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Topic: "Discrimination - Sex" | Main

No district court jurisdiction for federal employee challenging adverse employment action (6-3)
June 11, 2012 by Ross Runkel at LawMemo

The US Supreme Court held this morning that the Civil Service Reform Act (CSRA) precludes district court jurisdiction over Elgin's claim that his removal from federal service was based on an unconstitutional statute. The procedural route prescribed by the CSRA is by appeal to the Merit Systems Protection Board (MSPB) and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court.

Elgin v. Dept of Treasury (US Supreme Ct 06/11/2012)

A federal statute bars employment in the executive branch of male citizens who failed to register for the draft. Elgin, who had been discharged from his job, first challenged the decision before the MSPB - arguing that the statutory bar was unconstitutional - but an ALJ dismissed his case on the ground that the MSPB lacked authority to review the constitutionality of a federal statute. Rather than appealing from that decision, Elgin sued in federal district court.

The US Supreme Court held that the district court lacked jurisdiction because it is "fairly discernable" from the CSRA's text, structure, and purpose that Congress precluded district court jurisdiction over Elgin's claims. Based on CSRA's text and structure, there is no exception for constitutional challenges to federal statutes. If the MSPB lacks power to hear such claims, they can be meaningfully addressed by the Federal Circuit.

The DISSENT argued that Elgin's "constitutional claims are a far cry from the type of claim that Congress intended to channel through the [MSPB]."



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FMLA self-care provision is not enforceable against states - Coleman v. Maryland Court of Appeals
March 24, 2012 by Ross Runkel at LawMemo

During my days as a full time law prof teaching constitutional law and employment discrimination this question came up annually:

Exactly what is the extent of Congress' power under Section 5 of the 14th amendment? "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

There were always two potential extreme answers:

1. The power is limited to regulating conduct that itself violates the 14th amendment.

2. The power is expansive, much like the necessary and proper clause.

Law students typically wanted to know the rule that the Court would apply in every case. Something simple. Something predictable.

I always told them that there are nine Justices, and one must understand how each individual Justice sees things, and then count up the votes.

As time went by, most of the Justices adopted the view that Congress could go beyond regulating conduct that itself violates the 14th amendment, provided that there was "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to that end. This, of course, gave the Justices huge individual leeway to determine what was congruent and what was proportional. Not simple. Not predictable.

And so it was with Coleman v. Maryland Court of Appeals (US Supreme Ct 03/20/2012) with the Court splitting up into three opinions: 4-1-4.

Coleman sued his employer, an instrumentality of the State of Maryland, claiming a violation of the Family Medical Leave Act (FMLA) by denying him self-care leave. The Federal District Court dismissed the suit; the 4th Circuit affirmed. The US Supreme Court affirmed (4-1-4).

Four Justices said that in order for Congress to abrogate the states' immunity through the use of Section 5 of the 14th amendment, there must be "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end ." In Nevada Dept of Human Resources v. Hibbs, 538 US 721 (2003), the Court upheld the portion of the FMLA that provides leave for the care of a spouse, son, daughter, or parent with a serious medical condition. However, the sex-based discrimination identified in the Hibbs case is absent with regard to the self-care provision. There is a lack of congruence and proportionality. The plurality rejected arguments that the self-care provision addresses sex discrimination and sex stereotyping, that it is a necessary adjunct to the family-care provision upheld in Hibbs, and that it helps single parents keep their jobs when they get ill.

Justice Scalia rejected the "congruence and proportionality" approach, saying that (outside of race discrimination) Congress' power under Section 5 of the 14th amendment is limited to regulating conduct that itself violates the 14th amendment.

Four DISSENTING Justices, in applying the "congruence and proportionality" approach, would hold that "the self-care provision ... validly enforces the right to be free from gender discrimination in the workplace."

How many opinions?

Well, technically four. Actually five.

  • There was the plurality opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito.
  • Justice Thomas also wrote a separate concurring opinion.
  • Then, concurring in the outcome, but with alternative reasoning, an opinion by Justice Scalia.
  • The dissent by Justice Ginsburg was joined by Justices Breyer, Sotomayor, and Kagan.
  • Wait, Justices Sotomayor and Kagan did not join in on Justice Ginsburg's footnote 1, which expressed the idea (joined by Justice Breyer) that "Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power."

