I have often said that getting summary judgment in an employment discrimination case in Connecticut state court is hard.
State judges are typically reluctant to grant such motions, and the conventional wisdom among practitioners is that it takes extraordinary facts to get there.
Which is what makes a recent decision worth noting. The court granted
After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney , returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters. She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics.
In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals. Now, after the last few months, we revisit the topic further to see where we are. Let us know what you think about posts like this in the comments below.
Nina: A warm hello to my management lawyer friend! I could not think of a more opportune time to re-kindle our dialogue about sexual harassment. For me, having Time Magazine name its Person(s) of the Year as the Silence Breakers has been the gratifying culmination to a year of sea change on this vital topic.
I got to tell you Dan (and in so doing will undoubtedly reveal to our readers that I lead an embarrassingly sheltered life), that before Taylor Swift exhibited the courage to subject herself to countersue David Muellerman (the man who sexually assaulted her and brought an unsuccessful lawsuit against her for defamation when she outed him) I did not even know who she was. She is my new hero. She sued him for a symbolic $1 and she did it, she said, because she wanted to empower other women who have been sexually harassed and assaulted to come forward.
Well, I don’t need to tell you that they are coming forward in droves. It is as if a switch has been flipped. The paradigm has shifted and women who once felt that they had to suck it up in order to feed their families and save their careers are beginning to have hope that they no longer have to make that Hobson’s choice. And just as gratifying as this loosening of fear in victims of sexual harassment and assault about coming forward has been the employers’ swift responses in holding the predator (no matter how lofty his perch) accountable. Hallelujah!
Is this the beginning of the end to sexual harassment as we know it? I wish. Did you notice that cropped elbow that is in the photograph of the otherwise well-known faces on the front cover of Time’s Person of the Year issue? The elbow symbolizes the millions of women who endure sexual harassment and assault and do not come forward for fear that their careers, their reputations, their families, and/or their personal safety are at stake if they do.
While I am gratified by the swift and appropriately severe responses to sexual harassment and assault committed by powerful men in the public eye, most of the sexual harassment and assault victims I represent do not have that leverage that comes with an outed perpetrator who has a public persona. In such cases, too often, unless the employer fears public exposure, I find it does not have that same sense of urgency to take action.
What about you, Dan? What does this surge in reporting indicate to you? Are you finding more clients who are interested in taking preventative measures? What are their concerns?
Dan: Happy New Year to you Nina! So, it’s been quite an interesting few months. Everyone seems more busy. Before I talk about that, it’s worth emphasizing that lost in all this reporting is that the incidents of misconduct that are making headlines are really varied in scope. You have incidents of outright sexual assault being tossed together with conduct that may (or may not even) be classified as sexual harassment.
And that is what I’m concerned about now. A tasteless joke in the workplace is clearly NOT the same as some of the incidents that, say, Harvey Weinstein is accused of. (You can look it up; this is a safe for work blog, after all.) And so, yes, we’re hearing more incidents reported. But that doesn’t necessarily translate to more credible claims. I’ve heard from other attorneys representing employees that they’re seeing twice as many cases come in to them but they aren’t taking a lot more cases.
And as we know, we’re still months away from seeing new lawsuits arising from these claims too. What happens by then?
It’s too early to predict that the #MeToo movement won’t have the same impact six months from now (I happen to think that it will) but even since the holidays it seems the press is starting to move on a bit (Golden Globes, notwithstanding). It’s hard to keep up the pressure that the end of 2017 had.
For employers, it’s important to not get caught up in assuming the worst and thinking that everything they’ve been doing has been a failure. Much HAS changed over the last 20 years. I do think, though, it’s an opportunity for employers to re-evaluate their training. They can also take a look at their culture: Are there any expense reports revealing something more nefarious (a Gentleman’s Club visit perhaps?)? Is it time to institute a “no-dating” policy for supervisors/subordinates? And where are your weak spots?
Continue Reading The Dialogue: The Shifts That #MeToo Are Creating in the Workplace
Back in June, I talked about the standard that courts will follow in deciding whether or not to enforce a non-compete agreement between an employer and an employee. (Go read it here first.)
But many employers want to know something more straightforward: How long can I make the restrictive covenant in my agreement; in
As Google was quick to remind us, today would have been Julia Child’s 100th birthday today.
In cooking, lots of recipies call for seasoning with salt and pepper. In fact, its so common, that you might overlook it.
For employers, the simple ingredient
Today, my colleague Jonathan Orleans makes a return engagement to the blog, updating us on a decision released by the District Court of Connecticut yesterday that has relevance to various ADA cases in the state. The Defendant was successfully represented by another colleague of mine here at the firm, Marcy Stovall.
A decision issued yesterday by a federal district court in Connecticut provides some useful guidance on the distinction, for purposes of the Americans With Disabilities Act, between impairments that merely affect major life activities and those that substantially limit such activities.
The decision by Judge Janet Arterton also clarifies that in determining whether the plaintiff is substantially limited in important life activities, the plaintiff is compared to “most people,” not to any subgroup of the general population.
In Rumbin v. Association of American Medical Colleges (download here), the plaintiff sought various accommodations, including extra time, to take the Medical College Admission Test (the “MCAT”), claiming to be disabled because he was severely limited in the major life activity of seeing.
He submitted to the Association, which administers the MCAT, reports from his treating ophthalmologist and a behavioral optometrist who said that he had various vision-related impairments, including glaucoma, ocular misalignment, convergence insufficiency, binocular dysfunction, and oculomotor dysfunction.
The Association nonetheless denied his request for accommodation after having his application reviewed by its own expert, the Executive Director of the National Board of Examiners in Optometry, who found the reports of plaintiff’s doctors unconvincing on a variety of grounds.
(Interestingly, the Association presented evidence at trial that the MCAT is intentionally designed to be arduous and time-pressured, and that it is reluctant to grant requests for extra time because studies show that scores on tests where extra time is given are not equivalent to scores on tests using the standard timing.)
The Defendant was also represented by Robert Burgoyne of Fulbright & Jaworski in Washington, DC.Continue Reading Impairments That Merely Affect Major Life Activities Not Covered by ADA, Says Federal Court
A few weeks ago, I pondered the impact that the Connecticut Supreme Court’s decision in Curry v. Allan S. Goodman would have
on cases involving learning and mental disabilities. Turns out, I didn’t need to wait long at all. A CHRO Hearing Officer has already used that decision to chime in and indicate that must