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

Last Friday Texas Governor Rick Perry vetoed HB 950, a bill to prevent wage discrimination against women. The bill had been passed through the Texas House and Senate with bipartisan support.

The bill would have made Texas’ equal pay act more closely mirror the federal Lilly Ledbetter Act. Under federal law, the act’s 180-day statute of limitations restarts every time a pay check is issued. Under Texas law, however, the 180-day statute of limitations to bring suit runs only from the time of the original pay decision.

Gov. Perry suggested that at least one of his reasons for vetoing the bill was that federal law already provides women protection from wage discrimination. However, as the bill analysis points out, the state and federal laws regarding equal pay should be uniform so that consistent laws govern relationships between employees and employers, avoiding confusion. Additionally, the bill analysis points out that the time and cost involved in proceeding in federal court may be more than in federal court.

Read More:

• Dallas Morning News
• Houston Chronicle

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Dear Governor Perry:

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In the article, In denial: Corporate America’s blindness to gender discrimination the author, Jonathan A. Segal, makes some good points regarding the continued presence of gender discrimination in the workplace. The article points out that business risks, just like legal risks, come hand-in-hand with gender discrimination. “How can a company expect to survive, let alone thrive, if half of the talent pool is excluded from key positions?”

But the legal implications are certainly serious. Despite the fact that the Supreme Court threw out a gender bias class action suit against Wal-Mart(WMT) in 2011, discrimination class actions continue to be filed. In the wake of the Supreme Court’s decision, we are seeing more carefully worded class action complaints. We are also seeing smaller classes, where settlements may be “only” in the hundreds of millions rather than in the billions of dollars. So, it’s fair to expect more gender bias class action suits against employers. Why aren’t more employers doing more to change their practices?

The authors also points out that he believes that one of the problems with gender discrimination is that people tend to think that it is happening at someone else’s business, not theirs.

“We all know there is unconscious bias. It’s just others who have it. We all know there are Boys’ Clubs. It’s at the company next door. It’s hard for many people to believe that their organization could have a Boys’ Club. That they could be part of a Boys’ Club is inconceivable because it is inconsistent with how they see themselves.”

While it may be inconsistent with how most executives see themselves, it is completely consistent with the fact that the senior management teams of most large companies are still overwhelmingly male.

Unfortunately, discrimination is a problem that can never be fully eliminated until it is acknowledged by everyone. This holds true not just for gender discrimination, but for all types of discrimination. Businesses and their employees should strive for a diversity of people and ideas to be as successful as possible.

Read the entire article here.

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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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 Texas Longhorns sports fans may have more to watch next fall than football. The university may be dealing with a high-profile sexual discrimination lawsuit from its former women's track and field coach. Last week the coach (Bev Kearney), through her attorney, filed a complaint against UT with the federal Equal Employment Opportunity Commission and the Texas Workforce Commission alleging racial and gender discrimination, as well as retaliation.

The EEOC has 180 days to investigate Kearney's claim before she can sue UT, which her lawyer, Derek Howard, reportedly told the San Antonio Express News she intends to do. That would mean you could expect such a lawsuit to be filed any time form mid-September through the end of the year.

In the meantime, UT employees — including in the athletic department — could be subject to questioning by the EEOC. The coach's lawyer has indicated he has knowledge of “in excess of 10” inappropriate relationships between UT staffers and subordinates. He said such relationships are “part of the culture” at UT and that none of the staffers involved have been subject to the same treatment Kearney received when the school discovered last fall she'd had an affair with a student-athlete in 2003.

If this is true it would certainly bolster Kearney's claims. Title VII and its state counterpart, the TCHRA, both forbid discriminating against employees on the basis of sex. One way to establish such discrimination is to show that other employees (presumably of the opposite gender) in very similar circumstances to that of the plaintiff were disciplined less harshly for substantially similar conduct.

Either way it seems that this Fall could be full of excitement for the UT athletic department...just not the variety sports fans were hoping for.

Read More: San Antonio Express News

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The Justice Department and the Equal Employment Opportunity Commission (EEOC) have reached a settlement with the Texas Department of Agriculture (TDA) and the Texas General Land Office (GLO) to resolve allegations that both state agencies discriminated against employees on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.

The Justice Department’s complaint, filed in the U.S. District Court for the Western District of Texas, alleges that the TDA and GLO, as successors in interest to the now-defunct Texas Department of Rural Affairs (TDRA), violated Title VII when the TDRA discriminated against three female TDRA program specialists on the basis of their sex by paying them significantly less than their male counterparts for performing essentially the same work. The complaint further alleges that when the TDRA ultimately acted to address the salary disparities between its male and female employees who were doing comparable work, it increased the women’s salaries but did not raise them to the same level as those of their male counterparts. According to the department’s complaint, TDRA also did not retroactively compensate the women for the prior undervaluing of their salaries. The EEOC’s complaint contends that these same actions by the TDRA violated the Equal Pay Act.

The Justice Department’s complaint also alleges that the three women were subjected to retaliation when they were terminated from their employment as a consequence of their opposition to the pay disparities.