So now everything is clear, right?



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School liability for supervisors' negligent supervision of molesting counselor
March 10, 2012 by Ross Runkel at LawMemo

In C.A. v. William S. Hart Union High School (California Supreme Court 03/08/2012), the court held that a school district may be vicariously liable for its supervisors' negligent supervision of a counselor who allegedly molested a student.

A high school student sued the school district and its administrators claiming that he was molested by a counselor. The issue on appeal was whether the district may be vicariously liable for its administrators' negligence. (This was not a claim of vicarious liability for the acts of the counselor, which were outside the scope of her employment).

The California Supreme Court held that the district may be vicariously liable for negligent hiring, retention, and supervision.

The student alleged that the administrators knew or should have known of the counselor's past - and continuing - unlawful conduct with minors, and that they failed to provide reasonable care in investigating and supervising the counselor.

Public entity tort liability in California is exclusively statutory, and Gov. Code Section 815.2, as paraphrased by the court, provides that

"the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person ... and the public entity is vicariously liable for any injury which its employee causes ... to the same extent as a private employer."

The court said that

  • school administrators owe a duty of ordinary care to their students,
  • they have a "special relationship" with students,
  • ineffective supervision can be a lack of ordinary care, and
  • a school district can be vicariously liable for injuries proximately caused by such negligence.

My view: Pretty simple application of pretty simple legal rules. The main thing to notice is that the court did not say that the school could be vicariously liable for the acts of the counselor because such acts were outside the scope of the counselor's employment. Liability can flow from any negligence on the part of the counselor's supervisors - for their failure to provide reasonable care in investigating and supervising the counselor.



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1.5 million member Wal-Mart class cannot be certified
June 20, 2011 by Ross Runkel at LawMemo

Today the US Supreme Court held that a class of 1.5 million Wal-Mart employees cannot be certified as a Title VII class action suit. Wal-Mart Stores v. Dukes (US Supreme Court 06/20/2011).

Current and former Wal-Mart employees sought judgment against the company for injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart's alleged discrimination against women in violation of Title VII. They claim that local managers exercise their discretion over pay and promotions disproportionately in favor of men, which has an unlawful disparate impact on female employees; and that Wal-Mart's refusal to cabin its managers' authority amounts to disparate treatment. The District Court certified the class, finding that respondents satisfied Federal Rule of Civil Procedure 23(a), and Rule 23(b)(2)'s requirement of showing that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The Ninth Circuit substantially affirmed.

The US Supreme Court reversed, finding that (1) certification of the class was not consistent with Rule 23(a), and (2) the backpay claims were improperly certified under Rule 23(b)(2).

(1) Under Rule 23(a), plaintiffs cannot prove "common questions of law or fact." Plaintiffs wish to sue for millions of employment decisions at once, but there was no "significant proof that an employer operated under a general policy of discrimination." Wal-Mart's announced policy forbids discrimination and has penalties for violations. Plaintiffs' only evidence of a general discrimination policy was a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias, but he could not estimate what percent of the decisions might be determined by stereotypical thinking. Wal-Mart's policy gives local managers discretion, but it is unlikely that all managers would exercise their discretion in a common way without some common direction. Plaintiffs' attempt to show such direction by means of statistical and anecdotal evidence fell short.

(2) Under Rule 23(b)(2), the backpay claims were improperly certified. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. Individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out. Plaintiffs' argument that backpay claims do not "predominate" over their claims for injunctive and declaratory relief is rejected because such an interpretation has no basis in the Rule's text and does violence to the Rule's structural features.

Four Justices partially DISSENTED as to the Rule 23(a) issue, arguing that the majority "imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment."



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Fatal inconsistency in Wal-Mart Stores v. Dukes?
March 29, 2011 by Ross Runkel at LawMemo

At oral arguments this morning [read the transcript] in Wal-Mart Stores v. Dukes some of the Justices revealed a potentially fatal flaw in the employees' argument.

The case involves questions about whether a huge Title VII sex discrimination class action can go forward as a class action rather than as a series of individual cases.

The employees are arguing that a nationwide class is proper because there is a centralized corporate employment policy. At the same time the employees complain that individual store managers have too much discretion in making employment decisions.

Justice Kennedy said to the employees' lawyer:

. . . your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that's going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there's an inconsistency there, and I'm just not sure what the unlawful policy is.

