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

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

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

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

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

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

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

Here are my take aways from the Gross opinion:

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

Useful links:

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

Not Quite as Useful Link:

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

 

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The Supreme Court has ruled in Ricci v. DeStefano that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race.  In a 5-4 decision, the Supreme Court holds that throwing out the district's test results based on the racial distribution of scores is disparate treatment and that fear of a disparate impact lawsuit is not a valid defense to it under Title VII.

The case has received a great deal of media attention because one of the appellate judges decided the case at the appellate level was Supreme Court nominee Sonia Sotomayor.  However, in my first reading of the opinion I noted that the Court gave almost no discussion to the court of appeals' ruling.

The Ricci opinion joins an increasing number of 5-4 decisions coming from the Court.  Because of the current makeup of the Court, it really has all come down to what does Justice Kennedy think in most cases.  Here, Kennedy delivered the majority opinion of the Court. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justice Scalia and Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.

Here is a link to the full text of the opinion. 

Here is the full text of the Court's syllabus summary of the opinion:

New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials,alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.
Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34.
 

     (a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). Pp. 17–19.

      (b)  Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact li-ability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white.Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the re-medial actions were necessary. Richmond v. J. A. Croson Co., 488
U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the re-medial program is challenged in court by nonminority employees.” Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26.

     (c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34.                                                                                        

     (i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 26–28.

     (ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analysis of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ valid-ity. Pp. 28–29.

     (iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, bycertifying the test results, would necessarily have refused to adopt.Respondents’ three arguments to the contrary all fail. First, respon-dents refer to testimony that a different composite-score calculationwould have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that thecandidate weighting actually used was indeed arbitrary, or that thedifferent weighting would be an equally valid way to determinewhether candidates are qualified for promotions. Second, respon-dents argue that the City could have adopted a different interpreta-tion of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less dis-criminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results,§2000e–2(l). Third, testimony asserting that the use of an assess-ment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aidrespondents, as it is contradicted by other statements in the recordindicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) state-ments in the record. Pp. 29–33.

     (iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations andqualified for promotions. Discarding the test results was impermis-sible under Title VII, and summary judgment is appropriate for peti-tioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based onthe strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34.
530 F. 3d 87, reversed and remanded.

 

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A really interesting case out of the Fifth Circuit this past week: EEOC v. Chevron Phillips, No. 07-20661 (5th Cir. June 5, 2009).  The case is of interest for a couple of reasons.

First, any Fifth Circuit case that allows an ADA plaintiff to have a jury trial is to a degree notable for that fact alone.  In this case, the Court held that the plaintiff -- suffering from chronic fatigue syndrome ("CFS") -- presented a genuine issue of material fact about whether she was substantially limited in the major life activities of caring for herself, sleeping, and thinking.  My favorite sentence from the whole opinion is as follows:

"We conclude that sleeping and thinking are major life activities."

Whew!  Glad we cleared that up.

The Court went on in the opinion to give a bit of a tongue lashing to the magistrate judge that had awarded the Defendant summary judgment. 

"The magistrate judge, citing no authority, found that none of Netterville’s
impairments rendered her disabled because her CFS was “intermittent” and
because her impairments were “short-lived, non-permanent, and non-severe.” The magistrate judge, citing no authority, found that none of Netterville’s
impairments rendered her disabled because her CFS was “intermittent” and
because her impairments were “short-lived, non-permanent, and non-severe.”"

The Court took special note of the magistrate court having taken it upon itself to question the plaintiff under oath and grill the plaintiff regarding what it perceived to be discrepancies between deposition and affidavit testimony.

"[I]t bears noting that this procedure is unusual and arguably inappropriate at the summary judgment stage. The very fact that the magistrate judge questioned Netterville about perceived discrepancies between her deposition and affidavit tends to indicate that the magistrate judge was weighing evidence and resolving conflicts in the summary judgment evidence, and failing to give the plaintiff the benefit of all favorable inferences that could be drawn."

For those of you not familiar with summary judgment practice, this behavior by the magistrate is truly strange.  The purpose of a summary judgment is not to determine whether some evidence in the case should be believed over other evidence.  The fact that a federal magistrate thought this was a good idea and, perhaps more surprisingly, that neither side in the case apparently objected to the process is pretty surprising to say the least.  I am now very curious to learn if this type of practice is as rare as I assume it is or if it is more widespread.

