Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘employment discrimination’

New Research Meta-Analysis Makes Compelling Case For Nondiscrimination Protections

Tuesday, May 8th, 2012

Our guest blogger is Crosby Burns, Research Associate for LGBT Progress.

Today the Center for American Progress, the Human Rights Campaign, and the Williams Institute at the UCLA School of Law released a comprehensive database of research documenting the immediate need for federal policies that prohibit discrimination on the basis of sexual orientation and gender identity. This database includes nearly 40 documents totaling 680 pages of research from the ACLU, the Center for American Progress, the Human Rights Campaign, the National Center for Transgender Equality, the National Gay and Lesbian Task ForceFreedom To Work, and the Williams Institute.

The findings of the research contained in this database are consistent and conclusive: LGBT workplace discrimination is a pervasive and persistent problem that requires an immediate solution. Additionally, this research establishes a strong business case for workplace nondiscrimination laws and policies, examines the potential impact of an LGBT nondiscrimination executive order for federal contractors, and highlights strong public and voter support for workplace fairness.

Given these realities, Congress should pass the Employment Non-Discrimination Act and President Obama should sign an executive order requiring federal contractors to have LGBT-inclusive non-discrimination policies. These actions would bring quick relief to the hundreds of thousands of LGBT workers who face employment discrimination in our country today.

Nondiscrimination-Laws-Map

This blog originally appeared in Think Progress on May 7, 2012. Reprinted with permission.

Starbucks Served Venti-Sized Discrimination Lawsuit

Thursday, March 8th, 2012

Leah BraukmanTwenty-five year old Eli Pierre has only one full arm, but he says he’s never been told there was something he couldn’t do.

That is, until last month, when a San Diego, California Starbucks interviewed and then refused to hire him. Mr. Pierre is now suing the Seattle-based company in California state court alleging discrimination and wrongful failure to hire “despite his capable work history,” in violation of California’s Fair Employment and Housing Act (FEHA). He’s also claiming failure to prevent discrimination, to make reasonable accommodations, to engage in the interactive process in violation of FEHA, wrongful failure to hire in violation of public policy, and intentional infliction of emotional distress.

According to ABC News, Mr. Pierre, a former bartender, claims he wasn’t hired because he is missing half of his left arm, and that throughout his interview, he was told that he wouldn’t be able to work there – besides being teased about a previous job he’s held at Victoria’s Secret. (“Maybe he can help you find the right bra size”, the interviewer allegedly said to another Starbucks employee.)

A spokesperson for the coffeehouse chain contends that Mr. Pierre’s version of the interview is “vastly different” from what actually took place, and that he wasn’t hired because of his qualifications and answers to interview questions.

While ABC and the rest of the media provided plenty of information about Mr. Pierre’s lawsuit, it didn’t size up the strength of his claims. LASIS will.

ABC had what little law it did report, wrong. It stated that Mr. Pierre sued for discrimination in violation of the Federal Employment and Housing Act. Such a law doesn’t exist.

California has a state law, the Fair Employment and Housing Act, that is more expansive than federal employment discrimination laws, and that is what Mr. Pierre is relying on.

FEHA prohibits an employer from either refusing to hire or for firing someone based on a physical disability, defined in part as any anatomical loss that affects a body system and limits a major life activity. Not having an arm certainly qualifies as a physical disability, but it hasn’t stopped Mr. Pierre from working, a major life activity under the Act. A former boss even told ABC that Mr. Pierre “can carry more than somebody…with two arms.”

Even so, Mr. Pierre is clearly disabled and his discrimination argument seems pretty solid. Especially if what he said of the interview is true. In a 2002 California Court of Appeals case, a man with a prosthetic leg sued the Los Angeles Police Department when he wasn’t hired as a police officer. The court found no discrimination because the man didn’t meet the physical requirements of the job. And this makes sense. It would be ineffective for a police officer with a prosthetic leg to chase after a fleeing suspect by scaling fences and jumping over obstacles.

