Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan.  She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class.  She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school.  She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act.  She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures.  In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy.  Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way."  Justice Roberts further wrote that:  "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."  The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense.  The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception.  Future cases will be need to be decided by the courts based on the specific facts of each situation. 

Practice pointer.  This lawsuit was brought on behalf of Ms. Perich by the EEOC.  The Obama administration argued in support of Ms. Perich.  In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:"  Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan.  A copy of the entire 39 page opinion can be found at the NYTimes. 

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As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year.  2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56.  A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012.  All employers are required to use E-Verify on or before April 1, 2012.  At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56.  In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward.  I will continue to post on my blog as the case winds it way through the courts. 

NLRB.  A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012.  I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions.  In August, 2010, I posted an entry entitled "The Case that Never Ends".  Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment.  The court previously held in favor of Tyson.  Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000.  Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism.  The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery.  The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon. 

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder.  Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder.  He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female.  Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition.  The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim.  On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination.  It should be noted that  the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees.  2 articles caught my attention today concerning theft by employees.  This continues to be a problem for all employers.  First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility,  pleaded guilty to stealing over $600,000 of computer software.  Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000. 

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store.  An internal investigation reveals that the thefts occurred over the last 6 months.  Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me.  They must have charged like full price for everything, and doubled the sales tax".  He admits that he only pocketed $800 during the 6 month crime spree. 

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As we approach the end of the 2011 Fiscal Year, September 30, the EEOC is once again busy filing suits around the country.  This year, the focus appears to be on the ADA, with over 20 suits being filed over the last 2 months.  These suits include claims involving the following disabilities:  Cerebral Palsy (McDonald's), Alcoholism (Old Dominion Freight Lines), Deafness (McCormick & Schmick's), Asthma (Insource Performance Solutions, LLC and LeGrand North America, Inc.), Epilepsy (Buy-Rite Thrift Store), Blindness (Bank of America and ITT Tech), End Stage Renal Disease (G2 Secure Staff, LLC), Traumatic Brain Injury (Outback Steakhouse), Psoriatic Arthritis (The Scooter Store), Cancer (SITA Information Networking Computing USA and The Area IV Senior Citizens Planning Council, Inc.), Gastro-Intestinal condition (Ford Motor Company), Diabetes (Kohl's Department Stores), Multiple Sclerosis (National HealthCare Corporation), a Double Amputee (J.A. Thomas and Associates), Fibromyalgia (The Children's Hospital in Colorado)and Hearing Impaired (Jewish Community Center of Greater Washington).  As you can tell, these lawsuits have been filed against companies big and small, for profit and non-profit, across the country and in many different industries.  These lawsuits come on the heels of a $75,000 settlement reached between the EEOC and Starbucks as the result of a dwarf barista, who needed a stepladder or stool to reach the coffee machines, who was fired after 3 days on the job. For a complete listing of 2010 press releases by the EEOC, you can visit their website.

Yesterday, in Texas, the EEOC filed a lawsuit against Bass Pro Shops alleging that stores in Houston, Louisiana and Alabama illegally discriminated against Black and Hispanic workers and job applicants, and retaliated against employees who raised questions and destroyed records.  The investigation began 6 years ago, and in April, 2010, the EEOC issued a Cause Determination finding that Bass discriminated against its' employees and applicants.  After attempting to negotiate a resolution since then, which was not successful, the EEOC filed its' lawsuit. 

Practice pointer.  The EEOC continues to be very aggressive in pursuing lawsuits around the country alleging numerous causes of action over which they have jurisdiction.  Getting sued by the EEOC is expensive, time consuming and can lead to negative publicity.  When an employer receives notice of a charge, it is important that the company take the appropriate steps to protect itself, from conducting an investigation, taking the appropriate corrective actions if necessary, responding to the charge in the proper manner, and treating the process with the time and attention it needs.  Failure to do so can lead to a disaster.

E-Verify.  Recently, I gave a presentation to the Greater Birmingham Apartment Association.  The use of E-Verify must be consistent with the Memorandum of Understanding (MOU) signed by the employer, Department of Homeland Security and the Social Security Administration.  One of the requirements in the MOU is that E-Verify cannot be used until after the employee is hired.  One of the attendees indicated that they use a third party to do background checks, criminal checks and use E-Verify.  When a company uses such a third party, it is important that E-Verify be used after hire, and not a part of the pre-employment screening.  I would also recommend that the employer review the MOU that the third party has with DHS and SSA.  The employer should also review the contract, if any, between it and the third party, to confirm that they are operating in compliance with the E-Verify program and with Alabama's new Immigration Law, assuming the E-Verify portions are upheld as constitutional.  Finally, on a side note, there was an interesting article published in the Wall Street Journal yesterday reporting an interesting coalition of liberals, conservative, Tea Party members and Libertarians who are against Congress passing a bill requiring the mandatory use of E-Verify by all employers in the United States.

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Immigration.  As I was driving to work yesterday, I passed a Taxi, stopped in the middle of the road, with flashers flashing, waiting to pick someone up to take them to work (I reached this conclusion by the way the person was dressed and the fact that the Taxi is there on a regular basis at the same time.  However, this was the first time I saw it in the middle of the road).  My first thought was that this would be in violation of Alabama's new Immigration Act, once it is effective, since the Taxi was impeding the normal flow of traffic while picking up a person for work at another location.  This conduct would subject both the driver and the passenger to criminal charges and possibly the forfeiture of the Taxi.  Is this what the law is supposed to cover?

Social Media.  An interesting piece in the Birmingham News this morning by Kevin Scarbinsky pointing out that the NCAA charged North Carolina with an NCAA violation by not properly monitoring several football players "social networking activity that visibly illustrated potential amateurism violations within the football program..."  Is this a sign of things to come in the workplace, if employers engage in improper conduct, use social networking sites to discuss it, and the company did not know about it? 

Class actions.  The United States Supreme Court ruled in favor of Wal-Mart, denying to certify a class action lawsuit with as many as 1.6 million women as members of the class alleging sexual discrimination.  In a 5-4 decision, with Justice Scalia writing the majority opinion, the Court found that there were too many managerial decisions being made to certify the claims as a class action.

Sexual Harassment Settlement.  Recently, the EEOC announced a $1.95 million settlement with U.S. Security Associates to resolve a sexual harassment lawsuit brought by the EEOC.  The EEOC alleged, in the lawsuit, that Mr. Hargrove, the district manager for USSA in Birmingham, sexually harassed several female employees by subjecting them to unwelcome sexual demands, demeaning gestures, inappropriate touching, and other offensive conduct.  One of these employees, Jamie Marks, had previously filed her own suit against USSA and received a $2.7 million jury verdict.  6 other females intervened in the EEOC's case.  As part of the settlement, USSA agreed to pay $1.95 million to the women.  USSA also entered into a Consent Decree, for a period of 42 months, and agreed to revise it's policies and procedures and train all staff on anti-harassment procedures.  USSA also agreed to hire a consent decree coordinator who will be responsible for monitoring USSA's compliance and submitting periodic reports to the EEOC. 

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Last week, 2 federal district courts in Alabama released opinions addressing religious discrimination, finding in favor of the employer in both cases. What follows is a summary of both cases prepared by one of my associates, Kelli Robinson.

Johnson v. Autozone, Inc., No. CV-09-S-0786-NE (N.D. Ala. Feb. 24, 2011) (Motion for Summary Judgment).  Peter Johnson, a devout member of the Seventh-Day Adventist Church, worked full-time for AutoZone, Inc. as a Parts Sales Manager.  Due to Johnson's religious beliefs, he could never work on his Sabbath day, which spans from Friday at sundown to Saturday at sundown each week.
After failing to be promoted to store management on two separate occasions, Johnson brought a lawsuit against AutoZone for failure to accommodate his religious beliefs, religious discrimination, religious harassment, and retaliation. The court ultimately concluded that AutoZone's motion for summary judgment was due to be granted.

