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 February 14, 2010 under Court news, Discrimination in employment |
As Andy Borowitz might write, this just in from “Duh Magazine:” two new studies prove that the race or gender of a judge is strongly correlated with the outcome of cases involving race and gender discrimination.
One study found that in sexual harassment cases, plaintiffs were twice as 
likely to win if the judge was female. The other study focused on judges of different races, and learned that plaintiffs lost just over half the time if the judge was African-American, but lost 81% of their cases heard before a white judge.
The ABA discussed the studies in a program called about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?” Although Justice Sotomayor took heat for her comment, it rang true for many. These studies concluded that the judges applied the law correctly. The facts, though, are viewed differently depending on whose glasses are used. We have all seen this phenomenon at work; a remark that seems innocuous to one person is perceived as a grievous insult by another. A series of job assignments looks neutral to the white male, while the women easily interpret the pattern of discrimination.
We all bring the experiences of ourselves and our friends to the task of judging what happened in a stranger’s case, and was it motivated by discrimination. Employment discrimination plaintiffs often choose to have juries decide their cases, since the accumulation of experience helps cut through bogus defenses. Also, since many judges have excelled their entire lives, they have never felt held back by discrimination. I believe some have grown to believe that discrimination does not truly exist, unless it is so blatant that there can be no alternative interpretation. (And those cases settle.)
The problem arises with these blinders because federal courts decide so many cases on summary judgment. The judges look at the facts as presented by the lawyers, affidavits, and depositions, and frequently decide that there are not enough facts to warrant a trial. And this is where the accumulation of experience, the perspective of the gatekeeper, does not let in the possibility that subtle actions whisper discrimination.
Posted by marykeating on January 29, 2010 under Discrimination in employment, Wage and hour issues |
As is typical in a State of the Union address, the President touched Wednesday on a number of themes, domestic and foreign. But he specifically alluded to two employment issues that have a lot of resonance in a post-Bush era.
“We are going to crack down on violations of equal pay laws — so that women get equal pay for an equal day’s work.” Nice words; in actuality it has proved difficult for women to prevail on equal pay laws, which require the genders to be paid equal pay for equal work, where the jobs require equal skill, effort, responsibility, and working conditions. Although cases say that the jobs need to be “substantially” equal, courts have too often required women to show that the male who is making more money is doing the identical job, and has identical qualifications. There are always some differences between people. Proving that two jobs are substantially equal is nearly impossible at higher levels, like vice presidents. Yet when a woman at the same level of a corporate organization chart makes $30,000 less than her peer, there should be some redress. Let’s hope the President’s promise comes with some improved legislation.
In the inspirational department, the President said this:
“Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else. We must continually renew this promise. My Administration has a Civil Rights Division that is once again prosecuting civil rights violations and employment discrimination.”
Again, nicely stated. But there are plenty of indications that the enforcement has been ratcheted up at the federal level, by both the EEOC and the Department of Justice.
Posted by marykeating on November 6, 2009 under Gender orientation discrimination, Pending legislation |
As reported here, the Employment Non-Discrimination Act, or ENDA, is one of the Obama administration’s top priorities. The bill would outlaw discrimination on the basis of gender identity and sexual orientation. Those categories are protected under Maryland law, but not federal law yet. There won’t be action this calendar year. It’s hard to tell whether the defeat of the same sex marriage proposition in Maine will affect prospects of this law.
Posted by marykeating on October 9, 2009 under Discrimination in employment, Workplace privacy |
Employees these days are flooded with applications. So they have to weed out people somehow. Once you get past the poorly done cover letter, the resume with typos, the lack of relevant experience, there may still be a pile of possibly good candidates. What’s an employer to do?
Well, some are demanding from applicants the right to run credit reports, and to use the results to make decisions. An employer who obtains a credit report without a valid reason or authorization is asking for trouble under the Fair Credit Reporting Act. But what about the ones who have permission?
