Boston Employment Lawyer Blog

The Massachusetts Maternity Leave (MMLA) experienced a set back with the Supreme Judicial Court's ruling in Stephens v. Global NAPs. I had the opportunity to provide my thoughts about the decision to WBZ's Diane Stern. The interview can be accessed below:

As background, the MMLA, which is codified under M.G.L. c. 149, §105D, guarantees "eligible" employees 8 weeks of unpaid leave for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. To learn more about the MMLA's eligibility requirements and for a summary of the key differences between the MMLA and the Family & Medical Leave Act (FMLA), please visit our previous post, Medical Leave Eligibility and Handicap Status in the Workplace Explored.

In Stephens v. Global NAPs, Sandy Stephens worked for Global's president as a housekeeper. In late 1999, she informed her supervisor of her pregnancy and that her last day of work before maternity leave would be July 14, 2000. Under the MMLA, Ms. Stephens was guaranteed 8 weeks of unpaid maternity leave. Her employer, however, promised her an additional 3 weeks of unpaid leave if she required a Cesarean section, which she did. Unfortunately, when Ms. Stephens tried to return after 11 weeks, Global reneged on its promise and informed her that she no longer had a job. Ms. Stephens brought suit under the MMLA and a jury found against Global for compensatory damages in the amount of $1,366,165 and punitive damages in the amount of $1,000,000.

The question before the SJC was whether Ms. Stephens could properly state a claim under the MMLA. According to the Massachusetts Commission Against Discrimination (MCAD), the Commonwealth's chief civil rights agency charged with interpreting and enforcing the law in question, the answer is "yes." In fact, the MCAD's Maternity Leave Act Guidelines explicitly address this issue:

An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.

Although the SJC has previously acknowledged that such guidelines "represent the MCAD’s interpretation ... and are entitled to substantial deference," it abandoned the MCAD's interpretation of the MMLA. Specifically, despite the employer's promise that Ms. Stephens could take an extra 3 weeks off, the SJC held that she "was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks." As the SJC noted, however, the employer's broken promise may give rise to a claim "for breach of contract, breach of oral representations, detrimental reliance, or the like." For reasons beyond the scope of this discussion, such claims are significantly more difficult for an employee to pursue.

In light of the Stephens decision, employees are well-advised to understand their rights under the MMLA. As the SJC has made clear, relying solely on the word of an employer that promises more maternity leave than the MMLA contemplates may leave you unemployed.

Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as "smoking gun" evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, "We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot." Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This is exactly what occurred in Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination one month later only after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer's initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company's policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer's failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone's future earnings are reduced by discrimination), back pay (the plaintiff's lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney's fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge's decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court ("SJC") agreed with the plaintiff that the trial court's decision to take away the jury's award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge's order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant's conduct is outrageous or egregious. In determining whether the defendant's conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant's conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.

You can watch a video of the oral arguments in the Haddad case on Suffolk Law's website.

Unequal pay victims are quickly realizing the benefits of the Lilly Ledbetter Fair Pay Act (FPA). The District Court of New Jersey's recent decision in Gilmore v. Macy's Retail Holdings is believed to be the first case in the country to recognize the applicability of the Fair Pay Act in unequal pay act cases under Title VII. In that case, the plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) on July 7, 2005 on the basis of alleged race discrimination. The court noted the FPA's retroactive application:

The FPA takes effect as if enacted on May 28, 2008 and applies to all claims of discrimination in compensation under Title VII and the Civil Rights Act of 1964 (42 U.S.C. et seq.) … that are pending on or after that date. The FPA therefore applies to this case. (internal quotations omitted) (emphasis added)

The court further noted that the FPA allows victims of unequal pay to recover back pay for up to 2 years preceding the filing of the charge.

Gender discrimination just became more expensive. On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. After approximately 19 years as an employee of Goodyear Tire and Rubber Company, Lilly Ledbetter learned that she earned significantly less than her male colleagues. Not surprisingly, a jury found Goodyear liable for gender discrimination. In a controversial decision, the United States Supreme Court reversed, ruling that Ms. Ledbetter should have filed her claim within 180 days of the date that Goodyear first paid her less than her male counterparts. (For more information about the Supreme Court's decision, please visit our blog post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.)