First, the court found that Johnson failed to establish a prima facie case of religious discrimination for failure to accommodate a religious practice or belief because Johnson could not demonstrate that he was subjected to "discipline" for not complying with an employment requirement that conflicted with his religious beliefs.  The court noted that Johnson informed each of his various supervisors of the need to observe his Sabbath, and Johnson admitted that he had never been required to work on his Sabbath, despite AutoZone's seven-day availability policy for full-time employees.  The court further found that Johnson had not suffered a pay loss due to his religious beliefs or practices.  Therefore, the court found, Johnson could not have been "disciplined" for failure to comply with a requirement to which he had not been held.

Johnson argued that only a promotion with a continued exemption from company policy would have been a reasonable accommodation, but the court disagreed - "it is clear that plaintiff is not afforded a choice regarding the manner in which he is accommodated."  AutoZone fulfilled its obligation of offering a reasonable accommodation for Johnson's religious beliefs.

Second, the court found that Johnson failed to establish a prima facie case of disparate treatment for failure to promote.  Because Johnson was unable to meet AutoZone's availability requirement, the court found that Johnson was not qualified for a promotion to a higher level management position.  Johnson also failed to demonstrate that he was qualified for further promotion because he was completely unwilling to comply with AutoZone's Store Manager rotation schedule, which required that Store Managers work Saturdays.  The court concluded that Johnson's unavailability disqualified him for the promotions he sought; and, Johnson, therefore, was unable to establish the elements of a prima facie case for disparate treatment religious discrimination on the basis of failure to promote.

Third, the court found that any incidents of harassment Johnson experienced were not actionable because they were not "sufficiently severe or pervasive to alter the condition of his employment and create an abusive working environment."  Johnson testified that he was harassed because of the lack of promotion, and because his Store Manager would make comments about how busy Saturday was and would ask Johnson to quit talking to him about his Sabbaths.  The court noted that Johnson had pointed to nothing more than isolated incidents that were infrequent and mild, that were in no way threatening or humiliating, and were, at least in part, mere acknowledgments by his supervisor of his awareness of the importance of Johnson's faith to his daily life.

Finally, the court found that Johnson failed to establish a prima facie case of retaliation, and even if the court considered the smallest action or inaction alleged against AutoZone "materially adverse," AutoZone would, nevertheless, be entitled to summary judgment.  In conclusion, the court noted that Johnson "would be well-advised to remember that neither every unkind act, nor everything that makes an employee unhappy, amounts to an actionable, adverse employment action under the federal employment discrimination statutes. Otherwise, as is clearly demonstrated by the events complained of in the present case, every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."

Byrd v. MPW Industrial Services, Inc., No. 2:09-CV-587-WC (M.D. Ala. Feb. 24, 2011) (Motion for Summary Judgment).  MPW held a contract with Hyundai Motor Manufacturing Alabama, LLC to provide workers to perform maintenance duties at the Hyundai manufacturing facility to facilitate the work flow of Hyundai's employees.  Byrd, an African-American male, was hired by MPW to work as a Technician I.  He was scheduled to work Wednesday through Saturday between nine and thirteen hours a night.  In February 2008, Byrd was given a verbal warning regarding his tardiness.

During the time of his employment at MPW, Byrd, a Catholic, received $75 a week to play music at a church of which he was not a member.  He was also self-employed as a yardman.  As a result of his side jobs, Byrd secured permission from his Team Leader to leave work early, as long as other MPW employees were leaving their shifts early too.  When the Operations Manager for MPW learned of Byrd's early departures, he ordered him to stop.  Despite the order, Byrd went home early one day in May 2008.

The Operations Manager prepared a corrective action form for suspension and then met with Byrd to discuss the incident.  During the meeting, he informed Byrd that his schedule had been changed to Thursday through Sunday.  Byrd protested about being scheduled to work Sundays.  According to the Operations Manager, Byrd became loud and physically threatening during the meeting and called the Operations Manager "stupid."  Byrd was terminated following the meeting for insubordinate comments and threats of violence toward management.

Byrd filed a lawsuit against MPW claiming wrongful termination based on his race, failure to accommodate Byrd's religious beliefs, and retaliation.  The court ultimately concluded that MPW's motion for summary judgment was due to be granted.

The court found that Byrd failed to establish a prima facie case of disparate treatment based on his race.  Byrd claimed that during his meeting with the Operations Manager, after Byrd protested being assigned to work Sundays, the supervisor stated that Byrd was a "church little boy," and that this statement constitutes direct evidence of racial discrimination based on local custom and historical usage of the term.  The court found that Byrd made no showing of racial discrimination; even if the supervisor made the comment, the court found that the supervisor's intent may have been to disparage Byrd but no racial animus can be inferred from the statement.
 
The court further found that Byrd was unable to set forth any circumstantial evidence of racial discrimination.  Specifically, Byrd was unable to provide evidence of a valid comparator - someone outside his protected class who was treated more favorably than Byrd.  Therefore, Byrd is unable to establish a prima facie case of wrongful termination.  Even if Byrd could set forth a prima facie case, the court agreed that MPW had a legitimate, nondiscriminatory reason for terminating Byrd (insubordination), and Byrd failed to rebut the non-racial reason for his termination.

The court also found that Byrd failed to establish a prima facie case of failure to accommodate his sincerely held religious beliefs.  Byrd claimed a sincere religious belief but put forth no evidence in support.  The court noted that being "fascinated by music," and going to church does not establish a belief that missing church violates one's religion.  Further, the court found that Byrd was unable to establish that he was terminated because of any conflicting requirement: MPW terminated Byrd for insubordination, not his refusal to work on Sundays.

Finally, the court found that Byrd failed to establish a prima facie case of retaliation.  The court was unclear for which statutorily protected expression Byrd may have suffered an adverse employment action and was unable to "cobble together" Byrd's allegations from his combination of inferences and vague statements.  Because Byrd failed to provide any evidence, other than his failed attempt to establish direct evidence through the use of the terms "church little boy," in support of his claims, the court found that Byrd failed to meet his ultimate burden and, therefore, MPW was entitled to summary judgment.

Practice Pointer.  When an employee expresses concerns about conflicts between work and their religious beliefs, it is important for the employer to carefully look into the potential conflicts, and make sure that the employee is not discriminated against due to those religious beliefs.  Although both these cases were decided in favor of the employer, there are numerous cases decided by many courts around the country holding in favor of the employee. 