Bad credit can be a very loose proxy for poor judgment or irresponsibility, of course, but the credit report itself seldom gives a realistic portrayal of the circumstances that explain the credit card load, the repossessed automobile, or the lawsuits by the hospital. Divorces, job loss, and medical catastrophes cause more bankruptcies than anything else, so it stands to reason that they are behind other bad ratings in a credit report. Employers relying too heavily on credit reports will deprive themselves of good workers. They may also, inadvertently or not, exclude disproportionate numbers of women, minorities, and young workers.
Some employers have a reasonable basis for requiring a credit report. Companies with contracts requiring national security clearances may have to be careful of the employee with too much debt, implying a weakness for espionage. (Or is that all left behind with the cold war era?) Employees hired to handle cash or bank accounts may warrant additional scrutiny if their credit reports indicate late payments in their personal lives, or huge debt loads. But as a tool for analyzing which applicant for a job or a promotion would do the job well, the personal credit report is a dull ax, and should be used only with some refining, such as giving the employee the right to explain thoroughly. In fact, under the FCRA, an employee has the right to know that the report’s findings were used against him or her. It is hard to discover if that requirement was ignored, though.
Posted by marykeating on September 14, 2009 under Sex-based discrimination |
Last year the EEOC sued the Baltimore supermarket chain, Mars Super Markets, Inc., in the United States District Court in Baltimore, alleging sex discrimination. It accused the supermarket of refusing to permit women employees from becoming meat cutters in its deli departments. After a clerk in the Dundalk store was refused the job, the EEOC investigated and discovered a pattern, and filed suit in federal district court.
Mars agreed to settle the case earlier this month. In addition to paying a settlement of $275,000 to several women who were illegally denied these jobs, Mars agreed to train its supervisors in avoiding discrimination, to offer meat cutter jobs to women who had previously been denied them, to develop meat cutter job descriptions, to keep better records, and to post notices about the employees’ rights.
This case is a little unusual in its pattern of discrimination. It seems that most employers have caught on to the laws against gender discrimination, and the complaints of discrimination are often based on subtle indications of bias. In this case, though, the supermarket is accused of applying a blanket prohibition against women becoming meat cutters. Why – because men are thought to have superior physical strength? Or some notion that it’s a masculine job? In any event, Mars is taking detailed steps to prevent the same prejudices from barring women from performing this job.
Posted by marykeating on August 27, 2009 under Discrimination in employment, Pending legislation |
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to prohibit discrimination against employees who serve or have served in the United States military. One of the problems that the law tried to remedy is a reserve employee’s uncertainty about his or her schedule. Because someone with reserve obligations to the military may be called up with little notice, some employers denied them jobs or promotions. USERRA requires an employer to reinstate an employee after the tour of duty is over, which many employers find difficult to accommodate. The law applies to virtually all employers, without the typical threshold number of employees.
Still, the number of claims in this region is not huge. There are only three cases reported on Westlaw, which does not capture every case but is indicative of the prevalence of the claim. One reason could be the difficulty of proving discrimination in hiring. Proving discrimination at all is seldom easy, but hiring is particularly difficult. In a failure to hire case, the claimant lacks the usual access to coworkers and personal knowledge at the workplace that exists when an employee claims discrimination in a termination. In a recession, it’s even harder, since there are usually multiple applicants for open jobs, and the failure to choose the veteran or the Army Reserve officer can be justified by some ground or other.
Congress is considering a new bill to amend USERRA to provide rights for veterans who have been injured or disabled during their military service. The law would extend health benefit and leave of absence rights to employees receiving treatment for their service-connected disabilities. The law, if passed, would provide that employees may use any accrued sick and vacation leave, do not lose any seniority rights, and have the right to return to their jobs. The House passed the bill, the Wounded Veterans Job Security Act, in June. It is before the Senate now.
Posted by marykeating on July 20, 2009 under Sex-based discrimination |
An article in today’s National Law Journal discusses the use of text messages as evidence of sexual harassment. Texting provides an easy means of communication, and it may feel as ephemeral and private as an oral conversation. Phone calls, however, are not usually recorded, and in this state anyway, can’t be recorded legally without the consent of both sides or a court order. Text messages leave electronic footprints, and can be forwarded, retrieved, printed, and saved for posterity.
