Turning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.

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.

On August 5, 2010, the California Supreme Court issued a unanimous decision concerning the type of evidence a worker can rely upon to prove an employer discriminated against him or her. The Court’s decision concerns the so-called “stray remarks doctrine.”

Justice Sandra Day O’Connor coined the term in a 1989 U.S. Supreme Court decision, writing that “stray remarks” made by “non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process” are insufficient evidence of an employer’s discriminatory attitude. Without additional evidence of discrimination, she wrote, a gender discrimination claim can be and should be dismissed by the court before trial.

In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, the worker presented evidence that a partner of the firm told her to “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” and “wear jewelry” to improve her chances for partnership. Justice O’Connor concluded that though such “stray remarks” might constitute evidence of a discriminatory attitude in the workplace, they are not sufficient evidence of discrimination on their own. When combined with more direct kinds of evidence of discrimination, however, stray remarks evidence can tend to support a discrimination claim.

Since 1989, some federal courts have expanded the stay remarks doctrine substantially. In Hill v. Lockheed Martin, for example, the Fourth Circuit Court of Appeals ruled that remarks by non-decisionmakers that the worker was a “useless old lady” “who needed to retire” and was a “troubled old lady,” did not influence the decisional process directly and, therefore, were completely irrelevant to the worker’s discrimination claim.

In its August 5th decision, the California Supreme Court concluded that the wholesale rejection of evidence of stray remarks, as suggested by the Fourth Circuit, is improper. It explained that such evidence can tend to show discriminatory animus or attitudes within the workplace. Under California law, then, stray remarks are relevant and cannot be completely ignored by the trial courts in ruling on pre-trial motions for summary judgment.

While the California Supreme Court’s decision focuses on evidentiary issues and pretrial procedures, the importance of the decision for California workers is significant. Although a racial, sexual or age-based slur might not conclusively demonstrate employment discrimination, such stray remarks combined with other more direct evidence of discrimination (statistics, testimony, emails and the like) can be used to defeat a defendant’s motion for summary judgment before trial.

The California Supreme Court explained that “[T]he stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” Thus, stray remarks can constitute evidence of discriminatory animus. The Supreme Court of California found another federal appellate court’s position on the stray remarks doctrine persuasive. In Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, the Seventh Circuit Court of Appeals wrote: “If [the formal decision maker] acted as the conduit of [an employee‘s] prejudice – his cat‘s paw – the innocence of [the decision maker] would not spare the company from liability.”

Thus, for example, discriminatory comments by a worker capable of influencing the actual decisionmakers can provide admissible evidence of discrimination by the employer.

This is good news for workers in California who often find it difficult to unearth more direct evidence of discrimination. While the California Supreme Court ultimately concluded that, on their own, inappropriate stray remarks by non-decisionmakers do not prove discrimination, its decision will permit workers to present evidence of stray remarks in the context of other discriminatory practices in the workplace.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

Yesterday, President Obama released a statement endorsing the Paycheck Fairness Act and calling on the Senate to pass the legislation.

In America today, women make up half of the workforce, and two-thirds of American families with children rely on a woman’s wages as a significant portion of their families’ income.

Yet, even in 2010, women make only 77 cents for every dollar that men earn. The gap is even more significant for working women of color, and it affects women across all education levels.  As Vice President Biden and the Middle Class Task Force will discuss today, this is not just a question of fairness for hard-working women.  Paycheck discrimination hurts families who lose out on badly needed income.  And with so many families depending on women’s wages, it hurts the American economy as a whole.  In difficult economic times like these, we simply cannot afford this discriminatory burden.

My Administration has already begun to address this problem. In my first week in office, I signed the Lilly Ledbetter Fair Pay Act, which helps women who face wage discrimination recover their lost wages, and in my State of the Union Address, I promised to crack down on violations of equal pay laws. Today the Equal Pay Enforcement Task Force will present its recommendations, which include ways to better coordinate among enforcement agencies and inform employees about their rights.  These steps support women, and they also support businesses that are doing the right thing and paying their employees what they deserve.

We cannot do this work alone. So today, I thank the House for its work on this issue and encourage the Senate to pass the Paycheck Fairness Act, a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.  Passing this bill is one of the Task Force’s key recommendations, and I hope Congress will act swiftly so that I can sign it into law.

We encourage you to show your full support for the bill by going here, and contacting your Congressman.

Is it legal to fire a front desk clerk for not being “pretty enough”? Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.

Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”

Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.

When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.

