Sex Discrimination Claim Not Defeated By Absence of Discrimination Directed At Other Women

Does evidence that a female collegue of an employee claiming sex discrimination defeat the claim? It does not ruled the United States Court of Appeals for the Tenth Circuit  in Strickland v UPS, No 07-1082 (February 24, 2009). The court’s ruling indicates how widely misunderstood this simple point is among judges and some lawyers.

Strickland was a sales representative for UPS. Her supervisor suggested that she take a medical leave and she did. But when she returned she was accused of having “let down the company,” compelled to attend numerous and frequent meetings with her supervisor and district manager, Donnell, which interrupted her sales work, compelled to draw up sales plans that other salespeople were not even though she had higher sales figures, and subjected to constant performance evaluations. She had five male co-workers and one female co-worker, Harper. All testified that Strickland was treated differently than they were, although Harper testified that she was not treated differently than the men. Strickland was eventually constructively discharged from her employment and filed suit claiming sex discrimination.

The court ruled that Strickland’s sex discrimination claim “does not fail simply because an employerdoes not discriminate against every member of the plaintiff’s sex.” Such evidence may weaken the claim, the court ruled, but does not defeat it.

Robert L. Abell

www.RobertAbellLaw.com

Fair Pay Law Is First Law Signed By President Obama

The Lilly Ledbetter Fair Pay Act became on January 29 the first bill signed into law by President Obam as the New York Times reported, “Obama Signs Equal-Pay Legislation.” The law’s namesake, Lilly Ledbetter, was cheated out of money she earned during nearly 20 years of employment by Goodyear Tire. She went to trial, a jury awarded her all of her back pay along with the damages. But the United States Supreme Court took it away, ruling two years ago that she waited too long in filing her suit. The bill signed by President Obama reversed that wrong and unjust decision. As the President said at the signing ceremony: 

“It is fitting that with the very first bill I sign — the Lilly Ledbetter Fair Pay Act — we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.”

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Protections Applicable To Employee Providing Informaton In Internal Investigation

Retaliation against an employee that provides information in an in-house investigation by an employer regarding discriminatory practices in the workplace violates the anti-retaliation provisions of Title VII the Supreme Court ruled yesterday in Crawford v Metro Govt of Nashville, No 06-1595 (January 26, 2009).

The Nashville Metro Government launched an investigation “into rumors of sexual harassment” by a Hughes, the employee relations director for the government’s school district. Crawford, a 30 year employee, described to a human resources investigator several instances of sexually harassing behavior by Hughes:

• an instance in which Hughes answered her greeting “by grabbing his crotch and saying ‘You know what’s up’”;
• repeated instances in which Hughes “put his crotch up to her window”; and,
• one occasion where he entered her office and “grabbed her head and pulled it to his crotch”

The metro government took no action against Hughes but fired Crawford, accusing her of embezzlement. She filed suit claiming that her firing was in retaliation for the information she had provided in the human resources investigation regarding Hughes’s misconduct. After the district court and Sixth Circuit ruled that the anti-retaliation provisions of Title VII were inapplicable to Coleman, the Supreme Court agreed to hear her case.

The Supreme Court ruled that Crawford was protected by the anti-retaliation provisions of Title VII and reinstated her case. The Court strongly rejected the argument that Crawford was not protected because she had not herself complained of harassment and started the investigation, stating

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 her a question.

Robert L. Abell
www.RobertAbellLaw.com

Pregnancy Discrimination Act Marks 30 Year Anniversary

Today marks the 30 year anniversary of the Pregnancy Discrimination Act.  In recognition of this milestone, the National Partnership for Women and Families has released a report, The Pregnancy Discrimination Act: Where We Stand 30 Years Later, on the PDA’s effects and proposes some improvements.  Highlights include the following:

• charges of pregnancy discrimination to the EEOC increased 65% from 1992 to 2007 with this increase disproportionately attributable to pregnancy discrimination aimed at women of color
• working in a historically female occupation does not significant decrease the likelihood of pregnancy discrimination
• pregnancy discrimination complaints have risen at a rate faster than that by which women have entered the workforce
• overt, direct pregnancy discrimination was not as uncommon as other forms of discrimination with cases including a hotel manager who was repeatedly demoted after announcing her pregnancy and a senior management representative stated that pregnant women were inappropriate for management positions and missed to much work, a maternity clothing specialty store settled a lawsuit based on its policy of not hiring pregnant applicants and a rising star at another company was told to consider her options and had her management training canceled after she announced her pregnancy
• social science research has revealed predominant social attitudes that pregnant women should favor family over their job

Robert L. Abell
www.RobertAbellLaw.com

Retaliation & Age Discrimination Complaints Increase Most, EEOC Reports

Retaliation and age discrimination complaints led an overall increase in complaints filed with the Equal Employment Opportunity Commission, the Houston Chronicle reports, “Job Bias Lawsuits On The Increase.”  While there was an overall increase of 9% filed with the EEOC, retaliation complaints were up 18% and age discrimination complaints 15% in fiscal year 2007. 

Robert L. Abell
www.RobertAbellLaw.com

Religious Discrimination Compliance Manual Issued By EEOC

Federal and Kentucky state law prohibit covered employers, employment agencies, and unions from: (1) treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits; (2) subjecting employees to harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate; (3) denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices – or lack thereof – if an accommodation will not impose an undue hardship on the conduct of the business;17 and, (4) retaliating against an applicant or employee who has engaged in protected activity, including participation (e.g., filing an EEO charge or testifying as a witness in someone else’s EEO matter), or opposition relating to alleged religious discrimination (e.g., complaining to human resources department about alleged religious discrimination).  Charges of religious discrimination made with the EEOC have more than doubled since 1992.  It has recently issued a new guidance manual that can be found here. 

