Atlanta Employment Lawyer Blog

EEOC Issues New Guide to Americans with Disabilities Act

2008-11-14T17:11:26Z

The Equal Employment Opportunity Commission recently issued a new guide to help both employers and employees better understand some complicated issues under the Americans with Disabilities Act: The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.

The new guide addresses an issue under the ADA that has given rise to a good deal of litigation—how far can employers go in enforcing their performance and conduct standards against employees who have disabilities that may limit their ability to comply with those standards. The EEOC’s new guide states that employees with a disability must meet the same performance standards that are applicable to all employees in the same job, and that employers need not reduce or relax those standards, even if an employee requests it as a reasonable accommodation. The EEOC also points out that employers may discipline disabled employees for violations of rules of conduct, even where the misconduct is caused by the employee’s disability. However, the EEOC does note that if a reasonable accommodation to an employee’s condition can be made which would allow the employee to meet a performance or conduct standard, then the employer must make such an accommodation.

The new guide addresses a number of other issues, including the application of dress codes to disabled employees and the applicability of the ADA to employees with substance abuse problems,

The new guide is written in a very accessible style, and it contains a number of examples that help illustrate the ADA’s sometimes complicated requirements. It’s worth a read by employers and employees alike.

Amendments to Americans with Disabilities Act Promise New Day for Disability Discrimination Plaintiffs

2008-11-12T17:02:52Z

In late September, President Bush signed the Americans with Disabilities Act Amendments of 2008, which will become effective January 1, 2009.

As we wrote in a prior post, although the ADA is, in theory, a wonderful law for disabled employees, in practice, it has been very difficult for employees to prevail in disability discrimination cases. The United States Supreme Court has issued several key decisions under the ADA which dramatically limited the scope of the law, and the lower courts, including the Eleventh Circuit (the federal appeals court with jurisdiction over the federal district courts of Georgia, Florida and Alabama) have uniformly interpreted the law in an employer-friendly fashion.

This may well change under the new law. The new law specifically expressly criticizes the Supreme Court’s ADA decisions and also takes aim at several EEOC regulations which have supported the anti-employee interpretation of the ADA. Although the new legislation is quite complex, and will need to be fleshed out by the courts before its full meaning becomes clear, it contains a number of employee-friendly provisions. Perhaps the most significant change is the new definition of the term “major life activity.” Under the new law, the definition of major life activity will be expanded to include a “major bodily function” so that if an individual has a serious medical condition that does not directly affect a major life activity, the individual will now be covered by the ADA. These covered bodily functions include the functions of the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The new law also includes a non-exhaustive list of the types of covered major life activities: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

]]> Additionally, the new law should make it easier for employees to establish a “regarded as” disability claim. Under the new law, an employee claiming a regarded as disability will only need to show that he or she was regarded as having an impairment—not that the impairment was perceived to be a substantially limiting one, as is the case under the current law. The new law will also prevent courts from taking into consideration an individual’s use of medicines and other mitigating measures in the determination of whether or not the individual is disabled.

The new law also provides that physical or mental impairments that are episodic in nature, or which are in remission (which are not covered under the current law), will now be covered as long as they would limit a major life activity when they are active.

As cases are decided under the new law, we’ll keep you posted.

Sexual Harassment—Speak Now or Forever Lose your Claim

2008-09-25T21:25:44Z

The law of sexual harassment requires employees who believe they have been harassed to follow their employers’ anti-harassment procedures—which typically require employees to complain to a high company official in order to allow the company to remedy the situation—before they may file a sexual harassment lawsuit. A recent decision from the Eighth Circuit Court of Appeals, Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint of sexual harassment.

In Adams, a female employee claimed that her supervisor had sexually harassed her for more than two and a half years. However she never reported the harassment to company officials, and when she did finally make a complaint through the company’s sexual harassment telephone hotline, her supervisor was almost immediately discharged.

The employee subsequently filed a sexual harassment lawsuit, but the employer moved for summary judgment. The company argued that the employee never filed an internal sexual harassment complaint despite the fact that the company had adopted and promulgated a zero-tolerance, multi-channel complaint procedure for sexual harassment claims, which the employee admitted she was aware of.

