The news about Ebola and its effect on the workplace continues. Employers are struggling to understand the potential workplace implications of the disease and how to deal with employees who may have been exposed or who are reluctant to travel to parts of the world that might expose them to Ebola. I've posted on the topic here:
Some of my fellow law bloggers have been busy covering the situation:
Developing.
Marc Herman, writing for the Connecticut Employment Law Blog:
"94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs....'The EEOC contends that the biometric testing and health risk assessment [in some wellness programs] constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.'"
Remember, voluntary medical examinations as a part of a wellness program are fine. But if employees are penalized for not participating in the medical examinations, they are likely to be found to be involuntary.
Read Herman's entire article here.
Following up on my recent post on the subject, I had the opportunity to speak with Colin O'Keefe of LXBN on employees being terminated over Ebola. In the brief video interview, I share what I've been hearing on these firings and offer a bit of guidance to employers and employees on dealing with Ebola concerns.
Well, it has happened already. My firm is getting calls from employees who have been terminated or fear termination because their employers are afraid they may have contracted Ebola during recent trips to the African continent.
I was interviewed this week on WOAI-TV regarding this issue. Here's the video:
I think the most important points to take away on this issue are these:
Employers should keep in the mind that the chances one of their employees actually has Ebola is incredibly low. Don't make decisions based on fear and ignorance.
Employers should keep in mind that if an employee actually does have Ebola, that employee is likely protected from discharge by the Americans with Disabilities act. Employers have a duty to accommodate conditions such as this. In the case of Ebola, a short leave of absence is the obvious accommodation of choice. Whatever an employer does, it should be done thoughtfully and with the assistance of competent employment law counsel.
Employees should understand that people's fears of Ebola right now are disproportionately high and in some cases completely irrational. If you suspect that your employer is afraid you may have contracted the disease because you recently traveled to Africa or were near someone who did, open a dialogue with your employer. Employers are forbidden under the ADA from asking you about your health without solid evidence that you have contracted the disease but employees have no such restriction. Let cool heads and dialogue be the rule, not the exception.
In the case of Ebola, let's not let fear of the disease become more of a problem than the disease itself.
I have spent many years fighting against intentional civil rights violations in the workplace. Workplace discrimination is a terrible thing. It destroys careers, harms families, and is bad for the economy. And most people, I truly believe, are against it.
But what science is now showing us is that even very good, well-meaning people can discriminate at an unconscious level. According to this science, you are doing it right now as you read this.
You're faced with around 11 million pieces of information at any given moment, according to Timothy Wilson, professor of psychology at the University of Virginia and author of the book Strangers to Ourselves: Discovering the Adaptive Unconscious. The brain can only process about 40 of those bits of information and so it creates shortcuts and uses past knowledge to make assumptions.
So how do we deal with this information overload? Our brains compensate by making assumptions (aka "stereotypes") for everything...and everyone one we encounter. In other words, we are guided in our decision-making not just by the objective data we received but also by what we expect to be true. This can be an especially challenging problem for those who are trying to make hiring decisions in an ethical and unbiased manner. The hardest part of this is that we don't feel or believe that we are allowing bias to color our perceptions...but it does anyway.
This issue effects every company across the country and it is a serious problem that can only be addressed by actively discussing it and taking active steps to acknowledge and eliminate our unconscious biases. This Fast Company article discusses the problem and some tactics that we can all use to combat it. It's a good article and I commend it to your reading.
So if my biases are "unconscious" how can I do anything about them? After all, I don't even know I'm being biased right? Well, not exactly. We know you are being biased. We now know that we are all biased. So the remedy is to change the way we make decisions so that these unconscious biases are limited by the systems we design. Taking pictures, names, etc out of hiring materials so that initial hiring decisions (or interview lists) are made without knowledge of the candidates' demographic information is one simple example. Creating clear criteria for evaluating candidates before looking at their qualifications is another. More reliance on objective data and less reliance on your "gut" should be the goal.
The article discusses this in greater detail here. It is an important issue that I hope employers and HR specialists start to pay greater attention to.
Shell Oil Co. and Motiva Enterprises LLC, which markets Shell gasoline and other products, have agreed to pay $4,470,764 in overtime back wages to 2,677 current and former chemical and refinery employees as a result of investigations by the U.S. Department of Labor that found violations of the Fair Labor Standards Act.
The department's Wage and Hour Division conducted investigations at eight Shell and Motiva facilities in Alabama, California, Louisiana, Texas and Washington, which found that the companies violated FLSA overtime provisions by not paying workers for the time spent at mandatory pre-shift meetings and failing to record the time spent at these meetings.
