LEDBETTER DECISION

WOMEN:  WHERE ARE OUR VOICES?!?!?!  (For information regarding what you can do, go to the article within this data section on Ledbetter)

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Filipino Nurses Entitled to Back Pay After Pay Disparity

Alden Mgt. Servs. Inc. v. Chao, 7th Cir., No. 07-3828

June 25, 2008

The 7th U.S. Circuit Court of Appeals ruled that several Chicago-area nursing homes owe a group of Filipino nurses more than $1 million in back pay because they were paid less than nurses who are U.S. citizens.

Alden Management Services, paid Filipino nurses less than it paid registered nurses who are U.S. citizens. The focus was on whether Alden violated the Immigration Nursing Relief Act and it was decided that Alden had paid the nurses less because of the fact that they were non-citizens.  Alden was ordered to pay the difference for the time they were employed under H-1A visas.

Alden argued that the back pay order was invalid because the complaint had not been filed by neither a nurse nor a union. The district court entered judgment for the secretary.

Employers should note that the back-pay in this case extended beyond the typical two-year limit.  Victims of pay disparity may be awarded back-pay for as long as workers continue to receive less pay than the law requires.

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ADEA:  Supreme Court Decides on Age Discrimination Disparate Impact Case

6/19/08  Meacham v. Knolls Atomic Power Laboratory, No. 06-1505

The U.S. Supreme Court placed the burden of persuasion on employers in Age Discrimination in Employment Act (ADEA) disparate impact claims, making it more difficult for employers to defend themselves from ADEA impact claims.   

This decision encourages employers to take an analytical approach when deciding the factors for reductions in force (RIFs).

During a layoff, Knolls Atomic Power Laboratory, a contractor with the U.S. Navy allowed a buyout for 100 employees; however, Knolls continued to have 31 salaried jobs which needed to be eliminated.

To make their selections, employees were evaluated based upon three factors (performance, flexibility, and critical skills), along with total years of service.  Thirty of the thirty-one employees RIFed were over 40 and a disparate impact class action was filed. 

The decision of the Supreme Court was the burden of persuasion falls on the person who wants an exemption (to the ADEA) in the law to apply. 

Bottom Line:  If an employer is considering a RIF, it would behoove that employer to carefully review the criteria for selecting those who will be released.  Ensure that a criterion is objective, with little room for subjective evaluation.  Also, it would be beneficial to conduct an Impact Ratio Analysis on the statistics prior to taking action. 

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ADEA:  Supreme Court Rules:  Basing Disability Benefits on ‘Pension Eligibility,’ is not discriminatory

June 2009   Ky. Ret. Sys. v. EEOC, U.S., No. 06-1037

The Supreme Court ruled that a state’s disability retirement plan that disqualifies employees in hazardous jobs from receiving disability retirement benefits if they become disabled after reaching age 55 does not violate the Age Discrimination in Employment Act (ADEA).  

The Supreme Court held that awarding disability benefits based on pension status is not age discrimination unless pension status is a “proxy for age.”

A benefit program will be reviewed independently, apart from the impact it may have on people who are over 40.  If it benefits younger people, the court will look at it further to decide if the distinction is age-determined.

The Court noted that an employee claiming disparate treatment must prove that age motivated the employer’s decision.  The Court added that ADEA permits an employer to condition pension eligibility upon age, thus it must be decided whether a plan that lawfully makes age in part a condition of pension eligibility and treats workers differently in light of their pension status, automatically discriminates because of age.

The Court found that in the Kentucky case, pension status did not serve as a proxy for age, and the disparity in treatment had a clear non-age-related rationale of treating a disabled worker as if he/she had become disabled after becoming eligible for normal retirement benefits, rather than before.

The Court concluded,” The rule we adopt today for dealing with this sort of case is clear.” “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come forward with sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”

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SUPREME COURT DECIDES ON RETALIATION CASES

May 27, 2008

The U.S. Supreme Court issued two opinions relating to illegal retaliation, as it pertains to EEO issues.  The Court decided retaliation is a valid issue and should be allowed protection, even in Age Discrimination in Employment Act (ADEA) cases.

In Gomez-Perez v Potter, Postmaster General, a45 year old postal worker claimed she was retaliated against after she filed an administrative ADEA complaint.  The First Circuit Court of Appeals said that the ADEA prohibits discrimination based on age; however, it does not cover retaliation.  The Supreme Court reversed the ruling of the appeals court.  For a copy of the decision, go to: 
http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf

In CGOCS West, Inc. v. Humphries, a minority employee complained to his managers that a co-worker was dismissed because of discrimination (race/black). Soon following his allegations Humphries was terminated and he claimed illegal EEO retaliation for his
expression of concern.  The Supreme Court agreed with Humphries.  For a copy of the decision, go to: 
http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf

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EEOC SETTLES CASE INVOLVING DISCHARGE OF SEVEN MIDDLE EASTERN CREW MEMBERS FROM THE CRUISE SHIP PRIDE OF ALOHA

May 2008

The EEOC announced the settlement of a federal lawsuit against NCL America, Inc. for $485,000 to seven former employees and remedial relief. The EEOC alleged NCL America discharged seven Middle Eastern crew members from various positions on the cruise ship “Pride of Aloha.” NCL America denied that it had acted improperly against these crew members in agreeing to resolve the lawsuit.

 

“We are very pleased with this outcome, and NCL America should be applauded for its commitment to prevent discrimination by agreeing to the comprehensive injunctive relief in this case,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Hawaii.

 

As part of the two year consent decree resolving the case, NCL America agrees to pay the crew members $485,000. With respect to the injunctive relief, NCL America further agrees, among other things, to revise its policies to ensure a workplace that promotes EEO, to hire an EEO consultant, and to provide training to its managers and employees on the company’s equal employment policy and complaint procedure.

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This is a federal case; however, it is a good lesson on how to handle pregnancy leave.

EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION

May 2008

 

Corrections Department Provided Lesser Benefits to Female Corrections Officers Who Gave Birth While on Workers’ Compensation Leave

 

The New York State Department of Correctional Services will pay nearly $1 million to settle a sex discrimination lawsuit filed by the EEOC and the U.S. Attorney for the Southern District of New York, the two offices announced today. The EEOC and the United States had charged the Corrections Department with violating federal law by providing inferior benefits to female employees on maternity leave.

 

The EEOC suit, filed under the Equal Pay Act of 1963 (Case No. 07-CV-2587 in U.S. District Court for the Southern District of New York), charged that the Corrections Department gave male employees with work-related injuries up to six months of paid workers’ compensation leave. Female employees could be granted the same leave, but pregnant employees on such leave were involuntarily switched to maternity leave at or around the time they gave birth. The Corrections Department’s maternity leave policy requires that women first use their accrued sick or vacation leave with pay; then, if approved, sick leave with half pay and then sick leave without pay.

 

The EEOC charged that switching women from workers’ compensation leave to maternity leave resulted in lesser benefits for those women due to their sex, violating the Equal Pay Act (EPA). The EPA is a federal law requiring that employers pay men and women equally for equal work.

 

The U.S. Attorney for the Southern District of New York joined the lawsuit by adding claims under Title VII of the Civil Rights Act of 1964. The U.S. Attorney’s Office alleged that the Corrections Department engaged in a pattern and practice of employment discrimination on the basis of sex as a result of its categorical determination that a female employee who gives birth to a child should be transferred from workers’ compensation leave and benefits without making a determination whether, on an individual basis, an employee continues to be eligible for workers’ compensation leave and benefits.

 

The court granted final approval of an Order and Stipulation Providing for Injunction and Affirmative Relief, which provides $972,000 in compensatory damages, liquidated damages, back pay and interest to 23 female Corrections employees. The back pay, which includes the value of leave some women were forced to take, has already been paid.

 

The Corrections Department agreed to several elements of injunctive relief as to all its facilities statewide. It has amended its workers’ compensation directive to provide that no female Corrections officer shall be removed from workers’ compensation benefits due to pregnancy or the birth of a child, and it will provide anti-discrimination training to employees across the state, along with training in the administration of workers’ compensation benefits to its personnel employees. The Corrections Department will also give to each female employee preparing to take a maternity leave a packet of all applicable policies, procedures and benefits.

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Read the story (below), recently published in Business First,  then keep reading to find out how you can let your voice be heard:

COURT DECISIONS FURTHER DEFINE EEO LAW 

PAYROLL DISCRIMINATION – WHAT YOU DON’T KNOW CAN COST YOU!

By:  Carol A. Dawson

 

Submitted July 10, 2007

 

I have been increasingly concerned about Supreme Court decisions in the past few years; however, a May 29 decision, (Ledbetter v. Goodyear Tire and Rubber Company) should alarm anyone who believes in equal pay for equal work.   The decision added insult to injury to an already victimized employee.  In a narrow 5/4 decision, the Court ruled that employees who suffer pay discrimination can not file a suit after the 180 day timeframe set for filing an EEO complaint with the EEOC, even if the discrimination is on-going. 

 

Victimized employees typically don’t discover a pay inequity until well beyond the 180 day period after the discriminatory pay is established. The Ledbetter decision, if left unchecked by Congress, will set our quest for equitable pay practices back decades.   

 

Lilly Ledbetter, a female manager at a Goodyear plant, filed a charge with the Equal Employment Opportunity Commission (EEOC) asserting a Title VII claim of sex discrimination. Ledbetter filed after receiving an anonymous letter informing her she had been paid considerably less than her male counterparts for several years.

 

Ledbetter was 60 years old and close to retirement when she learned of the illegal pay practices.  She had presumed through the years that she was being paid equal to the men for the work they were performing.   She discovered her pay had been consistently lower then her male co-workers, including recent male hires with far less on the job experience.   Ledbetter filed her complaint with the EEOC within 180 days from the time she was made aware of the pay disparity, which began “years” earlier.

 

The Supreme Court’s interpretation in the Ledbetter case is disturbing on many levels; primarily, there is the presumption that employees somehow have insights into how their pay has been established and have a vehicle to determine if there is inequity.  While many private sector employers have “open” pay structures, this generally provides only broad salary ranges or bands for various jobs, and certainly does not provide a mechanism to identify discriminatory pay practices.  Consequently, an employee is unable to file a complaint of discrimination if he or she has no clue it has occurred until much later, in many cases, years later.  Sadly, during this time the employee can suffer severe financial consequences. 

 

Most who file EEO complaints do so after evidence shows possible discrimination; however, this decision may encourage employees not to wait. 

 

In this case, the Justices were asked to decide whether the 180-day filing period for a pay claim can be extended as a result of some of the factors outlined earlier in this article. There was a firm line of disagreement with the final decision.  Justices Ginsburg, Breyes, Stevens, and Souter argued in vain to allow flexibility in the 180 day timeframe.

 

Speaking for the minority, Justice Ginsburg stated, “The majority’s decision is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.”  She added, “In our view, this court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” 

 

After much debate, the Court majority agreed with Goodyear, holding that an employee must specify a discrete unlawful practice within the required 180-day time period, i.e., if the aggrieved employee cannot specify a distinct discriminatory action within the 180-day filing period, the complaint is time-barred, even though the discrimination continues. 

 

Justice Ginsburg called upon Congress to create legislation to counter the Supreme Court’s decision and several members of Congress have taken up her call to action.  Several members of Congress introduced legislation addressing the Supreme Court's decision.  The U.S. House Education and Labor Committee approved a bill titled the Lilly Ledbetter Fair Pay Act (HR 2831).  The bill would change the current statute of limitations on pay discrimination claims filed under Title VII, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, and the Americans with Disabilities Act (ADA).  If this legislation is passed, a discriminatory-pay action would occur each time a discriminatory paycheck is issued.

