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Employees may speak to EEOC investigators without company counsel present
January 25, 2010 by Ross Runkel at LawMemo
The EEOC and Aerotek, Inc, an employment agency, have reached an agreement under which the company is instructing its non-supervisory recruiters that they may speak with EEOC investigators "privately and confidentially, without notifying Aerotek and without the presence of Aerotek’s legal counsel."
EEOC is investigating alleged employment discrimination, and the company had previously advised employees not to communicate with the EEOC without Aerotek’s counsel present.
EEOC press release:
EEOC Resolves Preliminary Injunction Action Against Aerotek, Inc. and Proceeds with InvestigationNational Employment Agency Tells Non-Management Recruiters They May Speak With EEOC Investigators Privately and Without Company Counsel Present
CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has finally resolved an application for a preliminary injunction by securing the agreement of a major national employment agency to reverse instructions which EEOC alleged were previously given to non-management employees not to communicate with the EEOC without Aerotek’s counsel present regarding an investigation of alleged employment discrimination.
In its application for a preliminary injunction filed in the U.S. District Court in Chicago on December 14, 2009, the EEOC alleged that Aerotek, Inc., the giant employment agency, had advised all of its recruiters in certain Chicago area offices not to speak independently with an EEOC investigator because, according to Aerotek, all of its recruiters were supervisors. The EEOC stated in its application it had obtained declarations refuting that contention and that Aerotek’s communications with its non-supervisory recruiters were interfering with the EEOC investigation of alleged discrimination at Aerotek (EEOC v. Aerotek, Inc., N.D. Illinois No. 09-cv-07740, J. Conlon, 1/19/2010).
An evidentiary hearing on the EEOC application began on January 12, 2010, before U.S. District Judge Suzanne Conlon of the Northern District of Illinois in Chicago. However, after the EEOC’s first witness—an EEOC investigator—the hearing was adjourned to permit the EEOC and Aerotek to attempt to negotiate a voluntary resolution. As a result of these negotiations, Aerotek agreed to advise its non-supervisory recruiters who had received its earlier communication, in part, as follows:
“You may be contacted by Mr. Eric Lamb or another member of the Chicago EEOC in connection with an ongoing investigation of a complaint of discrimination. Please be advised that in your current role at Aerotek it is your right to speak, or not to speak, with the EEOC. Should you choose to speak with the EEOC, you may do so privately and confidentially, without notifying Aerotek and without the presence of Aerotek’s legal counsel. At no time will any adverse action be taken against you by Aerotek based on whether or not you choose to speak to the EEOC.”
Upon reaching agreement with Aerotek the EEOC filed a motion seeking leave to withdraw its application for preliminary injunction which was granted by Judge Conlon on January 19. Also on January 19, Aerotek’s attorneys advised the EEOC that the above communication would “be sent out [January 20] to the non-supervisory recruiters in [Aerotek’s] Rockford, Schaumburg, and Crystal Lake, [IL] facilities who were previously advised that communications with EEOC were to be through counsel.”
EEOC Regional Attorney John Hendrickson in Chicago said, “Responsible employers understand that they have nothing to gain by attempting to interfere with EEOC investigations. Interfering employers frequently end up only shooting themselves in the foot, and the EEOC investigation goes forward in any event. The controlling principles are clear: The law permits the EEOC to speak directly with non-management employees outside of the presence of employers and their counsel, and the law protects the employees who speak with the EEOC from retaliation. When those principles appear to be in jeopardy, the EEOC will take appropriate action.”
Aerotek, with corporate headquarters in Hanover, Md., states on its web site that it has over 150 offices in the United States, Puerto Rico and Canada.
The EEOC investigation of Aerotek is being managed by EEOC District Director John Rowe in Chicago. Supervisory Trial Attorney Diane Smason and Trial Attorney Laura Feldman are on the EEOC litigation team.
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 prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.
EBSA final rule
January 15, 2010 by Ross Runkel at LawMemo
The Employee Benefits Security Administration (EBSA) has issued a final rule providing a safe harbor period to “provide a higher degree of compliance certainty with respect to when an employer has made timely deposits of participant contributions to employee benefit plans with fewer than 100 participants.”
Ledbetter Act apply to demotions and promotions?
February 11, 2009 by Ross Runkel at LawMemo
I have previously argued that the Lilly Ledbetter Act would not apply to a decision not to promote an employee. Will the Lilly Ledbetter Act of 2009 really matter? Ask George Jackson.
Michael Fox at Jottings By An Employer's Lawyer is sounding the alarm bell, suggesting that judges will indeed apply the Act to decisions on promotion and demotion.
