Boston Employment Lawyer Blog

Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee's right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

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.

Posted by David Conforto | Permalink | Email This Post

Posted In: Age Discrimination , National Origin Discrimination , Race Discrimination , Retaliation , U.S. Supreme Court , Whistleblower , Workplace Discrimination

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Whistleblowers working abroad for American subsidiaries just scored a major victory. The Southern District of New York in O'Mahony v. Accenture et al. recently ruled that the plaintiff, Rosemary O'Mahony, states a valid claim under the Sarbanes-Oxley Act (SOX). O'Mahony, a British citizen, worked at Accenture in France for 14 years before being suddenly demoted after alerting her superiors in both the United States and France that the company failed to make more than $3 million in social security payments to France.

The main issue before the Southern District of New York was whether the Sarbanes-Oxley Act applies to employees, like O'Mahony, working overseas. The court held that SOX applied to O'Mahony because: (1) she was employed and compensated by a United States subsidiary of a foreign corporation; (2) the alleged retaliation and cover-up implicated Accenture employees working in the United States; and (3) the suit was being brought against a "foreign parent and its United States subsidiary for the alleged misconduct of the United States subsidiary in the United States."

To read more about the case, please visit Law.com's article entitled, N.Y. Judge Applies SOX Protections to Ex-Partner of Global Firm's French Office.

Posted by David Conforto | Permalink | Email This Post

Posted In: Executive Advocacy , Sarbanes-Oxley , Whistleblower

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The Fifth Circuit Court of Appeals issued an important opinion last week in Allen v. Administrative Review Board clarifying the definition of protected conduct under Section 806 of the Sarbanes-Oxley (SOX) Act. SOX prohibits a publicly-traded company from retaliating against an employee who reports information to a supervisor “regarding any conduct which the employee reasonably believes constitutes" various types of fraud (mail, wire, bank or securities fraud), a violation of any rule or regulation of the Securities and Exchange Commission, or a violation of any provision of federal law relating to fraud against shareholders.

Although the Fifth Circuit in Allen held that the employees did not engage in protected conduct, the opinion provided guidance on what exactly constitutes such conduct. Among other things, the court opined that an employee's whistleblowing activity must be “definitively and specifically” related to prohibited conduct defined under §1514A ; the whistleblower's belief of improprieties will be scrutinized under both the subjective and objective standards; a whistleblower's mistaken, but reasonable, belief that an employer engaged in prohibited conduct still constitutes protected activity.

A whistleblower under SOX will need to also show a nexus between the protected conduct and the adverse employment action. Suspicious timing is typically sufficient to carry this burden. In Collins v. Beazer Homes USA, Inc., the District Court of Georgia held that a two-week temporal proximity between reporting improprieties and termination is sufficient to suggest that the employee's protected activity was a contributing factor to unfavorable personnel action. The Company may only avoid liability where it demonstrates by “clear and convincing” evidence that it would have taken the same unfavorable personnel action in the absence of the employee's protected conduct.

Posted by David Conforto | Permalink | Email This Post

Posted In: Retaliation , Sarbanes-Oxley , Whistleblower

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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.

Posted by David Conforto | Permalink | Email This Post

Posted In: Age Discrimination , Gender/Sex Discrimination , Hostile Work Environment , Sexual Harassment , U.S. Supreme Court , Whistleblower

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