It’s harder for Starbucks to argue that it requires both arms to pour coffee. On the other hand, doing some field research I watched the baristas make my drink at a local Starbucks recently, and using two hands surely helped them work as quickly as they did.

But the crux of Mr. Pierre’s argument isn’t that Starbucks should have hired him on the spot, it’s that it didn’t engage in the “interactive process” of identifying reasonable accommodations that would allow him to work there.

In 2008, the California Court of Appeals said an employer is liable if the workplace could be modified to allow an employee to perform the essential functions of the job. For Starbucks, it wouldn’t take much. The interviewer had told Mr. Pierre it would never work out for him at Starbucks because he wouldn’t be able to reach certain syrups while making the drinks. Well, one place for Starbucks to start in trying to accommodate Mr. Pierre would be to move the syrups within reach.

Mr. Pierre also claims that when Starbucks didn’t give him the job or explore any potential accommodations, it violated public policy. The California Court of Appeals recognizes this as a separate claim, but as violations of FEHA are automatically violations of public policy, Mr. Pierre will likely succeed on this public policy argument, as his discrimination claims are rather robust.

Aside from the alleged FEHA violations, Mr. Pierre is suing for intentional infliction of emotional distress. To win on an emotional distress claim, Mr. Pierre would have to prove that Starbucks’ conduct was “outrageous” and exceeded “all bounds…tolerated by a decent society.” In 2006, the California Court of Appeals ruled that unlawful discrimination doesn’t necessarily lead to a successful emotional distress claim. That’s not to say a Starbucks interviewer should have treated Mr. Pierre as he did, but what happened during the interview doesn’t amount to the extreme behavior the court is probably looking for.

As a frequent Starbucks customer, I was disappointed when I heard of these accusations, especially as this isn’t the first time the company has been accused of discrimination. Last year, a Starbucks employee with dwarfism was fired after asking for a stool or stepladder because, the company said, “she could be a danger to customers and workers.” The Equal Employment Opportunity Commission sued the company for discrimination and Starbucks shelled out $75,000 to settle. I’ll keep going to Starbucks for now because I’m hooked. But if I hear of more offensive behavior like this, I might just try Dunkin’ Donuts instead.

This blog originally appeared in Legal as She is Spoke, a project of the  Law and Journalism track at New York Law School, on March 5, 2012. Reprinted with permission.

About the Author: Leah Braukman (2L) is first and foremost a proud graduate of the University of Florida — Go Gators!  While a “Gator” at heart, she is thrilled to be in New York City and studying law at New York Law School, and is equally excited about contributing to this blog. Leah is a member of Law Review, the Institute for Information Law and Policy, the Media Entertainment Fashion Law Association, and the Program in Law and Journalism.

Wisconsin Legislature Votes To Repeal Employment Discrimination Law

Tuesday, February 28th, 2012

Ian Millhiser Wisconsin prohibits employers from discriminating “on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters,” and it ensures that this law has teeth by allowing victims of discrimination to hold their employers accountable in state court. That’s about to change, however, as the Wisconsin legislature recently voted to strip the state’s workers of their ability to actually enforce this law — leaving anti-worker Gov. Scott Walker (R-WI) as the only obstacle to the law’s total repeal:

The Equal Pay Enforcement Act was meant to deter employers from discriminating by giving workers more avenues to press charges. Among other provisions, it allows individuals to plead their cases in the less costly, more accessible state circuit court system, rather than just in federal court.

In November, the state Senate approved (SB 202) rolling back this provision. On Wednesday, the Assembly did the same. Both were party-line votes. The legislation is now in the hands of Gov. Scott Walker (R). His office did not return a request for comment on whether the governor would sign it. . . .

Women earn 77 cents for every dollar that men make. In Wisconsin, it’s 75 cents, according to [the Wisconsin Alliance for Women's Health], which also estimates that families in the state “lose more than $4,000 per year due to unequal pay.”

