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

The U.S. Supreme Court has agreed to hear the appeal in Rent-A-Car, West, Inc. v. Jackson.

The question before the Court will be whether the district court is in all cases required to determine claims that an arbitration agreement subject to the Federal Arbitration Act (“FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision.

The pendulum in the U.S. Congress has certainly been swinging away from enforcement of mandatory forced arbitration provisions in the employment context.  It will be interesting to see what the Court does with this threshold issue.

You can find the opinion of the 9th Circuit being appealed from here.  

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Albertsons, LLC, a national grocery chain, will pay $8.9 million and furnish other relief to settle three employment discrimination lawsuits filed by the U.S. Equal Employment Oppor tunity Commission (EEOC), the agency announced today. The EEOC had charged Albertsons with race, color, and national origin discrimination and retaliation at its Aurora, Colo., distribution center. The monetary relief will be distributed among 168 former and current employees.

All three of the EEOC’s cases stemmed from incidents at the Aurora distribution center, which is being closed for unrelated reasons. The first case, EEOC v. Albertsons LLC, Civil Action No. 06-cv-01273, was filed in 2006 and alleged a pattern or practice of workplace harassment and discrimin ation based on race, color and national origin. According to the lawsuit, minority employees were repeatedly subjected to derogatory comments and graffiti. Blacks were termed “n-----s” and Hispanics termed “s---s,” among other offensive epithets.

The EEOC said the offensive graffiti included racial and ethnic slurs, depictions of lynchings, swastikas, and white supremacist and anti-immigrant statements. The graffiti in a commonly used men’s room was so offensive that several employees would relieve themselves outside the building or go home at lunchtime rather than use the restroom. Some of this graffiti remained for years until the restroom was remodeled in 2005.

The EEOC also charged that minority employees were given harder work assignments and were more frequently and severely disciplined than their white co-workers. According to the EEOC, managers were aware of, and even participated in, the harassment and discrimination.

The second lawsuit, EEOC v. Albertsons LLC, Civil Action No. 08-cv-00640, was filed in 2008 and alleged a pattern or practice of retaliation. The EEOC alleged that dozens of employees complained about the discriminatory treatment and harassment and were subsequently given the harder job assignments, were passed over for promotion and even fired as retaliation.

The third case, EEOC v. Albertsons LLC, Civil Action No. 08-cv-02424, was also filed in 2008 and alleged race discrimination on behalf of a single African American employee at the distribution center who was terminated.

Source: EEOC Press

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 We previously discussed the journey of the Franken Amendment through the halls of Congress.  (The Amendment would prohibit the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.)

This weekend, the amendment was signed into law by President Obama.  This means that most military contractors will no longer be able to enforce mandatory arbitration clauses in their employment contracts under a provision signed into law over the weekend.

The issue has been a high priority this year for trial lawyers and for consumer groups.  When speaking candidly, most employment lawyers would agree that clauses mandating the use of arbitration deny employees an impartial hearing in open court.  Supporters of forced arbitration argue that the process is both fair and efficient.  

The open question is whether the passage of the Franken Amendment will lead to an effort next year by Congress to outlaw forced arbitration of civil rights claims throughout the private employment context.  

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Late last month, Representative Jerry Nadler (D-NY), along with original cosponsors Hank Johnson (D-GA), Bobby Scott (D-VA), Bill Delahunt (D-MA), Sheila Jackson-Lee (D-TX), Judy Chu (D-CA), Michael Michaud (D-ME), Carolyn Kilpatrick (D-MI) and Judiciary Committee Chairman John Conyers (D-MI), introduced H.R. 4115, the Open Access to Courts Act of 2009. Although intended to accomplish the same purpose as the Notice Pleading Restoration Act of 2009, S. 1504, introduced in the Senate - to overturn Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and to restore the Conley v. Gibson notice pleading standard, the language of this bill is different than S. 1504. Here is the language that H.R. 4115 would add to chapter 131 of title 28, United States Code:

Sec. 2078. Limitation on dismissal of complaints
(a) A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

(b) The provisions of subsection (a) govern according to their terms except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section or by amendments made after such date to the Federal Rules of Civil Procedure pursuant to the procedures prescribed by the Judicial Conference under this chapter.

The House Judiciary Subcommittee on Courts and Competition Policy, chaired by Representative Hank Johnson (D-GA), followed up on the bill's introduction with a hearing on December 16, 2009. 

Source: NELA

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 One bill remains outstanding as a part of the final appropriations process for FY 2010 - the Department of Defense (DOD) appropriation - the bill to which the Franken Amendment was attached. The Franken Amendment would prohibit the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.

On Wednesday, December 16, 2009, very significant progress on DOD Appropriations - and on the Franken Amendment - was made. Most important, a somewhat revised Franken Amendment was included, as Section 8116, in the bill that emerged from the Conference Committee. The House has passed the conferenced bill, along with amendments relating to short-term extensions of unrelated bills. The bill is currently before the Senate for final action.  It is expected that the Senate will concur with the House version.

Source: NELA

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

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

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

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

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

Read the story here.

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The National Law Journal has a good article this morning by Robert Niccolini regarding the ongoing split in the circuits on the issue of so-called "cat's paw" theory of liability in employment discrimination cases.  Under the "cat's paw" theory,  an employer can be held liable for discrimination when a final decision-maker is influenced to take an adverse action against another worker by a lower-level employee with discriminatory motives. 

Employment lawyers are hoping the U.S. Supreme Court will resolve the current conflict in the federal circuits over the theory.  On Nov. 9, the Supreme Court asked the solicitor general for the government's views on the case of Staub v. Proctor Hospital, which raises the cat's paw theory. The Court is considering whether to hear the case. 

Read the whole National Law Journal Story here.

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County Attorney Andrew Thomas issued a press release this week announcing that his office has filed the state’s first employer sanctions case, a civil complaint against an employer accused of violating the Legal Arizona Worker’s Act. The civil action alleges that a Scottsdale company allegedly hired illegal labor deliberately by using a “subcontractor” which was in reality an employee who was not authorized to work in the United States.

According to the release, in January 2009, the Maricopa County Sheriff’s Office made a number of identity theft arrests after learning illegal immigrants were employed at the business. The civil complaint alleges that an illegal worker who voluntarily returned to Mexico returned to Arizona and created a company to provide services and labor solely for the the charged company. The complaint alleges that the company, which was formed in April 2009, was established to circumvent the Legal Arizona Worker’s Act. 

You can read the entire press release here

Many states are either implementing or contemplating similar laws so this case will be an interesting one to keep an eye on.

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 Yet another example of an employee believing that his statements published for the world to see online are somehow anonymous or not subject to his employer's scrutiny.  

The Huffington Post this week has the story of a school employee lost his job after he posted a one-word vulgarity in the comments section of an online article at the St. Louis Post-Dispatch.  The school employee posted an anonymous, one-word comment that referred, in vulgar terms, to a woman's anatomy on a newspaper's comment section.  An editor from the paper tracked the IP address for the comment to a school district computer and sent the district the information (perhaps with the thought that a student needed to be warned against using the school computer lab for such activities).  The district's IT department used that information to track down the sender, which turned out to be an employee.

Said employee is, as a result, no longer gainfully employed.  You can read the entire story here.

I've said it before and I'll say it again, don't post something online that you wouldn't want your momma to read.

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