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This blog entry will be longer than normal for a variety of reasons.  My client has approved me blogging about this case, but has requested to remain anonymous, even though victorious.  This saga began in July, 2007, when my client, "S" decided to hire a new receptionist for its 50 person business.  "Ms. M", who was 19 at the time, applied for the job, with about 9 others.  After a review of the applications, S's front office manager, who was new to the job and making her first hire, interviewed less than 5 of the applicants.  She decided to hire Ms. M based on her work experience (including 4 jobs where she indicated that she answered the phone) and the fact that she interviewed well, including making good eye contact, speaking loudly and clearly, and appearing enthusiastic about the job.  Ms. M started work on Monday, and during orientation, S's front office manager found out that she was pregnant.  S's office manager ( who was on the job approximately 4 months and had no HR training) overheard this conversation, asked if she had heard correctly, and accused Ms. M of not being honest by not revealing her pregnancy.  Ms. M stated that she did not reveal the pregnancy during the interview because her sister had coached her not to tell anyone about it. Later that day, the office manager counseled Ms. M about having inappropriate conversations at the front desk, talking about her pregnancy, mother and boyfriend.  Ms. M underwent computer training on Monday, and also observed at the front desk to see what the receptionists were doing.  On Tuesday, Ms. M received additional computer training, and was asked to both observe and participate at the front desk: answering phones, paging, greeting customers as they walked in and entering information into the computer.  Although Ms. M admitted that the front office manager asked her to answer the phone, she only tried one time, and stopped because she didn't feel comfortable doing so. Ms. M was at the front desk again on Wednesday, but sat back and did not take the initiative to answer the phone, page or otherwise engage the customers.  At that time, the front office manager had some concerns that Ms. M would not be successful in the busy, fast paced environment and expressed concerns to the office manager and several of the owners.  The decision was made to see if she performed better on Friday (she was scheduled off on Thursday, since the job week consisted of 4 10 hour days).  Sometime during the week, Ms. M alleged that the office manager would not say "hey" to her, treated her differently than other employees, and commented in the break room on one occasion that she had no children because "children ruin your life".  On Friday, Ms. M worked with another receptionist who reported that Ms. M made one page over the intercom, answered one phone call and showed more initiative then she had previously, but still was not doing enough to learn the job.  During the course of the week, the front office manager had made detailed contemporaneous notes about the training of Ms. M, including the good and the bad.  The front office manager made the decision to recommend to one of the owners that she be fired, and the owner agreed.  The owner did not know that Ms. M was pregnant.  This was the first time the front office manager had to fire someone, so she asked the office manager to take the lead.  During the meeting, the office manager advised Ms. M that although she was good with her computer skills, she was not fast enough and did not have the interpersonal skills to be a receptionist for "S".  The office manager also made the statement, that was admitted by "S" that the job was not working out with all her stress, and her pregnancy.  The following Wednesday, Ms. M and her sister went to the EEOC to file a charge alleging pregnancy discrimination.  S received the charge in early September, and responded by sending a statement from both the office manager and the front office manager.  The office manager denied making any of the statements referring to pregnancy, while the front office manager wrote a 3 page, single spaced response, admitting that the comments were made,  outlining the training schedule and Ms. M deficiencies.  Shortly after the response was made, the office manager left her position, and it was disputed whether she was fired, quit, or if it was a mutual decision.  Fourteen months later, the EEOC requested additional information, such as names of employees, names of pregnant employees and their work status.  The information was provided within a week. 

The EEOC issued a Cause Determination, and the conciliation process began.  The EEOC initially demanded $50,000, although there was no breakdown as to back pay, front pay, compensatory damages or emotional distress.  After several rounds of negotiations, the final demand was $39,000, while "S" offered $2,500.  During the conciliation process, and before the EEOC filed its lawsuit, the Owner of "S" wrote several letters to the Regional Director begging the EEOC to meet with him and interview those individuals involved in the decision making process.  The EEOC refused.  During discovery, the regional attorney basically testified in his deposition that the EEOC was too busy to interview witnesses, even though they file less than 24 cases a year.  The EEOC filed the lawsuit on the last day of the fiscal year in 2009, with several other lawsuits alleging various other types of discrimination.  The lawsuit claimed, among other things, damages for medical expenses for Ms M having her child, job search expense and job training expenses.  At her deposition, Ms. M testified that she had no medical expenses since she was covered by Medicaid, and she had no job search expenses or job training expenses.  When asked for a breakdown of damages during his deposition, the EEOC's regional attorney could not provide a list of damages for any of the damages claimed, including back pay.  After the deposition, the EEOC filed a damage list, claiming over $50,000 in back pay.  Approximately 30 days before trial, this amount was reduced to just over $6,000.  Prior to trial, additional settlement negotiations were held, with the EEOC's final demand being $29,500 and "S's" final offer $5,000.  Even after the EEOC reduced the claim for back pay from over $50,000 to just over $6,000, it would not come down from its demand of $29,500.

The case went to trial at the end of February, and took 3 days to try.  The EEOC called as witnesses the front office manager, read the  deposition of the front office manager, the office manager, one of the owners for financial information, and Ms. M.  S called as witnesses the current front office manager, 3 receptionists who tried to train Ms. M, the owner who made the final decision to terminate Ms. M and another owner to talk about the fact that she was 39.5 weeks pregnant when she met Ms. M and offered to answer any questions she may have had. 

The 8 person jury, which consisted of  6 female jurors (4 Caucasian, 2 African American) and 2 male jurors  (1 Caucasian, 1 African American), took approximately 4 hours to return a verdict in favor of "S" and against the EEOC.

Special thanks to Robin Beardsley Mark, one of my partners, who tried this case with me. 

Practice pointers.

There are many lessons to be learned from this 4 year experience.  These lessons include:

                1.  Companies need to train their management  and staff as the various employment laws on a regular basis.

                2.  When training new employees, keep good notes.

                3.  When coaching or disciplining an employee, certain words should not be used, such as pregnancy.

                4.  When responding to the EEOC, what you say can and will be used against you.  Although there are many differing opinions amongst attorneys as to how to reply to an EEOC charge, the response must be done properly.                                         

                5.  When dealing with the EEOC when they are a party, it will be a very long, hard fought and expensive battle.

                6.  A lawsuit will cause a great deal of stress for the owners of a company and those employees who are involved as witnesses.

                7.  A great deal of time and effort, as well as money, will be spent defending  the lawsuit.

                8.  There will be publicity, especially if the EEOC wins.  In this case, the EEOC issued a press release during the trial, advising the press that the case was being tried.  My client received a call during trial from a  newspaper reporter.  Of course, the EEOC did not issue (as far as I know) a press release stating that they lost the case.  If they had won, the EEOC would have issued a press release, and there would  have been something published, at least in the newspaper. 

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Last July, I wrote about the FLSA's changes that mandated a break for mothers who are breast feeding to be able to express milk.  Last week, the IRS changed a long standing policy, at the urging of many groups, including the American Academy of Pediatrics, and will allow a tax deduction for breast pumps and other lactation supplies.  In a letter from the Commissioner of the IRS, effective for the 2010 tax year, the IRS will treat breast pumps and other supplies that assist lactation to be "medical care" and their costs will qualify as deductible medical expenses and will also qualify as medical expenses reimbursable under a flexible health spending account. The New York Times reported that  a Harvard Medical School study conducted last year showed "that if 90 percent of mothers followed the standard medical advice of feeding infants only breast milk for the first six months, the United States could save $13 billion a year in health care costs and prevent the premature deaths of 900 infants each year from respiratory illness and other infections."

Practice pointer.  Employers should continue to be aware of the FLSA's requirement for mandatory breaks for mothers to express milk while at work.  With the reversal of the IRS's position, more mothers may begin or continue to breast feed longer since the cost of the equipment is now deductible or reimbursable under a flexible health spending account.

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Last July, I wrote about the FLSA's changes that mandated a break for mothers who are breast feeding to be able to express milk.  Last week, the IRS changed a long standing policy, at the urging of many groups, including the American Academy of Pediatrics, and will allow a tax deduction for breast pumps and other lactation supplies.  In a letter from the Commissioner of the IRS, effective for the 2010 tax year, the IRS will treat breast pumps and other supplies that assist lactation to be "medical care" and their costs will qualify as deductible medical expenses and will also qualify as medical expenses reimbursable under a flexible health spending account. The New York Times reported that  a Harvard Medical School study conducted last year showed "that if 90 percent of mothers followed the standard medical advice of feeding infants only breast milk for the first six months, the United States could save $13 billion a year in health care costs and prevent the premature deaths of 900 infants each year from respiratory illness and other infections."

Practice pointer.  Employers should continue to be aware of the FLSA's requirement for mandatory breaks for mothers to express milk while at work.  With the reversal of the IRS's position, more mothers may begin or continue to breast feed longer since the cost of the equipment is now deductible or reimbursable under a flexible health spending account.