In some ways Lewis’ victory is not surprising. Over twenty years ago, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court ruled in favor of Ann Hopkins, a hard-charging and aggressive manager denied partnership despite outperforming all other candidates in her year. Hopkins was told that future success at the firm would depend upon her learning to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Court held that unless Price Waterhouse could prove that it would have made the same decision without reference to gender stereotypes, Hopkins was entitled to prevail on her sex discrimination claim because “we are ‘beyond the day’ when an employer could evaluate employees by … insisting that they matched the stereotype associated with their group.”

But are we? Consider this: Had Heartland Inns turned Cullinan’s personal preference for pretty women into a formal job requirement, the case might well have gone the other way.

In 2006, the Ninth Circuit received a great deal of notoriety for its decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). The famously liberal court ruled not once, but twice in favor of Harrah’s casino, after it terminated bartender Darlene Jespersen for refusal to comply with its “personal best” appearance code. The code, which included both gender-neutral and gender-specific requirements, mandated “big hair” and a daily makeup regime for women.

Jespersen, a highly regarded 20-year employee, felt degraded by makeup. The business of a bartender is to mix drinks, assess sobriety, and maintain order. Jespersen argued that wearing makeup interfered with the deft personal touch and sense of authority she relied upon to perform those functions. Unimpressed, the Court held that her “personal preference” did not trump Harrah’s “personal best” grooming policy.

Employers, particularly in the service industry, adopt gender-specific appearance standards for competitive advantage, and defend them on grounds of customer preference. Fortunately, the law already imposes limits on this “business case” for discrimination. “Customer preference,” once a serious barrier to hiring minorities and women, was struck down long ago. “Competitive advantage,” the rationale for requiring stewardesses to parade around in hot pants, was rejected with the tart observation that the business of airlines is to fly passengers safely, not to sell sex.

Even if the required “look” is not overtly sexy, enforcing an idealized standard of feminine attractiveness increases the salience of gender over competence. This can undermine the authority of women whose jobs involve controlling the activities of others: police officers, construction supervisors and – yes — bartenders and flight attendants. While there may be rare situations in which idealized gender-specific appearance is a “bona fide occupational qualification,” the essence of most jobs is providing a service, not fulfilling a fantasy.

Yes, we have come a long way, but sadly, we are not “beyond the day” when employers can enforce gender stereotypes. It should not matter whether a stereotype-driven termination is the result of an individual supervisor’s preference or a company-wide appearance policy, but it does. This is wrong. Courts should know better than to give the green light to gender stereotypes “dressed up” as formal job requirements. If this trend is not reversed, and soon, the resulting effect on equal employment opportunity will definitely not be pretty.

About the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

EEOC Settlement Shatters Glass Ceiling

The Equal Employment Opportunity Commission announced a whopping 19 million dollar settlement of a class action “glass ceiling” lawsuit against Outback Steakhouse last week.

The lawsuit involved a class of female employees who claimed that they were illegally denied:

• equal opportunity for advancement

• promotional opportunities to high level profit sharing management positions
  

• favorable job assignments, particularly, kitchen management experience, which was required for employees to receive consideration for top restaurant management positions

Stuart J. Ishimaru, EEOC Acting Chairman had this to to say in conjunction with the announcement:

There are still too many glass ceilings left to shatter in the workplaces throughout  corporate America. …

Hopefully this major settlement will remind employers about the perils of perpetuating promotion practices that keep women from advancing at work.

Let’s hope so. It’s been almost 30 years since the Wall Street Journal popularized the term “glass ceiling” in an article describing the invisible barriers that women confront as they approach the top of corporate hierarchy.

The Federal Glass Ceiling Commission was created by the Civil Rights Act of 1991 and issued several reports between 1991 and 1996. The last report noted that among Fortune 500 companies:

• 95 -97% of senior managers were men

• 97% of male top executives were white

• 95% of the three to five percent of the top managers who were women were white

I don’ t know how much better the data would look today but my bet would be that the difference wouldn’t be significant.  No doubt  ladies — after all of these years, we still have a long way to go.

I have talked to hundreds of women through the years who confront these issues at work each day. Many just don’t want to rock the boat to fight for the promotions they deserve — and that’s understandable.

That’s why cases like this one are so important. Three cheers for the courageous women who brought this class action lawsuit and the EEOC’s vigorous pursuit of equal opportunity for women.

image: pulse.ncpolicywatch.org/wp-content/uploads/feminis_difference_lg.jpg

*This article originally appeared in Employee Rights Post on January 9, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Employee Terminated Because Of Bankruptcy Gets Right To Trial In Federal Court

I must admit that I don’t ever remember seeing a case involving bankruptcy discrimination — so when I ran across a recent federal court case out of Florida on the subject, it struck me as one well worth talking about.