Justice Skalia followed this with:

I'm getting whipsawed here. On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a -- a strong corporate culture that guides all of this. Well, which is it? It's either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.

My view:

I think the Court should allow trial courts to exercise a wide swath of discretion (in either direction) on certifying a class action.

But the employees in this case really have got themselves in a contradictory position.

I'm expecting a 5-4 or 6-3 decision in favor of Wal-Mart. And I'm being foolish predicting anything the Supreme Court might do.



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Supreme Court grants cert in giant class action case.
December 06, 2010 by Ross Runkel at LawMemo

[Corrected as to the questions that will be briefed and argued]

The US Supreme Court granted certiorari today in Wal-Mart Stores v. Dukes.
[Details; Briefs]

Background:

Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII. The trial court certified a class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices. The class concerns approximately 1.5 million women who worked at any of Wal-Mart's 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, managerial.

The 9th Circuit (en banc) affirmed in large part (6-5) and reversed in part, using a highly deferential "abuse of discretion" standard of review.

The court upheld certification as to plaintiffs who were still employed when the complaint was filed, as to claims for injunctive and declaratory relief and back pay.

The class was certified under Rule 23(a) and (b)(2). There was no dispute as to the numerosity requirement. As to common questions of fact and law, the court found that there was significant evidence of centralized corporate-wide practices and policies of excessive subjectivity in personnel decisions and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. This raised a common question of whether there was discrimination based on "a single set of corporate policies." The court found the claims to be typical even though the only class representative for managers holds a low level position.

Five DISSENTING judges argued that class certification is improper because the named plaintiffs do not have "significant proof" of a Wal-Mart policy or practice "that would make it possible to conclude that 1.5 million members of the proposed class suffered similar discrimination." They said that "the evidence does not come close to meeting the [General Telephone Co of the Southwest v. Falcon, 457 US 147 (1982)] requirements for demonstrating commonality and typicality."

Question Presented in the petition for certiorari:

Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

In addition, the Supreme Court directed the parties to brief and argue the following question:

Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).


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Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari?
December 01, 2010 by Ross Runkel at LawMemo

On Friday, December 3 the US Supreme Court will have a private conference. One big case under consideration for granting certiorari is Wal-Mart Stores v. Dukes.
[Details; Briefs]

We'll know on Monday what the Court does on Friday.

Background:

Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII. The trial court certified a class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices. The class concerns approximately 1.5 million women who worked at any of Wal-Mart's 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, managerial. The 9th Circuit (en banc) affirmed in large part (6-5) and reversed in part, using a highly deferential "abuse of discretion" standard of review.

The court upheld certification as to plaintiffs who were still employed when the complaint was filed, as to claims for injunctive and declaratory relief and back pay. However, the court remanded with respect to claims for punitive damages, so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). The court also remanded with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

The class was certified under Rule 23(a) and (b)(2). There was no dispute as to the numerosity requirement. As to common questions of fact and law, the court found that there was significant evidence of centralized corporate-wide practices and policies of excessive subjectivity in personnel decisions and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. This raised a common question of whether there was discrimination based on "a single set of corporate policies." The court found the claims to be typical even though the only class representative for managers holds a low level position.

Five DISSENTING judges argued that class certification is improper because the named plaintiffs do not have "significant proof" of a Wal-Mart policy or practice "that would make it possible to conclude that 1.5 million members of the proposed class suffered similar discrimination." They said that "the evidence does not come close to meeting the [General Telephone Co of the Southwest v. Falcon, 457 US 147 (1982)] requirements for demonstrating commonality and typicality."

Questions Presented in the petition for certiorari:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

My view: This is one of the hottest employment law cases around, simply because the number of people in the class is approximately 1.5 million and it involves 3,400 stores. The Supreme Court looked at this case in an earlier conference, and it seems there is some difficulty making the initial decision as to whether to hear it. Odds are the Court will grant certiorari because this is the largest (by far) class action ever, and it's not clear that the lower courts handled it correctly. (I'm not saying the lower courts were wrong, only that it's not clear.)



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Wal-Mart wants review of 1.5 million member class action
August 26, 2010 by Ross Runkel at LawMemo

Wal-Mart has petitioned the US Supreme Court for certiorari to review a 9th Circuit decision that upheld certifying a class of approximately 1.5 million women who are claiming sex discrimination as to pay and managerial promotions in violation of Title VII.