The Ledbetter Fair Pay Act of 2009 has three key features. First, the statute not only applies to gender discrimination, but also to unequal pay based on the following types of discrimination: (a) race, color, religion, and national origin under Title VII; (b) age under the Age Discrimination in Employment Act (ADEA); and (c) handicap discrimination under the Americans with Disabilities Act (ADA). Second, the statute allows employees who have suffered these types of unequal pay discrimination to recover back pay for up to two years preceding the filing of a charge with the Equal Employment Opportunity Commission. Third, the Act takes effect retroactively as if enacted on May 28, 2007.

The Fair Pay Act is a welcome change for employees who suffer pay discrimination. For more information on this issue please visit the New York Times article entitled,Obama Signs Equal Pay Legislation.

Employees who are victims of sexual harassment must take great care to protect their rights. The First Circuit's decision in Chaloult v. Interstate Brands represents a broadening of the Farragher/Ellerth defense, which allows employers to escape liability even when an employee has clearly suffered inappropriate and demeaning conduct over a prolonged period of time.

The Farragher/Ellerth defense is an affirmative defense arising out of two 1998 Supreme Court decisions: Farragher v. City of Boca Raton, and Burlington Industries v. Ellerth. For the Farragher/Ellerth defense to apply, an employer must satisfy two elements: (1) reasonable care was taken to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.

In June 1999, Bonnie Chaloult began working at Interstate Brands in Biddeford, Maine. In August 2005, Chaloult resigned after enduring a series of debasing remarks from her supervisor, Kevin Francoeur. Such remarks included:

• Accusing Chaloult of having sexual relations with her direct supervisor
• Complaining about his wife, his lack of sexual relations with her, and voicing his desire murder his wife
• Asking about the distance between her nipples
• Asking her if her nipples chafed or stood out like headlights
• Stating that her breasts were “melons” and “big hooters”
• Asking her to hold her breath and push her chest out
• Offering to go to her house and have sex with her
• Stating that he wanted to see how far she could stick an eclair down her throat, stating "[i]f there isn't enough cream in there, . . . I have plenty"
• Asking Chalout’s manager, “How long have you [two] been fucking?"

Francoeur made many of these disparaging remarks both in front of Chalout’s co-workers as well as her manager. Ironically, the employer had a policy requiring all managers to report sexual harassment and inappropriate conduct to Human Resources. Chalout’s manager failed to abide by this policy. Although Chalout's letter of resignation did not detail specific instances of misconduct, it made clear that she no longer felt comfortable working at Interstate Brands because of statements made by Francoeur.

Approximately one year later, Chaloult filed a lawsuit based on, among other things, the sexual harassment she suffered from Francoeur. Surprisingly, the federal District Court of Maine accepted the Farragher/Ellerth defense on the basis that Chaloult failed to report specific instances of misconduct during her employment. The First Circuit affirmed the district court's decision. In doing so, both courts failed to acknowledge the reality of the workplace. If your manager knows that your supervisor is subjecting you to such demeaning conduct, and fails to take remedial measures, how confident would you feel in voicing such concerns? Would you keep quiet to ensure to avoid possible retaliaton?

If you've been discriminated against in the workplace, you should think twice before bringing your claims in federal court. In 2009, the Harvard Law & Policy Review will publish, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?. The study, conducted by Cornell Law School Dean Stewart J. Schwab and Cornell Law Professor Kevin M. Clermont, examines official data from the Administrative Office of the United States Courts. The article reveals that plaintiffs who bring employment discrimination claims in the federal courts fare less favorably when compared to plaintiffs in other types of cases. As an example, the authors discovered that employers found liable for workplace discrimination at trial enjoy more than a 40% chance of reversal on appeal. In stark contrast, plaintiffs who lose at the trial court level have only an 8% chance of receiving a favorable appellate decision.

In 1978, Congress passed The Pregnancy Discrimination Act of 1978, which acts as an amendment to
Title VII of the Civil Rights Act of 1964. The Act makes clear that "[d]iscrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII." The Act further states that "[w]omen affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations."

Recently, the Seventh Circuit in Hall v. Nalco interpreted the Act to apply to women who undergo infertility treatments. In that case, the plaintiff, Cheryl Hall, was discharged after requesting further time off to undergo vitro fertilization. In 2003, Ms. Hall underwent an embryo transfer. To ensure adequate time to recuperate, her physician recommended that she take time off after the procedure. Following her doctor's advice, Ms. Hall took off approximately 20 days from work. Unfortunately, the embryo transfer failed, necessitating a second procedure. Despite receiving approval for a second leave of absence, Ms. Hall's supervisors laid her off due to absenteeism associated with her infertility treatments.

