Category: Uncategorized

Myths In Employment Civil Rights Litigation: Odds

March 30, 2018

Myth 6. Plaintiffs have high odds of success and win large awards.

Although media coverage gives that impression, we find that some 36 percent of plaintiffs have their cases dismissed or thrown out on a motion for summary judgment and 50 percent of plaintiffs receive settlements early on, with an average settlement of $30,000. Of those cases that go to trial (6 percent), only one-third end with a win for the plaintiff.

More significantly, we find that plaintiffs often pay a high personal cost for their involvement in discrimination lawsuits. Beginning in the workplace, once they start to raise the possibility that they were discriminated against and certainly if they file a charge, they face ostracism from management and even co-workers…

SOURCE: http://www.abajournal.com/magazine/article/myths_show_the_harsh_realities_of_civil_rights_litigation/P1

Myths In Employment Civil Rights Litigation: Frivolity

January 8, 2018

Myth 8. Many plaintiffs’ lawsuits are frivolous.

Our interviews with defendants and their lawyers reveal that they often believe plaintiffs are ill-informed about the law or seeking undeserved compensation. Yet there is no straightforward test to determine at the outset of a case whether it is weak on the merits. Unlike medical treatment files, which can be objectively reviewed by experts, employment files are themselves created by employer-defendants and may contain subjective assessment of performance and misconduct.

One indication of this difficulty can be seen in our data. The EEOC created priority codes to predict the odds of success when charges are filed. We obtained commission records and matched them to a large subset of our filings cases. The EEOC priority codes had no power to predict the outcomes of our cases.

from the ABA: http://www.abajournal.com/magazine/article/myths_show_the_harsh_realities_of_civil_rights_litigation/P1

News Flash: Update on Tip Pooling

December 4, 2017

The U.S. Department of Labor today announced a Notice of Proposed Rulemaking (NPRM) regarding the tip regulations under the Fair Labor Standards Act (FLSA). Under the proposed rule, workplaces would have the freedom to allow sharing of tips among more employees – an option that is currently restricted by a rule promulgated in 2011 that has been challenged in a number of courts.

The NPRM will be published in the Federal Register on December 5, 2017, and be available for public comment for 30 days. The Department encourages interested parties to submit comments on the proposed rule. The NPRM, along with the procedures for submitting comments, can be found at the Wage and Hour Division’s Proposed Rule website.

– From the USDOL WHD

Discrimination 101

November 30, 2017

Recently there have been a number of significant decisions regarding discrimination in the workplace highlighting the fact that preventing discrimination is a responsibility of every employer. Employers who fail to meet this challenge by failing to take all reasonable steps to prevent discrimination can be held directly responsible for discrimination or vicariously liable for the actions of their employees.

What constitutes discrimination has varied by court or even by judge; however, the law is clear that employers should ensure that they do not discriminate (or allow their employees to discriminate) on the basis of the following:

  • Race
  • Nationality
  • Sex
  • Religion
  • Age
  • Disability
  • Political affiliation
  • Marital status
  • Pregnancy
  • Gender/Gender identity/Gender orientation
  • Creed

This is not an exhaustive list depending on your jurisdiction (federal, state, municipal etc.) but it covers most of the basics.

For example, in a recent case, a major rail network was held vicariously liable for the actions of its employees who had sexually harassed a female manager. The manager was subjected to having graffiti of a “particularly graphic and highly offensive nature” written about her in the men’s bathroom at work. In a further incident, a pornographic magazine was pushed under the door of her office. The female manager successfully obtained a large monetary award as a token of the employer’s failures.

Employers will be held accountable for failing to take all reasonable steps to prevent discrimination and harassment in their workplace and to address complaint of discrimination and harassment quickly and confidentially. Some of the steps that employers should take to prevent harassment and discrimination are:

  • Having comprehensive anti-discrimination policies that are committed to by all workplace stakeholders (owners, operators, managers, directors, employees and contractors)
  • Having a grievance resolution procedure that is clear and concise
  • Providing information to your employee of where they can go to get assistance outside of your workplace
  • Training all employees on what is discrimination and harassment, and what behaviors are prohibited
  • Ensuring all managers are trained on how to appropriately investigate and handle complaints
  • Making discrimination and harassment a feature of discussion at staff meetings
  • Displaying posters and notices that clearly state that harassment and discrimination will not be tolerated

#metoo movement – Sexual Harassment and Discrimination at Work

November 30, 2017

In a world where publicizing the intimacy of what goes on behind closed doors is both easy and pervasive, employers are urged to audit their anti-harassment processes and employees are encouraged to come forward if they have experienced or are experiencing sexual harassment at work.

The U.S. Equal Employment Opportunity Commission enforces federal equal employment opportunity (EEO) laws, which strive to create harassment-free workplaces by ensuring that employers fulfil their duties under federal legislation, including Title VII of the Civil Rights Act. Among a vast array of other things, these laws require that:

  • Employers do not condone sexual harassment in hiring, firing, compensation, promotion, layoff, recruitment, training, benefits, etc.
  • Employers do post notices visible to all employees outlining their rights under EEO laws

Sexual harassment is offensive behavior towards someone based on their gender, sexual orientation or sex. Harassment can be a wide range of actions. For instance, bullying, whether physical, verbal or nonverbal; targeted pestering; stalking; antagonistic teasing; name calling; damage to person or property; threatening or derogatory comments. Add sexual assault, including unwanted indecent touching and rape; lewd gestures and exposure. These all fit under the harassment umbrella. Unwelcome sexual advances, request of sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
  • Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment

Although most people thing of sexual harassment as something that happens only to women, men can be sexually harassed as well.