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On Monday, January 24, The US Supreme Court issued an 8-0 opinion in the case of Thompson v. North American Stainless LP,  (NAS) finding that the terminated  fiancee of a co-worker could bring a retaliation suit against their employer after she filed a discrimination charge under Title VII.  Ms. Regalado, Mr. Thompson's fiancee, (they are now married) filed a charge of sex discrimination against NAS, and NAS was notified of the charge by the EEOC in February, 2003.  Thompson was fired 3 weeks later, and he filed a charge alleging that NAS retaliated against Regalado for filing her charge with the EEOC by terminating him.  With Justice Kagan not participating, the Supreme Court found that his termination was retaliatory.  Relying on the 2006 Burlington Northern case, the Court held that employers are prohibited from taking any action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  The Court concluded that it is "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancee would be fired."  The Court was not clear in providing guidance to employers as to what relationships may give rise to this protected status:   the Court found that the termination of a close family member would "almost always" give rise to a claim."  Justice Scalia, writing the opinion, found  that "Title VII's anti-retaliation provision is simply not reducible to a comprehensive set of clear rules".The opinion also states: "Perhaps retaliating against an employee by firing his fiancee would dissuade the employee from engaging in a protected activity, but what about firing an employee's girlfriend, close friend, or trusted co-worker?" 

Practice pointer.  The Court's opinion is clear that an employee who is fired after his/her fiancee files a charge of sex discrimination is protected from retaliation under Title VII.  The opinion is also clear that a "close family member" MAY  be protected: but the Court did define what a "close family member" is, or how they may be protected.  Likewise, a "mere acquaintance" MAY not be protected:  again, the Court did not define what a "mere acquaintance" is, or how they may not be protected.  With a very large gray area between fiancee and mere acquaintance, employers have another area of potential exposure every time they terminate, or in my opinion, take an adverse employment action against an employee.  Do they have a fiancee working there?  A trusted family member?  A mere acquaintance who may or may not be protected from termination?  It will take years and many court cases to set the boundaries as to who is protected and who is not. 

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Last week, a federal jury in Birmingham returned a $314,000 verdict in favor of Albert Thomas and against Chemical Lime Co. located in Calera.  Mr. Thomas worked for Chemical Lime for 25 years, and was fired after he filed a charge with the EEOC.  The lawsuit contained 8 claims, including racially charged allegations that a supervisor left what appeared to be Klu Klux Klan garb in plain sight for Thomas and that one of his supervisors held up one of the hoods while making inappropriate comments and gestures, including "you won't be working here much longer, you will be with your brothers on the street" and threatening to "fire his black" backside.  This case is of particular interest since the jury found that Chemical Lime was not guilty of the underlying allegations, but only of retaliation for firing Thomas after he filed his charge with the EEOC. 

Practice pointer.  This case demonstrates that  not only can the allegations themselves lead to an adverse judgment, but that the claim of retaliation can result in a large verdict, even without a finding that the alleged underlying wrongful conduct took place. 

UNION MEMBERSHIP DOWN IN 2010. 

According to USA Today, the Bureau of Labor Statistics reported last Friday that union membership in 2010 declined by 612,000 from 2009.  In 2009, unionized workers represented 12.3% of the workforce, and in 2010, this dropped to 11.9%.  Private sector union membership fell from 7.2% to 6.9% of the workforce, while Public sector union membership dropped 1.2%.  The article points out that Black workers are more likely to be union members than White, Asian or Hispanic workers, that union membership was highest among those 55-65 and lowest among those 16-24, and that New York had the highest union membership rate at 24.2%, while North Carolina, at 3.2%, was the lowest. 

Practice pointer.  Unions will continue to push into non-union business sectors in Alabama and around the country in an effort to grow their numbers.  Employers must be aware of any organizing activity in their workplace, and be very careful how they respond.  Their are very specific rules and regulations on what can and cannot be done in this situation. 

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Last week, the 11th Circuit issued an opinion in the case of Daniel Dixon and Mary Sharon Dixon v. The Hallmark Companies, Inc., et al.  The case arose from Florida, where the Dixons, a husband and wife team, where she was the on site property manager, and he was the on-site maintenance technician.  While working at Thornwood, their third complex for the Hallmark Companies, they were provided a rent free apartment to live in adjacent to the complex's management office.  Thornwood was a recipient of Federal Funds under the Department of Agriculture's rural development program, and was subject to periodic inspections.  At one of the earlier complexes they managed, the Dixons had been informed that Hallmark's policy prohibited the display of religious items in the management office.  During one inspection, at Thornwood, the Dixon's supervisor, Christina Saunders, was also present.  She noticed that the Dixon's had hung on the wall a 26" x 50" picture of flowers with the words, "Remember the Lilies...Matthew 6:28".  Ms Dixon confirmed to Ms. Saunders that the wording was a Bible citation, and Ms. Saunders directed her to remove the artwork.  Ms. Saunders later testified that she believed that the artwork violated the Fair Housing Act and that she could lose her job if Hallmark was found to be in violation of the FHA.  Ms Saunders contacted her supervisor, who instructed her to remove the picture from the wall herself, and to make sure that the Dixons understood the fair housing laws.  A dispute arose, and Saunders ultimately fired the Dixon's.  Although the testimony was disputed, at some point in time Ms. Dixon retrieved a picture of Jesus from her apartment and held it close to Ms. Saunders, asking if it offended her.  Ms. Saunders allegedly said, "You're fired too.  You're too religious".  Ms. Saunders denied making the comment.  Saunders instructed the Dixons to vacate the building within 72 hours. 

The Dixons filed a lawsuit against Hallmark, alleging that Hallmark violated Title VII by intentionally discriminating against them, failing to accommodate their sincerely held religious beliefs and retaliating against them.  Hallmark moved for, and the trial court granted Summary Judgment, holding that even if Ms. Saunders made the statement, "You're fired too.  You're too religious", it was not direct evidence of religious discrimination.  On appeal, the 11th Circuit reversed, finding that "Direct evidence of discrimination is evidence that, if believed, proves the existence of a fact without inference or presumption....only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination".  The statement allegedly made by Ms. Sanders was something for the jury to consider as to whether or not it was direct evidence of religious discrimination. 

Practice pointer.  According to EEOC records, the number of religious discrimination charges doubled between 1992 and 2007.  They have continued to increase over the last 2 fiscal years.  Since we are in the middle of the Holiday season for many religions, it is important to make sure that employees are not discriminated against based on their religious beliefs.  An example of this is a lawsuit filed against Belks in North Carolina by the EEOC, alleging religious discrimination when a Jehovah's Witness was terminated for refusing to wear a Santa hat.    According to the employee, she was prohibited by her religion from celebrating any secular or religious holiday, and Belks failed to accommodate her religious beliefs.

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During the past several weeks, the EEOC has issued numerous press releases concerning settlements reached around the country in lawsuits filed by the EEOC.  In Baltimore, the EEOC settled a disability discrimination lawsuit against Marlow 6 Theater for $20,000. The allegations in the suit were that the movie theater fired a concession manager once it discovered that she had HIV.  The theater also agreed to significant remedial relief, including training for all employees and managers on the ADA, posting notices at it's facilities "affirming its commitment to complying with the ADA", that they be enjoined from discriminating on the basis of disability and be monitored by the EEOC for compliance with the ADA for 5 years.

LAZ Parking LLC, a parking company doing business in 16 states, agreed to pay $46,000 to settle a religious discrimination lawsuit filed by the EEOC.  In Atlanta, the EEOC filed its lawsuit alleging that LAZ discriminated against a Muslim woman by terminating her because of her religious beliefs and her refusal to remove her head covering.  The consent decree also requires LAZ to provide equal opportunity training, reporting and posting of anti-discrimination notices.