 

The gender gap for pay continues to be a seemingly uncontrollable issue for women in the workplace and the Ledbetter decision perpetuates this practice.   Most employees who suffer pay discrimination are not aware the disparity exists until an extended period has expired.  This decision adds another deterrent for filing legitimate claims; while many individuals are already fearful of retaliation when raising the issue internally or talking with government.  

 

After many years enforcing EEO laws with large and small employers in a variety of industries, I am convinced that most want to pay employees in the proper manner.  All employers should be cognizant of their continued obligations to ensure all employees are being paid according to non-discriminatory factors such as knowledge, skill, ability, effort, and responsibility level. 

 

Prudent employers are encouraged to regularly analyze pay practices and make appropriate adjustments if signs of discriminatory practices are found.  Don’t wait until you are squinting under the bright lights of the federal investigators.

 

Carol A. Dawson is the President of EEO GUIDANCE, Inc., a national EEO/AA/Diversity training and consulting business.  A former Area Director with the U.S. Department of Labor/OFCCP, Carol spent her federal career enforcing EEO and Affirmative Action laws.  She can be reached via e-mail at Cdawson@eeoguidance.com or website: www.eeoguidance.com.   

LET YOUR VOICE BE HEARD: Decisions such as this could set back equality for women (and all people) back to the 1960s.  Think about what this would mean to the next generation of working women. 

EEO GUIDANCE, inc. has become involved in supporting those who are attempting to overturn this recent Supreme Court decision (5-4) which would, if left unchecked, allow U.S. workers to be discriminated against based upon their gender, race, color, etc.   The decision, Ledbetter vs Goodyear Tire and Rubber (hereinafter Goodyear), specifically relates to compensation disparity/discrimination based upon gender/sex.    If you believe in equal pay for equal work, no matter your gender, race, color, religion, physical ability or disability, age, or national origin, then you should get involved by supporting the legislation to reverse this decision.  Legislation (Lilly Ledbetter Fair Pay Act) has been introduced in the House and it passed by a narrow margin (225-199).  The Bush Administration has threatened to veto the legislation. 

The plaintiff (Ledbetter) was discriminated against for nearly her entire 20 years of service to Goodyear...that is not disputed (as she won every lower court and jury decision).  She lost her case merely on a technicality or interpretation of the timeframe to file her complaint.  Since she was not aware of the discriminatory pay until she was told via an anonymous letter, she could not have acted within the 180 day timeframe.  How can you file a discrimination complaint on something like salary or wages, when most companies do not allow employees to discuss compensation?!?!?! 

Prior to this decision, the two EEO Agencies, the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs (OFCCP), used either the date the complainant was made aware of the discriminatory act or  (if discovered by OFCCP or the EEOC), the date of the last issued discriminatory paycheck.  However, the Ledbetter decision would make it impossible to recover lost wages, unless you somehow know about the disparity (from talking to other employees, receive a timely anonymous letter, etc.) and file within the stated 180 day timeframe.  Supreme Court Justices Alito, Thomas, Scalia, Kennedy, and Roberts...along with President Bush have decided it is acceptable to discriminate against a woman (in compensation/salary), as long as she doesn't find out about it until the 180 days have passed from the time the first act of discrimination occurs.  If left unchecked, no longer will an employee (and the government EEO agencies) be able to claim each paycheck is a continued discriminatory act.   

What is next?  Should women, or anyone who believes they are being discriminated against in compensation because of an EEO basis, have to file a discrimination complaint the day they receive their first paycheck to be sure to ensure they are being treated fairly? Considering the EEOC recently moved their backlog of complaints to an acceptable level, I do not believe such a response is the answer.   

A good site for letting your voice be heard is: http://www.CorrectTheCourt.org

The actual decision can be found at: 
http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf

By the way, Goodyear is not a novice at dealing with discrimination lawsuits and complaints.   We are working to creat an all-inclusive list; however, this is a quick start. 

* In January 2007, Goodyear Tire & Rubber agreed to pay

a total of $925,000 to hundreds of women (approx. 800), who were denied tire-building jobs at its plant in Virginia. The women who were discriminated against by not being hired, will receive an average payment of about $1,150.  The monetary payment is part of a consent decree approved by an Administrative Law Judge to resolve a lawsuit filed by the Labor Department last year on behalf of some 800 women who were denied jobs at the Danville, Va., plant over a year and a half in the late 1990s.

* A 1986 settlement with Goodyear Tire and Rubber Co. provided $5.3 million in back pay to 285 persons, and $340,670 in retirement benefits to 54 other claimants.

This decision is bringing a lot of supporters together to push for the Equal Rights Amendment (ERA) once again. If you know of an upcoming meeting or gathering to discuss the Ledbetter decision, passing the ERA, or other women's issues, please let me know and I will post the information on this site. 

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If you want to get involved, check out these events listed below: 

Kentucky:  Find out what you can do but attending a special meeting of the Kentucky Pro ERA Alliance on Saturday, September 8, from 10-11:30 a.m. at the Lang House (115 S. Ewing Avenue, Louisville).  For information call (502) 585-5390 or sistahsoul415@yahoo.com.

 

National Organization of Women (NOW): 

Take a moment today to write to your representative. Our legislative action system will provide a sample message based on how your representative voted on this important bill.

You may recall that in May the Supreme Court wrongly interpreted the rules of the Title VII law against employment discrimination, stating that an employee only has 180 days from the first discriminatory paycheck in which to file a claim of sex discrimination. To correct this error, we worked with allies in Congress to pass the Ledbetter Fair Pay Act; it clarifies the law's original intent of providing that 180 day window from the most recent discriminatory paycheck.

So stay tuned, as a similar bill will be heard by the Senate, likely in September. Because President Bush has pledged to veto this legislation if it comes to him, we need to build a veto-proof majority in both houses of Congress.