]]> In response, the employee argued that despite the existence of the company’s written anti-harassment policy, in practice, the policy was not effectively enforced and thus the employer should not be permitted to rely upon it. In support of this contention, the employee first argued that because the company typically required allegations of sexual harassment to be supported by corroborating evidence before taking action against an alleged harasser, this rendered the policy ineffective. The court rejected this argument, finding that even if the company required corroborating evidence of harassment, this does not render the company’s policy an ineffective one, as requiring other evidence of discrimination beyond that of the victim is a reasonable investigatory approach and did not, in itself, vitiate the reasonableness of the police. Indeed, the court on this point cited with approval a decision from the Eleventh Circuit (the federal appeals court with direct authority over the federal district courts of Georgia, Alabama and Florida), Baldwin v. Blue Cross/Blue Shield of Alabama, in which the court concluded that “there is no requirement that the employer credit uncorroborated statements the complainant makes if they are disputed by the alleged harasser.”

The employee also argued that despite the existence of the anti-harassment policy, the company had a history of ignoring sexual harassment complaints and failing to discipline harassers. The court did observe that despite even the strongest written anti-harassment policy, if the employer routinely ignores it, then no matter how good it is in theory, the company cannot rely on it to assert a defense to a sexual harassment claim. On this point, the court found that although the employee pointed to five other employees whose sexual harassment claims were not addressed by the company, only one other complaint had not been adequately addressed—in the other instances advanced by the employee, the harassed employee either did not make a timely complaint or the employee dropped her claim after making an initial complaint.

The court also rejected the employee’s argument that the company should have or must have had notice of the harassment due to the fact that it occurred over a two and a half year period. The court also rejected this argument, concluding (again following an Eleventh Circuit precedent) that because the company had an effective policy that advised employees of what to do to make a sexual harassment complaint, the company could not be charged with constructive knowledge of the employee’s claim since the employee did nothing to bring it to the company’s attention.

The court then addressed the issue of the employee’s failure to file an internal complaint for more than two years. The court concluded that because the employee failed to make a complaint for more than two years, and that as soon as she did the harasser was discharged, the employee acted unreasonably in delaying her complaint. The employee argued on this point that she was imply waiting to locate a corroborating witness before going to the company to complain. But the court rejected this argument, concluding that although it could understand why an employee might wait to gather other evidence before coming forward, this does not in itself excuse the failure to come forward to report harassment.

Accordingly, the court concluded that the employer had an effective sexual-harassment complaint procedure, and that the employer’s failure to take advantage of it barred her claim for sexual harassment.

Although this decision is obviously not an employee friendly one, it drives home the absolute necessity for employees to speak up as soon as possible and follow their employers’ harassment procedures if they believe they have been harassed in the workplace.

Sixth Circuit Recognizes FMLA Retaliation Claim

2008-09-16T17:58:55Z

The Family and Medical Leave Act (FMLA) contains an anti-discrimination provision that prohibits employers from discriminating against employees “for opposing any practice made unlawful” under the FMLA. However, the text of the FMLA does not contain an express provision that prohibits retaliation against an employee simply for requesting or taking FMLA leave, and aggressive employers have tried to exploit this statutory gap by firing employees for requesting FMLA leave and then arguing that such retaliation is not prohibited under the FMLA.

This attempt was recently rejected by the Sixth Circuit Court of Appeals in Bryant v. Dollar General Corp. Although the Sixth Circuit does not have direct authority over the federal courts of Georgia, as the FMLA is a relatively new law and many of its details are still being fleshed out by the courts, it is important for Georgia employees to stay current with FMLA decisions in the other federal courts.

In Bryant, a female employee with diabetes filled out FMLA paperwork requesting a brief leave of absence. However, shortly thereafter, the employer launched disciplinary proceedings against her arising out of an alleged altercation that occurred about a month before the employee requested FMLA leave. The employee then took about a week of FMLA leave and was fired a few weeks later.

In the employee’s subsequent FMLA retaliation lawsuit, the employer argued that neither the text of the FMLA nor its regulations explicitly prohibit retaliation. According to the employer, the statutory language only prohibits discrimination against employees for opposing any practice that is unlawful under the FMLA, and the regulations only prohibit discrimination against employees who have used FMLA leave. The employer thus contended that there is no prohibition against FMLA retaliation.