More Info:

• Case Opinion

• Coverage: MMMGLawBlog

• Coverage:   Ross' Employment Law Blog

 

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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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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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Citigroup v. Bacon is not an employment case but it is a very important case for employment lawyers nonetheless, as we all do a fair amount of arbitration work these days. 

Following an arbitration panel's order that Citigroup Global Markets pay Debra M. Bacon $256,000 in damages and attorney's fees, Citigroup sought to overturn that award in the District Court. Finding that the arbitrators had "manifestly disregarded the law," the District Court vacated the award. Bacon then appealed to the Fifth Circuit.

The question presented on appeal was whether, under the Federal Arbitration Act, "manifest disregard of the law" remains valid, as an independent ground for vacating an arbitration decision, after the Supreme Court's decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1396, 1403 (2008). Hall, which was decided after the District Court issued its opinion in this case, unequivocally held that the 4 statutory grounds set forth in section 10 of the FAA are the exclusive means for vacatur of arbitration awards.  The Court held that Hall had effectively overruled Fifth Circuit case law recognizing "manifest disregard of the law" as a nonstatutory ground for vacatur.

What this means to practitioners is that it is now even harder to overturn an arbitration award, even when the arbitrator completely ignores applicable law (which happens more often than you might think).  Thus, under §10 of the FAA, courts are only permitted to vacate an arbitration award for four reasons. They are:

1. If the award was procured by corruption, fraud or undue means;
2. If there was evident partiality or corruption by the arbitrator;
3. If the arbitrator was guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced or;
4. If the arbitrator exceeded his/her powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.

Insufficient evidence or even wholesale disregard of evidence by an arbitrator is not a sufficient basis for a court to vacate an award.

As a result of this decision and many many like it, both individuals and large corporations are increasingly coming to the conclusion that arbitration is not a very good substitute for the normal judicial process.  The fact that there is no viable appeal mechanism even if an arbitrator blatantly disregards applicable law should serve as a strong warning to companies that are considering implementing or continuing binding arbitration procedures with regard to employment or other types of disputes.  Arbitration can appear appealing at first but the complete lack of checks and balances in the system can, and often does, leave one side or the other stuck to pay a costly award that 99 our of 100 lawyers would agree is wrong under the law.

That's where Citigroup now potentially finds itself in this case. 

 

More info:

• Opinion in Citigroup v. Bacon
• Opinion in Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1396, 1403 (2008)
• Oral Argument in Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1396, 1403 (2008)

 

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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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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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Last week the Supreme Court handed down a unanimous decision in favor of the plaintiff in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09). The Court held that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII. 

Title VII of the 1964 Civil Rights Act prohibits employment discrimination, including harassment, on the basis of race or sex. It also protects employees from retaliation for opposing any unlawful discrimination or participating in an investigation of unlawful discrimination "under" Title VII. The question presented in Crawford was whether this anti-retaliation provision protects employees who participate in an internal company investigation of alleged sexual harassment.The Court decided, 9-0, that yes such protection exists.  

Here is the syllabus summary of the decision:

In response to questions from an official of respondent local government(Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”(opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

Held: The anti-retaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to inquiries. Employers, how-ever, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 765, and Faragher v. Boca Raton, 524 U. S. 775, 807, hold “[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.

 

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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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Employee privacy in the workplace has become an increasing thorny issue over the last 10 to 15 years as the methods by which employees communicate with each other and the outside world have multiplied and become more complex.  It used to be that privacy issues at work had to do with whether an employee had an expectation of privacy in their workplace locker or on their phone conversations.  Now employers have to be concerned about blog postings, chat rooms, email, Twitter, instant messenger, etc. etc.  So where does an employees right of privacy end and an employer's right to make sure its employees are doing what they ought to be doing begin?  Your guess is as good as mine.  

A recent decision by the 9th Circuit Court of Appeals has provided a loud wake-up call to employers who wish to monitor employee communications. In Quon v. Arch Wireless Operating Co, Inc. et al., 529 F.3d 892 (9th Cir. 2008), the court held that the City of Ontario, Calif., violated the state and federal constitutional privacy rights of its police officers when it reviewed their personal text messages.

