Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Although I tipped my hand yesterday through some posts (here and here) and an interview with the Connecticut Law Tribune, here are some takeaways for employers from the Ricci v. DeStefano case.

1. The Decision Applies to Private Employers.   Before Ricci was decided, the case could've gone two ways -- it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII -- the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter.  Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (governmental) employers.
    
2. Testing Will Never Be The Same.  Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn't particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.
   
   But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes.  The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact.  Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.
   
   As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.) 
    
3. Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe.  Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population.  For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities.  Are these programs ok?
   
   The court suggests that it will allow for some affirmative action plans and notes that employer's "voluntary compliance efforts" are essential to the success of Title VII:
   "[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. ... "
   
   For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race.  But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.
    
4. Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations.  One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers.   As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern.  If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.  
   
   Ricci leaves open the question of whether that practice is legal under Title VII.  The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results".  Does this mean that employer -- once it settles on a process for terminations -- cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point. 
    
5. Don't Expect This Law to Remain Static.  One thing is certain -- there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:
   
                   [The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.

As a reminder, I'll be participating in a free webinar next week on this subject. I anticipate that it'll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court. 

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A further read-through of the Ricci v. DeStefano case today has reinforced my view that there are going to be some real lessons learned for employers out of this case.  The case had the potential of being a very narrow decision which would have minimized the impact to employers. However, because the court addresses head-on various Title VII issues, it's likely to creep into much larger issues and it's not out of the question to see it impact affirmative action plans or diversity programs.

Because of that, I've decided to spend a good deal of time discussing this case and the impact on employers in Connecticut and beyond in a webinar scheduled for July 8th at noon EDT.  You can register for it for free here.  Space will be limited so be sure to sign up today. 

In this session, I anticipate we'll discuss::

-- The basics of Title VII and how it applies to employers
-- The differences between "disparate impact" and "disparate treatment" claims
-- How employers should deal with the use of tests in the workplace and what it is permissible to do when the test results seem "off"

-- What the lessons are to be learned from Ricci, and steps employers can take to avoid reverse discrimination claims in the future

-- What is "reverse" discrimination and whether employers need to be concerned about such claims

-- What the impact this decision will have on affirmative action plans and diversity programs

As time permits, we will also wrap up the other Supreme Court employment law decisions in the 2008-09 term and the takeaway for employers in each of those cases, including an important age discrimination case.

Looking forward to having you all join us. 

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In closing out its 2008-09 term today  the U.S. Supreme Court ruled 5-4, along ideological lines that the city of New Haven violated Title VII in refusing to promote a group of white firefighters and refusing to apply the results of a test that it claimed would have had a disparate impact on minorities.

The decision in Ricci v. DeStefano (download here) is bound to be heavily reviewed, scrutinized and analyzed.  Indeed, because Judge Sotomayor (who was involved in the original decision at the Second Circuit) has now been nominated for the Supreme Court, the decision has been highly anticipated.

But despite the hyperbole about this case beforehand, the case has pitted two competing issues against each other - the city's alleged fear that the test, if applied, would have had a disparate impact on minorities (opening itself up to a lawsuit) and the firefighter's right to be promoted based on doing well on the test.  The Court said that the city's fear was not sufficient to not use the test and that not using the test was a violation of Title VII.  

Indeed, in its decision, the Supreme Court goes one big step further; it provides the city with a defense to a possible disparate impact lawsuit:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I've previously discussed the case extensively in a variety of posts which can be found here and here.

Justice Ginsburg provides the dissent here and predicts that the case will be difficult to apply in practice and further suggests that employers may have a difficult time fiting within its parameters:

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—evenfor surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulatean employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.”

I'll refrain from any big snap judgments until I review the decision at length (93 pages and all) but suffice to say that this decision will be the new starting point for employers who worry about disparate impact claims.  It's application to private employers will no doubt be scrutinized as well, but I'm going to review the whole decision before drawing too many conclusions.

What's interesting is that the court decided the case on Title VII grounds instead of the "Equal Protection Clause" questions that it also faced. What this means is that private employers need to pay much closer attention to this case than had it been decided on the other grounds. After all, Title VII applies just as much to private employers as it does to the government.  

My firm will be presenting a free webinar on this case and its impact on employers on July 8th at noon. Details will be forthcoming in a post later today. 

In the meantime, if you're looking for other instant analysis, check out the SCOTUSBlog for their posts.

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The news late Thursday afternoon came without warning from friends, a co-worker, and of course, Twitter.  There was another death of a popular star.  Suddenly. Tragically. 

Jeff Goldblum was dead.

Except he wasn't.

And yet, in the span of a day -- when the world lost Farrah Fawcett and Michael Jackson -- a rumor was spreading that actor Jeff Goldblum was the third star to pass away.  After all, bad things happen in threes.  But it turns out it was completely false.  

The news brought to mind situations where an employer is faced with the similar "dark side". Rumors. Innuendo. Gossip.  

Word spreads fast in a workplace. Even faster now with e-mail.  And for employees, rumors can be toxic, as an old New York Times article explains.  

So, what's an employer to do? 

Well, the specifics first depend on the facts. Is the rumor that an employee is on drugs? Having an affair? Has mental issues? Or, my favorite, doesn't take showers?  

Or is it more general about the company. Is it a rumor that the company is about to layoff employees? Or that the company is in financial difficulties? Or that the chief executive officer is having a liver transplant?

And what's exactly happening? Is e-mail usage about it going up?Is there lots of talk behind closed doors?

Each of these situations (and the many others that get spread) has different levels of response.  

For example, perceiving that an employee is disabled may bring claims under the ADA so an employer can discuss with a supervisor ways to comply with the law.

On the other hand, a reminder that harassing, humiliating or abusive comments about another employee via e-mail might be enough to stop rumors about the sudden disappearance of gray from an employee's head.  

How else can a company react?  Some practical suggestions include:

• Reinforce that the company computers are to be used for company-related business and that inappropriate e-mails such as sexual innuendo will not be tolerated.
• If it persists, consider whether you want to engage in  "electronic monitoring" of your computer system upon proper notice to your workforce
• Maintain consistent intra-corporate communications.  In the absence of facts, rumors can spread fast.
• Every office seems to have an outlaw or two. Talk with them and make sure they understand that spreading gossip will not be tolerated.
• Address rumors immediately.  The speed of the Jeff Goldblum rumor on Thursday reinforces that fact to me.  

And if you hear the rumor today that Jeff Goldblum is dead, you can put a stop to that too.  

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Those waiting for a decision in the hotly-anticipated Ricci v. DeStefano case will have to wait a few more days (likely Monday). The U.S. Supreme Court released the decisions for the day this morning and Ricci was not among them. It is now expected to be released early next week. It is one of just three cases remaining on the court's docket.

In the meantime, Slate has published a lengthy piece today about the story "behind" the case.  It appears to be well-sourced and detailed and provides the type of insight you would expect from Slate. As the article states: 

The story behind Ricci is just one example of an entrenched conflict over municipal hiring that extends back in time and across the country. For at least two generations, competition for jobs in many cities has been framed as a battle between one ethnic or racial group and another over who is an insider and who is an outsider. Black firefighters first brought a suit over discrimination in New Haven in 1973. They won. So did minority firefighters who sued Cleveland, Birmingham, St. Louis, New York City, Newark, Bridgeport, Buffalo, Philadelphia, Massachusetts (statewide), San Francisco, Baltimore, and Minneapolis, according to the NAACP Legal Defense Fund. 

But those victories all came in the 1970s. More recently, white firefighters have begun to fight back in court. Frank Ricci's case isn't the first reverse discrimination suit in a fire department. In 2001, four white men sued the Boston Fire Department for hiring minority candidates who had scored lower than the plaintiffs on a civil-service exam. They were the first to challenge the Boston department's affirmative-action policy since it had been upheld by the U.S. Supreme Court in 1989. In 2004, they won. Last year, a Los Angeles jury awarded two white fire captains $1.6 million in damages in a suit claiming that they had been punished more severely than a minority officer for participating in the same prank. The New Haven suit, meanwhile, has spurred a similar one by white firefighters, also over promotional exams and test scores, in nearby Bridgeport, Conn.

 

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Leave it to the Supreme Court to come out with a decision on discrimination while I'm attending the ABA Presidential Summit on Diversity (which I'll be live-tweeting and blogging from starting on Friday). 

So, while I've been tied up for most of the day, the news sites and employment law blogs have been a buzz with summaries of Gross v. FBL Financial Services.  (You can view my prior coverage of the case here.)  

Each of the blogs has done a good job wrapping up the case, including the Jottings from an Employer's Lawyer, LawMemo, The Laconic Law Blog. 

What's the case about technically? The Washington Employment Law Update sums it up:

In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. has held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

But I like the Manpower blog's summary even better:

Plaintiffs used to be able to state a claim if age was a factor in a decision. Now, they must prove it was the factor.

My quick read of the decision and the impact to employers in Connecticut leads me to three quick notes:

1. For employers, yes, this decision will make it "technically" harder for an employee to establish a claim of discrimination, but only marginally so. The vast majority of ADEA cases never used the mixed motive analysis anyways.  If there is circumstantial evidence of discrimination, courts traditionally allow those claims to proceed to trial. 
2. The conventional wisdom is that, like the Ledbetter decision before it, we're likely to see some "corrective" legislation by Congress that builds this back into it.
3. Employers in Connecticut also have to be concerned about claims of age discrimination brought under state law; those claims are going to be more difficult for employers to dismiss before trial.

So, let the professors discuss the theoryt of this decision; from a practical perspective, I don't expect a huge shift on how employers defend cases or how age discrimination cases are brought. 

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 A decision last week by the Second Circuit might seem fairly trivial. After all, the Court stamped a "summary order" in the case of Cunningham v. NY State Dept. of Labor (download here)  on June 10, 2009 thereby making sure the case doesn't have precedential effect.

But employers shouldn't ignore this decision; it illustrates the differences between retaliation and discrimination claims and the relatively low standard necessary to bring a claim of retaliation and get such a claim before a jury.

The case discusses what is an "adverse employment action".

 Without getting too technical, think of an adverse employment action as something that an employer does that is bad enough that the employee can then sue.  

After all, ordinary everyday work grievances are not enough; the employer must do something more than that in order for the employee to then be able to bring a claim. 

But is it possible for an employer to take an adverse action that is not enough to support a claim of discrimination, but IS enough to support a claim of retaliation? The court answers that question "yes" in Cunningham.  

In Cunningham, the employee claimed that he was reassigned from a fifth-floor office to a first-floor office (among other things).  The court said that this was not enough to state a claim for discrimination. In other words, that claim isn't the type of "adverse employment action" that can support a discrimination claim. 

But the employee's retaliation claim survives because the standard of what an "adverse employment action" is different and less demanding for those claims.

The Second Circuit concludes that "[i]n a retaliation claim, '[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.'”

The court goes on to state that "a retaliation plaintiff must “present evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.'”

You might scratch your head at first but you've read that correctly: the Court is, in essence, saying that reassignment of an office isn't enough to bring a discrimination claim over, but is enough (at least here) to bring a retaliation claim.  Put another way, different standards apply to both claims.

What's the takeaway for employers? As I've stated previously for retaliation claims, careful documentation of the decisions you make as well as consistency, can help minimize the risk that the claims will go anywhere. But as this case demonstrates, it's not going to take a lot for an employee to be able to satisfy the low burden necessary to keep such a claim alive.

(H/T Wait a Second)

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Tell the truth. Be consistent.

Those are common refrains among lawyers to clients. Why? Because inconsistencies are a crucial way for opposing parties to establish their case.

In employment cases, an employee may not have "direct" evidence of discrimination, but courts allow an employee to piece together evidence based on circumstances, including evidence that pokes holes at the employer's business reasons for a decision.

The Second Circuit provided a prime example of this practice in a case released Friday entitled Weiss v. JPMorgan Chase & Co .  In the case, the Second Circuit discussed how finding fault with the employer's justification is enough to at least send the case to a jury to decide.

In Weiss, the evidence presented by the employee called into question the credibility of JPMorgan’s main explanation for his termination, at least in part. The employee then argued that his termination occurred under the following abrupt and unusual circumstances suggesting discrimination, including the promotion of a younger employee without supervisory experience in the industry. The Second Circuit found that the disparity in qualifications may point to discrimination.

The Second Circuit here was also troubled by shifting reasons proffered by the employer. Particularly troubling to the Second Circuit was a comment made by a JPMorgan human resources representative that the company "always advocate[s] giving true reasons" why employees are fired. If that's the case, the court seemed to inquire, why wasn't it done here?

What's the take away for employers? Be consistent in the reasons why you terminate an employee and follow your policies and procedures with consistency as well. 

For a more detailed analysis, see this post by the Wait a Second blog.

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With all the developments the last week or two with the Connecticut legislative session, it's been difficult to keep up with everything ELSE happening in employment law. 

So, time for a "Quick Hits" post, where I recap some of the stories you might have missed relating to the world of labor and employment law that might be of interest to employers in Connecticut and beyond.

• Michael Moore, of the Pennsylvania Labor & Employment Blog, has a long-awaited followup to his guest post in this blog last year on Body Mass Index being the next type of claim out there under the ADA.  This time, he looks at the effect of the new ADA amendments on such claims.
   
• In what should be a surprise to no one, the U.S. Government has delayed implementation of E-Verify yet again for federal contractors. (My most recent post on E-Verify is here.) The newest date is September 8, 2009.  Don't hold your breath on this one.
   
• The World of Work was among numerous blogs that reported this week on a new case out of California overturning a $105M verdict in favor of baristas who claimed that they shouldn't have had to share the "tip jar" with shift supervisors. (H/T Overlawyered)
   
• As you may know, the NLRB - a five member board - has only had two appointees lately. A recent appellate court called into question the legitimacy of the decisions by the board. The inevitable appeals have now started, reports the Workplace Prof blog. I have a hard time believing that this decision is going to be upheld but we'll see. For employers, however, unless you have a case up at the Board level, this isn't something that will impact them, at least in the short term. 
   
• The intersection between Twitter and employment law -- the subject of an earlier post by me -- gets the scholarly treatment with an interesting seminar article. Some of it states the obvious such as "Users must be careful what they tweet. Twitter is subject to vast potential liability, as is any electronic communication tool." But it's refreshing to see someone looking at the subject from a treetop level.  

 

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Over the last 24 hours, much virtual ink has been spilled on a case pending before the U.S. Supreme Court, Ricci v. DeStefano, because Judge Sonia Sotomayor -- one of the judges handling the case at the Court of Appeals -- has been nominated to the Court. (I've covered the case in various posts here.)  From a Connecticut perspective, the Hartford Courant does its own recap here.

The question, frankly, is why such a fuss? 

Back in September 2006, U.S. District Court Judge Janet Arterton issued a lengthy opinion in which she dismissed the firefighters reverse discrimination claims and found for the city of New Haven.  Judge Arterton is no stranger to employment law cases, having represented mainly employees in private practice before getting appointed to the bench.  The decision is well worth the read.  Reasonable people can disagree with the outcome, but Judge Arterton's decision hardly lacks logic or thorough reasoning. 

The firefighters appealed and the case went up to the Second Circuit.  Judge Sotomayor was one of three Second Circuit judges selected to serve on a panel to hear the case.  In the summer of 2008, she and two other judges decided to affirm the district court's decision. 

The two other judges, Judges Pooler and Sack, and Judge Sotomayor all agreed that they did not have anything to add to Judge Arternon's decision so they issued a "per curiam" opinion which, in essence, adopted the lower court's reasoning.  (I should note that they original issued a summary order on the case, later turning it into a "per curiam" decision.  Summary orders are quite commonly used in the Second Circuit).  While not an everyday occurrence, it's not uncommon for courts to use "per curiam" decisions either.  (Of course, perhaps the most famous "per curiam" decision was in Bush v. Gore, but that's an argument for another day.)   

Here was the essence of the the Second Circuit's decision:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

The firefighters appealed to the Second Circuit again, asking the entire court to hear the case en banc (meaning that all 13 judges would hear the case). That request was rejected by a 7-6 margin and featured a spirited dissent by Judge Cabranes. 

The case now is pending before the U.S. Supreme Court where another split decision is expected.

The attack on Judge Sotomayor from some on the Ricci case seems to focus on the fact that she and two other judges decided to dismiss the claim in a "per curiam" decision, rather than in a lengthy one. However, there are many reasons why a case might be decided in that fashion and to attribute and speculate as to the reasons it was used in the Ricci case seems to be reaching for an argument that might not otherwise exist.  And regardless, there were many other judges in the Second Circuit who did not believe the case warranted any further decision either as determined by the en banc vote.  Are all of them disqualifed from serving on the Second Circuit too?

Some critics have gone even further, claiming that her decision in the Ricci case showed that she "reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety." 

All of these critcisms of Judge Sotomayor seem to be a reach for an argument that doesn't really seem to exist based on her handling of the Ricci case. And it certainly doesn't suggest that she is unqualifed to serve on the U.S. Supreme Court. After all, if the Supreme Court rules in favor of the city, does that mean that the justices are also "reading racial preferences and quotas into the Constitution"? The answer is obvious: No.

So, what are we ultimately to make of the Ricci case? In my view, not much.  It is, quite simply, a difficult decision in which very bright people can disagree.  And judges don't get to pick and choose the cases they are asked to judge. 

As the Workplace Prof succienctly said last month, "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

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UPDATED 5/19/09

The U.S. Supreme Court has been very busy this morning.

First, in a 7-2 decision, the Court held that an employer (inthis case AT&T) did not violate the Pregnancy Discrimination Act when it gave less retirement credit for pregnancy leaves that occurred prior to the passage of the act. 

In addition, the Court found that because the company's pension payments were in accord with a bona fide senior seniority system, they were insulated from challenge under Title VII.  