]]> The lower court rejected the employer’s argument and entered a judgment in favor of the employee for more than $146,000. In response, the employer appealed, arguing that the law does not recognize FMLA retaliation claims. The Sixth Circuit, however, rejected the employer’s appeal and affirmed the judgment in favor of the employee. Relying on the clear weight of authority from the other circuit courts of appeal, and the FMLA’s structure and legislative history, the court concluded that the “FMLA itself prohibits employers from taking adverse employment actions against employees based on the employee’s exercise of FMLA leave.” The court reasoned that to rule otherwise would render the FMLA a nullity, as employers could discharge employees for asserting their rights under the FMLA with impunity, thus in essence denying employees their statutory right to 12 weeks of FMLA leave.

Although the Eleventh Circuit (the federal appeals court that has direct authority over the federal district courts of Georgia, Alabama and Florida) has previously ruled that the FMLA prohibits retaliation, it is certainly a welcome sign to see another appeals court take this reasonable interpretive approach to the statute. Nevertheless, employees should keep in mind that the FMLA does not guaranty the employment of employees on FMLA leave; employers may take adverse actions against employees on FMLA leave if they can show that they have independent grounds for such adverse actions—which is the basic rule in all retaliation cases.

Agreement to Arbitrate USERRA Discrimination Claim is Enforceable

2008-08-26T20:45:55Z

In Landis v. Pinnacle Eye Care, LLC, the Sixth Circuit Court of Appeals recently held that an agreement to arbitrate claims is enforceable under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Although the Sixth Circuit does not have jurisdiction over the courts of Georgia, and a lower-level federal court in Georgia has held to the contrary, the Eleventh Circuit has not yet weighed in on the issue, so the case may be relevant if the issue reaches the Eleventh Circuit.

In the case, Dr. Timothy Landis signed an employment agreement in which he agreed to resolve all disputes related to the agreement through arbitration. During his employment, he was called to military duty in Afghanistan as a member of the Indiana National Guard. Although he contended that the parties had amended the employment agreement prior to his departure for Afghanistan, there was no formal amendment to the agreement. On his return from active duty, the employer refused to honor the alleged revised agreement, demoted Landis, and threatened to fire him if he had any future involvement in the military.

In response, Landis filed an employment discrimination claim under the USERRA, claiming that his employer had discriminated against him based on his military service. The lower court granted the employer’s motion to stay the case and ordered that it be arbitrated based on the arbitration clause contained in the employment agreement, holding that the USERRA did not preempt the arbitration clause.

]]> On Landis’ appeal, the court first noted that United States Supreme Court has long held that statutory claims are generally subject to being arbitrated unless Congress has clearly expressed its intention to preclude arbitration, and that the party opposing arbitration has the burden of showing a waiver by Congress.

Analyzing the USERRA and its legislative history, the court found that there is nothing that indicates that Congress intended to limit the applicability of arbitration to disputes under the USERRA. Although Section 4302(b) of the statute does contain a provision that states that the law “supersedes any state law . . . contract, agreement, policy, plan, practice or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or receipt of any such benefit,” the court concluded that because this provision does not mention arbitration, the statute does not preclude arbitration.

Frankly, we believe the decision in the Georgia federal district court case of Breletic v. Caci, Inc.—Federal, (which, it just so happens, was won by our own John Beasley), is a much better reading of the USERAA. In Breletic, the Court held that Section 4302(b), along with some language in the statute’s legislative history, reveal that the “USERRA preempts arbitration agreements purportedly covering claims arising under the USERRA.” Should the issue reach the Eleventh Circuit, we’ll be on it for you.

Unemployment Claims Hold Steady at Recessionary Levels

2008-08-22T20:40:38Z

If you’ve recently lost your job, you’re not alone. Recent statistics from the Department of Labor on the level of weekly unemployment compensation claims reveal that the job market is a basket case these days, and that unemployment levels are soaring.

On August 7, the Labor Department announced that new applications for unemployment claims rose to 455,000—the highest level since March 2002. Although the number of new claims announced on August 21 fell to 432,000, claims have been above 400,000 for some time now, a level that most economists consider to be an indicator of recession.

If you’re one of the thousands of Americans who have recently lost their jobs, you don’t have to be just a statistic. Contact one of our employment attorneys to see if we can help you.

Senate Introduces Bill to Expand Americans with Disabilities Act

2008-08-15T21:18:07Z

The Americans with Disabilities Act (ADA) is a wonderful law; unfortunately, it has not proven to be easy for employees to win cases under the ADA. A recent bill introduced in the Senate to amend the ADA, if passed, may make it easier for disabled employees to prevail in disability cases.