Robert L. Abell
www.RobertAbellLaw.com

Cancer Survivor Protected from Disability Discrimination

A breast cancer survivor qualifies for protection by the Americans With Disabilities Act (ADA), the D.C. Circuit held in Adams v. Rice (No. 07-5101).
The protection arose, the court concluded, because the illness and
treatment had caused an enduring impairment to the plaintiff’s “major
life activity” of sexual relations.

The plaintiff, Adams, earned a position with the United States Foreign
Service, one that required a medical clearance.  Her medical clearance
was revoked when she later reported a diagnosis of stage-one breast
cancer.  She underwent a successful treatment program, which included
reconstructive surgery.  Despite being cancer-free, her medical
clearance was not reinstated and her job was lost.  Adams claimed this
violated her rights under anti-disability discrimination laws.

The court ruled that Adams had established that, despite being
cancer-free, she continued to suffer a disability because of an ongoing
impairment to her ability to engage in sexual relations.  To reach that
conclusion the court had to first decide whether engaging in sexual
relations qualified as a “major life activity.”  Based on statutory
text, Supreme Court precedent and applying a “hefty dose of common
sense” the court concluded that “engaging in sexual relations qualifies
as a major life activity.” 

While this case is testament first to Adams’s bravery and the “common
sense” of the court majority is to be acknowledged, it also serves as
an illustration of how Supreme Court and other court rulings have so
limited the Americans With Disabilities Act that its protections are
ever difficult to define.  Adams lost her job with the State Department
because it regarded her as a liability (or at least a potential
liability) since she was a breast cancer survivor.  That she qualified
for protection from disability discrimination in her employment as a
Foreign Service officer based only on an ongoing impairment to her
ability to engage in sexual relations indicates that Congress should
act and restore a healthy dose of common sense to the protections
afforded by the Americans With Disabilities Act by effectively
repealing a number of misguided Supreme Court decisions.

Robert L. Abell
www.RobertAbellLaw.com

Pregnancy Discrimination Act Prohibits Firing Woman For Absences Related to Receipt Of In Vitro Fertilization Treatments

    The Pregnancy Discrimination Act would be violated if a woman was fired because of absences caused by her receipt of in vitro fertilization treatments, so ruled the federal Seventh Circuit Court of Appeals in Hall v. Nalco Company (No. 06-3684 decided 7/16/08).  This is the first federal appeals court to decide this issue.
    The plaintiff, Hall, worked as a sales secretary.  She twice took leaves of absence to receive in vitro fertilization treatment.  The employer elected to reduce its secretarial staff and decided to let Hall go because she had “missed a lot of work due to health” and, most significantly, was cited for “absenteeism – infertility treatments.” 
    The court ruled that her firing implicated the Pregnancy Discrimination Act (PDA) because the PDA prohibited discrimination based on a woman’s pregnancy, which will always be sex discrimination, as well as based on childbirth and medical conditions related to pregnancy or childbirth.  While both men and women can receive fertility treatments, the court observed, employees “terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women.”  Therefore, the court concluded that Hall had presented a viable claim that she was unlawfully discriminated against based on her female sex in violation of Title VII and the Pregnancy Discrimination Act.

Robert L. Abell
www.RobertAbellLaw.com

Sixth Circuit Sets Summary Judgment Standard In Mixed-Motive Cases

    An employment discrimination plaintiff to defeat summary judgment on a mixed-motive claim need only present sufficient evidence of (1) an adverse employment action; and, (2) a protected characteristic (race, color, religion, sex, age, national origin, disability) was “a motivating factor,” the Sixth Circuit ruled in White v. Baxter Healthcare Corp. (No. 07-1626 decided July 3, 2008).  The Court specifically rejected application of the McDonnell Douglas burden-shifting framework.
    The Court also discounted the employer’s explanation that the plaintiff had not been promoted owing in large part to a poor interview, observing that “any evaluation of White’s interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision.” 

Robert L. Abell
www.RobertAbellLaw.com

Production of Confidential And Irrelevant Documents Dooms Retaliation Case

    An employee’s production to her lawyer of confidential but irrelevant to her case documents doomed her retaliation lawsuit the Sixth Circuit Court of Appeals ruled in Niswander v. Cincinnati Insurance Company (No. 07-3738 decided June 24, 2008).  The plaintiff, Niswander, was a plaintiff in a class action lawsuit claiming that the  insurance company employer discriminated against women in their pay.  In response to a pretrial discovery request for documents made by the insurance company, Niswander provided her lawyer with confidential documents that she admitted were irrelevant to her equal pay claim but did serve to jog her memory about acts of retaliation toward her.  Since Niswander admitted that the documents were not relevant to her equal pay claim, the court ruled that her production of the documents to her lawyer did not constitute protected activity for which retaliation would be unlawful.  Therefore, the court ruled that the employer lawfully terminated her for violating its confidential documents policy and upheld the trial court’s summary judgment dismissal of her retaliation claim. 
    What doomed Niswander’s claim was her admission that the documents were irrelevant to her equal pay claim, the only claim she had pending at the time of the documents’ production.  The Sixth Circuit advised that an “individual’s delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating ‘in any manner’ in a Title VII proceeding.” 

Robert L. Abell
www.robertabelllaw.com