Importantly, the Court in this opinion did not find it persuasive that the company had a policy stating that electronic emails should not be considered private to be determinative.  The Court held that the policy was not specific enough under the circumstances.  Does this mean that employers should be regularly reexamining their electronic communications policies to specifically address new forms of electronic communications?  In a word, yes.

 

Read the full opinion here.

 

 

 

Source: Law.com.

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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 large, bipartisan group of senators signed on as co-sponsors of the ADA Amendments Act (S.3406) which was introduced August 1. The bill will strengthen the protections of the original Americans with Disabilities Act (ADA), passed in 1990.

Sens. Tom Harkin, D. Iowa, and Orrin Hatch, R. Utah, led the effort to sign on 66 senators as co-sponsors of the bill.  With so many co-sponsors, there is a good chance that the Senate leadership will bring the bill to the floor to a vote.

The House passed its version of the bill overwhelmingly (402-17) on June 25.  Thus it is possible that it will be sent to the President on veto-proof majority votes from both the House and Senate. 

In a statement, Nancy Zirkin, executive vice president of the Leadership Conference on Civil Rights, praised the bill's introduction: "The ADA Amendments Act is the most significant civil rights bill of the 110th Congress. This act will correct narrow court interpretations that have restricted ADA coverage in the workplace, and taken away coverage for people with diabetes, epilepsy, serious heart conditions, mental disabilities, and even cancer."

She noted the cooperation and bipartisan spirit under which the Congress has considered the legislation: "In this era of partisan politics, the dramatic convergence of the business, disability and broader civil rights communities is a testament to the importance of this legislation to diverse constituencies as well as the power of coalition politics."

Sandy Finucane, vice president of the Epilepsy Foundation, agreed: "The introduction of this bill, with such broad bipartisan support, is a tribute to the hard work and conviction of Sens. Hatch and Harkin, who worked tirelessly to get it done. This is a major victory for the disability community."

The bill will overturn several Supreme Court rulings which have narrowed the interpretation of the ADA and substantially limited protections for millions of Americans.

For example, the Court ruled in the 1999 case Sutton v. United Airlines that individuals are not considered disabled if they are able to manage the symptoms of their impairments with medication or assistive devices. The new bill clarifies that disability should be determined without considering "mitigating measures."

Similarly, the bill requires that people whose disabilities occur only in episodes have their disabilities assessed when their symptoms are present – important for many disorders including depression and epilepsy.

 

 

Source: David Schraub - Civilrights.org Article
August 5, 2008

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

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

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

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

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

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

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

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


Hat Tip: Ohio Employer's Law Blog

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

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


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

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

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

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

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On Tuesday, the petitioner filed this reply brief in the case of Tyson Foods, Inc. v. de Ascencio. The issue is “whether the time spent donning light protective gear constitutes ‘work’ under the Fair Labor Standards Act if the activities do not require a significant level of exertion.” The cert. petition can be found here and the respondent’s brief in opposition here, while the opinion of the Third Circuit can be found here.

Related Posts:

• Tyson Wants High Court to Redefine "Work"

• Tyson Foods Inc. Agrees to Pay $1.5 Million for Hiring Discrimination

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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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In Federal Express Corp. v. Holowecki, the United State Supreme Court ruled that the EEOC's Intake Questionnaire adequately meets the requirements of a "Charge" to trigger an employee's rights to sue his or her employer in court. The plaintiff submitted to the EEOC an Intake Questionnaire with an affidavit contending that her employer was engaging in age discrimination. The EEOC did nothing with the Questionnaire for six months. The employer was not notified and no charge number was assigned. The employee subsequently filed a Charge of Discrimination and then filed suit.

The Age Discrimination in Employment Act of 1967 (ADEA) requires that "[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission" (EEOC), 29 U. S. C. §626(d), but does not define the term "charge." After petitioner delivery service (FedEx) initiated programs tying its couriers' compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 "Intake Questionnaire" and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent's action, contending she had not filed the "charge" required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx's motion. The Second Circuit reversed.