[Details, link to cert petition]

Question presented in the petition for certiorari:

In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.

The questions presented are:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

A responsive filing from the plaintiffs is due September 24, 2010.



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$250 million punitive damages in Novartis sex discrimination case
May 19, 2010 by Ross Runkel at LawMemo

A federal jury has awarded $250 million in punitive damages against Novartis.

The award goes to a class of 5,600 women who claim a pattern or practice of gender discrimination.

The jury earlier awarded $3.3 million in compensatory damages to 12 women.

[Article]



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Jury: Novartis to pay $3.3 million plus punitives in sex discrimination case
May 19, 2010 by Ross Runkel at LawMemo

A federal jury on Monday awarded $3.3 million in compensatory damages to 12 women who claimed a pattern or practice of gender discrimination.

On Tuesday the jury began deliberating punitive damages for a class of 5,600. Plaintiffs' lawyers are seeking between $190 and $285 million.

[Article]



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1.5 million member Wal-Mart Title VII class action approved (6-5)
April 26, 2010 by Ross Runkel at LawMemo

The 9th Circuit today approved a sex discrimination class action against Wal-Mart, with a class estimated to have 1.5 million members.

Dukes v. Wal-Mart (9th Cir 04/26/2010)

Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII. The trial court certified a class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices. The class concerns approximately 1.5 million women who worked at any of Wal-Mart's 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, managerial. The 9th Circuit (en banc) affirmed in large part (6-5) and reversed in part, using a highly deferential "abuse of discretion" standard of review.

The court upheld certification as to plaintiffs who were still employed when the complaint was filed, as to claims for injunctive and declaratory relief and back pay. However, the court remanded with respect to claims for punitive damages, so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). The court also remanded with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

The class was certified under Rule 23(a) and (b)(2). There was no dispute as to the numerosity requirement. As to common questions of fact and law, the court found that there was significant evidence of centralized corporate-wide practices and policies of excessive subjectivity in personnel decisions and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. This raised a common question of whether there was discrimination based on "a single set of corporate policies." The court found the claims to be typical even though the only class representative for managers holds a low level position.

Five DISSENTING judges argued that class certification is improper because the named plaintiffs do not have "significant proof" of a Wal-Mart policy or practice "that would make it possible to conclude that 1.5 million members of the proposed class suffered similar discrimination." They said that "the evidence does not come close to meeting the [General Telephone Co of the Southwest v. Falcon, 457 US 147 (1982)] requirements for demonstrating commonality and typicality."



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EEOC sex harassment suit
March 07, 2010 by Ross Runkel at LawMemo

EEOC filed a class lawsuit Friday charging that Jay Medicar Transportation tolerated the sexual harassment of a number of female employees by one of its senior managers and retaliated against one employee after she complained about the harassment.

EEOC said that a top manager at the company allegedly frequently made comments of a sexual nature to subordinate female employees and on at least one occasion demanded sexual favors from an employee in exchange for a pay raise.

Press release 03/05/201:

EEOC Sues Medical Transportation Company For Sex Harassment and Retaliation

Federal Agency Says Jay Medicar Allowed Harassment of Female Employees

CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) filed a class lawsuit here today charging that Jay Medicar Transportation tolerated the sexual harassment of a number of female employees by one of its senior managers and retaliated against one employee after she complained about the harassment. The company provides medical transportation services in the Chicago area.

John Rowe, EEOC district director in Chicago, said that the EEOC’s administrative investigation which he directed revealed that a top manager at the company allegedly frequently made comments of a sexual nature to subordinate female employees and on at least one occasion demanded sexual favors from an employee in exchange for a pay raise.

“Several people complained to the company’s management repeatedly,” Rowe said of the investigation. “These complaints were allegedly ignored, and one female employee who complained appears to have been fired shortly after the company learned that she had filed a charge with the EEOC.”

