Boston Employment Lawyer Blog

The Supreme Court in Meacham v. Knolls Atomic Power Labs issued a pro-employee decision that will make proving age discrimination under the Age Discrimination in Employment Act (ADEA) more practical. We blogged about this case in January 2008 when the Supreme Court first granted certiorari: Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases.

In Meacham, Knolls Atomic Power Labs terminated 31 employees, all but one of whom were 40 years old or older. The employees brought suit under the ADEA and prevailed before a jury. The Second Circuit overturned the verdicts, reasoning that the burden of proof rested with the workers. In its decision, the Supreme Court vacated the Second Circuit's ruling, finding that Congress intended the burden of persuasion to fall with the employer.

To read more about the decision, please visit the New York Times article entitled, Supreme Court Eases Age Bias Suits for Workers.

Handicapped employees must often overcome significant hurdles in the workplace -- both those related to their medical conditions and, unfortunately, misconceptions that commonly result. Where feasible, employers must provide reasonable accommodations to handicapped employees. Failing to do so, as Wal-Mart recently learned, violates the Americans with Disabilities Act (ADA). In Massachusetts, such infractions also trigger liability under the Fair Employment Practices statute.

In June 2008, the Equal Employment Opportunity Commission (EEOC) reached a settlement with Wal-Mart on behalf of a long-time pharmacy technician who suffered a disability, which the company failed to accommodate. Glenda D. Allen was a Wal-Mart employee since July 1993. In 1994, she was wounded during the course of a robbery at another employer causing permanent damage to her spinal cord. As a result, Ms. Allen walked with an abnormal gait, which required her to use a cane.

Despite her medical condition, Ms. Allen was able to perform the full scope of her duties and responsibilities as a pharmacy technician. Nevertheless, Wal-Mart wrongfully terminated Ms. Allen after erroneously declaring that she was incapable of functioning in her position. The EEOC settled the suit on behalf of Ms. Allen for $250,000. In discussing the victory, Ms. Allen had this to say:

After beating all the odds -- surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases -- I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could no longer accommodate my handicap needs. I am hopeful that this settlement will make Wal-Mart take a closer look at its policies and practices with respect to the employment of individuals with disabilities so that what happened to me will not happen to someone else.

To read more about the settlement, please visit the EEOC's Press Release entitled, Wal-Mart to Pay $250,000 for Disability Bias.

The Equal Employment Opportunity Commission (EEOC) recently finished prosecuting a case involving severe sexual harassment as well as gender and race discrimination against New York's landmark restaurant, Tavern on the Green. According to the EEOC, Tavern on the Green subjected female, black, and Hispanic employees to continual lewd and degrading conduct. Female employees were forced to endure demands for sexual acts as well as various forms of groping and inappropriate touching. Black and Hispanic employees experienced racial epithets and ridicule for their accents. The EEOC's evidence also suggested that Tavern on the Green retaliated against employees who attempted to assert their rights.

The EEOC, which brought the suit on behalf of 50 employees, was successful in securing a settlement of $2.2 million. As part of the settlement, Tavern on the Green is also required to establish a telephone hotline for employees to report discrimination complaints. In its Press Release, EEOC New York District Director Spencer H. Lewis made clear the duty that employers owe to their workers:

This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.

According to Professor Marcia McCormick of Cumberland School of Law (Samford University), the lawsuit signified a victory for the EEOC's EEOC's E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was launched in 2008 to eliminate race discrimination from the workplace by enhancing public awareness and through litigating unlawful employment practices.

For more information, please visit the New York Times' article entitled, Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim.

Pregnancy discrimination, which is a form of gender discrimination, is becoming a hot button issue in 2008. The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against Bloomberg L.P., the financial-services and media company founded by Mayor Michael R. Bloomberg, on behalf of at least 54 women who accuse the firm of discriminating against pregnant employees. The suit puts Bloomberg L.P. in a familiar position, representing the latest in a series of discrimination and sexual harassment complaints filed against the firm since the 1990s.

According to EEOC lawyer, Raechel L. Adams, the number of women represented in the class action is likely to grow. As part of its continuing investigation, the EEOC is interviewing 478 Bloomberg L.P. female employees who took maternity leave at some point from 2002 to the present.