The article discusses a case in which the “he said-she said” nature of many sexual harassment claims unraveled when the harasser’s text messages were revealed, showing that the claimants were indeed telling the truth about the college coach’s inappropriate activity. Read more here.
Posted by marykeating on July 16, 2009 under Age discrimination, Discrimination in employment |
According to the Washington Post, the Equal Employment Opportunity Commission held a meeting yesterday to address the phenomenon of skyrocketing age discrimination claims.
Age claims in 2008 outstripped 2007 claims by 30%. There is no reason to expect that 2009 will be much different. The biggest difference will be the enhanced difficulty of proving the claims. In the last weeks of its term, the Supreme Court issued several important decisions of interest to employment law practitioners. One of them had less newsworthy facts than the white firefighters case, but will have a far greater impact. In Gross v. FBL Services, the Supreme Court raised the level of proof needed by a discrimination claimant under the Age Discrimination in Employment Act. The Court unaccountably decided that the burden of proof for age discrimination plaintiffs should be higher than that for victims of race, sex, national origin or religious discrimination. These cases are difficult to make into headline news, but the reality is that most workplaces are free of open and hostile discrimination. Every educated person knows better than to spout racist invective. That does not mean that we are truly in a post-racial society, but rather that much of the bias has gone underground. The difficulties of proving that, “but for” the age of the worker, he or she would not have been fired can be insurmountable.
Age discrimination is an odd kind of bias, since it’s not based so much on “otherness,” as racial discrimination might be, as on assumptions that older people are slower, less technologically oriented, or simply in the way of the progression of the young. I have long thought that federal judges, especially, have trouble understanding the dynamic of age discrimination, since they are usually rewarded for their experience and seasoning. No one makes a federal judge retire, and no one (except perhaps a peer) dares to suggest that he is losing any competency. They are almost without supervisors, so they do not have the experience of having their territories restructured, their direct reports reassigned, or other sly methods of interfering with their performance. When these changes are designed to interfere with performance, or have the effect of reducing an older person’s performance ratings, age discrimination may be the motivation. But in these economic circumstances, when restructurings and reductions in force are commonplace, it is not going to be easy to prove bias.
In an earlier era, when the Supreme Court tipped the scales toward employers, Congress reacted with the Civil Rights Act of 1991. Perhaps Congress will take the reins again.
Posted by marykeating on July 10, 2009 under Pending legislation |
Employment lawyers have long been lobbying for relief from the tax penalties imposed on winning or settling plaintiffs. There are several problems, that a new bill is intended to fix. First of all, employees who get a back pay award to compensate for several years of discrimination receive it in one tax year, ordinarily, and therefore pay at a higher tax rate than if they had gotten the pay originally, or if they could average the compensatory amount over several years. Second, any damages awarded for the emotional distress associated with sexual harassment or disability discrimination or any other type of non-wage compensation are taxable. This is opposite of what happens in an accident case, where most or all of the award is tax-free.
The Civil Rights Tax Relief Act of 2009 (CRTRA) is now pending in both houses of Congress. The House bill, H.R. 3035 , and Senate bill, S. 1360 would allow both income averaging and the minimization of taxation on non-economic damages. Although most employment legislation finds business and employees on opposite sides, these kinds of bills are usually supported by employers and employees alike, since they make it easier to settle cases. For example, several years ago Congress passed an amendment to the tax code to eliminate the double taxation of discrimination awards. Before the 2004 American Jobs Creation Act enactment, the tax law required an employee to report as income the entire award or settlement on his tax return, even though a part of the money had been paid to the lawyer. (The lawyer, of course, paid taxes on the same money.) Although there was a deduction for the fees, many people found themselves liable for the alternative minimum tax amount. This law, too, was supported by business and civil rights organizations as a matter of fairness.