You can read the court's decision in AT&T v. Hulteen here (including an interesting dissent by the Court's only female Justice, Justice Ginsburg.

The Workplace Prof blog did a good job at recapping oral argument several months back and predicting a fact-based decision.  Ultimately, I think the decision is a bit of a surprise, particularly because it was not a close vote. 

For employers who have long-standing pension plans, the decision provides some much needed clarity on what laws should apply for long-serving employees and whether the PDA applied retroactively.  However, this decision is not going to have much impact for most employers because changes to the law in 1978 now require employers to treat pregnancy-related absences the same as other medically-related conditions. 

In other business, the U.S. Supreme Court solicited the views of the U.S. government in the case of Lewis v. City of Chicago to decide the following question:

Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?

(Note: An earlier version of this post suggested that the court granted certiorari in the Lewis matter; that has been corrected.)

(H/T SCOTUSblog)

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Going to a trial with an employment discrimination case is expensive. Which is one reason why many employers will ask the court to dismiss a claim before trial using a process known as "summary judgment". 

But a recent federal court case illustrates the difficulty that employers still have in getting courts to grant summary judgment and how cases that seem small can end up becoming big.  

The case, Rolon v. Pep Boys -- Manny, Moe & Jack, 601 F. Supp. 2d. 464 (D.Conn. 2009) (download here) , arose out of claims by a customer service representative that she was discriminated and retaliated against because of her gender and pregnancy.    She claimed that two months after she returned to work because of her pregnancy in 2006, she was questioned about her use in 2003 of an employee discount for relatives and friends who were not eligible for it.  The company said it's investigation of this employee arose out of a separate investigation in the fall of 2005.

The company ultimately terminated the plaintiff's employment for alleged improper use of the employee discount. The plaintiff alleged that this was a coverup for discrimination and that comments by her supervisor such as "Go home and be with your baby. We don't have work for you", supported her discrimination claims.  She also claimed she had management approval for her use because no employee discount could be used without management approval.

The federal court held that there was sufficient evidence and a sufficient dispute about certain facts that entitled the plaintiff to a trial.  Of course, the court did not address the ultimate merits of the claim and whether the plaintiff was right or wrong. The only issue for the court to look at was whether there was enough evidence that could support a claim of discrimination. Here, the court said there was.

For employers, this case is a classic example of how termination decisions will be scrutinized by the court.  Although the court doesn't address the issue head on, it goes out of its way to point out that the events that the employee was being fired over concerned just $200 and occurred three years prior to the actual termination.  In its decision, the court fails to note of any similarly situated employees who might have been terminated or other examples of how the policy had been consistently applied.

The employment at will doctrine in Connecticut allows employers to fire employees for any reason or no reason. While that technically remains true, that doesn't mean that courts won't review reasons that may seem a little fishy to it.  Here, it seems that the court was troubled by the reason for the termination decision and said that there was enough evidence (if credited by a jury) that suggested that the reason was a pretext for discrimination.

Ultimately, the employer here may very well prevail at trial.  But to do so, it'll have to make an expensive point over a $200 employee discount misuse. 

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In the next month or so, the U.S. Supreme Court is expected to issue its decision (or multiple decisions) in the Ricci v. DeStefano matter (for background, see my prior posts here).

In the meantime, other bloggers and writers have been adding their views to fill out the spectrum. 

On the Talking Points Memo site, one thoughtful post suggests that the lower courts got it right in finding that there was no discrimination.

On the Connecticut Employee Rights blog, Rick Hayber hopes the Supreme Court "gets it right":

I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!

The Connecticut Law Tribune also has this recap of the case so far.

Lastly, the SCOTUSblog has this thorough recap of oral argument.

Stay tuned. This one promises to be interesting.

 

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From time to time, I've been fortunate to have several guest bloggers contribute their thoughts on Connecticut employment law. Today, I'm happy to continues that trend with a post from my Pullman & Comley colleague Michael "Mick" Lavelle.  Mick has broad trial experience, both jury and non-jury, before state and federal civil courts and before administrative agencies that regulate employment. He successfully litigated the case of Bridgeport Hospital v. Commission on Human Rights and Opportunities, et al., 232 Conn. 91 (1995), in which the Connecticut Supreme Court curtailed the commission’s ability to award damages against employers. He serves as a special master for the U.S. District Court.

Today, Mick addresses the subject of dress codes and highlights two cases outside Connecticut that highlight the approach of the EEOC in such cases.  It's definitely worth keeping an eye on to see whether the EEOC and private attorneys continue pressing the issue.

Dress code issues have certainly evolved since the days when the controversy was whether women could be required to wear dresses instead of slacks or pant suits. 

Today’s issues involving body piercing and tattoos are for the most part settled in a common-sense way. Employers may impose a professional appearance standard on employees who deal with the public, so that visible body piercings must be removed and visible tattoos must be covered up while at work.

But recently the Equal Employment Opportunity Commission has supported employees who claim that such body decoration has a religious significance. 

In EEOC v. Papin Enterprises, 2009 WL 961108 (M.D. Fla), the employee, a clerk in a sandwich shop, claimed that wearing a nose ring was a practice of her religion. 

Although the concept that an employer has the right to control its public image is usually sufficient to sustain the dress code requirement, the court noted that the shop manager simply told the employee to remove the nose ring when they were visited by a senior official from the franchise headquarters, an approach which contradicted the “public image” argument and resulted in denial of the employer’s motion for summary judgment.

In EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677 (W.D. Wash.), the employee was a server in a restaurant who had tattoos encircling his wrists. He received the tattoos during a religious ceremony after undergoing a rite of passage in “Kemetecism”, a religion with roots in ancient Egypt. In this belief system, intentionally covering the tattoos is a sin. 

This court also denied summary judgment for the employer, ruling that because of the relatively insignificant appearance of the tattoos, the question of whether it was an undue hardship for the employer to allow the “display” of the tattoos was an issue for a trial.

Employers should note that a ban on facial piercings and visible tattoos remains legally permissible; these are unusual cases which do not require that employers change their dress codes for employees who deal with the public. 

However, these cases reinforce the importance of the basic advice that dress codes, and work rules generally, should be enforced consistently and equally, and that unusual situations call for measured consideration rather than abrupt (and possibly illegal) decision-making. 

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Blog readers may remember my philosophy on Connecticut Supreme Court cases on employment discrimination -- they take on perhaps even more significance than they might otherwise deserve because they happen so infrequently.

But even that philosophy has its limits as a case decided today shows. For most employers in Connecticut, this is one case that you can probably just ignore.  Even employment lawyers like myself will have a tough time getting too excited about this one. 

Only government attorneys will truly find something of interest in this one because it tries to answer the question of whether a state employee can sue the state in state court without first seeking permission from a claims commissioner.  

In Lyon v. Jones (download here), the Connecticut Supreme Court said "no", the employee does NOT need to receive permission from the claims commissioner before filing suit and that the Appellate Court had it wrong when it made that requirement. The court also decided that the employee could not pursue the claim further because she already had the opportunity to pursue her claim in federal court first (and lost).

For employees, the take away from the case is to follow the various procedural requirements  of the statutes. For employers, making sure that employees follow those procedures may be another way to get a case dismissed.

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The EEOC issued new technical guidance for employers this week to provide them with some direction on how to deal with workers with caregiving responsibilities.  

The document, "Employer Best Practices for Workers with Caregiving Responsibilities," is available online here supplements previous guidance entitled "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities".

As stated by the EEOC:

The best practices document provides recommendations for workplace policies aimed at removing barriers to equal employment opportunity for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

The examples that the EEOC provides are not earth-shattering. Indeed, most employers are likely following many of these practices. Nevertheless, the document should give employers some additional assurance that they will have the backing of the government in implementing certain programs.  

Among the best practice examples given:

• Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.
• Develop, disseminate, and enforce a strong EEO policy.
• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.
• Respond to complaints of caregiver discrimination efficiently and effectively.
• Protect against retaliation.

Several other blogs have provided some additional thoughts on the subject this week including the Delaware Employment Law Blog and the Ohio Employer's Law Blog.  

For employers, add this to the seemingly never-ending list of areas for human resources to keep a close eye on.  

 

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There's lots of coverage this morning on the Ricci v. DeStefano (otherwise known as the New Haven firefighter reverse discrimination claim) oral argument at the Supreme Court yesterday -- among the most significant discrimination cases arising in Connecticut in years.  Here's a wrap-up:

• Ellen Simon, of the Employee Rights Post, rightly points out the dilemma facing New Haven in this situation. She suggests that Justice Kennedy may be the swing vote; the question is whether he tries to stake out a middle ground by sending the case back down to the lower courts for more analysis without declaring either side a winner or loser right now.
   
• The Hartford Courant provides some comments from the parties about the oral argument. 
   
• Law.com shares the view that all eyes are going to be on Justice Kennedy to see how he shapes the analysis.  According to the article, for what it's worth, the reporter observed: "Kennedy, the object of all the attention, did not explicitly tip his hand, but overall seemed sympathetic to the white firefighters who claim they were discriminated against on the basis of race, in violation of Title VII of the Civil Rights Act, when the city did not give them the promotions."
   
• Carole Bass, of the New Haven Independent, provides some additional on-scene coverage of the argument and framed the issue that the court seemed to focus on as "Was it a 'race-based' decision? Or simply 'race-conscious'?"
   
• For a more scholarly discussion of the case, the Workplace Prof blog does an excellent job at summarizing the many different sides to the case.  As he states, the case is not an easy call, either to analyze or predict: "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

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If only all trial and deposition transcripts happened this quickly....

The Supreme Court held oral argument in the Ricci v. DeStefano case earlier today. The transcript is now available here. 

The Workplace Prof has the snap judgment which seems pretty on point from my initial scans:

I've skimmed it enough to see that there's a lot there to digest more fully. My initial impression is that the court seemed to divide along familiar lines with Ginsburg, Souter, Stevens, and Breyer questioning the petitioners fairly heavily, and Roberts, Scalia, and Alito questioning the respondents closely. Kennedy questioned both sides about equally, and Thomas was characteristically quiet. 

Most of the argument seemed to focus on whether the decision not to certify the test was race discrimination or simply racial consciousness and what kinds of evidence an employer would need to have before it could act in this manner.

There's lots to be fascinated by in the transcript, but one exchange with Chief Justice Roberts stood up on my first glance. He asks the U.S. Government whether the promotion of diversity can be a compelling state interest in employment decisions.  While he asks for a yes or no answer, the following exchange happened:

MR. KNEEDLER: We think -- we think it probably is a compelling state interest, but it is not one that -- that can be advanced by race -- by racial classifications. And that -- and that is our basic submission here. ...
CHIEF JUSTICE ROBERTS: Can it be advanced by taking actions to avoid what is perceived as a disparate impact?
MR. KNEEDLER: Yes.

But whether the public employer can take action on that seems to be where the court is struggling with in the exchange that follows:

CHIEF JUSTICE ROBERTS: In other words, the disparate impact is regarded as something you can intentionally respond to by drawing racial distinctions solely because you would like a more diverse workforce?
MR. KNEEDLER: No, not drawing racial distinctions. That's our -- this -- the employer's response here did not draw racial distinctions. It did not say so many black firefighters would be promoted --
CHIEF JUSTICE ROBERTS: It didn't care --
MR. KNEEDLER: -- and so many white --
CHIEF JUSTICE ROBERTS: It didn't care -- it had to draw racial distinctions because it looked at the test and said, we think there's a problem because of the racial makeup of who's going to get the promotions.

But whatever the result, the decision isn't an easy one to resolve since it puts two competing interests "at war" with each other, as Justice Scalia stated at oral argument.  

The court will, however, resolve this one way or another.  A decision is expected before June.

 

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Later this morning, the United States Supreme Court will hold oral argument on an important reverse discrimination case brought by a group of firefighters in New Haven, CT.  I've summarized the case in prior posts (including the latest here).

This case, Ricci v. DeStefano, presents recurring issues regarding proper application of Title VII and the  Equal Protection Clause to the civil service. New Haven firefighters and lieutenants claim that they should have been promoted based on job-related examinations and merit selection rules mandated by local law. The City of New Haven has thus far refused because city officials believed that the examination and rules may have had a disparate impact on minorities. 

I'll be commenting later today about the oral argument (once the transcripts become available here) but suffice to say that the media hype surrounding this case is in full force. 

So, what exactly are the questions that the court will decide? Well, perhaps not the questions that everyone wants.  The issues are, as they always are with the Supreme Court, a little more technical in nature. They are as follows: 

1. When an otherwise valid civil service selection process yields unintended racially disproportionate results, may municipalities reject the results and the successful candidates for reasons of race absent the demonstration required by 42 U.S.C. § 2000e- 2(k) [Title VII]?
    
2. Does 42 U.S.C. §2000e-2(l) [Title VII] which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race ... ," permit employers to refuse to act on the results of such tests for reasons of race?
    
3. If, citing the public interest in eradicating political patronage, racism and corruption in civil service, a state's highest court mandates strict compliance with local laws requiring race-blind competitive merit selection procedures, does 42 U.S.C. §2000e-7 permit federal courts to relieve municipalities from compliance with such laws?

As for various previews of the case, you can find the SCOTUS Blog preview here, the Workplace Prof blog recap here, and the Hartford Courant's recap here. 

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Appellate Court decisions can be frustrating.  Every once in a while, instead of deciding the merits of the matter, the court will reject an appeal because a party did not "preserve" the issue at the lower courts through a proper protest. 

That's what happened in Mokonnen v. Pro Park, Inc. (download here)  from the Connecticut Appellate Court, in a decision that will be officially released later this month.  At issue: what are the questions a jury should answer in an employment discrimination matter.

The federal courts covering Connecticut that have looked at the issue for federal discrimination claims have pretty much rejected the use of what's known as a "McDonnell Douglas" balancing test.  That test, created by the U.S. Supreme Court, is supposed to be used to help judges decide some cases. Instead, some courts started using it to instruct the jury.  However, federal courts have disavowed that in recent years, finding the test confusing for juries.

In Connecticut, state court judges have an advantage with model jury instructions that are written to provide some guidance to them in an area of law that might be unfamiliar to them.  Among them, is an instruction on state discrimination law that explicitly rejects that analysis:  

The charge does not refer to the prima facie or burden shifting aspects of McDonnell Douglas because whether or not a plaintiff has established a prima facie case is an issue for the court and many federal courts have found that the burden shifting language has no place in a jury charge.  

Which is why the Appellate Court case here is so surprising and frustrating. In the background of the case, the decision suggests that the jury was given several questions to answer on the discrimination question.  In fact, the plaintiff contended on appeal that the jury interrogatories did a poor job of instructing the jury on the McDonnell Douglas concepts.

But alas, the Appellate Court didn't address that issue opting to reject the appeal on procedural grounds.  (And, in fairness to the judge, the current model jury instructions are effective January 1, 2008.)

Thus, we'll have to wait for another day for some additional appellate court pronouncements.

For employers going to trial, presentation of evidence is obviously important. But overlooking the "details" like jury instructions or interrogatories can lead to disappointing results as well. 

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Connecticut gets a rare day in the spotlight at the U.S. Supreme Court later this month when the case of Ricci v. DeStefano comes before the court for oral argument.  

At issue for the court: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Several New Haven, Connecticut firefighters allege reverse discrimination when the city denied them promotions despite high test scores, ostensibly out of fears that the test may have discriminated against minority applicants.  I've covered the case here previously.

The SCOTUSWiki (and the American Bar Association) do a good job at providing unedited version of the documents filed by the parties so you can read for yourself what the case is about.

However, what's fascinating about the case is not necessarily the parties' briefs (which you can find here and here)  but some of the briefs filed by other grounds, such as the NAACP or the ADL either in support of a party or to simply provide the court with additional guidance.  In all, there are over 20 amicus briefs that have been filed.  

And what does the U.S. Government suggest? Essentially, throwing the result at the Second Circuit out and sending the case back down to the District Court for further findings.  But it also suggests that it sides with the city's position.   

Cases from Connecticut are rare at the U.S. Supreme Court (the last big high-profile case was the Kelo v. New London).  A decision is expected before the end of the term in June.

 

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I'm taking a few days off, but unfortunately for me, employment law never stops.  So, here's a quick update on a new Supreme Court decision. 

Last week, the U.S. Supreme Court, in a 5-4 decision, held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.”

Several blogs have done a good job summarizing the case, including the Employer Law Report and this summary from Littler:

While the decision in 14 Penn Plaza L.L.C. v. Pyett specifically addressed age discrimination claims arising under a federal statute, the Court's decision is significant in that it now provides an opportunity for employers with unionized workforces to require that union members' discrimination and other statutory employment claims be privately arbitrated, rather than litigated in federal court. To get to that result, however, the relevant provision in the collective bargaining agreement must constitute a clear and unmistakable waiver of the right to pursue such claims in court.

For those employers who have collective bargaining agreements that might be up for bargaining soon, this decision gives employers another arrow in their quiver that they need to consider. 

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Suppose an employee files a complaint against your company and it's quickly dealt with.  Now suppose, ten months later, that you, the employer, fire that employee  -- ostensibly for financial reasons.  Is the timing between the original complaint and the termination enough to support a claim for retaliation?

Previous federal court cases in Connecticut have concluded, in general, that the timing -- standing alone -- is not enough.  I discussed one such case here.   

But a new Second Circuit decision, released as a summary order yesterday, suggests a way around that limitation --- at least in some distinct circumstances.

The case, Brenes v. City of New York, arises out of First Amendment retaliation claim brought by a New York school teacher who had gone to the New York Post months before his eventual termination.  The court suggests that an employer can be liable for retaliation if they waited to retaliate, so long as there was a reason why the employer may have delayed its action.

