on Monday.

The EEOC received a record 99,947 charges of discrimination during the 2011 fiscal year, which ended Sept. 30, and of those, 9,952 charges were brought in Texas, the agency said.

* * * * 

While the sheer size of Texas' population is most likely a factor in the state's position as the one with the most charges, it is not the only factor, attorneys say. Population size alone can't account for why Texas' number would trump that of another populous state like California, attorneys told Law360.

“Many states like California have a robust state-level agency that provides protections for workers, but in Texas the agency provides very little, so more of that work has to be shouldered by the federal government rather than the state,” said San Antonio-based attorney Christopher J. McKinney of The McKinney Law Firm PC, who represents employees and select employers.

Management-side attorney Ron Chapman Jr. of Ogletree Deakins Nash Smoak & Stewart PC agreed that the state agencies' activity level likely accounted for the number of charges being higher in Texas than in California. ..."

 Read the entire story at Law360.

The statistics really are quite damning for Texas. Texas accounted for a full 10% of all national EEOC charge filings, and 15% of the country’s religion and national origin charges. That's pretty deplorable. 

Followup: 

Link to the EEOC Chart of Charge Filings by State

 

 

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

 

 

 

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The EEOC has filed suit against the Texas Roadhouse Restaurant franchise, alleging that the business intentionally discriminated against older workers (those over 40 years old) in its hiring practices.  The company allegedly rejected applicants for jobs as waiters and bartenders by telling them things like, "We think you are a little too old to work here." It needed greeters, it said, but only "young, hot ones who are 'chipper'." 

The EEOC alleges that its statistical analysis shows that only 1.9 percent of so-called 'front of the house' employees (greeters, waiters, bartenders, etc.) at Texas Roadhouse are aged 40 or older.

ABCNEWS has the complete story here (includes video).  In its report, ABC reports that the EEOC has had an increase in age discrimination complaints during the current economic downturn. In November, EEOC hearings on the impact of the economy on older workers found that workers 55-and-up spend far more time searching for work than do younger workers and are jobless far longer. Older workers have suffered "the longest spell of high unemployment" seen in the past 60 years.

Dallas employment lawyer Michael Kelsheimer writes about the same case this month on his Texas Employer Handbook blog.  In his thoughtful piece he discusses the fact that, despite what many may think, discrimination is real and there is still a substantial amount of it out there.  He writes:

Before I got involved in employment law, I was naive enough to believe that discrimination was largely a thing of the past. I was flat wrong. Even with all the hype, sex and race discrimination are still out there. They are hidden better these days, but these types of discrimination are still there.

He notes that in his personal experience, age discrimination is the most prevalent form of discrimination he sees and he discusses why he thinks that his.  Kelsheimer posits that much of the very real discrimination out there against workers over 40 may be unintentional - but that it won't matter when it comes to facing a jury trial.  

For my part, I am not as willing to believe that employers don't know what they are doing when they hire a 25-year-old with little experience over a 40-year-old with plenty.  But then, my viewpoint has been altered from the years I have spent working with clients who have had their lives devastated by discriminatory firings.  

In any event, Kelsheimer's article is a good one and I encourage you to give his blog a look.

 

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Here is a link to today's Employment Law Daily - Now hosted at paper.li

 

 

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The EEOC has filed a federal lawsuit, charging Universal Toyota with age discrimination, claiming it refused to allow salespeople older than 40 to sell Scions — a vehicle typically sold to younger drivers. Universal Toyota is part of San Antonio billionaire Red McCombs' dealership chain.  

 In the lawsuit, the EEOC seeks unspecified back wages, including any potential commissions and bonuses, on behalf of at least four former salespeople who allegedly weren't allowed to sell Scions.

Continue Reading...

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   In Dediol v. Best Chevrolet Inc., the Fifth Circuit holds for the first time that it will recognize ADEA harassment claims, and concludes that the facts were bad enough to support not only a claim for age-based harassment, but constructive discharge as well.  

"A plaintiff advances such a claim by establishing that (1) he was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer."

Continue Reading...

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My good friend Mike Maslanka has an excellent post up this week analyzing the Fifth Circuit's stringent standard in failure-to-hire/promote cases.  Most recently, in Moss v. BMC Software, Inc., the  Fifth Circuit rejected the age-based failure-to-hire claim of a 68-year-old applicant who was passed over for a job in favor of a less-qualified younger substantially younger applicant.

