Boston Employment Lawyer Blog

In an unusual but welcome move, the U.S. Court of Appeals for the Eleventh Circuit in Ash v. Tyson Foods has reversed its own decision in a race discrimination case. The court had overturned a jury verdict against Tyson Foods related to employment bias at a plant in Gadsden, Alabama. A brief filed by a retired Alabama federal judge and a group of civil rights leaders urged the court to reconsider its ruling. More than a year after its last ruling, the court reversed itself, albeit grudgingly. The New York Times' coverage on the decision can be viewed here.

This case has made its way through the appellate courts several times over the years. Two black employees at the Tyson plant, Anthony Ash and John Hithon, alleged discrimination based on race when they were passed over for promotion in favor of two white employees. The plaintiffs further alleged that their manager created a hostile work environment by frequently referring to adult black male employees as “boy.” They filed suit based on, among other causes of action, Title VII of the Civil Rights Act of 1964. When the case went to trial in 2002, the jury awarded the plaintiffs over $1.4 million in compensatory and punitive damages.

Following the jury verdict, the employer first appealed the case to the Eleventh Circuit. A three-judge panel of the Eleventh Circuit unanimously affirmed in part and reversed in part, finding that the evidence presented at trial was not sufficient to establish unlawful discrimination or to support the damage award. It held that the manager’s use of the word “boy,” in the absence of an adjective such as “black” or “white” is not in and of itself evidence of discriminatory intent. In 2006, the Supreme Court unanimously vacated the Eleventh Circuit’s ruling and remanded the case, rebuking the court for its finding regarding the manager’s language. The Supreme Court’s per curiam opinion noted that the circuit court should have considered factors like “context, inflection, tone of voice, local custom, and historical usage.”

At this point, Hithon pursed the case on his own, without Ash. When the Eleventh Circuit heard the case again, this time in 2010, it reached a conclusion similar to its earlier finding. In a 2-1 ruling, the court held that the manager’s use of the word “boy” was “conversational” and “nonracial in context,” and it once again mostly reversed the trial court’s verdict. Once again, the Eleventh Circuit's controversial ruling caught the attention of the New York Times in this article.

The Eleventh Circuit’s new ruling once again overlooked evidence beyond the words themselves. Testimony at trial by the plaintiffs and other witnesses established the connotation that the word "boy" evinces. Ash, for instance, told the jury that “being in the South, and everybody know [sic] being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

Continue reading "Race Discrimination Victim Prevails Before the Eleventh Circuit" »

Sexual harassment has been at the forefront of the news in recent weeks thanks to two major stories. One involves the allegations of sexual harassment against Republican presidential candidate Herman Cain. The other is the twentieth anniversary this year of the sexual harassment allegations against Supreme Court Justice Clarence Thomas during his confirmation process. The Christian Science Monitor recently published an article examining the history of sexual harassment as both a legal and social concept over the past 30 to 40 years, identifying six high profile cases that have raised public awareness of the issue. While sexual harassment is undoubtedly still a widespread problem across the country (and the world), it is worthwhile to occasionally review how far we have come.

1. Meritor Savings Bank v. Vinson: Originally, quid pro quo was the only type of legally actionable sexual harassment. This type of sexual harassment occurs when an employee is required to submit to a supervisor's sexual advances as a condition of employment (e.g., "sleep with me or you're fired"). The Supreme Court's 1986 ruling in Meritor Savings Bank v. Vinson expanded the definition of sexual harassment to include hostile work environment:

In sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII ... and that the District Court did not err in admitting testimony about respondent's sexually provocative speech and dress.

For more information on the differences between quid pro quo and hostile work environment sexual harassment, please visit our website here.

2. Jensen v. Eveleth Tavonite Co.: The first class-action sexual harassment lawsuit was filed in 1988 on behalf of Minnesota mining company employee Lois Jensen, who described a pattern of harassment and abuse beginning when she went to work there in 1975. The lawsuit continued until a settlement was reached in 1998. Jensen’s story was the subject of the 2005 Charlize Theron film “North Country”.

3. Clarence Thomas and Anita Hill: While Clarence Thomas awaited confirmation to the U.S. Supreme Court in 1991, Hill went public with allegations of sexually suggestive remarks when she worked as his assistant years earlier. The Supreme Court confirmed Thomas, but the controversy served to make the whole country aware of the topic of sexual harassment, sparking a dialogue on what is and is not appropriate in the workplace.

