Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

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

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26^th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

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.

Court Elaborates On Types Of  Evidence For Proof Of  Discrimination

The recent case of Merritt v. Old Dominion Freight is hands down one of the best decisions I have come across in a long time.

It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.

What Happened In The Case

Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend  nights and weekends at home.

To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.

When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.

The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.

When Merritt asked why she was not hired, Howard told her that :

• it was decided and they could not let a woman have that position.

• the company did not really have women drivers in the city (as pick up and deliver drivers)

On another occasion he told her:

• the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt

• the VP didn’t think a girl should have that position

Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.

For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.

When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.

Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.

After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.

The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.

The 4th Circuit Court of Appeals Reverses

Title VII makes it unlawful to discriminate against an individual on the basis of sex. The most prevalent  method of establishing discrimination is under the burden-shifting framework set forth in the Supreme Court case of McDonnell Douglas Corp v. Green which goes like this:

• The plaintiff makes out a prima facie case of discrimination

• The burden shifts to the employer to articulate a legitimate, non-discriminatory justification for its allegedly discriminatory action

• If the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reason offered by the employer was not a true reason but a pretext for discrimination.

Ultimately, the plaintiff has the burden of proving that he or she was a victim of intentional discrimination.

In this case, Old Dominion put forth its legitimate non discriminatory justification for discharging Merritt – her failure to pass the PAT.  That proved, according to Old Dominion, that Merritt did not have the “requisite physical strength to safely perform the job duties.” Merritt insisted that this rationale was a pretext for discrimination.

The Court of Appeals agreed with Merritt and found that the “record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot.”

According to the Court, Merritt produced plenty of  evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from performing her job duties as a Pickup and Delivery driver. As the Court pointed out:

Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.

In addition, the Court found that Merritt produced evidence of discriminatory intent. For one:

• Injured male employees did not have to take the PAT test

• Merritt produced evidence that the policy requiring all injured employees to take the PAT test did not exist

As the Court stated:

While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.

In addition, the district court ignored evidence of the corporate culture of discrimination produced by Merritt. The Court stated:

It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position. …..

While the views of others are no proof of the views of Stoddard, at some point the corporate environment in which he worked places Stoddard’s own selective use of the PAT in Merritt’s case in a less neutral context.

In Lattieri v. Equant, ….[w]e deemed the plaintiff’s ‘powerful evidence showing a discriminatory attitude at her company of employment toward female managers’ sufficient to ‘allow a trier of fact to conclude that these discriminatory attitudes led to plaintiff’s ultimate termination.’ Likewise here.

The sum, the Court said:

Old Dominion fired an employee who was, according to the district court, able to do her job without assistance and in a satisfactory manner’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotype work environment.

In this case, it not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial….

Based on all of the foregoing reasons, we reverse the district court’s grant of summary judgment to Old Dominion and remand for trial on Merritt’s Title VII claim.

Take Away

This case helps women in circumstances similar to Merritt’s – firefighters, police officers, constructions workers, etc. — those in male dominated physical professions who still face widespread discrimination because they are simply not wanted.

Just this past fall, I counseled a female firefighter who was repeatedly seeking a promotion, and forced to take numerous tests that were not required of her male counterparts. It’s not an unusual scenario though this type of discrimination is precisely what Title VII is aimed to prevent. The Merritt case, no doubt, should help women fight for equality in the workplace.

In a broad sense, this case hits so many of the issues that come up in discrimination cases all of the time – “stray remarks,” “post- hoc justifications,” “shifting explanations,” the parsing of evidence by district court judges – to name a few, and frames them in a way that will be extremely helpful to employees and their lawyers in discrimination litigation in the future.

images: rlv.zcache.com

This post originally appeared in Employee Rights Post on April 28, 2010. Reprinted with permission.

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.

Wage Discrimination Needs Attention And A Legislative Fix

April 20, 2010 is Equal Pay Day. It was established in 1996 to illuminate the gap between men’s and women’s wages. The date symbolizes how far into 2010 women must work to earn what men earned in 2009.

