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.

• 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

In 1992, Anup Engquist began working as an international food standard specialist for the Export Service Center, a laboratory within the Oregon Department of Agriculture. During her employment, Engquist experienced difficulty working with a colleague, Joseph Hyatt, alleging that he had made false statements about her. Engquist reported Corristan's conduct to her boss, who required that both employees attend diversity and anger management training. In 2001, John Szczepanski assumed supervisory status over Corristan, Engquist, and Hyatt. Thereafter, Szczepanski passed up Engquist in favor of Corristan for a position for which Engquist was more qualified. Enguist's position was later eliminated.

A jury ruled in Engquist's favor, which the Ninth Circuit reversed. In an opinion authored by Chief Justice John G. Roberts Jr., the Supreme Court ultimately agreed with the Ninth Circuit. In doing so, Justice Roberts perceived practical problems with Engquist's class-of-one equal protection theory:

We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governmentswill be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through themin a search for the proverbial needle in a haystack.

Presumably the concern that actually motivates today’s decision is fear that governments will be forced to defendagainst a multitude of “class of one” claims unless theCourt wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently, that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental, power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus.

For more information, please visit the New York Times article entitled, Justices Reject ‘Class of One’ Argument.

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.

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 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.

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

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court's decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

The Second Circuit's recent ruling in Holcomb v. Iona College recognized the viability of such claims. In that case, the plaintiff worked as an assistant coach of the Iona College basketball team. Iona College eventually fired Holcomb, claiming that his termination had to do with his poor job performance. Holcomb, who is white, believed that he was fired because his wife is African-American. While the district court granted summary judgment for Iona (i.e., dismissing the case), the Second Circuit remanded on appeal.

The issue before the Second Circuit was one of first impression: Can an an employer violate Title VII if it takes action against an employee because of the employee's association with a person of another race? The court rejected Iona's reasoning and answered this question in the affirmative:

We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race. All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion.

Early in his tenure as an assistant coach, Holcomb claims to have heard Petriccione say: “[E]verybody at Fordham thinks they have these good black kids, and Iona has niggers.” A year later, when several black members of the Iona Gaels were accused of stealing and selling telephone access codes, Petriccione allegedly told Holcomb that the basketball program needed to “keep [its] niggers in line.” Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a “jungle bunny” and an “African princess.” When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked: “[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?” The most striking of the allegations against Petriccione relates directly to Holcomb and his wife. Plaintiff testified that in February 2000, he asked Petriccione whether he had received the wedding invitation that Holcomb and Gauthier had sent him. According to Holcomb, whose claim is backed up in this respect by a third party, Petriccione replied: “[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover.”

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.

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.

S.1059's enactment followed an interesting course. The Massachusetts Legislature initially submitted the bill to Governor Deval Patrick in February 2008. Governor Patrick returned the bill without signature and urged that certain exceptions be provided, which the Legislature rejected. Governor Patrick ultimately declined to veto S.1059.

The new law states that employees who prevail in court “shall be awarded triple damages, as liquidated damages, for any loss of wages and other benefits.” The treble damages provision applies to a host of wage and hour violations:

• Payment of wages, including commissions and vacation pay
• Overtime pay for nonexempt employees
• Minimum wages
• Improper deductions
• Misclassification of employees as independent contractors
• Tip pool sharing
• Retaliation for asserting wage complaints

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 1999. 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.

Supervisor, Joshua Christopherson, was not pleased with his sales team, whose numbers were evidently not up to par. Christopherson brought his employees outside, told them they would do an exercise, and asked for a volunteer. Chad Hudgens unsuspectingly raised his hand. Christopherson instructed Hudgens to lie down on the hill on which they stood. Chistopherson then poured water from a gallon-sized container over Hudgens' nose and mouth.

From Hudgen's perspective, the experience was anything but pleasant:

So they held me down and the next thing I know, Josh has a gallon jug of water and he's pouring it on my face. I can't scream because the water's going down my throat. And halfway through he stopped for a second. I tried to mumble the words, "Stop, knock it off." I tried to get that out and he continued to pour. I'm not getting any air. Toward the end, I'm starting to black out. I'm getting very dizzy, light-headed. The sensation that's going through my head is, "I'm going to drown."

To read more, check out the Washington Post's article entitled, Team-Building or Torture? Court Will Decide.

Douglas A. Sharon was a Broker and Managing Director of Bear, Stearns & Co., Inc.'s private client services group in its Boston office. According to Bear Stearns, Sharon was the Boston office’s top producer, generating $5.2 million annually in commissions and managing more than $867 million in assets. In December, 2005, the company distributed a memorandum to all of its Senior Managing Directors, including Sharon, which allowed recipients to accept a raise in their base salary, among other benefits, subject to the acceptance of the above-described garden leave provision. Sharon agreed to the garden leave provision.

On March 17, 2008, Sharon resigned from Bear Stearns, effective immediately. He began work for his new employer, Morgan Stanley, the next day. Following Sharon’s resignation, on March 26, 2008, Bear Stearns filed a Complaint, Motion for a Temporary Restraining Order (“TRO”), and a Preliminary Injunction to enjoin, among other things, Sharon’s continued employment at Morgan Stanley.

As an aside, an important distinction exists between a TRO and Preliminary Injunction. Under Rule 65(a) of the Massachusetts Rules of Civil Procedure, a TRO does not generally exceed 10 days. In sharp contrast, a Preliminary Injunction will last until the case has been decided.

On March 27, 2008, the Court entered Bear Stearns' request for a TRO. After the TRO expired, Bear Stearns sought injunctive relief. To obtain preliminary injunctive relief, Bear Stearns was required to show: (1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is withheld, (3) a favorable balance of hardships, and (4) accord with the public interest.

The Court denied Bear Stearns' request for Preliminary Injunction for three main reasons. First, the company could not establish that it would suffer irreparable harm because any alleged harm could be recompensed through a monetary award. Second, the harm to Bear Stearns was outweighed by the potential harm to Sharon’s “professional standing and the inability to advise his clients in times of economic turmoil.” Finally, the Court noted an inherent inconsistency in the garden leave provision. Specifically, Sharon's employment was at-will, which meant that Bear Stearns could terminate his employment at any time, for any reason or no reason. Likewise, because he was an employee-at-will, Sharon should be able to resign at any time. Accordingly, enforcing the garden provision would run afoul of the employee-at-will doctrine:

Because the effect of specific performance in this case would be to require the defendant to continue an at-will employment relationship against his will, it is unenforceable in that manner.

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

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

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