"Employers are legally required to pay workers for all hours worked," said U.S. Secretary of Labor Thomas E. Perez. "Whether in the international oil industry, as in this case, or a local family-run restaurant, the Labor Department is working to ensure that responsible employers do not experience a competitive disadvantage because they play by the rules."
The Wage and Hour Division's Houston District Office coordinated investigations with the Gulf Coast, New Orleans, San Francisco and Seattle District Offices to ensure nationwide compliance by Shell and Motiva. The findings revealed that those eight Shell Oil and Motiva refineries failed to pay workers for time spent attending mandatory pre-shift meetings. The companies required the workers to come to the meetings before the start of their 12-hour shift. Because the companies failed to consider time spent at mandatory pre-shift meetings as compensable, employees were not paid for all hours worked and did not receive all of the overtime pay of time and one-half their regular rate of pay for hours worked over 40 in a workweek. Additionally, the refineries did not keep accurate time records.
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour. Workers who are not employed in agriculture and not otherwise exempt from overtime compensation are entitled to time and one-half their regular rates of pay for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees' wages, hours and other conditions of employment, and it prohibits employers from retaliating against employees who exercise their rights under the law.
Source: US Department of Labor
Many will be surprised to learn that for years FedEx has treated its delivery drivers as independent contractors rather than as normal employees.
Why you ask?
The answer is simple: Money.
FedEx avoided health care costs, workers compensation insurance payments, paid sick leave and vacation, retirement costs and more. FedEx made drivers pay for their FedEx-branded trucks, FedEx uniforms, and those little hand-held scanners they use. And don’t forget fuel, insurance, tires, oil changes, maintenance, even workers’ compensation coverage.
That all adds up to a lot of money. And that’s why these decisions out of the Ninth Circuit Court of Appeals are such a big deal. A three-judge panel of the appeals court ruled that FedEx drivers were employees “as a matter of law” under both California and Oregon law and “FedEx’s labeling of the drivers as ‘independent contractors’ in its operating agreement did not conclusively make them so.”
While I do not practice in California or Oregon, the tests at issue in these decisions do not appear all that different from the tests most other states that I am familiar with use to determine employee vs. independent contractor issues. And that fact could spell big trouble for FedEx and other employers attempting this strategy.
These decisions are part of a slowly-increasing level of scrutiny from the courts towards corporate efforts to save money by characterizing front-line workers as independent contractors and thus avoid normal employment costs. In another recent decision, the National Labor Relations Board’s general counsel issued an opiniondeciding to treat McDonald’s Corp. as a joint employer of its franchisees’ fast-food workers for the purposes of NLRB violation claims.
FedEx has already indicated that it plans to appeal these decisions.
The fight rages on with regard to the EEOC’s position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state’s lawsuit.
The state’s lawsuit was based on the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas’ state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.
It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state’s legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.
President Barack Obama on July 31, 2014 signed the Fair Pay and Safe Workplaces Executive Order, continuing with the “year of action” to move forward with authorized and necessary reforms to labor and employment laws despite Congressional gridlock. Since his State of the Union pledge, the President has signed several executive orders impacting federal contractors that will raise the minimum wage, ban discrimination against LGBT workers, and prohibit retaliation for discussing compensation.
The Fair Pay Executive Order requires prospective federal contractors to disclose labor law violations and will give federal agencies more guidance on how to consider such breaches when awarding federal contracts. Significantly, the Executive Order extends the Franken Amendment to companies with federal contracts (not just defense contractors) over $1 million, prohibiting them from requiring their employees to enter into pre-dispute arbitration “agreements” for disputes arising out of Title VII of the Civil Rights Act of 1964 or from torts related to sexual assault or harassment (except when valid contracts already exist).
The Franken Amendment, first enacted in 2009, bans defense contractors receiving federal contracts over $1 million from forcing their employees to arbitrate the same types of claims. The Executive Order builds on a policy already passed by Congress and successfully implemented by the Department of Defense, the largest federal contracting agency, and will help improve contractors’ compliance with labor laws. The White House fact sheet on the Executive Order can be found at www.whitehouse.gov.
The National Employment Lawyers Association and its Fair Arbitration Now coalition partners issued a statement praising the President’s action, urging Congress to ban forced arbitration for all employment disputes by enacting the Arbitration Fairness Act (AFA, H.R. 1844/S. 878).
Courts sometimes get confused about who in the court system is supposed to decide whether an adverse employment decision was taken because of the employee’s protected class (age, race, gender, etc). That decision belongs to a jury. Let’s say that again because it is something that has been increasingly forgotten by some judges: That decision belongs to a jury.