As is often the case, the Court starts out by denying that it requires the plaintiff to show that "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face."  It then uses precisely this standard in upholding summary judgment against the plaintiff - thus preventing this case from ever being heard by a jury.  The court even goes so far as to stated that it doesn't matter if the plaintiff was clearly better qualified. What matters is whether the applicant's background "was a better fit for what the employer was looking for in the job." 

Obviously the Fifth Circuit's opinion in Moss is a thinly-veiled end-run end-run around the U.S. Supreme Court's 2006 rejection of its "Face-Slap" standard and reinstituting the same (or arguably an even harsher) standard again.

Check out Mike's entire post here. 

 

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The Equal Employment Opportunity Commission is looking at getting an extra $23 million dollars to help tackle the growing backlog of cases at the at the agency. 

According to the National Law Journal, the 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would funnel those additional millions to the EEOC to help the agency get a handle on more than 70,000 unresolved discrimination complaints. 

The article reports that the resource-starved EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination. 

Meanwhile, the agency has watched staffing levels shrink 25% in recent years under the last administration, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators. 

The EEOC has always had a chronic problem with not being adequately funded.  While this new funding won't totally rectify the situation, the move should be welcomed by both employers and employees.  Regardless of outcome, it is in everyone's best interest for EEOC investigations to be resolved in as short a time frame as possible.  

 

Read the story here.

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The New York Times had a really excellent article last week about how difficult it is in this country for seniors who need a job.  Nearly half a million workers 65 and older want to work but cannot find a job — more than five times the level early this decade and this group’s highest unemployment level since the Great Depression.

The situation is made more dire because of numerous recent trends: many people over 65 have lost their jobs as seniority protections have weakened, and like most other Americans, a higher percentage of them took on debt than in previous generations.

The expectation once was to pay off your 30-year mortgage before you retired, or come close. Instead, the level of indebtedness among older Americans has risen faster than in any other age group, partly because so many obtained second mortgages to take money out of their homes.

You can read the entire article here.

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All the focus these past few weeks as been on the Supreme Court's Decision in Ricci v. DeStefano because of its connection to Supreme Court nominee Sonia Sotomayor.  However the Ricci decision will, in my opinion, only have a limited effect on the legal landscape.  The fact pattern in Ricci is one that just isn't likely to come up all that often.  (My opinion on this could change, of course, if political forces start pushing public employers towards more affirmative action efforts.)

What seems to have been lost in all the Ricci coverage, however, is the Supreme Court's decision in Gross v. FBL Financial Services.  Gross is an extremely important case addressing general burden of proof issues applicable to ADEA cases.  As it will likely affect far more people than Ricci, I think it deserves a bit more coverage than it has gotten. 

In a nutshell, the Supreme Court's ruling in Gross made it extremely difficult for workers to prove claims that they were the targets of workplace discrimination because of their age.  The employee won a jury trial under an ADEA "mixed-motive" instruction, which allowed the jury to find liability based on age being "a motivating factor" in the decision.  On appeal, the Eighth Circuit reversed the case and held that an employee could only use the mixed-motive instruction in cases where there was so-called "direct evidence" (think smoking gun evidence such as a memo reading "I hate old people." from the manager) of age-related decision making.

The Supreme Court didn't really decide the issue at hand at all.  Instead it went beyond what the employer originally sought in the appeal and issued an opinion holding that is always up to the worker to prove that age was the decisive factor in the action taken by the employer.  In other words, proving that age was a "motivating factor" is insufficient; an employee must always prove that age was the but-for cause of the termination. 

The Court has rightfully, in my opinion, received quite a bit of criticism for going beyond what the original issues were in the appeal in an effort to cut the legs out from under the ADEA.  While it may seem like an arcane quibble, to lawyers it is a pretty important point.  For a variety of very sound reasons that I won't go into here, it is just something that appellate courts aren't supposed to do.  If you are someone that is aggravated by so-called "activist" judges, this opinion should make you crazy.  It doesn't get much more activist than this.  One commentator recently put it this way:

The decision is noteworthy, and not just because the court went out of its way to slap down age claims. It's unique because it went further than the facts presented or what the lawyers for the company were seeking. It was like you sue to keep your neighbor from putting up an encroaching fence and the court awards you the deed to his house.