In North Carolina, Tuscarora Yarns agreed to pay $230,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.  The lawsuit claimed that the former plant manager harassed Ms. Martinez by propositioning her for sex, making unwelcome sexual comments, inappropriately touching her and trapping her in an office where he sexually assaulted her.  She escaped from the office and called the police.  The former plant manager was arrested for sexual battery, but eventually pled guilty to a reduced charge of assault on a female.  Martinez, who worked at the plant for approximately 2 years, was suspended when she complained about the sexual harassment.  Tuscarora Yarns also agreed to redistribute its sexual harassment policy to employees, post its harassment policy in both English and Spanish, and provide annual training at the plant where the incident occurred to managers, supervisors and employees.  Ms. Martinez was also represented by the Southern Poverty Law Center, based in Alabama.

Tony's Lounge Inc. and Italia Bakehouse and Bistro, LLC, operating as Tony's Restaurant was sued by the EEOC alleging that the restaurant sexually harassed a teen-aged hostess and two young female cooks.  The vice president of Tony's Lounge abused the individuals by repeatedly making unwelcome sexual advances, touching the young women and making sexually explicit comments.  Tony's agreed to pay $75,000 to settle the suit, agreed to provide sexual harassment training to all managers and adopt a clear policy on preventing sexual harassment.  Tony's also agreed not to rehire the vice president, who left the company shortly before the suit settled.

In Kansas City, Cactus Grill agreed to pay $150,000 as the result of a lawsuit being filed by the EEOC alleging that an older assistant manager sexually harassed and then terminated a teenage female server.  Before this incident occurred, there had been at least one other complaint about this assistant manager.  Cactus Grill also agreed to update it's anti-discrimination policy, redistribute the policy to all employees, train its managers and assistant managers in all its restaurants and report to the EEOC all complaints it receives concerning sexual harassment for a period of 2 years. 

Practice pointer.  The EEOC continues to pursue claims on behalf of employees who have been discriminated against around the country.  The cost to employers includes the settlement amount, legal fees, loss of productive time to defend themselves and bad publicity as a result of the EEOC's press releases whenever it settles a case.  Reviewing policies on a regular basis, training at least annually and properly investigating complaints must be done by employers to reduce exposure for harassment and discrimination claims. 

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For the past 14 years, John Hithon has been pursuing his lawsuit against the chicken plant he worked at that ultimately was purchased by Tyson.  He began working for the plant in 1982, and was promoted to superintendent.  He applied for a shift manager position in 1995.  The two shift managers, who were white, did not receive a pay increase, and quit.  The plant manager did not hire Hithon or another black man, Anthony Ash, instead bringing in 2 white men from other Tyson plants.  A lawsuit was filed and went to trial in 2002.  The jury awarded Hithon and Ash $250,000 each in compensatory damages, and $1.5 million in punitive damages.  The evidence from the plaintiffs indicated that the plant manager used the term "boy" in addressing both Hithon and Ash on at least one occasion.  The magistrate judge overturned the jury's verdict, finding that there was not enough evidence for the jury to conclude that they were not promoted because they were black, and that the manager testified that in light of the plant performing poorly, he thought it would be best to bring in supervisors from outside the plant.  In 2005, the 11th Circuit affirmed the decision concerning Ash, but found that Hithon should get another trial since he was not even interviewed until after the plant manager selected one of the white replacements.  The case was appealed to the Supreme Court, which vacated the 11th Circuit's opinion and remanded it back to the 11th Circuit.  The Supreme Court found that the mere use of the word "boy", standing alone, is not evidence of racial bias.  "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage."  The 11th Circuit sent the case to the District Court to retry Hithon's case.  The second jury awarded Hithon $35,000 in back pay, $300,000 in compensatory damages and $1 million in punitive damages.  The magistrate judge again set aside the punitive damages, but let the remainder of the verdict stand.  The case was appealed to the 11th Circuit, and the 11th Circuit, in a 2-1 vote, directed the magistrate judge to enter a judgment for Tyson. 

Practice pointer.  This case is an example of what I mean when I say that justice is usually not speedy.  For 14 years, this case has been litigated, there were 2 jury trials, both resulting in verdicts in excess of $1 million, 2 appeals to the 11th Circuit, one appeal to the Supreme Court and the possibility of a 2nd appeal to the Supreme Court.  If I had to guess, and only guess, the legal fees incurred by Tyson were probably in excess of $1 million. 

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"Son" and "daughter" under the FMLA

The DOL  recently gave a broad definition to "sons and daughters" under the FMLA.  The DOL subtitles the announcement by saying "Interpretation is a win for all families no matter what they look like."  Secretary of Labor, Hilda Sols, is quoted as  saying  "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill.  No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

Practice pointer.  Although courts have not yet had time to determine if the DOL's broad definition of son and daughter will be applied, it is likely to lead to litigation throughout the country.  Employers should examine carefully requests for FMLA leave by non-biological and non-legal parents on a case by case basis.

More Strange Stories

On June 2nd, I published an entry entitled"Two discrimination complaints where truth is stranger than fiction" which addressed a woman's claim that she was fired because she was too hot and an ex-football coach, who is white, suing the historical black university that dismissed him.  This week, Susan Antilla, with Bloomberg, published an article entitled "Sex harassment at work gets weirder, scarier."  She reviewed EEOC press releases, and come up with some of the stranger complaints made by employees.  I cannot do justice to them, so I would recommend that you read her article. 

Practice pointer.  Truth is stranger than fiction.  I routinely see allegations that make you go Duhhhh.  HR professionals need to continue to monitor the workplace, train the entire workforce on a regular basis, and take every complaint seriously, no matter how strange it may seem.

BlackBerries and Overtime

Last year, I wrote about the possible exposure to claims for overtime pay for the use of PDA's outside the regular 40 hour workweek.  A suit had been filed by various T-Mobile employees claiming that they were entitled to overtime pay since they had to use their PDA's after regular work hours.  NPR recently ran a story about a new class action lawsuit filed in Chicago by police officers.  Cheryl Corley's article, entitled "Using Your Blackberry Off-Hours Could Be Overtime" discusses a lawsuit filed by Sgt. Jeffrey Allen against the Chicago Police Department  alleging that he, together with other officers, had been given BlackBerries by the department and were using them routinely while off duty at the behest of the department, and not being compensated for it.  While using the BlackBerry for a minimal amount of time while off duty may not result in overtime, using 15 minutes a night may, and adds up in a hurry, especially in a class action suit.  Mayor Daley's reaction, as quoted in the article, is somewhat concerning, as he said the suit is "silliness in time of economic crisis" and "We're public servants.  If I asked for that, I'd be paid millions of dollars.  We'd have to take all the BlackBerrys away from the workforce."  Mayor Daley's quote is followed by a quote from Sean Rogers, an arbitrator who happens to be a former Washington D.C. police officer and is now the head of an arbitration firm:  "I don't think that any mayor would say that anti-discrimination laws are silly.  There are similar laws....I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million."

Practice pointers.

As I have written and talked about in the past, it is important for companies to have electronic communications policies, including the use of PDA's away from work.  Companies that permit, or even require the use of PDA's away from work may be subjecting themselves to overtime claims by non-exempt employees.

Additionally, employers should have a policy concerning who will deal with the press.  In my opinion, I would not want a corporate CEO making the statements that were attributed to Mayer Daley: they may come back to haunt him as this case progresses through the court system. 

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The EEOC continues to pursue lawsuits against employers for sexual harassment as well as other claims.  In Alabama, the EEOC announced a settlement with Jack Marshall Foods, Inc., a KFC franchisee based out of Tuscaloosa.  The EEOC filed it's suit in March, 2009, alleging that sexual harassment was taking place at the KFC restaurant in Monroeville.  The suit claimed that that Jack Marshall tolerated male employees openly describing sexual desires and interests with female employees and engaged in unwelcome sexual conduct including touching and groping.  Jack Marshall agreed to pay $1.05 million to settle the lawsuit brought on behalf of 19 female employees.  It should be noted that at least 3 of the female plaintiffs were teenagers at the time the harassment occurred.