Under the terms of the settlement agreement, which resolves both the Justice Department and EEOC complaints, the TDA and GLO will pay a total of $175,000 in back pay to the three female employees. Under the settlement, the TDA and GLO agree to maintain employment policies, practices and procedures that comply with all federal laws and regulations, including Title VII and the Equal Pay Act, and will educate and train their employees on these laws and provisions. Finally, as part of the settlement, the TDA and GLO provided their anti-discrimination policies to the Justice Department and EEOC for review and comment.

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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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Previously, we noted here that the U.S. Supreme Court had granted certiorari in Vance v. Ball State University, et al. and agreed to decide who is a “supervisor” for the purposes of employer liability under Title VII. More specifically, the question presented is:

Whether, as the Second, Fourth and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh and Eighth Circuit have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

The Supreme Court heard oral arguments in the case on November 26, 2012. Arguing in favor of the more expansive view of “supervisor,” counsel for Vance argued that the limited Seventh Circuit rule doesn’t fit with the realities of the workplace. Notably, counsel for Ball State stated that he did not think that “the Seventh Circuit test is the complete answer to the question of who may qualify as a supervisor.” This is notable because because Ball State Counsel’s failure to argue in favor of the Seventh Circuit test meant that no one presented arguments in favor of the Seventh Circuit test. Instead, counsel for Ball State argued that the alleged harasser did not qualify as a supervisor under either of the standards.

Here’s why this case is important: If the Supreme Court takes the same view as the First, Seventh, and Eighth Circuits, then the definition of “supervisor” for the purposes of Title VII employer liability is more limited and it will be much harder for employees to successfully prove their discrimination claims. If the Supreme Court takes the more expansive view being advocated, it would likely be easier for those such as Vance, who was allegedly harassed by those with authority to direct and oversee her work but did not have the power to “hire, fire, demote, promote, transfer, or discipline,” to prove discrimination under Title VII.

The predictions regarding the outcome of this case have varied. Jon Hyman of Ohio Employer’s Law Blog predicts that the Court will go with the Seventh Circuit’s bright-line rule. You can read his prediction here. Meanwhile, Michael Russell of The Firing Squad blog predicts (here) that the Court will adopt a “case-by-case test that will give great deference to the trial courts in making these decisions.” Given the weak facts in this case, my opinion is that the Court should not decide this case at all. This case simply does not do a good enough job presenting the facts of such a case to make it fully ripe for review. However, as seen by the various predictions, anybody’s guess is as good as mine regarding what the Court is likely to do.

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Canada.com reports a jury on Wednesday awarded a former Walmart assistant manager $1.46 million — more than she had requested — for six months of mistreatment she suffered at the hands of a Windsor store manager three years ago.

A Walmart lawyer, meanwhile, reportedly called the award “perverse” and said outside court that he believes it will be overturned on appeal.

Meredith Boucher, 42, successfully argued that she was subject to profane and insulting mental abuse from May to November 2009 from Jason Pinnock, 32, then the manager of the east-side Walmart store, including being called “a (expletive) idiot” and being made to count skids in front of others to prove she could count.

The jury of three men and three women, who decided that Boucher was constructively dismissed — in other words, forced out through abusive treatment — awarded her: from Walmart, $200,000 for intentional infliction of mental suffering, $1 million for punitive damages, and $10,000 for assault; and from Pinnock, $100,000 for intentional infliction of mental suffering, and $150,000 for punitive damages. She received nothing for alleged sexual harassment and discrimination.

Read the full article at canada.com.

Hat tip: Stewart Rudner

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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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On August 31, 2012, the Texas Supreme Court decided in Prairie View A&M University v. Chatha that the federal Lilly Ledbetter Fair Pay Act of 2009 does not apply to a claim brought under the TCHRA. What this means is that under Texas law, unlike under federal law, the time that an employee alleging unequal pay has to file a charge of discrimination does not restart with every paycheck. Instead, an employee alleging unequal pay under Texas law must file a charge of discrimination within 180 days after learning of the alleged discriminatory pay decision. According to the Court, any paychecks received after learning of the alleged discriminatory pay decision are “merely consequences of past discrimination and do not constitute an unlawful employment practice under the TCHRA.”

Before the Ledbetter Act was passed, the time to file a charge alleging pay discrimination under Title VII did not restart with every allegedly discriminatory paycheck. Now, after the Ledbetter Act, each allegedly discriminatory paycheck that an employee receives starts the time to file an EEOC charge over again. While the Texas Supreme Court sometimes uses federal law to interpret the TCHRA, it declined to do so in Prairie View A&M University v. Chatha because the TCHRA and Title VII are not analogous with respect the statute of limitations issue.

Because the Texas Supreme Court declined to incorporate the federal law into the TCHRA, it is now up to the Texas Legislature to pass a version of the Act. Until that happens (if ever), those wishing to file a charge of discrimination under the TCHRA alleging unequal pay must act quickly and file a charge within 180 days of learning of the alleged discriminatory pay decision.  This is, of course, rarely possible because employees are unlikely to learn that they are being paid less than men in the same position so quickly.  The Court acknowledged this fact.  It also acknowledged and claims to affirm the long-standing principle that Texas courts should look to federal law for guidance in interpreting the TCHRA.  Unfortunately, the Court then failed to do so in this case, holding that this principle only holds true when state law is "analogous" to federal law.  

