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

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 month, I provided a legislative update on the Paycheck Fairness Act bill, which passed the U.S. House of Representatives. Long-time Congresswoman Rosa DeLauro (D-Conn, 3rd) has been a leading sponsor of the bill and she has a long and distinguished career in the House. 

Yesterday, Rep. DeLauro issued a column in the Huffington Post about the bill.  Front and center in her discussion is the case of Lilly Ledbetter and her lawsuit against Goodyear Tire & Rubber Company that went before the U.S. Supreme Court.  

As a result, Rep. DeLauro says that the bill would close the "loopholes" in the law.

On Thursday July 31st, the House of Representatives took the next step to correct this injustice by passing H.R. 1338, the Paycheck Fairness Act by a vote of 247-178. This vote was about ensuring that women who work hard and productively and carry a full range of family responsibilities are paid at a rate they are entitled. So many employers and companies do the right thing as a matter of course, but passing this bill says that this is now a matter of right and wrong, that discrimination is unacceptable anywhere and we are all diminished when we fall short. We have the chance to make all men and women whole and contribute to the richness of America. 

What's fascinating is the fact that the Ledbetter case has gotten intertwined in the political arena (in fact, Ms. Ledbetter will be a featured speaker at the Democratic National Convention on Tuesday).  The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices -- in other words, about deadlines and "statute of limitations".  The Supreme Court said that the 180-day deadline found in the statute should apply. 

Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years?  I don't suggest to know what the right answer is.  Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill's final outcome and it should be the one that the politicians focus on. 

Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur. 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill's passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.   

Hopefully, as the bill progresses, we'll see more debate on the pros and cons on having longer deadlines to file suits.

Lastly, employers should not lose sight of other potential claims that can still arise, regardless of what happens with the Paycheck Fairness Act legislation. Indeed, the irony of the Ledbetter case is that there already exists a law that would have permitted Ledbetter to sue. The Equal Pay Act specifically addresses pay disparity and has a longer statute of limitations. But for some reason, Ledbetter's attorney chose to sue under the all-purpose anti-discrimination law, Title VII, thus dooming her claims.

(H/T: Rep. DeLauro cross-posted her statement at My Left Nutmeg)

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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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Earlier this week, I posted on a $4M verdict in federal court in a retaliation case, Tucker v. Journal Register Co.

But did you ever wonder what the verdict form actually looks like? In other words, when the jurors fill out the form and then hand it to the judge, what does that verdict form contain and what sorts of questions are the jurors really being asked about?

I was able to download the verdict form for the case and it can be accessed here.  This is the actual verdict form that the jurors are provided when they go back to deliberations and the only document they need to fill out to make their decision.   As you will see, the verdict form lumps the damages together for both claims that were raised, but addresses the underlying legal claims separately. 

Even more illuminating, however, is the instructions that the judge provided to the jury before their deliberations (available here) .   Despite cases running several years, the instructions on the case will be boiled down to judge a few instructions specific to the claims.  It's worth remembering when a lawsuit starts that the questions that the jury will consider are not as complex as we sometimes perceive the law to be.

And if the answers to the questions that the jurors will be asked aren't clear to the employer at the start of the case, the answers are not likely to change all that much through litigation. 

Photo Courtesy Library of Congress - c.1910, first all-woman jury in Los Angeles

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Late last week (when, of course, I was out of the office), word came down about another large verdict in an employment law case in Connecticut.  The verdict, composed of $1M in compensatory damages and $3M in punitive damages in Tucker v. Journal Register Co. was first reported by the Connecticut Post last Friday here.  (H/T Jottings blog)

Long time readers of the blog may recall my discussion of the employer's summary judgment motion and the court's decision back in November 2007. In my posts back then (which can be found here and here).  I talked about how the former employee alleged that her employer terminated her employment because she was opposed to testifying as a favorable witness in the company’s defense of another employee against whom a sexual harassment complaint had been filed.  the employer denied the claims and said that she had been fired for misusing an office telephone in which collect calls were accepted.