The case,  Myers v. TooJay’s Management Corporation, is important because there are so few cases on the topic and because bankruptcy affects so many people. The case also highlights some flaws in the statute which could really use a Congressional fix.

What Happened In The Case

Plaintiff Eric Myers filed for Chapter 7 bankruptcy in January of 2008. Around the same time, Myers moved his family to Florida to live with his parents. His debts were fully discharged in May of 2008.

At some point, Myers heard about an opening at one of Defendant TooJay’s restaurants in Sumter County, Florida for a management position.  He called the company contact, Tom Thornton, about the position. Thornton interviewed Myers and the interview went well.

Myers was then scheduled for a two day on the job evaluation which was held at on July 31st and August 1st. During those two days, for which he was paid,  Myers shadowed various employees.became familiar with restaurant procedures.

At the end of the second day, Thornton told Myers that he had performed well and according to Myers, offered him a job.  He was told that he was supposed to start work on August 18, 2008 at a salary of between $50,000 and $55,000 for a 40 hour week.

Thornton contended that he never told Myers he was officially hired, never discussed hours, salary, or a start date.

Thornton contended  he told Myers that any offer of employment was contingent on a background check.

There was no dispute that Thornton photocopied Myers’ drivers license and social security card and had Myers complete and sign several employment forms including :

• an IRS withholding W-4 form

• an order form for TooJay’s uniform and shoes

• a food employee reporting agreement

• an assistant manger trade secret non-disclosure agreement

• an I-9 employment eligibility verification form.

Thornton also gave Myers a copy of TooJay’s employee handbook and sexual harassment policy, and directed Myers to sign forms indicating that he received copies. On each form, Myers signed in the blank listed for “employee signature.”

Myers was also asked to sign a document which permitted TooJay to conduct a background check and consumer credit report check.

After that, Myers notified his then employer that he was resigning so that he could start at TooJay’s.

A little more than a week later, Myers received a letter from TooJay’s stating that it was rescinding its previous offer of employment because of the credit report. He called the Vice President of Human Resources and was told that he was not hired because he had filed for bankruptcy and that TooJay’s, as a matter of corporate policy, did not hire individuals who had a bankruptcy on their credit report.

Myers went back to his prior employer and asked for his job back but it was too late. His work hours had already been distributed to other employees, and he was told that he could only be rehired at a reduced schedule.

According to Myers no one told him that his employment at TooJay’s was contingent on a satisfactory credit report.

Myers filed a complaint in the United States District Court in Florida claiming bankruptcy discrimination in violation of 11 U.S.C s. 525(b).

Issues In The Case

The defendant TooJay filed a motion for summary judgment asking that the case be thrown out on the grounds that:

• the statute only applied to discrimination after an employee was hired

• the statute did not prohibit bankruptcy discrimination with respect to hiring decisions

• Myers was never hired so the statute did not apply

Myers argued that:

• the statue applied to hiring decisions in which an employer refused to hire an individual because of bankruptcy

• the statute applied because Myers had been offered employment,

• he accepted the offer and was terminated because of the bankruptcy

The Court’s Decision

The Failure To Hire Claim

The Court analyzed Section 525 of the Bankruptcy Code which protects individuals from discrimination. 

For whatever reason, there are two different standards in these bankruptcy discriminaion statutes– one for governmental employees [s.525(a)] and one for private employees [s.525 (b)] – and they are different.

The language of the statute regarding governmental employees states that the government :

[M]ay not . .. deny employment to, terminate the employment of, or discriminate with respect to employment against a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act or another person with whom such bankrupt has been associated . . .

Section 525 (b) was enacted several years later. It applies to private employers. Peculiarly, while the topic is the same, the language is different. It states that:

No private employer may terminate the employment of, or discriminate with respect to employment against an individual who is or has been a debtor under this title, a debtor or bankrupt under the bankruptcy Act, or an individual associated with such debtor or bankrupt,….

As the statutory language set forth above indicates, the section pertaining to government employees prohibits an employer from “denying employment” to a person because of bankruptcy.

The section pertaining to private employers does not contain a similar provision.

Therefore, according to the Court,  the section which applies to private employees only prohibits discrimination because of bankruptcy to those already employed.

If Congress intended a different result, the Court reasoned, it would have chosen different words in the statute. (as the opinion points out, only one court has reached a contrary result)

As the opinion states:

Thus by its plain language, the statute does not provide a cause of action against private employers for persons who are denied employment due to their bankrupt status….

