As if finding a job isn’t hard enough, unemployed workers now face the added hurdle of being discriminated against because they don’t have a job. Speaking today before the U.S. Equal Employment Opportunity Commission (EEOC), Christine Owens, executive director of the National Employment Law Project (NELP),  said that practices barring the unemployed from job availabilities have been growing around the country—and place a disproportionate burden on older workers, African Americans and other workers facing high levels of long-term unemployment.

“There is a disturbing and growing trend among employers and staffing firms to refuse to even consider the unemployed for available job openings, regardless of their qualifications,” said Owens.

Excluding unemployed workers from employment opportunities is unfair to workers, bad for the economy and potentially violates basic civil rights protections because of the disparate impact on older workers, workers of color, women and others. At a time when we should be doing whatever we can to open up job opportunities, it is profoundly disturbing to see deliberate exclusion of the jobless from work opportunities.

The EEOC, which is responsible for handling complaints of employment discrimination, began to receive reports of systematic and often blatant exclusion of unemployed workers from consideration for jobs early last summer. Many ads for jobs often specify that only currently employed candidates will be considered, or that no unemployed candidates will be considered, regardless of the reason for unemployment, or that no candidate unemployed for more than a certain period will be considered.

The job market is tough because the economy is not creating enough jobs. There are still roughly five officially unemployed job seekers for every new job opening.  The economy would need to add roughly 11 million jobs just to return to employment levels at the start of the recession.

Refusal to consider candidates simply because they are unemployed imposes an especially harsh burden on people of color, especially African Americans.  In January 2011, when the official unemployment rate overall was 9.0 percent, the unemployment rate for African Americans was 15.7 percent, compared with only 8.0 percent for white workers.

Similarly, long-term unemployment is far more severe among older Americans than younger workers, which means the impact of excluding unemployed workers from job consideration is greater for older workers.

Owens told the commission:

The dire job market has made it essential that Congress and the administration maintain the most robust program of unemployment insurance benefits in the nation’s history. But what’s needed most—and what all unemployed workers most want—is jobs.

Click here to see Owens’ full testimony before the Equal Employment Opportunity Commission.

This post originally appeared in AFL-CIO blog on February 16, 2011. Reprinted with permission.

About the Author: James Parks-My first encounter with unions was at Gannett’s newspaper in Cincinnati when my colleagues in the newsroom tried to organize a unit of The Newspaper Guild. I saw firsthand how companies pull out all the stops to prevent workers from forming a union. I am a journalist by trade, and I worked for newspapers in five different states before joining the AFL-CIO staff in 1990. I also have been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. My proudest career moment, though, was when I served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

A new report issued by the Immigration Policy Center, “Deeper into the Shadows: The Unintended Consequence of Immigration Worksite Enforcement,” examines what happens to workers after an I-9 audit, wherein the federal governmet inspects employment eligibility forms employers keep on file for each worker.

The results aren’t pretty.

Aftermath of an audit

In Minneapolis, 1,200 workers were fired from ABM Industries, a major building-services contractor, after an Immigration and Customs Enforcement (ICE) audit. Staff members of Service Employees International Union (SEIU) Local 26, the janitors’ union in Minneapolis, surveyed 50 of the workers and found they had on average worked seven years at ABM and were equally composed of men and women.

Of the 50 fired ABM workers surveyed, 31 had found work but now are making 40 percent less than their ABM wages. Fewer than half said they would report their wages to the IRS.

(Most of the surveyed workers are Mexican nationals with an average age of 38. They had lived in the U.S. between six and 24 years, with half arriving before 1999. Thirty-four had children born in the United States. Only nine said they would return to their homeland.)

Last October and December, about 100 workers at two St. Paul, Minn., companies in cattle hide processing and tanning lost their jobs after ICE audits.