He points to the key language of the Act (and that is always the place to start). I’ll give you just a part:
when an individual is affected by application of a discriminatory compensation decision or other practice
Michael fears that the words “or other practice” will be read to include “all types of employment decisions that affect pay beyond a simple decision on wages, including demotions and promotions.”
OK, we have two nouns: (1) decision, and (2) other practice.”
And we have one adjective: compensation.
My argument is simple: the single adjective “compensation” modifies both nouns. Therefore, whatever the “other practice” may be, it must be a compensation practice.
President to sign Lilly Ledbetter Fair Pay Act of 2009 on January 29.
January 27, 2009 by Ross Runkel at LawMemo
On January 29 the President is scheduled to sign the Lilly Ledbetter Fair Pay Act of 2009, which amends Title VII, the ADEA, the ADA, and the Rehabilitation Act.
The Act will re-start the statute of limitation for claims of discrimination in compensation each time wages or benefits are paid, when an individual is affected by a previous discriminatory decision or practice.
The key language:
"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."
Effective date:
"This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation ... that are pending on or after that date."
Text of the statute: http://www.lawmemo.com/docs/congress/s181.pdf
Lilly Ledbetter Fair Pay Act of 2009 awaits President's signature
January 22, 2009 by Ross Runkel at LawMemo
Today the Senate passed the Lilly Ledbetter Fair Pay Act of 2009. It has already passed the House. It awaits the President's signature.
The full text:
To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Lilly Ledbetter Fair Pay Act of 2009'.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.
(3) With regard to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit an aggrieved person's right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination.
(4) Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid.
SEC. 3. DISCRIMINATION IN COMPENSATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.
Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended by adding at the end the following:
`(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
`(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.'.
SEC. 4. DISCRIMINATION IN COMPENSATION BECAUSE OF AGE.
Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) is amended--
(1) in the first sentence--
(A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and
(B) by striking `(d)' and inserting `(d)(1)';
(2) in the third sentence, by striking `Upon' and inserting the following:
`(2) Upon'; and
(3) by adding at the end the following:
`(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.'.
SEC. 5. APPLICATION TO OTHER LAWS.
(a) Americans With Disabilities Act of 1990- The amendments made by section 3 shall apply to claims of discrimination in compensation brought under title I and section 503 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 12203), pursuant to section 107(a) of such Act (42 U.S.C. 12117(a)), which adopts the powers, remedies, and procedures set forth in section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5).
(b) Rehabilitation Act of 1973- The amendments made by section 3 shall apply to claims of discrimination in compensation brought under sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794), pursuant to--
(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g), 794(d)), respectively, which adopt the standards applied under title I of the Americans with Disabilities Act of 1990 for determining whether a violation has occurred in a complaint alleging employment discrimination; and
(2) paragraphs (1) and (2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as amended by subsection (c)).
(c) Conforming Amendments-
(1) REHABILITATION ACT OF 1973- Section 505(a) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)) is amended--
(A) in paragraph (1), by inserting after `(42 U.S.C. 2000e-5 (f) through (k))' the following: `(and the application of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims of discrimination in compensation)'; and
(B) in paragraph (2), by inserting after `1964' the following: `(42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation)'.
(2) CIVIL RIGHTS ACT OF 1964- Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is amended by adding at the end the following:
`(f) Section 706(e)(3) shall apply to complaints of discrimination in compensation under this section.'.
(3) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967- Section 15(f) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(f)) is amended by striking `of section' and inserting `of sections 7(d)(3) and'.
SEC. 6. EFFECTIVE DATE.
This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.
25 words on Federal Express Corp v. Holowecki
February 27, 2008 by Ross Runkel at LawMemo
In Federal Express Corp v. Holowecki (US Supreme Court 02/27/2008) (7-2) the Supreme Court came to grips with a long-standing legal question: Whether an employee alleging discrimination gets the ball rolling (and stops the statute of limitations) by filing what the EEOC calls an "intake questionnaire." The answer is "Yes."
The Supreme Court decision in 25 words:
EEOC's "intake questionnaire" can serve as a "charge," because the statute doesn't define "charge" and EEOC regulations fill in the gaps in a reasonable way.
The Official Syllabus:
The Age Discrimination in Employment Act of 1967 (ADEA) requires that "[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission" (EEOC), 29 U. S. C. §626(d), but does not define the term "charge." After petitioner delivery service (FedEx) initiated programs tying its couriers' compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 "Intake Questionnaire" and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent's action, contending she had not filed the "charge" required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx's motion. The Second Circuit reversed.
Held:
1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a "charge" under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.