Here are my take aways from the Gross opinion:

• The Court has signaled that it does not like mixed-motive analysis and, given an opportunity, might seek to reverse its prior precedent in Title VII discrimination cases.
• The Price Waterhouse mixed-motive standard will not be extended by the Court to other areas: Title IX, Title VII retaliation cases, 1983 cases, etc. 
• Greater venue shopping will likely occur in age cases as employees may choose to file cases in state court rather than federal court.  Many state's age discrimination statutes are based on Title VII interpretation rather than the ADEA and thus should still utilize the mixed-motive analysis. 
• Congress now has an open invitation to address this issue and make it clear what the burden of proof should be in all discrimination and retaliation cases.

Useful links:

• Supreme Court's Opinion
• Eight Circuit Court of Appeals Opinion
• Petitioner's Brief
• Respondent's Brief
• Transcript of Oral Argument
• National Employment Lawyer's Association's Amicus Brief
• Society for Human Resources Management Amicus Brief

Not Quite as Useful Link:

• Link to my previous article on this case while it was still at the EighthCircuit.  I all but called the Eighth Circuit out in the street for a fight and predicted that the Supreme Court would take the case and reverse the decision below because it was "militantly wrong."  Well, I was right!  The Supreme Court did take the case and they did overturn the decision of the Eighth Circuit.  But I was right in a completely wrong sort of way.    My mama always told me to be careful what I wished for.  Guess I should have listened. 

 

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The EEOC has scheduled a public hearing Wednesday, July 15, 2009, at 10 a.m. (Eastern Time), at agency headquarters, 131 M St, NE, Washington, DC., to discuss age discrimination in employment.

In a release, the agency states that, in light of widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions, such a hearing is advisable.  At the hearing, experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.

The meeting is open for public observation of the Commission’s deliberations. Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. 

Unfortunately, the hearing is not be webcast so its usefulness, in my opinion, is somewhat limited.

Additional information about the hearing, when available, will be posted at http://www.eeoc.gov/abouteeoc/meetings/index.html

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 According to reports, President Obama has chosen Judge Sonia Sotomayor of a Federal Court of Appeals based in New York as his nominee for the Supreme Court.  If confirmed, she will become the Court's first Hispanic Justice.  

Judge Sotomayor as authored numerous opinions on civil rights and employment law issues.  Recently her opinion in Ricci v. DeStefano (2009) has been getting a great deal of attention as it is currently on appeal to the Supreme Court.  Ricci concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court is currently considering the case, and Justice Anthony M. Kennedy is the likely swing vote. Among the questions in the case is whether the law should treat diversity in the work force differently from diversity in the classroom.

Related Links:

• Live video of Pres. Obama's Announcement at 10:15 a.m. ET

• NY Times Profile of Judge Sotomayor

• Wall Street Journal Profile of Judge Sotomayor

• NY Times listing of previous decisions of Judge Sotomayor

 

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The Employee Rights Advocacy Institute For Law & Policy and Public Citizen have completed a National Study of Public Attitudes on Forced Arbitration.  The release is no doubt an effort to support the Arbitration Fairness Act, which is currently in Congress.

The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners.

The survey of 800 likely voters nationwide found that:

• A solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.
• Similarly strong majorities (59%) support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.
• Even after voters hear arguments in favor of, and opposed to, forced arbitration, opposition to the practice holds firm. Just one-third of the electorate supports the practice.
• Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.
• Most Americans are unaware of the rights being taken away from them. Approximately two-thirds cannot remember seeing anything about forced arbitration in either Terms of Employment or Terms of Agreement for goods and services.

Here is a link to the study materials.

Here are more materials on the current version of the Arbitration Fairness Act.

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"No one ever says, 'You're old; we don't want you.' They say, 'This may require some lifting. Are you capable?' " said Paul Westgate, who's 58 and says he was laid off from his job as repairman at an Attleboro, Mass., plant that makes manufacturing equipment. The questions make little sense to him, because in his field, ladders and lifting are "almost a thing of the past," and the job is primarily technically oriented, he said, adding, "I can still do my thing." He says, "They want experience, but they want an experienced 30-year-old."

The Wall Street Journal has a good article out this week discussing recent statistics that show age discrimination claims rising at a dramatic rate.  The Equal Employment Opportunity Commission has issued a report showing that age-discrimination allegations by employees are at a record high, jumping 29% to 24,600 filed in the year ended Sept. 30, up from 19,100 in 2007. Overall employment discrimination complaints are also at a record high -- up 15% to 95,402 complaints -- but the most dramatic increase was in the age-related complaints according to the EEOC.