In Kansas, the EEOC filed suit on May 20 alleging that an 18 year old server at a Cactus Grill restaurant was sexually harassed by one of it's managers.  The EEOC press release states that "an assistant manager at the restaurant asked the server for sex, touched her, and made unwelcome sexual advances toward her.  The harassment was so intolerable that the server was forced to quit her job, amounting to an unlawful constructive discharge."  The press release also quoted the director of the St. Louis District office as saying "Sexual harassment in the workplace is always wrong, but harassment of teenage workers, who are often in their first 'real' job, is even more egregious... Employers must provide safe, harassment-free workplaces for all of their employees, including teenagers". 

Practice pointer.  The EEOC remains active in Alabama, and around the country, in filing suits and settling claims of harassment.  Both these cases involve teenagers: it should be noted that the EEOC has a specific web site dealing with teenagers in the workplace, In light of the fact that many businesses hire teenage summer help, now is the time for employers to make sure that their entire workforce, including the summer labor force, is trained on harassment and discrimination in the workplace.

GINA UPDATE.  In what appears to be the first publicly released complaint filed under the Genetic Information Nondiscrimination Act, Pamela Fink filed suit against her employer in Connecticut alleging she was fired as the result of a positive test for BRAC2, the breast cancer type 2 susceptibility protein.  According to Business Insurance, when she received the positive result, Ms. Fink took medical leave for a double mastectomy.  The day before her second and final surgery, she received a mid year review that was "negative and scathing", was fired, and told her position had been eliminated.  In a related article by Judy Greenwald with Business Insurance entitled "Discrimination claims rising in wake of genetic bias law", the following was written : “I think the EEOC, under the current administration, is being very proactive” in pursuing claims under its jurisdiction, said Daniel J. Burnick, a shareholder with law firm with Sirote & Permutt P.C. in Birmingham, Ala. In addition, more employees “are looking to the EEOC and/or the court system in an attempt to either protect their jobs or receive compensation should they lose their jobs.”

Practice pointer.  I expect there to be more claims filed under GINA as more people become aware of it.  As you can tell from Ms. Fink's complaint, timing is very important:  the fact that she was reviewed and fired while on medical leave is suspect, to say the least. 

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Last Friday was a busy day in Alabama for employment issues.  Perhaps the calendar was off by a day: it should have been Friday the 13th, not Friday the 12th. 

First, the Birmingham News reported that a federal jury in Birmingham, after a 3 week trial, returned a verdict in the amount of $2.7 million against U.S. Security Associates, Inc, a security guard firm based in Georgia.    According to the article, Jamie Marks sued USSA alleging sexual harassment when a district manager repeatedly propositioned her for sex and inappropriately touched her.   Robert Gordon, writing for the Birmingham News, noted that "One occasion, Hargrove masturbated in front of Marks the lawsuit said."  Marks complained, but was ignored, in part, because Hargrove, who was having an affair with Mark's immediate supervisor,  threatened Mark's immediate supervisor, who witnessed the exposure, but lied during the company's investigation.  Interestingly, Hargrove remains employed with USSA. 

Practice pointer.  Once again, let me say that it is important to have policies and procedures in place, and to follow them!!!  The jury found, as evidenced by the high verdict, serious violations of the law by the supervisor, and the failure of the company to properly investigate and remedy the situation: the supervisor is still employed.

On January 28th, I wrote a blog entry dealing with violence in the workplace.  Tragedy struck in Alabama Friday when a female professor at the University of Alabama in Huntsville, who was just denied tenure, pulled a gun and killed 3 faculty members and wounded 2 faculty members and a staff member.  The accused shooter is a 42 year old Harvard graduate, the mother of 4, married to a geneticist and researcher who also works at UAH, and apparantly accidently shot and killed her brother in 1986.  The shooter and her husband were taken into custody.  In watching the news reports, one student interviewed said that you hear about these situations around the country, but you never expect it to happen to you.  Unfortunately, as we are again reminded, violence in the workplace does strike close to home.  My firm, Sirote & Permutt, is holding a seminar this coming Wednesday, February 17 addressing violence in the workplace,  If you are interested in attending, you can view the invitation here and make reservations to attend.  The seminar will take place in Birmingham, but will be broadcast to our Huntsville and Mobile offices. 

Practice pointer.  Violence in the workplace is a constant threat, and must be dealt with seriously.  It strikes close to home, and is unpredictable.  Companies must prepare for these situations by having the appropriate policies and procedures in place, training the entire workforce, and be forever vigilant to guard against it. 

Last November, I gave a presentation at our year end seminar addressing the H1N1 flu and pandemics in the workplace.  According to the Center for Disease Control and Prevention, in an announcement made Friday, approximately 57 million Americans have contracted H1N1 since April, 2009.  This is about 18 % of the U.S. population.  Almost 12,000 have died, and about 260,000 have been hospitalized.  Although the experts predicted otherwise, adults between 18 and 64 have been hit the hardest, accounting for 58% of the infections and hospitalizations and 76% of the deaths.

Practice pointer.   Although the H1N1 pandemic may be over, other pandemics will hit in the future.  When is unknown.  In order to keep businesses operating during a pandemic, companies must be prepared with the appropriate plan to cover for absent employees, sick employees and perhaps the interruption of normal life (quarantines, disruption of the food supply, school closings, etc.)  Now is the time to prepare by formulating proper procedures and implementing them with the workforce.

This past week, I was invited to speak to the Talladega County Bar Association and gave a presentation on Social Media, including the impact of social media in the workplace.  Interestingly, one of the cases I often refer to in my presentations is a case out of North Carolina where a volunteer fireman was discharged for conduct unbecoming a fireman because his social media site made reference to him and his wife practicing the Wicca religion, and that his wife was bisexual.  One of the attorneys in Talledega has a very similar situation, where an ex spouse allegedly posted on a social networking site that the other ex spouse practiced the Wicca religion and was bisexual.  No, I can't make these things up.  It is important to have a social media/networking policy in the workplace to protect the company, it's employees and to safeguard confidential and proprietary information.

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On February 5, the 11th Circuit decided the case of Robinson v. Tyson Foods.  Robinson worked for Tyson Foods, and resigned in September, 2005 by a letter of resignation stating, in part, that she was subjected to "harassment, racial abuse and intimidation."  In October, 2006, she brought a civil suit against Tyson under Title VII, and claimed compensatory, punitive and liquidated damages.  In April, 2002, Robinson voluntarily dismissed her Chapter 13 bankruptcy cased because she could not make her payments, and filed a second Chapter 13 proceeding.  The plan was confirmed in May, 2002, and the judge ordered, in part, that "the property of the estate shall not vest in the Debtor until a discharge is granted under Section 1328 or the case is dismissed".  In May, 2007, one of Robinson's debtors moved to dismiss the bankruptcy plan because her payments were delinquent.  Before a hearing on the motion, she became current on her payments. In July, 2007, her bankruptcy plan was completed, she repaid all her debts, and she received a full discharge from Bankruptcy.

Tyson took her deposition in September, 2007, and learned that she had not disclosed her suit against Tyson in the bankruptcy court.  Tyson also learned that her husband died in 1997, and she had a workers' compensation claim against her husbands employer when she declared bankruptcy in April, 2002.  That lawsuit was not disclosed either.  The 11th Circuit upheld the trial courts decision dismissing Robinson's claim against Tyson, under the theory of judicial estoppel, which is designed to "prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by the party in a previous preceding".  Since full and honest disclosure in a bankruptcy proceeding is "critical" to the effective functioning of the system, and a debtor has a statutory duty to disclose all assets, or potential assets to the bankruptcy court, and Robinson failed to do so, she was prohibited from pursuing her claim against Tyson.

