Flight Attendants File EEOC Charge Alleging American Airlines Discriminates Against Women

AA Accused of Discrimination

AA Accused of Discrimination

The union that represents more than 27,000 American Airlines flight attendants has filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that the airline's attendance policy discriminates against women. The flight attendants charge that the attendance policy "fast tracks" flight attendants — a group that is 75% female — to potential discipline and discharge actions, while pilots — who are overwhelmingly male — are not subject to the policy.

This type of case is called a “disparate impact” case. Employment actions and policies can be problematic even if they do not intentionally discriminate against a protected group of workers. The law recognizes both "disparate treatment" discrimination (intentional acts of overt discrimination) and "disparate impact" discrimination (neutral policies and practices that have a disproportionate, adverse impact on a protected group and that cannot be justified by business necessity).

While disparate impact cases can come up with regard to any protected class (in this case, gender) they actually most often arise in the context of alleged age-based discrimination. Layoffs are often alleged to be based on age — a layoff targeting high-earning employees might have a disproportionate impact on long-tenured employees who happen to be older, for example. Similarly, recruiting efforts that focus on college campuses might unfairly exclude older workers.

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IKEA Hit with Yet Another Age Discrimination Lawsuit

IKEA Hit with 5 Age Discrimination Lawsuits

IKEA Hit with 5 Age Discrimination Lawsuits

Alleging the company discriminates against its older employees and fosters a "corporate culture of age bias," IKEA is the target of a newly-filed class action lawsuit (Paine v. IKEA Holding US, Inc. et al., No. 19-cv-00723 (E.D. Pa. Feb. 21, 2019)). Since February 2018, at least five current and former employees have filed lawsuits against IKEA alleging age discrimination.

The lawsuits have all been filed in a period of just over a year. And they all argue that Ikea has fostered a workplace culture of discrimination, which systematically recruits and promotes young talent rather than workers over 40. The problem is alleged to have become even worse, once the company began an aggressive restructuring effort in 2017.

Whether protected-age job seekers can pursue lawsuits under the federal Age Discrimination in Employment Act without showing the alleged bias was intentional is a question on which federal courts are divided. The U.S. Supreme Court in 2017 declined to consider the issue in a case against R.J. Reynolds, leaving in place a holding by a federal appeals court in Atlanta that the ADEA doesn’t permit disparate impact or unintentional bias claims by job applicants. But a federal district court in California reached the opposite conclusion in a case against PricewaterhouseCoopers. Ultimately, this split in the circuits will have to be decided by the U.S. Supreme Court.

Age discrimination as a part of a large company restructuring can often be something that appears obvious while being simultaneously very difficult to prove. To make matters even more challenging, companies often offer severance packages to those being laid off, giving them only a few weeks to consult with an attorney and consider the issues.

If you find yourself the subject of a proposed layoff and you believe you may have been targeted due to your age (over 40) or if you have been given a severance agreement to review and consider, start looking for a qualified employment lawyer right away. Finding a qualified employment attorney who represents employees rather than companies may be more challenging than you think. In Texas, a good place to start is the Find-A-Lawyer page of the Texas Employment Lawyers Association. In other states, I would suggest you start with the National Employment Lawyers Association. Both groups feature lawyers who represent employees rather than employers and both have a lot of good information available for you to review and consider.

Jury Awards Administrative Assistant $850,000 in Age Discrimination Lawsuit

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A jury has awarded a Temple University executive assistant $850,000 in an age discrimination lawsuit alleging that, among other things, she was told by her boss, a Chinese national, that "in China, they put women out to pasture at your age" (Briggs v. Temple University, No. 16-248 (E.D. Pa., July 19, 2018)).

After she was fired, Ruth Briggs sued the Philadelphia-based school, claiming age discrimination and hostile work environment during her tenure as an executive assistant to the chair of the university’s computer and information sciences department. Briggs also said she suffered retaliation when she repeatedly complained to the university’s human resources department. The university, however, said she was fired for performance deficiencies.

A unanimous federal jury awarded Briggs compensatory damages of $350,000 for pain and suffering, back pay loss of $250,000 and $250,000 in liquidated damages.

Read local media report here. 

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

  • McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.
  • Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.
  • The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.
  • McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.
  • An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.
  • At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”
  • McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.
  • McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.
  • McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

 

 

If you want to read more, start here.

$51 Million Dollar Verdict Awarded in Age Discrimination Case

A former Lockheed Martin engineer, who sued for age discrimination after being laid off at age 66, was awarded $51.6 million by a jury in a federal court in New Jersey. This may be the highest amount ever awarded to an individual in an age discrimination case, and stands as a stark reminder that age discrimination remains a big — and potentially very expensive — issue for HR.

Robert Braden was a mid-level manager who spent almost 29 years at a Lockheed Martin facility in Moorestown, NJ. He claims that he was a target in a reduction in force plan to replace older workers with younger ones, and that he and other older workers consistently received less pay and lower reviews and raises than younger workers.

In his lawsuit complaint, Braden said that he was the oldest of six engineers in Lockheed's Electronic Systems-Mission Systems and Sensors unit, that his title was project specialist, senior staff, and that he was the only one let go in that round of layoffs. He said that he was given no specific reason for his termination and that his job performance had been "excellent." He also said that supervisors and company executives regularly made remarks about older workers.

The $51.6 award breaks down like this:

  • $50 million for punitive damages under the New Jersey Law Against Discrimination,
  • $520,000 for economic loss,
  • $520,000 for willful action against the Age Discrimination and Employment Act (ADEA) and
  • another $520,000 for pain and suffering.

(Note that in Texas, the size of the this verdict would have been greatly reduced by the application of damages caps passed by the Texas legislature to protect companies who commit this type of wrongful conduct.)

Discrimination against older workers remains a significant problem

While the size of the Lockheed verdict is certainly surprising, workplace age discrimination, unfortunately, is not. A 2013 AARP study found that almost two in three workers ages 45 to 74 said they have experienced workplace age discrimination.

And with an aging US population and ongoing economic uncertainty, more people plan to or must stay in the workforce well past the age of 65. As a result, managers and supervisors should take steps to ensure all employees are vigilant and sensitive to behavior and practices that can be grounds for an age discrimination claim.

Can You Trust Your Company's HR Department?

A fellow blogger has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."
Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

 

 

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

  1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.  
  2. You know that written report from number 1, above?  KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost. 
  3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally. 
  4.  Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent. 

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.