Chief Justice Jefferson filed a dissenting opinion, joined by justice Lehrmann.

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The sex scandal that recently erupted at Lackland Air Force Base in San Antonio, Texas has had wide-reaching implications for those involved. Just this past month, Col. Glenn Palmer was removed from command of the 737th Training Group. According to the San Antonio Express-News, while a military spokesperson does not implicate Palmer in the scandal, the Air Force decided that the unit at the center of the scandal would benefit from new leadership.

Previously, Staff Sgt. Luis Walker had been sentenced to 20 years in prison. This sentence came after Walker was convicted of rape and sexual assault in a military proceeding under the Uniform Code of Military Justice. The rape and sexual assaults were of female recruits who were part of the training program at Lackland Air Force Base.

Thousands of military trainees move through Lackland Air Force Base’s training every year. Male instructors, such as Staff Sgt. Walker, are alleged to have sexually harassed and assaulted female recruits that were at Lackland Air Force Base as part of the training program.

Just like any employer, the Air Force should ensure that its instructors and trainees are aware of the ramifications of sexual harassment in the workplace. Further, victims of sexual harassment should feel free to report such conduct without fear of retaliation.

Source: SA Express News

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 A federal jury in the District of Columbia has awarded $3.5 million to a former public pool lifeguard who says she was sexually harassed by a supervisor.

The plaintiff claimed she was fired from her job at the Takoma Aquatic Center in 2006 after reporting the harassment to multiple supervisors. She claimed the firing, which included sexually suggestive comments, came in retaliation for her complaints.

In addition to awarded $3.5 million, the jurors also presented the judge with a set of recommendations, including that the D.C. Department of Parks and Recreation review its sexual harassment policies for employees and train them on preventing the problem and better responding to a complaint.

The verdict will likely be reduced dramatically due to the application of statutory damages caps that jurors are not allowed to be informed about.

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How does an employment lawyer get in the "Batman" spirit?

The only thing that is a little disheartening is that this PSA could still be applicable today.

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EEOC discrimination Charges have recently been filed against Walmart in 48 states by approximately 2,000 current and former female employees claiming pay and promotion discrimination.  These women are among those who made up the historic class action suit that was thrown out by the U.S. Supreme Court in 2011.  Montana and Vermont are the only states where charges were not filed. 

These charges come after the U.S. Supreme Court reversed class certification in Dukes v. Walmart last year. That suit was originally filed in 2001 on behalf of up to 1.5 million female Walmart workers. The U.S. Supreme Court reversed class certification because the Court found that the female employees did not have enough in common. Walmart will now have to fight this battle on several thousand fronts instead of just one. Because the female employees have filed charges with the EEOC, they may pursue individual lawsuits despite the reversal of the class certification in Dukes v. Walmart. It appears as though counsel for the female employees will now pursue regional class actions across the country. Women in the Texas and California regions have already filed class actions in federal court in October 2011 and an expanded class action was also filed in Texas federal court in January 2012. More regional suits are expected to follow.

Counsel for the women point to the large number of charges filed across the country as evidence of the widespread discrimination by Walmart.

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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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Houston appellate lawyer Ruth Piller filed a complaint with the Equal Employment Opportunity Commission against her former employer, Houston's Hays, McConn, Rice & Pickering, where she worked for nine years.

In the EEOC complaint, Piller alleges the firm discriminated against her on the basis of her gender and her neurological disorder-related disability; subjected her to a "sexually hostile work environment"; and retaliated against her. Specifically, Piller alleges the firm terminated her in October 2011 and failed to accommodate her disability; members of the firm's management, led by shareholder Staton M. Childers, harassed her with emails that included Photoshopped images of Piller's face on a naked body covered with sushi and on a body in a men's room holding a tape measure as an unidentified man uses a urinal. 

Her complaint reads in part:

"Hays McConn, through its male management committee, instituted, nurtured, and encouraged a culture among its male attorneys of exposing female partners and associates alike to a systematic, long-term, sexually hostile, gender degrading culture designed to remind and enforce the idea among its female lawyers that Hays, McConn is a men's club and the women are second-class citizens," 

Read the complaint here.

Read the full article at Law.com.

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According to a report in the Sioux City journal, a federal jury in Sioux City has awarded a woman nearly $900,000 for sexual harassment and retaliation by her former employer.

Following a 7-day trial, Jurors on Wednesday found that Mindy Gilster had been sexually harassed by her supervisor and was subjected to retaliation as a result of filing complaints and her lawsuit against her employer.  Gilster alleged that her supervisor harassed her by making inappropriate comments about her appearance, pressing his body against her on one occasion and propositioning her.  She alleged that following her complaints, she was given a poor job review and denied a raise before she was fired in February 2011.

The jury award includes $600,000 in punitive damages, $240,000 for past and future emotional distress and $30,150 in back pay and medical expenses.

Read more here. 