The Wait a Second blog fills us in on the rest of the details:

"A reasonable jury could infer from these facts that [the supervisor] expected that [employee]’s position would disappear in June, and that she therefore had no incentive to further retaliate against him until it became clear that he would be returning to [the school]. When considered in this light, [the employee]’s series of negative performance evaluations at the start of the next school year is suspicious and could plausibly support an inference of retaliation, particularly given that [the employee] previously received only satisfactory evaluations from prior supervisors and [his supervisor]."

This case allows retaliation plaintiffs to overcome the presumption that, without direct evidence of retaliatory intent ("You're fired because you blew the whistle six months ago"), an adverse action needs to take place more than a few months after the protected activity. 

For employers, this case -- while a rare example of the court finding a possible link of retaliation many months after the original complaint -- demonstrates the importance of documentation and consistency in evaluations and discipline.  Retaliation cases are among the most difficult to defend and this new Second Circuit decision might give some employees another way to establish a retaliation claim that might not otherwise survive.

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The Second Circuit Court of Appeals released an unpublished decision earlier this week that should give employment law practitioners (and judges) some pause as they go to trial on discrimination claims.  It should serve as a cautionary tale about the use of certain language in jury instructions and it provides some guidance as to where the court might be headed if it had to decide the issue head-on again. 

For those who haven't tried cases (or for employers), you might be surprised to learn in every case, the judge has a good deal of discretion as to how to tell a jury what the rules are that it needs to follow. These so-called "jury instructions" vary from case to case and often times, attorneys for both sides have the opportunity to submit proposed instructions for the court to follow.

In discrimination cases, the Court of Appeals has said that a plaintiff does not need to prove that discrimination was the sole motivating factor, the primary motivating factor, or the real motivating factor in the adverse employment action (typically the decision to fire him or her).  Instead, that employee or former employee must only prove that discrimination was "a motivating factor" in the adverse employment action.

But what happens when a court instructs a jury that a plaintiff must prove that the employer took adverse action against him "intentionally and with a discriminatory animus because of his disability"? That was what the Second Circuit, in Olson v. New York (download here) had to decide. 

The court said that such an explanation (and particularly the "because of" language) could have been "confusing to the jury" and that it was "troubled by some of this wording". 

Ultimately, the court took a pass on deciding whether that language was truly objectionable saying that, under the facts in this case, there was "overwhelming evidence at trial that [the Plaintiff] was fired for legitimate non-discriminatory reasons".  The court found that any error in the jury instruction language in this case was "harmless".   

For companies and attorneys about to try a discrimination case, this case should serve as a warning that using a "because of" phrase may not hold muster, particularly without any further explanations about what that means. 

In a closer case than the facts of Olson presented, the Second Circuit decision suggests that the Court might reverse and send the case back down to the District Court for another trial.  Given the costs of going to trial nowadays, that's a risk that may not be worth taking.

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While some matters get all the headlines, the work of the state and federal courts move on.  One such case came out earlier this week and I highlight it because it touches on a point that employers sometimes lose sight of -- the ability to still make subjective decisions and have that decision supported by a court later on.

The case, Spell v. State of Connecticut (D. Conn., March 17, 2009)(Thompson, J.) (download here), relates to an applicant's claim that he was not hired for a position with the Chief State's Attorney's office because he was African-American. He claimed he was “more qualified than any of the Caucasian applicants selected to fill the ... positions.”  He also claimed that he was more mature and has more education than the Hispanic applicant who was ultimately hired for the position and that he had more experience than that person as well. 

The court granted the State's motion for summary judgment, effectively dismissing the applicant's claims on multiple grounds.  Part of the court's decision focused on the theory that courts will not circumvent the judgment of the employer and that even subjective criteria are allowed in some circumstances:

Although Spell alleges that he was “more qualified than any of the Caucasian applicants selected to fill the ... positions,” this allegation is insufficient to support a conclusion that the Chief State's Attorney's enumerated reasons were pretextual in this case.... Employers may base their hiring decisions on some subjective criteria.  Title VII only requires that a hiring decision not be based on a discriminatory reason; it “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position.” Thus, it was not improper for the Chief State's Attorney to base its decision to internally promote [one person], rather than accept a new hire, on its subjective impressions of his work.

What's the Take Away for Employers From This Case?

Employers have to make difficult hiring and hiring decisions all the time.  Every attempt should be made at the time to base the decisions on supportable items.  Objective criteria (this person has a certificaion that another applicant doesn't) always help, but that does not mean that you should disregard subjective criteria (this person was more enthusiastic at the job interview) entirely. Courts willl support employer decisions in those cases but, as is the case above, the employer had some pretty good explanations for the court to rest its analysis on.

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UPDATED 3/2/09 with New Link to Proposed Regulations

The text of the proposed new regulations on GINA have finally trickled out (you can download a copy here). 

Ross Runkel (whose stakes a claim to being "First in Employment Law") finally tracked it down earlier today.

It's a 58-page document though much of what it contains has been discussed in previous posts here and here. Here are a few items that haven't been touched on before

• The definition of "employee" also covers former employees; this allows individuals who have been fired to raise discrimination and retaliation claims.  (Section 1635.2)
• The EEOC seems particularly interested in comment on six terms that have not been used previously in employment law context (at least not with any frequency). These include: "Family member", "Family medical history", "Genetic information", "Genetic Monitoring", "Genetic Services", and "Genetic Test".  (Section 1635.3)
• The regulations emphasize that although employers have 5 exceptions to the general rule that they may not acquire genetic information, these exceptions still do not allow an employer to discriminate by using such genetic information. (Section 1635.8)

Expect there to be more analysis in weeks to come. The comment period will end at the end of April 2009.  After that, expect the EEOC to release final regulations in the summer of 2009.

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UPDATED 3/1/09

The EEOC released proposed regulations regarding the Genetic Information Nondiscrimination Act on February 25, 2009.  The Washington Labor & Employment Wire (H/T) received and advance copy; the regulations are expected to be published later on Thursday or Friday and the 60-day comment period will begin then. (UPDATED: The text of the proposed regulations can be found here.)

With all the new employment laws, GINA might have been overlooked; it was passed last year and it:

* prohibits discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
* prohibits employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
* prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
* imposes strict workplace confidentiality/disclosure rules on all genetic information.

The Wire's early take on the regulations is that they clarify some terms and provide some guidance on GINA's six exceptions to the general provisions that employers are prohibited from acquiring genetic information from employees:

The proposed regulations provide additional guidance regarding some of the terms used in the Act. For example, the regulations define “employee” to cover not just current employees, but also applicants and former employees. The proposed rule also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed regulation should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

Employers in Connecticut should be wary about just following GINA however. Connecticut has long had a separate state law on the subject in Conn. Gen. Stat. 46a-60(a)(11).

In any event, the proposed regulations should be available from the government website shortly. Expect to hear more in the upcoming days about these proposed regulations.

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Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of whether the CHRO was authorized to award emotional distress damages to employees who filed suit and prevailed in state law employment discrimination cases. 

But, as discussed below, the CHRO has lately been suggesting otherwise.  This has important implications to employers in defending against such claims.  In order to understand where we are, we need to look back at some of the key cases and issues related to them, so bear with me for a bit.

The Background Cases

• The first case, Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995), held that the CHRO had no authority to award emotional distress damages in state law employment discrimination claims involving race, gender, physical disability, age and the like. It's holding was unequivocal: "The issue before the court is whether General Statutes § 46a-86 authorizes the award of damages for emotional distress and attorney's fees for a violation of General Statutes § 46a-60(a)(1). We conclude that it does not." (Open disclosure: My current firm successfully represented the hospital in that matter.)
• In the companion case, Fenn Mfg. Co. v. CHRO, 232 Conn. 117 (1995), the Court held that no emotional distress damages were available to claims of pregnancy discrimination in the employment context. It's holding was also unequivocal:  "The issue before the court is whether...[the CHRO], is authorized pursuant to General Statutes § 46a-86(a) to award damages for emotional distress based upon a violation of General Statutes § 46a-60(a)(7).  We hold that CHRO is not so authorized."
• In a followup case the next year, the CHRO argued that another statute, Conn. Gen. Stat. §46a-58 authorized the CHRO to award emotional distress damages in employment discrimination cases. The Connecticut Supreme Court, in CHRO v. Truelove & MacLean, Inc. 238 Conn. 337 rejected that claim as well: "The commission's argument is that § 46a-58 (a) encompasses claims of discriminatory employment practices and that violations of § 46a-58 (a) entitle a claimant to damages for emotional distress pursuant to § 46a-86 (c). We disagree."

The Supreme Court Reintroduces Such Claims, At Least According to the CHRO

Case closed right? Not according to the CHRO, which has started using another case as the basis for re-introducing emotional distress awards BACK into employment discrimination claims. Specifically, in arguments to CHRO hearing officers and in mediations, CHRO staff refer to CHRO v. Board of Education of Cheshire, 270 Conn. 665 (2004), in which a student claimed discrimination against a public school principal and board of education.  The CHRO's premise is that while Conn. Gen. Stat. 46a-58 can't be used to bring garden-variety employment discrimination claims, it can be used to piggyback other claims through it.

Because the Court in Cheshire doesn't overturn its prior cases and is dealing with a student's discrimination claim, it's admittedly a bit difficult to parse the logic, but there's plenty of discussion in Cheshire about how some types of other discrimination claims can allow the complainant to recover emotional distress damages. 

Continue Reading...

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Addressing the legal risks associated with a reduction in force (or "RIF") has long been a topic on this blog. In fact, looking in my crystal ball way back in January 2008, I suggested that it would the hot topic before years' end. 

Flash forward to the present, and the headlines continue to be dominated by news of layoffs, plant closings, furloughs and bankruptcies. 

One of my friends and professional colleagues in the area, Lori Rittman Clark, has posted her thoughts on RIFs in the For the Defense blog. 

While there's nothing particularly ground-breaking (quite simply because there aren't a lot of new developments in the area), it is a concise and well-rounded summary for employers and HR professional looking to reduce legal risks associated with reductions in force.

What are the issues she suggests reviewing?

• Potential Applicability of the WARN Act;
• Disparate Impact Analysis.;
• Disparate Treatment Analysis; and,
• Releases.

All are sound subjects for review. The best suggestion should be the most obvious one: Seek legal guidance at the START of a process, rather than the end, to avoid the legal pitfalls that surround RIFs.

In the end, however, there is no magic bullet to eliminating legal risks associated with reductions in force. Each of the items Clark raises may help reduce the legal risks, but even implementing all of the above may not eliminate the risk entirely.

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To bring state law employment discrimination claims to court, it is well-known that an employee has to first file the claim with the state agency responsible for investigating the claim (the CHRO) (Conn. Gen. Stat. Sec. 46a-101(a)).  And most people believe that all the employee has to do is then wait for the CHRO to issue a "release of jurisdiction" to the employee, and then file a claim in Superior Court within 90 days of receipt of the release (Conn. Gen. Stat. Sec. 46a-101(e)).

But a recent Superior Court case reminds us of another limitation on the ability of individuals to bring claims in Superior Court that is found in another section, Conn. Gen. Stat. Sec. 46a-102.  That statute states that: 

Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission.

Thus, even if the individual gets a release of jurisdiction, the employee must STILL file a claim of discrimination in Superior court within two years of the original filing of the claim with the CHRO.

In Wright v. Teamsters Local 559 (2009 WL 242401) (available via Westlaw only), the labor union challenged the subject matter jurisdiction of a member to bring a discrimination claim against it on these grounds. 

The procedural history of that case is straightforward: The plaintiff filed an administrative complaint with the CHRO on October 12, 2004, alleging he was the victim of race and color discrimination. Over seventeen months later, on or about April 4, 2006, the plaintiff amended his administrative complaint to add a new claim of age discrimination. On August 28, 2006, the plaintiff received a release of jurisdiction from the CCHRO and, thereafter, on November 28, 2006, he filed a claim in Superior Court

The employee did not dispute the timeliness of the underlying discrimination claim, but claimed that the filing of an amended complaint should restart the statute of limitations period. The Superior Court held that the age discrimination claim related back to the other discrimination claims:

The court finds that the plaintiff's age discrimination claim in the amended complaint relates back to the original complaint: it involves the very same set of alleged facts and actors as the race and color claims; it involves the same claims of harm and injury; and it is based on the very same statutory subsection. It is in effect, the same cause of action.

The case is a strong reminder to employers that the procedural requirements for filing claims must be strictly followed by individuals bringing discrimination claims against it.  And with the delays at the CHRO investigative stage as long as they are, this statute is one that should not be overlooked in defending claims of discrimination.

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There's a relatively new children's book out now entitled, "The Wolf Who Cried Boy". It's a humorous take on the old fable and I read it outloud one evening this week at home.  

I can't help but be reminded of both the classic and new story, reading all of the hyperbole and hype of the last 24 hours regarding the new Ledbetter Fair Pay Act and those who are quick to predict that the floodgates of employment litigation are now open. 

Let's clarify a few issues up front: 

• Is the Ledbetter Fair Pay Act important for employers to understand? Sure, just as all changes to employment laws are important. 
  .
• Does it dramatically change the law? Not really.  Before this law, employers still weren't allowed to engage in pay discrimination; it's just that the time frames for bringing suit under some pay discrimination claims had been defined narrowly by the U.S. Supreme Court in 2007.   This Act extends the time frame for bringing suit by treating each new paycheck as a basis for a discrimination lawsuit, rather than just the original decision to discriminate. 
   
• Will this lead to a dramatic upturn in pay discrimination lawsuits? The jury is definitely still out on this one.  

Here's the greater perspective.  Before the U.S. Supreme Court decision in 2007, women could bring pay discrimination lawsuits under both Title VII's overall scheme, or the Equal Pay Act.  For reasons that are still not fully known (though discussed by National Journal's Stuart Taylor here (H/T Point of Law)) , Ms. Ledbetter did not pursue her Equal Pay Act claim on appeal after it was dismissed on the merits (effectively forfeiting it).  The U.S. Supreme Court ruled only that for pay discrimination claims brought under Title VII, a 180-day statute of limitations applied to pay discrimination decisions.. 

Thus, after Ledbetter, if the employer's discriminatory pay decision occurred in 2007, the employee was out of luck now to sue under Title VII.  Each new paycheck was not an "act" of discrimination. 

The new law treats each paycheck as a new "act" of discrimination, effectively re-starting the statute of limitations each time a paycheck is issued.

But here's why the fuss about the new act is overblown. The employee still could sue under the Equal Pay Act. Indeed, employers should be much more concerned about the Equal Pay Act -- which was unaffected by the Fair Pay Act --  when it comes to pay discrimination claims.  

Unlike Title VII pay discrimination claims, employees do not need to file their Equal Pay Act claims with the EEOC, and claimants have two years in which to file their claim under the Act (three years if the violation is willful).

But here's the kicker for Equal Pay Act claims: The employee does not need to prove discriminatory intent, unlike Title VII.  In fact, the Equal Pay Act focuses on disparity in pay for substantially similar work; contrast that with Title VII which focuses on a discriminatory action that causes a disparity in pay.  So, when the employee is paid less than similarly situated employees of the opposite sex, an Equal Pay Act claim can arise without showing that the employer intended to discriminate. 

Does this mean that employers have no reason to be concerned about the Ledbetter Fair Pay Act? Of course not. The act has the potential of opening of employers to older claims of discrimination against managers and supervisors who have long since gone. But remember, employees will still need to show that the employer intended to discriminate -- a burden that is not insignificant.  And former employees are not going to be able to revive a claim of pay discrimination without a recent "paycheck" to go along with it. 

It's difficult to get exact numbers of pay discrimination claims and look at the numbers of claims filed both before and after the Ledbetter decision came out, but a cursory review of the statistics published by federal agencies under the No Fear Act doesn't seem to reflect a big downturn in the numbers of pay discrimination claims after Ledbetter.  In fact, the United States Postal Service reports more pay discrimination claims being made in 2008 (after Ledbetter), than 2007.  Thus, with Ledbetter effectively being overturned, it's hard to believe that the Act will impact the numbers of claims significantly. 

There is another bill that would change the underlying law that employers should follow closely -- the Paycheck Fairness Act (H.R. 12). The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living. The bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay. These damage penalties would apply to even unintentional pay disparities.

The House passed that bill as part of the Ledbetter Fair Pay Act bill, but the U.S. Senate did not take that up.  Backers of that bill, including Rep. Rosa DeLauro of Connecticut, will continue to press on. 

For employers, the Ledbetter Fair Pay Act should just be another reminder to be vigilant in the monitoring of your compensation practices.  The EEOC's Compliance Manual (H/T Moore) gives some suggestions on the issues that employers can review to determine their compliance with the applicable laws.  

There's little reason for employers to cry "wolf" or "boy" over this latest Act. Stay focused and use this current annual review season to ensure that your pay practices are supported by accurate data and are fair. 

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Earlier today, President Obama welcomed Lilly Ledbetter to the White House and signed the Lilly Ledbetter Fair Pay Act.  You can find the text of the act here and even leave your comments on it. You can read the President's remarks here. And you can find the White House blog entry on the subject here.

In signing the bill, the President said:

So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time.

I've covered the bill extensively in prior posts, which you can find here, but some final remarks on this new law for now are worth mentioning:

• The final version of this bill does NOT contain provisions relating to the Paycheck Fairness Act. That bill -- which was originally part of the House version -- did not make it into the Senate version. Thus, the Senate will take that measure up separately, perhaps later this year. 
• The bill is retroactive to May 28, 2007, but as the SCOTUS Blog is quick to remind us, it does not "revive" claims that have already been dismissed with a final judgment: 

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision. It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

• The bill's main purpose is to extend statute of limitations on compensation decisions. But the effect of the bill will be to allow for a potential look back on compensation decisions for several years -- and perhaps much, longer.