(a) There is little dispute that the EEOC's regulations-so far as they go-are reasonable constructions of the statutory term "charge" and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: "charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act." Section 1626.8(a) identifies information a "charge should contain," including: the employee's and employer's names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of §1626.6-i.e., if it is "in writing and ... name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s)." That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter.
(b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is " ' plainly erroneous or inconsistent with the regulation,' " Auer v. Robbins, 519 U. S. 452 . The Court accords such deference to the EEOC's position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6's requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations' structure is less than clear, the relevant provisions are grouped under the title, "Procedures-Age Discrimination in Employment Act." A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge.
(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights.
(d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency's policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a "measure of respect" under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency's implementation has been uneven; e.g., its field office did not treat respondent's filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3).
(e) FedEx's view that because the EEOC must act "[u]pon receiving ... a charge," 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . Moreover, because the filing of a charge determines when the ADEA's time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 . Pp. 12-13.
2. The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.
(a) Respondent's completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to "force [FedEx] to end [its] age discrimination plan." FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: "I have been ... assur[ed] by [the EEOC] that this Affidavit will be considered confidential ... and will not be disclosed ... unless it becomes necessary ... to produce the affidavit in a formal proceeding." This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a "formal proceeding." Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge.
(b) Because the EEOC failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance.
440 F. 3d 558, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.
Supreme Court: Is intake questionnaire an EEOC "charge"?
November 04, 2007 by Ross Runkel at LawMemo
Circuit courts are split as to whether filing an intake questionnaire qualifies as filing a "charge" with the EEOC. Filing a timely charge is required before taking an ADEA case to court.
Tuesday, November 6, 2007 the US Supreme Court will hear oral arguments on this question in Federal Express v. Holowecki [click here for details and all briefs.]
Plaintiff Patricia Kennedy filed an EEOC Intake Questionnaire plus a four-page verified affidavit detailing her claims of age discrimination.
The EEOC did not assign a case number, did not investigate or attempt to resolve the matter, and did not notify the employer.
The trial court dismissed her later law suit for failure to exhaust EEOC remedies as required by the Age Discrimination in Employment Act (ADEA).
The 2nd Circuit reversed, holding that Kennedy's filing (1) contained the information required by the statute and by the EEOC's interpreting regulations, and (2) demonstrated Kennedy's intent to activate the EEOC's administrative process. The US Supreme Court granted certiorari to review the 2nd Circuit's judgment.
The government has filed an amicus brief and will argue in favor of the respondents (employees).
My view: An easy win for the respondents-plaintiffs-employees.
The best summary of what I think will be the prevailing argument is contained in the amicus brief filed by the government:
- In answering the question presented, the Court should follow the framework set forth in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). The first inquiry under Chevron is "whether Congress has directly spoken to the precise question at issue." Id. at 842. The answer to that question is no, because the ADEA does not define or otherwise provide concrete guidance as to the meaning of "charge."
- Because Congress has not directly spoken to the question of what is a "charge," resolution of this case turns on whether the agency has adopted "a permissible construction of the statute." Chevron, 467 U.S. at 843. It has.
- The EEOC's administrative interpretation of "charge" is entitled to deference. The agency's interpretation is consistent with the text and object of the ADEA and gives "specificity to a statutory scheme that the [Commission is] charged with enforcing and reflect[s] the considerable experience and expertise that the [EEOC] ha[s] acquired over time with respect to the complexities of" dealing with the wide variety of submissions it receives from members of the public.
- Respondent's December 3, 2001, submission constitutes "a charge alleging unlawful discrimination" under the ADEA. There is no dispute that respondent's submission complies with all of the regulatory requirements as to a charge's form and content. In addition, respondent's intake questionnaire and accompanying affidavit objectively manifest an intent to make a formal accusation of unlawful age discrimination against petitioner. In particular, on the intake questionnaire respondent specifically gives consent for the EEOC to disclose her identity to petitioner, and that document was accompanied by a five-page notarized affidavit that details the alleged discrimination and asks the EEOC to "force [petitioner] to end [such] discrimination." That submission clearly and objectively manifests an intent to make a formal accusation of unlawful age discrimination.
- The fact that the EEOC failed to fulfill its notice and conciliation duties upon receiving respondent's charge does not transform that charge into something else, and it does not bar respondent's suit.
The parties' briefs have interesting arguments about what is "fair" and what the employee's "intent" was. Sorry folks; I don't think it matters. This case is about the statutory definition of "charge" and whether the EEOC's interpretation of "charge" is reasonable and entitled to deference.