4. General Larry Smith and Lieutenant General Claudia Kennedy: In 1999, Lt. Gen. Kennedy was the highest-ranking female officer in the Army and was nearing retirement. When she learned that General Smith was being considered for an inspector general position, which would involve investigating sexual harassment claims, she went public with allegations that he had touched her in an inappropriate and unwanted manner in 1996. An inquiry found that Smith had behaved inappropriately and his nomination was withdrawn.

Continue reading "A Brief History of Sexual Harassment" »

As sexual harassment allegations swirl, Republican presidential candidate Herman Cain has received much media scrutiny in recent days. Stories have appeared in the press about settlements with two women who accused him of sexual harassment when he headed the National Restaurant Association in the late 1990’s. That number very recently increased to three. Few definitive details of the two cases are available since the identities of the two women remain confidential and Cain’s own accounts of the events have been criticized less than consistent, even in the eyes of some of his supporters.

In an article entitled, Cain Accuser Got a Year’s Salary in Severance Pay, the New York Times reported that one of the alleged sexual harassment victims received a payment of $35,000, equal to one year’s salary, in severance when she left her employment with the National Restaurant Association. She left after Cain allegedly engaged in conduct that made her uncomfortable on a work outing with heavy drinking, which is said to be a common feature of hospitality industry events. People with knowledge of the situation confirmed the payment and its amount for New York Times reporters, with one person stating that the high amount of the woman’s severance was unusual given her pay grade and short tenure.

A second accuser also received a payment related to multiple claims of harassing behavior by Cain, but few details of her case have come to light. People who have commented to the media have requested anonymity, in part to protect the accusers’ privacy. Cain has offered various explanations for the two cases and has been criticized for being evasive. He told a Fox News host that the payments were for “agreements” and not “settlements.” This statement prompted conservative host Charles Krauthammer to suggest that Cain's answer was “Clintonian,” referring to former President Bill Clinton’s tendency to split hairs about the meanings of words during the Lewinsky scandal of the late 1990’s.

The Cain sexual harassment scandal brings to light the mechanics involved in a settlement or severance agreement. Whether the document is described as severance or a settlement is typically insignificant. Regardless of its title, an agreement in this context is simply a binding contract between two or more parties. In this particular case, the alleged sexual harassment victims received payment in exchange for the legal promise not to sue the National Restaurant Association and Cain for sexual harassment. It is not uncommon for such agreements to contain additional terms such as, for instance, confidentiality and mutual non-disparagement, in which all parties agree not to speak negatively about each other.

Assuming that Cain agreed to the latter as part of the agreement, his characterization of the sexual harassment allegations as a “a witch hunt” and contention that he was falsely accused may run afoul of any existing non-disparagement obligations. Not surprisingly, Cain’s public commentary has led one victim’s attorney to request that the confidentiality requirements of the settlement agreement be lifted so that his client may defend herself.

Continue reading "Sexual Harassment Claims Against Herman Cain " »

Age discrimination claims continue to be on the rise. Texas Roadhouse, a Kentucky-based chain of more than 350 restaurants in 46 U.S. states, faces a lawsuit from the Equal Employment Opportunity Commission (EEOC) over claims of alleged widespread age discrimination in hiring for host, bartender, and server positions. The suit, filed in U.S. District Court for the District of Massachusetts, requests anti-discrimination training for managers and employees aimed at preventing further alleged age discrimination. The lawsuit also requests monetary damages for people denied employment based on discriminatory reasons.

The EEOC alleges that the restaurant chain discriminates against older job applicants. According to a press release issued by the EEOC, the number of complaints received by the agency has increased significantly since at least 2007, prompting the agency to commence an investigation at the end of 2010. That investigation led to the current lawsuit. According the lawsuit:

Defendants’ hiring officials have told older unsuccessful applicants that “there are younger people here who can grow with the company”; “you seem older to be applying for this job” and “do you think you would fit in?”; the restaurant was “a younger set environment”; “we are looking for people on the younger side... but you have a lot of experience”; “How do you feel about working with younger people?”; “we think you are a little too old to work here… we like younger people”; “we’re hiring for greeters but we need the young, hot ones who are ‘chipper’ and stuff”; “our age group is in their young 20s, college students”; “I’m basically looking for young teenagers”; and “we really go with a younger crowd and have a younger establishment.”

The lawsuit is premised on the Age Discrimination in Employment Act (ADEA), a federal statute that protects employees 40 years old or older from discrimination based on age. The ADEA prohibits favoring a younger person over a person who is at least 40 years old solely based on age in all aspects of employment. This includes hiring, firing, promotions, layoff, job duties and assignments, benefits, and other features or requirements of employment.