According to the FY 2008 data, all major categories of charge filings in the private sector (which includes charges filed against state and local governments) increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges. The surge in charge filings may be due to multiple factors, including economic conditions, increased diversity and demographic shifts in the labor force, and possibly employees’ greater awareness of the law.

The dramatic increase in age claims is not completely surprising.  It may make a certain financial logic in that companies may be targeting older workers in layoffs because the senior staffers are generally the highest paid and have the most lucrative benefits.  However, it can also be one of the most financially devastating forms of discrimination.  Older workers fired at the peak of their earning potential often find it impossible to find comparable work for comparable pay. 

Here is a link to the EEOC's statistics.

 

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In a set back for unionized employees, the Supreme Court holds in a 5-4 decision ( 14 Penn Plaza LLC v. Pyett, No. 07-581 (April 1, 2009)) that where a collective bargaining agreement clearly and unmistakably assigns statutory discrimination claims to arbitration, the employee in the bargaining unit loses the right to proceed with an individual civil action and is left with arbitration as his or her only remedy.

The Plaintiffs in this case were members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multi-employer bargaining association for the New York City real estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.

The Union initially requested arbitration under the CBA, but after the initial hearing, withdrew the age discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36, forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims.

The Supreme Court held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. With Justice Clarence Thomas writing for the majority and joined by Chief Justice John G. Roberts and Justices Anthony G. Scalia, Anthony M. Kennedy, and Samuel A. Alito, the Court reasoned that ,here, the arbitration provision was a "bargained-for exchange" in the collective bargaining agreement and thus should not be interfered with by the courts. The Court went on to state that because the ADEA itself did not mandate such interference, the arbitration provision should be enforced.

Justice John Paul Stevens wrote a separate dissenting opinion. He noted that the majority opinion was a departure from Supreme Court precedent with respect to arbitration clauses in collective bargaining agreements. He went on to state that it was it was Congress' responsibility to reassess the policy arguments favoring arbitration rather than for the Supreme Court to decide. Justice David H. Souter also wrote a separate dissenting opinion and was joined by Justices Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. He reemphasized that Supreme Court precedent did not preclude the pursuit of an ADEA claim because of an arbitration provision in a collective bargaining agreement, as in this case.

--------------------------

My take: In reality, this still leaves unionized employees in a better position than those without union representation.  Most non-union employees have absolutely no choice as to whether discrimination claims will be forced into arbitration.  In most states, a company can simply maintain an arbitration policy for its employees and force them to agree to same in order to continue employment.  At least in the case of unionized employees, workers can negotiate with the company, through their union, and either not agree to arbitration clauses or at least get some other concession or compensation in exchange for giving up the "right" to trial by jury.

 

More info:

• Supreme Court's Opinion

• Transcript of Oral Argument

 

 

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The Los Angeles Daily Journal is reporting that President Obama has selected Thomas Saenz to head the civil rights division at the Department of Justice.

Saenz, 42, the former vice president of litigation for the Mexican American Legal Defense and Educational Fund in Los Angeles, is currently serving as counsel to Los Angeles Mayor Antonio Villaraigosa.

As yet, this is not confirmed by anyone at DOJ. 

Hat Tip: WSJ Law Blog

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The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court

The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.

"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."

This is certainly not news to those of us that work in the employment law trenches day in and day out.  Employment law is a different animal than most other types of cases that courts have to deal with.  Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken.  This has led to some pretty tortured legal tests and summary judgment standards across the country.  And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases.  I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases. 

The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore.  I think this may be going overboard a bit.  Employment cases are certainly not for the faint of heart but they are winnable. 

One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists.  This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal. 

Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law.  Employment cases are nothing like personal injury cases.  In my opinion, this is not an area of the law where lawyers should "dabble."  The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner. 

Source: WSJ Blog

Hat Tip: Ross Runkel

 

Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case.  Watch for it.

 

 

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Barack Obama has nominated California Democratic Rep. Hilda Solis as his labor secretary.  Solis, the daughter of two Hispanic immigrants, has been in Congress since 2000.  She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.

Solis received her degrees from California State Polytechnic University, Pomona and the University of Southern California and worked for two federal agencies in Washington, D.C. She was elected to the California State Assembly in 1992 and to the California State Senate in 1994. She was the first Hispanic woman to serve in the State Senate, and was re-elected there in 1998. She became known for her work toward environmental justice and was the recipient of the John F. Kennedy Profile in Courage Award in 2000.

