In a 4-1 decision, justices determined in Lales v. Wholesale Motors Co. that supervisors can’t be held personally liable in retaliation claims. The case has been closely watched because of the issue of personal liability for workers and supervisors who weren’t defended by their employers.
The Seventh Circuit Court of Appeals recently issued a decision in Alexander v. Casino Queen Inc. that reversed a trial court summary judgment halting a race discrimination claim from moving forward.
Now, two black casino cocktail waitresses who claim they were treated poorly in comparison to their white counterparts will be allowed to have their case heard at trial. The appellate court struck down the trial court’s earlier finding that the women had not established they had suffered adverse employment action.
This case involved the very same Illinois casino that just a few years ago settled a large racial discrimination claim brought by more than 70 current and former black employees.
It’s unfortunate that today, in 2013, beliefs persist that women should not enter or excel in certain positions or career fields.
Sometimes, it’s a stance that is held by one individual with significant power. Other times, we find it’s a dogma that is pervasive in certain career fields.
Our Boston discrimination attorneys know women in some careers enter their profession expecting discrimination. Others are thoroughly shocked when they face it. The fact is such discrimination has been known to exist in virtually every type of industry since women first entered the workforce en mass in the 20th century. It is in no way limited to blue collar industries or even those traditionally held by men.
This point was further illustrated recently in the contrast between two announcements regarding lawsuits filed by the U.S. Equal Employment Opportunity Commission.
The first involves a national food distributor based out of Baltimore. The EEOC recently filed a lawsuit alleging that the chain has engaged in a practice of routinely failing or refusing to hire female workers for operative positions. The EEOC contends this has been going on since at least 2003.
The company, Performance Food Group Inc., is alleged to have systematically turned down female applicants for the following positions:
- driver check-in;
- forklift operator;
- driver trainee;
- yard jockey;
- receiving clerk;
- meat packer;
- meat cutter;
- sanitation specialist;
- warehouse supervisor;
- transportation supervisor.
Furthering the EEOC’s case is the fact that the senior vice president, as well as a number of other higher-ranking management officials, reportedly made comments indicating managers were to favor male job candidates over females. Vice presidents of the firm were said to have questioned why the firm should “waste its time” by hiring women, purporting that women would slow down production. Further, there were statements made to the effect that the women who already had jobs should be pushed out. One management official asked why the firm continued to hire “these girls”.
In one situation, a female was refused a promotion for which she was qualified, solely on the basis of her gender. The vice president refused to look at her resume, despite a strong recommendation from her supervisor, saying he wasn’t interested in considering a female for the job.
Such conduct, if proven true, would clearly violate Title VII of the Civil Rights Act of 1964. After failing to reach a pre-litigation agreement, the EEOC filed a lawsuit against the firm.
In a separate case, the EEOC won a lawsuit against a computer software firm based in Ohio for gender discrimination. Exel, Inc. must pay $500,000 total — $25,000 in compensatory damages and $475,000 in punitive damages — for refusing to promote a female employee on the basis of her gender. Back pay will also be awarded to the worker in question.
Back in 2008, a female worker applied for a supervisory promotion. Both she and the EEOC say she was denied solely on the basis of her gender. The EEOC presented evidence showing that male workers were regularly promoted after verbally requesting consideration for open positions.
In this case, the female worker was recognized throughout the firm as the most knowledgeable staffer with regard to inventory control. Yet she was denied a promotion for her boss’s job after he vacated the position. The former supervisor had even recommended her for the post. The general manager reportedly responded that he would “never put a woman in that position.”
While the woman was told the position would remain unfilled, another male employee was told he would be given the position – but only if he agreed to keep it a secret. Later, the female worker was required to train him because he had no inventory experience. This, the EEOC rightly noted, was indicative of the duplicity toward the female staffer. The jury agreed.
It’s been two years since the split 5-4 U.S. Supreme Court ruling in Wal-Mart v. Dukes was handed down in June 2011.
Since then, our Boston employment discrimination attorneys know that the echoes of that case have been heard in civil lawsuits throughout the country. Non-profit journalism site ProPublica reports that since the ruling was handed down, it has been cited more than 1,200 times in subsequent federal and state court rulings.
The Dukes case involved female employees of the retail giant who claimed they were systemically discriminated against in favor of their male colleagues when it came to issues of pay and promotion. Encompassing some 1.5 million workers and with billions of dollars at stake, it was one of the most expansive class action cases ever brought. The court didn’t disagree that the woman had been treated unfairly. However, it determined that there wasn’t enough commonality among class members to warrant a class action claim.