If Ms. Hall had taken time off to give birth or prepare for her child's birth, there would have been little question that her employer's decision to terminate her employment violated The Pregnancy Discrimination Act of 1978. This case, however, hinged on Ms. Hall's infertility treatment. Not surprisingly, the Seventh Circuit allowed Ms. Hall's case to proceed forward to a jury trial, reasoning that infertility is not a gender-neutral condition:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

According to statistics published by the MayoClinic, estimates reveal that 10% to 15% of couples suffer from infertility, with female infertility accounting for 40% to 50%. The Seventh Circuit's decision will no doubt benefit thousands of employees nationwide.

Family rights discrimination (FRD) -- discrimination against an employee who serves as a caregiver to a family member -- continues to be a hot button issue in the workplace. According to the Center for WorkLife Law (CWL), there were a total of just 8 FRD cases filed in the 1970s. The number significantly increased over the next several years, with a total of 97 FRD cases filed from 1986 to 1995. Unfortunately, FRD has shown little sign of abatement. From 1986 to 2005, FRD filings totaled 481; an increase of approximately 400%.

While smaller businesses present the highest incidence of FRD, large companies -- even those recognized by Fortune as "Best Companies to Work For" -- have been sued for such discrimination. According to the CWL, the success rate of FRD cases is relatively high, coming in at greater than 50% versus 20% for other types of discrimination cases. Notably, the average award for FRD cases is slightly over $100,000 with a high of $25 million.

Not surprisingly, women are plaintiffs in the overwhelming majority of FRD cases. It is not uncommon for such cases to arise in the context of pregnancy. A recent article featured in Forbes entitled How To Balance Work and Pregnancy, highlights two scenarios of which employees should be mindful:

Be Conscientious
If you do all this and notice your boss is restricting the types of projects you work on or has taken you off the partnership track, address it with him. In the best scenario, the boss is trying to make things easy on you (albeit unfairly). Document all of these changes and then say something to him. In most cases, it's a misunderstanding that will be rectified by your bringing it to his attention.

Be Wary
If it's a more serious situation, such as the boss making offhand comments about your pregnancy affecting your work, continue to document those instances. Also keep note of the change in assignments you're getting. First, go to your boss and ask if there's a problem with the quality of your work. If it doesn't improve, bring all the examples to human resources. Discriminating against someone because they're pregnant is illegal, and most companies will handle the situation immediately.

When in doubt, consult with an attorney who concentrates in employment law. You owe it to yourself, your family, and your career.

One of the most egregious fact patterns in a race discrimination case has presented itself against NASCAR. Maurica Grant, 32-year-old black female, worked as a technical inspector from January 2005 until her termination in October 2007. During her employment, Grant was allegedly subjected to a panoply of racially hostile and offensive conduct, which included:

• Being called "Nappy Headed Mo" and "Queen Sheba" by her co-workers
  
• Being told she worked on "colored people time"
• Enduring references to the Ku Klux Klan made by one particular race official
• Being asked, "Does your workout include an urban obstacle course with a flat-screen TV on your back?"
• Being forced to work outside more often than white male officials because her supervisors believed she couldn't sunburn because she was black
• Being instructed to duck as she passed race fans in the backseat of a carpool with one race official stating, "I don't want to start a riot when these fans see a black woman in my car"
• Being told, "Keep smiling and pop your eyes out 'cause we can't see you."
• Being accused of being gay when she rejected the sexual advances of co-workers

NASCAR terminated Grant approximately two months after she complained about how she was treated. For more information, please visit the Chicago Tribune article entitled, Mauricia Grant, NASCAR.

The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that "an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA" (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

The MCAD's long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman's career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

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.

Sexual harassment victims just scored a major victory before the 11th Circuit Court of Appeals in Ingrid Reeves v. C.H. Robinson Worldwide. Ingrid Reeves worked for C.H. Robinson Worldwide (CHRW) based in Birmingham, Alabama as a transportation sales representative from 2001 through 2004. During her tenure, Ms. Reeves states in her complaint that she was subjected to sexually offensive remarks in which her co-workers, the large majority being men, referred to women as "bitch" and "whore." It was also not uncommon for her male colleagues to listen to a local radio program discussing women breast sizes and pornography.