Walker, of course, has no power to repeal federal law, so he cannot strip Wisconsin workers of their right to be free from race, gender and other forms of discrimination that are banned by national civil rights laws. Nevertheless, Wisconsin law provides additional protections, such as safeguards for people with criminal convictions, that are not available under federal law.

Moreover, as Amanda Terkel points out, Wisconsin state courts can enable victims of discrimination to receive swifter justice instead of waiting for an increasingly overburdened federal judiciary to act. And this problem is only likely to get worse as Walker’s political allies in the U.S. Senate wage an unprecedented campaign of obstruction against President Obama’s nominees to the federal bench.

It’s tough to imagine something more fundamental to a just society that a guarantee that employers will not discriminate, which is why it is so baffling why Wisconsin lawmakers do not believe that their state should protect against such discrimination.

*Disclaimer: The views expressed in this blog post are those of the author’s and not views expressed by Today’s Workplace/Workplace Fairness.

This blog originally appeared in ThinkProgress on February 27, 2012. Reprinted with permission.

About the Author: Ian Millhiser is a Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the Guardian, the American Prospect and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox Business and many radio shows.

Companies Can’t Discriminate, But Their Managers Can: The Supreme Court Gives Wal-Mart the Win in Dukes Gender Discrimination Class Action Case

Tuesday, June 21st, 2011

Piper HoffmanToday the Supreme Court sounded the death knell for Dukes v. Wal-Mart, the class action lawsuit accusing Wal-Mart of paying and promoting women less than similarly- or less-qualified men. To protect corporations from having to do more to prevent gender discrimination than pop a few politically correct paragraphs into the employee handbook, the Supreme Court resorted to a belabored procedural argument that incentivizes corporations to do as little as possible to prevent discrimination. The five-Justice majority did not rule on whether or not Wal-Mart actually discriminates against women – they didn’t let the case get that far. Instead they shut it down by changing the rules of engagement.

One of the plaintiffs’ central arguments was that Wal-Mart has a policy of leaving promotion and pay decisions to the discretion of individual managers, and that these managers have made discriminatory decisions. If the women suing Wal-Mart had prevailed, every American employer would have been on notice that it is not enough to sit on their corporate hands and allow gender discrimination to take its natural course in this way. Instead they would have had to make it their business to ensure that their managers treated women fairly. But the Court didn’t want that, as the majority feels that “allowing discretion by local supervisors” is “a very common and presumptively reasonable way of doing business.” (In his opinion for the majority Justice Scalia also announces, without citing any evidence, that most managers work carefully to avoid discrimination in their pay and promotion decisions when left to their own devices. That makes it all the more puzzling why the higher one gets in the corporate hierarchy in the U.S., the fewer women there are.)

So the Supreme Court looked to procedure. To bring a case as a class action in federal court, the plaintiffs have to get permission from the judge to proceed as a class. This makes sense: you wouldn’t want someone to be able to file a lawsuit on your behalf without an objective outsider considering whether the lawsuit was in your interest and whether the person filing it would represent you well. To protect you from becoming part of a class action that doesn’t benefit you, plaintiffs have to persuade a judge that they satisfy the requirements of what is known as Federal Rule of Civil Procedure 23 before their lawsuit can proceed as a class action.

One of Rule 23’s prerequisites is that “[o]ne or more members of a class may sue…as representative parties on behalf of all members only if there are questions of law or fact common to the class.” The Wal-Mart plaintiffs clearly alleged common questions of law or fact, including statistical evidence that Wal-Mart pays and promotes men more than women; Wal-Mart’s policy of leaving decisions regarding promotion and (within certain ranges) pay up to individual managers; evidence that Wal-Mart has a uniform corporate culture across its stores; and evidence that Wal-Mart’s culture fosters discrimination against women. These are precisely the kind of “common questions of law or fact” that courts routinely accept as satisfying the Rule 23 “commonality” prerequisite.

