Posted by marykeating on September 1, 2010 under Interesting cases, Sex-based discrimination | 
Wal-Mart has appealed to the Supreme Court the Ninth Circuit’s green light for the massive class action suit. As reported here earlier, the class action could lead to disposition of 1.5 million claims by women blocked from promotional opportunities. The petition for review asks the Supreme Court to disallow a class action where each worker’s damages have to be separately calculated, and also complained of the sheer mass of the case. The petition makes two main arguments. One is based on the proper interpretation of the federal rule governing class actions. The other argument contends that the plaintiffs’ proof is eased by this method, and that trying a case in this way deprives WalMart of the right to trial by jury.
Lyle Denniston of Scotusblog predicts that the petition will be decided this coming term. If it is granted, then the parties will brief the issues, which are historic. There may not be enough time to conclude the case by the end of the coming term.
One easy prediction: the fact that there are now three women on the Supreme Court will be mentioned frequently (did you read it here first?)
Posted by marykeating on August 27, 2010 under Workplace privacy, disability discrimination |
A local hospital, the Baltimore Washington Medical Center, is accused of forcing out injured employees in violation of the Americans with Disabilities Act and HIPAA. The class action lawsuit filed this week in federal court alleges that the hospital routinely insists that employees returning from medical leave undergo a medical examination by its own physician. The physician then is likely to opine that the employee is not capable of returning to work, contrary to the worker’s own doctor’s opinion. According to the suit, the hospital’s physician uses confidential medical information without the employee’s consent; on the other hand, the physician takes almost no note of the job requirements in deciding that the employee cannot do her job. Therefore there is no interactive process, as required under the ADA, to determine if some reasonable accommodation could keep the employee working.
I have seen this pattern followed by other employers. Fitness for duty exams are legal. But they can be misused. The physician enjoys the cachet of the highly trained professional, who is allegedly worrying only about the employee’s health and well-being. Yet in the hospital setting especially, the physician has a built-in conflict of interest. Even outside the hospital, the fitness for duty exam is performed by someone paid by the employer, and therefore the doctor’s independence may be compromised.
Posted by marykeating on August 15, 2010 under Discrimination in employment |
The most difficult problem for victims of employment discrimination is proving the connection between the action and the discriminatory motive. With Title VII coming up on its 50th anniversary, it is not surprising that most people know not to make discriminatory comments out loud. (Okay, insert Dr. Laura joke here.) Many federal courts have made it more difficult by applying the “stray remarks” doctrine, under which discriminatory statements made by non-decisionmakers, or made by decisionmakers in another context, can’t be used to show that discrimination motivated a termination.
California rejected the automatic application of this rule in an age discrimination case against Google by an older worker told that he was no longer a “cultural fit” for the company.
“An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.” In its analysis, the Court noted how strict application of the stray remark doctrine ignored the actual reasoning of the Supreme Court decisions discussing their use. The use of stray remarks, together with other evidence, can add up to inferences of discrimination. The jury should decide whether these statements indicate that the decision was infected by a discriminatory attitude.
In its analysis, the Court adopts the “cat’s-paw” theory, that the Supreme Court is expected to address this coming Term. “ The stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” The decision’s comparison of many cases proves the point well: different courts reach opposite conclusions on whether certain remarks, like “old fart” or “grey hair” imply an ageist attitude.
California trends are often adopted elsewhere in time, although the cases can be laughed at when they come out. This well-reasoned opinion should be followed so that plaintiffs get the trier of fact to determine the meaning, in context, of comments that sound like discrimination.
Posted by marykeating on June 4, 2010 under Sex-based discrimination |
The New York Times got ahold of what should have remained a confidential memorandum from attorney to client. WalMart’s attorneys at Akin Gump warned the giant retailer fifteen years ago that its demographic statistics and haphazard practices of posting open jobs posed a danger. The survey by the law firm revealed that men were five and a half times as likely as women to be moved into management positions. There, they earned more than women.
As reported here before, the danger signs came together with a massive class action by women claiming a systematic pattern of gender-based discrimination. A judge in the class action will have to decide whether the memorandum can come into evidence. It would be a fiery bit of evidence to be sure, but it does not appear that WalMart waived the protection of the attorney-client privilege. WalMart also claims, in its response to the revelation of the memo, that it has improved its practices and the 15-year old report is too stale to pay attention to. The class action will proceed unless the Supreme Court can be convinced to reverse the decision to let all the claims proceed together.