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Another snow day.

The winter continues its white deliverance. But in the meantime, the employment law world never stops.  Here are some items to keep you up to speed on what's been happenning locally and nationally.

• The latest projections are that the Employee Free Choice Act will be brought up for debate in Congress sometime this summer. In the meantime, there's lots of analysis that is coming out in support of or against the bill  -- much of it filled with empty rhetoric. One of the more cogent ones, is a post by respected economist and federal appellate judge Richard Posner who has his doubts as to whether the bill will actually promote unionization.  (H/T California Labor & Employment Defense Blog).
• The Lilly Ledbetter Fair Pay Act is now due for signature by President Obama on January 29th.  
• It's Girl Scout Cookie season and, as the HR Capitalist now reminds us, this brings into focus non-solicitation policies that many companies have.  "I hate saying no to the sale of girl scout cookies, school sales, etc. I'm usually a "no-harm, no-foul" type of person, but every time I see one of these cases, it always perks up my sensitivity to solicitation in the workplace."  
• Word in this morning is that the E-Verify rules will now be delayed further to May 20th and will allow the Obama administration time to review the proposed rules.  
• Above the Law reports that the Government's job website was actually hacked over the weekend.  As if workers didn't have enough to worry about...
• Rush Nigut, who runs a terrific blog in Iowa, has a post about using Twitter in the workplace. If you don't know what Twitter is, now's the time to start.  
• John Phillips has a good article about why employees don't go to human resources. For HR professionals, it's worth reviewing because if you can get to the root of the problem, you have a better chance of solving it before it blows up into something larger.

And if the snow here gets you in the mood for a little Robert Frost, here's a link to his classic poem: Stopping by Woods on a Snowy Evening. 

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In an unanimous 9-0 decision, the U.S. Supreme Court today ruled Title VII protects workers from retaliation after the employee responds to questions in an internal investigation.  The Court held that Title VII protects those workers who speak out on discrimination during company-ordered investigations, not simply those investigations that arise from an actual discrimination claim. 

The case of Crawford v. Metro Government of Nashville (download here), arises from the lower court's granting of summary judgment -- so the court was required to view all facts in a light most favorable to the Plaintiff.  The case involved the firing of a 30-year employee allegedly for embezzlement, though that was after she participated in an investigation arising from a co-worker's complaints of harassment by another employee. 

From a purely legal perspective, the court discusses what has been termed the "opposition" clause of Title VII and finds that too narrow of a reading of that term would lead to strange results:

There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same  discrimination in the same words when her boss asks a question.

If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others…. The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Nothing in the statute’s precedent supports this catch-22.

Because of this, the court never reaches a second question of whether the employee's conduct was "participation".  (Title VII retaliation provisions can be raised under either an "opposition" or a "participation" prong.)

For employers, the case reinforces messages that all claims of discrimination and harassment should be promptly and thoroughly investigated. (In fact, the court revisits the landmark Farragher/Ellerth decisions to emphasize that fact.)  In addition, the employer should remind employees that they will not be retaliated against merely for participating in an investigation -- regardless of whether there is an active discrimination claim pending or whether this is a mere internal investigation on discrimination.

And, as always, employers should consider consulting with outside counsel during all facets of the investigation to ensure compliance with the applicable law.

An interesting concurrence by Justice Alito was also written to suggest that the Court's decision should not be read too broadly. 

An interpretation of the opposition clause that protects conduct that is not active and purposive would have important practical implications. It would open the door to retaliation claims by employees who never expressed a word of opposition to their employers. To be sure, in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue. But in other cases, such employees might well be able to create a genuine factual issue on the question of causation. Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an employee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor. ...

The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here. For present purposes, it is enough to hold that the opposition clause does protect an employee, like petitioner, who testifies about unlawful conduct in an internal investigation.

(H/T SCOTUSBlog, Ohio Employer's Law Blog)

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With a new administration now firmly in place, the President has wasted no time in appointing new chairs of the National Labor Relations Board and the Equal Employment Opportunity Commission. 

The EEOC has the details on the first appointment of Stuart Ishimaru as Acting Chair:

The U.S. Equal Employment Opportunity Commission (EEOC) today announced that President Barack Obama has appointed Stuart J. Ishimaru as Acting Chairman of the EEOC and Christine M. Griffin as Acting Vice Chair.

Ishimaru, whose term expires on July 1, 2012, has been a Commissioner since November 2003. He was confirmed by the U.S. Senate for a second term at the EEOC in December 2007. During his tenure, Ishimaru has primarily focused on large, systemic cases and in reinvigorating the agency’s work on race discrimination issues. He also played an instrumental role in the EEOC’s adoption of groundbreaking guidance on gender discrimination against workers with caregiving responsibilities.

The President has also tapped Wilma Liebman as the new Chairman of the NLRB. Details can be found in the NLRB's press release here.   Several blogs are suggesting that Ms. Liebman's appointment will signal a shift towards union-friendly decisions.  As one blog recently said:

President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

First appointed by former President Clinton, Liebman has served on the Board since November 14, 1997. Prior to joining the NLRB, Liebman worked at the Federal Mediation and Conciliation Service as Special Assistant to the Director and then as Deputy Director. In addition, Liebman has worked as a lawyer for the NLRB, the International Brotherhood of Teamsters, and the International Union of Bricklayers and Allied Craftsman. She is also an elected member of the Executive Board of the Industrial Relations Research Association and of the College of Labor and Employment Lawyers, Inc. ....

It is evident by this passage that Liebman views with disdain the “political influence” of the business community. As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. Moreover, if the Employee Free Choice Act (EFCA) is ever enacted, the NLRB will have the regulatory opportunity to shape how the new law will operate in practice in a way that is favorable to organized labor. As a proponent of unions, Liebman will surely do just that if given the opportunity.

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 With another holiday weekend approaching, there's time enough this morning for a few quick stories about a wide range of employment issues with relevance to employers in Connecticut.  As I look out from my office (and wondering where the snow is in Hartford), here are a few stories to ponder:

• The Connecticut General Assembly is just beginning its 2009.  Inside the Capitol, a blog run by the Connecticut Business and Industry Association, has started posting updates relating to new labor bills being introduced.  The first is entitled Workers’ Compensation and Rehabilitative Therapy For Individuals Who Have Witnessed a Colleague’s Death.  Suffice to say, the CBIA doesn't think much of the bill.  
   
• Back in Washington, DC, new employment law bills continue to be introduced. The Washington DC Employment Law Update has word of a new bill which would increase penalties to up to $50,000 per offense for employers who hire undocumented workers.  This bill seems unlikely to be on the administration's agenda in the near term, but it's worth tracking. 
   
• A blog I've followed for a while, the Evil HR Lady, had an interesting post this week about "super secret HR stuff" that she shared.  You'll be happy to learn, however, that there really isn't much super secret stuff out there.  But she also provides some helpful information about when an HR manager should act to save the company money in both the short and long term.  
   
• The Wait a Second blog (which reports on matters relevant to the Second Circuit Court of Appeals -- in which Connecticut is located) reports on a thorny case trying to determine what is protected free speech for employees and whether the filing of a retaliation claim can give rise to a free speech claim.  Although the specific case is out of federal court in New York, it touches on issues and cases directly relevant to Connecticut issues.  
   
• Never one to hide her true feelings, Connecticut Law Tribune columnist (and attorney) Karen Lee Torre suggests in a column this week that Lilly Ledbetter -- of recent U.S. Supreme Court fame -- is no victim.  Considering that Torre has represented plaintiffs in employment law cases for a living, her dismissal of Ledbetter is striking. It's well worth reading to understand that the Ledbetter case was more about statute of limitations, and less about sex discrimination.  Meanwhile, the bill is expected to be debated in the U.S. Senate today.
   
• Particularly for employment lawyers out there, the Workplace Prof reports on a recent NLRB decision that held that an attorney's question to an employees about their union activities, including whether they voted for the union, constituted an unfair labor practice. 
   
• Finally, with all of the focus on the new FMLA regulations, employers shouldn't forget about the new ADA amendments as well.The Delaware Employment Law Blog recently highlighted a resources that I've suggested for years, from the Job Accommodation Network (JAN) JAN has now updated its site with additional resources in compliance with the new law. 

For those who don't know about JAN, Molly DiBianca fills you in: 

All wise employers know about the power of JAN.  JAN is a treasure trove of accommodation-related information. If you have questions about what options there are for accommodating just about any disability, JAN is the place to look. And JAN provides not only the answer but actually gives you direct resources for purchasing the necessary goods and services.

 

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UPDATED 1/26/09

A part-time secretary who worked for three weeks before resigning is entitled to $15,000 in emotional distress damages and six months back pay, according to a recent CHRO Hearing Officer decision.  The case is particularly notable because the company was Claywell Electric, run by the now-jailed Kurt Claywell.

The employer in the case, CHRO ex rel. Doe v. Claywell Electric (available here), didn't put up a fight on the discrimination charges as well, taking a "default" against it.

Nevertheless, the employee still had to prove that she suffered damages as a result of the alleged discrimination. Here, the hearing officer suggests that the employee may have been hired because she could be sexually harassed by Mr. Claywell:

It would not be an unwarranted stretch to conclude that the complainant was hired for the singular reason that she was deemed by Mr. Claywell to be a suitable target for sexual harassment.

And what constituted the discrimination? According to the hearing officer:

The most disturbing characteristic of Mr. Claywell's] workplace actions (fully attributable to the respondent entity) is that they appear to have been designed to intimidate and humiliate. He would uniformly wait until the complainant was virtually defenseless before engaging in his groping, fondling and propositioning. The tactics included (previously recounted in part):
• pinning the complainant between his chair and his desk rendering her virtually immobile;
• confronting her while she was seated on the floor and confined to a space measuring perhaps no more than eighteen square feet and throwing books at her while so immobilized;
• dumping documents in her arms which were already full of documents to be copied and thus defenseless, and
• surprising and pinning the complainant in a closet as a prelude to an assault.

From a purely legal perspective, what is also interesting about the case is that the Hearing Officer allowed the employee to bring her claim under a pseudonym. (For background on the subject of pseudonyms, I've found a very interesting law review article here.)  Its entirely unclear from this particular decision why such a practice is being allowed here, but the Hearing Officer cites to Conn. Gen. Stat. Sec. 19a-581 et seq -- which is a section dealing with "AIDS Testing and Medical Information" -- to support the proposition that confidentiality is needed here.

UPDATE: Since my original post, I have been able to confirm through several sources that the Complainant was allowed to bring the claim under a pseudonym because the CHRO regulations (which are based on the above statute) allow for its use for sexual assault victims.  In this matter, Mr. Claywell had been formally charged and prosecuted for an assault.   Thus, although the decision from the hearing officer cited to the "AIDS Testing and Medical Information" statute, the decision in this matter was based on the Complainant's status as a sexual assault victim only.

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To the surprise of absolutely no one, the U.S. House of Representative overwhelmingly passed two employment law bills addressing compensation issues.  

The Lilly Ledbetter Fair Pay Act, HR 11, pretty much split among party lines 247-171. The Paycheck Fairness Act, HR 12, passed 256-163.  

The bills now move on to the Senate, where the vote is expected to be closer.  

 

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This is shaping up to be an interesting year for the Connecticut General Assembly.  The budget forecasts are projecting massive deficits.  As a result, I would not be surprised to see the budget debates dominating the agenda of the Connecticut legislature.

Nevertheless, other bills will still be proposed, debated, and certainly  passed during the several months that the Connecticut legislature is in session.  Advocates for a transgender anti-discrimination bill believe this is finally the year for passage of such a bill. 

According to this morning's Courant:

Transgender activists believe this is the year they will gain equal protection under the state's anti-discrimination laws.

"We feel good," said Jerimarie Liesegang, who leads the Connecticut TransAdvocacy Coalition. "We've done the groundwork, we've done the education and we know we have the votes."

A proposal, to be introduced in the legislative session that begins Wednesday, would prevent people who in any way blur gender lines from being discriminated against in the workplace or while seeking housing or obtaining credit. More than a dozen states, including California, Illinois, Maine, Massachusetts, Oregon and Rhode Island, have enacted similar laws.

Bills that bar discrimination based on gender identity or expression have come up several times over the past few years, but failed to win passage. In 2007, both the judiciary committee and the Senate approved such a bill, but it died in the House of Representatives.
 

I've previously discussed this proposal in various posts here.  Although same-sex marriages were legalized last year by the Connecticut Supreme Court, the legislature didn't pass the concept earlier.  Thus, I think the transgender/gender identity bill still faces some more hurdles because the concept remains foreign to many people.  (You can educate yourself with some useful materials from the Connecticut TransAdvocacy Coalition) Some raise issues of who gets to use the restroom in the workplace (and when), but these probably can be worked out if people spent some time addressing it.

Because the bill died in the House of Representative last year and with the legislative facing huge issues of how to fix the budget, I have a tough time believing that legislative leaders will want to use political capital pushing this bill, no matter how noble they believe the cause is.  The votes may be there, but the energy may not.

For employers in Connecticut that have an gender identity-related issue arise in their employment, seek some legal counsel. Just because it may not be illegal to discriminate, doesn't mean the employer can't work out a sensible solution to some issues (or that other legal issues may not be implicated).  Indeed, some employers in Connecticut have their own anti-discrimination pledges that cover gender identity as a protected class. 

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I don't think it's going out on a limb to suggest that 2009 brings about some of the broadest changes to employment laws in the United States this decade.  Some changes are already known, while others are forecasted to occur.  

Michael Moore, over at the Pennsylvania Labor & Employment Blog, has an excellent post from earlier this week, that details five items that should be added to an HR professional's "To Do" list for the first quarter of 2009.  

• ADA Amendments Act Compliance (effective 1/1/2009);
   
• E-Verify Registration and Immigration Compliance (effective 1/15/2009);
   
• FMLA Regulations Implementation (effective 1/16/2009) which require action by employers in the following areas:
  • Reviewing the regulatory changes and integrate them into your compliance program.
  • Using the new forms and poster.
  • Revising Employee Handbook provisions;
     
• EFCA and RESPECT Act Planning; and 
   
• Wage & Hour Self-Audit: As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims.

This list strikes me as a good place to start for many employers.  There's going to be plenty of changes on the way but making sure that your FMLA and ADA policies and procedures are in compliance with the new laws and regulations should be a priority for most companies.

I've covered these topics in more detail in various posts, so use the "search" function to the left to find the topic that best suits your needs. 

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Although I'm heading out on vacation soon, employment lawyers sometimes can't resist a good employment law-related holiday cartoon. 

I recently came across this and believe you all will appreciate the humor in this as well. 

(Though it does remind me last year's charges against a patron who was allegely a bit "frisky" with a mall's Santa Claus.)

I asked the cartoon's author, Kevin Duffy, for authorization to republish this cartoon.  After suffering without power for many days in New Hampshire, he graciously agreed to allow me to republish this. 

(Because he has given me an exclusive and limited license to publish, please do not copy it.)  

Given how long Kevin's been without power, make Kevin's holiday a little brighter by visiting his website which has some great material and instructions on how to contact the cartoon's author. You can visit his site at www.kevinduffy.net.   You can even purchase some cartoons for the new year as well.

Happy Holidays.

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The U.S. Supreme Court today agreed to hear the case of Gross v. FBL Financial Services. Inc. putting the issue of "Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case" squarely before the court (H/T ScotusBlog).

The case, arising out of a 8th Circuit decision (available here), involves an Iowa executive who alleged that he did not get promoted because of his age.  A jury found in his favor and the company appealed, claiming that the jury instructions were improper.  The 8th Circuit reversed the lower court's decision finding error in giving a mixed-motive instruction.   

The National Employment Lawyers Association filed an amicus brief, in support of the executive's claims. That brief was accepted by the court today as well.

According to the executive's petition to the court, the issue raised will resolve an issue that was left open in the Court's 2003 decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).  In that case, the Court held that in a Title VII case a plaintiff is not required to present direct evidence of
discrimination in order to obtain a mixed-motive instruction. Desert Palace expressly reserved decision as to whether such direct evidence would be required in a non-Title VII case.  The case now before the Court concerns the Age Discrimination in Employment Act.

For employers, a decision in this case either way is not likely to have a significant impact on HR practices. Rather, the decision will be most relevant to employers litigating employment discrimination cases in the federal courts, particularly when it comes to what each party does or does not need to show to win the case. 

For some additional background on mixed-motive cases after Desert Palace, this article has some helpful analysis.

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In employment litigation in federal court (let's leave state court out of this discussion -- it's a whole different animal), filing a motion for summary judgment is seen by employers as their last, best chance to win a case before the matter is sent to a jury. After all, if the court grants the motion, a jury never sees the case and the case effectively ends (subject to an appeal).

Over the years, there have been various decisions that have suggested that summary judgments should be more of the exception rather than the rule.   Nevertheless, summary judgment still remains a tool that employers have in their toolbox  to defend against discrimination claims.

But besides the rules and the decisions that guide how courts should rule on such motions,  who judges the matter also plays a role in the ultimate outcome. As discussed below, this is important for employers and in-house counsel to understand when litigating discrimination claims.

Two recent decisions by two Connecticut federal judges illustrate that point.  In one case, Judge Vanessa Bryant granted an employer's motion for summary judgment in a fairly short decision involving a Title VII claim . In another, Judge Christopher Droney denied an employer's motion for summary judgment on the Title VII claims. 

Continue Reading...

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Whenever someone gets into trouble, we've all heard one phrase at some point or another, particularly as a parent or child: "But So-and-so Is Doing the Same Thing!" 

That is, at its essence, an argument that is sometimes made in discrimination cases.The legal name for it is "similarly situated" but the concept it entails is that a company cannot treat two people who did the same thing differently because of race, age, etc. 