In bringing her claim for sexual harassment, Ms. Reeves faced an uphill battle because none of the derogatory comments about women were directed toward her. On this basis, the Northern District Court of Alabama granted summary judgment to CHRW, dismissing her case and preventing Ms. Reeves from going before a jury. Ms. Reeves appealed to the 11th Circuit, which had held in Walker v. Ford Motor Co. that racial epithets in the workplace could support a hostile work environment claim under Title VII, even where the derogatory statements were not directed at the plaintiff. In reversing the lower court's decision, the 11th Circuit extended its holding in Walker to the sexual harassment context:

The language in the CHRW office included the “sex specific” words “bitch,” “whore,” and “cunt” that ... may be more degrading to women than men. The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature. Accordingly, just as the language in Walker was sufficient to support Walker’s hostile work environment claim because it particularly offended Walker as a black man, we hold that the evidence Reeves presented was sufficient to survive summary judgment on the “based on” element here.

This is a key victory for employees who must endure sexually hostile work environments. Under the 11th Circuit's decision in Reeves, employers will no longer be able to hide behind obtuse technicalities to avoid liability. For more information about this decision, please visit Law.com's article entitled, 11th Circuit OKs Suit Based on Sexual Language in Office.

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.

In 1996, civil rights advocates established Equal Pay Day to acknowledge the pay gap between genders in which female employees earn approximately 75% of the wages of their male counterparts. Ensuring equal pay across genders continues to be a struggle. Numerous lawsuits have been brought on behalf of women throughout the United States who, despite performing the same work as their male counterparts, are paid substantially less. In December 2007, for example, the Ninth Circuit affirmed class action certification in Dukes v. Wal-Mart, which seeks redress for approximately 1.6 million current and former female Wal-Mart employees consistently passed up for promotions and salary increases that went to lesser qualified males (See Gender Discrimination Class Action Certified by Ninth Circuit Against Wal-Mart).

Perhaps the most important suit to-date has been the United States Supreme Court's May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co., which signifies a near-fatal blow to an employee's right to seek redress for pay discrimination. Lilly Ledbetter worked at Goodyear for 19 years before realizing she was being paid significantly less than every single one of her male counterparts. Although a jury agreed that Ms. Ledbetter had been paid unfairly, the Supreme Court reversed on the basis that her claim was time-barred by Title VII’s 180 day limitations period. For a more detailed discussion about the Ledbetter case, please visit: Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

To undo the harsh effects created by the Ledbetter decision, Senator Edward Kennedy (D-Mass) proposed the Fair Pay Restoration Act, which would re-establish the long-standing rule that each discriminatory paycheck constitutes a new act of discrimination and re-starts the 180 day statute of limitations clock.

In July 2007, the U.S. House of Representatives passed the Fair Pay Restoration Act by a vote of 225 to 199. Unfortunately, the White House recently threatened to veto the bill in an effort to keep the Ledbetter decision as the status quo. This will likely be a talking point in the 2008 Presidential Race. While most Democrats support the bill, most Republicans oppose the legislation. The likely Republican nominee, Arizona Senator John McCain, opposes the Fair Pay Restoration Act:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems. This is government playing a much, much greater role in the business of a private enterprise system.

For more information on this issue please visit the Washington Post's article entitled, White House Threatens to Veto Discrimination Bill.

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.

One of Boston's largest defense law firms finds itself in the same position as its clients: defending a lawsuit. In December 2007, Kamee Verdrager filed a gender discrimination and retaliation Charge of Discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Mintz Levin. Ironically, Ms. Verdrager is an associate in Mintz Levin's employment law department where she defends claims brought against employers.

In her Charge, Ms. Verdrager details the repeated instances of gender bias that she allegedly experienced since the start of her employment in 2004. The Charge names Mintz Levin as a firm and also the following partners on an individual basis: David Barmak, Robert Gault, and Donald Schroeder.

Massachusetts Lawyer's Weekly reported on this case in an article entitled, Mintz, Levin associate hits firm with MCAD bias complaint. According to the article, Mintz Levin is no stranger to gender discrimination allegations:

In 2005, the 4th U.S. Circuit Court of Appeals ruled that a jury had acted permissibly on the evidence in finding that Mintz, Levin's Reston, Va., office had retaliated against a female employee, attorney Dawn M. Gallina — by deferring a pay increase and ultimately terminating her — because of her continued complaints of gender discrimination.