Posted by marykeating on May 26, 2010 under Discrimination in employment, Race-based discrimination |
In another win for employees charging discrimination, the Supreme Court decided that firefighter applicants could sue for racial discrimination whenever the City of Chicago used an allegedly discriminatory test to fill openings. A class of African-American applicants claimed that the test, and its use, had a disparate impact on African-Americans. The City rejected all applicants scoring at 65% or lower, and decided that all applicants scoring at least 89% were eligible for the next stages of testing. Those who passed the test, but did not score at least an 89, were notified that it was unlikely that they would be called for any openings.
The African-American applicants contended that the test had a disparate impact on black candidates. That is, the test had the effect of eliminating proportionately more black than white candidates. At that point, it is up to the employer to show that the test is sufficiently related to the job requirements that its disparate impact is unfortunate but acceptable.
At the Supreme Court, Chicago admitted that the use of the 89% cutoff was unlawful. It tried to convince the Court, though, that there was only one discriminatory act, the 1996 test and its use to create three groups of people: rejected, qualified, and “well-qualified.” Since no one filed charges of discrimination within 300 days of the announcements of the three lists, it contended that all claims were too late to challenge the test and its scoring.
The Court held that not only the original adoption of the practice, but also the application of the practice, were incidents of discrimination. Therefore the class members were able to file charges of discrimination each time the City used the test.
This decision, authored by Justice Scalia, was unanimous. It is limited to the kinds of actions that do not require proof of discriminatory intent, that is, practices that have the effect, presumably unintended, of discriminating against one group.
Still, it has interesting language seeming to soften the widely criticized (and legislatively dismantled) Ledbetter decision. Quite often, the procedural issues relating to timing and proof structure have monumental consequences for employment discrimination victims, so this case, limited or not, is a positive step.
Posted by marykeating on May 21, 2010 under Sex-based discrimination, Uncategorized |
After finding Novartis liable for wide-spread sex discrimination, the same jury returned a $250 million punitive damages verdict to the class of victims in the Novartis sex discrimination case. The jury announced its award on May 20, after hearing argument and evidence on the company’s worth. The 5,600 class members will be entitled to be heard on the scope of each of their damages. In these situations, the court appoints a special master to administer the pooled fund. In addition, these class members (other than the 12 plaintiffs represented originally in the six week trial) will also be entitled to seek their own compensatory damages, which are based on emotional distress. The judge may also award more back pay damages; $37 million is being sought.
Of course, that assumes that this verdict is final, and that is a lot to assume. Simply by virtue of the verdict’s size, Novartis is sure to appeal it. Many punitive damages awards have been reversed or, more commonly, reduced. A reduction could happen at the trial court level, as lawyers file post-trial motions complaining of the conduct of the trial, the size of the verdict, and various evidentiary issues. This dispute will probably take a few more years to resolve completely. Yet, for the women who have been waiting for as long as eight years, the announced verdict itself must be a victory, and changes at Novartis are a virtual certainty.
The case is Velez v. Novartis Pharmaceuticals Corp., 04 Civ. 9194, in the Southern District of New York.
Posted by marykeating on May 18, 2010 under Sex-based discrimination |
Yesterday a Manhattan jury wound up almost a week of deliberations and rendered a $3.3 million verdict in favor of the 12 named plaintiffs against Novartis AG. The class of 5,600 female sales representatives in the United States will also be able to continue a second phase of trial, and prove punitive damages. The women complained that since 2002 they were kept out of higher management, and according to their lawyer, “tolerated a culture of sexism, a boys’ club atmosphere.” One woman testified that her boss told her to get an abortion after she reported she was pregnant; others talked about managers who took male sales representatives to strip clubs.
This case represents the second largest employment class action on behalf of women, after the Walmart case recently certified to go forward. The jury found that Novartis had engaged in systematic gender-based discrimination, paying women less than similar male employees, failing to promote women to managerial positions, and treating pregnant women less favorably.
The punitive damage phase will begin today, with the jury being told that the value of the company is $9.5 billion.
Posted by marykeating on May 11, 2010 under Religious discrimination, retaliation |
Chief Magistrate Judge Paul Grimm issued an opinion recently that dives into the murky waters of anti-discrimination laws and religious institutions. Under current law, religious institutions have some immunity from discrimination on the grounds of religious beliefs. They can insist upon employing “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” That is, a synagogue can refuse to hire a Baptist as its administrative assistant; it can fire an employee for a religious observance that conflicts with a work schedule.