Senate Bill 3406, entitled the ADA Amendments Act of 2008, would make it easier for an employee to claim a covered disability in a number of ways. It would expand the law’s current definition of “major life activity” to include a “major bodily function” so that if an individual has a serious medical condition that does not directly affect a major life activity, the individual would still be covered by the ADA. Additionally, the bill would make it easier to establish a “regarded as” disability. Under the proposed law, an employee claiming a regarded as disability would only need to show that he or she was regarded as having an impairment—not that the impairment was perceived to be a substantially limiting one. The proposed law would also prevent courts from taking into consideration an individual’s use of medicines and other mitigating measures in the determination of whether or not the individual is disabled.

The bill was sponsored by Senators Tom Harken (D-Iowa) and Orrin Hatch (R-Utah). Although the bill was just introduced, and President Bush opposed an earlier, similar piece of legislation that had sought to eliminate the “major life activity” requirement completely from the ADA, the bill has broad-based, bipartisan support and is being co-sponsored by 63 other senators. We’ll keep you posted.

EEOC Updates Compliance Manual on Religious Discrimination

2008-08-12T16:05:24Z

The Equal Employment Opportunity Commission (EEOC) maintains and periodically updates a Compliance Manual, an internal guide for EEOC enforcement personnel that contains the EEOC’s interpretation of Title VII and the other discrimination laws it enforces. Although the Compliance Manual does not have the force of law, it is a very helpful resource for employees and employers as it explains the EEOC’s approach to enforcing the discrimination laws. It also contains recommendations for employees on how to identify discrimination in the workplace and address it, as well as best practices to help employers to prevent discrimination.

The EEOC recently issued an updated section of the Compliance Manual on religious discrimination. According to the EEOC’s press release accompanying the new section, it issued the new section “in response to an increase in charges of religious discrimination, increased religious diversity in the United States, and requests for guidance from stakeholders and agency personnel investigating and litigating claims of religious discrimination.”

]]> The new section contains a wealth of information on religious discrimination in employment, including material on:

• Avoiding religious discrimination in hiring, promotion and other employment decisions
• Employer liability for religious harassment
• Accommodating employees’ religious beliefs and practices in the workplace
• Retaliation
• Exemptions for religious-based institutions

The Compliance Manual also contains a number of employee best practices intended to instruct employees on the best ways to advise employers of their religious practices, how to resolve conflicts between those practices and work rules, and how to handle discussions about religious faith and proselytizing in the workplace.

Although the new section is long and extremely detailed, both employers and employees would be well served to read through it and lean how to avoid religious discrimination in the workplace and to deal with it once it occurs.

Female Employee Fired for Having IVF Procedure has Claim for Pregnancy Discrimination

2008-07-28T23:28:23Z

It seems as if the courts are giving birth to a number of important pregnancy discrimination act cases these days. In our last post, we wrote about a case from the Third Circuit Court of Appeals, in which the court held that a female employee who was fired shortly after having an abortion can assert a claim for sex discrimination under the Pregnancy Discrimination Act. In today’s post, we discuss a case from the Seventh Circuit Court of Appeals, Hall v. Nalco Co., in which the court held that an infertile female employee who was discharged as a result of taking leaves of absence to undergo infertility treatments can state a claim under the Pregnancy Discrimination Act (PDA).

In Hall, the plaintiff, a female employee who suffered from infertility, requested time off from work to undergo in vitro fertilization (IVF). The company gave her a month-long leave of absence to have the IVF. Several months after she returned from her leave, she requested an additional leave to undergo another IVF because the first procedure had been unsuccessful. Just after she requested her leave, the company, which was in the process of a reorganization, advised the plaintiff that that she was going to be laid off in connection with the reorganization. Although the company did not tell the plaintiff the specific reason for her discharge, the evidence later revealed that the decision to select her for termination was due to her excessive absenteeism related to her “infertility treatments.”

]]> In response to her termination, the plaintiff filed a PDA case against the company, alleging that her infertility was a pregnancy-related condition and that her discharge was therefore discriminatory. The district court, however, rejected plaintiff’s claim and granted the company’s motion for summary judgment, holding that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition, and thus there was no discrimination against plaintiff.

On the plaintiff’s appeal, the court noted that the PDA was enacted to protect against discrimination based on inherently gender-specific characteristics. Therefore, it concluded that since only women will ever take time off to undergo IVF procedures, the plaintiff was terminated “not for the gender neutral condition of infertility, but rather for the gender specific quality of childbearing capacity.” Accordingly, the court reversed the award of summary judgment to the defendant.