In the absence of strong indicia of a contrary congressional intent, [a court should ] conclude that Congress provided precisely the remedies it considered appropriate.

Summary judgment was granted for the defendant TooJay on Myers discriminatory hiring claim.

The Termination Claim

Both parties agreed that terminating an individual’s employment because of bankruptcy status violates 11 U.S.C.s. 525(b).

Meyers argued that an employment relationship with TooJay’s was created on July 31 and August, 1, 2008.  When TooJay rescinded its offer of employment, Meyers claimed, it fired him solely because of his prior bankruptcy in violation of the statute.

TooJay contended that an employment relationship was never created.

The Court found that based on the evidence presented,  the jury could determine that an employment relationship was created.  Important to the Court was proof that:

• Thornton made Myers an unconditional offer of employment
  

• The parties finalized all key employment terms, such as start date, hours of operation,job duties,and salary
  

• Myers signed numerous employee-related forms and received a copy of the handbook

• Myers  actually worked for TooJay’s for two day.

On the other hand, as the Court pointed out TooJay presented evidence through Thornton’s testimony that:

• Myers was never employed by TooJay’s and that
  

• only a conditional offer of employment was made — contingent on a clean background and credit check.

Based on the record and the “material facts in dispute” TooJay’s motion for summary judgment was denied.  Meyers won his right to have a jury hear his claim.

Conclusion

It’s important for all employers to know that it’s illegal to terminate an individual because of an individual’s bankruptcy status.

Hiring decisions are more problematic. Government employers can’t refuse to hire a candidate because of bankruptcy. Private employers, according to most courts, are not covered by the bankruptcy statute with respect to offers of employment.  This makes no sense.

In light of today’s economy, with so many Americans sadly having to declare bankruptcy, these statues should be reconciled so that they are consistent.

All employers should be prohibited from discriminating against individuals due to bankruptcy with respect to all aspects of employment. Congress should amend the language of S. 525(b) so that private employers can’t refuse to hire someone because of bankruptcy.

After all, aren’t these the folks who desperately need to work and earn some income? Isn’t this why we have bankruptcy discrimination laws?

image: newzar.files.wordpress.com

www.floridabeerfestivals.com

*This post originally appeared in Employee Rights Post on December 15, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Finding a manageable work/life balance is something many of us struggle with a great deal–and the stakes only get higher for Americans who work full-time and have caregiving responsibilities at home. Whether that means taking care of children, a sick partner, or an elderly loved one, holding down an ambitious career while still taking good care of those that depend on you at home can be a daunting challenge.

While I’d like to be able to tell you that employers are universally understanding of their employees that struggle with juggling a full-time job while being a caregiver, we all know this simply isn’t true. As if layoffs due to our ailing economy weren’t bad enough, employers discriminating against employees based on their caregiving responsibilities is on the rise–and it has a name: Family Responsibilities Discrimination (FRD).

Before you stop reading this post because you’re thinking “such a wonky-sounding term can’t possibly affect me,” I beg you to take another few moments and keep on reading. Family Responsibilities Discrimination can occur in any number of unfortunate–but very real–workplace circumstances. Such as….

• when a new mother is denied a promotion NOT based on her job performance, but because it is assumed she will no longer be as committed to work once baby enters the picture.
• when a man’s employer refuses him paternity leave because “his wife should do it”
• when a worker is fired for not meeting work goals while he is on legally protected family and medical leave to take care of a sick parent.

A new report by the Center for WorkLife Law’s Stephanie Bornstein & Robert J. Rathmell provides us with information about additional worker protections under local laws about which most people are not aware–like the ones described above. Take this true situation cited in the report, for example:

In Chicago, a single mother of two who filed a complaint for parental status discrimination under the city’s local ordinance was recently awarded over $300,000 in damages. The woman had been fired from her job as a medical services salesperson after rescheduling a meeting because her daughter was ill.

The report finds that while no federal law and only a few state laws expressly prohibit discrimination against working caregivers, at least 63 local governments in 22 states do. The findings also demonstrate that while the scope of local laws may seem limited, their impact can be pretty significant.

Working caregivers shouldn’t end up unemployed because of their responsibilities at home–but the fact is that they sometimes do. While we may not be able to legislate employer attitudes, we can take responsibility for knowing our rights. Read the report here: “Entitled Caregivers as a Protected Class?: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination.”

For more information about each local law collected in the survey, visit www.worklifelaw.org/pubs/LocalFRDLawsDetail.html.

Additional findings of the report can be found after the break.