One woman sued after her bosses at the small hotel where she worked allegedly fired her for needing a small oxygen tank.
Another case involves power company workers who were barred from returning to the job after receiving medical treatment for certain conditions.
And yet another involved a man who was denied a job at a fast food chain because he is HIV-positive.
The majority of gender discrimination lawsuits in Boston and throughout the country are initiated by women who have been treated unfairly.
However, there are some businesses and even industries in which men are the ones being singled out for unfavorable treatment due to their sex. (As a side note, transgender discrimination is also forbidden under federal law. The EEOC has held that discrimination against transgender employees is based on their sex, and is thus forbidden under Title VII of the Civil Rights Act of 1964.)
There have been a handful of recent examples to illustrate how men have been excluded from jobs, denied promotions, given unequal pay and even been fired because of their gender.
One of those was a case out of Florida at a dating service that, according to the U.S. Equal Employment Opportunity Commission, refused to hire men and also reportedly retaliated against a manager who spoke out against this kind of discrimination.
The company had been in business for approximately two decades and, during that time, the firm “wouldn’t even consider” hiring men to serve as dating directors and inside sales representatives. The primary function of these positions was to “fix up” single men and women for romantic dates.
Company representatives openly took the stance that “men weren’t suited to do this work” and that clientele preferred working with female representatives.
The fact that the company was so open about it just goes to show that male gender discrimination is not viewed in the same light as female gender discrimination. It’s somehow seen as less serious or as having less of a negative impact on those involved. That’s clearly not the case.
In 2009, the dating service’s female human services director made it clear to company leaders that she opposed the company’s no-male employee policy. She told the senior executives flat-out that it was not only wrong, but against the law. Two days later, she was fired.
That former human resources director will receive $131,000 of a $900,000 settlement agreement recently reached by the company and the EEOC. The rest of the money is going to be secured in a fund for access by men who were turned down for jobs over the years. It’s unclear how many that might include, though it seems several thousand applied for sales positions through online job websites. Though we don’t know how many qualified applicants were actually processed and then turned down on the basis of their gender.
Federal law does allow (very narrowly) that certain positions may be held only by one sex if gender is a “bona fide occupational qualification.” Some examples of that might be a Hooters Girl or a washroom attendant. However, being a sales representative at a dating service isn’t one of them.
Another recent male gender discrimination case involved a suit filed against the federal government’s immigration enforcement agency last year. The employee alleged that he was turned down for a high-level position with the Immigrations and Customs Enforcement agency in favor of a less-qualified female employee. He said his boss had made it clear she favored female workers. The employee said he suffered retaliation when he threatened to file a complaint of discrimination.
He added that the work environment was sexually-charged and hostile toward men.
The boss in question resigned, and the employee received a settlement of $175,000.
Allegations of gender discrimination by a Massachusetts doctor against an area hospital have resulted in one of the largest settlements of its kind, with the Beth Israel Deaconess Medical Center agreeing to pay $7 million.
Additionally, our Boston employment lawyers understand the hospital will be naming the organization’s pain clinic in her honor. Plus, the hospital has agreed to sponsor a yearly lecture series focusing on female health and also women’s academic contributions to the field of surgery.
The settlement with the former chair of anesthesia at the Harvard teaching hospital is believed to be among the highest for gender discrimination, though it’s difficult to say exactly because in most of these cases, the amounts and terms are confidential.
In this settlement, as in many others, the hospital and other defendants admit to no wrongdoing. That’s usually more of a formality. They know they’ve done wrong, otherwise they wouldn’t be willing to pay so much.
The plaintiff had held her position as chief of the division since 2000. Since that time, she alleged that the former surgery chief not only discriminated against her because of her gender, but that he did so quite openly.
For example, he reportedly made it a point to blatantly ignore her during meetings. He also allegedly was vocal in his lobbying to have her removed from her position.
There were times, she said, when he would allow the door to close behind him – literally in her face – if she was following behind him. When she spoke directly to him, he would respond by turning to a male employee to reply.
Internal memos and e-mails revealed that the chief surgeon wasn’t just uncomfortable working with the plaintiff, but with all women in general. One particularly damning correspondence penned by the chief surgeon read that he preferred to hire doctors in training who are tall, light-skinned males who are taught in Western schools.