Solis is well-liked by labor.  Service Employee International Union ("SEIU") President Andy Stern hailed the nomination of Solis: 

"As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.

From the streets of Los Angeles where she marched with the janitors who were fighting for jobs with dignity that can support a family through SEIU's Justice for Janitors campaigns, to the halls of Congress where she has been an outspoken supporter of healthcare rights for all, a livable minimum wage, and workers' right to come together for a voice on the job, Hilda Solis has never backed down from the good fight to make the American Dream available to all."

You can find Congresswoman Solis' Homepage here.  It has links to her statements and bills that she is attached to. 

The Associated Press quoted Randy Johnson, vice president for labor issues at the U.S. Chamber of Commerce, with regard to what the response of business groups would be to her nomination: "There’s a new sheriff in town, but they’ll still have to deal with the business community, and they know it.  We would hope she will continue to support programs that help educate employers about voluntary compliance with the law rather than pursue heavy-handed enforcement.”

 

Sources: AP, Wikipedia, SEIU Press Release

 

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Workplace Prof Blog as a good initial analysis of the Supreme Court's oral argument in Crawford v. Metropolitan Government of Nashville last week. 

The issue in the case is whether and to what extent Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

The appeal arose out of a case between Vicky Crawford and her longtime employer, the Metropolitan Government of Nashville and Davidson County, Tenn. ("Metro"). In late 2001, Metro hired Gene Hughes to oversee employment relations for the area school district, a job requiring him to investigate all claims of discrimination and harassment. In the ensuing months, however, Hughes himself became the subject of sexual harassment complaints from numerous female employees.  During a subsequent internal investigation, Metro officials asked Crawford - who worked under Hughes but had not previously reported any offensive conduct on his part - whether she had observed Hughes engaging in any inappropriate behavior. Crawford replied that Hughes had repeatedly grabbed his crotch in front of her and asked to see her breasts, and on one occasion forcefully pulled her head toward his groin.  The investigation resulted in no disciplinary action against Hughes. But upon its conclusion, according to Crawford, she and other female employees who testified to Hughes’ conduct were fired on other grounds. Crawford, who had worked as a payroll coordinator for more than 30 years, filed a complaint with the Equal Employment Opportunity Commission and, after receiving notice of her right to sue, accused Metro of violating the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.  [Synopsis Source: ScotusWiki]

As noted by Workplace Prof, the oral argument in the case did not give an absolutely clear indication as to how this case will come out.  This is a classic policy case in which either the interests of employees who participate in internal investigations and/or oppose illegal harassment will be penalized by a limitation on the protection provided to them by the statute or employers will find themselves in a perceived Catch-22 in which they are required to investigate claims of harassment by previous Court decisions but in doing so they potentially create an entire class of potential future retaliation plaintiffs against them.

I also agree with Workplace Prof that Justice Scalia's disdainful comments regarding attorneys that represent employees in such disputes.  Here is the exchange in question.  

 

CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if you lose you pay not only your attorneys' fees but the complainants'. If you win, you have to incur yours. . . . I'm not saying it shouldn't be. But in terms of the pressures towards settlement, it is a very strong incentive.

JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain costs.

MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee basis except for hard costs.

JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring these cases because they'll be accused of doing all kinds of bad things. They don't want their reputations ruined. They have lawyers who take contingent fees because they have to pay for it. Oh the other hand, you have problems with your costs and you have problems dismissing people who should be dismissed. Everybody has problems in this area. That's why we have law and lawyers. They try to minimize it. This doesn't seem fruitful to me.

JUSTICE SCALIA: Isn't it true that financially it is always cost-free for the plaintiff because she has an attorney who is taking it on a contingent basis? Now, you could say it's not cost-free to the lawyer; but even that's not always true because if the lawyer has nothing else to do he may as well be doing this, you know, whatever the odds are.

MR. YOUNG: I agree with that, Your Honor.

Justice Scalia's obvious disdain for employees and the lawyers that would represent them is truly reprehensible.  As an attorney that represents both employees and employers in such matters, it has always been my experience that very few employment-related lawsuits are frivolous.  Does this mean that the plaintiff is always right or always has a good case?  Of course not.  But the disputes are almost always legitimate and deserve to be treated by both attorneys and judges with the same respect that would be shown to any other litigants who come to the judicial system to resolve a dispute.