Employee Fired after Having an Abortion has Claim for Pregnancy Discrimination

2008-07-22T23:44:29Z

In a case of first impression from the Third Circuit Court of Appeals, Doe v. C.A.R.S. Protection Plus, Inc., the court held that a female employee who was fired less than a week after having an abortion has a claim for discrimination under the Pregnancy Discrimination Act.

Plaintiff worked as a graphic designer for a used car insurer. About a year after she was hired, she learned she was pregnant and told her supervisor, who was also a part-owner of the company. Due to some problems with her pregnancy, she requested time off to take some medical tests, which the company approved. Eventually, plaintiff was advised by her physician that her fetus had severe deformities, and he recommended that she terminate her pregnancy. Plaintiff contended that her husband called the company, advised it that she would be terminating her pregnancy and requested a one week vacation for her to have the procedure. Although plaintiff contended her vacation request was approved, she was discharged less than a week after she had the procedure.

In response, plaintiff filed a gender discrimination case under the Pregnancy Discrimination Act (PDA), alleging that she was discharged because of her abortion, which, she argued, constituted pregnancy discrimination under the PDA.

]]> In analyzing the case, which the court noted had never before been addressed in the Third Circuit, the court first noted that an EEOC guidance states that “a woman is . . . protected against such practices as being fired . . . merely because she is pregnant or has had an abortion." It also observed that the legislative history of the PDA provides that “no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.” Relying on these two sources, the court concluded that an "employer may not discriminate against a woman employee because she has exercised her right to have an abortion."

The court then turned to the issue of whether Plaintiff had a viable discrimination claim under the PDA. Tailoring the McDonnell Douglas burden-shifting framework to the PDA, the court announced a four-part test for establishing a prima facie pregnancy discrimination case. The Plaintiff must offer evidence that:

1. She was pregnant and that her employer knew it;
2. She was qualified for her job;
3. She suffered an adverse job action; and
4. There was a nexus between the plaintiff’s pregnancy and the job action.

The parties agreed that plaintiff established the first three elements, but the defendant contended that there was no nexus between the plaintiff's pregnancy and her discharge and that the reason she was discharged was because of her absences.

However, the court rejected this argument, finding that there was a nexus between plaintiff’s pregnancy and her discharge based on the fact that the employer treated other non-pregnant workers who were temporarily disabled better than the plaintiff. The facts showed that other employees with short-term disabilities were not required to call in daily during their absence as plaintiff was required to do, and that there were no uniform rules governing employee absences. In fact, one of the defendant's witnesses admitted that the company had a "separate set of rules" for each employee. Based on this evidence, the Court concluded that plaintiff established a prima facie case of pregnancy discrimination.

The court went on to find that there was an issue of fact as to whether defendant's stated basis for discharging plaintiff—that she had abandoned her job—was pretextual. The court concluded that plaintiff had offered some credible evidence to support her claim that her husband had called in to explain her absences. Thus, the court reversed the district court's award of summary judgment to the defendant.

Although the Doe case is not controlling in the State of Georgia, as it is a novel issue and one that, to our knowledge, has not been addressed in the Eleventh Circuit, it should be good law for future cases involving Georgia employees.

Supreme Court Wrap-Up II: Court Finds Implied Claim of Retaliation in Age Discrimination Act

2008-07-17T18:32:38Z

It has been a good Supreme Court term for employees. In a recent post, we wrote about the Supreme Court’s decision in CBOCS West, Inc. v. Humphries, in which the Court held that 42 U.S.C. § 1981 (Section 1981) encompasses retaliation claims even though the text of the statute contains no reference to retaliation. In today’s post, we discuss another retaliation decision by the Supreme Court, Gomez-Perez v. Potter, in which the Court held that under the Age Discrimination in Employment Act (ADEA), a federal employee who is a victim of retaliation in response to the filing of a complaint of age discrimination may assert a retaliation claim under the federal-sector provision of the ADEA.

In the case, Myrna Gomez-Perez was employed by the United States Postal Service (USPS) and was 45 years old at the time when she requested a job transfer. When her supervisor rejected her request for a transfer she filed an internal age discrimination complaint, alleging that the denial of her transfer request was based on her age and therefore discriminatory. Ms. Gomez-Perez claimed that in response to her complaint, she was retaliated against by the USPS in various ways, including groundless complaints about her work and a significant reduction in her work hours.