The EEOC’s lawsuit was brought under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination (including sexual harassment) as well as retaliation, in employment. The EEOC filed suit after first attempting to reach a voluntary settlement through its statutory conciliation process. The case, EEOC v. Jay Medicar Transportation, LLC, a/k/a Jay Transportation, f/k/a Jay Medi-Car, Inc, Civil Action No. 10 cv 01477, was filed today in U.S. District Court for the Northern District of Illinois, Eastern Division, and has been assigned to U.S. District Judge William J. Hibbler and U.S. Magistrate Judge Geraldine Soat Brown. EEOC Trial Attorney Justin Mulaire and Supervisory Trial Attorney Gregory Gochanour will litigate the case on behalf of the government.

The EEOC regional attorney in Chicago, John Hendrickson, said, “Unfortunately, even in times of economic stress, some employers continue to penalize themselves through harassment and retaliation. Both may well involve exposure to awards of damages, loss of good will, significant attorneys’ fees, and other litigation costs—not to mention major distractions from the conduct of business itself. From our perspective at the EEOC, it would seem that, in a competitive business environment in tough times, compliance with federal law is surely a better investment.”

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.




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$33,000 settles sexual harassment case
March 05, 2010 by Ross Runkel at LawMemo

EEOC claimed that a female office clerk at HD Supply, Inc was sexually harassed and ridiculed by a male co-worker.

The suit settled for $33,000 and other relief.

[Press release]



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$11.7 million settles Walmart sex discrimination suit
March 05, 2010 by Ross Runkel at LawMemo

Walmart has agreed to pay more than $11.7 million to settle a suit by EEOC.

EEOC claimed that a Walmart distribution center denied jobs to female applicants from 1998 through February 2005, regularly hiring male entry-level applicants for warehouse positions, but excluding female applicants who were equally or better qualified.

EEOC alleged that Walmart regularly used gender stereotypes in filling entry-level order filler positions, and that hiring officials told applicants that order filling positions were not suitable for women, and that they hired mainly 18- to 25-year-old males for order filling positions.

[Press release]



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$5 million EEOC consent decree: Employer complies
February 22, 2010 by Ross Runkel at LawMemo

A federal district court has lifted a consent decree, finding that Woodward Governor Co has complied.

The decree resulted in $5 million being distributed to minority and female employees.

The decree also required that Woodward use a psychologist to analyze jobs, develop written job descriptions, a performance appraisal, and compensation review process.

Woodward was required to review the job assignments of its current production employees and adjust them as necessary based on the new job descriptions.

[Press release]



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$4,560,285.11 attorney fee against EEOC
February 13, 2010 by Ross Runkel at LawMemo

A federal district court has ordered EEOC to pay $4,560,285.11 in attorney fees and expenses to CRST Van Expedited, Inc.

EEOC sued CRST on behalf of about 270 women, claiming a pattern or practice of sex discrimination.

The court dismissed EEOC's complaint in April 2009, in part because “the EEOC did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint - let alone issue a reasonable cause determination as to those allegations or conciliate them.”

CRST was represented by Jenner & Block and Simmons Perrine Moyer Bergman PLC.

[Fee Order]

[Dismissal Order]



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$500,000 settles national origin and sex discrimination suits
February 07, 2010 by Ross Runkel at LawMemo

EEOC claimed that a hotel refused to hire non-Chinese banquet servers because of their national origin.

EEOC also claimed that the hotel subjected female employees to a sexually hostile work environment.

The two suits have been settled for $500,000 and a three-year consent decree.

EEOC Press release 02/03/2010:

Landwin Management to Pay $500,000 for National Origin Bias and Sexual Harassment

EEOC Said Hotel Refused to Hire Non-Chinese Banquet Servers and Subjected Women to Verbal Abuse

LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of two lawsuits against Landwin Management, Inc., a San Gabriel, Calif.-based hotel operator, for $500,000 and significant remedial relief in cases alleging national origin discrimination and sexual harassment. Both suits were filed in September 2007 under Title VII of the Civil Rights Act of 1964.

In the first lawsuit (Case No. CV 07-06169 SJO), the EEOC charged that non-Chinese banquet servers were rejected for hire based on their national origin when the San Gabriel Hilton severed its contract and hired Landwin Management to operate the establishment in April 2005. The EEOC said that all the non-Chinese banquet servers who previously worked for the hotel at the time, many of whom were Latino, were not hired back during the turnover and instead replaced with less qualified Chinese workers.