The case went to trial on two legal claims: 1) retaliation under Title VII as a person who participated or opposed a discriminatory practice, and 2) Conn. Gen. Stat. Sec. 31-51q, which applies the First Amendment to private employers.  You can download the trial memorandum here.  

The Court's docket sheet hasn't yet been updated with some of the nitty gritty and I hope to followup with some more information about what happened during the trial.  For instance, the employer moved for judgment as a matter of law during the trial and the court has taken that motion under advisement. I would certainly expect post-verdict motions to occur -- even before an expected appeal (though it is unclear what the grounds would be).  According to Tucker's attorney, the jury found against the employer on both claims. 

Tucker's attorney, Jeff Bagnell, was understandably pleased with the multi-million dollar verdict:

We were very pleased with the jury's verdict. It sent a clear message that you can't retaliate against an employee who is going to tell the truth in a legal case. This excellent jury showed that people still care about the oath and what it means. Thank God for the Seventh Amendment.

This case demonstrates once again that retaliation claims and 31-51q claims are among the more dangerous type of employment law claims out there.   And although there aren't hard numbers out there on this, the damages that juries in Connecticut are awarding on such claims seem be on the increase. 

What does this mean for employers? It's yet another reminder to treat all claims of retaliation seriously.   And consider settlement of such claims when the opportunity arises. No matter how strongly an employer feels about the claims, once the claims go to a jury, there is always a risk of loss -- no matter how strong the facts may appear to be to the employer.

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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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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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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 taken against him or her. But suppose the employer took action not because of the color of the employee's skin, but because of the color of the skin of  the employee's spouse.  That, the Second Circuit, has ruled, may violate federal anti-discrimination laws. 

The case, Holcomb v. Iona College (decided April 1), arises from the firing of the former assistant basketball coach at Iona College.  The school allegedly fired him for performance reasons.  He claimed that various college officials made derogatory comments about his wife -- who is Black. 

The court’s discussion set forth the associational discrimination analysis. Here is the three-part review, as summarized by the Delaware blog:

1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII. Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination.
   
2. Interracial Association. The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
   
3. Pretext Evidence. As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb’s termination were a mere pretext for race-based discrimination. Another piece of evidence to support Holcomb’s claim was that O’Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife.

What's the takeaway from this case? Claims based on associational discrimination represent another type of claim that can be raised.  Is it the start of a trend? It's really much too early to tell, but other circuits have recently ruled on the theory as well. Employers should be sensitive to this type of claim.  With interracial marriages and interfaith marriages becoming increasingly common, derogatory remarks about employees' spouses should be and must remain be off-limits at work.  Maintaining and enforcing sensible human resource policies may be all that's required for most companies, but each company should consider making its own assessment about whether associational discrimination claims are a higher risk to them.. 

(H/T Wait a Second).

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It's just a little bit ironic that on this Good Friday, the Second Circuit decided a case that will be very important to religious institutions in Connecticut, New York and Vermont.  Ultimately, it held that Title VII -- which, among other things, prohibits discrimination based on race -- is unconstitutional when applied to certain religious institutions, thereby confirming the existence of the "ministerial exception."

In Rweyemamu v. Cote (download here) , the Second Circuit decided an issue of first impression here.  As the court noted, "This court has had no prior occasion to confirm the existence of the ministerial exception, and rarely an opportunity to discuss its scope."

And upon reflection, the court held, "we affirm the vitality of that doctrine in the Second Circuit. In our view, the ministerial exception is constitutionally required by various doctrinal underpinnings of the First Amendment." 

The case arises from a lawsuit brought in Connecticut against the Roman Catholic Diocese of Norwich. The Plaintiff, claimed that its Bishop, misapplied canon law in denying him a requested
promotion and, ultimately, in terminating him.   Father Justinian Rweyemamu, an African-American Catholic priest, claimed racial  discrimination in a Title VII suit against the Bishop and the
Diocese.

