June 26, 2008

United States Supreme Court Construes Section 1981 as Applicable to Retaliation Cases

In an important May 27th decision, the United States Supreme Court decided in a seven to two decision that a 19th century civil rights statute known as Section 1981 provides a cause of action for retaliation. Section 1981’s previous construction allowed it to be used to protect employees against racial discrimination in making and enforcing contracts. It was commonly used in trial, due to its breadth and 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 retaliation cases. If you believe that you were discriminated against at your job or retaliated against when you complained, please feel free to contact us for an initial free consultation at which we would be pleased to discuss your issues with you.

June 3, 2008

Broad Protection for Employees Against Retaliation

The two recent cases decided by the United States 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 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 retaliation after complaining about age discrimination. These two cases show the broad support for protection of employees against retaliation in the workplace.

May 29, 2008

Supreme Court Issues Major Decision on Retaliation

A recent article in the May 28, 2008, New York Times reported on a Supreme Court decision regarding retaliation.

The Court held that a provision of the Civil Rights Act of 1866, section 1981, permits the filing of retaliation claims. Retaliation claims arise when an employee makes complaints to their employer about discrimination, of race, gender, age, and national origin 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 the favor of employees because it provides recognition of the fact that employers cannot “punish” those who speak out against discriminatory acts in the workplace.

May 19, 2008

The Rights of Workers in the Workplace

Over the past several months, we have discussed several significant issues in the field of employment discrimination. We have touched upon everything from evidence in discrimination cases to recent verdicts and decisions to emerging trends and ideas in the field.

But, perhaps, the most significant item that had been discussed were the recent statistics regarding claims filed by employees in the workplace. This means that employees are further realizing and becoming aware of the rights they have against discrimination in all its forms. This is particularly gratifying.

April 16, 2008

RETALIATION IN THE WORKPLACE

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

It is essential, therefore, that in considering 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.”

March 14, 2008

COUNTERCLAIMS FILED AGAINST AN EMPLOYEE WHO FILED A LAWSUIT QUALIFIES AS ADVERSE EMPLOYMENT ACTION IN A RETALIATION CASE

An employee may assert a claim for “retaliation” when he or she is punished for asserting or assisting with a claim of 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 (“FLSA”). 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 counterclaims against the plaintiff was adverse employment action to support a claim of 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 claim. In short, if a company responds to an employee’s claim under the human rights law with a counterclaim, a company may be exposed to a claim for retaliation.


March 12, 2008

JOB DISCRIMINATION COMPLAINTS ARE ON THE RISE

On March 6, 2008, an article appeared in the New York Times, reflecting 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.” According to the statistics, this was the most filed since 2002.

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 discrimination do not suffer the results of reporting discrimination to the same extent they did previously. They have had an opportunity to witness friends and colleagues in the workplace who have reported discrimination but somehow did not suffer the results of discrimination for reporting what they recognized was a violation of their human rights.

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 discrimination to be greater than before. Instead it will be that they have learned that reporting discrimination does not necessarily produce retaliation. The strong 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. This is certainly a hopeful result.

February 27, 2008

MORE EMPLOYMENT LAW CASES FOR THE SUPREME COURT THIS TERM

Labor and employment 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 (ADEA) and disability (ADA) protection to EEOC filing issues to a case relating to retaliation under the federal civil rights statutes. This was originally discussed in the Outside Counsel column of the February 13, 2008, issue of the New York Law Journal written by Robert P. Lewis, 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 ADEA’s protections against retaliation by one’s employer can be extended to federal employees. Another case poses the question of whether the ADEA’s requirement of filing a “charge” of discrimination is met by the filing by the employee with the Equal Employment Opportunity Commission 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 Supreme Court will be spending a great deal of its time grappling with the complex issues of labor and employment law. The employment field is ever expanding and presents some of the most cutting-edge and developing legal issues of the day. It is apparent that due to the complex and rapid developments in employment law, it is essential that should you believe you might need counsel in your employment situation, it is imperative that you contact an experienced professional in the field. The practice of our firm is devoted to employment law in all of its many facets. You have only to reach out for us and we would be delighted to speak with you. There is no fee for this initial consultation, during which time we would discuss the issues you may have. If you wish to browse our website, we would be delighted to have you do so.

January 28, 2008

SUPREME COURT VERY ACTIVE IN HEARING EMPLOYMENT DISCRIMINATION CASES

The United States 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. These issues were discussed in a January 19, 2008 article in the New York Times written by their Supreme Court correspondent, Linda Greenhouse.

The age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, and out of those 31, 30 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 discrimination law for many years to come.

The 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 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 and if they feel one of these rights or protections is in jeopardy, that an attorney experienced in the field of employment discrimination is contacted immediately.

Should you require the need of an employment attorney, we would be pleased to hear from you. We want to assure our readers that we expect to share relevant employment law matters with our friends as it occurs.

December 12, 2007

GENDER DISCRIMINATION TRIAL CONCLUDES WITH AWARD FOR THE PLAINTIFF

Personalities from basketball courts have made appearances in courts of law lately. A New York federal jury handed down an $11.6 million verdict this past October in the Isiah Thomas harassment case. On Thursday, Dec. 6, 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 commencing of the trial. Past economic losses typically includes 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 defendants’ 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 defendants’ willful misconduct which led to the suit. However, in the Johnson-Klein case, there was no punitive damages award against Fresno state; this is because in California, punitive damages may not be recovered by a plaintiff against a defendant that is a public entity.