In the second suit (Case No. CV 07-05916 PA), the EEOC alleged that the San Gabriel Hilton subjected female employees to a sexually hostile work environment, including verbal sexual harassment by the housekeeping department supervisor, who referred to the women as “whores” and “prostitutes” in addition to other offensive language. The supervisor also allegedly reprimanded the female employees if they even spoke to men, and Landwin failed to respond to the employees’ complaints of harassment.

In addition to the $500,000 in monetary relief, a three-year consent decree settling the two lawsuits will also ensure that (1) Landwin will implement hiring and recruiting goals for Hispanic employees; (2) Landwin will revise its written policies on discrimination, sexual harassment and recruitment and hiring; (3) employees will receive annual training regarding discrimination, including national origin discrimination and sexual harassment; (4) Landwin will retain an EEO monitor / consultant named by the Commission to assist with recruiting, hiring, training, revision of policies and record-keeping procedures; and (5) the company will provide annual reports to the EEOC regarding its employment practices.

“The days when employers make decisions based on stereotypes and assumptions shaped by the race or national origin of their employees should be far behind us,” said Anna Y. Park, the regional attorney for the EEOC’s Los Angeles District Office. “Further, sexual harassment should no longer be tolerated in any workplace, and employers should never condone or overlook the mistreatment of vulnerable victims, such as monolingual Spanish-speaking women.”

EEOC Los Angeles District Director Olophius Perry added, “Employers must take appropriate corrective action when they receive harassment complaints. We hope that other employers take the lead of the San Gabriel Hilton and take proactive action to ensure EEO compliance. Businesses should take advantage of EEOC trainings that are available to encourage compliance and proactive prevention.”

The EEOC Training Institute provides a wide variety of training to assist employers in educating their managers and employees on the laws enforced by EEOC and how to prevent and correct discrimination in the workplace. More information is available at http://www.eeoc.gov/field/washington/training.cfm.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.




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Rehire and back pay settles sex discrimination case
February 07, 2010 by Ross Runkel at LawMemo

EEOC claimed that a hotel company fired a banquet manager because of his sex and because he complained that a female co-worker was not disciplined for the same purported infraction.

The company agreed to pay compensation to the employee for losses he sustained, and to rehire him at one of its hotel properties.

EEOC Press release 02/03/2010:

Columbia Sussex Settles EEOC Sex Discrimination and Retaliation Suit

Baton Rouge Sheraton Hotel Fired Employee Because of Gender and As Retaliation for Complaining, Federal Agency Said

HOUSTON — Columbia Sussex Corporation, which owns and operates hotel properties across the United States, has agreed to settle a sex discrimination and retaliation suit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The settlement resolves the charge of a former banquet manager, Richard Knight, who claimed that Columbia Sussex fired him from its Sheraton Hotel in Baton Rouge, La., because of his sex, male, and because he complained that a female co-worker was not disciplined for the same purported infraction.

According to the EEOC’s suit, Columbia Sussex terminated Knight because he complained about the general manager’s better treatment of Knight’s female co-worker during a meeting. In that meeting, the general manager ultimately demanded that Knight go into his office without the presence of a human resource representative, but did not force Knight’s female co-worker to proceed without a representative. When Knight asked the general manager whether he was granting privileges to the female manager that he would not grant to Knight, the general manager replied that he could do whatever he wanted and then he immediately terminated Knight. The female manager was not disciplined.

Sex discrimination and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit (No. 07-701 in U.S. District Court for the Middle District of Louisiana) after first attempting to reach a pre-litigation settlement.

In settlement of the case, Columbia Sussex agreed to pay compensation to Knight for losses he sustained, and to rehire him at one of its hotel properties. Columbia Sussex entered into a three-year consent decree, agreeing to annual training of personnel regarding sex discrimination and retaliation. Columbia Sussex also agreed not to rehire the official who had terminated Knight.

Knight commented on the settlement, “I am very grateful that the EEOC brought this case on my behalf. I love the hotel industry. My main goal was always to get my job back. I am excited to get back to work with Columbia Sussex in my chosen field.”

Jim Sacher, the EEOC’s regional attorney for the Houston District, which encompasses EEOC litigation in Louisiana, said, “This is a constructive outcome for the EEOC, Mr. Knight and for current and future employees of Columbia Sussex. The EEOC takes all claims of sex discrimination very seriously, including those where the victim is a man. The Commission also closely scrutinizes retaliation claims, because they fundamentally impact our ability to enforce the law, encourage a fair workplace and seek relief for victims.”