Wilson v. Cox, No. 12-5070 (D.C. Cir. June 3, 2014) shows that some courts of appeals are starting to push back on this trend. In Wilson, the Court makes the point that even if the employer might have had a very good and non-discriminatory reason for eliminating a position, when the principal decision maker also makes a statement to the terminated employee that “you didn’t come here to work, you came here to retire,” that comment, standing alone, is enough to require a jury – not the judge – to determine whether the termination was due to age discrimination or not. The Court explained:
“While Cox in that statement expressed a general concern about a perceived tendency of older guards to fall asleep, he testified that he had heard about only one such incident. Additionally, the chief of resident services testified that he had never heard any reports about any guard sleeping on the job. Even if Cox in fact knew of one instance in which a guard fell asleep on the job, a statement indicating a generalized concern about older guards as a group, based on one incident alone, is suggestive of impermissible, inaccurate stereotyping. A reasonable factfinder could conclude that Cox attributed sleepiness to all older guards as a class and terminated the resident employee program on that discriminatory basis.”
Does this mean the plaintiff employee will necessarily win at trial? Nope. That’s not the point. The point is that a jury needs to hear the case and decide the facts, not the judge.
Texas politicians like to take credit for the so-called “Texas miracle”. They claim the states relatively stable economy has been made possible by their zealous opposition to “over-regulation, greedy trial lawyers and profligate government spending”. Researchers are finding, however, that this so-called “miracle” has been a horror story for many Texas Workers.
A report this week takes a look at a dismal situation that state leaders have rarely mentioned – the grim side of the workplace: The State of Teas has a record of high worker fatalities and weak benefits. In fact, Texas has led the nation in worker fatalities for seven of the last 10 years, and when Texans get hurt or killed on the job, they have some of the weakest protections and hardest-to-obtain benefits in the country. The New York Times reports:
Texas is the only state that does not require private employers to carry workers’ compensation insurance or a private equivalent, so more than 500,000 workers — about 6 percent of the work force — receive no occupational benefits if they are injured on the job. On-the-job injuries can leave them unable to work, and with little recourse.
More than a million Texans are covered by private occupational insurance from their employers. Those plans are not regulated by the state but are often written to sharply limit the benefits, legal rights and medical options of workers.
Companies that carry workers’ compensation are given immunity from employee negligence lawsuits. While employers offering private compensation insurance are not protected from such lawsuits, many limit their legal exposure through the fine print of private occupational policies that employees accept when they are hired.
“Negligence liability can be contained by mandatory arbitration,” boasts one pro-industry study, conducted by claims processing company Sedgwick.
A 1998 Texas Supreme Court ruling, The Texas Mexican Railway Co. v. Lawrence P. Bouchet, also cleared the way for employers that do not carry workers’ compensation to fire injured workers without fearing a state retaliatory firing lawsuit. The decision was written by Greg Abbott, then a justice on the court and now the Republican attorney general and a candidate for Texas governor.
It is still illegal for employers in the workers’ comp system to retaliate against a worker for pursuing an injury claim, but the Bouchet ruling removed that prohibition for employers that do not carry the state-regulated coverage.
I now see an increasingly large number of employees who come through my office who have been injured on the job and can't get benefits or terminated for reporting an injury, or both and I simply cannot do anything for them because Texas law simply doesn't protect them. The message to Texas employees is clear: if you get hurt on the job in this state nobody cares and no one will help you. And it looks like it will stay that way as long as the governor, the attorney general, the commissioner of the Texas Workers Compensation Commission and many in the legislature remain in the pocket of big business.
More: You can read the entire New York Times report here.
A recent New York Times article discusses the fact that employers are feeling increasingly free to abuse non-competes and force all types of employees, from camp counselors to hairdressers, to agree to them in order to keep their jobs. The article notes:
Noncompete clauses are now appearing in far-ranging fields beyond the worlds of technology, sales and corporations with tightly held secrets, where the curbs have traditionally been used. From event planners to chefs to investment fund managers to yoga instructors, employees are increasingly required to sign agreements that prohibit them from working for a company’s rivals.
The United States has a patchwork of rules on noncompetes. Only California and North Dakota ban them, while states like Texas and Florida place few limits on them. When these cases wind up in court, judges often cut back the time restraints if they’re viewed as unreasonable, such as lasting five years or longer.
As noted in the article and by Rob Radcliff in his blog post on the subject this week, Texas employers have great leeway in how they use noncompete agreements. As a result, noncompete abuse has come to be seen as just a normal business practice in the state. Radcliff writes:
The reason behind non-competes appearing in more industries and occupations is because there is no downside for an employer to insist on such a covenant. First off, a Texas employer can include and insist on a non-compete or non-solicit and then choose not to enforce it. So the employer gets the benefit of intimidating or at least making an employee think twice about moving to a competitor but then never sue. The employer could also send the former employee and their new employer some type of demand letter letter and force some type of dialogue or resolution. Basically, the employer can us the threat of enforcing the non-compete without having a court every construe its terms or determine whether it is actually enforceable.