"Me too" case at the Supreme Court
June 11, 2007 by Ross Runkel at LawMemo
Ellen Mendelsohn claimed Sprint fired her because of her age during a company-wide reduction in force. She lost a jury trial. Mendelsohn claims that the trial court improperly excluded testimony from other former Sprint employees that they experienced similar discrimination during the same reduction in force.
The 10th Circuit held that because this evidence was excluded, Mendelsohn did not have a full opportunity to present her case to the jury. Therefore, the 10th Circuit ordered a new trial.
The US Supreme Court granted certiorari on June 11, 2007 to review the 10th Circuit's judgment. Sprint/United Management Company v. Mendelsohn. [Details; certiorari briefs]
The Question Presented by the certiorari petition:
This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by non-parties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.The Tenth Circuit panel majority held that a court commits reversible error by excluding "me, too" evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held "me, too" evidence wholly irrelevant. Five circuits have that "me, too" evidence may be excluded under Federal Rule of Evidence 403. Granting certiorari will resolve the conflict between the circuit courts of appeals on this important question of law.
Oral arguments will be scheduled for October 2007 or later.
Paul Secunda at Workplace Prof Blog is predicting that Sprint will win this one.
Some Reflections on the Ledbetter Decision
May 29, 2007 by Ross Runkel at LawMemo
"Some Reflections on the Ledbetter Decision" is the title of Paul Secunda's post at Workplace Prof Blog. He argues that today's decision in Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007) was wrong.
Professor Secunda has an excellent analytical eye, and has a thoughtful and generous nature, so I enjoy jousting with him.
I thought the decision was correct, and was surprised only by the fact that four Justices didn't think so.
Paul is quite correct when he says that the main question is: "Is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment?"
I jump off Paul's wagon when he says pay discrimination decisions are more like hostile environment claims than they are like a discrete act such as a termination or demotion. Quoting Paul: "As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do."
Not so. In the Ledbetter case, a pay decision was made once a year, and then implemented via paychecks. One single decision. In a hostile environment case, the claim by its very nature involves a cumulation of several events that have to be added together before the environment is sufficiently hostile for a claim to arise.
It's the difference between "wham" (pay raise) and "drip, drip, drip" (hostile environment).
I think Paul and the Supreme Court dissenters have shifted the focus to the difficulty of discovery. If everyone else's pay rate is a secret, then of course it is difficult to discove a discriminatory pay increase. But the same is true in many discharge and promotion cases. It often is difficult to discover that one gender or race has been treated differently than another, and then difficult to discover the reason for the different treatment. That has never had any effect on the statute of limitations.
Ledbetter loses pay discrimination case
May 29, 2007 by Ross Runkel at LawMemo
Title VII's statute of limitations begins when a discriminatory pay decision was made and communicated to the employee, and does not start over with each later paycheck.
So says the US Supreme Court in a 5-4 decision announced this morning.
Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007)
Lilly Ledbetter claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews, which she claimed were made with discriminatory intent. A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years. The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed. The US Supreme Court affirmed.
The Supreme Court held that Title VII's statute of limitation period (180 or 300 days) begins to run when "each allegedly discriminatory pay decision was made and communicated to her." The Court rejected Ledbetter's argument that each subsequent paycheck was a separate act of discrimination, and her argument that the most recent decision was unlawful because it carried forward intentionally discriminatory disparities from prior years.
My view: This is the correct decision, following the reasoning that I predicted back in November.
Wal-Mart class action approved
February 06, 2007 by Ross Runkel at LawMemo
The 9th Circuit has approved a 1.5 million member class action in a Title VII case brought by current and former employees. Let the litigation begin.
The case: Dukes v. Wal-Mart (9th Cir 02/06/2007)
The capsule: 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 affirmed (2-1), using a highly deferential "abuse of discretion" standard of review.
The class was certified under Rule 23(a) and (b)(2).
Rule 23(a): 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 corporate-wide practices and policies of excessive subjectivity in personnel decision and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. The court found the claims to be typical even though the only class representative for managers holds a low level position. The court found adequate representation even though there are in-store managers who are both class members and decision-making agents of the employer.
Rule 23(b)(2): In order to qualify under Rule 23(b)(2), plaintiffs' claims for injunctive and declaratory relief must predominate over their claims for monetary relief. The court rejected the employer's argument that monetary claims predominate, saying that this issue turned on "plaintiffs' intent in bringing the suit."
Individualized hearings: The employer argued that it was entitled to an individualized hearing for each member's claim, based on case law, Title VII, the Civil Rights Act of 1991, 42 USC Section 1991a, and the due process clause. The court rejected these arguments, noting that some of them can be raised at the merits stage.