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This week a former physician assistant in the cardiac unit of a Sacramento hospital was awarded $168 million in damages for workplace harassment.  The report is in the Los Angeles Times.  The verdict is believed to be a record amount in the US for any single worker. The plaintiff, Ani Chopourian, filed at least 18 complaints over two years before getting fired.

A few examples of the defendant's conduct: One surgeon's way of saying good morning was to declare, "I'm horny" and give her a slap on the butt, she said. Another liked to demean her Armenian heritage and would ask whether she belonged to al-Qaeda.

Not surprisingly, the defendant, Mercy General Hospital, plans to appeal.

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 A federal judge in Houston has the employment law community up in arms over his ruling that “firing someone because of lactation or breast-pumping is not sex discrimination.”  The ruling in EEOC v. Houston Funding seems to fly in the face of the obvious fact that treating a woman different than men due to concerns about lactation is clearly discriminating on the basis of sex.  The Court, apparently not recognizing this obvious fact, stated its opinion succinctly as follows:

"She [the plaintiff] gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination."

This statement is, of course, absurd.  Current law clearly protects pregnant women from being fired simply because they are having a child, and also protects against discrimintion against "pregnancy-related conditions."  How a court can come to the conclusion that lactation is not pregnancy-related simply boggles the mind.

Virtually every legal commentator and blogger that I have seen discuss the case has called out this decision as being clearly wrong.  Some are already calling for Congress to take up the issue and "fix it."  However, my friend, defense lawyer and fellow blogger, John Hyman makes the excellent point that while this case is obviously incorrect, it is likely just an aberration by a judge that simply got it wrong this time.  He is correct of course.  Calls for remedial legislation may be a bit premature at this point. This bad decision may very well be corrected on appeal.  Additionally, this decision will have no precedential effect as this is only a trial court ruling and it is very unlikely to be followed by other courts around the country.  The vast majority of judges are likely to understand that lactation is, in fact, pregnancy related and that discrimination based on lactation is sex discrimination because [NEWS FLASH] only women can do it.

Read More:

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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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Four months after the Supreme Court through out their national class-action lawsuit, lawyers representing the many, many, many women who claim that Wal-Mart Stores has discriminated against them filed a new lawsuit last week.  The suit seeks to make its way past the some of the obstacles set in the women's path by the Supreme Court by narrowing their claims to the California stores of the retail chain.

See our previous coverage of the Supreme Court's opinion throwing the women's claims out here.

The original case involved class of approximately 1.5 million women.  The Supreme Court through the case out largely on the argument that such a large group of women could not be shown to have enough in common with their claims to make a class action appropriate.  The class in the new 2.0 lawsuit is limited to approximately 90,000 women.  The Supreme Court did not rule on the merits of the case, nor did it preclude class actions consistent with its new guidelines and standards.  

One of the Lead lawyers representing the women, Brad Seligman, said

“We’re back. This case and the fight for justice for the women of Wal-Mart are not over. The complaint filed against California Wal-Mart is well within Supreme Court guidelines and we are determined to see that California Wal-Mart women employees who have been waiting up to 11 years for justice finally get their day in court.”

Class counsel expect to file additional cases around the country in the coming months. Information about filing claims can be found at www.walmartclass.com.

Named California Plaintiffs are current Wal-Mart Stores, Inc., employees Betty Dukes, a 17-year employee who works at a cashier/greeter in a Contra Costa County Wal-Mart, and Christine Kwapnoski, a 25-year employee who works as an assistant manager in a Contra Costa County Sam’s Club, a division of Wal-Mart.  Ms. Dukes was the lead plaintiff in the original 1.0 Wal-Mart class action case as well.

Related Links:

• Lawsuit Complaint
• New York Times Article Regarding the Filing
• Press Release from lead counsel firm, The Impact Fund
• Profiles of the Representative Plaintiffs

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Daily Update for October 18, 2011

• SCOTUS grants cert on federal employment jurisdiction issue

  Yesterday the US Supreme Court granted certiorari in Elgin v. The Department of the Treasury, which raises the issue of whether the Civil Service Reform Act precludes federal district court from having jurisdiction over constitutional claims for equitable relief brought by federal employees. Read the entire story at LawMemo.com.

• Connecticut Becomes First State to Mandate Paid Sick Leave

  While many employees do enjoy some form of paid sick time, the law does not mandate that any paid sick leave be granted to employees… at least until now. Connecticut’s paid sick leave law (Senate Bill 913, Public Act 11–52) is set to become effective on January 1, 2012. The law will make Connecticut the first state to mandate paid sick leave for employees. You can read Jeffrey Mogan’s complete analysis of the new law at the Connecticut Labor & Employment Law Journal. Will other states follow?

• Romney Legal Advisor Robert Bork: Women 'Aren't Discriminated Against Anymore'

  Last August, former Massachusetts Gov. Mitt Romney announced former Supreme Court nominee Robert Bork as the co-chair of his "Judicial Advisory Committee." Bork's selection was a clear sign that, if elected, Romney will appoint hard right justices with little regard for how the Constitution protects ordinary Americans. Bork once described the federal ban on whites-only lunch counters as "unsurpassed ugliness." He believes that the government is free to ban contraception outright. And in a recent interview, he stated that he doesn’t believe that the 14th Amendment should protect women because they aren’t discriminated against anymore. Elections have consequences - every woman in the U.S. (and any man that cares about the rights of women) should think really hard about whether Mitt Romney is who they want picking judges in this country. Read the whole story here.