This year, with the support of President Obama, Equal Pay Day should also bring attention to pending legislation intended to address lingering issues of pay disparity in the American workforce.

Here are some facts about pay equity from the National Organization for Women:

• In 2007, women’s median annual paychecks reflected only 78 cents for every $1.00 earned by men. Specifically for women of color, the gap is even wider: In comparison to a man’s dollar, African American women earn only 69 cents and Latinas just 59 cents. 

• In 1963, when the Equal Pay Act was passed, full-time working women were paid 59 cents on average for every dollar paid to men. This means it took 44 years for the wage gap to close just 19 cents — a rate of less than half a penny a year.

• The narrowing of this gap has slowed down over the last six years, with women gaining a mere two cents since 2001.

• Women’s median pay was less than men’s in each and every one of the 20 industries and 25 occupation groups surveyed by the U.S. Census Bureau in 2007. Even men working in female-dominated occupations earn more than women working in those same occupations.

• According to the Institute for Women’s Policy Research,  if equal pay for women were instituted immediately, across the board, it would result in an annual $319 billion gain nationally for women and their families (in 2008 dollars).

• When The WAGE Project looked exclusively at full-time workers, they estimated that women with a high school diploma lose as much as $700,000 over a lifetime of work, women with a college degree lose $1.2 million and professional school graduates may lose up to $2 million because of pay disparity.

• As a result, these inequities follow women into their retirement years, reducing their Social Security benefits, pensions, savings and other financial resources.

• A study by the American Association of University Women examined how the wage gap affects college graduates. Wage disparities kick in shortly after college graduation, when women and men should, absent discrimination, be on a level playing field.

• One year after graduating college, women are paid on average only 80 percent of their male counterparts’ wages, and during the next 10 years, women’s wages fall even further behind, dropping to only 69 percent of men’s earnings ten years after college

I have represented women in discrimination cases for many years.  From my vantage point it’s clear that while the pay equity issues are not as blatant as they once were, wage discrimination is still a prevalent concern for women of all socio-economic groups.

It’s also true that the Equal Pay Act of 1963, while well intentioned, has not come close to fulfilling its goal due to a whole host of reasons.

The good news is that there is a bill pending in Congress aimed at correcting unlawful wage disparities and which offers a legislative fix for some of the problems with the Equal Pay Act.

The Paycheck Fairness Act (H.R.12 and S.182) was introduced January 2009 by then-Senator Hillary Clinton and Rep. Rosa DeLauro to strengthen the Equal Pay Act of 1963. The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense which will be a real help to victims of pay discrimination.

The Paycheck Fairness Act also prohibits retaliation against inquiring about or disclosing wage information  and proposes voluntary EEOC guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities. The bill was passed by the House in January of 2009 and is pending in the Senate. It’s lead sponsor is Sen. Christopher Dodd.

There were hearings about the bill in March of this year with lots of illuminating testimony, including the remarks of Stuart Ishimaru, acting Chariman of the EEOC, which you can read here if you are interested in more detail about the subject.

The bottom line is if you care about equal rights for women and want to make a difference, please call or write your Senator and urge passage of the Paycheck Fairness Act. Here’s a link that will help you send the message. We know that the President  supports it — we just need to get it on his desk.

images: www.evetahmincioglu.com

*This post originally appeared in Employee Rights Post on April 20, 2010. Reprinted with permission from the author.

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.

Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That’s one of the reasons why I think it’s important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news, Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department.

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’”

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.

Images: corporette.com farm4.static.flickr.com

*This post originally appeared in Employee Rights Post on April 4, 2010. Reprinted with permission from the author.

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.

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

Sex Discrimination Against Men Violates Title VII

Sex Discrimination Against Men Violates Title VII

It’s not often that you see cases involving discrimination against men, but in the last few weeks the EEOC has reported two noteworthy settlements.