And so, when employees are disciplined (or perhaps fired) for engaging in certain behavior, they will sometimes claim that other co-workers (perhaps white, or male, or younger) engaged in the same activity and were not disciplined or fired.

A recent case out of the Second Circuit (based on a District of Connecticut decision) addresses that same point. 

In Billue v. Praxair, Inc. (download here), the Plaintiff argued that co-workers who engaged in similar activities were not disciplined in the same way. The Second Circuit held that the workers were not similarly situated.

The case, which was decided by summary order on November 20, 2008, isn't groundbreaking.  The court merely emphasized that to be "similarly situated", the employees must be similarly situated in "all material respects".  Here, the court found that there were differences:

This [allegedly comparable] employee, who is white, left his delivery truck unattended for five minutes, with the rear trailer doors locked, within 100 yards of the defendant’s property, and under the surveillance of defendant’s security cameras. By contrast, plaintiff, who is African-American, urinated in a public parking lot along a highway, temporarily abandoned his truck for roughly 20 minutes while he shopped in a sporting goods store, and did not secure the truck pursuant to defendant’s protocols. Accordingly, we conclude that defendant’s conduct was materially different....

In other words, while both workers may have violated company rules, the plaintiff's actions were simply different (and worse) than his co-worker.  

What's the takeaway from this case for employers?

Employers should continue to enforce disciplinary policies evenly and in a fair manner. Circumstances may differ and courts will allow employers to make those distinctions, but make sure you, as an employer, can articulate the rationale behind those distinctions.

(H/T Wait a Second)

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One of the great pleasures of writing a blog is the opportunity to interact with other labor and employment lawyers from not only Connecticut, but across the country as well.  Over the Thanksgiving weekend, I had two articles written by and forwarded to me by Robert B. Fitzpatrick, a well-recognized employment lawyer from the Washington, D.C. area. 

I've been reading Robert's work for many years -- long before starting this blog -- including his papers on settlements (which I'll leave for another post on another day).

Robert doesn't need a big firm to back him up, either. He's got the real-world  experience, some of which is summarized here:  

Robert is the principal in the law firm of Robert B. Fitzpatrick, PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over thirty-five years and has been described by the National Law Journal as being among the top employment lawyers in the country and by Washingtonian Magazine as "tops in employment law" in the Washington, D.C. area. He was also included in the 2006 edition of The Best Lawyers in America.

Robert will be speaking at the ALI-ABA Course of Study this weekend in Washington, DC.  I enjoyed them so much that I asked for his permission to reprint them here because I believe that you will find it helpful too.

• The first article summarizes new federal labor and employment legislation, including the ADA Amendments Act of 2008; the Consumer Product Safety Improvement Act of 2008; the Emergency Economic Stabilization Act of 2008; the E-Verify Extension; the Fair Minimum Wage Act of 2007; and the Genetic Information Nondiscrimination Act (GINA). He also provides links to key sources on this (including this blog). 
• The second article discusses proposed federal employment and labor legislation, including the Arbitration Fairness Act of 2007, the Civil Rights Act of 2008, and the Employee Free Choice Act.

Both are excellent sources of information for the upcoming term and I thank Robert for sharing them.  Be sure to check out Robert's website as well which has a number of other helpful publications as well.

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Earlier this year, a case out of New Haven caused quite a stir at the Second Circuit when it addressed (or, as some people believe, failed to address) a reverse discrimination case. 

Now, word comes that the firefighters who lost the case are seeking to have the U.S. Supreme Court decide the issue by asking the nation's highest court to review the matter. Doug Malan, from the The Connecticut Law Tribune reports:

A group of 20 New Haven firefighters are pushing to have the nation’s highest court determine if the city discriminated against them when it denied promotions despite high test scores. For some of the men, the U.S. Supreme Court’s decision on whether to hear their case will determine whether the firefighters remain in what they believe to be dead-end jobs due to their skin color.

After a divided Second Circuit this summer turned down the firefighters’ appeal, national law firms and advocacy groups have lined up to assist the New Haven parties on both sides.

The plaintiff firefighters in Ricci v. DeStefano allege that they are victims of a system that was changed in midstream to favor black firefighters over white and Hispanic ones and that they have been blocked from attaining fire lieutenant and captaincy ranks. In 2004, the city of New Haven told its Civil Service Commission to stop administering two written exams that were used to determine the most qualified candidates for promotion because too few minority candidates were advancing. City officials feared a lawsuit would be filed by minorities under the federal Civil Rights Act.

Although the case was originally set for a conference on September 29, 2008, that date has been extended.  A check of the Supreme Court's docket does not yet give an indication on when the court will review the matter and determine whether to take the case.  But given the other matters under consideration, it is not unreasonable to expect a ruling on whether to accept the case by the end of the year.

The case is notable for employers in Connecticut because there aren't a lot of reverse discrimination cases out there. If the Supreme Court decides to hear the case, it is likely that there will be some new guidance about what is, and is not, appropriate in such cases.

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A fascinating article yesterday in Law.com entitled "Are Social Networking Sites Discoverable?" is well-worth a read to any company involved in litigating against former or even current employees.

While the authors write in the context of a product liability case, the premise and subject is equally applicable to claims involving employees as well as the conclusion that information on these sites is likely discoverable:

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

As a result, the authors suggest that defense counsel use some of these practice tips including running searches on the individuals and witnesses and investigating whether any of the key players use social networking sites.  And if so, ask for information about postings and make a request that such information be preserved. 

I'd add to the list of to-do items, a consideration of a subscription to a site like Spokeo.com.  How does it work? Enter in a person's e-mail address, and the site will conduct a search (a la Google) of several dozen social networking and information-sharing sites.  Thus, so long as the person hasn't set their privacy settings to "high", you can find information about the person's accounts with Amazon (shopping), Flickr (photos), LinkedIn (professional social network) and Myspace (largest social networking).  Importantly, all this information is publicly available to search engines: it's just that often times people don't think it is.

The law in this area is still developing, but some of the same discovery rules still apply: Information can still be sought so long as it is likely to lead to the discovery of admissible evidence. And information that is publicly available on the Internet (through Google searches or otherwise) is still fair game -- much like old paper files from government resources.

So, as companies defend against discrimination claims, they should not forget that looking at social networking sites like Facebook or MySpace may provide lots of information about the person's friends, opinions and views. 

You might even find a comment in which the employee talks about the lawsuit.

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Here's a quick update on some items and topics that have been covered by the blog over the past year:

• Earlier this week, I raised the issue of whether the rising unemployment rate would also lead to more employment lawsuits. Reuters yesterday released a very good and balanced article on the subject. I shared my thoughts with the reporter who was kind enough to add those comments to the article. You can check it out here. 
   
• The lawsuit brought by three wrestlers against the WWE is continuing..but at a snail's pace.  As you may recall, WWE filed a motion to dismiss in early October on the merits of the case. The wrestlers' response was due on November 10th. However, the wrestlers have now sought an extension of time and their response will now be due in a few weeks. In the meantime, the wrestlers did mention in their most recent filing the possibility of adding or incorporating claims that other wrestlers have. No word on any details, but we can expect some new developments by month's end.
   
• A few weeks ago, I commented on the provocative article that suggested getting rid of performance reviews.  SHRM has a good article posted today that argued that performance reviews should not be eliminated. Instead, managers must "own" the reviews (subscription required).

Whether individuals believe in performance reviews or not, organizations are increasingly looking to hold managers accountable for accurate, timely and unbiased appraisals which help manage performance and head off legal issues.

“A lot of people are asking questions, given the financial crisis, about what HR or human capital programs companies should be focused on and performance management would definitely make my short list,” said Laura Sejen, Watson Wyatt’s global practice director for strategic rewards in New York. “It’s more important than ever to make sure that employees and managers are clear about organizational goals and priorities.”

• Last year, I wrote about a case that held that the National Bank Act may preempt certain state law discrimination claims.  The Employer Law Report reports that two new cases have also followed suit, making it that much more important for national banks to learn about their available defenses in employment discrimination claims.
   
• Last, in response to my article on Veteran's Day, I received a very nice phone call from an officer of the Naval Enlisted Reserve Association (NERA). Reservists are an often-overlooked part of our military and I commend them for the work they are doing on behalf of our men and women fighting in the wars in Afghanistan and Iraq.

 

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Goin' to the chapel and we're Gonna get married
                               ----- "The Chapel of Love", by the Dixie Cups

Today (November 12th) is the day that many lesbian and gay couples will indeed be going to the chapel (or town clerk's offices, or other places); it's the day that they can get officially married.  (For those that somehow missed it, the Connecticut Supreme Court approved of same-sex marriages in a ruling last month.)  A Public Defender links to a fairly thorough report on what is likely to occur today here and the New Haven Independent has the details on a variety of weddings that are planned for today after the official court ruling implementing the Supreme Court's decision. 

To be entirely accurate, it's the first day that town clerks will have the forms and be able to process applications for marriage licenses.  (You can find a list of all town clerks here.) After the license is issued, the couples have 60 days to actually get married. But some couples are expected to get married immediately after the licenses are issued.

Why is this important for Connecticut employers? Because as of tomorrow, there are obviously going to be a few employees who will now be newly married.  As such, the employee is entitled to have all the rules applicable to married couples apply to them.

This means that under Connecticut FMLA rules, employees will be entitled to take time off to care for a same-sex spouse's serious health condition or enroll in some types of medical/dental plans.

What should employers do now? Go through your policy and procedure manual and your benefit plans and gain an immediate understanding as to what will apply, what may apply, and what will not apply. If it's easier to visualize, use a green, yellow and red-light list to separate the issues and figure out which ones needs to be followed up on.  

For example, one issue that remains confusing will be the application to federal income tax withholding because federal tax laws differ from Connecticut laws.

After sorting through the issues, figure out which ones need to be followed up on and make a decision on how the company will treat situation.  Without a clear understanding of the issues up front, employers will be open to making decisions on the fly -- and more often than not, mistakes  tend to occur when employers make hasty decisions.

Get things right the first time by ensuring that your policies regarding marriage are sexual-orientation-neutral.  And by all means, if you give your married employees a bouquet of flowers for the happy occasion, do the same for any same-sex couples.

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The headlines over the weekend for Connecticut have not been kind.  Two were particularly striking. First, the Courant ran a story entitled "Sizable Job Losses Expected in State".  The second was a story about the expected closing of The Goodwin Hotel, one of Hartford's premier hotels. 

Both indicate a local economy that is teetering between lousy and downright awful.  As a result, there is likely to be more unemployment .  And with that, more people will be considering filing suit; such is the nature of economic downturns.

For those companies looking for a free primer on the subject of wrongful discharge claims in the state, the Connecticut Law Libraries have just posted a pretty good website with links to a variety of key statutes and summaries.  (You can also save the date of December 16th; I'll be presenting a program for the CBIA on reductions in force as well.  Details are forthcoming soon.)

Although times may be looking bleak, companies should still not ignore the law at this point.  A prior post earlier this year focused on five issues that employers should become knowledgeable on in this economic downturn. (You can also click here, for all of my reduction in force posts.)  For employers, ask yourself how prepared you are to confront these issues.  Preparation is the key and often, when layoffs are needed, they always seem to need to occur in just a few days time.

For companies looking for other ways to save costs, the Ohio Employer's Law Blog has an interesting post up this morning about the risks that increase with such an action.

Times are tough, but employers that abide by the law can ensure that they don't compound the issues and financial difficulties that they may already be facing.

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AS UPDATED 11/7 below:

In my earlier post, I highlighted the policy issues that are likely to be on the new administration's radar.

But suppose you want to work in the new administration, there's an "expression of interest" form that you can fill out too on the "Jobs" page.

Buried at the bottom of the page is this pledge:The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

This signals a dramatic shift in the hiring practices of the executive branch because current law does not prohibit employment discrimination on the basis of gender identity.  (For a comparison, look at the current Bush administration's appointments page.) 

UPDATED: To clarify my earlier post, I didn't mean to suggest that the Executive Branch had permitted discrimination on the basis of sexual orientation. Indeed, Executive Order 13087 from 1998 added "sexual orientation" as a protected category for civilian employment in the Executive Branch. Federal law does not prohibit private employers from discrimination based on this category.  But this new statement extends the protection to gender identity and also signifies that the appointed positions (rather than the civil service positions) will be under this new standard for both sexual orientation and gender identity.

It's one thing to raise the issue in a platform.  It's quite another to start implementing a change like this almost overnight. And this has significant ramifications for the entire Executive Branch once the new administration starts.

It'll be interesting to see if any of the national lesbian, gay and transgendered groups pick up on this development. 

No need to wait until Inauguration Day. Things are changing right before our very eyes.

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There's been a lot happening over the last few days, both election and non-elected related -- too much to keep up with. In fact, with the election dominating the news, some other interesting items have felt overlooked.  So it seemed an appropriate time for a post recapping some of the most interesting and noteworthy items that I've come across the last few days:

Obama and The New Administration:

• John Phillips, over at The Word on Employment Law, has a terrific piece up this morning about what the election has meant to him, as an employment lawyer. 
• PointofLaw.com picks up on a WSJ article that suggests that the Employee Free Choice Act may end up being put on the backburner for the time being.
• VentureBeat.com has a post about how technology may play a major role in the Obama administration and the implications for businesses (along with a hint that Change.gov is coming soon)
• A good recap of the changes to the Connecticut legislature (now, overwhelmingly Democratic) can be found at CT News Junkie. 
• WSJ Law Blog has an interview with an employment lawyer who predicts of softening of the stance against unions.
• Workplace Prof has a wide-ranging post that foresees perhaps great changes to the workplace that will allow the United States to be "the envy of the world insofar as how it treats its working men and women."  Nothing like setting the expectations low...
• Lastly, my friend and former law school professor, Kimberly Norwood, has an inspiring piece up on Blackprof.com this morning about how the election can reshape a generation of kids. 

Other Employment Law Items:

• The Laconic Law Blog recaps the Mental Health Parity bill that got lost in the discussion of the financial rescue plan.
• The Second Circuit, which has been strangely quiet the last few months, rules that being "smacked around" (in the words of the Wait A Second! blog) is not an adverse employment action.  The case, Mathirampuzha v. Potter (download here), also strictly enforces the administrative exhaustion requirements found in Title VII. 
• Studs Terkel, a prolific author who wrote some memorable books on workers, died last week. This post recaps the impact he had on the workplace. One of my high school teachers loved him and made us read "Working"; the images of the workers he described in that book still remain with me today.
• Law.com had a notable piece of what to do when a witness is a former employee.  For employers, it has some good tips including one that should be obvious: Talk with that person because the other side certainly will when they find out about him or her.
• Michael Moore (and probably not the one you're thinking of) asks the provocative question of whether the ADA Amendments will open the door to nicotine-addiction claims.
• For employers who conduct drug testing under Department of Transportation guidelines, the changes effective this month are recapped by the Employer Law Report.
• World of Work reports on the issuance of a final supplemental "No-Match" Rule by the Department of Homeland Security.  (A "no match" letter indicates that the social security number provided by an employee at the time of hire may be invalid.)
• Ohio Employer's Law Blog reminds us that cost-cutting does not necessarily equate to age discrimination.  It's another example of the importance of understanding the role statistics can play in reviewing reductions in force.
• Although this post suggests that garden leave policies are an "increasing trend" among employers, these types of clauses have been around awhile. Caution should be used though in Connecticut to make sure that the clauses comply with theories on restrictive covenants in the workplace.

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Last night I started crafting a post weaving in the rejection of the Constitutional Convention question in Connecticut, with state election results and the election of Barack Obama.  And yet, in the clinical analysis of what it meant, something else seemed lost -- a sense of history and perspective.  Last night seemed bigger than just looking at what laws are likely to be enacted next term.

So, let me leave it to another post to break down what the election results mean to employers. That will come with some time.  (And for those who are really interested, I'll have more details on a presentation I'm giving on November 11th discussing that very issue.)

But for now, embrace this thought.  Only 44 years ago, Congress passed one of the most sweeping bills still in effect today -- the Civil Rights Act of 1964.  And every day, courts in the United States are still using that law to make decisions on dozens of court cases.  Its' purpose?

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

And now, despite the short history between its passage and today, the nation just elected the first African-American President. 

Whatever your politics, it is a remarkable achievement and, as a history major in college, I feel pretty confident in saying that our nation's history books start a new chapter today. 

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The Connecticut Appellate Court today ruled that an employer did not wrongfully discharge an employee who refused to participate in a return to work medical examination.  The Court held that the Americans with Disabilities Act (ADA) allows for medical examinations in certain situations and that the employer was justified in asking for one in this case. 

In Joyner v. Simkins Industries, Inc., (officially released November 4, 2008) (download here), the discharged employee claimed that the employer violated the public policy underlying the ADA by requiring her to undergo a return to work medical examination.  Under the "wrongful discharge" theory, she contended, she should not only be allowed to proceed with her claim but prevail on it as well.

(Notably, the Appellate Court doesn't explain why the wrongful discharge claim -- which is a narrow exception to the employment-at-will doctrine -- is the proper vehicle for such a claim when the employee might have explored a direct ADA claim.  I'll followup on that issue in a future blog post.)

The Appellate Court found that under the ADA (42 U.S.C. 12112(d)), employers must show that the medical examination is job-related and consistent with business necessity.  The Court said that federal circuit court decisions that have held that "business necessities may include ensuring that the workplace is safe and secure or cutting down on egregious absenteeism."  Here, the Court said that the employer had a legitimate interest in following up due to the vagueness of various notes and the employee's refusal to discuss the matter with her employer.

What was helpful for the employer in this situation was a policy in the employee handbook that provided for medical examinations -- at the employer expense -- in certain situation.

