Boston Employment Lawyer Blog

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.