The Sex Discrimination Case Against Lawry’s

In early November, the EEOC announced a $1,025,000 settlement of a class action lawsuit against Lawry’s Restaurants Inc., which operates steak houses in Las Vegas, Chicago, Dallas, Los Angeles, Beverly Hills and Corona del Mar, California. 

In the lawsuit, the EEOC charged Lawry’s with maintaining a longstanding company wide policy of hiring only women for server positions.

The policy, which has been in place since 1938, is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination because of sex.

Lawry’s claimed that the policy was based on long standing tradition. The EEOC found that the policy adversely affected a class of men on the basis of sex.

The parties reached an agreement to settle the case in early November. Under the consent decree Lawry’s agreed to:

• change its practice and actively promote the hiring of men into server positions
  

• provide monetary relief including a class fund of $500,000
  

• pay over $300,000 to initiate an advertising campaign regarding the hiring of food servers
  

• pay $225,000 for training its employees on compliance with Title VII and related laws
  

• take additional steps to insure compliance with Title VII and the decree

In its announcement of the settlement, Olophious E. Perry, who managed the EEOC investigation said:

The EEOC will never condone discrimination in the name of so-called tradition. Every individual deserves a fair chance to obtain a job based on their talent and qualifications, regardless of gender.

It seems to me that there are lots of restaurants out there that still have male only, or female only servers. This case makes it clear that this is one “tradition” that has seen its day.

Cheesecake Factory Settles Case Of Male On Male Sexual Harassment

The EEOC announced this week that Cheesecake Factory, Inc, a nationwide restaurant chain, will  pay $345,000 to settle a sexual harassment suit involving six male employees who were subjected to repeated sexual harassment at the company’s Chandler Mall location outside of Phoenix.

The complaint charged that the restaurant knew about and tolerated repeated sexual assaults against six male employees by a group of kitchen staffers.

The evidence included abuse involving the harassers:

• directly touching the victims’ genitals
  

• making sexually charged remarks
  

• grinding their genitals against them
  

• forcing victims into repeated episodes of simulated rape

According to the EEOC, managers witnessed employees dragging their victims kicking and screaming into the refrigerator. Victims’ complaints were made to virtually every manager in the restaurant but the conduct never stopped. Eventually the police were called and an EEOC charge was filed.

Mary Jo O’Neill, Regional Attorney of the EEOC’s Phoenix office had this to say:

The evidence was clear, and everyone knew about it. Behind the lavish décor that the company boasts on its web site was a horribly dysfunctional workplace where male workers lived in fear.

I would like to think that this situation is unusual, but the EEOC’s Phoenix District Office’s press release points out that it’s currently prosecuting a similar case against Fleming’s Prime Steak House.

What’s with these restaurants?

Lessons To Be Learned

When most of us think about sex discrimination, we think about discrimination against women, and that’s certainly what was contemplated when the “because of sex” language was added to Title VII.

(Interestingly, the addition of “sex” by a southern congressman to Title VII in 1964 was seen by most as a cynical attempt to torpedo the bill which was primarily targeted to address race discrimination)

Likewise, when most of us think about sexual harassment, we think of men as the harassers and women as the victims.

(Not so, said the Supreme Court in the landmark case of Oncale v. Sundowner Offshore Services,Inc in 1998; for more on this topic, see my article: What’s Going On With Male On Male Sexual Harassment )

These recent EEOC cases draw attention to the fact that men can be victims of gender discrimination as well as outrageous sexual harassment.  Both forms of discrimination are against the law and can lead to serious consequences for all involved.

Images: www.foodgps.com

www.family-vacation-getaways

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

In the spirit of National Equal Pay Day on Tuesday, I wanted to share the important gender discrimination case of Donlin v. Phillips Lighting North America Corp. decided by the Third Circuit last week.

Here’s what happened in the case.

Colleen Donlin was hired by Phillips as a temporary warehouse employee at its Mountaintop, Pennsylvania distributions center. Her job was to help prepare orders for shipment.

Like other temporary workers, Donlin applied for a permanent position. She was not hired and her eight month temporary assignment ended.