Given the factual issues at stake and the need for extensive discovery, we expect this case to be pulled out of the MCAD and wind up in Superior Court. To learn more about the MCAD process, please visit our post entitled, Massachusetts Commission Against Discrimination (MCAD) Issues Probable Cause Finding in Handicap Discrimination Case.

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

In 1964, Congress passed Title VII of the Civil Rights Act banning workplace discrimination based on, among other things, race and gender. Gender discrimination then, as evidenced through the wage gap, ran rampant. When Title VII was passed, women working full-time made approximately 59 cents to every dollar earned by their full-time working male counterparts. While progress has certainly been made, wage inequality between women and men persists. A recent article in the Wall Street Journal entitled, On Diversity, America Isn't Putting Its Money Where Its Mouth Is
reveals the current wage gap:

Women, overall, are substantially lagging behind men in pay. Full-time female employees earned 77% of all men's median wages. Breaking it down in terms of race, Asian-American women earned 78% of the median annual pay of white men; white women earned 73%; black women, 63%; and Hispanic women, 52%.

What can be done to put an end to the wage gap? Dr. Evelyn Murphy, President of The Wage Project, Inc., considered this very question in her book, Getting Even: Why Women Don’t Get Paid Like Men and What To Do About It.

As Dr. Murphy points out, seeking justice from the legal system is only part of the answer. Getting Even discusses the "pressure triangle," which involves exerting pressure to end gender discrimination from the bottom up, from the top down, and from the outside in. The bottom up requires employees to document gender discrimination to their bosses and management. The top down requires those in control to respond to wage disparities and make a concerted effort to close the wage gap within their establishment. The outside in requires that we as a society make it socially unacceptable for employers to engage in discriminatory pay practices.

The wage gap will continue to exist if we continue to ignore it.

It seems like common sense: a boss who incessantly stares at an employee's chest to the point that she must hold objects in front of her to deter his wandering eyes constitutes sexual harassment. The First Circuit in Billings v. Town of Grafton et al. agreed, holding that a secretary who alleges that a supervisor repeatedly stared at her chest could sue her employer for sexual harassment.

Nancy M. Billings began working as a secretary for Grafton Town Administrator, Russell J. Connor, Jr. in 1999. A few months into the job, Billings noticed that Connor would repeatedly stare at her chest during their conversations. In one particular instance, Connor stared at Billings' chest so many times in the first half-hour of her workday that she felt compelled to drive home and change her sweater.

Not surprisingly, other women who worked for the Town of Grafton also reported Connor's wandering eyes and objectionable conduct. Billings filed numerous complaints about her boss' misconduct to no avail. Rather than take remedial action against Billings' boss, the Town placed the blame on Billings, and ultimately transferred her to a different department under less desirable working conditions. In attempting to defuse Connor's actions, the Town of Grafton claimed that an ailment, called "alternating intermittent exotropia," caused Connor to essentially stare at Billings' chest.

Writing on behalf of the First Circuit, Judge Jeffrey R. Howard opined that Billings states a legal claim for sexual harassment:

We cannot reasonably accept, however, that a man's repeated staring at a woman's breasts is to be ordinarily understood as anything other than sexual. In arguing to the contrary in this case, the defendants rely on Connor's eye condition, coupled with the fact that others who worked with him "did not sense any sexual intent underlying" his "failure to maintain eye contact." While this might have some bearing on whether Connor's staring created an objectively hostile work environment, it does not mean that the staring cannot support such a claim as a matter of law, because "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex."

This case will be closely monitored as it progresses to trial.

Employers have found a new way to minimize the bad publicity that results from their discriminatory practices. Sexual harassment is no exception. Mandatory arbitration agreements are on the rise. Increasingly, employers require workers to sign arbitration agreements as a condition of employment. In doing so, employees give up the right to a trial by jury. As one woman's plight against Halliburton reveals, mandatory arbitration clauses are unconscionable.

Ms. Barker is a mother of five. To support her family, she took a job in Iraq working for Halliburton. She recounts her experience in an ABC News article entitled, Sex Assault Suit Vs. Halliburton Killed:

The manager of the camp kept making gestures of how if I wanted my safety to exist on the camp, that I needed to sleep with him, and that's all he kept saying to me. ... On my way into the office, there was pictures of prostitutes and animals having sex pasted in the hallway. Our office was just wallpapered with pornography. There was not one space of wall at all.