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Arizona Logistics, Inc. doing business as DSI Arizona, and its management company, Norlyn Enterprises, Inc., agreed to pay $175,000 to five former employees and to implement preventive measures as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

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Former Texas Southern women's basketball coach Surina Dixon has won a federal lawsuit against the school in which she alleged gender discrimination and retaliation for her 2008 firing.

A jury awarded Dixon $730,000 on Friday.  Statutory damage caps may reduce that amount.

Dixon was hired under a four-year contract by TSU in March 2008 and fired three months later without being allowed to coach a single game after she complained about illegal pay practices at the university.  Her salary was roughly half that of her mail counterpart - a violation of federal law. 

Dixon is now a high school teacher in Memphis, Tenn.

According to an article in the Houston Chronicle, TSU issued a statement and is still denying any wrongdoing whatsoever.  Obviously the school just doesn't get it despite the apparent facts of the case and jury's decision.  I can only take from their statement that they plan to continue efforts to discriminate against their female employees.  

Perhaps a shakeup in TSU's administration is in order.  

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Today, the Supreme Court blocked a class action sex discrimination lawsuit against Wal-Mart on behalf of women who work there.

As I predicted here, the court ruled that the lawsuit cannot proceed as a class action, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages.

The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher, salaried position. Wal-Mart's position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.

In June 2001, the lawsuit began in U.S. District Court in San Francisco. The plaintiffs seek to represent 1.6 million women, including all those who work or have previously worked in a Wal-Mart store since December 26, 1998. In June 2004, the federal district judge, Martin Jenkins, ruled in favor of class certification under FRCP 23(b)(2). The Ninth Circuit affirmed the class certification. Wal-Mart appealed the decision to the Supreme Court.

Today's ruling from the Supreme Court means that each member of the class will need to obtain a lawyer to represent her and pursue her claim individually against the retailing behemoth.  Undoubtedly, many or most will be unable to do so and will therefore never get their day in Court.

Links: 

• SCOTUS Opinion
• Previous Article with Links to Briefing and Oral Argument

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 In what may be a record-breaking award to a single plaintiff in a sexual harassment case, a federal jury in East St. Louis, Ill., yesterday awarded $95 million to a former employee of Aaron's Inc. Of that amount, $15 million was compensatory and $80 million was punitive damages.

The plaintiff said an Aaron's store manager made suggestive comments, touched her inappropriately and sexually assaulted her. Although she complained to a supervisor and called an Aaron's hotline, she said, the rent-to-own retailer allegedly took no action.

Not surprisingly, the company plans to appeal what it calls a "runaway jury" verdict.  

Read the full story here.

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Dukes v. Wal-Mart Stores, Inc., an ongoing sexual discrimination lawsuit, is the largest civil rights class action suit in United States history. It charges Wal-Mart with discriminating against women in promotions, pay, and job assignments in violation of Title VII of the Civil Rights Act of 1964.

The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher, salaried position. Wal-Mart's position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.

In June 2001, the lawsuit began in U.S. District Court in San Francisco. The plaintiffs seek to represent 1.6 million women, including all those who work or have previously worked in a Wal-Mart store since December 26, 1998.  In June 2004, the federal district judge, Martin Jenkins, ruled in favor of class certification under FRCP 23(b)(2). The Ninth Circuit affirmed the class certification.  Wal-Mart appealed the decision to the Supreme Court. 

Yesterday, the SCOTUS heard oral arguments in the case. 

Links:

• Transcript of the Oral Argument
• Audio of the Oral Argument [Usually posted within a week or so]

Links to Court Filings:

• Brief for Petitioner Wal-Mart Stores, Inc.
• Brief for Respondent Betty Dukes
• Reply Brief for Petitioner Wal-Mart Stores, Inc.
• Ninth Circuit's Opinion Below

Links to Background Materials and Analysis:

• Links page to most of the briefing in the case from Impact Fund website
• SCOTUSblog Analysis
• LawMemo Blog Analysis
• Workplace Prof Blog Analysis
• Ohio Employer Law Blog Analysis
• Lawffice Space Analysis
• New York Times: "Supreme Court to Weigh Sociology Issue in Wal-Mart Discrimination Case"

Prediction:  Close call but I'm going to predict a victory for Wal-Mart on this one. 

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The Harvard Social Statistics Blog has an abstract of an article that sounds interesting.  The title of article is “Female Socialization: How Having Daughters Affect Judges’ Voting on Women’s Issues”

  Here is the abstract:

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     Facebook COO Sheryl Sandberg looks at why a smaller percentage of women than men reach the top of their professions -- and offers 3 powerful pieces of advice to women aiming for the C-suite.