Supreme Court holding in a nutshell: Documents other than a formal EEOC "Charge" can serve as a Charge under the right circumstances. The Court, showing the EEOC a great deal of deference in its administrative interpretation, held that an effective ADEA charge is one that includes the information "required by the [EEOC] regulations, i.e., an allegation and the name of the charged party," and that should "be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee."

More detailed holding from the official Syllabus:

1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a "charge" under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.

(a) There is little dispute that the EEOC's regulations-so far as they go-are reasonable constructions of the statutory term "charge" and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: "charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act." Section 1626.8(a) identifies information a "charge should contain," including: the employee's and employer's names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of §1626.6-i.e., if it is "in writing and ... name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s)." That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter.

(b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is " ' plainly erroneous or inconsistent with the regulation,' " Auer v. Robbins, 519 U. S. 452 . The Court accords such deference to the EEOC's position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6's requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations' structure is less than clear, the relevant provisions are grouped under the title, "Procedures-Age Discrimination in Employment Act." A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge.

(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights.

(d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency's policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a "measure of respect" under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency's implementation has been uneven; e.g., its field office did not treat respondent's filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3).

(e) FedEx's view that because the EEOC must act "[u]pon receiving ... a charge," 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . Moreover, because the filing of a charge determines when the ADEA's time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 . Pp. 12-13.

2. The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.

(a) Respondent's completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to "force [FedEx] to end [its] age discrimination plan." FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: "I have been ... assur[ed] by [the EEOC] that this Affidavit will be considered confidential ... and will not be disclosed ... unless it becomes necessary ... to produce the affidavit in a formal proceeding." This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a "formal proceeding." Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge.

(b) Because the EEOC failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance.

Sources: Scotus Wiki

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Two interesting cases are being argued this week in the Supreme court:

On Tuesday, the Court is scheduled to hear argument in Gomez-Perez v. Potter (06-1321), on whether the Age Discrimination in Employment Act bars retaliation by public employers for the filing of age discrimination complaints.

On Wednesday, the Court is scheduled to hear oral argument in CBOCS West v. Humphries (06-1431), on whether employees may bring race retaliation claims under 42 USC 1981.

In Gomez-Perez v. Potter, Myrna Gomez-Perez, a 45-year-old employee of the U.S. Postal Service, filed an age discrimination complaint after her supervisor denied her transfer request. After filing her complaint, Gomez-Perez alleges her supervisors and co-workers retaliated against her, and that her hours were drastically reduced. She appealed a summary judgment ruling against her in the U.S. District Court for Puerto Rico, which did not reach the question of whether the ADEA's private cause of action for federal employees alleging age discrimination implicitly includes a retaliation cause of action.

On appeal, the First Circuit noted that the parallel ADEA provision governing private employers expressly provides for retaliation claims and reasoned that Congress would have said so explicitly had it intended for a similar cause of action against federal employers. The Court was not persuaded that Congress meant to prohibit "discrimination and retaliation" when it said merely "discrimination," and held that the ADEA does not include a cause of action for retaliation by federal employers.

In the Humphries case, Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant, alleged that he was fired because he complained about his supervisor's racially discriminatory behavior. Humphries's claims under Title VII were dismissed for procedural deficiencies, but the Seventh Circuit held that Section 1981 authorizes suits where employers retaliate against employees complaining of racial discrimination, and Humphries should be allowed to proceed under that statute.

At the Supreme Court, the company argues that there is disagreement in the lower courts over whether Section 1981 in its amended form includes retaliation in its ban of racial discrimination in contractual relations. The company argues that under a straightforward reading of the statutory text, employer conduct is not actionable under Section 1981 unless it is racially motivated, and noted that a retaliatory termination is based on an employee's conduct (the allegation of racial discrimination), not on the employee's race.

In his opposition brief, Humphries asserted the correctness of the Seventh Circuit ruling and also noted language in the legislative history of the Civil Rights Act of 1991 indicating Congress intended to expand Section 1981's scope to claims of "harassment, discharge, demotion, promotion, transfer, retaliation, and hiring." The brief also disputed that the courts are inconsistently interpreting the amended statute, noting that all eight circuits to address the issue have held that Section 1981 prohibits retaliation.