Take Action: Let your representative know what you thought of her/his vote on the Ledbetter Fair Pay Act!

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SUPREME NORTHWEST LLC TO PAY $427,000 TO SETTLE EEOC NATIONAL ORIGIN DISCRIMINATION SUIT – For more information, go to:  http://www.eeoc.gov/press/1-7-08.html

 

LOCKHEED MARTIN TO PAY $2.5 MILLION TO SETTLE RACIAL HARASSMENT LAWSUIT - EEOC Says African American Electrician Subjected to ‘N-Word’ and Threats of Lynching at Worksites Across the Country – For more information, go to:  http://www.eeoc.gov/press/1-2-08.html

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L.A. WEIGHT LOSS TO FACE TRIAL FOR SEX BIAS AND RETALIATION

EEOC Class Suit Charges Company with Discrimination Against Men

September 2007 – (Synopsized from the EEOC web site):  A federal court  ruled that the EEOC may proceed to trial with its class sex discrimination lawsuit against L.A. Weight Loss Centers, Inc. (LAWL) on behalf of qualified male applicants nationwide.

The U.S. District Judge rejected LAWL’s court filed motions to dismiss the case. The court held that the testimonial evidence alone that was presented by the EEOC, including discriminatory admissions by various high-level LAWL officials, entitled the EEOC to present its case at trial. The court also granted partial summary judgment to the EEOC regarding LAWL’s failure to maintain relevant employment records.

The EEOC sued LAWL under Title VII of the 1964 Civil Rights Act alleging the company engaged in a pattern or practice of disparate treatment against men in its recruiting, hiring, and assignment of employees. In its suit (Civil Action No. WDQ-02-0648), the EEOC also charged that LAWL disciplined and ultimately terminated employee Kathy Koch, a trainer with the company, in retaliation for attempting to hire male applicants and for her complaints that LAWL failed to hire qualified male applicants because of their gender.

“We are pleased by the court’s ruling allowing the EEOC to proceed to trial,” said EEOC Regional Attorney Jacqueline McNair. “This case is an example of the EEOC’s focus on systemic litigation. Employers should be mindful that Title VII’s prohibition against sex discrimination protects men, as well as women, from being denied employment opportunities based on their gender.”

On March 9, 2007, LAWL filed a motion for summary judgment to dismiss the case, arguing that the EEOC could not establish a prima facie case that LAWL engaged in a pattern or practice of sex discrimination. LAWL also contended that Title VII’s limitations period for filing an individual charge of discrimination limited the scope of relief that the EEOC could obtain in a pattern or practice discrimination lawsuit.

The EEOC also filed a motion for partial summary judgment, arguing that LAWL failed to comply with the statutory obligation to preserve records relevant to the retaliation claim on behalf of Koch, and to preserve hiring and other employment records relevant to the pattern or practice claim. The EEOC requested that the court issue an injunction requiring LAWL to preserve relevant records and give an adverse inference jury instruction regarding the destruction of these employment records.

The court held that in a pattern or practice case under Section 707 of Title VII, the EEOC's remedies are not limited by the 180 or 300-day period for filing an individual charge of discrimination. The court also granted an injunction and adverse jury instruction against LAWL based on its failure to preserve relevant evidence regarding EEOC's retaliation claim.

The EEOC litigation team in the case, added, “The court's ruling is noteworthy because it reaffirms the important principle that the EEOC possesses broad statutory authority to remedy systemic violations of Title VII in their entirety, not simply portions of a systemic violation that happened to occur within the charge filing period applicable to individual plaintiffs. We’re pleased that a jury will have an opportunity to hear the evidence and decide this case.”

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Non-minority Male Discrimination Case Moves Forward

Decorte v. Jordan, 5th Cir. No. 05-31042, 8/15/07.

 

In a much publicized Title VII case, a federal appeals court affirmed a decision against New Orleans' black district attorney who was charged with discrimination by terminating a group of white employees.

 

The lawsuit was filed shortly after the District Attorney won the election and appointed a transition team to evaluate non-attorney staff. According to the lawsuit, within 72 days of his election, the composition of the non-attorney staff changed from 77 whites and 56 blacks to 27 whites and 130 blacks. The district attorney's defense was he was attempting to surround himself with people, regardless of their race, who he knew was supportive.

 

The District Attorney had also pledged during his campaign to hire a staff reflective of New Orleans' racial composition.  Evidence that damaged the District Attorney's case was a "Cultural Diversity Report," prepared by his transition team. The court treated the report as an affirmative-action plan "to focus on race in employment decisions and an intent to achieve a desired racial balance." This violates Supreme Court precedent and EEOC regulations that prohibit an employer's voluntary efforts to achieve or maintain racial balance absent specific findings of past discrimination and manifest imbalance through a court ordered consent decree.

 

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CAESARS PALACE TO PAY $850,000 FOR SEXUAL

HARASSMENT AND RETALIATION

Supervisors Forced Sex on Hispanic Female Workers, EEOC Charged

August 2007

EEOC:  Caesars Palace will pay $850,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. EEOC. The EEOC had charged that the Las Vegas resort/casino’s Latina kitchen workers were subjected to repeated and sometimes severe sexual harassment.

In its 2005 lawsuit against Desert Palace, Inc., doing business as Caesars Palace, the EEOC asserted that male supervisors would demand and/or force female workers to perform sex with them under threat of being fired. Women, predominantly monolingual Spanish speakers, were forced to have sex in makeshift sex rooms. In addition, EEOC claimed that supervisors performed other lewd acts on or in front of women, including unwanted sexual touching.

The EEOC also charged that management failed to address and correct the unlawful conduct, even though women complained about it. Further, the EEOC said, when workers complained about the unlawful conduct, they were retaliated against in the form of demotions, loss of wages, further harassment, discipline or discharge.