     Long before Sheryl Sandberg left Google to join Facebook as its Chief Operating Officer in 2008, she was a fan. Today she manages Facebook’s sales, marketing, business development, human resources, public policy and communications. It’s a massive job, but one well suited to Sandberg, who not only built and managed Google’s successful online sales and operations program but also served as an economist for the World Bank and Chief of Staff at the US Treasury Department.

     Sandberg’s experience navigating the the complex and socially sensitive world of international economics has proven useful as she and Facebook founder Mark Zuckerberg work to strike a balance between helping Facebook users control privacy while finding ways to monetize its most valuable asset: data. 

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The Houston Chronicle is reporting that the EEOC has issued a determination finding that a female Houston firefighter was subjected to a hostile work environment based on gender and also suffered retaliation at the hands of the Department.  The EEOC report, released Monday, says Jane Draycott found racial and sexual slurs scrawled on her locker after she complained about workplace conditions in 2009. Another firefighter's locker was also defaced, according to the report.

The fire department has denied allegations of sexual harassment, gender discrimination and retaliation, the report said. Those responsible for the vandalism have not been found.

Read the entire story.

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 Today, the Supreme Court agreed to take a case in which it will decide whether the largest employment discrimination lawsuit in U.S. history should be allowed to go to trial.  The sex discrimination case, which comes up from the Ninth Circuit, is based on a claim that Wal-Mart pays women less than men and promotes men more frequently than women.

The case involves billions of dollars in back pay for .5 to 1.5 million women who work or used to be employed by Wal-Mart. Wal-Mart is the world's largest private employer. The primary issue in the case is whether the class of plaintiffs is just simply too large to be effectively managed by the Court.  The case will be closely watched because it will likely affect other class-action lawsuits.

Links:

• Read the rest of the story here.
• And here is the Ninth Circuit Opinion being appealed by Wal-Mart.

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Five women who worked at an Indianola toy company allege in lawsuits that a co-worker and supervisor subjected them to graphic sexual comments, touching and other harassment.

According to the lawsuits, female workers were routinely referred to as "luscious lips," "babe" and far more explicit names. The two male employees accused of committing the harassing conduct allegedly talked about the size of their genitals and posted drawings of female breasts around the office.

Read the entire article here.

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 A federal jury on Monday found that the U.S. unit of Swiss drug maker Novartis AG engaged in a "pattern or practice" of discrimination against its female employees. 

Following a six-week trial, the jury issued a verdict ordering the company to pay a class of women employees $3.3 million in compensatory damages.  On Tuesday, the jury awarded $250 million in punitive damages against the company.  

The lawsuit on behalf of about 5,600 current and former women employees alleged that while working for Novartis, they were systematically denied promotions, paid less and subjected to differential treatment.

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The Equal Employment Opportunity Commission has been ordered to pay $4.5 million in attorney fees to a Cedar Rapids trucking firm that the agency sued more than two years ago for allegedly sexually harassing female drivers, a federal judge ruled earlier this week.

The award comes from U.S. District Judge Linda Reade. She rejected claims by the federal Equal Employment Opportunity Commission that CRST Van Expedited Inc. subjected women to sexual harassment and improper touching when they were paired with male drivers in sleeper-cab trucks for long-haul truck driver training.

The judge ruled in October that she was dismissing the "poorly prepared case" because doing otherwise "would ratify a 'sue first, ask questions later' litigation strategy on the part of the Equal Employment Opportunity Commission."  In her February 9, 2010 order and opinion, Judge Reade held that an award of substantial fees to CRST as the prevailing party was warranted because EEOC, among other things, acted unreasonably by suing CRST without first conducting the proper investigation required by law. “The EEOC’s failure to investigate and attempt to conciliate the individual [female driver] claims constituted an unreasonable failure to satisfy Title VII’s prerequisites to suit."

Ouch!

Read More:

Article from the Des Moines Register

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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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MSNBC has an interesting article out this past week called "Where ‘omg, u look gr8’ can land you in court" in which they look at the evolution of sexual harassment in the modern workplace. 

Welcome to the new sexual harassment. It's (usually) not about the stuff you see on Mad Men, and it's not chasing the secretary around the desk. . . . [It is more subtle now.] Those subtle areas can include everything from flirtation at a company party to a complimentary text message or an unwelcome invitation to discuss the latest project over dinner or drinks.

The article also has some discussion about the implications of the use of social media (Twitter, Facebook, etc) and the fact that it is somewhat easier to misconstrue an instant message or cell phone text message than it is a verbal statement. 

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The University of Phoenix has agreed to pay a former employee $32,500 as part of a settlement of a discrimination claim that has been made public by the EEOC. The University settled the discrimination claim brought by Latrish Elaine Tarhini, who worked as enrollment counselor at the school’s Houston campus.

The EEOC and Tarhini claimed that University of Phoenix management said she would not be in line for a promotion because she made an earlier pregnancy discrimination charge against the Phoenix-based company and its parent, Apollo Group Inc. The EEOC filed suit against UOP in September 2008 in federal court, claiming the for-profit university violated retaliation statutes of the Civil Rights Act of 1964. It violates federal law to discriminate against workers who previously filed discrimination claims against their employers.