Monica Prestia is among those represented in the suit. According to the lawsuit, Ms. Prestia received the worst performance review of her career after giving birth to her first child in 2005. Thereafter, the suite alleges, she experienced hostility from a supervisor who could not have children and was asked by a different supervisor: “What is this, your third baby?”

Although Mayor Bloomberg remains the firm's majority shareholder, the suit does not name him as a defendant. For more information about this issue, please visit the New York Times article entitled, 54 More Women Accuse Bloomberg Firm of Bias.

Employment discrimination cases do not resolve themselves overnight. In 1999, twenty employees of the City's Department of Parks and Recreation filed complaints with the federal Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of race and national origin in both hiring practices and promotion decisions. After approximately nine years of litigation, New York City has agreed to pay more than $21 million to settle what has grown to become a class-action lawsuit on behalf of 3,500 former and current workers.

Beginning in December 2006, the NAACP Legal Defense and Educational Fund helped coordinate the effort to reach a settlement with the City. Theodore M. Shaw, of the Legal Defense and Educational Fund, had this to say:

Today’s settlement is a clear victory for those who were denied equality in the workplace for so long. L.D.F. commends the black and Latino workers of the New York City Department of Parks and Recreation who stood up to this injustice and had the courage to fight for change.

In reaching such a successful result, the plaintiff's relied on well-known economist, Dr. Stephen A. Schneider of Nathan Associates, Inc., who testified as an expert witness on the issue of liability and damages.

To read more about the settlement, visit the New York Times article entitled, City Settles Parks Bias Suit for $21 Million.

Pregnancy discrimination may be on the rise. The Equal Employment Opportunity Commission (EEOC) has reported an up-tick in such complaints. Over the past year, complaints of pregnancy discrimination complaints rose 14% to 5,587. This represents the biggest annual increase in 13 years. Even more alarming, the number of pregnancy discrimination complaints has surged 40% from a decade ago. To read more about this trend, check out Sue Shellenbarger's informative article in the Wall Street Journal entitled, More Women Pursue Claims of Pregnancy Discrimination.

Pregnancy discrimination, also known as family rights discrimination, has certainly picked up steam in the past two years. In December 2007, for instance, the New York Times published a sampling of newly minted buzzwords. Included in the list was "maternal profiling," which the Times defined as:

Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.

(The article is entitled, All We Are Saying)

Surprisingly, the Massachusetts Fair Employment Practices statute (M.G.L. c. 151B, §4) does not explicitly prohibit discrimination based upon parenthood. In 2006, the Massachusetts Superior Court in Sivieri v. Commonwealth of Massachusetts interpreted the statute to include such a prohibition. Under Sivieri, pregnancy discrimination constitutes gender discrimination.

In Sivieri, the plaintiff worked as a paralegal for the state Department of Transitional Assistance (DTA). In November 1999, Sivieri gave birth to her daughter. After returning from maternity leave, Sivieri's direct supervisor made numerous negative comments about her pregnancy. In one instance, her supervisor remarked that their work unit would maintain its productivity as long as no other employees became pregnant. Thereafter, Sivieri was passed up for a promotion for which she was qualified.

In 2002, Sivieri filed suit on the basis that DTA's failure to promote her constituted unlawful gender discrimination. Relying on the plain language of M.G.L. c. 151B, §4, DTA moved for summary judgment, arguing that the alleged discrimination related to parental status vs. gender, and parents are not members of a protected category under Chapter 151. The Superior Court rejected DTA's position, holding that her supervisor's negative remarks toward pregnancy and child rearing was based on gender stereotypes and, therefore, constituted gender discrimination.

The Sivieri decision is undoubtedly a step in the right direction. As the EEOC's statistics indicate, however, there is still much progress to be made.

In March 2007, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit alleging that Walgreen's discriminated against thousands of black workers in hiring and work assignment decisions.

This past week, a federal judge approved a settlement in which Walgreen's agreed to pay $24 million to compensate approximately 10,000 past and present Walgreen's employees who suffered racial bias. Attorneys' fees in the case amounted to approximately $4.5 million. The settlement also requires Walgreen's to hire outside consultants to review and revise their employment practices.

The Supreme Court recently rejected a legal challenge from AARP, which contended that employers that reduce health benefits for former employees who become eligible for Medicare violate age discrimination laws.