The Court used this previously clear “common questions of law or fact” requirement to thwart the Wal-Mart women by redefining the requirement beyond recognition. According to Justice Scalia, “common questions of law or fact” now means that plaintiffs must “demonstrate that the class members have suffered the same injury.” In no universe that I have visited do these two phrases require the same thing.

It’s not clear just how far the Court will take this bizarre new rule. Does “same injury” mean that the plaintiffs must show that every single class member was denied the exact same promotion? Or that each one was underpaid by the same amount? Scalia writes that it does mean that suffering “a violation of the same provision of law” won’t suffice as suffering the “same injury.” This is a remarkable and counterintuitive holding: after this ruling, a group cannot sue their joint employer for violating the same legal right for each one of them. Instead they have to prove that the legal violation harmed them in the same way. This is completely backwards: courts exist to redress violations of the law, regardless of whether those violations cause their victims to suffer in the same or different ways. It is thanks to this procedural backflip that Wal-Mart and other employers can now delegate their way out of being responsible for discrimination in their workplaces.

Arguably before Monday’s Dukes v. Wal-Mart decision, American employers were subject to legal liability if they delegated so much discretion to individual managers that those managers created a pattern of discriminating against women – at least, the four Justices in the minority believe that this was the law. Now employers have every incentive to take their hands off the reins and let managers make pay and promotion decisions based on whatever criteria they choose. This is a major loss for women, minorities, senior citizens, the disabled, and any other group that tends to get the short end of the stick in the workplace. The procedural manipulations required to reach this point have caused a major loss for any group of people that seeks to redress a legal violation through a class action: now each individual will have to pay for legal representation alone and probably forego evidence of violations against similarly situated people. Goliath has won, and it is every David for himself.

This blog originally appeared on PiperHoffman.com on June 21, 2011. Reprinted with permission.

About The Author: Piper Hoffman is a writer and employee-side employment lawyer. She holds degrees with honors from Harvard Law School and Brown University. Hoffman blogs regularly on law and social justice issues at piperhoffman.com.

Women, Black Workers Hard Hit by Attacks on Public Employees

Thursday, April 14th, 2011

Credit: Joe Kekeris

The improved jobs figures out last Friday obscured the ongoing decline in public-sector jobs. As the U.S. Bureau of Labor Statistics noted when releasing the March unemployment data:

Employment in local government continued to trend down over the month. Local government has lost 416,000 jobs since an employment peak in September 2008.

The loss of such jobs is important because the nation’s well-being depends not only on job numbers increasing, but on the creation of quality jobs—those that pay decent wages and enable people to attain or maintain a middle-class life. According to National Employment Law Project (NELP), the new jobs being created aren’t as good as the ones that have been lost. NELP found that jobs in lower wage industries, such as retail and food preparation, made up 23 percent of the jobs that were lost in the recent recession. Yet they made up 49 percent of the jobs the economy has gained in the past year. As the BBC Business puts it:

In other words, it appears that while people may finally be returning to work, they have to work for less pay.

In contrast, jobs in the public sector have provided such economic stability. They have also made it possible for some of the nation’s most economically marginalized—women and minorities—to achieve financial security often denied them in the private sector.

So attacks on public employees hit women and black workers especially hard.

Susan Feiner, professor of economics and of women’s and gender studies at the University of Southern Maine, writes that:

employees at the federal (43 percent female), state (53 percent female) and local (61 percent female) levels have been able to better resist the wage reductions, benefit cuts and mass lay-offs that giant multinational corporations have visited upon employees over the last decade.

Yet Feiner finds that “while women represented 57 percent of the public-sector work force at the end of the recession,”

women lost the vast majority—79 percent—of the 327,000 jobs cut in this sector between July 2009 and February 2011, according to a January report by the Washington, D.C.-based National Women’s Law Center.