Thus, the takeaway for employers from this case is three-fold:

• Use this case as an opportunity to review your existing policies and procedures on return to work medical examinations;
• When employees refuse to return to work from absences or provide only scant documentation, consider using medical examinations to force the issue;
• Understand what is -- and is not -- allowed under the ADA regarding issues of return to work and medical examinations.

As always, the specific facts of the situation are important so consult with an attorney if you have any questions that arise.

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In this blog, I often focus on the substantive law prohibiting discrimination cases, such as those under ADEA.  But a case decided late last week demonstrates the importance of making sure that employees follow the procedural requirements required by law under anti-discrimination provisions..

In Cassotto v. Potter (D.Conn, Oct. 21, 2008) (Hall, J.) (download here), a terminated employee sued for his employer (the U.S. Postal Service) for age discrimination under ADEA without having filed with the Equal Employment Opportunity Commission (EEOC).  The employer moved for summary judgment arguing that the employee never exhausted his administrative remedies.

What does that mean? Well, according the Court, ADEA has two options for employees to sue: Either exhaust the EEOC administrative procedures and, if not satisfied with the outcome, bring suit in federal court; or, bypass the administrative procedures by giving the EEOC a "notice of intent" to sue and waiting 30 days.

Here, the court said, the employee did neither and instead tried to rely on other discrimination claims that he filed in the past with the EEOC. The court rejected that argument and said that Second Circuit law puts the burden squarely on the employee to show that he or she has complied.  

For employers, the case is a simple reminder that defending cases of discrimination is often a two-front battle.  Ensuring that employees meet both the procedural requirements and substantive requirements to prove their case may increase the employer's likelihood of successfully defending such claims. 

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The Connecticut Supreme Court in a 4-3 decision today overturned the state's ban on same-sex marriages.  The ruling in Kerrigan v. Commissioner of Public Health (download majority opinion here) is ground-breaking, breathtaking and warrants all employers' full attention. 

All the major media outlets such as the New York Times and the Hartford Courant already have good coverage of the case, which has been years in the making.  Blog coverage is picking up with a post from A Connecticut Law Blog and Workplace Prof Blog, among those analyzing the case.

Because I'm traveling today, I'll post a further update early next week after I've had a chance to digest the full decision (85 pages) and all of the dissents but I've been trying to determine the immediate impact for employers in the state.

The short answer is that I'm not yet convinced that the decision is going to have a big impact for employers in the state. (Its impact in other areas is a different question.)

Many employers are already prohibited from discriminating on the basis of sexual orientation and have had to provide benefits to those who are involved in civil unions (to the same extent as married couples), so I don't think the decision is going to have as big an effect in the workplace as it will in other facets.  In fact, in the court's decision, it cites to the anti-discrimination state law provisions as support for its believe that being gay or lesbian is a protected class deserving of equal protection.

Given the "so what" nature that civil unions have had in the state for employers, it'll be interesting to see the real effect for employers. Obviously, same-sex spouses will now be eligible for certain employment benefits but there hasn't been a huge uproar from employers from the civil union law passage. So I suspect for many employers, the true impact is likely to less than in other areas of the law.

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At a conference of the American Bar Association this morning, UC Irvine Law Dean Erwin Chemerinsky reviewed the last term of the U.S. Supreme Court and gave a sneak preview of the 2008-2009 term that starts on Monday.  Besides being an official law school dean (opening fall of 2009), this Constitutional Law guru is not shy about sharing his views of the current Court. 

Among his observations from the last term:

• The Supreme Court is definitely turning into a "pro-business" court.  He noted that issues like preemption of state laws were not falling along some ideological lines, but rather reflected a overall view that tends to remove restrictions on businesses.We''re likely to see this theme repeated this year.
• The Supreme Court's caseload continues to decline noting that the court decided less than 70 cases.  As a result, he said, the decisions are becoming wordier and longer.  He did note, however, that the Court is likely to increase its caseload this year based on the numbers of cases it has already agreed to hear.
• He said that although court eras are typically named after the Chief Justice, he said he viewed the current court as the "Kennedy" Court.  He noted that in virtually all of the 5-4 decisions decided by the Court, Justice Kennedy was in the majority.
• Despite the number of employment law cases decided last term, Professor Chemerinsky didn't highlight those cases has having particular significance, pointing rather to the Court's decisions in the gun-rights case or the Guantanamo Bay detainees, for example, as noteworthy.  

As for the upcoming term, he indicated that there were a few cases that would be interesting, but nothing as ground-breaking as last term.  He noted that a case involving FDA-approved warning labels and an FCC cases involved "fleeting expletives" were likely to receive the most press. 

Lastly, he highlighted the fact that the upcoming Presidential election may decide whether the Court becomes conservative or remains split among ideological lines.  He noted the obvious: that two of the oldest justices (Stevens and Ginsburg) are likely to retire soon.  If McCain is elected President, he may have the opportunity to appoint two conservative justices to serve on the court for years -- if not, decades -- to come. 

The Workplace Prof blog has a noteworthy post this afternoon as well about the upcoming Supreme Court term.  They predict that it may very well be a "blockbuster" year.  But as with box-office predictions, the best bet is to wait and see how the Supreme Court decides.

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The Jewish holidays starting tonight encourage reflection. So, it seems particularly appropriate to do some quick updates on earlier posts:

• The lawsuit against WWE by three wrestlers continues to move very slowly.  Early press reports by another source suggested that WWE would be moving quickly to respond to the claims; they aren't.  WWE asked for an extension of time until today to file an answer to the complaint.  As of this morning, there was no answer filed.
   
• In two earlier posts (here and here) about a transgender discrimination claim decided in Connecticut, I noted that the case of Schroer v. Library of Congress was worth watching as well because it too involved a claim of transgender discrimination.  Earlier this month, a federal judge ruled in favor of the employee following a bench trial. Numerous blogs have posted on it, including Workplace Horizons, Laconic Law Blog, and the ABA Journal. 
   
• Last month, I posted about a NY Times story that suggested that Plaintiffs who reject settlement offers often do worse at trial.  Now a new study suggests that employment discrimination verdicts are on the rise. Manpower reports that the median award increased nearly 70 percent from 2006 to 2007. 
   
• This summer, I posted that the EEOC released new guidance on religious discrimination. Delaware Employment Law blog had an interesting post on what this means for employees who want to pray at work.  The Jewish holiday of Rosh Hashanah has led to some lawsuits as well so employers may want to refresh themselves on the appropriate rules when they have some employees absent over the next day or two for observances.
   
• And with all the financial collapses over the last two weeks, what does this do for the "Masters of the Universe"? According to Tom Wolfe, it means living in Greenwich, Connecticut. 

• And lastly, special thanks need to go to Susan Carter-Liebel for her post on a "Great Lawyer - Great Charity" and my work with the March of Dimes Signature Chef Auction. The night was a great success and the work we did will directly benefit those in Connecticut addressing the issue of prematurity. 

Wishing all a happy and healthy new year. 

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Nearly six months ago, a landmark ruling by the Connecticut Supreme Court held that Connecticut's anti-discrimination laws required employers to provide a reasonable accommodation to disabled workers, much like the federal counterpart, the ADA.

As I noted in an earlier post about the case, Curry v. Allen S. Goodman, Inc., the Court suggested that the employer had a duty to accommodate an employee even after firing.  In the Curry case, a fired warehouse worker's attorney raised issues about the employee's disability; the Connecticut Supreme Court suggested that the post-termination letter formed the basis of an employee's request for a reasonable accommodation.  In doing so, the Court relied on the ADA to provide some further guidance on what the state anti-discrimination law meant.

Now, six months later, the EEOC has released new guidance on the ADA  and performance-related issues that suggests that the Connecticut Supreme Court's interpretation of the ADA may be inconsistent with the EEOC's own interpretation. 

How so?  Well, take a look at question 10 of the EEOC's guidance.  Question 10 poses the hypothetical question: 

What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

In response, the EEOC says:

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

The EEOC guidance adds that "the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct."  The EEOC also cites to several federal appellate cases in further support of its interpretation.

This guidance seems to contradict the Curry decision because in Curry the duty to accommodate arose after the employee was terminated.

Where does this leave employers in Connecticut? Perhaps with a split in authorities -- at least until this issue is litigated more fully in Connecticut courts.

Until the courts analyze this issue further, employers need to be aware that Connecticut's anti-discrimination rules may be more stringent than what is required at the federal level.

Ultimately, the legislature should consider some straightforward fixes to these issues. With the ADA about to be amended significantly, having two sets of rules for employers to follow (and for employees to figure out as well) doesn't serve the public good. It only serves to create confusion and more litigation.  Making state anti-discrimination laws more consistent with federal law will help provide for stability and predictability.

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President Bush's signature is expected any day now on the ADA Amendments Act of 2008 (click for my prior posts here), which represent some of the most important changes to federal employment laws in over a decade.  For employers in Connecticut, there is going to need to be some synthesis with Connecticut's anti-discrimination laws so employers should not simply assume the ADA will apply over state law.

But regardless, these amendments are going to have a wide-ranging impact for most employers nationwide.  Here are some of the highlights:

When Do the Amendments Go Into Effect?

January 1, 2009.

Who is Affected by the Changes?

Employers who have been covered by the ADA before (those who have 15 or more employees) are going to be covered by the amendments.

What Changes Have Been Made On How a "Disability" is Defined?

Employers must now adopt a broad standard to determine if someone is "disabled" -- something found in the language of the amendments itself. Courts are to provide coverage to individuals  "to the maximum extent permitted". 

In the short term, this means that more ADA cases are going to pass initial threshold tests. Prior to these amendments, courts dismissed many cases on the grounds that the individuals are not "disabled".  Employers should now assume that more employees are going to be covered by the ADA and make employment decisions with that assumption in mind. 

What is Now a "Major Life Activity"?

Until the amendments, the ADA was silent on what was a major life activity, leaving the issue to the courts to decide. But the new law has a laundry list of activities from thinking to concentrating, from eating to working that is now specified.  In addition,  the operation of any major bodily function is considered a major life activity. For employers, this is again another indication that a "disability" is going to be considered broadly. 

What Should be Done About Mitigating Measures?

Previously, courts and employers had to determine a person's disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids.  Now, employers and courts must ignore those measures. Employers will now need to make sure that then engaging in the interactive process, these measures are properly separated.  

What About Ordinary Eyeglasses or Contact Lenses?

Despite the provision above, Congress created an exception for ordinary eyeglasses and contact lenses.  Those items CAN be considered when determining if someone is disabled.

Is The Revised "Regarded As" Provision In the ADA as Broad as it Seems?

Probably.  Under the amendments, an individual now must show only that that the employer perceived the individual has having a mental or physical impairment (not that that impairment substantially limits a major life activity necessary).  This is very broad and could potentially be setting the ADA up for a massive expansion in its scope.

But when the impairment lasts for only six months or less and is minor, it won't qualify.  Whether this provision will have a real impact in narrowing the "regarded as" section remains to be seen. 

What's the Takeaway For Employers?

Quite simply, ADA cases are likely to move from "threshold" issues (whether the person has a disability) to "liability" issues (whether the person was actually discriminated against).  Employers defending such claims should understand that ADA claims are going to be defended like many other types of discrimination claims: by showing that the employer has a legitimate, non-discriminatory reason for its decision. 

Employers should also start informing human resource staff  of the changes. These amendments are likely to affect the interactive process and employers may need to provide more accommodations to more of their workforce.  Caution should definitely be exercised in the short-term as employers adopt to these new definitions and rules. 

As always, consult with an employment attorney about how these changes will affect your company specifically.  And obviously, if you'd like any particular help for your company, feel free to drop me a line. 

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For companies involved in employment discrimination litigation, there is always a question of how far to push on discovery issues. 

A new case decided this week in U.S. District Court in Connecticut allows employers to push pretty hard to get an employee's medical and therapist records. In order for that to happen, the employee needs to put their medical condition "at issue" in the case.  Here, the court found that separate causes of action for "Intentional Infliction of Emotional Distress" and "Negligent Infliction of Emotional Distress" were enough to trigger the production of the underlying medical records.

In Green v. St. Vincent's Medical Center (download here), Magistrate Judge Thomas P. Smith was asked to decide whether a former employee who claimed that she had been sexually harassed in 2004 and suffered emotional distress was entitled to have her medical and therapist records remain private. 

The Court ultimately ruled that the claims in this case waived a privilege that she would have had if she had not filed such claims.

Magistrate Judge Smith recognized that in cases with "garden-variety" emotional distress claims, discovery has been denied. He observed that while there was "broad disagreement" as to what was "garden variety", this case was not one of them. 

This court agrees with the view that the plaintiff has placed her mental or emotional state in issue by asserting claims for both negligent and intentional infliction of emotional distress, and by seeking damages for severe emotional distress.

In the Green case, the records that the employer sought were from 1996-1999 -- several years before the employee ever worked for the employer and well before the alleged harassment occurred either. The employer wanted these records to determine if there were other "causes" to her alleged emotional distress.  Ultimately, the court agreed with the employer that this was a valid request.

Sometimes the information elicited will be helpful to an employers' case. But many times, it is not.  Trying to link events that are remote in time is always a stretch and, at trial, an employer runs the risk of being overbearing if it brings up these past matters.

Nevertheless, employers have another arrow in their quiver, so to way, to use if they want to during litigation.

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Late last week, the Senate finally passed the compromise version of the ADA Amendments Act, (S.3406, which is available here) which I’ve covered before. The bill needs to be reconciled with the House version, but final passage and approval by President Bush is now expected this month.

Other blogs have very adeptly recapped the significant changes such as World of Work, and Manpower Employment Blog . And there is this ABA Journal article recap too.

As Workplace Horizons recapped:

The bill, set to become effective January 1, 2009, if enacted, would define the term "disability" as "a physical or mental impairment, a record of such impairment, or being regarded as having such impairment." It would provide that employees are protected against discrimination because of a disability. It would provide, however, that while an individual regarded as having a disability is protected against discrimination, the "regarded as" provision would not apply to an individual with a condition that is minor, or that is a "transitory" condition lasting or expected to last six months or less.

Some have lamented the changes as far-reaching and I’m sure others think that they don’t go far enough.

 

But at the ABA Labor & Employment Conference in Denver on Friday, EEOC Associate General Counsel Peggy Mastroianni shared her thoughts on the compromise bill in the midst of a presentation on leaves of absences. 

 

Mastroianni said that both management-side representative and plaintiff and union groups worked hard with senators to “craft something that both sides could live with."

 

She added, “You know that when U.S. Chamber of Commerce and the American Diabetes Association agree on a bill, it’s a good compromise."

 

Mastroianni predicted that one consequence of the ADA Amendments Act will be more analysis of the actual disability and condition that persons have. As she remarked, this analysis will “go to the heart” of the ADA, something that she believed had been lacking in recent years.

 

Lastly, Mastroianni emphasized the usefulness of the guidance released last week on addressing performance-related issues under the ADA. In an upcoming post, I’ll discuss a specific provision that some may overlooked in their initial review of the guidance. 

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The EEOC today released a "comprehensive question-and-answer guide" (but not regulations)  addressing how the Americans with Disabilities Act (ADA) should be applied to a wide variety of performance and conduct issues. You can download the FAQs at their website here. 

In a press release accompanying the document, the EEOC noted that it released the guide in response to questions from employers and employees.  According to the EEOC:

The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.

The guide reviews relevant ADA requirements and explains how they govern performance and conduct standards as applied to employees with disabilities. Through examples based on actual cases and specific scenarios that the EEOC has learned about from employers and individuals with disabilities, this guide explains when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation. The guide explains how and when employees should request accommodations to help them meet performance requirements and comply with conduct rules, and how an employer should handle such requests.

What's notable about this particular Q&A is that the EEOC also offers a "practical guidance" section regarding each topic. Most of it is common sense (or should be) but it is helpful for employers to actually here it from a government agency as well.  For example, among the suggestions:

•  It is advisable for employers to give clear guidance to an employee with a disability (as well as all other employees) regarding the quantity and quality of work that must be produced and the timetables for producing it.
   
• If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.
   
• Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious.24 Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.25

As I've stated before, any guidance that the EEOC can offer on these topics will give employers (and employees) one more piece of the ADA puzzle. 

But employers should be cautious about applying the guidance too matter-of-factly. Each situation will still require its own fact-intensive inquiry and Connecticut, in particular, will have its own rules on what is appropriate that may differ from federal rules. Because the EEOC's guidance is not binding, courts are still free to analyze the ADA as they see fit and do not need to "defer" to the agencies suggestions. . And as the EEOC also notes, the guidance may also be tweaked if the ADA Amendments Act of 2008 is passed by the Senate this fall.

However, even with these concerns, the EEOC's guidance today is well worth reading.  As I continue to digest it, I'll followup in the upcoming days with any additional nuggets worth noting.

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Last week, I publicized the release of federal court statistics; that story has now been picked up by the American Lawyer which crunches the numbers in more detail. 

But now you can break out your abacus again. The Connecticut Commission on Human Rights and Opportunities has also just released their annual report (available for download here) which contains all sorts of notable numbers, statistics and factoids. Over the next few days, we'll slice and dice some of the numbers to see what trends can be glistened.  For some background, you can view my post analyzing last year's numbers here. 

Here are some of the top-level observations:

• Consistent with the trend at the EEOC this year, employment claims filed with the CHRO are up for the 2007-2008 fiscal year ending June 30, 2008.  Specifically, claims are up to 1814, from 1743 for the year ending June 30, 2007 - an increase of about 5 percent.  Not a huge jump, but still notable. However, claims are still way down compared with 5 years ago (when they topped out at 2211).
• Retaliation claims are up substantially over the last year. Specifically, claims for 2007-2008 were 618, compared with 507 in 2006-2007 -- an increase of over 20 percent.  Also notable, retaliation claims continue to make up a large percentage of the claims being filed.
• "Harassment" and "Sexual Harassment" claims are also up substantially from last year's numbers. For sexual harassment claims, this reverses a trend of decreased numbers that had existed for the last several years.