The DISSENT argued that the class lacks commonality and typicality. In addition, if the named plaintiffs were zealously represented, then their interests would diverge and require separate counsel. Finally, the dissent argued that both the Civil Rights Act of 1991 and the due process clause "require more individual justice than Wal-Mart will receive."
When charging party refuses to cooperate with EEOC
July 31, 2006 by Ross Runkel at LawMemo
If a charging party refuses to cooperate with an EEOC investigation, can she still bring a court case? Circuits are split.
The 10th Circuit has said either cooperate or you can't sue. Shikles v. Sprint/United Management (10th Cir 2005). Quoting the 10th Circuit:
We hold that (1) the ADEA requires a private sector claimant to cooperate with the EEOC in order to exhaust his or her administrative remedies; (2) a plaintiff's exhaustion of administrative remedies is a jurisdictional prerequisite to suit under the ADEA; and (3) a plaintiff's failure to exhaust his or her administrative remedies does not justify granting summary judgment to the defendant, but rather justifies dismissing the case for lack of jurisdiction.
The 7th Circuit disagrees. You can sue even if you didn't cooperate with the EEOC investigation. Doe v. Oberweis Dairy (7th Cir 07/28/2006).
In the Doe case (involving Title VII) the 7th Circuit pointed out that the text of Title VII does not require a charging party to cooperate. In addition, EEOC regulations do not make cooperation a condition of the charging party's being able to sue.
My view: It's always nice to see a court (here, the 7th Circuit) that can read a statute and a regulation rather than making up its own rules.
More discussion of this: Statutory Rape and Title VII -- But Much More from the 7th Circuit from Jottings By An Employer's Lawyer
Must employer front-end employee's attorney fees when employer sues employee?
July 26, 2006 by Ross Runkel at LawMemo
It seems improbable that an employee can require an employer to advance litigation costs in a suit by the employer against the employee.
This is exactly what might have to happen in a case in which the employer claims that the employee unlawfully deleted material from a laptop computer in violation of the federal Computer Fraud and Abuse Act.
The employment contract contained provisions requiring the employer to pay any expenses incurred in successfully defending suits "based on acts performed in connection with the company's business."
The employer sued the employee in federal court, and then the employee sued in state court seeking an order compelling the employer to advance him money for attorney fees and other expenses incurred in defending against the employer's suit.
Then the employer asked the federal court to enjoin the state suit.
No dice, says the 7th Circuit. Intl Airport Centers v. Citrin (7th Cir 07/25/2006).
Class action removal - "less" means "more"
May 28, 2006 by Ross Runkel at LawMemo
An employer removes a state court class action case to federal court under the Class Action Fairness Act (CAFA), and that court denies a motion to remand to state court.
CAFA says the plaintiffs can appeal by filing an application "not less than" 7 days after entry of the order.
The 9th Circuit says "not less than" means "not more than" 7 days.
Amalgamated Transit Union v. Laidlaw Transit (9th Cir 01/26/2006).
The 9th Circuit has now denied an en banc rehearing in that case. Six judges filed a dissent arguing that a court has no business rewriting the statute merely because the way it was actually written is "illogical." Amalgamated Transit Union v. Laidlaw Transit (9th Cir 05/22/2006).
| Employment Law Memo notified its readers about this case on 05/26/2006. |
Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005), reached the same result, opining that there was a typographical error.
Title VII's 15-employee threshold is not jurisdictional
February 22, 2006 by Ross Runkel at LawMemo
Arbaugh v. Y & H Corp (US Supreme Court 02/22/2006): The US Supreme Court holds (unanimously) that Title VII's definition of "employer," which includes only those having "fifteen or more employees" is matter going to the substantive ingredients of a Title VII claim for relief, and is not a matter that affects federal court subject-matter jurisdiction.
Arbaugh sued in federal court under Title VII and state tort law. After a jury verdict for Arbaugh, the trial court granted summary judgment for the defendants and vacated the verdict because the defendant corporation did not employ 15 or more employees and thus was not an "employer" under Title VII. The 5th Circuit affirmed. The US Supreme Court reversed the 5th Circuit decision.
So what?
- If a federal court lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety. That would mean the court would lose jurisdiction over both the Title VII case and the state law case (over which the federal court has supplemental jurisdiction).
- A subject matter jurisdiction question can be raised at any time (even on appeal) and can be raised by the court even if the parties do not raise it. Because the 15-employee threshold goes to the merits, it has to be raised by the defendant or it is waived, and it has to be raised prior to the close of trial on the merits.
Religion discrimination complaint was OK
February 11, 2006 by Ross Runkel at LawMemo
Rule 8(a), Federal Rules of Civil Procedure, does not require an employee to plead all the elements of a prima facie case.