Steven Pitts, labor policy specialist at the University of California-Berkeley Labor Center, writes today about the striking results of his new research brief, Blacks and the Public Sector. In sum:

  • The public sector is the single most important source of employment for African Americans.
  • During 2008-2010, 21.2 percent of all black workers were public employees, compared with 16.3 percent of non-black workers.  Both before and after the onset of the Great Recession, African Americans were 30 percent more likely than other workers to be employed in the public sector.
  • The public sector is also a critical source of decent-paying jobs for black worker.  For both men and women, the median wage earned by black employees is significantly higher in the public sector than in other industries.
  • Prior to the recession, the wage differential between black and white workers was less in the public sector than in the overall economy.

As California Progress Report writes:

For blacks and others, “the best anti-poverty program is union organizing,” the UC Berkeley Labor Center notes on its website.”

And so moves by Republican governors like Scott Walker in Wisconsin and John Kasich in Ohio to shred the ability of public employees to bargain for a decent middle-class life are also specifically targeting the ability of women and black workers to remain in the economic mainstream.

About the Author: Tula Connell got her first union card while she worked her way through college as a banquet bartender for the Pfister Hotel in Milwaukee (she was represented by a hotel and restaurant local union—the names of the national unions were different then than they are now). With a background in journalism—covering bull roping in Texas and school boards in Virginia—she started working in the labor movement in 1991. Beginning as a writer for SEIU (and OPEIU member), she now blogs under the title of AFL-CIO managing editor.

This blog originally was post on AFL-CIO on April 5, 2011. Reprinted with Permission.

Firing Because Of Bankruptcy Is Illegal

Wednesday, December 23rd, 2009

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

Great Disability Rights Opinion From Seventh Circuit For Employees And Their Lawyers

Tuesday, November 3rd, 2009

Employee With MS Wins Appeal In Seventh Circuit “Regarded As” Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and “unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

Multiple Sclerosis Is A Disability

The first part of the lower court’s ruling pronounced that Brunker had no claim because he was not disabled. In other words, the fact that he had multiple sclerosis didn’t matter, according to the court — even if that’s why he was fired — because MS was not a disability.

The court’s logic was based on case law developed under the ADA which left millions of people with disabilities unprotected from employment discrimination.

Fortunately,  the ADA was amended this past year. Under the new act, multiple sclerosis would be considered a disability (and should have been under the old act as well) so a judge theoretically should not be able to throw the case out on similar grounds. (the court did not address the amended ADA because the case was filed before it was passed)

(For information on new regulations proposed under the amended ADA see the article in the Connecticut Employment Law Blog)

Being Regarded As Disabled Is A Violation Of The ADA

Under the ADA (both the old act and the new one) a person has a claim for disability discrimination if he or she is subjected to an adverse employment decision because he or she is regarded as disabled.

To prove disability discrimination under a “regarded as” theory the employee can win by proving that:

  • The employer mistakenly believes that the employee has an impairment that substantially limits a major life activity, or
  • The employer mistakenly believes that an existing impairment, which is not actually limiting, does substantially limit a major life activity (functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working)

In this case, the Court of Appeals decided that Brunker presented enough evidence that he was fired because Schwan’s regarded him as being disabled. In reversing the lower court, the Court of Appeals stated:

The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking.

For example, the day before he left for the Mayo Clinic, Schwan”s issued Brunker multiple corrective action reports, including a dress code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent conditions.

Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations.

As to Schwan’s motive, the Court of Appeals had this to say:

Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.

These facts are sufficient to create a triable question as to whether Schwan’s regarded Bunker as disabled when it fired him.

The Court Reverses Sanctions Against The Lawyers

It’s typical in these kinds of lawsuits for lawyers representing employees to request documents from the employer defendant to either prove their case  or disprove the defendant’s case. It not only typical; it is absolutely allowed the Federal Rules of Civil Procedure.