For employers, what is the immediate takeaway from these statistics? 

These statistics show that after years of decreases in the numbers of employment claims, those decreases have come to an end.  Being vigilant about human resources policies and procedures, and sensitive to the issues relating to various employment laws will be one way to reduce the risk that a claim filed will turn into a substantial issue down the road.

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With lots of little things going up, it's time to followup on a few topics we've covered in the last few days and some other notable posts from around the web.

• First up, my post on the WWE Wrestlers was picked up by Above The Law editors yesterday. Today, the American Lawyer does a little story of their own on the lawsuit with a quote from K&L Gates attorney who notes that his strategy will be revealed later this week in a motion to dismiss.
   
• Today, my guest blogging at Overlawyered continues with a post on one individual's lawsuit against Amtrak for jumping from a train. You can read the court decision related to it here. 
   
• California Labor & Employment Blog discusses whether social networking site are good or bad for the workplace. As I've said before, policies should be tailored to the workplace.
   
• The Greater Hartford Real Estate Blog asks a question that lots of employers in the Hartford, Connecticut area ask: Can we attract young professionals to the area? The answer to that question dictates how well the whole area does.  Interesting how much "power" Generation Y is going to have on the economy and local area.
   
• And lastly, with the Democratic National Convention going on this week, the Workplace Prof blog reminds us to catch up with the "Plum Book" -- your list of jobs potentially available in a new presidential administration.

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Last week, I posted about a new decision from the federal court in Connecticut that threw out a transgender litigation claim. 

The Connecticut Law Tribune has some additional feedback on that case from the employee's counsel in today's paper.  I'm also quoted in the article; in it, I explain that transgender litigation -- while perhaps getting headlines -- remains a very small percentage of employment claims out there.

The employee's counsel told the Trib that the case was just a bit ahead of its time:

Bridgeport attorney V. Michael Simko handled the case pro bono and attributed the loss to a lack of witnesses to back his client's claims and the state's failure to approve a transgender discrimination law in the past three legislative sessions.

When filing the case in 2006, "I took a risk that the legislature would be farther along," Simko said. "I was a couple of years too early. The lack of law doomed my risky endeavor."

Interestingly, there is another transgender litigation case in Washington, DC worth watching; the bench trial in Schroer v. Library of Congress began last week. Workplace Horizons has the details on that case. 

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Earlier this year, proponents of a bill to make transgender (or gender identity and expression) a protected category  failed in their efforts to get that category covered under the state's anti-discrimination laws. 

A new United States District Court case this week may provide proponents with an example of a case that, in their view, may have come out differently if "transgender" was a protected category.  (For a glossary of such terms, check out this post.)

In Yvonne Morales f/k/a Javier Morales v. ATP Health & Beauty Care, Inc. , Judge Thompson granted the employer's motion for summary judgment this week.  In the case, because Title VII does not protect "transgender" employees, the employee claimed that she was harassed because of her gender.  According to the court, she used a rarely invoked theory that she was being discriminated against for failure to comply with socially accepted gender roles.

(Admittedly, there is some dispute over the proper pronoun to use; the court uses "she", while the employer uses "he" in its papers.) 

Morales made several allegations (caution to readers: these are only allegations not facts):  Morales claimed that a shift supervisor regularly screamed at her for “the smallest reasons” and made several inappropriate comments to her.

The Court goes on to summarize some of the other allegations:

Morales states that [the shift supervisor] (1) told her that she had “a big p***y” on a day when she wore tight jeans to work; (2) asked her which of the men with whom the supervisor was standing was most attractive to her; (3) asked her if her ovaries hurt as she was holding her stomach while walking to the restroom; (4) told Morales that “[his] d**is curved” and “if [he sticks] it up [Morales' a**, [he] will take sh** out of it”; and (5) told Morales that she would not “fool around” with Morales as a female but probably would have done so when she was a boy.

While the court found that some of the above described acts could make Morales fit within the protected category, the court also found she did not produce sufficient evidence "as to whether the harassment she suffered solely on account of her failure to conform to gender stereotypes was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment."

The court's 34-page decision is obviously more detailed than this and is worth a read for any employer dealing with these issues.  Notably, for instance, the court found that the employee had significant attendance issues which eventually warranted her termination. You can also view the employer's motion for summary judgment papers here, and the brief filed in opposition here.

For employers, this case reminds us that well-documented termination decisions are more likely to be upheld by the court, even in the face of other allegations.  But the facts as alleged (and, if believed) portray a work environment that may not have been welcoming to all employees.  And so, while the employer has won the case and while the employer's conduct may not be illegal, it has no doubt spent a significant amount on attorneys fees, time and effort. 

Having effective human resource personnel involved and useful supervisor training can help reduce the risk of such suits in the future.   And certainly having a better understanding of transgender issues -- such as the program described in Nolo's Employment Law Blog -- will help reduce potential issues in the future as well.

Would the outcome in this case be different if gender identity were a protected category? Tough to say because the employer presented a strong case that the employee's attendance issues were significant.  But if the legislature acts next year on such a bill, there will certainly be more cases like this to follow.

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There's been lots of good posts out there the last week and another round of stories that I haven't gotten around to writing about for one reason or another. 

But that shouldn't stop you from getting caught up on these notable stories on labor & employment law:

• Workplace Horizons reports on a Second Circuit decision from last week  that narrowly construes a non-employee's right to to access an employer's property. 
   
• Delaware Employment Law Blog clarifies the issues relating to what I-9 forms should be used.
  
• World of Work blog has a post about new guidance from the NLRB on employee political activity. 
  
• Golden Practices blog has a very interesting post about the proper way employers can engage employees and repeats a provocative question: Are Employees Really an Audience?

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The EEOC today released a new compliance manual section on religious discrimination in the workplace.  A press release from the EEOC is available here while you can download the actual section directly here.   

What is useful about the compliance manual section, according to the EEOC, is that it "includes a comprehensive review of the relevant provisions of Title VII of the Civil Rights Act of 1964 and the EEOC’s policies regarding religious discrimination, harassment and accommodation. The EEOC also issued a companion question-and-answer fact sheet and best practices booklet."

So, what sorts of issues does the compliance manual section cover?

The Section addresses what constitutes “religion” within the meaning of Title VII; disparate treatment based on religion; the requirement to reasonably accommodate religious beliefs and practices; religion-based harassment; and retaliation. The Section also provides guidance on the sometimes complex workplace issues involved in balancing employees’ rights regarding religious expression with employers’ need to maintain efficient, productive workplaces.

For employers, the most helpful section is probably the "best practices" booklet, available here. There are a number of common-sense suggestions that are posted. Nothing is ground-breaking, but it's a good resource, particularly coming from an agency responsible for enforcing anti-discrimination laws.

Among the suggestions:

• Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
  
• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
  
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.

Overall, it's a welcome addition for employers, and for employees who want to understand their rights better.

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Six months ago, I predicted a renewed emphasis on reduction in force laws and regulations with the possibility of an economic slowdown looming.  With six months left to go in the year, I'm still feeling good (if you can feel "good" about such things) about that prediction. 

Is the economy still on the yellow brick road or are we walking deeper into the forest filled with lions, tigers and bears?

The statistics from the Equal Employment Opportunity Commission do not paint a rosy picture.  

The numbers of discrimination claims filed with the EEOC are up.  

And up by a lot.

In fact, the EEOC reported a 21 percent increase in charges for the first quarter of 2008, over the same period last year. 

So what can employers do? I talked a few weeks ago about one aspect of reductions in force -- namely compliance with the OWBPA (Older Worker Benefit Protection Act) and how compliance with that law can avoid one pitfall associated with a reduction in force. 

But another law that is commonly misunderstood is the WARN (Worker Adjustment and Retraining Notification) Act.  WARN is not a mandatory severance law; in other words, it doesn't mean that employers need to give employees severance when they are affected by a mass layoff or plant closing.

What WARN does require is that the employer give notice to employees who may be affected by a plant closing or mass layoff.  The Department of Labor has prepared this fact sheet for employers to answer some of the basic questions.   It is a law that is, frankly, fairly easy to comply with, and yet there are still some employers who are facing class actions for their alleged failure to comply. 

In addition to notice to employees, the employer must also notify the Connecticut Department of Labor of its proposed actions.  The state then posts them in monthly reports available here.  You can view July's report here.

What is fascinating about the reports thus far is that Connecticut has, as of now, avoided some of the mass layoffs that have plagued some of the other states.  The June reports for Connecticut show only 400 or so employees statewide who received WARN notices.  Moreover, numbers released over the weekend show that Connecticut employers have added jobs, not eliminated them.  Whether this trend continues will be an item to watch for in the second half of 2008.

In an upcoming post, I'll highlight some of the particulars of WARN in more detail.  Until then, try to avoid the fields of sleeping flowers.

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Over the last week or two, I kept flagging various employment law posts that I wanted to followup or comment on, only to have two or three more pop up. Each of them probably merited a discussion, but, to use an overused cliche -- there simply isn't enough time in the day. 

So, I'm perhaps taking the easy way out in creating a whole post about posts.  But I will try to categorize them for a little easier reading.  I suggest taking a gander at these when you have an opportunity. 

Blogs Referencing This One

First up, there have been several blogs that have commented on some posts that I have done recently that you might find interesting. They are:

• Thoughts from a Management Lawyer discussed my post on Monday about "fairness";
• Blawg Review (a weekly review of the best law-related posts) lists this little blog as a "Star of the Blawgosphere" representing the great state of Connecticut in a holiday-related post;
• Jottings by an Employer's Lawyer was kind enough to mention this blog in his July 4th posting about the holiday and about efforts to bring unions together from around the world;
• Delaware Employment Law Blog recently discussed how construction-industry employers are being targeted and referred to a recent posting on the subject from this blog;
• The Laconic Law Blog had a post recently following up on the topic of caregiver and family discrimination and discusses my post last month about the nuances in Connecticut law (HR Daily Advisor had a similar post yesterday);
• New Jersey Employment Lawyer Blog had an interesting followup to my post about a new law requiring protection of social security numbers and notes that Michigan passed some similar legislation;
• Adjunct Law Prof blog commented over the weekend on the recent decision that awarded an employee's attorney $600 per hour in an employment discrimination case;
• Florida Employment Law Blog has a very notable post about what the effect on Florida employers would be if Barack Obama becomes President (hint: employment lawyers could get a lot busier) and cites a recent post of mine on the ADA Amendments Act of 2008 (though it should be noted that others, including the Ohio Employer's Law Blog and The Word on Employment Law, have done similar posts);
• Rogers & Tartaro Business Litigation blog picked up on the discussion on the various types of sexual harassment matters and the importance of understanding hostile work environment claims.   

Posts About HR-Related Issues

• Workplace Prof blog follows up on a New York Times story to discuss the employer backlash to certain immigration rules;
• Pennsylvania Labor & Employment Law Blog had a post about Corporate Social Responsibility and how it is a "way of life" for certain companies;
• Although not a blog, per se, Ford & Harrison had an interesting post that held that an employer who merely posts their summary plan descriptions on the company's intranet may not be sufficient to meet ERISA requirements -- at least in the Ninth Circuit (which includes many Western states, but not Connecticut);
• HR Capitalist reports on a recent decision by Google to raise the cost of employer-sponsored daycare -- a move that has left many employees unhappy.  It's an interesting case-study on managing employee expectations;

Employment Laws & Litigation

• It is sometimes too easy to brush off a runaway jury verdict, like the $46M one in Ohio last week, reported on by Ohio Employer's Law Blog and the Manpower Employment blawg.  But as the Ohio blog reminds: "Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day."
• Employee Screen IQ blog reports on some new FACT Act regulations that may affect some employers who conduct background checks;
• The Workplace Horizons blog reports on a recent NLRB case that finds that a provision prohibiting a temporary worker from discussing his compensation violates federal labor laws.  The decision should reinforce the fact that restrictive covenants for employees should be appropriately tailored.

As you can see, quite a list to add to your summer reading materials. 

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The "reasonable accommodation" requirements under the ADA continue to be a source of questions and confusion for employers.

However, on the topic of whose responsibility it is to raise the issue of a reasonable accommodation, the law has been fairly clear in the Second Circuit (which covers Connecticut, New York and Vermont) that it is the employee that bears the burden of making that initial request. 

Indeed, back in 2006, the Second Circuit stated that “[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” Graves v. Finch Pruyn & Co., 457 F.3d 181, 184  (2d Cir. 2006). 

Yesterday, however, an important decision affirming a jury verdict against Wal-Mart, the Second Circuit clarified that "generally" doesn't mean "always".  The case, Brady v. Wal-Mart Stores (download here), sets forth a whole new range of instances where the employer now has an obligation to reasonably accommodate an employee whose disability is "obvious", even when that disability may only be "perceived":

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.

So what type of response is actually needed from the employer in that circumstance? The Court states that all that is required is that the employer engage in the "interactive process" to work with the employee to determine of the disability needs to be reasonably accommodated.

What does this mean for employers in Connecticut? It raises a whole host of issues.  What does it mean that a disability is "obvious"? What is obvious to one person may not be obvious to another. For example, one employer could view the employee as exhibiting classic signs of chronic manic depression, while another may not.  Issues such as blindness may be "obvious", but the other categories may not be as "obvious".  In the Brady case, the employee had cerebral palsy -- which wasn't exactly the most "obvious" type of disability (particularly given that there are various presenting symptoms of cerebral palsy). 

Another issue for employers is the risk of bringing of the issue of a "reasonable accommodation" when the employee may not even be disabled. The employer, in such a circumstance, risks being labeled as an employer who "perceives" the employee has a disability.  Thus, the employee could actually be forming the foundation of a disability claim, rather than preventing it in the first place. 

In short, employers in Connecticut (and New York for that matter) may want to consider their approaches to "reasonable accommodation".  There will not be a one-size-fits-all approach to this issues and this decision just raises a whole new set of questions to think about in dealing with employees who may have disabilities.

The case has a few other issues that were discussed by the Wait a Second blog.  It also hasn't been a particularly good week at the courts for Wal-Mart either. 

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During some of the seminars that I teach on sexual harassment prevention, one of the topics that is covered is describing the difference between quid pro quo harassment and hostile work environment harassment.

On Wednesday, the Connecticut Appellate Court taught that same lesson in reviewing a case in which an employee (who lost a trial) claimed that certain jury instructions on quid pro quo harassment should have been given.

The case itself, Griffin v. Yankee Silversmith Ltd (officially released on July 8, 2008), won't set the employment field ablaze like some other decisions this year.   The facts resolve around an employee who claimed that her employment ended in retaliation for complaining about sexual harassment.  On appeal, the employee claimed that the jury should have been told about quid pro quo harassment she endured and instructed on that subject, not simply on a "hostile work environment" theory.

The Appellate Court disagreed noting that the employee didn't raise that issue in the Complaint and the evidence didn't support such a claim of quid pro quo harassment.

In doing so, the court noted that quid pro quo harassment is just different from "hostile work environment" harassment:

Quid pro quo sexual harassment, as its name suggests, conditions employment on the return of sexual favors; hostile environment sexual harassment is conduct that ‘‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment."

The court added that these distinctions are also found in Connecticut's anti-harassment statute Conn. Gen. Stat. 46a-60(a)(8). 

So what's the takeaway from this case? I've been trying to think of something groundbreaking, but the fact is that there isn't much to take away from a case like this. 

For employees, it will be making sure a Complaint is plead correctly so that evidence can be submitted at trial to support a theory. For employers, it just emphasizes the fact that state courts are seeing more of these cases. 

Ultimately, perhaps the best "lesson" from this case is to understand the difference in the types of harassment.  For employers, this can also lead to a greater understanding about how to prevent it from occurring in the workplace. 

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Nearly eight months ago, I asked the question: Will the Americans with Disabilities Act Be Amended?  

At that point, I indicated that an ADA Restoration Act Bill of 2007 was not yet a "hot topic" but as election season heated up, we could see some action on some proposed amendments.  There have been some followup posts both in January and again earlier this month.

Now, the answer my prior question, I think the answer is likely "yes". 

Within the last few weeks, a compromise bill (now titled the ADA Amendments Act of 2008) has been fashioned and on Wednesday, it passed the U.S. House of Representatives overwhelmingly (402-17).   All Connecticut representatives voted in favor of it.   The bill (H.R. 3195), can be downloaded here,  

The Workplace Horizons blog and the Ohio Employer's Law Blog have some initial feedback and reaction to the bill, as well as Disability Law 2.0. The New York Times had this mainstream report.  For additional blogs from advocacy groups, see the American Association of People with Disabilities blog and the NAM (National Association of Manufacturers) blog. 

So, what would the ADA Amendment Acts do?

On its face, it strives to overturn various U.S. Supreme Court cases that the bill's sponsors believe narrowed the ADA too much.  Thus, the bill broadens definitions of various terms.  For example, it defines the phrase "substantially limits" to mean "materially restricts".  It also features some aspects seen as "for employers" such as limiting "regarded as" claims as impairs that last or are expected to last for more than six months.

As Jon Hyman notes:

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

There is no date yet for a vote in the Senate.  As the term continues and it becomes more likely that the bill is going to pass, I'll provide an update with additional details about the proposed provisions.

For now, employers should stay tuned for future legislative developments and take an opportunity now to understand the scope of the ADA. If it is passed, the bill may make it more difficult for employers to get "summary judgment" in ADA cases and is sure to raise a whole new set of issues related to the definition of "disability".  For employers in Connecticut, ADA amendments could be particularly tricky because of the risk that courts in Connecticut (which tend to follow the ADA lead) will use the amendments to interpret our state disability discrimination law, which has developed somewhat differently.