In the meantime, the best thing that we can say about Justice Scalia is that his name appears on so few majority opinions.

 

 

 

 

 

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As promised, here is additional information regarding what each of the presidential candidates plans to do with regard to workplace and HR issues.  This information is taken directly from the candidates' respective campaign websites without any editing or alteration whatsoever.

John McCain

John McCain is calling for National Commission on Workplace Flexibility and Choice. This Commission would bring together a bi-partisan set of leaders representing workers, small and large employers, labor, and academics.  The Commission would make recommendations to the President on how modernizing our nation’s labor laws and training programs can help workers better balance the demands of their job with family life and to enable workers to more easily transition between jobs.

The Commission would examine the following issues that John McCain believes are important to workplace flexibility and choice:

• Modernizing the nation’s labor laws so that they allow for more flexible scheduling arrangements
• Ensuring that the nation’s labor laws don’t get in the way of working at home
• Promoting telework so that workers can spend less time commuting
• Making health more portable so that workers don’t lose their benefits when they switch jobs
• Ensuring that workers can choose retirement plans that best suit their needs
• Providing workers with more choice in job training assistance so that they can build the skills they need for new and better jobs

Barack Obama

Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.

• Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
• Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
• Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
• Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
• Create New Job Training Programs for Clean Technologies: The Obama plan will increase funding for federal workforce training programs and direct these programs to incorporate green technologies training, such as advanced manufacturing and weatherization training, into their efforts to help Americans find and retain stable, high-paying jobs. Obama will also create an energy-focused youth jobs program to invest in disconnected and disadvantaged youth.
• Improve Transition Assistance: To help all workers adapt to a rapidly changing economy, Obama would update the existing system of Trade Adjustment Assistance by extending it to service industries, creating flexible education accounts to help workers retrain, and providing retraining assistance for workers in sectors of the economy vulnerable to dislocation before they lose their jobs.
• End Tax Breaks for Companies that Send Jobs Overseas: Barack Obama believes that companies should not get billions of dollars in tax deductions for moving their operations overseas. Obama will also fight to ensure that public contracts are awarded to companies that are committed to American workers.
• Reward Companies that Support American Workers: Barack Obama introduced the Patriot Employer Act of 2007 with Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) to reward companies that create good jobs with good benefits for American workers. The legislation would provide a tax credit to companies that maintain or increase the number of full-time workers in America relative to those outside the US; maintain their corporate headquarters in America if it has ever been in America; pay decent wages; prepare workers for retirement; provide health insurance; and support employees who serve in the military.
• Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
• Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
• Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
• Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

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Barack Obama recently spoke at some length regarding his views regarding labor and workplace issues.  The video of his remarks is included below.  Leave a comment and tell us what you think.

P.S. I am looking for video of McCain addressing work-related issues and will post it up as soon as I find it.   

 

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An Ohio jury recently awarded the largest verdict in Ohio history -- $46.7 million -- to a man who they said was wrongfully fired last year.  This is the largest employment verdict I have seen, possibly ever. 

Ronald Luri, 55, accused Republic Services Inc. of retaliation and of forging documents critical of his job performance after he refused to fire three of his employees -- all about 60 years old -- on the grounds that such actions would constitute age-discrimination.

The jury awarded Luri $3.5 million as compensation for his lost wages as general manager of Republic's Cleveland division, and $43.1 million in punitive damages as punishment for the company's treatment of Luri.

The jury also ordered Republic to pay Luri's attorneys' fees, which could run into the millions of dollars and will be determined by Judge Bridget McCafferty.

Several of the jurors said they were especially dismayed by testimony of evidence-tampering and actions taken by Luri's superiors to prevent him from obtaining new employment in the Cleveland area after his firing.

Even after Luri was fired on April 27, 2007, he didn't file the wrongful termination and retaliation lawsuit until after Republic enforced a one-year non-compete clause that prevented him from working at a local competitor.  The jurors reportedly felt that the company blocked every opportunity for the plaintiff to get another job and left with with little choice but to sue.

Reportedly, the jurors said the key piece of evidence was an email penned by the plaintiff's boss.  The Plaintiff presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of the Plaintiff's job performance two weeks after he filed the lawsuit.

Republic is in the process of a merger that will make it the second largest waste-collection company in the country. It employs 13,000 workers in 21 states, and had $3.2 billion in revenue last year.