According to company information, Columbia Sussex, a privately held corporation, has approximately 70 hotels across the United States, the Caribbean and Canada, operating under brands such as Marriott, Hilton, Westin and Sheraton.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov .




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$380,000 sex discrimination settlement
February 07, 2010 by Ross Runkel at LawMemo

The EEOC brought two suits against The Boeing Company, alleging gender-based harassment and retaliation involving three employees.

The suits were settled for $380,000, an injunction prohibiting future discrimination and retaliation, and other relief.

EEOC Press release 02/01/2010:

Boeing Settles Two EEOC Sex Discrimination and Retaliation Lawsuits for $380,000

PHOENIX -- Chicago-based The Boeing Company, an aerospace giant that manufactures military aircraft and commercial jetliners, has agreed to pay $380,000 and administer far-reaching injunctive measures to settle two lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

In one case, filed in 2005 (EEOC v. The Boeing Company, 05cv03034 PHX FJM), the EEOC brought sex discrimination and retaliation claims against Boeing on behalf of two female engineers at Boeing’s Mesa, Arizona facility. Antonia Castron complained of gender-based harassment, including sexist remarks, creating a hostile environment and, a few days later, she found herself transferred to a new unit that did not suit her skill set. Less than two months after the transfer, Boeing laid her off, purportedly because she could not perform as well as other engineers in her new unit.

“Instead of stopping the harassment or reprimanding the men who tormented me, they moved me to a unit that designed structures,” said Castron. “I was skilled at electrical engineering. That’s like asking a heart surgeon to do brain surgery. Then they evaluated me for layoff based on my ability to perform structural work. They set me up for layoff.”

The EEOC claimed that Boeing managers harbored discriminatory and retaliatory motives when it transferred and terminated Castron. Manufacturing engineer Renee Wrede twice complained of sex-based harassment, and twice Boeing’s internal investigators substantiated her complaints. Nonetheless, according to the EEOC, the company allowed her harassers to influence her layoff evaluations and reduce her scores. As a result, Wrede also received a layoff notice in October 2002. The EEOC’s investigation showed that Boeing manipulated evaluation scores used in its October 2002 reduction in force to justify the terminations of Wrede and Castron.

“An employer is only setting itself up for more trouble when it punishes a worker for exercising her right to complain about unlawful activity in the workplace,” said EEOC Acting Chairman Stuart J. Ishimaru. “The EEOC is always especially concerned when we uncover this kind of unlawful retaliation. It chills witnesses and victims from reporting illegal discrimination at work, and therefore interferes dangerously with the Commission’s law enforcement efforts.”

In an earlier lawsuit (EEOC v. The Boeing Company, CV-03-1210-PHX-PGR), the EEOC sought relief on behalf of Kelley Miles, a female mechanic at the Mesa facility, who works on the Apache helicopter that Boeing manufactures for the U.S. Army. The EEOC charged that Boeing allowed Miles’ co-workers to harass her on an ongoing basis due to her gender and allowed one or more managers to contribute to that harassment without taking appropriate steps to address the behavior. Much of the harassment directed at Miles was designed to make it more difficult for her to perform her job, the EEOC said. Male co-workers took Miles’ tools and either broke them, hid them, or changed the adjustments before returning them. Other harassment was sexual in nature. Miles reported this conduct to Boeing’s Human Resources Department, but the company did nothing to address it. As a result, the harassment continued.

The suit also charged that Boeing retaliated against Miles for complaining about gender-based harassment. After Miles reported her co-workers’ conduct to Boeing’s Human Resources Department, a manager warned several of Miles’ co-workers to be careful of what they said to her because the manager had them on a list.

Boeing’s alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation.

The consent decrees reached between the parties provide for $380,000 in monetary relief for Castron, Wrede and Miles and an injunction prohibiting future discrimination and retaliation. Further, the EEOC obtained curative relief, such as training, to prevent Boeing from engaging in any further discrimination and retaliation.

“The right of an employee to oppose discrimination in the workplace is fundamental,” said Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District Office. “Employees should be able to report discrimination without fearing that their employers will make the situation worse by retaliating against them.”

Rayford Irvin, EEOC acting district director in Phoenix, added, “Covert attempts to mask discriminatory and retaliatory motives, such as Boeing employed, will fool no one.”