For any religious institutions in the state, this case should now be required reading and required consideration when faced with any employment-related decisions.  The amount of protection that this exception offers -- while not absolute -- is significant.  When my trial ends, I hope to provide more information about it, but for now, its worth taking a look at.

For those curious, both sides had notable Connecticut attorneys.  The Plaintiff was represented by Norm Pattis, who has an amusing blog here as well as a weekly column in the Law Tribune.  And, on a personal note, I used to work with Meredith Diette, who successfully represented the defendants in this case and wish her congratulations on the results she achieved for her client.

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As with other U.S. Supreme Court cases this term, there's been more virtual ink spilled this week over two oral arguments scheduled for the U.S. Supreme Court this week that will examine some of the parameters of  when it is illegal for an employer to retaliate against an employee for complaining about discrimination.  For most employers, however, these cases may not have nearly the practical impact that some commentators seem to suggest.

I'll leave it to others, such as Ross's Employment Law Blog to explain the cases. 

• In Gómez-Pérez v. Potter, to be argued today, the question for the court is whether for federal employees, the ADEA prohibits retaliation for filing an EEO complaint.  ADEA already prohibits retaliation by private employers.  Even if the U.S. Supreme Court decides that the statute does not explicitly cover retaliation claims by federal employees, it is hard to imagine that Congress would not take up this issue immediately with bi-partisan support.
• In CBOCS West, Inc. v. Humphries , to be argued tomorrow, February 20th, the question for the court is whether 42 U.S.C. Sec. 1981 (which prohibits race discrimination in the "making, performance, modification, and termination of contracts...") provides a cause of action for retaliation as well.   However, as readers are no doubt aware, Title VII already prohibits retaliation on the basis of race, so there is and has always been some overlap between the two claims. 

Emily Bazelon, over at Slate, suggests that this is a "Big Discrimination Case."  Unless the decision's rationale is broad, that seems to be an overstatement at this point.  Most discrimination and retaliation claims, as a practical matter, are brought under Title VII, not Section 1981.  Indeed, the only reason the Humphries case is not a Title VII claim is that the Plaintiff missed the statute of limitations.  Section 1981 mostly gets used when an employee bringing a retaliation or discrimination claim misses that deadline.  Thus, even if the court were to rule against the employee in this case, it will have no impact on the vast majority of race retaliation cases out there that are being filed under Title VII.

Jon Hyman, at Ohio Employer's Law Blog, has some additional thoughts on the Humphries case as does Workplace Prof.  A decision on these cases is expected by June 2008.

For employers in Connecticut, I would ignore the hype about these cases.  Retaliation against employees for filing race and age discrimination claims would still violate state law, under Conn. Gen. Stat. 46a-60(a)(4).  Regardless of how the Supreme Court decides, state law will continue to apply.  If and when an employee claims discrimination at the workplace, take steps to avoid a retaliation lawsuit, and don't worry about whether federal or state law will ultimately apply. 

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In one of my first  posts, I highlighted an article regarding the legality of personality tests.  In it, I noted that the EEOC had held a fact-finding session and was likely going to issue some further guidance.  Well, that day has arrived.

The EEOC issued a fact sheet on employment testing today, announced in this press release.  The fact sheet, which can be accessed here, contains all sorts of helpful information for employers, including a best practices approach and a primer on the applicable federal laws.  Suffice to say that some of the suggestions are fairly obvious, but here they are:

• Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under [applicable procedures].
• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
  

As I noted previously, Connecticut does not have any major caselaw on this topic. Moreover, courts here will typically mimic federal law anyways, so it is certainly a good idea to familiarize yourself with the topic and implement the best practices recommended by the EEOC for these types of tests. As the year comes to a close, it's a good idea anyways to audit your personnel policies and procedures to ensure that they are compliant with current law.

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