Donlin got two other jobs after she left Philips. At the first job, Donlin earned  $14.70 an hour, but it was a 32-mile commute.

She left that job and found a job closer to home at which she made $13.00 an an hour. Had she been hired by Philips, she would have earned $14.67 an hour as a base salary

Donlin learned that Phillips hired several men for the position she had applied for after it refused to hire her.  She filed a Title VII lawsuit for gender discrimination,  won the trial and was awarded damages.

In discrimination cases, the compensation which can be awarded by a judge or jury is designed to make victims whole and put them in the position they would have been in had they not been discriminated against.

A winning employee can recover “back pay” and “front pay.”

• Back pay represents losses from the the time of the discrimination up to the time of trial.

• Front pay represents the losses that the victim will experience in the future if he or she does not find a comparable position.

Based on the premise that Donlin would have worked for another 25 years, an advisory jury awarded Donlin:

• $63,050 in back pay

• 395,795 in front pay

• for a total of $458,845

The award was based on the difference in pay and benefits between the $13.00 hour job she was holding at the time of trial and the $14.67 hour job she would have had at Phillips had she not been discriminated against when Phillips refused to hire her.

The judge modified the front-pay award by reducing it to account for 10 years of damages instead of 25, finding that a 25 year period was too speculative — so the total award was $164,850.

Phillips appealed and the decision came out last week. The issues decided are very important for both victims of discrimination and their lawyers.

Here are the highlights:

1. Front Pay:

Donlin was in her 30’s at the time of her employment with Phillips and 40 at the time of trial. The question presented was: was how far into the future can a younger employee like Donlin claim economic loss?

For those of us who represent individuals in employment cases, the issue has always been a hard one to deal with when it comes to a younger worker.  The reason is because past damages can be calculated with certainty, but future losses can not:

• Is the person going to get another job?

• If so when and for how much?

• How do we know what someone will be doing 20 or 30 years from now?

When we represent someone in an age discrimination case, and the terminated employee is 55 for example,  it’s easy for us to project damages until age 65 or 70  (whatever the age is that the person was likely to retire).

It’s not speculative to assume that the person would have worked for another 10 or 15 years, and it’s not hard to calculate what he or she would have earned and what the total losses are.

It’s much more complicated when we represent a younger person.  Since the law does not allow “speculative” damages, it’s simply very difficult to predict how far into the future the court will allow us to project.

In this case, the  district court judge ruled that Donlin was entitled to receive damages for economic loss for 10 years into the future. The Court of Appeals affirmed the ruling :

We note that there will often be uncertainty concerning how long the front-pay period should be, and the evidence adduced at trial will rarely point to a singe, certain number of weeks, months , or years.  More likely, the evidence will support a range of reasonable front-pay periods.  Within this range, the district court should decide which award is most appropriate to make the claimant whole …

We find that the District Court did not abuse it’s discretion when it awarded Donlin front- pay for 10 years.

This means that we now we have a decision with a sound analysis for front -pay involving a relatively young employee from a high level court.  It’s a decision that other victims and their lawyers can rely on and it’s a decision that carries considerable weight. It’s very good news.

2. Mitigation

In an employment case, the employee  who has lost a job has a duty to mitigate — which means that she  (or he) must make reasonable efforts to minimize her loss of income. The precise language of the statute says

Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

In other words:

• a person who is claiming damages in an employment case has a duty to look for work

• damages into the future end if an employee gets an equivalent job or better job

• the right to damages end when that opportunity becomes available

In this case, Donlin first got a job in which she earned $14.70 and hour.  The problem was that it was a 32 -mile commute. She worked at the job for two years, and then found a job closer to home at which she made $13.00 an an hour.

She would have received $14.67 an hour as a base salary had she been hired at Philips.

Phillips argued:

• Donlin’s “voluntary transfer” to a lower-paying job was inconsistent with her “duty to mitigate”

• Phillips should not have to make up the difference.

Donlin argued:

• once you factor the cost of the commute

• the the two jobs were substantially the same.