The plaintiff complained to the hospital’s chief executive.
But that seemed to only make things worse. She said both men then became retaliatory toward her.
The executive reportedly said she was playing the victim and said it was something for the two of them to work out. On one occasion, he told her that the chief surgeon was unable to help himself with regard to his behavior.
When she went on sabbatical, the year before filing the lawsuit, the chief surgeon went on a crusade to oust her. Not long before she returned, the executive wrote to tell her she was being demoted. He said her management style was no longer appropriate, and she had failed to maintain a good relationship with the chief surgeon.
The 61-year-old plaintiff, who helped found the hospital’s pain clinic and continues to see patients there, said that the glass ceiling for women in top positions within academic medicine remains hard to breach.
She said she filed the lawsuit not because she was in need of the settlement funds, but because she felt an inherent obligation to ensure the doors she had forced opened stay open, and that those that were slammed in her face would not remain so for those who followed.
It’s been a trying journey. The lawsuit was first filed back in 2008. The settlement agreement was reached and announced just days before the case was set to go to trial – one that would have no doubt been closely watched and heavily covered by media. Undoubtedly, that was attention the hospital wasn’t trying to attract.
Another part of the reason the settlement may have been so large was that the plaintiff, as a renowned anesthesiologist in her field, had a rather high earning potential.
With the settlement, the hospital was able to “reaffirm and clarify” its stance on discrimination, reporting and retaliation, and the plaintiff was able to maintain her endowed professorship.
The hospital’s former chief executive had previously resigned after he came under fire for a personal relationship he developed with a female subordinate, despite ample warnings from board members and other executives about the negative example it set. He later ended up marrying that employee.
The relationship was a key point in the gender discrimination suit, as it was used to illustrate the executive’s flagrant disregard of appropriate workplace boundaries and rules.
The fact that employment and business laws in Massachusetts have failed to keep pace with the exponentially-expanding social media landscape should surprise no one – particularly when you recognize that the state’s “blue laws” still restrict certain firms from doing business on Sundays and holidays.
Our Boston business attorneys recognize that this has left both employees and employers with a huge question mark when it comes to legal information gathering and sharing with regard to potential applicants and current employees.
As an example, just because there is no law against using Facebook or Twitter to screen potential workers or monitor employees — does that mean you should? Are you crossing some shady legal line, or does it just make smart business sense?
On the one hand, social media networks are treasure troves of information to which companies may not otherwise have access. For example, many firms may find it valuable to ascertain whether an employee or potential employee is projecting the sort of image the firm wants to maintain. “Friending” current employees could also be a way to keep undesirable behavior in check, which may otherwise reflect poorly on the company.
There is ample concern that doing so may be a violation of discrimination laws, privacy rights, intellectual property rights and even National Labor Relations Act restrictions.
Now, there may be another consideration: A bill has been introduced by a state representative on the Committee on Labor and Workforce Development that would specifically limit an employer’s ability to mandate submission of social media log-in and password information as a condition of employment, as well as the employer’s ability to require employees to add their supervisor to their “friends” lists.
Rep. Cheryl Coakley-Rivera, who is introducing the measure, indicated that such actions open a window of information to employers that they would otherwise not be legally entitled to possess. For example, information such as a person’s age, marital status, religion, medical history or sexual orientation is readily available on these sites. Yet, current state law prohibits companies from asking applicants to reveal this kind of information — and employers are also prohibited from using it to make decisions regarding whether to hire or fire someone.
Coakley-Rivera introduced a similar bill last year, but it failed to make it into law. The new bill, called “An Act relative to social network and privacy employment,” was introduced last month. Not only would the measure make it illegal for companies to require employees or applicants to hand over passwords or add the business to its “friend” list, it bars companies from taking adverse employment action against a worker or applicant who refuses to do so.
The measure would exempt social media accounts created solely for professional use on behalf of the firm. It also would not stop a company from maintaining its policies on acceptable social media communication by employees or use of the firm’s own equipment.
As it now stands, the bill has a considerable amount of support, with 46 co-sponsors so far signing off. A total of six states have so far passed similar laws, and 11 other states have bills pending.
But even in the interim, employers may be taking a risk in requiring workers or potential workers to hand over this information. As we wait for the law to play catch-up with technology, it’s important for businesses with questions on the development of company-wide social media policies to consult with an experienced local business attorney for a better idea on how to proceed.
