Gruntled Employees

500,000 reasons to worry about retaliation claims

Good news, you're thinking. Your company's just been sued for sex discrimination, but your lawyer tells you that her discrimination claim stinks. You're almost certainly going to beat it. W00t! Squee!

Not so fast with your w00ts and your squees. As employment lawyers, we see this scenario play out far too often. Company gets hit with a weak discrimination claim. Turns out something bad happened to the plaintiff after he or she complained about the bogus discrimination. Wa-bamm! Now the company's stuck defending a much stronger retaliatory-discrimination claim.

This happened the other day here in Boston. The state's Probation Department faced a sex-discrimination claim (among other things) from an assistant chief probation officer. The case went all the way to a jury trial, which is unusual (less then one percent of these cases try). The Suffolk County jury found in the Department's favor on the sex-discrimination claims, but ruled for the plaintiff in her retaliation claim. It awarded her $6,000 in compensatory damages, and … wait for it … half a million dollars in punitive damages. Plus, now she's entitled to her attorneys' fees.

Now to be fair, the Probation Department has been having a bad year as the subject of daily newspaper stories about corruption and patronage. (For The Boston Globe's extensive coverage, click here.) But the lesson is still an apt one. In this case, after the employee complained of sex discrimination, she was stripped of supervisory duties and reassigned to cover the front desk. In its defense, the Department said that her performance had declined. Maybe it had. But that's a weak defense in a retaliation claim. (For more coverage of the case, see Marcella Bombadieri's piece in the Globe.)

Employers: When you're facing a potential discrimination lawsuit, you have to be extra careful to avoid doing something that could end up giving the employee a much stronger retaliation claim. It's a delicate situation to be in, but the wrong actions by the employer can be just the thing that the plaintiff needs to end up with a windfall.

For tips on how to treat a complaining employee, tweet or direct-message me at @jayshep, or send me an

Employees can sue over older policies

On Monday, the Supreme Court ruled that employees who failed to timely sue over the creation of a discriminatory policy may still be able to litigate the effects of that policy. The unanimous decision in Lewis v. City of Chicago (PDF, 139 KB), overturned a Seventh Circuit ruling.

In 1995, the City of Chicago set up a testing procedure for firefighter applicants that was later found to disparately impact black candidates. The plaintiffs in the case did not file their EEOC claims within 300 days of the testing procedure's creation. Instead, they filed within 300 days of when the procedure caused the rejections of their candidacies. The trial court allowed the lawsuit to proceed, but the Seventh Circuit reversed, holding that the lawsuit was untimely. With Justice Scalia writing the decision, the Supreme Court reversed.

In doing so, the Court concluded that the later effects of past actions can lead to liability under Title VII. This is because discriminatory-impact cases do not require proof of discriminatory intent. In an impact case, a plaintiff does not need to show that deliberate discrimination occurred within the past 300 days. The City argued that this would open the door for employers to "face new disparate-impact suits for practices they have used regularly for years." The Court was unmoved by this, ruling that the way Congress had amended Title VII necessitated this outcome.

Employers need to make sure that their policies and procedures are neither discriminatory nor have a disparate impact. It isn't enough to rely on the notion that "we've been doing it this way for years." When a policy affects a potential plaintiff is when the clock starts running.

What do you think? Will this change how some employers will operate? Share your thoughts in the comments.

Why I'm glad I'm not Microsoft's employment lawyer

First off, in case anyone missed it, I'm an Apple guy. My firm's all Macs and iPhones, and I know nothing about worms, trojan horses, or blue screens of death. Unsurprisingly, I'm not a fan of Microsoft.

But put my bias aside for a moment. Decide for yourself whether Microsoft passes the smell test here. This is a website image (click to magnify) from a Microsoft website intended for an American business audience:

Now look at the Polish version of the same site with the same photograph (again, click to magnify):

Notice anything different? Yes, the words are all in Polish. Good. What else? Yes, the monitor on the table in front of the woman isn't plugged into anything. Very good. Anything more subtle? Yes, the white laptop looks strikingly like a MacBook minus the Apple logo. Excellent. Is that it?

Oh yeah. The black guy is now a white guy. (Microsoft has since changed the Polish site to revert the new white guy back to the old black guy.)

D'oh.

Actually, that's not entirely true. Only the head and neck were changed. If you look carefully, you'll see that the white dude has the black dude's hand and wrist.

Let me be clear: I'm not saying that Microsoft did this because they're racist. It's far more likely that they did this because they're clueless. Some marketing flunky probably came up with data showing that there weren't a lot of blacks in Poland (or, apparently, monitors with power cords). Maybe they even tested too see if focus groups responded better to a white man than a black man. (Asians and white women are apparently OK.) But the point is, they did it. And they got caught. Looking stupid.

