January 8, 2010

EEOC DISCRIMINATION AND RETALIATION CLAIMS STATISTICS FOR 2009 RELEASED

The Equal Employment Opportunity Commission (EEOC) has released its 2009 report of discrimination and retaliation claims filed in 2009. Overall it appears the total number of charges filed dropped slightly, but there was an increase in retaliation claims filed. Race and gender discrimination both still remain the protected category most commonly named in the charges filed. Disability claims also increased as well this year.

The statistics are available at:

http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm

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October 23, 2009

An Employee May be Able to Sue a Former Employer for a Bad Reference

A former employer who gives a former employee a negative job reference in retaliation for the employee's complaint of discrimination may be liable under the human rights law.

In Jute v. Hamilton Sunstrand Corp., 420 F .3d 166, 178-79 (2d Cir. 2005), the plaintiff was on the verge of obtaining a new job. Before she was offered the job, however, her former employer told the new job that he could not give a reference because Jute "had a lawsuit pending," even though the plaintiff did not actually have a lawsuit pending. The Second Circuit, the federal appeals court in New York, held that this false statement could "negatively affect Jute's chances of securing employment" and denied the defendant's motion to dismiss the case.

Other courts since that time have also confirmed that individuals may assert a claim against former employers who, in an effort to retaliate against the employee's claim, give a negative reference. For example, in Brescia V. Sia, 2008 WL 1944010, at *4 n.3 (S.D.N.Y. Apr. 30, 2008), the court rejected the defendant's effort to dismiss the plaintiff's case under similar circumstances, finding that even where the negative reference is "factually accurate," an individual may have a claim.

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October 5, 2009

Employers Face Tough Test As Retaliation Claims Soar

The Equal Employment Opportunity Commission (EEOC), which has tracked the number of retaliation claims since 1992, has reported that claims including a retaliation charge rose 23% this past year. The reasons for such a surge in litigation differ according to the EEOC and the management-defending law firms that challenge them in court.
Some law firms are blaming the current poor economy for the rise in lawsuits, saying that many complaints come from laid off workers. Others point to a recent 2006 Supreme Court decision that broadened the definition of retaliation in this context, often making retaliation easier to prove than discrimination by an employer. Some management-side law firms cite increases from 21% in retaliation claims this past fiscal year, and some say that 70% of discrimination suits handled by their firm include a retaliation claim.
The EEOC is focusing on retaliation-based complaints as their top priority. Carolyn Wheeler, an EEOC assistant general counsel says enforcement of anti-discrimination law “depends totally on people coming to file complaints. If people don’t feel free to do that , these laws don’t get enforced.”

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October 2, 2009

Supreme Court holds that Employee Responses in Internal Discrimination Investigations are Protected from Retaliation

In Crawford v. Metro. Gov’t of Nashville and Davidson County, a 30 year old female plaintiff brought a retaliation claim under Title VII of the Civil Rights Act claiming that her termination was in retaliation for reporting, in the employer’s internal investigation, that the Employee Relations Director had sexually harassed her. The employer’s proffered legitimate non discriminatory reason for Crawford’s termination was that she embezzled funds.

Title VII’s opposition clause 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." However, Title VII does not define the term “oppose.” The Supreme Court, utilizing the plain meaning of “oppose”, held that the statute’s opposition clause also extends protection to an employee that speaks out about discrimination not on their own accord but at the behest of their employer during the course of an internal investigation.

The Court reasoned that the meaning of the term "oppose" goes beyond "active, consistent" behavior in ordinary discourse, to include a person that has taken no action except for the act of disclosing the discrimination. Thus, a person can "oppose" discrimination merely by responding to someone else's questions just as surely as actively complaining of discrimination.

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September 29, 2009

Verizon To Pay $300,000 to Resolve Retaliation Claim

A former employee at the Verizon facility in Bryn Mawr, Pennsylvania alleged that her employment was terminated after she complained of discrimination. The former employee complained about sexually offensive graffiti and materials in Verizon work areas and trucks. The U.S. Equal Employment Opportunity Commission explained that after complaining to management, the employee was subjected to retaliatory harassment, including the hanging of a plastic rat from the ceiling. The EEOC went on to charge that Verizon management knew of the harassment and did nothing to stop it. Instead, the employee was fired for her complaints.

Verizon maintains that an investigation took place but nothing was discovered to substantiate the allegations. Verizon further contended that the company acted appropriately and the size of the settlement recognized that the company did nothing wrong. Verizon has agreed to provide training to its employees at the Bryn Mawr facility on TitleVII of the Civil Rights Act, which makes it illegal to retaliate against someone who complains about employment discrimination.

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August 24, 2009

Fire Lieutenant loses retaliation claim for Union speech

Plaintiff Kevin Heffernan alleged that disciplinary charges were filed against him by defendant Frank Straub in retaliation for his exercise of his First Amendment right of free speech and association. The disciplinary charges were filed by the Fire Bureau in connection with the delayed response to a fire that occurred on April 20, 2005 while the plaintiff was in charge of a number of fire fighters at the White Plains Drill School that day. Heffernan contends the charges were filed in response to his speech on behalf ot eh Union and statements he made over the radio on April 20, 2005. Straub, the Commissioner of the Department of Public Safety of White Plains, New York, and the other defendants joined in the suit moved for dismissal on grounds. The trial court granted dismissal in part, but refused to dismiss the complaint in its entirety. The defendants then moved for reconsideration of the opinion, and the claim was subsequently dismissed.

A motion for reconsideration or re-argument may only be granted if the court has failed to take in to account “controlling decisions or factual matters that were put before it on the underlying motion...and which, had they been considered, might have reasonably altered the result before the court.” Greenwald v. Orb Coomc’ns & Mktg., Inc., No. 00Civ.1939 LTSHBP, 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003). The defendant’s further directed the court to McCullough v. Wyandanch Union Free School District, which held speech occurring just before the retaliatory act will not support an inference of causation based on proximity if the plaintiff has engaged in this speech throughout his employment.

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July 29, 2009

Federal Appeals Court Certifies Sexual Harassment Question to New York’s Highest Court

On July 27, 2009, the U.S. Court of Appeals for the Second Circuit asked the New York Court of Appeals to answer the following question: Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code?