Sexual harassment and retaliation for complaining about it violates Title VII of the Civil Rights Act of 1964.  “In a case like this where many of the workers were monolingual Spanish speakers, victims of sexual harassment often feel further isolated, marginalized and unable to vindicate their rights,” said Anna Park, Regional Attorney for the EEOC’s Los Angeles District. “This case also illustrates that employers need to ensure their policies and procedures provide adequate avenues for complaint and redress to non-English speakers.”

Under the three-year consent decree resolving the case, Caesars Palace agreed to pay $850,000 to the employees identified by the EEOC to have been sexually harassed or retaliated against. As part of the injunctive relief, Caesars Palace further agreed: (1) to provide training to all employees in English or Spanish; (2) to provide semi-annual reports to the EEOC regarding its employment practices for a period of three years; and (3) to revise its employment policies and procedures to conform to its obligations under Title VII. The EEOC filed the suit and consent decree in U.S. District Court for the District of Nevada (EEOC v. Caesars Entertainment, Inc., et al., 2:05-CV-0427-LRH-PAL).

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Ignoring Sexual Harassment Claims Can Result In Rewards To Include Punitive Damages.

June 2007

Parker v. General Extrusions Inc.

A federal appeals court upheld a $50K punitive-damages award against General Extrusions, Inc., because of inappropriate sexual comments made to the female employee by her coworkers rather than by management staff. When the female (Parker) complained about the sexual harassment to supervisors and HR personnel, she received no guidance or assistance, resulting in the court’s decision that a reasonable jury would find that General Extrusions Inc. chose to ignore sexual harassment against Parker and showed a reckless disregard for her rights under Title VII.   

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Starbucks Settles Disability Discrimination Case With Mental Disability (Bipolar Barista).

June 2007

EEOC v. Starbucks Coffee Company

In addition to paying the employee with a mental disability (Bipolar Disease) $75,000, Starbucks will be donating $10,000 to the Disability Rights Legal Center, along with training all managers and supervisors about disability discrimination.  They also were required to inform the EEOC about internal disability claims received over the next year. The employee alleged that despite receiving extra training and support while satisfactorily performing her job for two years, new management refused to provide reasonable accommodations and then terminated her employment because she was not "Starbucks material."

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IS IT  ILLEGAL TO DENY CARE GIVER ACCOMMODATIONS
May 2007

For the most part, previous guidance by the EEOC meant there was no requirement under the ADA that an accommodation be provided to a person who is giving care to a close friend or family member who has a disability.  At the most, it has addressed the requirement not to discriminate against that employee. 

You may want to think again about the ADA interpretation.  The EEOC has provided a fact sheet on this subject:  http://www.eeoc.gov/policy/docs/caregiving.html

 
Commissioner Stuart J. Ishimaru said, "This guidance recognizes the
connection between parenthood, especially motherhood, and employment
discrimination.  An employer may violate Title VII [of the Civil
Rights Act of 1964] when it takes actions or limits opportunities for
employees because of beliefs that the employer has about mothers and
caregivers..."

This new guidance goes to the core of work/family balance issues.
According to Dr. Anika Warren, research director of Catalyst, Inc.,
"women of color are the fastest growing segment of the workforce."
Employers that make use of "diverse talent...through effective and
inclusive organization policies and practices [will have a]
competitive advantage..."

Two social trends in the United States have been driving this type of
guidance from the Commission.  The first is that women continue to
be the primary caregivers within the population, and there are many
more working mothers than in the past.

Employers should avoid inquiring about caregiver responsibilities during
the employment screening process.  If an employer provides child care
leave to women, it should not deny the same leave, under the same
circumstances, to men.  Pregnant employees should be treated no differently
from other workers with similar work restrictions or disability
accommodation requests.  Requests for accommodation based on the need
to take care of a disabled family member should be taken seriously and
reviewed individually. 

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Sexist  Comments By Co-workers Can Create A Hostile Working Environment.

June 2007

Boumehdi v. Plastag Holdings LLC

The federal appeals court for the Seventh Circuit reversed a ruling that had dismissed a female press-department worker's claims of a hostile work environment, constructive discharge, retaliation and sex discrimination in pay and other conditions of employment. The female complainant alleged her supervisor made multiple sexist comments as opposed to comments to sexual comments or sexual advances. The court ruling favored the complainant, concluding the employee should not be required to produce evidence of misconduct of a sexual nature to support the hostile-work-environment claim, adding that comments revealing "anti-female animus" can be severe enough to support a hostile-environment claim under Title VII and Equal Pay Act.  

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$287,640 AWARDED TO FIRED MUSLIM WOMAN IN EEOC LAWSUIT
May 2007

A Phoenix jury awarded $21,640 in back pay, $16,000 in compensatory damages (pain and suffering), and $250,000 in punitive damages to a Somali Customer Service Representative with Alamo Car Renter, Bilan Nur.

The company fired her for wearing a head scarf during the Muslim
holy month of Ramadan.  The Commission called the case a backlash to
the events of September 11, 2001, when America was attacked and the
World Trade Center destroyed.

Alamo refused to permit Nur to continue to cover her head, as she had
done in previous years, even if she wore an approved Alamo-logo scarf.
The case was prosecuted as religious discrimination under Title VII
of the Civil Rights Act of 1964.   (CIV 02-1908-PHX-ROS, U.S. District Court for the District of Arizona)
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8th Circuit Court Rejects Pregnant Nurse’s Discrimination and Retaliation Claims

6/15/07  - An employee who was pregnant and involved in reporting alleged misconduct was found to not be protected by the Pregnancy Discrimination Act or whistleblower prohibitions, according to the 8th U.S. Circuit Court of Appeals.

Tanya Fjelsta was one of two registered nurses working for Zogg Dermatology in Albert Lea, Minn. She received  a “guardedly positive” probationary evaluation and was offered permanent employment.  Her employer and supervisors were Brian Zogg, medical director, and Deanne Zogg, office manager.