]]> In response to the alleged retaliation, Ms. Gomez Perez filed a discrimination lawsuit under the federal sector provision of the ADEA, 29 U. S. C. § 633a(a), alleging that she was retaliated against for filing her internal complaint of age discrimination. Both the district court and the First Circuit Court of Appeals ruled against Ms. Gomez-Perez, holding that that the federal sector provision of the ADEA does not encompass claims of retaliation.

On appeal to the Supreme Court, the Court first noted that Section 633a(a) does not contain any reference whatsoever to retaliation. Rather, it states simply that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” Despite this lack of an express reference to retaliation, the Court concluded that the phrase “discrimination based on age” includes retaliation based on the filing of an age discrimination complaint.

In reaching its holding, the Court, as it did in Humphries, relied on other civil rights cases in which it had previously found an implied right of retaliation in the statute, noting that the “cases involve remedial provisions aimed at prohibiting discrimination.”

In a term in which the Court has been careful to rely on original intent and close textual analysis in reaching its decisions, the decisions in Humphries and Gomez-Perez reflect quite a different approach.

Punitive Damages in Employment Discrimination Cases after Exxon: The Death of Punies has been Greatly Exaggerated

2008-07-14T19:09:55Z

The blawgosphere has been buzzing about the supposed death of punitive damages in light of the Supreme Court’s decision in Exxon Shipping Co. v. Baker, in which the Court held that, as a matter of federal maritime law, the maximum amount of a defendant’s liability for punitive damages is equal to one times the amount of compensatory damages awarded.

The employment discrimination bar has been particularly concerned about Exxon’s impact in employment cases. For example, the Workplace Prof Blog notes that the 1:1 ratio “if applied to employment cases, would have devastating impact.”

We don’t believe that Exxon will have a significant impact on employment discrimination cases. First and perhaps most significant, the case is not controlling precedent in the employment discrimination context, as it was decided under federal maritime law, and the court relied heavily on state statutes in arriving at the 1:1 ratio. As neither of these sources of law has any bearing on employment discrimination law, the direct precedential effect of Exxon should be limited.

]]> Second, the Court distinguished certain types of cases that would not be appropriate for the 1:1 ratio. One class of cases are those where the amount of compensatory damages available is low and therefore parties lack an incentive to file a case unless significant punitive damages are available. As the amount of damages available in employment discrimination cases is typically not the “staggering damages” that were awarded to the plaintiffs in Exxon, this factor suggests that the 1:1 ratio should not apply in employment discrimination cases

Another factor is the Court’s concern for predictability in the award of damages. The Court notes that “the real problem … is with the stark unpredictability of punitive awards,” and that “a penalty should be reasonably predictable in its severity, so that even Justice Holmes's ‘bad man’ can look ahead with some ability to know what the stakes are in choosing one course of action or another.”

The predictability factor is not necessarily implicated in the employment discrimination context. Under Title VII, for example, the statute expressly sets forth the maximum amount of compensatory and punitive damages that can be awarded. Thus, employers know their maximum exposure for damages in these cases, and unlike Exxon, they can plan for their damage exposure. Thus, at least for the types of employment claims that have statutory damage caps, such statutes eliminate the threat of uncertainty that the Court is so concerned with, thereby stripping away the Court’s principal reason for imposing a 1:1 limitation on punitive damages.

Supreme Court Wrap-Up: Supremes Rule that Section 1981 Encompasses Claims for Retaliation

2008-06-23T21:09:00Z

The United States Supreme Court has recently issued a number of very employee-friendly employment discrimination decisions. In this post and our next few posts, we will discuss these important employment discrimination decisions.

In the first case, CBOCS West, Inc. v. Humphries, the Court addressed the issue of whether 42 U.S.C. § 1981 (Section 1981) permits actions for retaliatory discharge. Section 1981 is a Civil War-era federal civil rights law that gives “all persons within the jurisdiction of the United States . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Plaintiffs often choose to file race discrimination claims under Section 1981 in addition to Title VII claims because there is no requirement to first file a charge of discrimination with the EEOC, Section 1981’s statue of limitations is much longer than Title VII’s 180-day limitations period, and Section 1981 has no cap on damages. However, unlike Title VII, Section 1981 does not contain language prohibiting retaliation, and many courts have therefore held that retaliation claims are not available under the statute.