Under Faragher/Ellerth, employers are afforded an affirmative defense under federal law to vicarious liability for discriminatory harassment by a supervisor that does not result in a tangible employment action if the employer can show it exercised reasonable care to prevent and correct alleged discriminatory conduct and the employee unreasonably failed to take advantage of the protective measures afforded by the employer.

The language of the New York Human Rights Laws is in direct conflict with the federal Faragher/Ellerth affirmative defense. The Second Circuit correctly called on New York’s highest court to resolve this issue because of “the absence of authoritative state court decisions, the importance of the issue to the state, and the capacity of certification to resolve this litigation.”

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July 17, 2009

Age Discrimination on the Rise

The Equal Employment Opportunity Commission (“EEOC”) has begun considering much-needed rules to protect the older members of the workforce. In the last year, the EEOC has seen a 29% increase in age discrimination claims, more than any other employment bias claim. In fact, other than retaliation, age discrimination has become the most common claim in employment related cases. This is much more troubling in light of the recent 5-4 Supreme Court decision in Gross v. FBL Financial Services Inc., where they decided that people bringing suit on an age discrimination claim would be burdened with a higher standard of proof than those bringing suit on the basis of racial or sexual discrimination.

The Gross decision requires that the plaintiff bringing an age discrimination claim prove that age was the key factor in a demotion or layoff. This is in contrast to where previously, one bringing an age discrimination claim only needed to prove that age was a factor, and the burden shifted to the employer to prove the existence of a valid reason for the adverse employment action. Coupled with another recent 5-4 Supreme Court decision - where Kentucky’s retirement system was found to be not guilty of age discrimination despite the removal of certain benefits for employees 55 and older - age discrimination claims seem to be under attack. Fortunately, the EEOC and the AARP have now taken the first step towards remedying this problem.

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July 16, 2009

Plaintiff Prevails in a N.Y. Labor Law Retaliation Claim

A representative for New York State Catholic Health Plan brought two claims against her employer. Her first claim was that Fidelis violated the Fair Labor Standards Act (“FLSA”) is not paying their representatives overtime. Her second claim is that she was terminated by Fidelis in retaliation for complaining about Fidelis’ overtime policy.

Since plaintiff and other marketing representatives often worked over forty hours a week, she made numerous complaints to her immediate supervisor that she was not being paid overtime. Plaintiff also complained to other supervisors that these marketing representatives should be paid overtime. After plaintiff made complaints, her immediate supervisor told her that he was “tired of her complaints” and that she was a “pain in the ass”. After being told this, plaintiff intended to raise these issues with the Chief Operating Officer of Fidelis. Subsequently, plaintiff was fired, with defendant alleging that plaintiff refused to follow enrollment regulations.

In the original action, plaintiff brought a retaliation claim under FLSA and under state law, namely Labor Law § 215. The federal retaliation claim was dismissed, while the motion to dismiss the state law claim was denied. At issue in this decision was defendant’s motion for summary judgement for the Labor Law §215 claim. New York Labor Law §215(1) contains a retaliation provision stating “No employer...shall discharge, penalize, or in any other manner discriminate against an employee because such employee has made a complaint to his employer...that employer has violated any provision of [the Labor Law].” In order to make a labor law case, a plaintiff must show that while employed, they made a complaint and the employer took an adverse employment action.

In support of their summary judgment motion, defendant stated that plaintiff never directly complained to the Chief Operating Officer about her overtime compensation and that he had no knowledge of this complaint before her termination. In response, the plaintiff argued that specific knowledge of a complaint is not required, just that there is a general corporate knowledge. Also, a casual connection can be inferred based on a close length of time between an employee’s complaint which is a protected activity and an adverse employment action. Here, there was only a two month window between Plaintiff’s last complaint and her termination. Also, there were no notes included about the defendant’s “investigation” of plaintiff. Because of this, there was an issue of fact to show that Plaintiff’s discharge was motivated, at least partially, by retaliation.

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July 7, 2009

Dillard’s Reaching $110,000 Settlement in Sexual Harassment Case

On June 11, 2009 The EEOC (U.S. Equal Opportunity Commission) entered into an agreement with prominent national retailer Dillard’s Inc., in settlement of a lawsuit regarding incidents of sexual harassment in violation of Title IV of the Civil Rights Act. As part of the agreement, Dillards is to pay $11,000 in damages to the victims of sexual harassment as well as reform their workplace policies to comply with Title IV.

While the media typically depicts sexual harassment victims as females, males also fall victim to sexual harassment in the workplace. The Dillard’s case involved male on male sexual harassment at a Dillard’s in Florida. According to the EEOC, the Dillard’s store at the Fashion Square Mall in Orlando permitted a sexually hostile work environment for its employees. The specific incident involved a male supervisor that engaged in verbal as well as physical sexual harassment of two Dillard’s employees, a male sales associate and a male dockworker. The supervisor exposed himself to the employees, sexually propositioned them, and made explicit sexual and derogatory comments to them. While both men complained about the foregoing conduct, Dillard’s took no steps to resolve it.

The suit was originally filed in the U.S. District Court for the Middle District of Florida (Civil Action No. 6:07-cv-1496-PCF-KRS) in September 2007. The terms of the settlement provide that in addition to paying the victims $110,000, the Dillard’s store will provide its staff with booklets describing its anti sexual harassment and retaliation policies, conduct training for all employees on the matter, and train employees that will specifically be responsible for investigating sexual harassment complaints. Furthermore, Dillard’s will submit to monitoring by the EEOC for the next three years, and will post a notice about the resolution of this case.

The EEOC recently stated that employers ought to be more vigilant in ensuring that male employees are not being subjected to working in sexually hostile environments since sexual harassment cases involving male victims have increased sharply over the past decade.

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July 6, 2009

Kmart Sued for Age Discrimination and Retaliation

In a lawsuit announced July 6, 2009, the EEOC accused Kmart Corporation of subjecting a 76-year old woman to age discrimination, retaliation and constructive termination.

Age discrimination and retaliation for reporting discriminatory conduct constitute a violation of the Age Discrimination in Employment Act (ADEA). The EEOC alleges Kmart was in violation of the ADEA for failing to investigate and correct the hostile work environment after the woman gave notice of discriminatory conduct against her. The woman alleged that the pharmacy manager accused her of being too old to work, requested that she retire and made derogatory comments on performance evaluations. This conduct in effect forced the woman into resignation.

After failing to successfully reach a settlement, the EEOC brought this suit seeking lost wages and liquidated relief. Federal laws prohibiting employment discrimination are enforced by the EEOC.