Clients have reported that being sexually harassed can devastate the victim’s psychological health, physical well-being and vocational development. Women who have been harassed often change their jobs, career goals, job assignments or educational pursuits. In addition, women have reported psychological and physical reactions to being harassed that are similar to reactions to other forms of stress and abuse.

Sexual harassment, especially in the workplace has gained increasing recognition in every society, causing employers to wake up to the potential of it going on amongst co-workers, supervisors and subordinates.

Employers: audit your policies now, revise them as necessary, implement them uniformly across genders and treat every case seriously.

Employees: it can be scary to say #metoo; however, it is important that you let someone know about your difficulties before it goes too far, or before someone suffers the same abuse.

Assessment Tool: Discrimination in Employment

October 25, 2017

So you think you have a discrimination claim against your employer? Hold that thought. Your answers to the following questions might indicate otherwise.

  1. Have you suffered an adverse employment-related action such as a refusal to hire, verbal or written infraction, refusal to promote, demotion, denial of benefits, suspension or dismissal?
  2. Do you have evidence that the adverse employment-related action which you have suffered was taken by the employer because of the protected class (your race, sex, religion, national origin, age, disability, veteran or active military status) to which you belong?
  3. If the employer has provided reasons for the adverse employment-related action, do you have evidence that those reasons are false?

FAQ Series: Is Addiction a Disability?

October 25, 2017

FAQ Series: Is addiction a disability?

 

According to the EEOC’s manual, “Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the Americans with Disabilities Act, Amendments Act from discrimination on the basis of past drug addiction.”

 

However, individuals who are currently illegally using unlawful or prescription drugs are excluded from coverage under ADAAA.

Case Summary: Pregnancy Discrimination Act Protects Breastfeeding

September 27, 2017

In STEPHANIE HICKS v. CITY OF TUSCALOOSA, ALABAMA, the 11th Circuit Court held that the Pregnancy Discrimination Act (PDA) guarantees women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences – including breastfeeding.

Stephanie Hicks brought this civil action against the Tuscaloosa Police Department under the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA). Ms. Hicks worked first as a patrol officer and then as an investigator on the narcotics task force. When she became pregnant she requested assignments that prevented late night work and weekend work, this was granted but only after being demoted only eight days after returning from FMLA leave. Hicks overheard multiple conversations in which officers of the police department used defamatory and sexist language about her. After the baby was born, Ms. Hicks requested accommodations that would have allowed her to breastfeed in the workplace and would have excused her from duties which required wearing a vest that according to her doctor could cause a breast disease that would inhibit breastfeeding. These accommodation requests were denied.  Ms. Hicks viewed these actions as a constructive discharge and filed suit.

Ms. Hicks prevailed at a jury trial wherein she was awarded $161,319.92 plus costs and attorney fees. The City appealed but the 11th Circuit Court, of which the State of Georgia is included, affirmed the decision.

The Court stated the important legal tests as follows:

  • The PDA amended Title VII to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” – the ultimate question is “whether the evidence, when viewed as a whole, yields the reasonable inference that the employer engaged in the alleged discrimination.

  • Under the FMLA the ultimate questions are whether: “(1)Hicks availed herself of a protected right under the FMLA; (2) [s]he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.

In application of these tests to the facts as summarized above, the Court concluded there was ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave. Furthermore, the Court found that the PDA covers discrimination against breastfeeding mothers and the City’s failure to accommodate Hicks’s requests, when it allowed accommodations to others similarly situated, constituted discriminatory constructive discharge, in violation of the PDA.

Quick Tip: Monitoring Employees’ Personal Communications

September 27, 2017

Generally the law gives employers broad rights to surveillance of their workplace, especially where company-owned devices are being used to communicate.

However, the federal Electronic Communications Privacy Act (“ECPA”) provides civil and criminal penalties for violators who intercept electronic communications such as telephone, email, voicemail, among others. Even the “business purposes” exception in the ECPA does not absolve employers who are only permitted to monitor on business-related communications but must cease surveillance as soon as they are aware that the communication is personal. From the outset, employers in contravention of the ECPA would be liable for equitable damages; additionally, in the 11th Circuit (which includes Georgia) actual damages, punitive damages, attorney fees and litigation costs are awardable at the Court’s discretion.

Quick Tips: US Department of Labor Advisory Opinions

August 20, 2017

Avoid misinterpretations of the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), and other federal wage and hour laws by seeking guidance directly from the U.S. Department of Labor. 

The US DOL Wage and Hour Division will now recommence the issuance of opinion letters on the application of these federal laws to an anonymous employer’s unique circumstances. The opinion letter becomes publicly available and can be fully relied on as a defense to wage and hour claims. 

Few useful facts about the Opinion Letter:

  • Response to applications are excessively delayed
  • Division exercises full discretion on which letters will receive a response  
  • No privilege applies to shield opinions from trade secret disclosures, pending audits, litigation and personal privacy, however, an attorney client privilege would be available if your attorney completes the application
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