In what I can only say is a quirky, outlandish, and mean-spirited ruling, the trial court in this case imposed sanctions on Brunker’s lawyers because they pressed to get the information they believed necessary to properly represent their client.

For example, the lawyers asked for records on whether Schawn disciplined other employees who failed to follow its dress code or to keep accurate route books (some of the reasons give for the discharge).

A request to see co-employees personnel files in order to prove unequal  treatment or whether what the company is stating is true (pretext) is quite standard, but in this case the lawyers were sanctioned for making it.

The Court of Appeals reversed, holding that the information was relevant to Brunker’s disparate treatment claim since it related to the even handedness of the company’s expectations.

The Court also criticized the company’s lawyers for refusing to produce the requested documents and then using them to support their defense.

The Court said:

Indeed Schwan’s went further than merely raising an issue it had previously argued was irrelevant.

It faulted Brunker for failing to identify any route manager who had “similar performance issues” and was treated more favorably.

And Schwan’s also discussed the route manager who was terminated for failing to service customers, despite Schwan’s successful opposition to Brunker’s request for his personnel file.

Similarly,  Schwan denied the relevance of the personnel file of another former employee, Mike Devereaux, but then used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.

Conclusion

This case is a great win for both Mr. Brunker and his lawyers. He obviously had grounds to bring a case claiming that he was terminated because of his disability – and every right to have that case heard by a jury.

As far as the lawyers go, it’s always very difficult to get companies to produce the documents we need to prove our cases. Companies control the records in these cases and they do not give them up easily even when they are plainly relevant.

At the same time there is no doubt that lawyers representing employees have to get those documents both to support our clients claims and test the employers’ defenses. It’s simply a battle that must be fought.

The fact that these lawyers were punished for doing what they needed to do for proper representation of their client is plainly wrong. Fortunately, the Seventh Circuit Court of Appeals agreed.

images: www.pocketyourdollars.com bowtielaw.files.wordpress.com

This post originally appeared in Employee Rights Post on November 1, 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

Important Decision From Sixth Circuit in Discriminatory Failure to Promote Case

Thursday, October 15th, 2009

Female Officer Wins Big In Fight For Discriminatory Denial Of Promotion

It’s not uncommon for women to be passed over for promotions they deserve – but proving gender discrimination has been difficult.

The good news is that the recent decision from the Sixth Circuit Court of Appeals in Risch v. Royal Oak Police Department will make it easier to succeed in these cases in the future. 

What Happened In The Case

Karen Risch was a patrol officer for the Royal Oak Police Department for seventeen years.

In 2005 Risch was passed over for a promotion to the position of detective. Two male applicants, who had lower scores than Risch under the promotion system used by the Department, were awarded the positions instead of her.

Risch claimed that the Department failed to promote her to a command position six times between 2002 and 2005.

Risch filed a gender discrimination claim under Title VII of the Civil Rights Act of 1964. The federal district court (Eastern District of Michigan) granted judgment in favor of the Royal Oak Police Department and threw out Risch’s case.

On September 23, 2009, the Sixth Circuit Court of Appeals reversed and this is why.

Evidence of Pretext

Discrimination cases are hard to prove but here’s how it’s done in a nutshell.

The plaintiff can prove her lawsuit by establishing what is called a prima facie case which can establish an inference of discrimination. If she does that, the defendant must come forward with admissible evidence of a legitimate, nondiscriminatory reason for its action.

Once the Defendant establishes a legitimate nondiscriminatory reason for its conduct,  the plaintiff must identify evidence from which a reasonable jury could conclude that the employer’s proffered reason is a pretext for unlawful discrimination.

A plaintiff can prove pretext by showing that the employer’s stated reason for the adverse employment action either:

  1. has no basis in fact or
  2. was not the actual reason or
  3. is insufficient to explain the employer’s action

In this case, the trial court granted judgment against Risch because it concluded that Risch failed to present sufficient evidence that the Department’s proffered explanation for not promoting her was pretextual.