Hat Tip: Ohio Employer's Law Blog

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The Supreme Court issued two important decisions this week regarding whether retaliation claims may be brought under 42 U.S.C. s 1981 and the ADEA section dealing with federal employees. 

Gomez-Perez v. Potter, No. 06-1321 (U.S. May 27, 2008) - The plaintiff in Gomez-Perez alleged that after she complained about age discrimination at her federal employer, she was retaliated against in various ways.  She challenged that retaliation under the Age Discrimination in Employment Act (ADEA).  The issue was whether the portion of the ADEA that deals with federal employers, which was silent as to this issue, impliedly created a protection for federal employees against retaliation.  The Court held that such a cause of action did exist in such circumstances.


CBOCS West Inc. v. Humphries, No. 06-1431 (U.S. May 27, 2008) (Section 1981) - Similarly in the CBOCS decision, the Court found an implied protection against retaliation under the Section 1981 reconstruction era race discrimination statute. 

Frankly I was pleasantly surprised by the these decisions given the fight that was had over similar issues under Title IX a few years ago and the intervening change in the Court's membership. 

Here is some more analysis from around the employment-law blogosphere:

• George's Employment Law Blog
• Jottings of an Employers Lawyer
• Workplace Prof Blog
• Developments in EEOC Law

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This week the Eight Circuit Court of Appeals issued a decision in Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008), ignoring the Supreme Court's opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

The issue has to do with the question of whether so-called "direct evidence" is still required in order to obtain a "mixed-motive" jury instruction.  The direct evidence standard was formulated by Justice O'Connor in her Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) concurring opinion.  Following Price Waterhouse, many circuits adopted this stricter standard of proof. 

In 1991, Congress amended Title VII to specifically provide for a mixed-motive rule.  In Desert Palace, the Court, including Justice O'Connor, clearly indicated that the distinction between requiring direct evidence (rather than circumstantial evidence) of discrimination prior to allowing a mixed-motive jury instruction was nonsensical.  The Court stated:

"The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence'"

Inexplicably, the Eighth Circuit goes out of its way to parse words with the Supreme Court and ignore the obvious intent of Desert Palace:

"The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse's interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination "because of" an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable."

The Eight Circuit is militantly wrong on this one.  This decision creates a clear split in the circuits (See Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004)) so perhaps the Supreme Court will take the opportunity to make this point even more clearly than they did in Desert Palace.  (Hard to see what they could do in this regard short of issuing an opinion in picture form.)

 

Update: Supreme Court Takes Me Out for a Walk.

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Scotus Blog reports that the U.S. Solicitor General has recommended the Supreme Court grant certiorari in case No. 06-1505, Meacham v. Knolls Atomic Power Lab, et al., limited to the question asking whether, under the Court's 2005 decision in Smith v. City of Jackson, an employee alleging disparate impact under the ADEA has the burden of persuasion in establishing "reasonable factors other than age."

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Mattenson v. Baxter Healthcare, No. 04-4270 (7th Cir. Feb. 21, 2006) - In reversing a jury verdict in favor of an ADEA plaintiff on multiple grounds, Judge Posner takes a moment to thoughtfully address the often-misutilized "stray remarks" theory, addressing a common mistake made by attorneys and the courts of appeals of several circuits:

Language in some judicial opinions suggests that prejudicial remarks are always to be excluded unless they are made by someone who had input into the decision to terminate (or take other challenged adverse employment action against) the plaintiff. E.g., Steger v. General Electric Co., 318 F.3d 1066,1079 (11th Cir. 2003); Wyvill v. United Companies Life Ins. Co.,212 F.3d 296, 304 (5th Cir. 2000). This language should not be taken literally, however. Hunter v. Allis-Chalmers Corp.,797 F.2d 1417, 1423 (7th Cir. 1986); Brewer v. Quaker State Oil Refining Corp., supra, 72 F.3d at 333-34. The admissibility of "stray remarks," as the cases call them, is governed by Rule 403 of the evidence rules, which establishes a standard rather than a rule--and a standard that tilts in favor of admissibility; the probative value of the evidence must not merely be outweighed, it must be substantially outweighed, by its negative consequences, to be excludable. And that will depend on context--the circumstances in which the remarks were made, such as the number of similar remarks, when they were made, and by whom and to whom they were made. Cummings v. Standard Register Co., supra, 265F.3d at 63; Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d344, 356-57 (6th Cir. 1998).

 

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