On Thursday, January 20, 2011, eight people were arrested after protesting inside of a Chipotle restaurant in Minneapolis. In December, Chipotle fired more than 100 Latino workers following ICE audits. See video below profiling one fired Chipotle worker. (Photo courtesy Workday Minnesota)

Audits at Chipotle Mexican Grill chain, based in Denver, resulted in the firings of at least 100 people in 50 of the chain’s restaurants. (See SEIU video below profiling one worker.) Company spokesman Chris Arnold called it a “heartbreaking situation to lose so many excellent employees” but pointed out that the ICE audit left the company’s hands tied. He said the company asked ICE for an extra 90 days so that the workers could present valid papers, but officials denied their request.

Union officials say the enforcement is not forcing undocumented immigrants to leave the country so much as pushing them into an underground economy that is making them poorer.

When one woman lost her job at ABM, her daughter dropped out of high school to help support the family. She now works seven days a week, two shifts a day in a factory and makes $8.65 an hour without overtime or health benefits.

One worker dismissed from ABM found another seven-day-a-week janitorial job that pays him $25 a night in cash. His hourly rate depends on his speed. “Sometimes its like, $5 an hour,” he said.  He has two U.S.-born children and has no intention of leaving the country. He says:  “I don’t know what’s going to happen to the kids if they catch me. We don’t go outside. We don’t go to church now.”

The Immigration Policy Center report, released on February 9, found that money is slowly being withdrawn from the local economy and people are relying on the barter system.

For example, one man pays less rent in exchange for landscaping. Another shovels snow or tunes up cars in exchange for childcare. According to immigrants interviewed in the report, the use of “tandas” is increasing. A tanda is a revolving credit system based on trust. Participants agree to pool their money. Members of the pool receive that money which they have to repay.

Bad for companies—and the economy?

Companies are also taking a hit. One firm had to fire 150 out of its 200 workers.

According to ICE guidelines, agents who enforce worksite laws must look for evidence of worker mistreatment, trafficking, smuggling, harboring, visa fraud, identification document fraud and money laundering. But a lack of transparency makes it difficult to find out whether the guidelines are even being followed.

John Keller, executive director of the Immigrant Law Center in Minnesota asked, “What are the priorities of this kind of I-9 auditing? It’s a strategy that has a high political value in trying to prove they’re doing enforcement…and going after the bad apples, the worst employers. But the reality is that ABM did not have a serious record of being a bad actor. Why was that a priority?”

Is ICE violating its pledge to go after the worst cases of worker mistreatment?

SEIU Local 26 President Javier Morillo-Alicea says he and other union representatives have taken their complaints to ICE officials in Washington. But he says there’s a disturbing disconnect. “What [the Washington] D.C. ICE [office] tells us has no connection to what local ICE agents do,” Morillo-Alicea contends.  “We are forcing people to the bad actors who profit from the broken immigration system.”

Workers are worried about their livelihoods, their families, whether they will be detained, and the fact that some of their money will not be returned. “When we get paid, they withhold Social Security and Medicare. We pay unemployment and everything in a single paycheck,” Alondra says in the report. (To protect their identities, workers in the report are referred to with pseudonyms or only first names.) She wonders if fired workers will ever see that money.

As the report states,

Immigrant workers are an important part of our labor force. Those who are undocumented, in many cases, entered the workforce when demand was high and have lived in this country for many years, setting down roots and becoming productive members of their communities.

Ripping them from their jobs and families or driving them deeper underground will only hurt the U.S. economy.

Daniel Griswold of the Cato Institute, the libertarian think tank, put it simply while testifying before Congress recently. “We cannot deport our way out of unemployment,” he said.

Watch Video of Fired Chipolte Worker

About the Author: R.M. Arrieta was born and raised in Los Angeles. She has worked at three dailies and two television stations. She currently lives in San Francisco, where she is editor of the Bay Area’s independent community bilingual biweekly El Tecolote. She can be reached at rmarrieta@inthesetimes.com.