The University of Phoenix is a subsidiary of Phoenix-based Apollo Group Inc. (Nasdaq: APOL). It has 397,000 students enrolled in its online and campus classes. The school has 200 campuses worldwide.
 

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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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Here is an indication that the courts' previous reluctance to read Title VII as providing protection to the transgendered may be starting to weaken.  The price tag for a recent U.S. District Court of the District of Columbia transgender Title VII case: $491,190.80; Schroer v. Billington, 1:05-cv-01090-JR (D.D.C. April 28, 2009).

You can find more excellent analysis on this case at the Lawffice Space Blog.

Hat Tip to Ross Runkel for linking to the article.  

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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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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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In Paul v. Northrop Grumman Ship Systems, the Fifth Circuit Court of Appeals decides that a jury need not be bothered with a sexual harassment case because, after all, the supervisor only groped the the plaintiff once. 

Here is the Court's description of the relevant facts of the case (which for the purposes of this summary judgment motion must be accepted as true): 

Paul [the plaintiff] alleges that, on that day, Barattini walked up to her until his chest
was touching hers, thus “chesting up” to her breasts in a thirty-second
confrontation. As Paul attempted to separate herself, he stared at her in a
hostile and intimidating manner. Paul then walked away toward a narrow ship
passageway, but Barattini followed her.  He forced his way through the door
ahead of her, and, in doing so, placed his hand on her stomach and ran his arm
around her waist. As he squeezed past her in the passageway, he allegedly
“rubbed his pelvic region across [her] hips and buttocks.” According to Paul, the
incident lasted a total of approximately a minute and a half, and occurred in the
presence of another supervisor who did not intervene.

In response, the employer eventually terminated the supervisor in question.  But that didn't decide the case.  No, the Fifth Circuit decided that there was not question of fact here and that the harassment described was not egregious enough to be actionable as a single event. 

The applicable law states that “To affect a term, condition, or privilege of employment, the harassment must be sufficiently severe OR pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

Interestingly the Court properly cites to the rule and even emphasizes the fact that the "severe or pervasive" element of the test is disjunctive.  Thus harassment need not be pervasive or continuing if it is severe.  The court then gives this plaintiff the boot, holding that as a matter of law, the groping described above was not severe.  Really?

Remember now, the court was not deciding whether Ms. Paul should win at trial.  No, the Court decided that she didn't even have the right to have a trial because they personally didn't believe that one incident of groping and pelvic rubbing was severe. 

So what should we call this new legal standard?  Michael Maslanka calls it the "One-Free-Grope Rule."  He also calls it unfair.  

I agree.   

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A story on PBS' news magazine "Now" really gripped me last week.   A shocking statistic—teenagers are in more danger from sexual predators at their part time jobs than through the Internet.  According to one estimate, 200,000 teenagers are assaulted at the workplace each year. It's a vastly underreported phenomenon, but some brave young women are stepping up publicly to tell their stories.

As an employment lawyer that deals with sexual harassment issues every day and as a father of two daughters myself, I found this story to be incredibly important.  Many young women that go into the workplace for the first time simply are not properly prepared to deal with sexually harassing situations.  They don't have the experience to immediately know that conduct is over the line and illegal. 

Employers need to be especially vigilant in preventing and stopping sexual harassment in the workplace when they routinely hire young people.  This issue impacts hundreds of thousands of teenagers across the country—many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line.  While teenagers may be old enough to legally work, they are in many ways still children.  Companies that fail to make sure they are not falling prey to illegal sexual harassment at work from co-workers or supervisors will pay a heavy price at the courthouse.  At least they will if I have anything to say about it.

I encourage you to watch the entire story below. 

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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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President Barack Obama signed the Lilly Ledbetter equal-pay bill into law today in front of cheering labor and women leaders.  Standing beside him was the plaintiff in the discrimination lawsuit that eventually led to the passage of the law, Lilly Ledbetter.

Obama, choosing the Lilly Ledbetter Fair Pay Act as the first bill to sign as president, called it a "wonderful day" and declared that ending pay disparities between men and woman an issue not just for women, but for all workers.

Background

In 1979 Lilly Ledbetter began work at the Goodyear Tire and Rubber Company in its Gadsden, Alabama location, a union plant. During her years at the factory as a salaried worker, raises were given and denied based on evaluations and recommendations regarding worker performance, as is typical. All merit increases had to be substantiated by a formal evaluation. In March 1998, after she received an anonymous note Ledbetter inquired into the possible sexual discrimination of the Goodyear Tire Company with regards to her being paid less than her male counterparts. In July she filed formal charges with the Equal Employment Opportunity Commission. In November 1998, after early retirement, Ledbetter sued claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.  The jury found for Ledbetter and awarded back pay and damages. Goodyear appealed, arguing that all claims to damages before September 26, 1997 were void due to the statute of limitations placed on discrimination claims.

By a 5-4 margin, the Supreme Court ruled in favor of Goodyear, holding that a person must file a claim of discrimination within 180 days of a company's initial decision to pay a worker less than it pays another worker doing the same job, regardless of whether the employee even learns of the discriminatory decision during this short time frame. 