The Court of Appeals agreed with Donlin:

An employee need not seek employment which involves conditions that are substantially more onerous than [her] previous position…

It is well settled that a claimant has not failed to make a reasonable effort to mitigate damages when she refuses to accept employment that is an unreasonable distance from her residence.

[T]he job at Mission constituted a substantially equivalent opportunity as that available at Romark.  Donlin should not be penalized for accepting that opportunity.

Accordingly, the District Court’s finding that Donlin sufficiently mitigated her damages was not clearly erroneous …

Certainly our clients still have a duty  to mitigate and make a “reasonable effort” to find comparable work if they intend to claim damages in a lawsuit.  This decision does not change that fact.

But this decision certainly delivers great news since it clearly states that a person is not required take a job which places an onerous burden on him (or her)  in order the meet that obligation.

On many fronts,  this is a hugely helpful case on questions of damages in employment cases. While we deal with these problems every day, it’s certainly not every day that we get federal circuit court case law on these particular issues.

It’s also a wake up  to employers to be careful about their hiring practices.

The bottom line is that Donlin worked as a temp at a company for eight months. Because she was discriminated against when the company hired a man instead of her into a permanent position, she is now entitled to all of her past losses plus 10 years of damages into the future. That’s a big win.

Images: images.businessweek.com

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

It is the oldest adage in advertising: sex sells. But when does selling products with sex go too far?

In late August, LUSH Cosmetics led a protest against environmentally damaging product packaging by encouraging shoppers to go “naked” by purchasing products free of packaging. While this is a cute concept for a company whose products traditionally lack the common saran wrap sequence seen with other bath and beauty wares – the company also asked their employees to get naked to promote the cause.

While LUSH makes a compelling case against excess packaging – it contributes to two percent of overall greenhouse gases, plastic uses eight percent of the world’s oil resources, the U.S. consumes 79.6 million tons of packaging each year (over half of which still ends up in landfills) – the company crossed the line when it asked workers to educate others by eliminating their clothing.

The campaign may have made headlines, but did it really advance LUSH’s bottom line?

Another example of a company who got a little overzealous with image based marketing is Abercrombie & Fitch, who decided to promote employees based on their looks.

This story describes how a college student was pulled from a sales position of a Dallas Abercrombie & Fitch store, shoved to the backroom to fold clothes because she received a zero ranking on the district manager’s monthly audit report, which included the question, “Do all female models currently working have beautiful faces?”

According to the story, there were two choices – a ZERO or a FIVE (with the higher number signifying an approval rating for the “models,” which is an Abercrombie & Fitch term for sales representatives). Who knew that one had to participate in a “hot or not” contest just to earn a paycheck? Apparently, it’s part of the Abercrombie & Fitch business plan.

Whether it is discriminating against “ugly” people or selling soap without your skivvies – employers should understand all of the above could violate Equal Employment Opportunity laws.

While I do subscribe to the idea that sex can sell – there is no room within marketing tactics to allow employers to discriminate based on looks.

As someone who grew up with a father who was physically disabled, I learned at a young age that your image can mean a lot. My parents never allowed me to be so naive to think that I wasn’t going to be judged me based on how I looked – they had experience with many first hand misjudgments based on physical appearance. And as a result of being judged by their appearance, my father, in particular, always suggested that I look my best, stay healthy and dress appropriately for every occasion. I always keep his experience in mind when I hear people say that it doesn’t matter what you look like – often, it does. But, when employers make superficial requirements in order to earn paycheck, they walk the fine line between judgmental and breaking the law.

Thus, while it is one thing to understand how to market a product for profit – overselling the “sex” factor can lead to a formalized discrimination claim and probably won’t advance a bottom line or brand loyalty in the long run.

About the Author: Jen Nedeau is the Women’s Rights blogger for Change.org, a new blogger network of progressive causes that will be launching in mid-September 2008. Jen grew up in San Francisco, but left the West Coast to attend The George Washington University, where she obtained a B.A. in Journalism. She once pursued a career in political journalism where she wrote for the Washingtonpost.com and Stateline.org, but now works in marketing. She is a member of Women in Politics and Technology and Women Who Tech, in addition to being on the DC Advisory Board for the New Leaders Council. She currently resides in Washington, DC.