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A very big day in labor & employment law and ERISA cases at the U.S. Supreme Court this morning  I'll post more detailed updates as warranted (and when time allows), but for now, here are the brief highlights (H/T ScotusBlog) .

• In Meacham v. Knolls Atomic Power Laboratory (06-1505), the court was asked to decide, in an ADEA disparate impact suit, whether workers or employers bear the burden of persuasion in determining whether the employment decision was based on “reasonable factors other than age.” The Court concluded that an employer defending a disparate-impact claim under the ADEA bears both the burden of production and the burden of persuasion for the “reasonable factors other than age” (RFOA) affirmative defense under §623(f)(1). The court also rejects a "business necessity" defense for the employer, saying it has no place under ADEA.  For more background on the case, see the ScotusWiki . 
  
• In MetLife v. Glenn (06-923), the Court was asked to whether a claim administrator of an ERISA plan who also funds the plan benefits constitutes a “conflict of interest” that must be weighed in a judicial review of the administrator’s benefit determination. The Supreme Court concluded that it does.  In the court's view, a plan administrator’s dual role of both evaluating and paying benefits claims creates the kind of conflict of interest referred to in the Firestone case.   That conclusion is clear where it is the employer itself that both funds the plan and evaluates the claim, but a conflict also exists where, as here, the plan administrator is an insurance company.  Again, for more background, see the ScotusWiki.
  
• In Kentucky Retirement Systems v. EEOC (06-1037), the Court was asked to decide on the relevance of age as a potential factor in the distribution of retirement benefits to disabled workers establishes a prima facie case of discrimination under the ADEA. In other words, could "pension status" been seen as a proxy for "age". The Court held, under the circumstances of the case, that pension status was not a proxy for age.  in other words, where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was “actually motivated” by age, not pension status.  As usual, the ScotusWiki has the detailed background on the case.  
  
• In Chamber of Commerce v. Brown (06-939), the Court was asked to decide whether federal labor law preempted a California state law that barred employers from using state money to influence union organizing campaigns. The Court found that the California law was pre-empted by federal law, meaning, in essence, that the state law cannot be enforced.  Although Connecticut does not have a similar law, it provides a framework for looking at any other proposed legislation that would place limits on the effect of the NLRA.  Background on that case is available from the ScotusWiki here.
  

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Ed: Updated to reflect newer posts and correct style

There are many employment lawyers who subscribe to the belief that "No Good Deed Goes Unpunished".  A case out of Connecticut and the Second Circuit this month certainly won't change that perception.  Indeed, although the case may have political undertones, it sets up a classic factual case of an employer who apparently tries to do the right thing and STILL gets sued for their actions.  Ultimately, the Second Circuit has affirmed that the employer did not violate the law but the issue still remains far from settled. 

Here's the basic facts and background of Ricci v. DeStefano:

In March 2004, New Haven, Connecticut Fire Department held two promotional exams for the positions of Lieutenant and Captain.  However, the New Haven Civil Service Board (“CSB”) refused to certify the results of those exams because statistically, the test results showed that the test may have had a disparate impact on African-Americans. 

A group of seventeen white candidates and one Hispanic candidates who took the promotional exams sued.  These candidates fared fared very well on the test but did not receive a promotion because without the CSB’s certification of the test results, the promotional process could not proceed.

The Plaintiffs asserted that the refusal to certify the examination results violated their rights under Title VII and the Equal Protection Clause. In 2006, the District Court of Connecticut granted New Haven's motion for summary judgment (decision here) -- effectively dismissing  the case. 

CSB officials said, in their papers, that the reason they refused to certify the results is their desire to comply with the letter and the spirit of Title VII. The District Court noted that "Plaintiffs deride this 'feigned desire to ‘comply’ with Title VII,' arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. "

What is noteworthy, as the lower court pointed out, is that the case presents "the opposite
scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants’ reason for
their refusal to use the results.  

Ultimately, the District Court said that Plaintiffs' contention that "diversity" is a code word for reverse discrimination did not have merit.  The employer here was trying to do right by not using a test that had a disparate impact and the Court was unwilling to suggest that the employer's decision was incorrect.  The factual circumstances, as I've said before, are much more complex than that and I encourage readers to review the entire decision.

Of course, the Plaintiffs appealed. The Second Circuit last week affirmed the decision in a brief per curiam decision (available here).  The Court noted that the CSB "found itself in the unfortunate position of having no good alternatives."  

And while the court said it was "unsympathetic to the plaintiffs’ expression of frustration", the Court said that CSB was "simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact".   As such, its actions were protected. 

End of story, right?

Well, not quite.  Later in the week, the Second Circuit considered, but ultimately rejected a rehearing "in banc" (meaning a decision in front of all of the Second Circuit judges, not just a three judge panel).  The Wait a Second Blog explains the procedural mess in further detail in a post here.  What is unusual is that the decisions either concurring or dissenting in the decision to rehear the case in banc are lengthy and reveal a deeply divided Second Circuit. 

Indeed, the dissent noted that the Second Circuit has done a disservice by not publishing a full opinion on the subject and instead hiding behind a short "per curiam" opinion.  Ultimately, the dissent views the issue as one of "great importance" and believes that full consideration by the Second Circuit -- or at least a more detailed decision -- is warranted.  Certainly, the next time this issue is before the Second Circuit, we can expect more fireworks depending on the panel makeup.

The Plaintiffs here have petitioned the Supreme Court to grant certiorari in this case. It certainly merits further watching.   I would expect a ruling from the Supreme Court on whether to grant certiorari in fall of 2008. 

For employers, this case demonstrates the problem that companies face all the time. Typically, a decision affecting one employee, will leave another unhappy.  And even when the employer is trying to do the "right" thing by complying with Title VII (even if there is political overtones) they still could face a lawsuit by a group of employees unhappy with the decision.  Strict compliance with the law and getting sound legal advice is the best strategy for avoiding the minefields that continue to exist in this area.

UPDATE: Point of Law was kind enough to pick up on the post and credit should be given to their initial post on the subject late last week (which I was just tipped off to).  There are also other blog posts on the subject here,  here and here as well. 

FURTHER UPDATE 6/17: Wait a Second has an update this afternoon about another dissenting opinion released today by Second Circuit Chief Judge Dennis Jacobs.  From a legal procedural perspective, it's interesting to see the "catfight" going on at the Court of Appeals. But from employment law perspective, it doesn't really affect the underlying decision.

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In discrimination cases, when a plaintiff (which is a fancy legal term for employee) wins he or she is often entitled to have the defendant (typically the employer) pay his or her attorneys' fees.  There are lots of cases out there that discuss formulas for such fees .

But the basic assumption that some employers will make is that these fees will not amount to a significant number.

A new case out of New York (the same federal Circuit as Connecticut) should change that perception. I would expect this case to become the new "gold standard" (pun partially intended) for fee requests both in New York and in Connecticut for employment law cases.

The New York Law Journal (subscription required) reports that in Rozell v. Ross-Holst (download here, the prominent plaintiffs' firm of Outten & Golden received over $1 million in fees following a settlement of a discrimination claim.

What is particular noteworthy is that the Court ultimately granted an hourly fee request of lead partner Kathleen Peratis for $600 per hour (down from her requested rate of $675).  Since 2001, Peratis has headed the sexual harassment group at Outten & Golden, which the magistrate judge said "enjoys a reputation as one of the outstanding firms representing plaintiffs in employment cases."

Why should employers in Connecticut be interested in this? Because this case is likely to be Exhibit A by any plaintiff's attorney as to the "going rate" that experienced plaintiff's attorneys are charging for their services.  The argument will likely be "Well, your honor, if a NY attorney can get $600/hour, my proposed Connecticut rate of $525 is surely reasonable" (never mind the fact that there are few employment law attorneys in Connecticut who charge that rate in "real" life.) 

But, you say, this is a New York firm, not Connecticut, so why should I worry?  However, you would be wrong to make that assumption.   Outten & Golden has a sizable office in Stamford, Connecticut and represents many employees across the state.  (Full disclosure: I have crossed paths with some of their attorneys many times and worked collaboratively with several on bar association projects.)   Thus, it is very much a Connecticut issue.

Are attorneys' really worth that much? That's hard for me to judge, but the rate does seem excessive for Connecticut -- even the lower Fairfield County area.  Will courts in Connecticut use this case to raise awards in Connecticut? That remains to be seen.

For employers, the case has two important takeaways:

• First, don't underestimate claims for attorneys fees in employment cases. Settlement of cases early on can help prevent a situation where an attorneys' fee interferes with a way to settle cases.  And for valuing cases at trial, don't just consider "back pay" loses, but consider that the attorney could receive a sizable award in response to a fee request.
  
  
• Second, re-familiarize yourself with the Second Circuit's decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F. 3d 182 (2d Cir. 2008). In Arbor Hill, the 2nd Circuit set forth new rules for district judges to follow when determining attorneys fees. The court there suggested that judges use their "considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate."
  

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Here's an unsettling thought:

Some lawsuits against employers just seem more believable than others.

I'm unsettled by that thought because it suggests that there are built-in stereotypes with companies.  And, working in the employment law area, we all strive to ensure that stereotyping of employees becomes a thing of a past and that employers judge employees fairly.

And yet, with some companies, stereotypes remain.  For example, with the NASCAR circuit, there remains a stereotype that it is mainly geared towards white Southern males, some of whom aren't afraid to wave the confederate flag on occasion (of course, those in New England know that's untrue, based on the fans that flock to the track in Louden, New Hampshire).

So when word spread on Wednesday about a sexual and racial harassment lawsuit against NASCAR, I'm sure there were more than a few people who had the gut reaction that it may at least be possible.  World of Work blog has the details that suggest that the lawsuit -- which seeks $225 MILLION in damages -- may be lacking a bit on merit.  Age discrimination lawsuits against high tech companies play into another stereotype that these companies only want young, energetic employees in their workforce. 

Contrast that with a pregnancy discrimination claim against a maternity store.  Or a race discrimination claim against the CHRO.  Those claims, on their face, just don't seem possible or likely. After all, why would a maternity store have negative views on pregnant women? Why would a state agency whose mission is designed to protect employees against discrimination, then discriminate against its own employees?

Thus, when a company is sued, one of the first questions it should be asking is: Does this lawsuit sound or seem credible?  If so, the company must realize that there is a built-in prejudice that -- fairly or unfairly --it needs to address. 

But interestingly, a one size fits all approach to this issue won't work. Obviously, some companies will choose to show that the stereotype is wrong.  But others may choose to embrace their stereotype - a risky move that can gain success as well.  For example, in a recent sexual harassment claim brought against a casino, the employer said it was important to take into account the context of the employee's employment as a bartender.  The court agreed and concluded that the employee, who made off-color remarks, repeatedly grabbed the rear end of a female coworker, and gave sexually suggestive gifts to a coworker, could not contend that similar actions by a supervisor were harassment.

So what can employer do to combat the stereotyping of certain companies or industries?

• Continue to break down the stereotypes that may exist with your particular industry or business. 
  
• Create and run training programs for employees to show that the Company is concerned about the issue -- before an actual lawsuit occurs.  
  
• Create internal programs or events that play off For example, a financial services company may decide to host an event geared towards women customers -- attempting to break a stereotype of a male-dominated industry.
• Get involved in other community events or a non-profit organization that addresses that stereotype.
• For larger, more sophisticated companies, seek the assistance of a public-relations team to reinforce an image -- not just a brand for selling products, but a brand for attracting employees.
• And similarly, reinforce that image through an aggressive hiring strategy. Good talent attracts more talent.  There's nothing better for a company to show at trial than hiring statistics that match the diversity of the population.  Obviously, I'm not talking about hiring people because of their race; rather, it means making sure that companies draw from as a diverse a group of candidates as they can.

UPDATE: Kris Dunn of the HR Capitalist, has this update on the story with additional thoughts from an HR perspective here. 

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It's a common observation among employment lawyers that employers can be sued for lots of on-the-job actions that don't lead to termination.  Whether that employee, however, will prevail on the claim is an entirely different question. A case yesterday decided by the United States District Court of Connecticut highlights that distinction.

In Charles v. State of Connecticut, Judicial Branch (download here), an African-American probation officer claimed that she was denied a request to transfer because of her race.  She requested a transfer from the Milford, Connecticut office, where she performed  supervisory functions, to the New Haven office where she would  perform intake functions. It was undisputed that although her responsibilities would change after the transfer, there would be no change in her pay or benefits.  The position was ultimately filled with a white woman whose skills better matched the position description.

On a summary judgment motion by the employer, Senior Judge Dominic Squatrito  found that the employee did not establish a claim for race discrimination because, among other things, she did not suffer an "adverse employment action".

What is an adverse employment action? The Court looked to some other cases in the transfer context to find:

“If a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.’” Nevertheless, “[a] lateral transfer that does not result in a reduction in pay or benefits may be an adverse employment action so long as the transfer alters the terms and conditions of the plaintiff’s employment in a materially negative way.”

Here, the employee admitted that her salary and benefits were unaffected, but argued only that her transfer hurt her chances to be promoted in the future.  The Court rejected that argument saying that there was no evidence that the transfer denial would affect her in the future. Indeed, because she already had experience in the "intake" function (a reason the employee claimed she needed the position), the Court saw no reason why this denial would hurt her in the future.  Ultimately, what was telling to the court is that:

her pay was never adversely affected; she was never demoted, disciplined, suspended or terminated; and her job title was never adversely changed. Indeed, [the employee] admits that not being transferred to the New Haven office did not adversely affect her, and that she has not  experienced any sort of adverse employment action as a result of her not obtaining the transfer.

In short, the Court seems to view this dispute as nothing more than a kerfuffle. Or much ado about nothing. 

So what's the takeaway for employers in other cases? Two things.

• First, this should confirm for employers that a very small number of employees may sue for anything -- no matter how trivial.  Good documentation and support for decisions (that are obviously non-discriminatory) are cruicial to getting these claims defeated.
• Second, a good human resources practice that recognizes employees desire to get ahead and that works with those employees to develop a career path, can help employees see more options than they might otherwise have.  HR should not simply be about discipline and discharge, but working with supervisors and employees to allow employees to work to their fullest potential.

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The U.S. Supreme Court today, in Gomez-Perez v. Potter, ruled 6-3, that the Age Discrimination in Employment Act (ADEA) protects federal workers from retaliation based on age-related complaints. 

The majority decision, written by Justice Alito, essentially grants protection to those federal workers on the same terms that private workers have long had. In doing so, the Court has now made it clear that retaliation against workers, whether they work for the federal government or for private employers, for complaints of age discrimination is prohibited. 

Regardless, for private employers, this case has no real immediate impact because retaliation against their employees on the basis of age has been prohibited under federal law and, in Connecticut, under state law.

For background on the case, see the ScotusWiki or my previous post from February here.

What remains unclear -- and to which I suspect the commentary about this case will focus on -- is whether the court's logic -- by finding retaliation claims can be "read into" claims of discrimination -- will apply to other statute or claims.  

Justice Thomas and Scalia (who dissented on the other retaliation case decided today, CBOCS West v. Humpries) are joined by Chief Justice Roberts, who writes a lengthy dissent. Justice Roberts takes the majority to task for creating a cause of action not found explicitly in the statute:

The Court today holds that the federal-sector provisions of the Age Discrimination in Employment Act encompasses not only claims of age discrimination—which its language expressly provides—but also claims of retaliation for complaining about age discrimination—which its language does not. Protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case. The separate treatment of each in the private-sector provision of the ADEA makes that clear. In my view, the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA. I respectfully dissent.

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The U.S. Supreme Court today, in CBOCS West Inc. v. Humphries, ruled 7-2 that the Civil Rights Act of 1866 -- now codified at 42 U.S.C. 1981, prohibits retaliation against an individual who complains of discrimination against others, when contracting rights are at stake.  It is an issue that often arises in workplace situations, but potentially reaches much more widely, as the ScotusWiki has noted on its site.

For background, see the ScotusWiki.  I also discussed the case back in February at a post here.  You can download the decision directly from the court here.

For now, the court's holding -- which relies primarily on the idea of stare decisis (or, in essence, we've already decided this in other cases so we're just going to apply it here) -- is found in this quote from Justice Breyer:

We conclude that considerations of stare decisis strongly support our adherence to Sullivan and the long line of  related cases where we interpret §§1981 and 1982 similarly.  CBOCS’ arguments do not convince us to the contrary.  We consequently hold that 42 U. S. C. §1981 encompasses claims of retaliation.

Justice Thomas writes a lengthy dissent with Justice Scalia joining saying, in essence, that the Court hasn't ruled on this before and therefore stare decisis is not applicable:

By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it  created remedies out of whole cloth to effectuate its vision of congressional purpose.” Ibid. That the Court does so under the guise of stare decisis does not make its decision any more justifiable. Because the text of §1981 provides no basis for implying a private right of action for retaliation, and because no decision of this Court holds to the contrary, I would reverse the judgment below.

For Connecticut employers, the decision is interesting, but because state law already prohibits retaliation on the basis of race (and allows for the recovery of significant damages), it may not have a significant impact on cases here.  Nevertheless, it provides another type of claim that employees may consider when filing suit -- and other claim that employers will need to concern themselves about.

I'll update this post further with some additional feedback and analysis as warranted (and as time permits).

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While I was on trial last month, a Second Circuit decision on Associational Discrimination slipped by.  Fortunately, the Delaware Employment Law Blog picked up the slack here.

The obvious question that arises first is: What is Associational Discrimination?  Well, most discrimination cases arise when the employee has a "protected characteristic" such as his or her race or gender, and has had some type of employment action