Why don’t more employees challenge non-compete in court? The reason is simple – $$$$$. Most employees don’t want to and can’t fund litigation to find out if there non-compete is enforceable.
Unfortunately what we have seen in Texas is that noncompetes have become the tool of choice for employers to attempt to restrict fair competition and suppress employee mobility. But Texas isn't alone in this regard and now corporate overreaching is starting to create a backlash among the public and state legislatures in many states. California and North Dakota already ban noncompetes altogether. Reform efforts are currently underway to ban or restrict the abuse of noncompetes in several states, including Oregon, Colorado, and Massachusetts. (We recently wrote about the Massachusetts effort here.)
I, for one, support this trend and hope that all states move to ban the fundamentally un-American practice of requiring an employee to give up his or her right to work in the future in return for an at-will job. At the very least they should be scaled back to apply only to the highest level of employees or those employees who truly have access to secret recipes or true trade secrets (no your rolodex does not qualify). Current they are (at least in Texas) out of control and damaging to both employees and to businesses’ ability to find quality employees in many fields.
Daniel Schwartz has some good thoughts on the issue of dealing with employees who are distracted by major sporting events like the world cup. He cites European employers who caution against being overly harsh with employees who are distracted by the World Cup.
One overseas company goes even further by recommending that employers adopt a “flexible” workplace policy, suggesting that employers should have agreements in place to deal with requests for time off, sickness absence or watching TV or websites. ... I wouldn’t go nearly that far. You don’t need “workplace agreements” here in the U.S. Work is still work and employers can still require employees to get work done during work hours — even with the World Cup. But if you do find your employees going a bit astray, consider counseling them before serious discipline. No need to issue a red card when a yellow one, or even a warning, will do.
Daniel Schwartz - "World Cup Fever: Workplace Considerations Before Giving Out That Red Card"
Smart approach. If an employer is going to lose a certain amount of productivity to the event anyway, why lose a bunch of employee good faith at the same time. Look for a way to embrace and capitalize on the excitement of the even. Have a "Wear your favorite team colors to work" day or set up a viewing room in the office and allow employees to sign up for flex time so they can watch their favorite team but then agree to work different hours to make up the time.
Following California, Massachusetts appears to be moving closer to banning noncompete "agreements" in the employment context. Dawn Mertineit and Erik Weibust report in the Trading Secrets blog:
As the New York Times reported on Sunday, many of those who testified at the hearing opined that employee non-competes stifle competition. For example, several legislators spoke of constituents who they deemed “trapped” in jobs because of non-competes signed years earlier, and insinuated that many employees are “ambushed” with non-compete agreements after they have quit their former jobs and rejected other offers. The Boston Globe and the Boston Herald have each recently published articles about the purported perils of employee non-compete agreements, both of which (as well as the New York Times article) referenced a summer camp in Wellesley, Massachusetts that makes its camp counsellors sign them.
I hope this trend continues and all states move to ban the fundamentally un-American practice of requiring an employee to give up his or her right to work in the future in return for an at-will job. At the very least they should be scaled back to apply only to the highest level of employees or those employees who truly have access to secret recipes or true trade secrets (no your rolodex does not qualify). Current they are (at least in Texas) out of control and damaging to both employees and to businesses' ability to find quality employees in many fields.
U.S. Supreme court
The Robbie Tolan shooting incident took place in Bellaire, Texas, on December 31, 2008, when 10-year Bellaire police veteran, Jeffery Cotton, shot unarmed Robbie Tolan, son of famed baseball player, Bobby Tolan, in his parents' driveway. Tolan sustained serious injuries in the shooting and charges were pressed against Cotton. On May 11, 2010 a jury reached a verdict of not guilty and Cotton was acquitted, much to the dismay of minority leaders and critics around the country who continue to cite the case as an example of racial profiling and institutional racism. Here is one Court's recitation of the facts of what happened that evening:
At around 2:00 on the morning of December 31, 2008, John Edwards, a police officer, was on patrol in Bellaire, Texas, when he noticed a black Nissan sport utility vehicle turning quickly onto a residential street. The officer watched the vehicle park on the side of the street in front of a house. Two men exited: Tolan and his cousin, Anthony Cooper.
Edwards attempted to enter the license plate number of the vehicle into a computer in his squad car. But he keyed an incorrect character; instead of entering plate number 696BGK, he entered 695BGK. That incorrect number matched a stolen vehicle of the same color and make. This match caused the squad car’s computer to send an automatic message to other police units, informing them that Edwards had found a stolen vehicle.