The case began approximately eight years ago in 2000 when retired county workers in Erie, Pennsylvania who had their health benefits reduced when they turned 65 claimed that such a policy violated the Age Discrimination in Employment Act (ADEA). The U.S. Court of Appeals in Philadelphia held that this policy amounted to age discrimination.

Initially, the Equal Employment Opportunity Commission (EEOC) agreed with the Appeals Court decision. In 2003, however, the EEOC determined that the ruling would incentivize employers to not offer benefits to retirees for fear of running afoul of age discrimination laws. With this concern in mind, the EEOC proposed an exception to the ADEA, allowing employers to reduce health benefits when former employees became eligible for Medicare.

In June 2008, the Appeals Court essentially reversed itself and upheld the EEOC's new policy. For more information, please visit the Los Angeles Times article entitled, Supreme Court allows retiree benefit cuts

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

• Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

• Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

• Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

• Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

• Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

• Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

• National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

• Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

Reports of race discrimination rose in 2007. The Equal Employment Opportunity Commission (EEOC) registered an increase of 24% from 2006. Complaints rose from 5,646 in 2006 to 6,977 in 2007. In an article entitled, Racial harassment cases rise sharply, USA Today reveals the changing face of race discrimination:

"Nooses are more prevalent," says EEOC chair Naomi Earp. "The noose has replaced the N-word … as the choice if you want to threaten or intimidate someone."

As race discrimination continues to rise, so will lawsuits. Last week, Judge Thelton Henderson of the U.S. District Court for the Northern District of California preliminarily approved Morgan Stanley's $16 million proposed settlement for a racial-bias class action filed on behalf of 1,200 African-American and Latino brokers. In an article entitled Morgan Stanley $16 Million Race Bias Settlement Gets Prelim OK, CNN Money reported on some of the non-monetary aspects of the settlement:

Morgan Stanley agreed to settle alleged discrimination claims by setting up a $16 million settlement fund and establishing programs to boost diversity in its work force. The firm has agreed to work with industrial psychologists to develop hiring, retention and development initiatives for African-American and Latino financial advisers and broker trainees.

Merrill Lynch & Co., the largest retail brokerage house in the United States, is also facing a similar race discrimination suit from African-American brokers.

Judge Robert L. Carter of the Manhattan Federal District Court recently approved a $6.2 million settlement against Local 28 of the Sheet Metal Workers Union. The Equal Employment Opportunity Commission (EEOC) filed the lawsuit 37 years ago in 1971, charging the union with race discrimination for failing to provide equal employment opportunities to nonwhite members. The final settlement compensates 156 Black and Hispanic sheet metal workers for lost wages for the years 1984 to 1991.

Until the late 1940s, the union's constitution contained a provision excluding nonwhites from its membership. According to the EEOC, the union continued to discriminate. In order to prove discrimination, the EEOC relied, in part, on circumstantial evidence, which appeared powerful in this case. In 1974, for example, minority workers comprised only 3 percent of the union’s membership.

More can be read about the settlement in the New York Times article entitled, Settlement in Bias Suite that Stalled for 37 Years.

The settlement could not come at a better time. Today is Martin Luther King, Jr. Day -- a day when we can reflect on the progress we have made as a nation while being mindful of the challenges ahead. Below is Dr. King's I Have a Dream speech:

The U.S. Equal Employment Opportunity Commission (EEOC) recorded a significant win in 2007, securing a settlement of about $1.6 million on behalf of a class of nearly 700 African Americans nationwide who suffered race discrimination.

At issue was a written test used by Ford Motor Corp., Visteon Corp., Automotive Components Holdings, and the United Auto Workers of America (UAW) to select job candidates for Ford's skilled trades apprenticeship program. The test had a disproportionately negative impact on African-Americans.

As part of the settlement, the EEOC was also successful in securing non-monetary relief which, among other things, placed 55 African American test takers into the apprentice program. The settlement complements an earlier suit in 2005 brought by the EEOC against both Ford and the UAW, which was settled for $8.55 million. The most recent suit covers additional job candidates not covered in the 2005 settlement.

On December 3, 2007, the EEOC issued a new Employment Testing Fact Sheet, citing the Ford case.

The EEOC has already experienced similar success in 2008, receiving a landmark settlement of $2.5 million against Lockheed Martin in a race discrimination suit. In that case, a Black aviation electrician was persistently subjected to racial epithets and threatened with bodily harm by his White co-workers during his employment with Lockheed Martin. Click here to read more about the settlement.