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June 16, 2009

University Settles Discrimination Lawsuit

The University of Phoenix (“UOP”) settled a discrimination claim for $32,500, filed by the EEOC and a former employee of the University, Latrish Elaine Tarhini.

The EEOC and Tarhini filed a discrimination claim against UOP, claiming that UOP had violated the retaliation statute of the Civil Rights Act of 1964. Tarhini an enrollment counselor claimed that UOP management said she would not be in line for a promotion because she had made an earlier pregnancy discrimination claim against UOP and its parent company, Apollo Group Inc.

In the settlement, UOP admitted to no wrongdoing or liability according to a statement provided to the Phoenix Business Journal. However, the EEOC said UOP will be required to provide updates on other possible retaliation claims by its workers.

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June 15, 2009

Judge in New Jersey: Ledbetter Law Limited to Fair-Pay Claims

A federal judge in Newark, N.J., has construed the Lilly Ledbetter Fair Pay Act as
extending workers' time to sue only for claims based on pay bias. Michael Richards, a
48-year-old man of Asian descent alleged that he received unjustified low ratings in his job on
account of his race and age and in retaliation for his complaints about unfair treatment.

U.S. District Judge Katharine Sweeney Hayden wrote in Richards v. Johnson & Johnson,
"While the Act certainly contains expansive language ... it ... does not save otherwise untimely claims outside the discriminatory compensation context." However, while the act "does not save untimely discrimination claims outside the compensation context, the statute explicitly affirms the evidentiary principle ... that Title VII and the ADEA do not bar an employee from using time-barred acts as background evidence in support of other timely claims," she wrote.

Under the ruling, the plaintiff is still allowed to pursue his race and age discrimination
claims under Title VII, the Age Discrimination in Employment Act and the New Jersey Law
Against Discrimination.

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June 3, 2009

Sexual Harassment and Retaliation lawsuit Against Duane Reade is Settled

Duane Reade Inc., the well-known drug store chain that operates over 200 stores in the New York area, will pay $240,000 and furnish other substantial relief to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

According the lawsuit, Duane Reade unlawfully created, maintained and failed to remedy a hostile work environment at one of its Bronx Stores by subjecting several female employees to sexual and pregnancy harassment. The lawsuit claimed that the store manager, Madiaw Diaw, frequently made vulgar remarks about women’s private parts, sexually propositioned female employees, made lewd comments about their pregnancies and bodies, assigned unfavorable job duties to pregnant employees, and repeatedly grabbed female employees, including grabbing their buttocks. Moreover, employees who complained and filed discrimination charges with the EEOC were retaliated against by being subjected to further harassment by their supervisors.

“This settlement achieves the EEOC’s objectives by providing appropriate relief to the victims of sexual harassment while implementing appropriate measures to prevent this kind of violation in the future,” said Spencer H. Lewis, director of the EEOC’s New York district office. The EEOC sought both money damages as well as improvements in training and other policies.

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May 20, 2009

New York Employer Liable for Sexual Harassment and Pregnancy Discrimination

Duane Reade, Inc. must pay $240,000 to female employees who suffered sexual harassment and pregnancy discrimination while working at the pharmacy.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against the popular New York City pharmacy on behalf of female employees for creating a hostile and threatening environment. A Duane Reade manager in a Bronx location sexually harassed the women by making inappropriate comments about womens’ private parts, sexually propositioning female employees, making explicit remarks about their pregnancies and bodies, repeatedly touching the female employees and grabbing their buttocks and assigning unfavorable duties to the pregnant employees.

A retaliation claim was also brought by the EEOC on behalf of the female employees because, after they complained about their supervisors’ unlawful behavior, Duane Reade allowed the discrimination to continue instead of remedying the hostile work environment.

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May 15, 2009

Retaliation Against Employee Accused of Sexual Harassment for Challenging Termination

A social work supervisor who was terminated in February of 2005, as a result of nine allegations of sexual harassment being filed against him, ultimately prevailed in a settlement that will allow him to truthfully say on future job applications that he quit and was not fired.

The supervisor, Cesar Bedroni, had worked in San Luis Obispo County, California and was terminated by the county to emphasize that sexual harassment would not be tolerated from county employees. Bedroni appealed his firing and, after hearing testimony from those involved, the Civil Service Commission ultimately suspended him for three months without pay and gave him his job back. This decision pitted the Board of Supervisors against the Civil Service Commission which meant that the county was suing itself. Despite that a Superior Court judge then ruled that the Civil Service Commission had not acted unreasonably in restoring Bedroni’s position, the County again fired Bedroni when he returned to his job.

Bedroni then filed the instant lawsuit alleging that he was retaliated against by the county for successfully challenging his first dismissal.

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May 14, 2009

Retaliation Case Produces Significant Verdict

A federal jury recently awarded a Middle School Teacher on Long Island five million dollars after she was fired for making a complaint of sexual harassment against the school's principal, according to an article in the May 7, 2009 edition of New York Newsday.

The teacher claimed the principal had used sexist language in her presence and after her complaints were made, the principal would bet other staff members whether he would be able to "make her cry." In addition to the award to the teacher, her husband was also awarded $250,000 as compensation for his wife's emotional pain and suffering.

This case illustrates that retaliation in the workplace is often times more severe than the underlying discrimination. Judges and juries regularly believe that organizations should "know better" that once someone complains about discrimination they deserve protection, not retaliation.

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May 13, 2009

Retaliation Under the New York City Human Rights Law

The New York City Human Rights law which protects employees against all forms of discrimination, also has one of the broadest anti-retaliation provisions of any law in the country.

In order to have a claim of retaliation under the New York City Human Rights Law, an employee must complain about race, gender, age, sex, national origin, pregnancy or disability discrimination. The employee need not prove that the discrimination actually existed, merely that the employee had a good faith, reasonable belief that they were being discriminated against on one of those bases.

Under Title VII of the Civil Rights act of 1964, the federal anti-discrimination and retaliation law, an employer to be found liable for retaliation must take adverse employment action against an employee. Such adverse employment actions include termination, demotion, withholding compensation and others.

Under the New York City Human Rights Law, the conduct of the employer does not need to be adverse employment action, merely conduct that is reasonably likely to deter an employee from complaining of discrimination. This provides much broader protection.