Edwards exited his cruiser, drew his service pistol and ordered Tolan and Cooper to the ground. He accused Tolan and Cooper of having stolen the car. Cooper responded, “That’s not true.” And Tolan explained, “That’s my car.” Tolan then complied with the officer’s demand to lie face-down on the home’s front porch.
As it turned out, Tolan and Cooper were at the home where Tolan lived with his parents. Hearing the commotion, Tolan’s parents exited the front door in their pajamas. In an attempt to keep the misunderstanding from escalating into something more, Tolan’s father instructed Cooper to lie down, and instructed Tolan and Cooper to say nothing. Tolan and Cooper then remained facedown.
Edwards told Tolan’s parents that he believed Tolan and Cooper had stolen the vehicle. In response, Tolan’s father identified Tolan as his son, and Tolan’s mother explained that the vehicle belonged to the family and that no crime had been committed. Tolan’s father explained, with his hands in the air, “[T]his is my nephew. This is my son. We live here. This is my house.” Tolan’s mother similarly offered, “[S]ir this is a big mistake. This car is not stolen. . . . That’s our car.”
While Tolan and Cooper continued to lie on the ground in silence, Edwards radioed for assistance. Shortly thereafter, Sergeant Jeffrey Cotton arrived on the scene and drew his pistol. Edwards told Cotton that Cooper and Tolan had exited a stolen vehicle. Tolan’s mother reiterated that she and her husband owned both the car Tolan had been driving and the home where these events were unfolding. Cotton then ordered her to stand against the family’s garage door. In response to Cotton’s order, To-lan’s mother asked, “[A]re you kidding me? We’ve lived her[e] 15 years. We’ve never had anything like this happen before.”
The parties disagree as to what happened next. Tolan’s mother and Cooper testified during Cotton’s criminal trial1 that Cotton grabbed her arm and slammed her against the garage door with such force that she fell to the ground. Tolan similarly testified that Cotton pushed his mother against the garage door. In addition, Tolan offered testimony from his mother and photographic evidence to demonstrate that Cotton used enough force to leave bruises on her arms and back that lasted for days. By contrast, Cotton testified in his deposition that when he was escorting the mother to the garage, she flipped her arm up and told him to get his hands off her. He also testified that he did not know whether he left bruises but believed that he had not.
The parties also dispute the manner in which Tolan responded. Tolan testified in his deposition and during the criminal trial that upon seeing his mother being pushed, he rose to his knees. Edwards and Cotton testified that Tolan rose to his feet.
Both parties agree that Tolan then exclaimed, from roughly 15 to 20 feet away, “[G]et your fucking hands off my mom.” The parties also agree that Cotton then drew his pistol and fired three shots at Tolan. Tolan and his mother testified that these shots came with no verbal warning. One of the bullets entered Tolan’s chest, collapsing his right lung and piercing his liver. While Tolan survived, he suffered a life-altering injury that disrupted his budding professional baseball career and causes him to experience pain on a daily basis.
A civil suit followed the criminal trial. This suit was dismissed by the court through a process called summary judgment. The Fifth Circuit Court of Appeals agreed holding that there was no evidence that the police officer violated a clearly established law (an element needed to overcome a police officers normal immunity to civil suits such as this one).
Note that in the summary judgment context, the Court is not supposed to weigh the evidence or decide who should probably win at trial. That's the jury's job. In the summary judgment context, the Plaintiff should win if there is any question as to an issue of fact in the case. In this case it is hard to understand how there could be no question as to the police officers possible violation of law given that his own county's district attorney chose to criminally prosecute him for just such a violation. Nevertheless, the court found "no evidence" and dismissed the case.
Critics would argue that this is yet another instance of the court refusing to allow a case to go to the jury by usurping the legitimate role juries. Many practitioners have lamented this increasingly serious problem in the federal court system over the last few years.
That's where this case takes a surprising turn. Last week the U.S. Supreme Court vacated and effectively reversed the Fifth Circuit's decision, sending the case back to the appellate court for reconsideration. The court's per curium opinion (A "per curiam" decision is a decision delivered via an opinion issued in the name of the Court rather than specific judges.) stated that the lower court had failed to adhere to the fundamental principle that, at the summary judgment stage, every reasonable inference should be drawn in favor of the non-moving party (here the plaintiff). More specifically, the Court stated:
[The] Fifth Circuit failed to adhere to the fundamental principle that, at the summary judgment stage, reasonable inferences should be drawn in favor of the non-moving party, the decision below is vacated and remanded so that the Fifth Circuit can determine whether, when the evidence offered by the petitioner -- who was shot by the respondent, a police officer -- is properly credited and factual inferences are reasonably drawn in his favor, the police officer’s actions violated clearly established law.