In the case, Hedrick Humphries was an African-American manager of a Cracker Barrel restaurant who claimed he was discharged because of his race and because he had complained that another African-American employee had been discriminated against because of his race. Accordingly, he brought suit under both Title VII and Section 1981. The lower court dismissed Humphries’ Title VII claim on procedural grounds and granted Cracker Barrel’s motion for summary judgment on Humphries’ Section 1981 claim, holding that retaliation claims are not available under the statute.

]]> On appeal to the Seventh Circuit Court of Appeals, although the Seventh Circuit affirmed the lower court’s dismissal of Humphries’ Title VII claim, it reversed the lower court’s dismissal of Humphries’ Section 1981 claim, holding that Section 1981 encompasses claims for retaliation even though the statute is absolutely silent on this issue.

Cracker Barrel then appealed to the Supreme Court, arguing that because the language of Section 1981 does not prohibit retaliation claims, there is no principled basis for reading such a provision into the statute. In a 7-2 decision, the Supreme Court rejected Cracker Barrel’s arguments and affirmed the Seventh Circuit, holding that Section 1981 encompasses retaliation claims. In so holding, the Court relied on several of its previous decisions interpreting other civil rights statutes in which it held that such statutes encompassed retaliation claims even though they did not contain anti-retaliation language in the statutory texts.

Humphries is a powerful decision in that a significant majority of the Court read an implied right into a statute that contains no such express right (a point which Justices Scalia and Thomas in their dissenting opinion take pains to point out). The decision further highlights the importance of retaliation as a powerful cause of action in the employment discrimination context.

Stay tuned for our continuing Supreme Court wrap-up!

Discriminatory Denial of Pay Raise Cannot be Cured by Later Raise

2008-06-04T21:56:19Z

We just received a good result from the Eleventh Circuit Court of Appeals (the federal appeals court for the states of Georgia, Florida and Alabama) in a race discrimination and retaliation case and, at the risk of seeming immodest, we’d like to share it with you. It’s a very employee-friendly decision on the issue of what is an adverse action under the discrimination laws, and the court held that when a company makes a discriminatory decision that it later corrects, the employer’s after-the-fact corrective action does not cure the initially discriminatory act.

In the case, Crawford v. Carroll, our client, Jacquelyn Crawford, is an African American female who was employed at Georgia State University in various capacities in its human resources department. Her dispute with GSU began with a disciplinary action she received for allegedly violating the school’s bereavement leave policy. When she complained about this discipline, she claimed she was subjected to retaliation by her Caucasian supervisor in the form of unreasonable job demands and overly critical scrutiny of her work.

The dispute then escalated when Crawford was denied a promotion to a position that was posted several times during a two-year period even though several managers believed she was the most qualified applicant for the position. During this period, Crawford’s Caucasian supervisors issued her a negative performance review, which made her ineligible for a merit pay increase that she was scheduled to receive in October 2002. In response, Crawford filed an internal complaint contending that the poor performance review and resulting disqualification for the merit pay increase were racially discriminatory and retaliatory.

While her internal complaint was pending, the position that Crawford had been denied was posted for a third time. This time, Crawford was not even selected for an interview, and GSU recommended that a Caucasian male be awarded the position.

]]> Crawford ultimately filed a charge of discrimination with the EEOC, claiming that her poor performance review and disqualification from the merit pay increase were discriminatory; she amended her charge to include a claim of retaliation when she did not receive the promotion. While her charge was pending, GSU determined that Crawford was entitled to a pay grade increase, which it made retroactive back to the date when Crawford should have initially received her merit pay increase.

In Crawford’s subsequent race discrimination and retaliation lawsuit, the lower court dismissed her claims on summary judgment, reasoning that because GSU ultimately awarded Crawford a pay grade increase retroactive to the date when the merit pay increase was initially denied, she was made whole and therefore could not establish an adverse employment action for either her discrimination or retaliation claims. The lower court relied on a line of cases from the Eleventh Circuit defining an adverse action as an “ultimate employment decision” or a “substantial employment action,” and concluded that because Crawford had received a retroactive pay increase, she could not establish a “serious and material” change in the terms and conditions of her employment sufficient to establish an adverse action by GSU.