Democrats, women's groups, labor groups, and even some Republicans ridiculed the Court's decision as obviously absurd.  For all practical purposes it eliminated any remedy for gender-based pay discrimination in the United States.  Some lower courts started to apply the same logic in other cases, ruling that disabled residents of an apartment complex had to sue to enforce ADA accessibility standards within 180 days of the building being built, even if they did not live there at the time.

The Lilly Ledbetter Fair Pay Act

 In 2007, several Democratic members of Congress introduced the Lilly Ledbetter Fair Pay Act, which revised the law to state that the 180-day statute of limitations for pay discrimination resets with each new discriminatory paycheck. The bill became an issue in the 2008 Presidential election campaign, with Barack Obama supporting the bill, and John McCain opposed to it. The plaintiff in the case, Lilly Ledbetter, appeared in campaign ads for the Obama campaign and had a speaking role at the Democratic National Convention.

Today, the bill became law.  The measure, which amends the 1964 Civil Rights Act, also applies to discrimination based on factors such as race, religion, national origin, disability or age.

More Information

Here are some links to additional information, audio and video:

• Supreme Court's opinion in Ledbetter v. Goodyear Tire & Rubber Co. (docket 05-1074)

• Nina Totenberg NPR Story covering today's signing

• Here is a video of the signing ceremony:

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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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Yesterday the Supreme Court heard argument in Crawford v. Metropolitan Government of Nashville, in which the issue 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.

Here is a humorous excerpt from the argument of Eric Schnapper, counsel for the employee that in addition to being funny, really gets to the heart of one of the most important issues in the case:

   JUSTICE GINSBURG:  "But why are we -- why are we spending so much time on hypotheticals that are so far from this case?  This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony.  She wasn't saying: I'm against harassment.  She said: This boss harassed me.  It is about as specific as you get.  So we're dealing with a particular case of somebody who was a witness in an internal investigation.  Why do we have to reach the outer boundaries of this claim in this case?"
    MR. SCHNAPPER:  "You do not, Your Honor."
    CHIEF JUSTICE ROBERTS:  "Well, but, you know, that's why we ask hypotheticals that aren't related to the specific facts, because we're interested in how broadly the proposition you're asking for goes.  I'd still like to find out where you draw the limit.  What if the person says: Mr. Jones would never do anything like that, but if he did that would be terrible.  Now, is that actionable as opposition?"
    ***
    JUSTICE BREYER:  "Is this a real problem?  I mean, let's suppose the opposition clause protects everybody in the internal investigation who could be at all interpreted as favorable to the complainant.  It also protects everybody who could possibly be viewed as neutral.
    "Then you have a problem about what about a person who loves sexual harassment?  This is the hypothetical: he comes in, testifies: I love sexual harassment; it's wonderful, and they fire him.  Now is this a real problem?
    MR. SCHNAPPER:  "It -- it is not, Your Honor.  But -- but as the -- as the Chief Justice pointed out, I'm -- you know, I'm here to answer hypothetical questions, and I'm going to do so."
    JUSTICE GINSBURG:  "But I thought that --"
    [Laughter.]

You can read the entire transcript here.

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A former Army Special Forces commander passed over for a job as a terrorism analyst at the Library of Congress because he was changing genders won a discrimination lawsuit. Judge James Robinson of Federal District Court ruled that the Library of Congress had engaged in sex discrimination against Diane Schroer of Alexandria, Va., formerly known as David Schroer. The library was initially enthusiastic about the hire, Judge Robinson said in his decision, adding, “The library revoked the offer when it learned that a man named David intended to become, legally, culturally and physically, a woman named Diane.” Ms. Schroer sued in 2005 alleging sex discrimination under the Civil Rights Act. Judge Robinson will decide on the penalties in the case later.

Source: New York Times

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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

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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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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Last week a New York Knicks coach Isaiah Thomas was found liable for sexual harassment against a former colleague. The jury awarded $11,000,000.00 in damages against the team's owner and its chairman.

Madison Square Garden, which owns the Knicks, and MSG president James Dolan were ordered to pay the amount to Browne Sanders for allowing her to work in an actionable hostile environment. Ms. Sanders filed her lawsuit in January 2006, alleging that management failed to act despite her repeated complaints against Thomas' behavior. When Browne Sanders threatened to sue, the company suspended her and then fired her when her accusations were deemed groundless.

Following the verdict, Thomas insisted he was innocent, stating "I want to say it as loud as I possibly can. I'm innocent. I'm very innocent. . . . I'm extremely disappointed that the jury could not see the facts ... and I will appeal." The problem for Thomas and the Company, of course, was what Thomas had previously stated during his sworn deposition. Here is a clip:

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The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

Title VII's pregnancy-related protections include:

• Hiring

  An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.

• Pregnancy and Maternity Leave

  An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

  If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.

  Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

  Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

• Health Insurance

  Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. An employer need not provide health insurance for expenses arising from abortion, except where the life of the mother is endangered.

  Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.

  The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.

  Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

• Fringe Benefits

  Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.

  If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.

  Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

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