***
And while “this Court is not equipped to correct every perceived error coming from the lower federal courts,” Boag v. MacDougall 454 U. S. 364, 366 (1982) (O’Connor, J., concurring), we intervene here because the opinion below reflects a clear misapprehension of summary judgment standards in light of our precedents.
This is a very notable case because such action by the Supreme Court is highly unusual. The high court simply does not normally get involved to correct lower courts for simply "getting it wrong." They reserve their opinions for cases in which a key issue of law needs to be interpreted, normally to mend a split in legal interpretation between the various lower courts.
For this reason I don't think it is going too far out on a limb to opine that the Supreme Court was trying to make a point in this case regarding the direction of summary judgment rulings by lower courts throughout the country. For years, civil rights attorneys practicing employment law have been lamenting the practice of courts expanding the use of summary judgment rulings beyond their intended role in the process and invading the province of the jury. More recently, academics and even federal judges have taken note of the problem, declaring that the practice is "gutting" anti-discrimination laws and quickly leading to the death of the jury trial for such cases.
So, while this decision may get little coverage in the normal or even the legal press, I think that may very well be the most important decision the Supreme Court issues this term. The importance of the jury trial in protecting individual Americans from powerful forces, whether they be government or corporate, cannot be overstated. John Adams said it this way:
The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party [civil suits]. No man's property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws. What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!
Letter of John Adams to the Boston Evening Post.
Thomas Jefferson added "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
This opinion shows that even the U.S. Supreme Court has taken note of this issue. Many practitioners and judges now fear that too many federal judges have gotten so caught up in the minutia of hyper-technical summary judgment tests that they fail to see the forest for the trees. The letter of the law regarding summary judgment does not favor the granting of summary judgment motions in a high percentage of civil rights employment cases. Quite the opposite. The letter of the law states that summary judgment is a tool to be used sparingly and only to weed out the most meritless of cases. The default is always supposed to favor the resolution of factual disputes by a jury trial.
In Tolan, the country's highest court has gone to a rather extraordinary length to make this point yet again. Let's hope the lower courts are listening.
READ: Supreme Court’s Full Opinion
Following the Supreme Court’s decision in Tolan, the Fifth Circuit Court of Appeals revised its original decision slightly, vacating a small portion of the District Court's decision, and remanded the case back to the District Court for further review. The District Court set a trial date for September 2015. A few days before the trial was scheduled to begin, the federal judge removed the City of Bellaire as a defendant in the lawsuit, which prompted the Tolan family to file a motion for the judge to recuse herself. According to the Tolan family, the judge then dismissed all of the plaintiff's expert witnesses, but none of the defense's expert witnesses. Robbie Tolan reported being under a great deal of emotional distress during the seven-year court proceeding and told his family he did not want to continue the process. The family decided to settle the case with the City in lieu of a trial. According to the settlement papers in the case, the family settled with the City of Bellaire for $110,000.
Russell v. Citigroup, Inc. (6th Cir., April 4, 2014) In this case the company tried to retroactively apply a newly-signed arbitration agreement to a case after the case had already been filed. Not surprisingly, the court rejected this novel temporal approach:
From 2004 to 2009, Russell worked at Citicorp’s Florence, Kentucky call center. He had signed a standard contract to arbitrate any disputes with the company. The agreement covered individual claims but not class actions.
In 2012, Russell filed a class action against the company, claiming that the company did not pay employees for time spent logging into and out of their computers at the beginning and end of each workday. Citicorp did not seek arbitration.
In 2012, with the lawsuit still in progress, Russell applied to work again at Citicorp’s call center and was rehired. Citicorp had updated its arbitration contract to cover class claims as well as individual ones. Russell signed the new contract and began work in the call center. Russell did not consult with his lawyers before signing the new contract.About a month later, Citicorp’s outside attorneys learned that he had been rehired and sought to compel Russell to arbitrate the class action, which by then had begun discovery.
The district court held that the new arbitration agreement did not cover lawsuits commenced before the agreement was signed. The Sixth Circuit affirmed.
Download the opinion here: Russell v. Citigroup, Inc.
Pitre Inc., an Albuquerque car dealership, has agreed to settle a same-sex sexual harassment and retaliation lawsuit filed on behalf of over 50 workers for over $2 million dollars. In the lawsuit, the employees charged a former lot manager, under the direction of the dealership's general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. They also alleged that the manager retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of the Company raised such concern that a U.S. District Court judge granted a preliminary injunction prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants. In case you were wondering -- Yes, such an injunction is pretty unusual.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, which includes harassment of individuals of the same sex. When an employer disciplines, terminates, or takes other punitive measures against an employee for objecting to workplace discrimination, the employer further violates Title VII's anti-retaliation provision.