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14^th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia, in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14^th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Scalia’s comments stem from his view that the 14^th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14^th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann’s tea party / “Constitutional Conservative Caucus” later this month. For more about questions raised regarding Justice Scalia’s impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities — including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here’s a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk” and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was “grossly excessive” under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee.

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court’s statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

• knew it was against the law to fire an employee because of age

• fired a 63 year old employee with a spotless record

• replaced her with a 31 year old with documented performance problems

• promoted several younger employees with performance issues

• altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs — a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don’t often see decisions affirming a punitive damage award, these cases are worth noting.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Here are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of  the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him (”the white guy”) to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her  discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files — over 1800 documents — which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case  that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company’s code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims.  The law is tricky and changing, and it’s  best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Federal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

• a record of military service
  

• a bachelor’s degree in history
  

• completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

• a bachelor’s and doctoral degrees

• authorship of a length book and numerous scholarly publications

• a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII  And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

• is a member of a protected class
  

• objectively qualified for the position
  

• considered for but is denied the promotion

• an individual outside of plaintiff’s protected class is selected for the position
  

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

• has no basis in fact
  

• was not the actual reason, or
  

• is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims — post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

• Bartlett’s 24 years of experience as a contract administrator: Lucas had 8

• Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college

• Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the fact in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

• informed him that 34 years on the job was enough
  

• joked about whether he had taken up “antiquing or traveling or something like that”
  

• suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs’ employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it  — a hostility on the federal bench to employment cases —is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it’s virtually certain that it’s going to be a long road to justice.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27^th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

It’s a political week, so here are a few short takes – admittedly- with a political twist::

GOP Social Club Sued For Racial Discrimination

The National Republican Club of Capitol Hill, an exclusive club known to be the place where the DC Republican “backroom deals” get made, is being sued for race discrimination by its former human resource manager. The plaintiff, Kim Crawford,  alleges that she was repeatedly passed over for raises while “less qualified, less deserving male and white counterparts were given” increases.

Crawford also claims she was fired in July after investigating a racial complaint from the club’s acting executive chef. Race discrimination in employment and retaliation are prohibited by Title VII of the Civil Rights Act of 1964. For more about it read here.

Being A Liberal And Hating Sarah Palin May Be Genetic

I must say this story caught my eye – particularly since we have three generations of Sarah Palin bashers in my immediate family. A new study in the Journal of Politics, as reported in Time,  says that there’s a biological explanation why some people favor big government, oppose the death penalty and can’t stand Sarah Palin – and it’s called the liberal gene.

The DRD4-7R gene affecting the neurotransmitter dopamine has already been linked to a personality type driven to seek out new experiences. Researchers from the University of California, San Diego and Harvard University hypothesized that this predisposition might affect political beliefs.

The researches suspect that the D4 novelty seekers would have more exposure to a wider variety of lifestyles, a wider circle of friends and more exposure to broader  views, attitudes and beliefs. Apparently, all of this does have an effect on D4 inidviduals’ political views and the new study bears out their hypothesis  —  those born with the D4 gene are more liberal. It’s all quite interesting. I wonder if we’re going to hear about a conservative gene too?

More Latinos Concerned About Discrimination

Nearly two thirds of Latinos in the United States think that discrimination against Hispanics is a “major problem” according to a new study from the Pew Hispanic Center. There are 47 million Latinos in the US, which make up 15% of the population and constitute the nation’s largest minority group. According to the study:

Asked to state the most important factor leading to discrimination, a plurality of 36% now cite immigration status, up from a minority of 23% who said the same in 2007. Back then, a plurality of respondents-46%-identified language skills as the biggest cause of discrimination against Hispanics.