Practice pointer.  This decision reinforces the need for individuals to be completely open and honest when they file for bankruptcy.  If they fail to disclose an asset, or potential asset, such as a law suit, it may bar them from pursuing those claims not disclosed to the bankruptcy court.  This logic also applies in many unemployment compensation appeals, where claimants' change the reason for termination from what they originally listed on their claim for unemployment, (for example, lack of work)  to a claim under Title VII (for example, sexual harassment).

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In Corbitt et al. v. Home Depot USA Inc., the 11th Circuit Court of Appeals reversed, in part, the District Court for the Southern District of Alabama's decision dismissing claims for sexual harassment and retaliation in violation of Title VII.  Corbitt and Raya were store managers for the Home Depot in Mobile and Pensacola.  They claimed that the regional human resources manager, Lenny Cavaluzzi, sexually harassed both of them for a period of 9 months.  Cavaluzzi allegedly had multiple personal telephone conversations with the plaintiffs, massaged their necks and shoulders at a corporate meeting, played with their hair and hugged them on numerous occasions.  Plaintiff's complained to various supervisors, but the conduct did not stop.  The conduct only stopped after a supervisor used a Home Depot hotline to report Cavaluzzi.  Both plaintiff's were fired a less than a month later. The trial court granted summary judgment in favor of Home Depot on all claims that were made by the plaintiffs.  In affirming summary on plaintiff's claim for harassment, the Court, in distinguishing sexual harassment from flirtation, held that "Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment".  The Court reversed the lower courts finding that Home Depot did not retaliate against them by firing them, holding that sufficient evidence was presented that Cavaluzzi and another supervisor influenced the investigation in a way to have the plaintiff's terminated. The Court rejected any suggestion that the fact that the touchings were same-sex made them somehow more severe

Practice pointer.  Same sex harassment (as well as female on male harassment) occurs in the workplace and must be treated as seriously as traditional male on female harassment allegations.  Investigations must be done in a prompt, thorough and complete manner, and appropriate disciplinary actions taken.  As society continues to evolve, I anticipate more of these cases to reach the courts. 

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The case of Ricci v. Destafano continues to make the news.  I have reported on this case in several blog entries, and the most recent activity involves the white and Hispanic firefighters filing papers to pursue their claim for back pay, interest and attorney fees.  This case started in 2003 when the city refused to promote the 14 white and Hispanic firefighters: even though the test they took was race neutral, the city felt the results discriminated against black firefighters since none of the black firefighters who took the test scored high enough to get promoted.  The Supreme Court, in June, ruled in favor of the white and Hispanic plaintiffs, finding that New Haven violated their civil rights by disregarding the test results.  Recently, the plaintiffs received their promotions, and the black firefighters filed suit claiming they were discriminated against.  Now, the attorney for the plaintiffs is pursuing claims for back pay, interest and attorney fees.  According to theAP, Karen Torre, the attorney for the plaintiffs, they were subject to "the humiliation and economic hardship of prolonged career stagnancy in a rancorous atmosphere fostered by raw racial divides."  I will continue to keep you posted as this case progresses. 

Also in the news, President Obama signed into law the 2009-2010 spending bill for the Department of Defense, which includes a provision prohibiting most military contractors from enforcing mandatory arbitration provisions in their employment contracts.  The provision prohibiting arbitration came about as the result of a female employer of a defense contractor, working in Iraq, who claimed she had been raped by co-workers, and the employer attempted to enforce the arbitration provision in her employment contract.  In 6 months, this restriction will also apply to subcontractors. 

Finally, on the overtime front, the New York Times  reported this week that a lawsuit filed on behalf of 27 Mexican farm workers in Mississippi for overtime has been settled.  The employees were working under the federal H-2 Visa program, and claimed they were not paid for hours worked in excess of 40 hours a week.  The amount of the settlement was not disclosed.

I hope all of you have a Joyous Holiday Season and a Happy New Year. 

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A number of issues continue to arise in the employment context.  I expect you will be seeing more of these in 2010.  They include the following:

Overtime.  A California court preliminarily approved a $12.8 million settlement involving 650 potential class members claiming overtime.  According to Law.com, Lynn Farris ""who is lead counsel in a similar case against FedEx Ground in the Northern District of Indiana, said companies considering whether to classify people as independent contractors "are likely to take this settlement as further indication that that's a risky business choice."" 

City of New Haven.  I have previously written about the City of New Haven fire department case, Ricci v. Destafano.  The City of New Haven has promoted the 10 firefighters (white and Hispanic)based on a 2003 test and the Supreme Court's decision.  Now, an attorney for New Haven's black firefighters is quoted by the AP  as saying that "the fight is not over because the black firefighters were not heard."  I cannot even imagine the amount of legal fees incurred in taking the case to the Supreme Court and now it will have to be fought all over again by the city.

Jury Duty.  Since I just received my own notice to appear for jury service the first week in January, I found the following case interesting.  In Florida, a supervisor for a security guard company was awarded $150,000 by a jury who found that she was wrongfully terminated after serving on a jury, not being paid $400 for the first 3 days she missed from work(pursuant to county law) and the judge gave the plaintiff a copy of the law protecting jurors and a letter vouching for her jury service.  The jury awarded $30,000 for lost wages emotional distress and $120,000 in punitive damages.

Cool website.  Ebosswatch.com has published it's Worst Bosses of 2009 list.  Included on the list is Mike Swindle, who, while working at Hyundai Motor Manufacturing Company in Montgomery, was found to have harassed a female subordinate, resulting in a verdict in excess of $5 million.  I wrote about this case in my blog on May 4, 2009.

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In June, the United States Supreme Court released a 5-4 opinion in the Ricci v. DeStefano case,  finding that the City of New Haven discriminated against white and Hispanic firefighters who claimed that they would have been promoted if the City of New Haven had not invalidated the test results because no black candidates scored high enough to be promoted.  I wrote in detail on this decision on June 29.

Yesterday, a black firefighter sued New Haven over the same promotion exam taken in 2003 that was the basis of the Ricci decision. Michael Brisco, who has been with the New Haven fire department for 10 years, alleged that he was discriminated against, based on race, because the test improperly gave more weight to the written part of the test than the oral section.  He further alleged that the test had a disparate impact on African-Americans since the scoring method was weighted 60 percent on the written portion, and 40 percent on the oral portion.  Brisco alleged that he ranked first out of the 77 candidates who took the test on the oral portion, but was only ranked 24th overall due to the fact that more weight was given to the written portion of the test.

Practice Pointer.  It will be interesting to follow this case as it winds through he courts over the next several years.  The City of New Haven just completed a case that went all the way to the Supreme Court, and paid untold thousands of dollars in attorney's fees, obtained a Supreme Court decision, and gets sued again over the same test that was given 6 years ago.  Sometimes, justice is not swift.

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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This morning, the U.S. Supreme Court, in a 93 page 5-4 opinion, reversed the lower courts' decision in the case of Ricci v. DeStefano.  I previously wrote about this case on February 3 and April 22.  In Ricci, the white and Hispanic plaintiffs claimed that they would have been promoted if the city of New Haven Conn. did not invalidate the test results because no black candidates scored high enough to be promoted.  Justice Kennedy delivered the opinion for the Court, finding that the city's actions violated Title VII.

Initially, Justice Kennedy addressed the burden shifting provisions of Title VII: once a plaintiff establishes a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is job related for the position in question and consistent with business necessity.  If the employer meets that burden, the plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer's legitimate needs.  The Court found that the City's actions, not validating the test scores because the higher scoring candidates were white and Hispanic,  violated Title VII's disparate treatment prohibition. Without some other justification, the express, race-based decision making is prohibited by Title VII.  The Court decided the question of whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination.    The Court found that fear of litigation alone cannot justify the city's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.  Finally, the Court concluded that If, after it certifies the test results, the city faces a disparate impact suit, then in light of this decision, the city can avoid disparate impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Practice Pointers. 