Here is a copy of the press release.
Equal pay for women is in the spotlight of the Texas governor's race, and figures from the Texas Attorney General's office show most female assistant attorneys general make less on average than do men in the same job classification. The San Antonio Express News has published an analysis of the agency's pay statistics and found that of the top 20 highest-paid employees at the agency, just three are women. Of the 100 top positions, only 37 are held by women. The analysis indicates that the disparity cannot be accounted for simply by seeking a correlation between experience and pay among the assistant attorneys general.
Does this necessarily mean that the Attorney General is purposely discriminating against female lawyers in the agency? Possibly not. But it doesn served to shine a light on a problem the affects employers all across the country - that being systemic gender discrimination against women based on old ways of thinking about gender in the workplace.
What is the Equal Pay Act?
In 1963, Congress passed the Equal Pay Act ("EPA" or the "Act") as an amendment to the Fair Labor Standards Act, to "prohibit discrimination on account of sex in the payment of wages by employers." Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of "concern for the weaker bargaining position of women" to provide a remedy to discriminatory wage structures that reflect "an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman." It should be noted, however, that the EPA protects both men and women.
The EPA prohibits "employer[s] ... [from] discriminat[ing] … on the basis of sex by paying wages to employees [...] at a rate less than the rate [paid] to employees of the opposite sex [...] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]" To establish a case under the EPA, an employee must show that:
Different wages are paid to employees of the opposite sex;
The employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and
The jobs are performed under similar working conditions.
The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility, and that are performed under similar working conditions.
It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements noted above, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.
What to do if you believe you have been paid less due to your sex / gender:
An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.
Important: If you believe that you are or have been discriminated against on the basis of your gender, you should consult an employment attorney immediately. The EPA contains a rigid two-year look back period. Any claim based on wages beyond that period may be lost so it is important that you file as soon as possible.
Read More: Female Lawyers in Texas AG's Office See Bigger Pay Gap Than in California
As we prepare to celebrate the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964, that law has been gutted. This seems to be the growing consensus among academics, employment attorneys and judges. Harvard Law School professor and former federal judge Nancy Gertner writes about the sad state of affairs in this article. Judge Gertner now teaches law at Harvard and was for many years one of the most distinguished federal trial judges in the nation. Gertner writes about a study that was commissioned to review the 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.
But don't go thinking that these results from Georgia are an aberration. They aren't. As Judge Gertner points out, "[t]he Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases."
The simple truth of the matter is that federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments. Gertner writes:
Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.
This is rapidly leading to a situation in which employees who have suffered discrimination can't even obtain qualified legal counsel to represent them. Fewer and fewer good lawyers will represent plaintiffs in these cases because the odds are stacked against them regardless of the strength of the case.
Unfortunately, if these trends don't change, the protections against discrimination envisioned by those who authored the Civil Rights Act may vanish forever. As the study cited by Judge Gertner points out, even cases with incredibly strong facts are statistically likely to be thrown out by a judicial system that has become hostile to even the most valid of discrimination claims. Take the example case cited by Gertner's article - a racial harassment case in which the plaintiffs alleged that their employer had created a racially hostile environment:
Mr. Whorton used the N-word at manager meetings and went out of his way to use that term despite plaintiffs’ objections. Defendants used the N-word “on virtually every occasion” they were present at the club, and it “was not uncommon” for that term to be directed towards plaintiffs. On one occasion, Mr. Whorton called a staff meeting to address the issue of his use of the N-word. During that meeting, he stated that he was too old to change the way he spoke, and he invited anyone who did not like it to quit. On another occasion, Mr. Whorton stated, “What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.” Plaintiffs allege four additional comments. First, Mr. Whorton once asked an unspecified person or persons whether “days like this [make] you wish you people had stayed in chains?” Another time, Mr. Whorton saw someone wearing a shirt with a monkey on it and asked, “Are the Obama shirts in?” Mrs. Whorton once said she realized she was using the classical form of the N-word when she should have been using the contemporary form. Lastly, Mr. Whorton complained to plaintiff that he could not trust African Americans, and said, “Dwayne . . . look at me! I know you don’t like this – n—–s don’t appreciate s–t.”Here, viewed in the light most favorable to the plaintiffs, the facts simply show that the Whortons are racist, bigoted, and/or offensive people. However, “Title VII is not a civility code, and not all profane or [racist] language or conduct will constitute discrimination in the terms and conditions of employment."
That's right, the court granted summary judgment against the plaintiffs in this case. The court held that this case was not even strong enough to warrant a jury trial.