May 11, 2009

Employee Accuses Public Works Director of Sexual Harassment and Workplace Retaliation

A former Bay Minnete, Alabama employee, Deanna M. Rider, has brought a sexual harassment and workplace retaliation suit under Title VII of the Equal Pay Act, alleging that Public Works Director Lamar Hadley propositioned her for sex, slapped her on the rear and tried to feel her breasts. The suit also alleges that upon receiving her complaint of the alleged sexually harassing acts, the city fired her from her position.

Among the allegations contained in the complaint were that Hadley called Rider at home, made numerous advances toward her and, on one occasion, asked Rider to take off her panties and show Hadley her private area.

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May 7, 2009

‘Lost’ Actor Accused of Sexual Harassment by ABC Employee

A woman has sued ABC and ‘Lost’ actor Henry Ian Cusick claiming that the actor sexually harassed her, and that ABC fired her in retaliation after she complained. The lawsuit claims that Cusick, who stars as Desmond Hume on ‘Lost,’ fondled the woman’s buttocks and breasts, and kissed her on the lips in October 2007. The woman alleges that when she reported the incident to her supervisor, she was told to avoid Cusick, and then was fired 12 days later. She had worked for ABC since 1997. The complaint did not specify the amount of damages the woman is seeking.

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May 4, 2009

Dallas Fire-Rescue Faces Sexual Harassment Complaints

Executive Officer Leanne Siri, the highest ranked civilian woman at Dallas Fire-Rescue, filed a Federal complaint with the U.S. Equal Employment Opportunity Commission and the Texas Workforce Commission on Friday, April 24, 2009. Siri, alleged that she was demoted, losing 30% of her current pay, after complaining of “lewd emails and sexual harassment form higher-ups.”

Dallas City Attorney Thomas Perkins, speaking on behalf of the city and the department, refused to address Siri’s allegations, but did state that the fire department chief, Eddie Burns, has expanded opportunities for women within the fire department, and made it easier to file employment discrimination complaints.

In addition to Siri’s complaint, the fire department also faces two other gender discrimination complaints and a lawsuit.

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May 1, 2009

Sexual Harassment Suit Settled in Michigan Township

The Waterford Township of Michigan has settled a sexual harassment lawsuit brought by a former Waterford Police Department clerk against the township and its police department. Penny Jo Dye alleged that she was subject to degrading and inflamed comments made about her breasts and tight pants after she gave statements backing a sexual harassment claim brought by a co-worker against the police department. After Dye filed a complaint with the township’s Fiscal and Human Resources Department about sexual harassment, she alleged that the township refused to interfere and instead, retaliated against her. The retaliatory conduct included isolating Dye by taking her job responsibilities away from her, withholding training and commencing unwarranted internal investigations to discipline her. Dye was ultimately terminated from her position.

The Township agreed to settle her case for $325,000 in exchange for dismissing the lawsuit. Under the settlement agreement, Dye is prohibited from applying to future employment opportunities with the Waterford Township.

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April 30, 2009

Male Nurse Alleges Sexual Harassment in Nursing Home

According to a recent article in the Pittsburgh Tribune-Review, a male registered nurse, Roy E. Dreshman, Jr., has filed a claim against his former employer, Henry Clay Villa, in the United States District Court in Pittsburgh for sexual harassment, gender discrimination and age discrimination. In the complaint, Dreshman alleges that soon after two of his co-workers recognized him to be a former stripper, some employees began to pass around photographs of him as a dancer, solicited lap dances, asked him to perform at bachelorette parties and groped him. One employee even decorated her office with a poster of Dreshman as a male stripper. Residents of the nursing home also participated in discriminatory conduct against Dreshman by telling him, “Oh, my gosh, you are one of them go-go boys,” and calling him a “hootchie-kootchie dancer.”

Dreshman also alleges that the nursing home discriminated against him based on his gender and age by favoring female nurses for full-time positions over male nurses. Dreshman was told that he was a "pretty boy" and that "males did not ‘belong’ in the nursing field.” In the complaint, he also alleges that instead of launching an investigation after receiving his complaint, the management of the nursing home retaliated against him, leading to his ultimate termination.

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April 29, 2009

Sexual Harassment and Gender Discrimination Suit Filed with New York State Division of Human Rights

In a complaint filed in September 2007 with the New York State Division of Human Rights, a former sheriff’s confidential executive assistant in Tompkins County claimed she was sexually harassed and subjected to gender discrimination by the Sheriff over a period of two years and then was retaliated against after complaining about the alleged behavior. Robin Korherr claims the sexual harassment began in 2005 while she was going through a divorce. Tompkins County Sheriff Peter Meskill allegedly tried to grope and kiss Korherr on several occasions. Korherr also alleges that Meskill often called her after he had been drinking to tell her how beautiful she was.

Korherr says she asked her boss several times to rectify the situation and that Meskill would initially apologize, but then become aggressive in his harassment again. In early 2007, Meskill took away her privileges and enforced new rules which made it impossible for Korherr to work. Korherr believes that these actions were retaliation against her for refusing to sleep with Meskill. In late 2007, Korherr left the job to work for the New York State Office of Homeland Security.

On March 26, 2009, the New York State Division of Human Rights found probable cause to hear Korherr’s case. Korherr provided testimony for her case during a hearing on April 23, 2009 after two hours of private negotiations in an attempt to reach a settlement. Meskill is expected to testify at a later date.

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April 28, 2009

Reverse Race Discrimination Case Argued in U.S. Supreme Court

This past week, the U.S. Supreme Court heard oral arguments in the Ricci v. DiStefano case. The case centers on whether a city may decline to accept the results of a civil service exam in which there were no minority candidates eligible for promotion. Ultimately, the City of New Haven did not accept the results of the exam which impacted the white firefighters who had passed the test. The City argues that the act was “race neutral” as both minority and non-minority applicants were not promoted and thus no one was harmed.

According to a recent New York Times article, Chief Justice Roberts raised the question that if the City does not like the results of an exam, whether that gives them a “blank check to discriminate.” This case is unique as it presents issues of race discrimination from both sides. The minority candidates can argue that they were disadvantaged by a biased and flawed exam and the non-minority candidates can claim that there was reverse race discrimination by the City when it chose not to accept the results of the exam. Whatever the outcome, this case presents very relevant issues of race discrimination in the employment law context.

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April 27, 2009

EEOC Harassment Lawsuit Settled with Nordstrom, Inc.