The Eleventh Circuit reversed the lower court, holding that there was a genuine issue of material fact that precluded the award of summary judgment. The Court reasoned that the retroactive increase of Crawford’s salary did not cure the fact that Crawford’s initial poor performance review and disqualification for a merit pay raise were adverse actions in that she lost the time value of the funds that she would have had if she had received the merit pay increase when she was initially scheduled to receive it. In other words, although Crawford did not suffer a substantial loss, she did suffer an actual loss, which was enough to establish an adverse action for the purposes of both her retaliation and discrimination claims. The court also took pains to note that after-the-fact attempts by employers to cure prior discriminatory acts do not cure the discrimination, as this would allow employers to “escape Title VII liability by correcting their discriminatory and retaliatory acts after the fact.”

Although the court did not expressly overrule the “substantial employment action” doctrine, it certainly questioned it, and it also noted, in light of the U.S. Supreme Court’s decision in Burlington Northern& Santa Fe Railway Co. v. White, that the doctrine was no longer good law with respect to retaliation claims.

Parents Discharged for Son's Medical Costs Have Disability Discrimination Claim

2008-05-14T20:58:02Z

The Americans with Disabilities Act (ADA) contains a rarely used provision that protects employees who are not disabled but who are discriminated against because they are associated with an individual, such as a spouse or other family member, who is disabled. A recent case from the Tenth Circuit Court of Appeals, Trujillo v. PacifiCorp, although not controlling in the state of Georgia, has set a very strong employee-friendly precedent that should be favorable to employees throughout the country.

William and Debra Trujillo were long-term employees of PacifiCorp and they participated in the company’s health insurance plan. Their son Charlie was also covered by the plan. Charlie had cancer (which the company was aware of), and in the spring of 2003 he had a relapse, necessitating an aggressive course of medical treatments which, as the company was self-insured, eventually cost the company more than $60,000.

Just 11 days after Charlie’s relapse, the company launched an investigation of the Trujillos on suspicion of time theft. After a brief investigation, in which key witnesses were not interviewed, and suspect evidence was relied on, the Trujillos were discharged.

In response, the Trujillos filed an association discrimination lawsuit under the ADA, contending that they were terminated not because of their alleged time theft but because of the healthcare costs the company incurred as a result of Charlie’s illness. The lower court ruled in favor of the company, concluding that the Trujillos failed to show that the circumstances raised a reasonable inference that Charlie’s disability was a determining factor in the company’s decision to fire them.

]]> However, on appeal to the Tenth Circuit, the court reversed the lower court’s dismissal, concluding that the Trujillos brought forward sufficient evidence to raise an inference that the company’s decision to fire them was based on Charlie’s disability. The court found the following facts significant: that the company repeatedly expressed general concerns about rising healthcare costs; that the company had made numerous attempts to cut those costs; that the company admitted that it closely monitored the progress of Charlie’s disease and his health care costs; and that there was a very short time period between Charlie’s relapse and the Trujillos’ discharge. The court concluded that these facts created a prima facie case that the company terminated the plaintiffs because they were “expensive employees.”

The court then concluded that the company’s stated basis for discharging the Trujillo’s was pretextual. Because other similarly situated employees received progressive discipline for similar or worse misconduct, and because the company’s investigation into the alleged time theft was shoddy and incomplete, the court found that this called into question the honesty of the company’s claim that they discharged the Trujillos for time theft.

Trujillo is an important decision for several reasons. First, an employer’s desire to reduce costs is typically seen as a legitimate non-pretextual basis for a decision to discharge an employee. For example, in the age discrimination context, the courts repeatedly uphold discharges of older, higher paid employees who are replaced by younger, lower paid employees on the basis that reducing wage costs is not discriminatory as long as such decisions are not simply a proxy for age discrimination. Despite this well-established principle, the Trujillo court noted, following the other courts that have interpreted the ADA’s association discrimination provision, that one of the theories that can support an ADA association discrimination claim is the “expensive employee” theory—that it is unlawful to take an adverse action against an employee because his or her spouse or other family member “has a disability that is costly to the employer because the spouse is covered by the employer’s health plan.”

The case is also significant because the Tenth Circuit was willing to rely on a chain of inferences in support of its decision, even though each inference in itself did not necessarily support a claim of discrimination. Although the company criticized this method, characterizing it as one which required the court “to build inference upon inference,” the court rejected this argument, apparently being satisfied that the collective weight of the inferences established a prima facie case of discrimination. Obviously, in most employment cases, employers do not admit to discrimination, and employees are forced to painstakingly build a case of discrimination from the bits and pieces of circumstantial evidence available to them. Trujillo thus sends a strong message that employees are not required to “prove” their case in order to survive a dismissal, but instead are entitled to the weight of reasonable inferences of discrimination.