Surprised by the result? Unfortunately, I am not. Any plaintiff-side employment lawyer can rattle off a long list of strong discrimination cases that the courts have poured them out on. It has become so bad that few new lawyers are willing to join the thinning ranks of plaintiff-side employment lawyers. Sadly, I can't blame them.
I learned of Judge Gertner's article while reading U.S. District Judge Richard Kopf's excellent Hercules and the Umpire blog article "When it comes to employment cases, judges are killing the Civil Rights Act of 1964." He has done a study of his own cases similar to the Georgia study (see here and here). Turns out his own dismissal rate of employment discrimination cases was just as bad as those courts studied in the Georgia study. He writes: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”
While I appreciate his candor, I do respectfully differ with Judge Kopf to the extent that he seems to imply that he feels his hands are tied with regard to this issue. The fact of the matter is that the letter of the law does not "favor the granting of summary judgment motions in a high percentage of [these] cases." Quite the opposite. The letter of the law states that summary judgment is a tool to be used sparingly and only to weed out the most meritless of cases. The default is always supposed to favor the resolution of factual disputes by a jury trial.
Unfortunately, many judges have, perhaps subconsciously, adopted a clear bias against victims of discrimination that has worked its way into the very fabric of how the judiciary approaches these cases. It has become the norm. It has become acceptable. But, it isn't in the letter of the law. It just isn't.
If there is a solution, it will have to start in the district courts. Summary judgment motions are primarily in the control of district court judges. Yes, courts of appeal weigh in but they generally support the district courts with regard to summary judgment rulings. Truly, the only way this situation can be remedied is if district court judges take a long hard look at their approach to discrimination cases and realize the degree to which bias has become a normal part of courts' analysis of summary judgment motions. The Supreme Court has never required that the idiotic McDonnell Douglas burden analysis be used in any case. In fact, a strong argument can be made that it violates F.R.C.P. 56 because of its rigidity. The only purpose McDonnell Douglas serves is as a way to make application of a bias appear to be application of a technicality. The lawyers and courts all know it isn't a legitimate test - that's why we don't ask juries to follow it in the few cases that make it to trial.
My modest proposal: dump the hyper-technical, bias-disguising tests. Get back to the basics. The letter of the law is actually quite simple - if there is a question of fact, the case must go to a jury. If there is any evidence that the decision at issue may have been motivated by illegal discriminatory bias then the case should not be summarily dismissed. It should be resolved by a jury trial. It really is just that simple.
As we approach the 50th anniversary of the passage of the Civil Rights Act of 1964, the question before us is whether we will we be celebrating a birthday or a funeral? The answer to that question is now in the hands of the district courts.
Mike Fox over at the Employer's Lawyer Blog has a link to another in an interesting line of cases that he has been following in the Sixth Circuit. This new line of cases has upheld jury verdicts for plaintiffs alleging gender discrimination based on sexual stereotyping. The most recent case is Barnes v. City of Cincinnati (6th Cir. 3/22/05).
The Barnes decision affirms a jury verdict where the plaintiff was awarded $320,511 (plus over $500,000 in attorneys fees.) Fox notes that in addition to removing any doubt that gender stereotyping is a viable cause of action under Title VII, at least in the 6th Circuit, the Court also approved the following mixed motive jury instruction:"Your verdict will be for plaintiff if you find that plaintiff demonstrated by a preponderance of the evidence that plaintiff's failure to conform to sex stereotypes was a motivating factor in defendant's decision to demote plaintiff, even if other factors . . . also motivated defendant's decision. However, if you find that defendant's treatment of plaintiff was motivated by both plaintiff's failure to conform to sex stereotypes and lawful reasons, you must decide whether plaintiff is entitled to damages. Plaintiff is entitled to damages unless defendant proves by a preponderance of the evidence that defendant would have demoted plaintiff even if plaintiff's failure to conform to sex stereotypes had played no role in the decision. Remember that plaintiff is not obligated to show that defendant's legitimate reasons played no role in the decision to demote plaintiff, nor does plaintiff need to show that the prohibited factor was the sole or principal reason or the true reason."Ouch! If I am representing a defendant, this is not the instruction I want the judge to give to the jury. However, with the exception of the "sex stereotypes" issue (that has yet to migrate out of the Sixth Circuit) this instruction certainly is a correct statement of the law. So far these cases have been limited to fringe fact patterns involving transsexual policemen, etc. However, it isn't hard to see how the same theory could be used with employers that maintain a, shall we say, overly macho work environment and have trouble dealing with male employees considered to be too effeminate or female employees that are too "butch".
The McKinney Law Firm represents clients in San Antonio, Central Texas and South Texas in employment law cases including discrimination, sexual harassment, wrongful termination, breach of contract and overtime claims.
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