In response to a harassment suit filed by the U.S. Equal Opportunity Commission (EEOC) in U.S. District Court for the Southern District of Florida, Palm Beach Division, Nordstrom, Inc. agreed to pay $292,500 in damages to 10 former employees. The suit alleged that the department store manager “harassed Hispanic and black employees based on their national origin, race and color, and retaliated against those who complained about the harassment” in violation of Title VII of the Civil Rights Act of 1964.

According to a recent press release issued by the EEOC, the lawsuit contained allegations that the alterations department manager made statements that she “hate[d] Hispanics,” and that they were “lazy” and “ignorant.” EEOC Regional Attorney Nora E. Curtain explained one of the major problems was that “instead of dealing with the despicable racial and ethnic comments, Nordstrom management allowed the harasser to retaliate against the employees for complaining.”

In addition to damages, Nordstrom also agreed to distribute its policy addressing unlawful harassment to employees, provide harassment training, post a notice of the lawsuit resolution and submit semi-annual reports to the EEOC on all harassment complaints received.

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March 20, 2009

Sexual Harassment Suit Against School District Settle for $125,000

The Vineland Board of Education approved a $125,000 out-of-court settlement to Joni Kane, the district’s public information assistance, who commenced a civil sexual harassment suit in 2006 against district spokesperson John Sbrana and the school system. Kane charged Sbrana and the school with placing her in a hostile work environment where she was sexually harassed, and denied promotions and pay increases.

The suit alleged that one month into Kane’s employment with the communications office in 1997, Kane was subject to sexual advances by Sbrana through emails. In 1998, after avoiding Sbrana’s advances, Kane was told that she would have to work weekends, holidays and evenings without overtime compensation. The suit also named the district for failing to resolve the hostile work environment and abusive work conditions. Kane’s attorney, Marc Weinberg, said the situation had caused Kane “extreme physical and psychological injuries,” warranting compensatory and punitive damages.

The Board of Education split in a 5-3 vote to authorize the payment by the district’s insurance carrier. Objections were made with respect to how the investigation was handled at the outset when allegations of sexual harassment first arose in 2006. Frank Giordano, President of the Board, said that even though there was an interest in letting the matter proceed to give each party equal access to justice, if the district lost in court and Kane was awarded more than $125,000, the remaining balance would have to be paid by taxpayers. However, Superintendent Charles Ottinger explained that the Board’s displeasure with the outcome and their legal representation was not a reflection on the merits of Kane’s case, and further reiterated that any employee who is subject to sexual harassment should bring the matter to the attention of the administration.

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March 19, 2009

EEOC Age Discrimination Claims Set Record Number

According to Bloomberg.com, The United States Equal Employment Opportunity Commission (EEOC) announced its total claims filed for the year ending September 3, 2008. There were a total of 95,402 claims filed. This includes claims for employment discrimination and retaliation in the workplace.

This amount represents an increase of 15% over the amount filed in 2007. Interestingly enough, over 25% of the claims filed were for age discrimination. As the population ages, in conjunction with employers feeling pressure to reduce their workforce, employers must be ever-vigilant in ensuring that all employment decisions are made in a non-discriminatory manner. Where a discriminatory bias enters the process, a plaintiff may then work to assert their protected human rights by making a complaint of employment discrimination.

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March 16, 2009

Hostile Work Environment and Workplace Retaliation Suit Allowed by Florida Commission on Human Relations

Brenda Keys, a former State Attorney’s office employee has been permitted, by the Florida Commission on Human Relations, to file a suit against her former employer on the grounds of workplace retaliation and hostile work environment. However, based on Keys’ allegations, the Commission disallowed the possibility of a sexual harassment suit.

The allegations involve incidents between Keys and former State Attorney Steve Meadows in which Keys alleges that she was demoted and had her bonus halved by Meadows because he learned that she was aiding some of her co-workers in the pursuit of sexual harassment complaints against Meadows. Central to the Commission’s finding was its conclusion that Meadows had no credible evidence with which to refute allegations that Meadows had sex with an employee in his private office. An additional Commission finding that gave weight to the potential hostile work environment claim was that Meadows seemed to prefer his female staff, particularly those female employees who wore revealing clothing.

Meadows unsuccessfully attempted to complain of a bias on the part of the Commission’s review, pointing to an alleged 60 claims from other female employees who contended that the work environment was “professional and positive,” which the Commission allegedly failed to recognize. His request that the review be forwarded to the U.S. Equal Employment Opportunity Commission, in order to obtain a supposed unbiased review, was refused, according to Meadows.

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March 9, 2009

Gay Employee Sues Costco for Retaliation Following Earlier Hostile Work Environment Suit

On December 3, 2008, a jury awarded Juan I. Valera $420,000 for being subjected to a hostile work environment. Valera, an employee of Costco for 20 years, is gay and is also HIV-positive. Valera’s attorney alleged that a Costco General Manager casually used the word “queer” around Valera, which caused him to take a leave of absence. To rectify the situation, Valera asked the Assistant General Manager to protect him from insensitive remarks. The following day, Valera was demoted and received a pay cut.

A report on MSNBC.com noted that, in February 2009, Valera is suing Costco again. Valera alleges in his new Los Angeles Superior Court complaint that the company’s failure to reinstate him to his old position is an act of retaliation that stems from both the previous jury award and his sexual orientation.

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March 6, 2009

Female Neurosurgeon Wins Sexual Harassment Suit Against Prominent Boston Hospital

After a seven week trial in a sex discrimination and sexual harassment case brought by a female neurosurgeon, Dr. Sagun Tuli, against her boss, Dr. Arthur Day, the Chairman of the Neurosurgery Department, a jury awarded the Plaintiff $1.6 million in damages. According to a recent article in The Boston Globe, the jury found that Dr. Tuli was subjected to harassment, ridicule, intimidation and other abusive conduct that was motivated, in part, by her gender. An example of the discriminatory conduct was the repeated demeaning remarks made to Dr. Tuli by Dr. Day while she was operating, such as, “You are just a girl. Are you sure you can do that?” On another occasion at a hospital dinner, Dr. Tuli testified that Dr. Day asked her whether she would “get up on the table and dance for [them] to show the female residents how to behave.” The jury also awarded damages because it found that the hospital retaliated against Dr. Tuli after she complained about sex discrimination.