Soon after being hired, the only other Zogg nurse became pregnant and announced her plans to take a leave of absence. According to Fjelsta, in response to Medd’s announcement, Deanne Zogg said, “Tanya, you better take precautions so both you girls don’t end up pregnant. We can’t have both nurses gone at the same time.”

On July 10, Fjelsta told Deanne Zogg that she was also pregnant. Two weeks later, Deanne Zogg gave Fjelsta a poor evaluation and, citing an alleged failure to follow proper surgical procedures, placed her on a 90-day probation.

Fjelsta submitted a written rebuttal to her evaluation. Instead of addressing the basis for her poor evaluation,  she reiterated a previously voiced opinion that a certain procedure of Zogg—allegedly reusing syringes with new sterile needles attached when using multi-dose vials with multiple patients—was inappropriate and in violation of a rule established under state law. Within 30 minutes of submitting the letter, she was asked to leave for the day due to “insubordination.” Deanne Zogg consequently told employees that Fjelsta had been discharged.

Citing Deanne Zogg’s alleged comment about becoming pregnant, Fjelsta sued Zogg Dermatology, alleging that her termination violated Title VII. She also brought a claim under the State (Minnesota) Whistleblower Act. The district court granted summary judgment to Zogg on both claims, and the 8th Circuit affirmed.

The 8th Circuit determined that Deanne Zogg’s comment, made one month before the termination, was considered a stray remark in the workplace. The court noted, the statement reflected no negative attitude toward pregnancy and did not forecast how Zogg would respond if Fjelsta became pregnant. The court concluded that a statement that merely mentions a protected characteristic is insufficient to maintain a discrimination claim.

As for the whistle-blowing claim, the court noted that an essential element of the claim is that the employee make the report “for the purpose of blowing the whistle; to expose an illegality.” The court found Fjelsta’s report lacking in this regard because Fjelsta had previously raised and discussed the same issue with Deanne Zogg. The court concluded that Fjelsta was simply revisiting her dissatisfaction with the policy in an effort to rebut her performance appraisal and that, given her prior raising of the issue, “there was no whistle to blow.” Fjelsta v. Zogg Dermatology, 8th Cir., No. 06-1965 (May 29, 2007).

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9th Circuit: Discrimination Claim Against Kelly Services Corp. (‘Fourth Way’ Members) Will Move Forward

June 2007

Claims of religious discrimination are typically based on the beliefs of the alleged victim or victims.  However, a claim also can be based on the absence of a religious belief, as demonstrated by a decision by the 9th U.S. Circuit Court of Appeals.

Lynne Noyes, a full-time software developer for Kelly Services Corp., sued alleging she was the victim of religious discrimination under Title VII and California law when she was denied a promotion to a manager’s position.

The basis of the claim had nothing to do with her personal religious belief.  Her claim was that she was discriminated based upon the fact that she was not a member of the selecting official’s religious organization called “Fourth Way.”

While a plaintiff typically needs to show he/she is a member of the protected group, that requirement is flexible and could be met by a claim of discrimination based on the non-belief in the same religious tenets as the decision-maker’s. In this case, the individual receiving the promotion, like the alleged decision-maker, was a believer in the “Fourth Way.”

While the district court issued a summary judgment for the employer, the appeals court indicated that a plaintiff, to defeat summary judgment, had to show only that the employer’s asserted reason was a pretext and that she could do so with either direct evidence of discriminatory motive or indirect evidence that undermined the credibility of the employer's reasons.

In finding that there was sufficient evidence of pretext, the appeals court noted the evidence of ongoing favoritism toward members of the Fourth Way, including past favorable treatment of the woman who obtained the promotion. The court reversed the district court summary judgment, which will likely result in either a trial or settlement.

This reveals that discrimination claims can be pursued even if the alleged victim is not a member of a traditional protected group.   Noyes v. Kelly Services, 9th Cir., No. 04-17050 (May 29, 2007).

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From the EEOC.gov site: 

GERIATRIC CENTER TO PAY $900,000 FOR RACE BIAS, NATIONAL ORIGIN DISCRIMINATION, RETALIATION

May 2007 - EEOC Says Benenson Rehabilitation Pavilion Harassed Black and Caribbean Workers

A New York geriatric center will pay $900,000 to settle a class race and national origin discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today (Civ. No. 05-4601).

The EEOC charged that Flushing Manor Geriatric Center, Inc., doing business as William O. Benenson Rehabilitation Pavilion, subjected 29 black and Caribbean employees (specifically, Haitian and Jamaican) to harassment and retaliation.

According to the EEOC’s lawsuit, the Pavilion permitted harassing comments based on race and/or national origin by its managers and residents against the workers, who served in the nursing, food service, housekeeping, and recreation departments. The EEOC said the Pavilion also prohibited Haitian employees from speaking in Creole while allowing other non-English languages to be spoken at the facility; subjected black and/or Caribbean employees to stricter disciplinary actions as compared to others; and retaliated against those who brought these issues to management.

Employees at the facility formally complained about discrimination to management in 2002, 2003 and 2004 without any effective remedy, the EEOC said. This case also involved egregious retaliation in that the owner attempted to force the charging parties to withdraw their EEOC charges through harassing telephone calls to one of the claimant’s family members. All of this alleged conduct violates Title VII of the 1964 Civil Rights Act.

In addition to monetary payment to the claimants, the settlement requires the facility to hire a qualified human resources professional, implement anti-discrimination polices and procedures, conduct extensive anti-discrimination training, and report internal complaints of discrimination to EEOC over a five-year period.

EEOC New York District Director Spencer H. Lewis, Jr. added, “Employers must be warned that retaliation, such as discouraging employees from filing discrimination charges, is itself illegal.”

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April 2007

FEDEX EXPRESS TO PAY $53.5 MILLION TO SETTLE RACE CLASS ACTION

FedEx Express will pay $53.5 million to settle a racial-bias class action suit if a district court approves the proposed settlement this week.  The race based discrimination lawsuit was filed in November 2003 on behalf of black/Hispanic/ Latino employees and includes charges of compensation bias, discrimination in performance evaluations, promotion, and unfair disciplinary actions.