1.  President Obama's nomination to the Supreme Court, Sonia Sotomayor, was on the 2nd Circuit panel which affirmed the district court's summary judgment in favor of the city which was reversed by the Supreme Court.  This decision will provide some ammunition for her critics.

2.  This opinion will be the starting point for employers who are worried about disparate impact claims.  Unfortunately, it may not provide all the answers, since each case will need to be decided on its own merits.

3.  Since the Court decided the case on Title VII grounds, and not on the Equal Protection Clause (which was also raised in this case), it is likely that this decision will apply to private employers as well as public employers.

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Today, in Gross v. FBL Financial Services, Inc., the United States Supreme Court, in a 5-4 opinion, issued an opinion distinguishing the Age Discrimination in Employment Act (ADEA) from Title VII, finding that the text of the ADEA does not authorize a mixed-motives age discrimination claim.  The facts of the case are as follows:  Gross began working for FBL in 1971, and in 2001 he was a claims administration director.  In 2003, at the age of 54, he was reassigned to the position of claims project coordinator.  Many of Gross' job responsibilities were transferred to a newly created position: claims administration manager, which was filled by a female in her early 40's, who had previously been supervised by Gross.  Although the two positions paid the same, Gross believed he was demoted because of the reallocation of his former job responsibilities.  Gross filed a lawsuit alleging a violation of the ADEA, and at trial, introduced evidence suggesting that his reassignment was based at least in part on his age.  FBL alleged that the job reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills.  Gross was awarded $46,945 at trial, and the 8th Circuit reversed and remanded based FBL's challenge of the jury instructions given at trial, that the jury "must return a verdict for Gross if he proved , by a preponderance of the evidence, that FBL "demoted him to claims project coordinator' and that his 'age was a motivating factor' in FBL's decision to demote him".  The jury was also instructed that they must find for FBL "if it has been proved by the preponderance of the evidence that FBL would have demoted Gross regardless of his age". 

Justice Thomas, writing for the majority,  found that the burden of persuasion does not shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.  Justice Thomas further found that the ADEA is materially different with respect to the relevant burden of persuasion from Title VII, and as such, Title VII decisions do not control the construction of the ADEA.  Finally, the text of the ADEA does not authorize a mixed-motives age discrimination claim.

Practice Pointer.  This decision is favorable to employers in the ADEA context.  This interpretation will make it more difficult for plaintiff's to successfully prosecute ADEA claims.  It is important to remember that Alabama has it's own age discrimination statute, and that this opinion should also apply to cases pending in state court since the statute basically adopts federal law. 

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On Monday, May 18, the US Supreme Court issued another employment related opinion, this time dealing with the calculation of retirement benefits based on pre-Pregnancy Discrimination Act policies.  In AT&T Corp. v. Hulteen (US Supreme Court 5/18/09) Justice Souter, in a 7-2 vote, delivered the opinion finding that AT&T's pension benefits, which were calculated in part under an accrual rule that was applied only pre-PDA, and gave less retirement credit for pregnancy than for medical leave generally did not necessarily violate the PDA.  When the PDA became effective in 1978, AT&T changed it's policy to allow the same service credit for pregnancy as for other medical leaves of absence, but did not make the change retroactive, resulting in four employees suing AT&T because their pregnancy leaves resulted in smaller pensions.  The Court found that since Congress did not apply the PDA retroactively, AT&T did not have to make it retroactive either.  If the plaintiff's position had beeen upheld by the Court, it would have created a tremendous burden on companies to re-calculate pensions for women leaving the workforce now and in the near future, who were subject to pension rules similar to AT&T. 

Practice Pointer.  From time to time, courts need to address changes in the law that took place decades ago.  It is important that companies review and revise their record keeping policies and procedures to comply with all applicable state and federal laws.  Even when in compliance, records may be inadvertently destroyed that are needed later on.

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Tammy Edwards was awarded 5.79 million dollars by a jury in Federal Court in Montgomery for sexual harrassment, negligent supervision, and retaliation.  The Birmingham News reported late Friday, the jury  awarded $795,000 in compensatory damages, $5 million in punitive damages against Hyundai, and $10,000 against a supervisor, Mike Swindle, who was sued in his individual capacity.   The facts of the case involve Swindle propositioning Edwards for oral sex, sex, and threatened to blow her husband's head off.  Swindle also blocked her was in the hall, bumped against her with his hands behind his back, hugged her and pulled her hair by grabbing her pony tail.  Edwards complained to one supervisor, who took no action although he admitted he knew that Swindle's behavior was often objectionable.  She also complained to another supervisor, who laughed it off and said that Swindle will tell you "stuff you don't want to hear".  For a more detailed explanation of the causes of action and the facts of the case, you can read Judge Thompson's order denying Hyundai's Motion For Summary Judgment dated March 27, 2009. 

This is a textbook case on what can and often does go wrong in the work place.  Edwards missed her sexual harassment training because she was out sick  There was no signed receipt showing that Edward's received the 47 page, single spaced policy manual.  Swindle was transferred to another position, but his physical location was actually closer to Edwards then before he was transferred.  Swindle continues to work at Hyundai.

Practice Pointer.  It is essential that all complaints of harassing behavior be treated seriously, a proper investigation take place, and the appropriate remedial measures be implemented.  For an interesting perspective on how the general public views these type of cases, I would highly recommned that you read the Birmingham News article and the comments from the readers. 

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On February 3, in The Perfect Storm, Part 2, I posted the following:

I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress.  The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants.  The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted.  The Supreme Court will decide the following question: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination

On April 22, the Supreme Court heard oral argument in this case.  Interestingly, at Law.com, Marica Coyle's article begins:  "The elements of a perfect storm for employers coalesce in the U.S. Supreme Court this week in a major job bias case asking what employers legally may do when a decison to avoid discrimination against one group of employees may mean discrimination against another group".  Cumberland School of Law Professor Marcia McCormick was quoted in the article as saying "I would feel very torn in advising an employer right now...As a practical matter, it seems employers can't win no matter what they do here".  Professor McCormick went on to say that Ricci's position Is "unworkable", and "If recognizing race at all is discrimination, there is nothing an employer can do because anything it does is discrimination.  Even surveying its own work force as to who is white, who is African-American, would become the roots of a discrimination claim."

This case has received widespread coverage in numerous publicaitons, including  the New York Times, the Washington Post, Law.com, and  the  Chicago Tribune.  It will be interesting to see how the Supreme Court resolves this issue: I anticipate that it will be a sharply divided court, with at least one dissenting opinion.

Practice Pointer.  As we continue to move through the coming months, keep an eye out for new court decisions, new laws, and new guidelines concerning various employment related laws. 

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Johnny Hawkins, a black male employee, who worked for Alabama Aviation Industries (formerly known as PEMCO) for 25 years, was awarded a $500,000 jury verdict based on gender and race discrimination.  Hawkins, who was working as a sheet metal mechanic, was abandoned by a female worker who was supposed to be watching over him for safety purposes.  According to Hawkins' attorney, the female co-worker violated OSHA regulations because she went to lunch while Hawkins was left unattended in a confined space.  After this happened, Hawkins grabbed the female co-worker by the shoulder to get her attention and to tell her that she left him unattended.  She was not disciplined at all for abandoning Hawkins.  Other white male workers, according to trial testimony, received little or no discipline for for touching or harassing females.  For a more detailed account, see the article in the Birmingham News. 

Practice Pointer.  All employees must be treated consistently to avoid the appearance of discrimination based on gender, race or other prohibited factors.  When disciplinary action is taken, especially termination, it is important to conduct a proper investigation and document the reasons for the disciplinary action. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"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."

The act purports to apply retroactively as set forth by Congress:  "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."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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