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February 27, 2009

Transgender Woman Sues Burlington Coat Factory for Employment Discrimination

This week, the San Francisco Chronicle and Law.com reported that Maya Perez, a transgender woman, filed a sexual harassment and gender discrimination lawsuit against her former employer, Burlington Coat Factory, claiming that while she was a sales associate in their San Francisco store, she had to endure seven years of physical and verbal abuse from her supervisors, colleagues and customers after undergoing sexual reassignment surgery. Perez is one of a handful of transgender people who are litigating such employment discrimination matters.

Perez began working at the San Francisco store in 1996. Perez alleges that after she transitioned from a man to a woman in 2001, fellow co-workers and customers harassed her by pushing and groping her, showing her pornographic magazines and photographs, and calling her names such as “he-she.” The managers and security guards failed to intervene and protect her after they heard and saw the incidents either in person or on the store’s security cameras. The store also prevented her from changing her name tag from “Stevie,” her male name, to “Maya,” her current name. After legally changing her name from “Steven Perez” to “Maya Perez” in 2003, the store forced her to reapply for her position with her new name, even though she had already worked in the store for seven years.

Burlington Coat Factory’s company policy prohibits discrimination based on sex, but it does not make reference to sexual orientation or gender identity as protected classes. After Perez complained to her supervisors and the regional human resource director about the harassment, neither took any steps to investigate the issue, as required by company policy. Perez is seeking punitive damages, emotional distress, back pay and a change in employment policies to ensure that managers and employees are more sensitive toward gender identity matters.

February 20, 2009

New York Police Department Sued for Gender Discrimination

According to a recent article in the New York Daily News, a female police officer has sued the New York Police Department (NYPD), claiming that she was passed up for a promotion to Sergeant because she had previously complained about gender discrimination within the NYPD, and because her supervisor “didn’t think that women could do the job.” Police Officer Robin Marable also claims that her supervisor said that he could not have two women working together, as they would be more prone to on-the-job injuries than male officers. Marable says that when she initially complained to the NYPD about her treatment, her supervisor filed for an internal investigation of her, alleging that Marable had used an NYPD E-ZPass for personal errands. Marable has successfully sued the NYPD before, and was awarded $16,000 in a gender discrimination suit by the Latino Officers Association in 2004.

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February 3, 2009

U.S. Supreme Court Broadens Workplace Retaliation Protection for Employees

Last week, The New York Times published an article about the United States Supreme Court ruling in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., No 06-1595, to expand the protection of Title VII of The Civil Rights Act of 1964.

Crawford was a case of workplace retaliation brought by a witness in a sexual harassment investigation who was terminated after cooperating with the investigator. The issue before the Supreme Court was whether someone who was not complaining about employment discrimination that they themselves suffered was entitled to be protected from workplace retaliation.

In Crawford, Justice Souter, writing for the majority noted that “[N]othing 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 her boss asks a question.”

The Crawford decision is very significant in that it shows a shift in the interpretation of the Federal Anti-Discrimination and Retaliation laws to mirror more closely the New York City Human Rights Law which was amended in 2005 to broaden employees’ protection from workplace retaliation.

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February 2, 2009

Puerto Rico Police Department Employment Discrimination Claim Settled with U.S. Department of Justice

On January 30th, 2009, the U.S. Department of Justice (“DOJ”) reached an agreement with the Puerto Rico Police Department (“PRPD”) resolving a claim that the PRPD engaged in unlawful employment discrimination and workplace retaliation based on gender. The complaint, which was filed in March 2008, alleged that the PRPD engaged in discriminatory practices toward Officer Jeannette Carballo Lopez on the basis of her sex. According to the DOJ, the PRPD required Lopez to perform secretarial tasks that were not required of male officers, and the PRPD subjected Lopez to discriminatory remarks. Lopez was told that the Division of Investigation of Stolen Vehicles, which she was working for, was "not for females." Furthermore, the PRPD engaged in retaliation toward Lopez because she opposed employment practices that she reasonably believed to be unlawful, and because she filed a charge with the Equal Employment Opportunity Commission under Title VII. Under the terms of the agreement, the PRPD will pay Lopez $125,000, including attorney’s fees, and will reinstate her to an agent-investigator position.

This case presents most unfortunate circumstances because it involves a government agency engaged in gender discrimination and workplace retaliation. Though just a territory of the United States, Puerto Rico still must answer to the DOJ, and it is troubling that the Puerto Rican Police Department would engage in gender discrimination. As a law enforcement agency, we expect the PRPD to set a positive example in the workplace. Though the case did not go to trial, and thus no form of punitive damages were imposed on the PRPD, it is hopeful that this will deter similar conduct in the future so both men and women can feel comfortable working in an environment free of employment discrimination.

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January 28, 2009

U.S. Supreme Court Provides New Protection for Employment Discrimination Complaints

The U.S. Supreme Court issued a decision on January 26, 2009, which is sure to be the subject of man future blog posts. In Crawford v. Metropolitan Government of Nashville, the plaintiff was a former municipal employee who had been terminated. The company stated that it had fired the employee for “embezzlement.” The employee, however, believed that she was terminated because she participated in an investigation into a sexual harassment complaint asserted by a co-worker. Crawford stated that she was being punished for having confirmed that the complaining employee was actually sexually harassed.

The issue, therefore, was not whether the employee who asserts a claim was protected by workplace retaliation laws – which she would be – but whether an employee who does not herself assert a claim but merely participates in the investigation is also protected.

The Court unanimously agreed that such an employee was protected. Justice Souter wrote that “When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” The Court recognized, therefore, that just by confirming that sexual harassment occurred, the employee was opposing it.

While this decision has long been the rule in New York, both the district and appellate courts in Crawford had reached the opposite conclusion. We are pleased to see that the U.S. Supreme Court is ensuring that employees who in any way oppose discrimination in the workplace are protected against workplace retaliation.

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January 9, 2009

Employment Discrimination and World of Warcraft

Warcraft warriors beware! A recent online discussion among recruiters identifies that certain hiring managers are specifically instructing recruiters to weed out candidates who play World of Warcraft. The rationale given to these recruiters is that Warcraft players cannot give 100% of their focus to their jobs since they are simultaneously concerned with their online personas and their sleep patterns are irregular due to playing the game at night.