Sources: ScotusWiki, which utilized material obtained from ScotusBlog.

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Lawyers for Tyson Foods are challenging a U.S. appeals court ruling that compensable work includes the putting on and taking off of protective work clothing and are calling on the Supreme Court to resolve what the company claims to be a conflict in the courts of appeal.

Monday's petition for a writ of certiorari was filed with the Supreme Court by attorneys representing poultry processor Tyson Foods Inc., which faces more than 30 wage-and-hour lawsuits on behalf of tens of thousands of factory worker.

The original suit was brought by employees against Tyson in federal court in Pennsylvania, seeking back pay and other relief for time that they spent putting on, taking off, and washing certain sanitary and protective clothing before and after their shifts and at breaks. The Fair Labor Standards Act ("FLSA") requires employers to compensate employees for overtime work (work above 40 hours per week) at one-and-a-half times their normal rate of pay. Tyson seeks review of the issue of whether the activities at issue constituted "work."

The Court has already held that the time spent walking between changing and production areas is compensable work under the FLSA in 2005 opinion - IBP, Inc. v. Alvarez. We posted about that decision here. The language of the unanimous decision in the Alvarez case would lead me to believe that the Court would decide against Tyson here. However, the membership of the Court has changed somewhat since Alvarez so perhaps this gives Tyson the hope that the Court might swing the back the other way on this issue.

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A Circuit Court jury Friday awarded a former Honolulu city official more than $3 million dollars, upholding her claim that she lost her job in 2003 for blowing the whistle on what she saw as wrongdoing in the administration of the former Mayor.

The jury deliberated a half-day before returning a verdict in favor of the plaintiff, awarding her just more than $1 million in lost wages and retirement benefits and $2 million in general damages for pain and suffering inflicted on her by city officials.

According to the news report, the plaintiff's attorney stated that in the weeks before the trial, he offered to settle the whistleblower case for $75,000, but defense counsel never offered more than $5,000.

Hmm, me thinks someone misevaluated this case.

Source: The Honolulu Advertiser

Hat tip: Jottings by an Employer's Lawyer

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Chamber of Commerce v. Brown has been set for argument by the Supreme Court for March 19th. The Court is set to decide whether the National Labor Relations Act preempts a California law barring private employers from using state grant or program funds to influence union organizing campaigns.

You can find the case briefing here.

Source: ScotusBlog

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Ellen Mendelsohn sued her employer under the Age Discrimination in Employment Act (ADEA), alleging she was terminated by her employer, Sprint, on the basis of age during a reduction in force (RIF). Individual supervisors made the termination decisions. In support of her claim of intentional age discrimination, Mendelsohn proposed to present five witnesses to testified that they also were subjected to age discrimination by the employer during the RIF. The witnesses worked at the same location, and were terminated during the same RIF, but they were terminated by different supervisors. The district court held that the testimony of the five witnesses was inadmissible. The jury eventually returned a verdict for Sprint and Mendelsohn appealed.

On appeal, a divided Tenth Circuit panel held that the exclusion of the witness testimony was an abuse of discretion. The majority rejected Sprint's contention that the witness's testimony was irrelevant as a matter of law because the witnesses were not terminated by the same supervisor as Mendelsohn. While the plaintiff had not brought a "pattern and practice" claim, the court concluded that Mendelsohn was still entitled to show that there was an unwritten "company-wide policy" of age discrimination, in which Mendelsohn's and the others' supervisors were participating. The court noted that evidence of prior discriminatory conduct had long been considered relevant to prove discriminatory motive and concluded that a jury could reasonably find the alleged discrimination was made more likely by proof of "an atmosphere of age discrimination" and "Sprint's selection of other older employees to the RIF."

Sprint petitioned for certiorari, asserting that the Tenth Circuit had established a per se rule requiring the admission of what Sprint called "me, too" evidence, in conflict with the decisions of the Supreme Court and several other courts of appeals. The petition alleged that four circuits - the Second, Third, Fifth, and Sixth - have adopted per se rules holding that evidence that another employee has been subject to discrimination must be excluded as irrelevant unless the witness and the plaintiff were subject to adverse employment actions at the direction of the same supervisor.