A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees–those whose internal sense of themselves as male or female (their “gender identity”) and/or the way they express that gender identity through their appearance, clothing, or behavior (their “gender expression”) differs from the anatomical sex they were designated at birth.

As described in Phil Duran’s excellent recent blog post, we may see similar protections enacted in federal law in the near future. LGBT advocacy organizations and others are currently lobbying members of Congress to support a version of the proposed Employment Non-Discrimination Act (ENDA) that would prohibit discrimination based on both sexual orientation and gender identity and expression.

In the meantime, though, courts have been increasingly open to claims brought on behalf of LGBT employees who face discrimination, using what may seem like an unexpected theory: sex discrimination. In 1989 the U.S. Supreme Court held, in a case called Price Waterhouse v. Hopkins, that federal sex discrimination laws protect employees who are discriminated against because of their perceived failure to conform with gender stereotypes–that is, women who are perceived as too masculine, or men who are perceived as too feminine. Price Waterhouse was a case brought by a woman who was denied a promotion at an accounting firm, despite her excellent performance, because her supervisors considered her too “macho.” They suggested that she ought to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that discrimination based on that kind of gender stereotyping was a form of sex discrimination.

Even though no federal law currently prohibits employment discrimination based on sexual orientation or gender identity and expression, some LGBT employees have been able to successfully use gender-stereotyping arguments to bring sex discrimination claims when they are targeted because of their actual or perceived gender nonconformity. For instance, a sex discrimination claim may be viable when a gay man is harassed because of his co-workers’ perception that he is too feminine or when a lesbian is fired because she is seen as too masculine. Sex discrimination cases brought by lesbian, gay, or bisexual employees can be challenging to win, though, because some courts have expressed concern that the gender-stereotyping theory could be used as a back door means of recognizing what are “really” sexual orientation discrimination claims.  Unfairly, even when an LGBT employee is discriminated against because of gender stereotypes, some courts have denied relief simply because the plaintiff is gay or lesbian or because the discrimination appeared to be additionally motivated by anti-gay animus.

Interestingly, courts have been somewhat more receptive to gender-stereotyping claims brought by transgender employees.  In a groundbreaking decision just issued on September 19, 2008, Schroer v. Billington, a Washington, D.C. federal district court found that a transsexual job applicant had been discriminated against based on “sex.”  She had initially applied for the position–and been offered the job–while presenting as a man, but when she informed the employer of her intention to change her sex to female, the employer withdrew the offer.  The court not only found that gender stereotypes played an unlawful role in her hiring, à la Price Waterhouse, but also held that discrimination because a person changes their sex is “literally” sex discrimination – just as discrimination against those who convert from one religion to another would plainly constitute religious discrimination.  While no other court has yet recognized a sex discrimination claim based on transgender status per se, a number of other decisions have upheld sex discrimination claims brought by transgender employees where the employee can show some evidence that stereotypes played a role in the employee’s negative treatment.

The gender stereotyping theory of sex discrimination can provide valuable protection for lesbian, gay, bisexual, and transgender workers who face discrimination because of their perceived gender nonconformity, although some courts still fixate on the employee’s status as LGBT as a justification for denying an otherwise valid sex discrimination claim. That’s why it’s imperative to pass a fully inclusive version of ENDA: to make it clear to everyone, employers and employees alike, that it’s unlawful to mistreat employees because of traits like sexual orientation or gender identity and expression that have absolutely nothing to do with job performance.

About the Author: Ilona Turner is a staff attorney at the National Center for Lesbian Rights, a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.  Prior to law school, she was the lobbyist for Equality California, the state’s leading LGBT political organization, where she helped win the passage of groundbreaking legislation that significantly expanded the rights of domestic partners under California law and prohibited discrimination based on gender identity and expression in employment and housing.  She received her J.D. from the University of California, Berkeley.