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.




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EEOC defends MSJ; employee trying to become pregnant
January 31, 2010 by Ross Runkel at LawMemo

EEOC successfully defended a motion for summary judgment filed by Menards hardware store.

EEOC is claiming that the store discriminated against an employee on the basis of her sex by demoting her because she underwent surgery to prepare her for in-vitro fertilization.

[Press release]



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$79,880 settles pregnancy discrimination suit
January 31, 2010 by Ross Runkel at LawMemo

U.S. Security Associates, Inc. will pay $79,880 to settle a pregnancy discrimination suit brought by the EEOC, which charged the company with unlawfully subjecting a security guard to pregnancy discrimination and then firing her in retaliation for complaining about it – in addition to firing her husband, a coworker, for supporting her in the matter.

[Press release]



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School not liable when it passed off sexual assaulter to another school where student was assaulted.
January 24, 2010 by Ross Runkel at LawMemo

The sad facts alleged in this case are that officials at School #1 knew one of its teachers had been sexually assaulting grade-schoolers, they did not report this, and instead they allowed the teacher to resign and get a new job at School #2.

Guess what? The teacher assaulted a student at School #2.

The student sued School #1 and its officials and lost. The 7th Circuit held that the student could get no legal help from either title IX or Illinois tort law.

Doe-2 v. McLean Cnty Unit Dist (7th Cir 01/22/2010)

Doe-2, a grade school student at Urbana school district, was sexually assaulted by a teacher. The teacher previously worked at McLean school district, where he had assaulted students. Doe-2 sued the McLean district and its officials, claiming its officials knew of the assaults, did not report them, and then allowed the teacher to resign and get a new job at Urbana. The 7th Circuit held that Doe-2 did not state a claim under Title IX or Illinois tort law.

(1) Doe-2 did not state a claim under Title IX. A student can recover damages from a school district for a teacher's sexual harassment, but only if the district had "substantial control over both the harasser and the context in which the known harassment occurs." Davis ex rel LaShonda D v. Monroe Cnty Bd of Educ, 526 US 629 (1999). Here, even if McLean officials knew of the risk of future assaults, they "lacked the requisite control over such harassment to incur Title IX liability" because they had no supervisory authority over the teacher after he ended his employment there.

(2) Doe-2 did not state a claim under Illinois tort law for willful and wanton misconduct for four reasons: (a) a person ordinarily has no duty to act affirmatively to protect another from criminal attack by a third person; (b) Illinois' child abuse reporting statute does not create any duty to the abused child when a person fails to report abuse; (c) McLean officials had no "special relationship" with Doe-2 that would trigger a legal duty to protect her; and (d) even though McLean officials may have foreseen a risk that the teacher would assault Urbana students, this did not create a duty to protect them, absent a special relationship.



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$55,177 awarded to transgender employee
January 15, 2010 by Ross Runkel at LawMemo

An ALJ with the New York Division of Human Rights has awarded $5,177 in back wages plus $50,000 in mental anguish damages to a transgender former employee of the New York State Thruway Authority.

The ALJ's order said that the work atmosphere encouraged other employees to engage in making disparaging remarks about her sex and gender identity disorder.

[Article]



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$1,505,000 settles sex and age discrimination suit
January 08, 2010 by Ross Runkel at LawMemo

EEOC and Arapahoe Motors d/b/a Ralph Schomp Automotive have settled a sex and age discrimination suit for $1,505,000.

EEOC claimed that five women were subjected to sex discrimination and a sexually hostile work environment, including offensive verbal comments and physical touching, demotion, refusal to transfer, salary reduction, and failure to promote.

EEOC also claimed that five older male employees were terminated because of their ages and replaced with younger, less experienced workers, and that a manager in his twenties made age-related comments prior to the terminations and younger employees with lower sales numbers were retained.

[Press release]



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$110,000 settles sexual harassment suit
January 08, 2010 by Ross Runkel at LawMemo

EEOC claimed that management and coworkers at a car dealership sexually harassed female employees.

The EEOC further charged that some women were repeatedly told that women should not be in the car business, and that when the women tried to complain about the daily verbal harassment, they suffered retaliation in the form of discipline, demotions and/or terminations.

The suit settled for $110,000 which was provided for nine claimants.

[Press release]



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