The Sixth Circuit Court of Appeals disagreed and reversed, holding that Risch did present ample proof of discrimination to to go before a jury.

Here’s the evidence the Court determined to be  evidence of pretext and gender discrimination.

Superior Qualifications

As the Court pointed out, Risch had superior qualifications for the position of detective than two of the male candidates (Moore and Spencer) promoted to the position in 2005. Her scores were better and she had greater experience in the department.

As the Court stated:

Taking the facts in the light most favorable to Risch … it is clear that Risch was as qualified as or better qualified than either Moore or Spencer.

Discriminatory Remarks

The Court noted that male officers frequently made degrading comments regarding the female officers. Some of those remarks included the following:

  • “The chief will never have a female officer on the command staff”
  • “None of you {female officers} will ever go anywhere …”
  • A majority of male officers told Risch that women do not belong in the police force

As the Court stated:

We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext ….

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. …

We do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory animus.

Other Evidence Proving Discrimination

The Court also made note of other evidence it considered to prove a “general atmosphere of discrimination” including discrimination against women in duties, shift assignments, and work distribution.

Part of the evidence was that Lieutenant Foster, who held a senior position in the command staff, gave the men:

  • any kind of detail they wanted
  • all of the plum assignments

The assignments and the work the men didn’t want went to the women.

This evidence, according to the Court, supported Risch’s claim that she was discriminated against regarding her promotion.

As the Court stated (citing its decision in Ercegovich v. Goodyear Tire &Rubber Co. interestingly written by the same judge as this case):

We have explained that management’s consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context.

In light of the above evidence … we conclude that Risch has produced sufficient evidence to establish a genuine issue of material fact concerning whether the Department’s proffered legitimate, nondiscriminatory reason was pretextual.

What’s Important About The Case

What’s important about the case is that the Court broadly looked at a combination of evidence about Risch’s experiences at work (as well as that of other women) and used it to hold that Risch could challenge the department’s failure to promote her. That evidence included:

  • a record of comparative qualifications
  • discriminatory statements by decisionmakers and others in the department
  • an atmosphere of discrimination experienced by Risch and co-workers
  • the lack of women in command positions
  • proof that Risch was arguably better qualified than male candidates

The federal district court disregarded much of the evidence presented by Risch and that, according to the Sixth Circuit Court of Appeals, constituted reversible error.

The simple fact that the Court of Appeals considered all of the evidence of gender discrimination — instead of narrowly limiting the inquiry to the reasons given by the employer for the denial of the 2005 promotion — is what’s really important about this case.

It’s been historically quite difficult for women to prove that they they were denied promotions which went to less qualified male counterparts.

The Sixth Circuit’s opinion in this case –  and its broad interpretation of what kinds of evidence can support these claims –  should go a long way in helping women, as well as other victims of discrimination, get their cases in front of juries where they properly belong.

image:img.alibaba.com

This post originally appeared in Employee Rights Post on October 8, 2009. Re-printed with permission by 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

Zimmer on Ricci

Wednesday, July 1st, 2009

Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court’s Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

About the Author: Mike Zimmer is a law professor at Loyola University Chicago.  One of his main areas of concentration, which includes co-authoring an Aspen casebook, is employment discrimination. He graduated from Marquette Law School, clerked for Judge Fairchild on the 7th Circuit, worked at Foley & Lardner and have taught at a good number of law schools. Zimmer joined the Loyola faculty after 30 years at Seton Hall Law School.

This article originally appeared in Workplace Prof Blog on June 30, 2009. Re-printed with permission by the author.

Defense Attorneys Make Excuses, But the Outcome is the Same

Wednesday, October 1st, 2008

When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

  • When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
  • There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
  • Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

  • explain why plaintiffs fare so much worse in front of federal district court judges than juries;
  • explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”

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