When Christopher Kolupa got fired, he sued claiming it was because of his religion - a violation of Title VII. A federal district judge dismissed the complaint for failure to state a claim (Rule 12 (b)(6)), but the 7th Circuit reversed. Kolupa v. Roselle Park District (7th Cir 02/10/2006).
The district judge required:
"that the complaint allege facts corresponding to each aspect of a 'prima facie case' under Title VII. The judge summarized what plaintiffs must prove to make out a prima facie case of religious discrimination and then faulted the complaint for omitting some points. One aspect of a prima facie case is that the employer treated differently persons who are similarly situated except with respect to the protected attribute (race, sex, religion, and so on). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The district judge wrote that this complaint is defective because, although Kolupa 'attempts to describe several situations where other Roselle Park District employees allegedly were treated more favorably than [Kolupa], he fails to allege that the employees were similarly situated in their conduct or that any of the [other] employees were [sic] outside of his protected class.' The judge did not explain why a complaint must include such allegations (let alone why a plaintiff must use the indirect McDonnell Douglas method even though direct proof may be available)."
The 7th Circuit Court of Appeals said:
"It is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate. A full narrative is unnecessary. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . ..
"The question presented in Swierkiewicz was whether the complaint in a Title VII case must include factual allegations corresponding to each aspect of a prima facie case; the Court held that it need not, writing that '[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.' 534 U.S. at 510. Yet the district court dismissed Kolupa’s complaint on the same ground that Swierkiewicz had disapproved. The [Supreme] Court held, and we reiterate, that complaints need not plead facts and need not narrate events that correspond to each aspect of the applicable legal rule. Any decision declaring 'this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b)."
[Read the Swierkiewicz complaint.]
Statute means the exact opposite of what it says
January 28, 2006 by Ross Runkel at LawMemo
"Not less" means "not more." A statute's clear text means the opposite of what it says.
The federal Class Action Fairness Act (CAFA) allows a party to remove certain state-court class-action cases to federal court. Once removed, it is typical that there will be a motion to remand to state court. However the federal trial court rules, that ruling is appealable "not less than 7 days after entry of the order." There are now two federal Circuit courts that have decided that "not less than 7 days after" actual means the opposite: "not more than 7 days after."
A union and 15 employees sued the employer in state court for violation of California's meal and rest period laws. The employer removed the action to federal court, on the basis of (among other things) "class action" or "mass action" diversity jurisdiction under the Class Action Fairness Act (CAFA). The plaintiffs moved to remand the action to state court, but the trial court denied the motion on the basis that class action diversity jurisdiction existed. The plaintiffs appealed that order, and the employer moved to dismiss. The 9th Circuit denied the motion. Amalgamated Transit Union v. Laidlaw Transit (9th Cir 01/26/2006).
28 USC Section 1453(c)(1) of CAFA provides that "...a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order."
The 9th Circuit held that "Federal Rule of Appellate Procedure [FRAP] 5 governs the initiation of such appeals, and ... the petition for permission to take an appeal must be filed not more than seven court days after the district court's order."
The court noted that although Section 1453(c)(1) provides that an application may be made "not less" than 7 days after entry of the order, it should be read as requiring that an application be made "not more" than 7 days after entry of the order. The court agreed with the 10th Circuit's determination that inclusion of the phrase "not less" in Section 1453(c)(1) was a typographical error (Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir 2005)).
The court also concluded that "because the statute does not specify the deadline as calendar days, we construe the seven days as court days, thereby excluding intermediate weekends and holidays."
The court ultimately denied the employer's motion to dismiss the appeal, stating "we construe the timely notice of appeal and the late petition for permission to appeal as one timely petition satisfying the requirements of FRAP"
Federal employees' access to federal courts
December 04, 2005 by Ross Runkel at LawMemo
The US Supreme Court hears oral arguments December 5 in Whitman v. Department of Transportation (No. 04-1131).
Whitman sued in federal court claiming his employer, the Federal Aviation Administration, disproportionately tested him for substance abuse in violation of the first amendment and a federal statute. The trial court held it had no subject matter jurisdiction; the 9th Circuit affirmed; the US Supreme Court granted certiorari to review the 9th Circuit decision.
The 9th Circuit reasoned that the Civil Service Reform Act (CSRA) generally does not allow federal court suits. The CSRA requires collective bargaining agreements to include procedures for resolving "grievances" such as Whitman's claims. Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances." The 1994 amendment added one word: "shall be the exclusive ADMINISTRATIVE procedures for resolving grievances." The 9th Circuit said the amendment "does not constitute an express grant of federal court jurisdiction."