It remains to be seen whether this discussion bears any truth. What is clear, however, is that employees who play Warcraft are NOT protected under the employment discrimination laws. The laws, which specifically mention the categories that they protect (ie., age, gender, race), do not include playing Warcraft or any other video game. Even a Hunter at Level 80 is not protected against a boss as evil as Gruul the Dragon Killer.

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November 26, 2008

Social Networking Sites and Employment Discrimination

A recent article in The New York Law Journal discussed that sites such as Facebook and MySpace could potentially lead to employment discrimination cases.

These various social networking sites are chock full of any type of information an employer may use to make a discriminatory employment decision. These sites can easily reveal a person's age, gender, race, religion and sexual orientation. Even photographs of an individual consuming alcohol while not at work, under New York Labor Law 201-d, cannot be used by an employer to affect an employment decision.

These new issues, due to the prevalence of the Internet and other technological innovations, further demonstrate how relevant and ever-evolving the field of employment discrimination law is.

July 8, 2008

Countersuit Filed Against Former Law Firm Partner Alleging Workplace Harassment

The New York Law Journal recently reported that a prominent New York law firm has filed a countersuit against a former Partner. The firm accuses the former Partner, who had originally filed a defamation suit against the firm, of “extremely inappropriate personal conduct,” claiming he had a “pattern of [making] suggestive comments, sexual innuendo, sexual propositions, sexually-oriented teasing, gender-specific jokes and obscene gestures” to other employees.

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June 26, 2008

U.S. Supreme Court Construes Section 1981 as Applicable to Workplace Retaliation Cases

In an important decision, the U.S. Supreme Court decided in a 7-2 decision that a 19th century civil rights statute, known as Section 1981, provides a cause of action for workplace retaliation. Section 1981’s previous construction allowed it to be used to protect employees against racial discrimination in making and enforcing contracts. It is commonly used in trial, due to its breadth and it allows for an unlimited cap on recoverable damages. As a result of these attributes, Section 1981 may be used more frequently and can now be applied to workplace retaliation cases.

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June 17, 2008

Second Failed Libel Case for Terminated Employee

A recent New York Law Journal article reported that a Federal judge has thrown out a pro se libel action against a New York Judge of the 2nd Circuit Court of Appeals. This is the second such dismissal for the plaintiff who claims she was fired unjustly, citing sexual harassment and workplace retaliation.

In both cases, the plaintiff appealed her alleged unfair termination, claiming that the judges defamed her in their statements, thereby damaging her reputation. The presiding Federal judge threw both cases out, calling the recent libel action “frivolous.”

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June 3, 2008

Broad Protection for Employees Facing Workplace Retaliation

The two recent cases decided by the U.S. Supreme Court demonstrate that there is a broad consensus among a diverse group of the Justices that retaliation against workers who complain of race discrimination and/or age discrimination is wrong. In a recent case, Chief Justice John Roberts joined Justice Stephen G. Breyer in the majority opinion of a 7-2 vote holding that a provision of the Civil Rights Act of 1866 covers claims of workplace retaliation that follow complaints about racial discrimination.

In another case, Justice Samuel Alito wrote a majority opinion in a 6-3 decision which held that the Age Discrimination in Employment Act protects federal workers from workplace retaliation after complaining about age discrimination. These two cases show the broad support for protection of employees against retaliation in the workplace.

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May 29, 2008

U.S. Supreme Court Issues Major Decision Regarding Workplace Retaliation

A recent article in the The New York Times reported on a U.S. Supreme Court decision regarding retaliation in the workplace. The Court held that a provision of the Civil Rights Act of 1866, Section 1981, permits the filing of workplace retaliation claims. Workplace retaliation claims arise when an employee makes complaints to their employer about instances of discrimination in the workplace and the employer responds with an adverse action. It was also held that this law covers both Federal and private employees.

This decision is a significant step in favor of employees because it provides recognition of the fact that employers cannot “punish” those who speak out against discriminatory acts in the workplace.

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April 25, 2008

Workplace Retaliation Claims May Still Prevail Where Employment Discrimination Claims May Not

In a recent decision in the case of Weiss v. Morgan Stanley, 05-cv-3310, the Court clearly pointed out that, “A plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as she can establish that she possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.”

It is, therefore, essential that we keep in mind the fact that although the plaintiff may prevail in the underlying employment discrimination claim, there is a reasonable basis to pursue a workplace retaliation claim so long as the sentiments expressed in the Weiss case quoted above, exist.

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April 23, 2008

Scope of Retaliation in the Workplace Expanded

The 6th U.S. Circuit Court of Appeals recently held in Thompson v. North American Stainless, No. 07-5040 (6th Cir.), that third party retaliation is actionable.

In Thompson, a male engineer filed a retaliation suit against his employer claiming that his employer fired him in retaliation for a gender discrimination suit brought by his fiance, who was also an engineer at the same factory.

As a result of this expansion of retaliation, plaintiffs who bring employment discrimination claims against their employer will no longer have to fear retaliation against their friends or relatives who happen to work at the same company.

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April 16, 2008

Retaliation in the Workplace

Frequently, facts which lead to a claim of employment discrimination do more than simply that. They become the foundation for a claim of workplace retaliation. It is important that we remain mindful of the fact that even if a plaintiff does not sustain his/her claim of employment discrimination, whatever the basis may be, if the employee had a reasonable basis to believe that an employment discrimination claim existed and he/she engages in a protected activity by notifying the employer, and advises the employer that he/she will pursue a claim of employment discrimination and the employer then takes adverse employment action, the workplace retaliation claim may be valid although the employment discrimination claim may fail.

It is essential, therefore, that in considering workplace retaliation claims that we are mindful of the following sentiment that was expressed in recent decision in Weiss v. Morgan Stanley, (05-cv-3310 S.D.N.Y), namely that “a plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as she can establish that she possessed a good faith reasonable belief that the underlying challenged actions of the employer violated the law.”

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March 14, 2008

Counterclaims Against Employees Who File Lawsuits Qualify as Workplace Retaliation

An employee may assert a claim for workplace retaliation when he/she is punished for asserting or assisting with a claim of employment discrimination or sexual harassment. One of the elements that must be established in order for such a claim to succeed is that the plaintiff suffer some kind of “adverse employment action” as a result of the complaint. Examples of such adverse employment actions include, but are not limited to, termination, demotion, cut in pay or transfer to less desirable location.