 

If the FedEx Express settlement is approved by the U.S. District Court for the Northern District of California, the award could benefit 20,000 hourly and entry-level employees who have worked in FedEx's western region since October 1999, and would be among the 10 largest bias settlements in U.S. courts.  However, in the consent decree, FedEx Express denies having discriminatory practices.

 

8TH CIRCUIT UPHOLDS $3.4 MILLION EMPLOYMENT TESTING AWARD AGAINST DIAL CORPORATION


Three judges upheld the District Court ruling in the case of the EEOC v. Dial Corporation (8th Cir, Nos. 05-4183/4311, November 17, 2006), awarding $3.4 million to 50 women who were screened out from employment through discriminatory testing.

Dial is a meat packing company and was experiencing exceptionally
high rates of workers' compensation accidents.  In an effort to
help control expensive job-related back injuries, the company devised
an employment screening tool that would determine if job candidates
could perform the lifting required for particular positions.

The job which showed disparate impact against women was at the Fort Madison, Iowa canned meat plant.  They required workers to daily lift and carry up to 18,000 pounds of sausage, walking up to four miles a day.  They are also required to carry approximately 35 pounds of sausage at a time, lifting the load to heights between 30 and 60 inches above the floor. This job had their highest accident rate.

As part of an effort to control the accident rate, Dial devised a new employment strength test to evaluate job applicants.  In this test, the Work Tolerance Screen (WTS), job applicants were asked to carry a 35 pound bar between two frames, approximately 30 and 60 inches off the floor, and to lift and load the bar onto these frames.  The test was monitored by an occupational therapist who documented how many lifts each applicant completed, and recorded her comments about the applicant's performance.

The case was tried before a jury which found that the physical
performance test did not prove to be a determining factor in job success and had an illegal disparate impact against women.

Does your company conduct an Impact Ratio Analysis or statistical analysis on employment selections at each step in your screening process to
determine if potential problem exist with disparate impact against minorities or women?  If not, you could be one of the EEOC or OFCCP's statistics.  Give us a call or send an email to find out how we can help keep your company in compliance.    For the complete opinion on the Dial case, go to: 

http://caselaw.lp.findlaw.com/data2/circs/8th/054183p.pdf

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Amerigroup Fined $48M for Discrimination

October 2006

Insurance company Amerigroup Corp. (a company that specializes in healthcare for low income patients) and its Illinois affiliate were held liable for what may ultimately total $144 million in damages for discriminating based upon sex - against pregnant women.

A federal court jury returned a verdict against Amerigroup, calling for $48 million in damages.  Lawyers believe this would be tripled under state and federal laws.

Besides the damages, Amerigroup, a company that had revenue of $2.3 billion in 2005 could be penalized with additional fines reaching well into the millions.

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Sexual Harassment Costs The Source $14.5 Million

When will we take this subject seriously?  This complaint came from a top level official...read on...

 

A federal judge in Manhattan ruled in favor of The Source's former editor, Kimberly Osorio, and has ordered the magazine, dubbed the bible of hip hop, to pay $14.5 million in damages.

Osorio, who was The Source's first woman editor in chief, took the publication to court after she was fired last year following a complaint about a workplace that was unfriendly to women employees. Osorio claims she repeatedly was verbally abused, sexually harassed and physically threatened.

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RETALIATION FURTHER DEFINED

The Supreme Court could soon clarify the question, "What constitutes a retaliatory employment practice?" The Court's ruling in Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, may answer some crucial questions regarding retaliation for filing EEO claims. How the Supreme Justicies choose to define retaliatory treatment will have a significant effect on discrimination claims against both private industry employers and also government agencies. A strict standard could potentially discourage targeted employees from speaking up about retaliation; however, a broad interpretation could open the EEO door to a signficant increase in unjustified retaliatory complaints.

Southwest Airlines Will Pay $27.5M

April 2006

Samantha Carrington of Santa Barbara, California was awarded $27.5 million in damages by a jury who agreed who with her allegations that she was racially profiled when Southwest Airlines Co. accused her of assaulting a flight attendant. Carrington is of Iranian descent. Her suit alleged false imprisonment and malicious prosecution. Federal authorities arrested her in 2003 after her Houston to Los Angeles flight made a scheduled stop in El Paso; however, she was not charged with a crime.

Southwest claims that three flight attendants said Carrington, a naturalized citizen from Iran, became verbally abusive, grabbed a flight attendant's arm and threatened to go to the cockpit if the captain was not summoned. Carrington said that the flight attendants were lying and she was the one mistreated. "In the evidence it came out that one of the flight attendants stated that Ms. Carrington reminded her of a terrorist, and in our views she was the victim of profiling stereotypes and discrimination," her lawyer, Enrique Moreno, told the El Paso Times.

A Southwest spokesperson stated they will appeal the verdict.

Commercial Coating Service, Inc. PAYS $1 MILLION TO BLACK MAN CHOKED WITH HANGMAN’S NOOSE BY WHITE CO-WORKERS

March 2006

The EEOC announced the settlement of a racial harassment lawsuit against Commercial Coating Service, Inc. for more than $1 million on behalf of a black employee who was subjected to a barrage of racial epithets, culminating in an incident where white co-workers placed a noose around his neck in the company bathroom and choked him in October 2002.

In its lawsuit, filed in 2003 (EEOC et al. v. Commercial Coating Service, Inc., civil action no. H-03-3984), the EEOC asserted that Commercial Coating did not stop its employees, including managers, from harassing charging party Charles Hickman on the basis of his race (black) and subjecting him to a racially hostile work environment – including verbal and physical abuse. The company, located in Conroe, Texas, specializes in internal and external application of various coating bends, fittings, fabricated spools, valves, and short runs of straight pipe. In addition to the monetary relief for Mr. Hickman, who worked as a sandblaster, the company agreed to enter into a consent decree that will overhaul its employment practices to improve the corporate culture and further equal employment opportunities.