The transcript of the oral argument shows a Court predictably split, with Scalia, Thomas, Alito and Roberts appearing to support a more restrictive view of evidence regarding similar treatment against proffered by other employees and Breyer, Ginsburg, Souter and Stevens arguing that such evidence is relevant and should be admissible. Justice Souter put it this way:

"Well, if you have three supervisors, and one is discriminating and another is discriminating, isn't that some evidence that you're in an industrial situation in which discrimination goes on, and therefore doesn't it have the tendency that amounts to relevance under 401?"

So the case really appears to come down to a question of what Justice Kennedy thinks. And, if his questions during oral argument are any indication, he is inclined to hold that such evidence is inadmissible unless a nexus foundation is shown to exist between the decision at issue in the case at bar and that at issue by the other employee that would testify to similar treatment.

Frankly, after reading the transcript I'm left wondering whether this was a good case for the Court to take to address this issue. It remains unclear whether the trial court analyzed this evidentiary under Rule 401 or 403. This is an important question given the differing thresholds between the two. Justice Scalia spends a considerable amount of time on this issue in his questioning. Also of note is the fact that this case was not tried or argued on appeal as a "pattern and practice" case in which the conduct of the company as to other employees is clearly relevant.

Prediction: Close call but the company is likely to win this case. Because of the issues noted above, however, I have difficulty seeing in creating much of a change in existing law.

Related Links:

- Transcript of the Oral Argument

- American Constitution Society Guest Analysis of Case

Source for procedural history: Paul Secunda of the University of Mississippi School of Law and Workplace Prof Blog

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"The age discrimination case that was argued before the Supreme Court on Tuesday turned on a hyper-technical issue that only an employment lawyer could love." - New York Times

Lot's of great coverage out on the web regarding the oral argument conducted this week at the Supreme Court in Federal Express Corporation v. Holowecki. This case presents the question of what may constitute a "charge" of discrimination that a potential plaintiff must submit to the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) before bringing a private lawsuit.

Sounds simple right? A Charge is a Charge, Right? Well yes and no.

The problems lies in the fact that the statute does not mandate a particular form for a Charge and in the fact that is not an uncommon occurrence for the EEOC to accept intake documents from a charging party and then lose them or, for whatever reason, fail or refuse to issue a formal Charge document in the case. It is so common in fact that I doubt you could find an employment law attorney that has not dealt with this issue. So the question is who should bear the burden of the government's failure to properly process a party's Charge.

Here is what went on in this case: Patricia Kennedy was a courier for petitioner Federal Express (Fed Ex). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that Fed Ex had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at this point. The EEOC did not assign a charge number to Kennedy's submission, it did not inform Fed Ex that it had received Kennedy's Form 283, and it made no attempt at informal conciliation. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. Exactly one month later, she submitted a Form 5 Charge of Discrimination to the EEOC.

The district court granted Fed Ex's motion to dismiss the suit on the ground that the December 2001 submission did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that the standard for what constitutes a charge is twofold. First, the court held that a charge must comport with the EEOC regulations, which state that a charge is sufficient when the person making the charge names the employer and generally describes the discriminatory acts. Second, the court held that the EEOC filing must manifest the employee's intent to file a charge as viewed through the lens of a reasonable person. The Second Circuit found that Kennedy's December 3 submission clearly had all of the required information and indicated her intention to "activate the . . . machinery" of the EEOC. Her filing therefore met the requirements of the ADEA, and the Second Circuit permitted her suit to go forward. FedEx appealed and the Supreme Court accepted the case.

My reading of the Court's oral argument transcript indicates to me that FedEx is most likely going to take it on the chin in this one. The company's argument that a Charge is not a Charge until the respondent company receives notice of it appeared to fall flat with the Court. Even Justice Scalia (no known as a rabid anti-corporate jurist) made it clear that he wasn't accepting FedEx's argument, analogizing Fed Ex's position to the Rules of Civil Procedure. "My goodness," he said, "It's like saying there's not a complaint until an answer is filed."

Regardless of how this case turns out it really illuminated ongoing issues at the EEOC. In fact, it has stirred a conversation in some circles of the employment bar about whether we should at least start discussing whether the EEOC is still a viable entity. Honestly, I could find lawyers on both sides of the bar that would vote to abolish it and simply allow employees to go straight to Court with their claims, just like is done with every other type of claim. Just something to consider I guess.