Three lessons for employers here:

1. Don't do something cute like this thinking that no one will find out. People always find out.
2. Ignore what marketers or even customers tell you about race or religion or sex or any other protected class. You can't use that information as an excuse to discriminate. If a plumbing company has a racist customer who says, "Don't send a black plumber to my house," you say, "Too bad." The customer isn't always right. Instead, tell the customer, "You're not our customer anymore."
3. Understand that stupid things like this have a tendency to find their ways into lawsuits. Someone somewhere will someday bring an unrelated race-discrimination claim against Microsoft, valid or not. If his or her lawyer is good enough, this little Photoshop flop will be used as evidence of bias, or at least a lack of sensitivity. It may not be legitimately so, and it may not be persuasive, but it will be something that Microsoft's employment lawyers will have to deal with.

That's why I'm glad I'm not their employment lawyer.

• • •

Hat tip to the excellent blog TechCrunch, which broke this story in a post by Michael Arrington ("Marketing Decapitation In Poland: Asians Ok, Blacks Maybe Not"). Make sure you read the comments there; many are hilarious. The two images came from that story. As I mentioned, the Photoshopped Polish one is no longer on the Microsoft site. But I've seen no statement from Microsoft denying what happened.

Update Microsoft has apologized in a statement, CNET has reported. Also, PhotoshopDisasters has good coverage here, Reddit has some terrific discussion here, and now TechCrunch has started up a contest inspired by this.

New Year, New Disability Lawsuits

Happy New Year!

Or is it?

Because today, January 1, millions of American employees will become disabled — including some of yours. No, we’re not predicting a rash of workplace injuries or a horrible epidemic. Instead, these workers got their newfound disabilities at the stroke of a pen. On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), significantly changing the Americans with Disabilities Act. The changes make it easier for individuals to show that they are disabled. The amendments also expand their protection under the law. Congress made the changes in response to court decisions that had narrowed the scope of protection over the 18 years since the ADA was passed.

Congress found that these court cases focused more on analyzing whether an individual’s impairment was considered a disability and less on whether employers had met their obligations under the ADA. The new amendments reverse that focus.

Before the amendments, disability lawsuits would sometimes turn on whether the employee was actually disabled — that is, did he or she have a “major life activity” that was “substantially impaired”? But the original ADA never explained what a “major life activity” was. The amendments change that, giving examples such as learning, reading, concentrating, thinking, and working.

The new law also relaxes the “substantially impaired” requirement. Congress determined that the original law created too high a bar to gaining ADA protections. Under the new law, the question of whether an individual is disabled requires little analysis.

Other court decisions had rejected disability status if the employee was able to use corrective measures — such as prosthetics, medications, and hearing aids — to overcome the impairment. But the amendments do away with this analysis; an employee is disabled even if she can hear with a hearing aid. Similarly, if an impairment is episodic or in remission, it still counts as a disability.

Because the ADAAA eases the definition of disability, employers should expect to see an increase in disability-discrimination claims. And those claims will now be harder to defend against, as employees who previously were not considered disabled now will be.

What you can do:

• Read the text of the ADA Amendments Act of 2008 here (PDF)
• Train supervisors to properly handle requests for accommodations
• Have procedures for handling employees’ health issues 
• Talk to your employment counsel as soon as an issue arises with a potentially disabled employee

Retaliation: now without pesky filing deadlines!

Imagine getting sued by an employee who was fired nearly four years ago. Following a recent Supreme Court decision, lawsuits from forgotten former employees will now become much more common. And more expensive.

In CBOCS West, Inc. v. Humphries, the Supreme Court ruled 7–2 in favor of an assistant manager at a Cracker Barrel restaurant. The employee sued claiming that he was fired because he was black and because he had complained about the dismissal of another black employee. What’s unusual about this case is that he sued under a Reconstruction-era statute, 42 U.S.C. § 1981. Unlike the more-common Title VII, Section 1981 does not address retaliation in its text. But the Supreme Court decided that the employee could sue for retaliation under that law nonetheless.

The implications for employers are substantial. With the Supreme Court “discovering” a retaliation claim in Section 1981, employees have a better option than the traditional Title VII claim. To bring a claim under Title VII, employees must first file with the EEOC — and they must do so within 180 days of the alleged retaliation (or 300 days if filing with a state agency). They must also file in court within 90 days of the EEOC’s issuing a right-to-sue letter. None of these restrictions applies to Section 1981, and an employee has four years to bring a claim. Also, Title VII caps the amount of damages an employee can win. Section 1981 has no cap.

In the Court’s opinion, Justice Breyer wrote that even though the statute lacked retaliation language, Congress must have intended that the right to “make and enforce contracts” free from discrimination included protection against retaliatory discrimination. The Court cited legislative reports that suggested Congressional intent to have § 1981 apply to retaliation claims. Justice Thomas wrote a scathing dissent (which Justice Scalia joined), arguing that if Congress intended to include retaliation in the statute, it would have written the law that way.

With no agency-filing requirements, no damages caps, and a much-longer limitations period, Section 1981 provides disgruntled employees claiming retaliation with a more-powerful weapon. Even employees who have already missed their Title VII deadlines can now file in federal court under Section 1981. Employers who thought they were safe after 180 days now have another three-and-a-half years to worry about new lawsuits.