EEOC’s Houston Regional Attorney, Jim Sacher noted, “In addition to being choked with a hangman’s noose, Mr. Hickman was called the N-word and a monkey. The facts showed that the company was aware of the unlawful conduct and did not stop it, which only caused a bad situation to get much worse.”

From EEOC web site data

Employers Charged with Imposing English-Only Rule, Harassing Hispanics and Forcing Out Some Employees After New Company Took Over Hotel

March 2006

The former Melrose Hotel New York and Berwind Property Group, Ltd. (Berwind) will pay $800,000 for national origin discrimination against Hispanic employees and take substantial steps to prevent future workplace bias as part of a major litigation settlement announced today by the EEOC.

The EEOC's lawsuit charged the companies with subjecting Hispanic employees to a hostile work environment; subjecting Hispanic employees to an English-only rule requiring them to speak only English at all times, including while on breaks; firing Hispanic employees; and retaliating against employees for complaining of discrimination. The Melrose Hotel New York was a luxury hotel located on Manhattan's Upper East Side until it closed in July 2005. Berwind is a real estate management company located in Philadelphia.

A consent decree resolving the case (Civil Action No. CV-04-7514), was filed with Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York. Pursuant to the consent decree, the companies will pay $800,000 in damages to 13 former employees of the hotel.

The consent decree also prohibits the companies from maintaining an English-only rule for employees and requires them to amend and reissue their non-discrimination policy, train employees and managers in equal employment law, and provide periodic reports to the EEOC concerning any new discrimination complaints. The suit was filed by the EEOC on September 23, 2004, after the agency first attempted to reach a voluntary, pre-litigation settlement.

LITHIA CAR DEALERSHIP TO PAY $562,500 FOR RACE BIAS AGAINST BLACK SALESMEN TARGETED BY MANAGER

March 2006

The EEOC announced that a federal district court approved a $562,500 settlement of a race discrimination lawsuit brought by the federal agency and private counsel against Lithia Motors, Inc. and Lithia Cherry Creek Dodge on behalf of three African American former employees who were targeted for harassment and retaliation. Lithia is a national car dealership with headquarters in Medford, Ore.

In the case, James Witherspoon filed a charge of discrimination with the EEOC’s Denver office in 2003 after he received no response to filing an internal complaint with Lithia. Witherspoon alleged that the general manager, who transferred to Cherry Creek Dodge from another Lithia dealership, told him that he would not tolerate “B-P” (“black people”), and that he had fired “some of you people” already. This general manager had in fact fired three black salesmen at his first staff meeting. The discrimination against Witherspoon, including racial slurs, only increased after he filed the internal complaint, forcing him out of his job. However, Lithia’s internal investigation found no problems.

“Too often, employers use their resources to wear down employees financially and emotionally when they seek a remedy for discrimination,” said Witherspoon, commenting on the case. “I am extremely appreciative that the EEOC has worked so hard to compensate me for the losses I suffered.” In addition to the monetary relief, the four-year consent decree provides significant injunctive relief, including the review and implementation of company anti-discrimination policies and procedures, and the provision of training on equal employment opportunity law. The EEOC’s suit was filed under Title VII of the Civil Rights Act of 1964 in September 2005, after the agency first attempted to reach a voluntary settlement through its conciliation process. Federal District Court Judge Phillip S. Figa approved the consent decree in the case, EEOC v. Lithia Motors, Inc. and Lithia Cherry Creek Dodge, Inc. case (CIV 05-cv-01901-PSF-MJW).

According to its web site (www.lithia.com), “Lithia Motors, Inc. is one of the largest full-service new vehicle retailers in the United States with 94 stores and 186 franchises in 12 states in the Western United States.”

Yes, Virginia, There Really Is Such A Thing As 'Frivolous' Legal Action

A federal judge ruled that the EEOC must pay more than $1 million to the law firm, Robert L. Reeves & Associates. In 2001, the EEOC sued the firm unsuccessfully for allegations of sexual harassment and pregnancy discrimination. The law firm practices immigration law.

Reeves maintained that EEOC should have known that the harassment and discrimination allegations the agency was pursuing were part of a plan by two former law associates to destroy the firm. EEOC Regional Attorney (LA District Office), Anna Park advised the EEOC has appealed the judge's finding.

Before the EEOC sued Reeves, Tevrizian said, commission staffers only interviewed the two former Reeves associates and a third person who was romantically involved with one of them. One of the former associates, Tevrizian added, was also a decision maker in the firm's dismissal of an employee who complained she was fired after she became pregnant.

No illegal Bias Against Flight Passenger Who is Overweight

February 2006
Southwest Airlines was found not guilty of "racially" discriminating against an overweight flight passenger when she was required to purchase two seats side by side. The federal court jury didn't deliberate long before coming to this conclusion against Nadine Thompson. Thompson alleged she was singled out because of her race (black), indicating the arilines (Southwest) policy on customer's size was applied to her unfairly. She filed the complaint in June of 2003.

Southwest argued their only mistake was to tell Thompson she had to purchase a second ticket after she had already boarded the plane. The airline employees stated they were not aware of the provision that allowed her to sit in two seats if she had already boarded the plane. The airline employees said they simply misunderstood the policy and made a mistake; however, they claimed the mistake was not made because of race. "Is everyone who makes a mistake a racist?" asked Southwest's Garry Lane in his closing arguments. "They didn't know they were doing it wrong."

The "customer of size" policy for Southwest Airlines applies to customers who can't sit in a seat without having the armrest raised and are sitting on part of the adjacent seat. Thompson, who said she doesn't consider herself a "customer of size," didn't challenge the policy; however, she stated that it allows any employee to operate "in a discriminatory way about the policy."

 

Dept. of Justice Settles Case Against AMC Over Theater Design