Not surprisingly, Ms. Barker filed claims against Halliburton for, among other things, sexual harassment. Halliburton, however, had an ace up its sleeve. In order to be hired, Halliburton required Ms. Barker to sign a mandatory arbitration agreement. On February 6, 2008, a judge in Texas ruled that, per the terms of the agreement, Ms. Barker's case must be heard in arbitration.

The United States Constitution recognizes the right to a jury trial as a fundamental civil liberty. Hopefully someday, the courts will do the same.

The Houston Chronicle ran an Editorial entitled, Pay Stub, which urges the Senate to pass the Fair Pay Restoration Act to ensure equal pay across genders. We wrote about the Act in a post on January 30, 2008 entitled, Two Important Congressional Bills: The Fair Pay Restoration Act & The Civil Rights Act of 2008.

The Act would essentially nullify the Supreme Court's ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which sets a strict deadline for filing actions based on equal pay. Under the Supreme Court's ruling, the statute of limitations in such actions starts to run when an employee first begins to receive unequal pay, even if the employee is completely unaware of the employer's discriminatory pay practice. As the Editorial points out, the ruling panders to the corporate interest:

[I]t's a disaster for employees. The reality of the work environment, as almost any employee knows, is that it is difficult to know how much money any individual worker makes. In fact, companies typically discourage employees from discussing pay issues in the workplace at all. Anyone receiving discriminatory wages will be highly unlikely to find out in a timely manner.

To read more about the Ledbetter decision, please visit our January 31, 2008 post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

Senator Edward Kennedy (D-Mass) has proposed two new, much-necessary bills. The first, called the Fair Pay Restoration Act, would essentially undo the harsh effects created by the Supreme Court's ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which held that the 180 day statute of limitations deadline for filing discrimination actions starts to run when a worker first begins to receive unequal pay, instead of when the employee actually becomes aware that his or her pay is discriminatory. We wrote about the Ledbetter decision on December 31, 2008 in a post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender. Senator Kennedy's bill would make clear that the statute of limitations clock starts to run after the employee becomes aware of discrimination.

Senator Kennedy’s second bill, the Civil Rights Act of 2008, would undo more bad Supreme Court precedent as well. Among other things, the bill would reverse the 2001 Supreme Court decision in Alexander v. Sandoval, which held that individuals could not challenge federally-funded programs on the basis of discriminatory effect, but must rather meet the heavy burden of proving discriminatory intent.

The New York Times today featured an editorial on these two bills entitled, Restoring Civil Rights.

The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.

In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute "opposition" to sexual harassment. Click here for the Sixth Circuit's decision.

The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF'd employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer's business necessity defense. Click here for the Second Circuit's decision.

The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.

The Supreme Court's docket in 2008 may include a case out of Nashville, TN involving sexual harassment. An article out of the Tennessean gives a synopsis of the facts:

The case began in 2002, when Vicky Crawford, then a payroll supervisor who had worked for the school system for 30 years, was contacted by school officials looking into allegations of sexual misconduct against Gene Hughes, then the schools' employee relations director.Crawford told investigators that she had seen Hughes grab his crotch in her presence, that he had asked to see her breasts, and on one occasion, he grabbed her head and tried to force it into his groin. At the time, Hughes was responsible for investigating all claims of sexual harassment in the school district. The lawsuit alleges that the internal investigation ended with no disciplinary action against Hughes. But Crawford, and two other female employees who cooperated with the probe, were fired, the suit says.

Title VII prohibits employers from taking adverse employment actions against employees who oppose unlawful employment practices such as sexual harassment. At issue in Crawford's retaliation claim under Title VII is the definition of oppose.

Crawford argued that she opposed Hughes' inappropriate conduct by cooperating with the school's internal investigation. In response, the school argued that Title VII's whistleblower provision was not intended to protect employees participating in an internal investigation initiated by an employer. Disregarding Title VII's broad remedial purpose, the district court and the Sixth Court agreed with the school's argument and dismissed Crawford's retaliation claim. Click here for the Sixth Circuit's decision.

If the Supreme Court grants certiorari, the issue will focus on whether an employee who is terminated after cooperating with an internal investigation in which she alleges unlawful employment practices states a claim for retaliation under Title VII.