Continue reading "Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain" »

Race discrimination claims continue to grab headlines. In its article entitled Industrial Services Firm Faces Bias Suit, the Wall Street Journal recently reported that "[n]early 250 workers sued Turner Industries Group of Baton Rouge on Sunday, alleging racial discrimination in hiring, pay, promotions and on-the-job treatment."

The allegations in the complaint, which numbers more than 300 pages, are especially egregious:

Robinson and his similarly situated Black co-workers have been and continue to be subjected to racially offensive graffiti displayed at Turner job sites. For example, he has seen "Nigger hang from a tree," and "fuck you niggers, go back to Africa." He has also seen a noose and several confederate flags hung in the bays at Turner.
...

Jeffery and his similarly situated Black co-workers have been subjected to racial graffiti and depictions throughout Turner facilities and job sites. The bathrooms were constantly covered in offensive comments such as, “Niggers don’t belong here,” and he has seen drawings of White people wearing KKK hats.
...

Jones and his similarly situated Black co-workers have been subjected to a racially hostile atmosphere at Turner’s facilities. For example, White workers would leave notes on his truck calling him “nigger” and saying, “I know you sell drugs you nigger fucker.” Jones reported these notes to management, but Turner did not do anything to stop the notes.

The Equal Employment Opportunity Commission investigated similar complaints of racial harassment at Turner Industries. In early 2010, the EEOC found that numerous instances of racial harassment occurred at the company's Paris, Texas plant which, consistent with the allegations from the most recent lawsuit, included the use of racial epithets and symbols of discrimination. The Dallas Morning News reported the EEOC's findings in its article entitled,
EEOC: Black workers harassed at pipe factory in East Texas.

If you're the victim of race discrimination and harassment, its important to act quickly to preserve your rights and hopefully put an end to the hostile work environment. Please contact us to learn more about this process and about our Firm's special focus in this area.

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.

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?

The employment law landscape is ever-changing. The Indiana Supreme Court's decision in Raess v. Doescher (Supreme Court) is proof positive. In that case, a jury awarded the plaintiff-hospital technician, Joseph Doescher, $325,000 for the assault he experienced from the hospital's supervising surgeon, Daniel Raess. Claims for assault are nothing new. What makes this case unique is the evidence that the plaintiff had the opportunity to present. In this particular case, the supervising surgeon had a colorful history of, shall we say, treating his colleagues and subordinates with disrespect. Put differently, the defendant was a "workplace bully." Seeking to exclude all evidence related to the surgeon's prior outbursts, the defense asked the trial court to instruct the jury as follows:

"Workplace bullying" is not at issue in this matter, nor is there any basis in the law for a claim of "workplace bullying." In other words, you are not to determine whether or not the Defendant, Daniel Raess, was a "workplace bully." The issues are as I have instructed you: whether the Defendant assaulted the Plaintiff, Joseph Doescher on November 2, 2001, and whether that assault constituted intentional infliction of emotional distress.

The trial court refused the instruction. The Appeals Court in Raess v. Doescher (Appeals Court) reversed on the basis that the probative value of the workplace bullying evidence was substantially outweighed by the unfair prejudice. In the end, the Indiana Supreme Court had the last say:

In determining whether the defendant assaulted the plaintiff or committed intentional infliction of emotional distress, the behavior of the defendant was very much an issue. The phrase "workplace bullying," like other general terms used to characterize a per-son's behavior, is an entirely appropriate consideration in determining the issues before the jury.

As expected, the jury's verdict was upheld. For more information about the decision, please visit the Boston Business Journal's article entitled, Bullies beware: Employees have more options -- including court -- to confront bad bosses

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 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.

Both the law firms of Clifford Chance and Sullivan & Worcester find themselves defending allegations of race discrimination. According to the Wall Street Journal's law blog, Caroline Memnon, a black Haitian woman, brought suit on March 18, 2008 in the Southern District Court of New York. Memnon claims:

From inception, the CC partners failed to provide me with meaningful work. I was afforded a series of pointless reviews… where those performing the review declared that despite my obvious intelligence the practice of law "was not for someone like me."

Clifford Chance terminated Memnon in 2002 and, according to Memnon, the firm “surreptitiously ‘blackballed’ [her] within the community of New York law firms.” In early 2007, Memnon began working at Sullivan & Worcester, which terminated her employment just months in March 2007. Sullivan & Worcester is a co-defendant in the suit.

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

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 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.