The Pew study was released days before the mid-term elections in which the Latino vote is expected to play an important role, particularly in the Florida gubernatorial race and Nevada Senate contest between Senate Majority leader Harry Reid and Tea Party Republican Sharon Angle. Anlge has been sharply criticized for ads run in recent weeks which portray Latinos as menacing interlopers. 17% of voters in Nevada are Latinos who are expected to vote in high numbers this Tuesday.

images: ktnv.images.worldnow rlv.zcache.com politicalmuse.com

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

This week Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, called Anita Hill and left a message on her answering machine inviting her to apologize for testifying during Clarence Thomas’ confirmation hearings.

The call brought back, with surprising immediacy, those 1991 hearings. For those too young to remember, the hearings may be little more than a paragraph in a history text. But it’s hard to overstate their importance.

For women at the time, Professor Hill’s testimony was riveting and unforgettable. The country watched on TV as Hill related her personal story — describing the sexual harassment she said she endured while working for Thomas as a federal government employee — before a Judiciary Committee composed entirely of men. Not a single woman senator. (Thomas denied the allegations.)

The issue of sexual harassment was out of the shadows.

Before Hill’s testimony, sexual harassment was viewed as a problem for victims, predominantly women, to solve on their own. Most women suffered in silence rather than jeopardize their careers by complaining, even though sexual harassment had been defined as a form of sex discrimination that could be illegal more than a decade earlier by the courts and the federal Equal Employment Opportunity Commission (or EEOC).

Professor Hill was berated and personally attacked during the hearing. Former Wyoming Sen. Alan Simpson waited until Anita Hill’s testimony was concluded to announce, for example, that “I really am getting stuff over the transom about Professor Hill,” without providing any details or substantiation about what he was referring to.

Such treatment became the subject of dinner table conversations around the country, as did the problem of sexual harassment itself. And those conversations continued wherever women met.

Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.

After the hearings, the number of claims of sexual harassment filed with the federal EEOC (the very agency headed by Clarence Thomas where Anita Hill said he had sexually harassed her) more than doubled between 1991 and 1998 (from 6,883 to 15,618).

And women demanded better legal protection. Congress strengthened remedies for victims of sexual harassment at work by passing the Civil Rights Act of 1991, providing damages for the full range of injuries that victims might suffer and giving victims the right to trial by a jury of her peers.

Major victories in the courts struck blows against widespread sexual harassment that women suffered in the workplace, from the mines to Wall Street. Employers took notice, so that now anti-harassment policies are more robust and company training programs are commonplace.

In the aftermath of Anita Hill’s testimony, Justice Thomas was narrowly confirmed to the Supreme Court by a vote of 52 to 48. In what became known as “the Year of the Woman,” record numbers of women were elected to Congress: 28 women were elected to the House of Representatives, more than doubling the total number of female representatives to 47, and four new women joined the only two women then serving in the Senate.

One of those new female senators from the class of 1992, Dianne Feinstein of California, now sits on the Senate Judiciary Committee. Anita Hill dedicated her career to combating discrimination, including sexual harassment, and opening equal opportunity to all in the workplace and beyond.

The voicemail message from Justice Thomas’s wife is a reminder of a moment in time that put a spotlight on sexual harassment. But our country still needs more discussion about the serious harm it causes.

Sexual harassment has certainly not gone away.

The National Women’s Law Center, for example, recently filed an amicus brief in a lawsuit where a female electrical maintenance technician in a male-dominated workplace says she was constantly harassed — with supervisors and co-workers routinely referring to women with demeaning and derogatory words, displaying provocative photos of naked and partially clothed women in common areas throughout the workplace (and not responding to her repeated requests that the photos be taken down), and excluding her from key daily meetings.

Whether bullying and harassment in schools or making women’s lives miserable in the workplace, it’s time to make sure our laws are strong enough, our institutions committed enough, and our public debate serious enough to give women and girls the protections they need and deserve.

There’s still work to be done. For example, Congress needs to eliminate arbitrary limits on damages for sexual harassment victims and to change current legal standards that make it more difficult for students to prove sexual harassment than other claims of discrimination in schools.