In Fei v. Westl AG, the plaintiff brought suit against his employer, claiming that the company breached his rights under the Fair Labor Standards Act. The company then filed a counterclaim against the plaintiff, claiming that he misappropriated the company’s confidential information.

Judge Baer, of the Southern District of New York, found that the company’s counterclaim against the plaintiff was adverse employment action to support a claim of workplace retaliation. The court found that since the plaintiff alleged that “he has suffered harm to his reputation, intimidation, legal costs and delay as a result of the counter claims,” the counterclaims impacted his ability to secure prospective employment.

The court also relied upon the interesting timing of the counterclaims, noting that if the company was going to file a claim against the employee, why would it wait until shortly after the plaintiff filed his own claim? In short, if a company responds to an employee’s claim under the New York City Human Rights Law with a counterclaim, a company may be exposed to a claim for workplace retaliation.

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March 12, 2008

Employment Discrimination Complaints on the Rise

A recent article in The New York Times reported on the increase in complaints of discrimination in the workplace. The article went on to state that, “federal job discrimination complaints by workers against private employers rose by 9% last year, the biggest annual increase since the early 1990s.”

Based on the article, one might reasonably conclude that job discrimination has intensified. Another reasonable conclusion might also be that more individuals who suffer discrimination in the workplace have been able to observe, from their experiences, that those who complain of employment discrimination do not suffer the results of reporting employment discrimination to the same extent they did previously.

There is a reasonable likelihood to believe that it is not necessarily the increase in discriminatory conduct that caused the number of individuals who report employment discrimination to be greater than before. Instead it could be that individuals have learned that reporting discriminatory acts does not necessarily produce retaliation. The strong workplace retaliation laws that our lawmakers have enacted throughout our country have, in large part, effectively protected those who report discrimination from the retaliatory conduct they feared in the past.

February 27, 2008

More Employment Law Cases for the U.S. Supreme Court

Labor and employment law issues, particularly in the context of the protection of federal anti-discrimination laws, are one of the significant subjects to be addressed on the Supreme Court’s docket during this current term. The Court will hear arguments from both employees and employers on issues ranging from age discrimination (Age Discrimination in Employment Act) and disability discrimination (Americans with Disabilities Act) protection to the U.S. Equal Employment Opportunity Commission (EEOC) filing issues to a case relating to retaliation under the Federal civil rights statutes. This was originally discussed in a recent Outside Counsel column in The New York Law Journal which referred to the Supreme Court’s employment law docket this term.

Among some of cases that the Court will decide will be whether the Age Discrimination in Employment Act’s protections against retaliation by one’s employer can be extended to Federal employees. Another case poses the question of whether the Age Discrimination in Employment Act’s requirement of filing a “charge” of discrimination is met by the filing by an employee with the EEOC of an intake questionnaire and accompanying affidavit. The Federal Civil Rights statutes will also be an area of focus for the Court. The statute at issue, 42 U.S.C. § 1981, does not contain the words “retaliation” or “retaliatory,” yet the question presented is whether a cause of action for race retaliation can be brought under the statute.

It is evident that the U.S. Supreme Court will be spending a great deal of its time grappling with the complex issues of labor and employment law. The employment law field is ever expanding and presents some of the most cutting-edge and developing legal issues of the day.

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January 28, 2008

U.S. Supreme Court Active in Hearing Employment Discrimination Cases

According to a recent article in The New York Times, the U.S. Supreme Court has agreed to hear two new employment discrimination cases this term. One involves age discrimination and the other retaliation against employees for complaining of discrimination. This adds to the several others that the Court had already agreed to hear. Employment law is very well-represented considering that the Court will only hear fewer than 70 cases this term.

In the age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, 30 of whom were over 40 years of age, which places them in the protected class for age discrimination. The employer claimed this decision was made for a legitimate business reason. The Court will decide the question of when an employer claims that employment decisions were based on “reasonable business justification,” whether it is up to the employer to prove that this reason or reasons existed or if it is the burden of the employee to prove that such reason or reasons did not exist. This issue is one that could have a significant impact on employment discrimination law for many years to come.

The workplace retaliation case, Crawford v. Metropolitan Government of Nashville, involves an employee, Vicky Crawford, who did not make any complaints to management herself, but rather when other employees complained, there was an investigation of the complaints, and at that point Crawford was questioned and discussed what she believed to be sexual harassment. The end result was that the supervisor who was the subject of the complaints was not disciplined, but Crawford and several other women who complied with the investigation were terminated. The Court is hearing this case to decide whether protection from retaliation is only available to the employee who initiates a complaint or files a charge with the appropriate government agency or if those who speak in internal investigations can also receive the same protection from retaliation.

It is readily apparent that employment law, specifically employment discrimination, is one of the most active and evolving areas of the law. It is important that employees are aware of the rights and protections they have under the law.

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December 12, 2007

Gender Discrimination Trial Concludes with $11.6 Million Award

A New York federal jury handed down an $11.6 million verdict in October 2007 in the Isiah Thomas sexual harassment case. On Thursday, December 6, 2007 a California state court jury awarded a former Fresno State women’s basketball coach just over $19 million in damages on her gender discrimination, sexual harassment and retaliation claims.

Many civil verdict awards are comprised of both economic and non-economic components, both of which are sometimes broken down even further. In the case of the Fresno coach, plaintiff Stacy Johnson-Klein’s award broke down into four components: Past economic losses, future economic losses, past non-economic losses and future non-economic losses.

Ms. Johnson-Klein’s past economic losses component of the award ($634,254) covers the period between the coach’s firing in 2005 until the commencement of the trial. Past economic losses typically include lost wages and benefits. Ms. Johnson-Klein’s future economic losses component ($4,440,419) projects the plaintiff’s losses if she had not been fired, and typically includes lost wages and benefits measured from the trial through the plaintiff’s work-life expectancy. This point is usually the plaintiff’s retirement age, typically between age 65 and 70.

The non-economic components are awarded to the plaintiff for pain and suffering that she experienced as a result of the defendant's conduct, independent of economic damages. Ms Johnson-Klein was awarded $3 million for past non-economic losses and $11 million for future non-economic losses. In some cases, the jury may award the plaintiff punitive, or exemplary, damages in order to punish the defendant's willful misconduct which led to the suit. However, in the Johnson-Klein case, there was no punitive damages award against Fresno state because in California, punitive damages may not be recovered by a plaintiff against a defendant that is a public entity.

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