A former attorney for a large law firm in Massachusetts has filed suit against her ex-employer, whom she says fired her for taking leave after an adoption.
Our Boston employment lawyers know that similar to the protected maternity leave extended to new mothers of biological children, adoptive parents are eligible for the same leave under state law.
The Massachusetts Maternity Leave Act, M.G.L. c. 149, 105D, allows for up to eight weeks of time for which a female employee may be absent from her job for the purpose of either giving birth OR adopting a child and then subsequently caring for that new child. The law stipulates that adoptive parents, just like biological parents, may take time to prepare for and participate in the birth.
The protection extends to adoptive parents who are legally adopting any child under the age of 18 or under the age of 23 if the child is physically or mentally disabled. The law holds that the employee has to give at least two weeks’ notice and employers are not allowed to refuse this time, even in cases where doing so would create a hardship.
MMLA affords this opportunity to female employees, though the law makes note that if employers extend this time only to female workers and not male workers, they may be in violation of federal law, even if they are in compliance with the state law.
In this case, the plaintiff alleges that her law firm employer terminated her shortly after she formalized her adoption of a daughter from China and went on her protected leave period. She alleges that despite a long record of stellar reviews, she received her first negative review shortly after the adoption. Further, she was given a significant reduction in bonus pay.
She now says that she was discriminated against, as one of the firm’s older female employees, for taking a period of leave that was unquestionably protected. In addition to economic damages for back pay and interest, she is seeking $5 million compensation for punitive and compensatory damages, as well as attorneys’ fees.
In backing her claim, the plaintiff alleges that in her seven years working for the firm, only one female employee over the age of 50 was promoted to partner. Mind, you this was an agency that employed more than 1,000 lawyers. The majority of those who were so bestowed were under the age of 40, according to her contentions.
Complaints of gender discrimination can be difficult to prove, and require a legal representative with extensive experience. In many cases, it’s not enough to prove that an employer was dishonest about an employment decision; it must be proven that the dishonesty was intended to conceal discriminatory intent.
If a worker is fired in part, but not entirely, due to discrimination, is that enough grounds for legal compensation?
A Texas trial court thought so, and in 2006 ordered a hospital to pay a $3 million judgment to a doctor who had been terminated. However, the hospital appealed, saying only termination based solely on discrimination entitles a plaintiff to compensation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).
Our Boston employment lawyers note the U.S. Supreme Court has agreed to answer that question, which is posed in University of Texas Southwestern Medical Center v. Nassar.
The plaintiff doctor, of Middle Eastern descent, had been employed as a faculty member with the university, which was affiliated with a local hospital where the faculty substantially comprises the hospital staff. The doctor was a clinician at the branch of the hospital specializing in HIV/AIDS treatment.
After about three years of employment, he came under the supervision of a new chief of infectious disease medicine. She immediately raised questions regarding his billing practices and productivity. The following year, she reportedly remarked that Middle Eastern people are lazy. She later told another staffer that the hospital had hired another “dark skin Muslim” like the plaintiff, adding that she would be watching their productivity more closely than others. When the other staffer noted the plaintiff’s high level of productivity, the supervisor became critical of his billing practices.
The plaintiff doctor was eventually promoted, but his billing and productivity were more closely scrutinized than other doctors by the infectious disease chief. A second promotion was blocked as a result, according to his discrimination claim.
The plaintiff doctor ultimately resigned, citing “continuing harassment and discrimination” by the chief. He eventually landed another position at an AIDS clinic in California, but later filed suit against his old employer for discrimination.
A jury awarded the doctor approximately $500,000 in back pay and another $3 million for compensatory damages.
Upon appeal, justices held that the doctor had failed to prove that his working conditions were so intolerable that a reasonable employee would have felt compelled to quit. However, the court did uphold the jury’s finding that the doctor had been retaliated against. As such, the issue of monetary damages was sent back to the trial court for reconsideration.
In its petition to the U.S. Supreme Court, the employer conceded that while the decision in Price Waterhouse v. Hopkins required that the plaintiff need only prove discrimination as a motivating factor for adverse employment actions, the decision in Gross v. FBL Financial Services held a defendant employer would not be liable if the adverse action would have been taken for some other, non-discriminatory reason.
If the court finds in favor of the employer, it would have an impact on all future employment discrimination litigation, as it would increase the burden of proof required by the plaintiff. He or she would subsequently have to prove that discrimination was the sole reason, or at least the dominant reason, for adverse employment action, rather than one of several factors.