What employers can do

• Don’t penalize employees for complaining about discrimination
• Train all supervisors to properly handle discrimination claims
• Read the Supreme Court’s opinion here (PDF, 228K)

Gruntled on MSNBC Live

On May 22, MSNBC Live did a story on whether parents in the workplace were getting preferential treatment over nonparents. The fine folks at MSNBC had been perusing Gruntled Employees, and invited me to appear and give the employers' perspective. We actually ended up doing two live segments. The first piece had me facing off with Kim Gandy, the president of the National Organization of Women. Here is the clip (it's 3:50 long), which is copyrighted by MSNBC:

Later that day, I went back on MSNBC Live to discuss the issue with Kimarie Rahill McDonald, a New Jersey family lawyer. In this piece (3:58 long), I noted the similarity between today's issues and a similar topic from a 35-year-old Mary Tyler Moore Show episode:

(Also copyrighted by MSNBC, and used here under the fair-use doctrine.) I thought MSNBC did a nice job with the topic, and both anchors directed the discussion well.

Note to aspiring TV personalities: it's a heck of a lot easier doing it the second time!

Wage-discrimination claims don't last forever

Late last month, the Supreme Court ruled that wage-discrimination claims are like other discrimination claims under Title VII: they expire in 180 days (or sometimes 300 days — distinction not important here). Now Congress is trying to undo that ruling.

In Ledbetter v. Goodyear Tire & Rubber Co. (PDF), Lilly Ledbetter sued for sex discrimination under Title VII of the Civil Rights Act. She argued that the pay she received over the course of her years at Goodyear was discriminatorily low, and a federal jury agreed. Goodyear then appealed to the Eleventh Circuit, arguing that pay decisions that occurred more than 180 days before she filed at the EEOC were time barred. The Court of Appeals agreed (PDF), and reversed the jury verdict. Ledbetter then took her case to the Supreme Court, which affirmed the Circuit's decision. Justice Alito wrote the opinion, joined by Justices Scalia, Thomas, Kennedy, and Chief Justice Roberts.

According to the decision, Ledbetter argued that earlier discriminatory decisions (outside the 180-day filing limit) carried forward their effects into paychecks delivered during the filing period. In other words, each paycheck was a discrete discriminatory act, rather than the mere result of an earlier discriminatory act (the pay-rate decision). The Court nixed this argument. The Court also noted that Ledbetter made no claim that intentionally discriminatory conduct occurred during the filing period, nor did she claim that she hadn't learned of the pay decisions until the filing deadline had passed. Bottom line, as the Court put it:

[C]urrent effects cannot breathe life into prior, uncharged conduct ... such effects in themselves have "no present legal consequences."

In her dissent, Justice Ginsburg (joined by Justices Stevens, Souter, and Breyer) concluded her argument in Ledbetter's favor with the following:

Once again, the ball is in Congress’ court.  As in 1991, the
Legislature may act to correct this Court’s parsimonious
reading of Title VII.

Now Rep. George Miller (D-CA) has picked up the ball and introduced the "Ledbetter Fair Pay Act of 2007" (PDF), designed to reverse the Court's decision (press release from the House Committee of Education and Labor here). We'll have to see whether Congress decides to punish employers for years-old employment decisions. Employers: call your legislators to put a stop to the Ledbetter Act, or plan on defending stale discrimination claims.

Shout out to Chris McKinney's excellent HR Lawyer's Blog for his post "Congress Responds to Ledbetter Decision," which called it to my attention. Good work, Chris!

No lawyer tricks for defending against sexual harassment

Sexual harassment is the hardest employee claim to defend against. Why? Because it's the claim most likely to make its way to a jury.

When we're defending our employer clients, we try to get most types of employee claims narrowed or dismissed using an arsenal of legal tactics.

Lawyer tricks, in jaded terms.

For example, say I'm defending a disability-discrimination claim. Here are the different arguments I can make to try to get the claim dismissed:

1. the employee's not actually disabled
2. her condition isn't serious enough to meet the disability threshold
3. she's not "otherwise qualified" to perform her job
4. she refuses to accept the reasonable accommodations my client's provided
5. the accommodations needed to allow her to do the essential functions of her job are not reasonable
6. she's already claimed elsewhere that she's totally disabled, meaning she can't work, period

As you can see, there are a number of arguments I can use in a legal motion to try to get the claim dismissed. They're not easy arguments — disability cases are very tricky — but they are arguments.

Sexual harassment is different. I have fewer arguments I can make. Once the employee clears the hurdle of showing that the conduct actually was sexual harassment — meaning that it was unwelcome sexual conduct at work — she's off to the races. The only remaining issues are questions of facts — "he said, she said." And questions of facts are decided at trial. Once a sexual-harassment case gets to trial, the employee has a solid chance of winning, and a probable six-figure payout if she does.

The smart employer has a serious antiharassment policy and regularly trains its employees and managers so they know what harassment is and how to prevent it. That's much more effective than lawyer tricks.