But Judge Grimm drew the line at religious harassment. Lori Kennedy, a member of the Church of the Brethren, complained of being harassed and eventually terminated because she adhered to a certain dress code dictated by her religion. Having decided to hire a non-Catholic at a Catholic hospital, the institution was not permitted to harass an employee whose modest dress and head covering were called inappropriate in a Catholic institution. The court decided that the harassment is not permitted under Title VII, the federal anti-discrimination statute. 
An interesting twist involves the plaintiff’s claims for illegal termination. Her claim of religious harassment will go to trial. She also complained that she was fired in retaliation for complaining about the harassment, and in violation of her right to be free of religious discrimination. The latter claim fails. The Catholic church is free to fire her for her religious beliefs. But the retaliation claim survives, since it arises out of the harassment. Her damages are the same for either claim.
Posted by marykeating on May 6, 2010 under Sex-based discrimination |
Last month, the Fourth Circuit overturned a trial judge’s decision to reject a sex discrimination claim before it got to trial. Deborah Merritt will now have a jury decide her claim that Old Dominion persists in applying sex stereotypes to its employees.
Merritt was a line haul driver for six years, taking freight to distant states. She wished to transfer to a local driving job so she could spend more time at home. The job is more physically demanding, since the driver does the loading and unloading of the freight. Its hours are more regular, though, and so some employees find it more desirable.
Only six out of the 3,100 local drivers at this company were female. Merritt also produced evidence that her supervisor said that “a girl should not have that position,” in part because the company was afraid women would be hurt on the job. Still, after several applications, and after making sure the men at the terminal did not mind working with a woman, Old Dominion placed her in the job. She did well. Six months later Merritt hurt her ankle and had to take some time to recover. When she was ready to return, she was put through a full-blown fitness test that is only given, occasionally, to new hires. She failed the test, but for reasons unrelated to her ankle injury and unrelated to her ability to perform the work. (For example, she was too short to reach a shelf.) The company fired her and replaced her with male workers.
In reversing the dismissal, the Fourth Circuit considered the pretextual policy of requiring injured workers (only on rare occasions) to take this test, and the statements by Merritt’s boss. It stated, “A plaintiff does not need a ‘smoking gun’ to prove invidious intent, and few plaintiffs will have one.” In this case, “evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction.” In his concurrence, Judge Davis emphasized that company tests must be applied in a neutral manner.
Posted by marykeating on April 30, 2010 under disability discrimination, retaliation |
William Blake sued Baltimore County in 2007 for retaliation. Blake had testified, after being subpoenaed, in a case brought by a fellow officer claiming to have been forced into early retirement in violation of the Americans with Disabilities Act. The next day the County ordered him to report to its chosen physician to determine if he was fit for duty. He was also ordered to bring voluminous medical records. Officer Blake felt compelled to comply with the order, since if he defied his superior he could be fired. But he was quite disturbed by the intrusion into his medical history.
The asserted reason for this exam was a ten-year old single instance of a seizure, which the County had not revisited since it happened until the date after Officer Blake’s testimony. The County’s physician concluded that his physical condition presented no obstacle to his continuing to work. The County followed up with further orders to undergo tests.
Officer Blake presented a classic case of retaliation for participating in a proceeding alleging discrimination. While retaliation has always been illegal, the courts for many years narrowed the ability to pursue a retaliation claim by requiring the retaliation to take the form of a tangible employment action, typically firing or demotion. So the employee who was moved to a tiny office and given no work to do was unable to pursue a retaliation claim.
That was the case until the Supreme Court widened the definition in the case of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In that case the Supreme Court instructed that illegal retaliation occurs when the retaliatory treatment would dissuade a reasonable employee from making or supporting a discrimination claim in the future. It contrasted the anti-discrimination and the anti-retaliation provisions of the laws forbidding workplace discrimination: the anti-discrimination provision “seeks to prevent injury to individuals based on who they are,” while “the anti-retaliation provision seeks to prevent harms to individuals based on what they do.” Therefore, the types of retaliation that could chill the exercise of rights is much broader, and not necessarily limited to the workplace.
Since Officer Blake continues to work for Baltimore County, the jury sitting in federal court in Baltimore awarded him damages based solely on his emotional distress. Kudos to his lawyer, my friend Kathleen Cahill, for helping him obtain justice.