Any less not only does an injustice to women and girls, but to our country as well, which needs the talents and skills of us all to thrive.

The opinions expressed in this commentary are solely those of Marcia Greenberger.

This article was originally posted on CNN.

About The Author: Marcia D. Greenberger is Co-President, and co-founder, of the National Women’s Law Center, which since 1972 has been involved in virtually every major effort to secure and defend women’s rights. She testified at the Senate hearings against the nomination of Clarence Thomas to the Supreme Court based on his record, before the information concerning Anita Hill became public. Anita Hill currently serves as a board member of the National Women’s Law Center.

New York City’s firefighters have been embroiled in racial and ethnic politics throughout their history, and the Fire Department’s latest civil rights controversy has stoked a political standoff and a hiring freeze.

The FDNY is still reeling from a federal court ruling in August that put firefighters at odds with anti-discrimination law. The judge ruled that the Department’s recent hiring exam was systematically discriminated against Black and Latino candidates.

But to accommodate the need to hire new personnel, the court offered the city the option of initiating an interim hiring process, as long as the procedures were not discriminatory. The city has so far refused. So now, a long line of frustrated aspiring firefighters remain in limbo, denied a fair shake at obtaining a coveted spot in the ranks of New York’s Bravest.

The Center for Constitutional Rights and lawyers representing the Vulcan Society, an association of Black firefighters, accused the FDNY of obstruction:

We had searched for the least disruptive, least discriminatory, and most fair ways to hire this class. Judge Garaufis, rather than forcing any one method on the City, opted to give it the choice to select the method it preferred.  Instead, the City continues to obstruct any efforts at collective resolution and drag its feet when it comes to diversifying the firefighter workforce.

This suit is in some ways the inverse of the famous Ricci v. DeStefano case, in which a group of mostly white firefighters in New Haven sued over the city’s rejection of exam results that might have invited charges of racial discrimination. In New York City, advocates for Black firefighters charged that the city’s exam process effectively imposed racial barriers.

The controversy is especially heated not just because of firefighters’ status as urban folk heroes, but because the bias at play here isn’t blatant racism but a more subtle intransigence that’s embedded in the institution’s cultural mindset.

While the FDNY’s defenders posture themselves as victims of political correctness, the crux of Judge Garaufis’s ruling was fundamentally not about constructing a race-conscious hiring process, but rejecting tests that simply don’t do their job:

The City has not shown that the current examination identifies candidates who will be successful firefighters. Because the test questions do not measure the abilities required for the job of entry-level firefighter, the examination cannot distinguish between qualified and unqualified candidates, or even between more and less qualified candidates…. What the examination does do is screen and rank applicants in a manner that disproportionately excludes black and Hispanic applicants. As a result, hundreds of minority applicants are being denied the opportunity to serve as New York firefighters, for no legitimate or justifiable reason.

The FDNY’s problem is that it can’t really justify why its squad bears so little demographic resemblance to the city it serves. While Blacks and Latinos make up only 4 and 7 percent of the city’s firefighters respectively, the plaintiff’s lawyers point out, “More than half of Los Angeles and Philadelphia’s firefighters, and 40 percent of Boston’s are people of color.”

The only reasonable explanation appears to be a latent tolerance, if not active defense, of an entrenched white majority. Below the surface lies a complex fraternal subculture rooted in the sinewy traditions of Old New York, when fire companies operated more like ethnic gangs than a government agency.

Today, the FDNY may function more or less as part of the city’s vast bureaucracy, but its resistance to court-ordered reform betrays an arrogance grandfathered from an earlier time.  With their refusal to institute an interim hiring process, they’ve apparently decided that for now, they’d rather put up a good fight, than work with the community to figure out a way to sustain its ranks without violating civil rights. Old habits are hard to extinguish.

This article was originally posted on Working In These Times.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Racewire.org. She can be reached at michellechen@inthesetimes.com

Here are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses  talked about the  “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.