Here are some background links:

FedEx's Petition for Writ of Certiorari

Petitioner's Brief on the Merits

Respodents' Brief on the Merits

Petitioner's Reply Brief

Law.com: Supreme Court Argument Report

The Washington Post: Justices Scold EEOC for Lapses in Age Discrimination Lawsuit

NY Times: Job Bias Case Turns on Filing Right Forms

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In a closely watched case I last wrote about here, the law firm Sidley Austin Brown & Wood has agreed to pay $27.5 million dollars to settle an age bias suit brought against it by the EEOC. The case had to do with the question of the EEOC's ability to seek money damages and reinstatement for partners who were downgraded from partner status by the firm in 1999 and others forced out because of an age-based retirement policy.

The firm had long argued that the partners were just that, partners, and therefore not covered employees under the Age Discrimination in Employment Act. The agency argued that the partners were really employees with no real policy-making power in the firm or power to hire or fire other employees.

Apparently, after the Supreme Court refused to intervene prior to trial and overturn the Seventh Circuit as to this question, the firm decided it was worth $27.5 million to put the case behind it. Now the question becomes how many more firms will be targeted by the EEOC as this type of "partner" structure is not at all uncommon.

Source: Chicago Tribune

Technorati Tags: Age Discrimination, EEOC

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Today the Supreme Court granted cert in Federal Express Corporation v. Holowecki, Docket No. 06-1322. The case is case on appeal from the 2d Circuit (440 F.3d 558) and the question presented is whether an EEOC intake questionnaire is sufficient to satisfy the requirement of filing a timely EEOC charge, even if the EEOC failed to investigate it.

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A major employment case under review by the U.S. Supreme Court is headed for dismissal just a week before justices were to have heard arguments, Washington lawyer Tom Goldstein said Wednesday. The government had sued BCI Coca-Cola Bottling Co. over the firing of a black employee in what lawyers refer to as a "cat's paw" case. BCI planned to ask the Supreme Court on Thursday to dismiss the company's appeal, according to BCI's attorney.Link to the story.

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We continue to follow the progress of this "Cat's Paw" theory case through the Supreme Court. This past week the Petitioner in BCI Coca-Cola Bottling Co. v. EEOC filed its brief on the merits. As we have previously noted, the issue in this case involves the question of whether an employer is liable for discrimination in a discharge case where the decision-maker making the discharge decision had no discriminatory animus, but the discharged employee's direct supervisor (who provided information acted on by the decision-maker) arguably did. Thomas Goldstein with my former firm, Akin Gump Strauss Hauer & Feld, is co-counsel for the Petitioner with E. Todd Presnell of Miller & Martin in Nashville. Oral argument is scheduled for April 18th.

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EEOC v. BCI Coca-Cola Bottling Co. is a case out of the 10th Circuit involving the so-called "cat's paw" theory of liability. Put simply, it involves the issue of whether an employer is liable for discrimination in a discharge case where the decision-maker making the discharge decision had no discriminatory animus, but the discharged employee's direct supervisor (who provided information acted on by the decision-maker) arguably did.

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Under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"), as amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262 ("Portal Act"), an employee must be compensated for the time their employer requires them to spend donning and doffing protective gear. In the combined oral argument for Tum v. Barber Foods, Inc. and IBP, Inc. v. Alvarez, the Supreme Court considered an important related question?whether an employee is also entitled to compensation for time spent waiting at stations where required safety and health equipment is distributed, donned, and doffed, and traveling to and from these stations to work sites at the beginning and end of each workday. This week the Court gave us the answer. In a nutshell, the Supreme Court?s decision in these consolidated cases is that the donning of essential clothing and equipment that is integral to the performance of an employee?s job marks the beginning of the employee?s compensable workday. Once an employee dons protective clothing or equipment, the workday has begun and continues to run until such time as the employee actually doffs that protective gear or clothing at the end of the workday. Of course the converse is also true: any time spent by employees walking to the locker room prior to donning such equipment/clothing or waiting in line to receive same is generally not compensable under the FLSA.Here is the Court's opinion.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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