Decision below: Whitman v. Department of Transportation (9th Cir 08/30/2004)
Briefs: http://www.lawmemo.com/docs/us/whitman/
Cooperate with the EEOC or lose your case
October 21, 2005 by Ross Runkel at LawMemo
If you file a charge with the EEOC, and then fail to cooperate with the EEOC investigation, expect to lose your case when you go to court.
Davis Shikles, claiming his employer violated the Age Discrimination in Employment Act (ADEA), filed a charge with the EEOC.
Over the course of the next three months, Shikles and his attorney cancelled three scheduled telephone interviews with the EEOC investigator assigned to his case, failed repeatedly to return the investigator's telephone calls, and failed to submit information requested by the investigator. As a result, Shikles never provided the investigator with any information on his claim of discrimination beyond that contained in his initial EEOC charge.
The 10th Circuit concluded that Shikles had a duty to cooperate with the EEOC investigation, that failure to do so was a failure to exhaust administrative remedies, and the court lacked jurisdiction to hear his case.
- even though the statute does not require a claimant to cooperate
- even though the EEOC filed a brief saying such cooperation was not required
Shikles v. Sprint/United Management Co (10th Cir 10/20/2005).
My view: It all makes sense, of course. However, I dislike court decisions that have no statutory foundation.
False Claims Act retaliation claim statute of limitations
June 20, 2005 by Ross Runkel at LawMemo
The US Supreme Court says the statute of limitations for False Claims Act retaliation claims is the most analogous state statute. Graham County Soil v. US ex rel Wilson (US Supreme Court 06/20/2005).
Wilson sued under the federal False Claims Act (FCA) claiming her employer retaliated against her for alerting federal officials to purported fraud and for cooperating with the ensuing investigation. The trial court dismissed the suit as untimely under the state's 3-year statute of limitations; the 4th Circuit reversed, applying the FCA's 6-year limitation period; the US Supreme Court reversed.
The US Supreme Court held: The appropriate statute of limitations in a False Claims Act retaliation case is the most closely analogous state statute, not the 6-year period stated in the FCA.
My view: (1) Typically state statutes of limitations will be shorter than six years. (2) Plaintiffs often join a retaliation claim with a qui tam action in the Government's name (hoping to collect a portion of the ill-gotten gains). The qui tam claim will governed by the federal six-years statute of limitations.
EEOC notice not posted might toll tardy filing
June 02, 2005 by Ross Runkel at LawMemo
Two former employees filed EEOC charges late, but still might be able to sue under Title VII if the employer did not post EEOC notices.
Title VII says EEOC charges must be filed within 300 days of the alleged unlawful practice. Title VII also requires employers to post a notice approved by the EEOC. The employees clearly filed after the 300 day period. However, the employees claimed the employer did not post the notice.
The 300 day filing period is subject to equitable tolling. The trial court thought that tolling takes place only when the employee is "actively misled" by the employer. Not so, said the 1st Circuit. Mercado v. The Ritz-Carlton (1st Cir 05/31/2005).
"An employer's violation of the EEOC posting requirement may provide a second basis for an extended filing period 'where the employee had no other actual or constructive knowledge of [the] complaint procedures.'"
The court listed a bunch of factual questions that the trial court will have to sort out: Did the employees have actual knowledge of their Title VII rights? Did they have constructive knowledge? Did the employer in fact post the notice? Did the employee handbook provide notice? Why did the employees wait 10 months to see a lawyer? Although the employees saw a lawyer before the 300 days ran (one day and ten days, respectively), why were EEOC charges not filed until 33 days later? Was the employer prejudiced by the delay? And when, exactly, did the 300 day period begin?
My view: (1) Employers should post the EEOC notices. (2) Employees should file with the EEOC in a timely manner.
From another blog: Michael Fox's Jottings By An Employer's Lawyer [here].
Skimpy EEOC charge was good enough
May 04, 2005 by Ross Runkel at LawMemo
Does an EEOC charge really have to state facts as to harassment in order to bring a Title VII suit? Maybe not, according to the 11th Circuit.
Freddy Green's pro se EEOC charge checked the box for race discrimination and gave one single date for both the "earliest" and "latest" dates. As for factual particulars he wrote:
I. I was employed from March 7, 1995 until my discharge January 2, 2001. I was terminated for violation of the attendance policy, but I have no written warnings for attendance. White males that have written warnings and have committed further violations were not terminated.II. Management stated I was discharged because of violation of the attendance policy.
III. I believe that I have been discriminated against because of my race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
When Green sued for both racially discriminatory (a) discharge and (b) harassment, the trial court found enough evidence of both, but ruled that his EEOC charge was procedurally defective as to the harassment claim. Green won a jury verdict on the discharge claim, and appealed from the denial of the harassment claim.