Employment attorneys seem to agree that the most controversial decision in 2007 was the Supreme Court’s ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co. Let's review what happened:

In 1979, Lilly Ledbetter began working as a supervisor at Goodyear’s tire assembly department in Gadsden, Alabama. During her first weeks of employment, her wages were identical to those of her male counterparts. Twenty years later, a rift in pay between Ms. Ledbetter and her male colleagues had become painstakingly clear.

In 1998, Ms. Ledbetter received an anonymous letter, which revealed that she made about $15,000 less than her male co-workers at Goodyear. Inexplicably, Ms. Ledbetter’s pay was not even on par with recent hires with far less job experience. Ms. Ledbetter filed a discrimination charge with the Equal Employment Opportunity Commission less than a month after receiving the anonymous tip. At trial, her attorneys highlighted the disparity in pay between males and females doing the same work at the Gadsen Goodyear plant. The jury ultimately sided with Ms. Ledbetter, awarding her over $3.5 million in damages, which the district judge later reduced down to $360,000.

Title VII requires discrimination complaints to be made within 180 days of the employer’s discriminatory conduct. Goodyear appealed, arguing that the jury should not have considered each of the annual salary reviews that Ms. Ledbetter had received throughout her 20 year career with Goodyear. Citing Title VII, Goodyear maintained that the jury should only have evaluated the lone annual salary review that Ms. Ledbetter received in the 180 day limitations period before Ms. Ledbetter filed her complaint, despite the fact that the pay disparity had occurred over nearly two decades.

The U.S. Court of Appeals for the Eleventh Circuit, in part, agreed with Goodyear’s argument and held that the jury should have not have been allowed to evaluate Goodyear’s discriminatory pay decisions over Ms. Ledbetter’s entire career in light of Title VII’s 180 day limitations period. In doing so, the Eleventh Circuit ignored the vital fact that Ms. Ledbetter had not learned of the pay disparity until 1998.

Continue reading "Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender" »

Wal-Mart is just not getting it: gender discrimination in the workplace really is illegal. From coast to coast, Wal-Mart is learning this principle one case at a time. This past summer, in Haddad v. Wal-Mart, a Berkshire County jury in Massachusetts awarded nearly $2 million to a former Wal-Mart pharmacist who was paid less then her male counterparts and later fired in retaliation for complaining. More recently, on December 11, 2007, the Ninth Circuit in Dukes et al. v. Wal-Mart Stores, Inc. affirmed a class certification order. With the decision, Wal-Mart finds itself in the familiar position of defending claims of gender discrimination.

The case began in 2000. Betty Dukes, a 54-year-old Wal-Mart employee in California, worked for the company for six years. During her tenure, she received excellent performance reviews. Notwithstanding her stellar performance, Ms. Dukes was consistently passed up for promotions and salary increases that went to lesser qualified males. The deeper her attorneys dug, the more they realized that Ms. Dukes' experience was not an isolated occurrence.

Dukes v. Wal-Mart Stores, Inc. has become the largest civil rights class action suit in United States history, seeking redress for approximately 1.6 million women who work or have previously worked in a Wal-Mart store since December 1998. To say the least, this case is being closely followed.

The Knicks are having a bad year. Isiah Thomas' bad karma isn't helping. In October 2007, a New York jury returned a verdict against Thomas and Madison Square Garden (MSG) for sexual harassment. In a rare move only reserved for the most egregious of cases, the jury levied a punitive damages award of $11.6 million. In doing so, MSG received a clear message to clean up their act.

In 2000, the plaintiff, Anucha Browne Sanders, was hired by the New York Knicks as a marketing executive. In 2002, she received a promotion to Senior Vice President of Marketing. Thomas' tenure commenced in December 2003. Shortly thereafter, the sexual harassment began. In January, MSG fired Sanders after she repeatedly reported Thomas' inappropriate conduct.

Declaring the verdict a "travesty of justice," MSG vowed to appeal. The case was slated to resume in early-December before U.S. District Judge Gerard E. Lynch. Among the issues to be decided were Sanders' compensatory damages, which would involve a combination of lost back wages and future loss of income. Looming overhead was also the millions of dollars in legal fees that the Kicks would have to pay to Sanders' attorney.

Realizing that their defense didn't have a leg to stand on, the Knicks wisely chose to settle the matter instead. In settling, MSG avoided paying Sanders' legal fees and amassing more legal fees of their own. Reports indicate that MSG didn't catch much of a break on the punitive damages award. The final figure is rumored at $11.5 million -- only about $100,000 less than the jury's verdict.