The 11th Circuit ruled (2-1) that the harassment claim could go forward. Green v. Elixir Industries (11th Cir 04/29/2005). The court said Green's harassment and discharge claims were "inextricable intertwined," pointing to pre-discharge harassment facts that were introduced as evidence of the employer's motive for the discharge. The reasoning: if this evidence was "related to" the discharge claim, then it was "related to" the harassment claim.
In addition, the EEOC charge mentioned race discrimination, which racial harassment clearly is. The court also emphasized that one purpose of the EEOC charge is to put the employer on notice of the allegations, and the person who was responsible for the discharge was intimately familiar with the alleged harassing conduct.
The dissent said Green failed to allege facts sufficient to inform the EEOC that he was complaining of hostile work environment. "Green's EEOC charge does not allege a single fact that reasonably could have been expected to prompt the EEOC to investigate a charge of hostile work environment."
My view: This case takes the rules to the outer limit.
There really was nothing in the EEOC charge that would suggest to the EEOC that Green had a harassment claim. Indeed, the statement of a single date plus Green's emphasis on discharge would suggest that harassment was not an issue.
Therefore, if the purpose of an EEOC charge is to allow the EEOC to investigate and try to resolve claims without law suits, then the charge was woefully defective.
If, however, the purpose of the EEOC charge is to put the employer on notice, you could look at it two ways. One is what the majority said, which is that the employer's decision maker knew all the harassment facts and didn't need to be told. The other is that Green's failure to even hint at harassment meant that he was not making a harassment claim.
I don't expect to see other Circuits following this decision.
Class Action Fairness Act does not apply . . .
April 14, 2005 by Ross Runkel at LawMemo
. . . to pending state cases that are removed after the effective date of the Act.
A class action claiming violation of state law overtime requirements was pending in state court at the time the Class Action Fairness Act of 2005 went into effect on February 18, 2005.
The employer removed the case to federal court under the Act's provision that expanded the subject matter jurisdiction of federal courts to cover class actions in which at least one plaintiff class member is diverse in citizenship from the defendant and where the amount in controversy exceeds $5 million.
The federal district court remanded the case back to state court. The 10th Circuit agreed that federal courts have no jurisdiction. Pritchett v. Office Depot (10th Cir 04/11/2005).
Section 9 of the Act provides that "[t]he amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act."
Pritchett's case was filed in state court prior to the effective date of the Act, but the employer's petition for removal was filed after the effective date of the Act. The employer argued that Pritchett's case was "commenced" under Section 9 as of the date that it was removed to federal court. Pritchett argued that the case was "commenced" under Section 9 as of the date it was filed in state court. The court agreed with Pritchett, observing that "[t]raditionally, a cause of action is commenced when it is first brought in an appropriate court, which here was when it was brought in state court.... When a matter is removed to federal court, it is not traditionally viewed as recommenced, nor as a new cause of action."
My view: A strained argument by the employer. The court knows how to read a statute.
Two tales of failure to exhaust administrative remedies
March 09, 2005 by Ross Runkel at LawMemo
Today's Employment Law Memo from LawMemo.Com tells two tales of employees who went to court without exhausting their administrative remedies. In one case it was a failure to include all his claims in his EEOC charge, and in the other it was a failure to use the employer's internal remedies.
In Parisi v. Boeing (8th Cir 03/07/2005) The Boeing Company was selling its plant and laid off many employees, including Parisi, on January 12, 2001. Parisi filed an EEOC charge on July 23 alleging that Boeing violated the ADEA by laying him off and by refusing to rehire him (both took place January 12). OK, one refusal to rehire. When he sued in federal court, Parisi claimed Boeing had failed to rehire him not just once, but on 94 occasions - all later. One problem. Parisi never mentioned these 94 incidents in his EEOC charge. The 8th Circuit held that each failure to rehire was a separate incident that was not "reasonably related" to what was in his EEOC charge. Claims dismissed. Message to plaintiffs: Tell everything in the EEOC charge. File an amended charge or an additional charge if you need to.
Campbell v. Regents of University of California (California 03/07/2005) involved a university employee bringing a whistleblower suit under California statutes. The university was set up by the state constitution with "quasi-legislative powers." The court held that the university exercised those powers when it adopted a formal Policy that required that a whistleblower's complaint be filed under that Policy. The employee did not file a complaint under the Policy. The California Supreme Court wrote a lot of words, as usual, and unanimously concluded that the employee "should have exhausted the university administrative remedies before proceeding to court." Judgment for the university.
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