Atlanta Employment Lawyer Blog

A recent case out of the seventh circuit found that a woman who disclosed to her psychiatrist that she was having thoughts about killing her supervisor can proceed with race and sex discrimination claims, along with retaliation claims under Title VII.

If you believe you may have been subject to discrimination at work, it is important to speak to an experienced Georgia employment discrimination law firm.

In Coleman v. Donahoe, a female postal employee with fired after she told her psychiatrist about violent thoughts she had concerning her supervisor, including killing him. Denise Coleman was hired in 1974 as a mail-processing clerk, and had a good employment record up until January 2005 when the postal service hired a new supervisor. Within a few months after the new supervisor began working, Coleman sent emails to the head of the postal facility alleging sex discrimination and threatening to file an Equal Employment Opportunity Commission (EEOC) charge.

When Coleman subsequently required surgery and requested sick leave, she was treated to harsh working conditions and asked to perform work that would worsen her condition, such as moving heavy boxes and punching a time clock located outside her stair-climbing range. After Coleman went on leave without punching the clock, her supervisor issued an AWOL notice. Coleman then filed for pre-complaint counseling with the EEOC, identifying her supervisor as subjecting her to discrimination.

While in counseling for depression, anxiety and insomnia, Coleman revealed to her psychiatrist that she had both suicidal and homicidal thoughts, including thoughts of killing her supervisor. After treatment ended, Coleman's psychiatrist informed her supervisor about her homicidal thoughts. Coleman was then immediately terminated by the postal service citing a “no tolerance” policy for work place violence.

Continue reading "Woman With Thoughts About Killing Her Supervisor Can Maintain Race Discrimination, Sex Discrimination And Retaliation Claims Against Postal Service" »

Nearly 50 years ago Congress passed federal law prohibiting employment discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees, former employees and applicants for employment based on their sex, race, color, religion and national origin. Additional federal laws have been passed to prohibit disability discrimination and age discrimination. A seemingly simple question is raised by many workers in determining whether these discrimination laws apply to them and provides them protection – i.e. who is an employee?

A recent case from the 6th Circuit Court of Appeals evaluated what factors are involved in determining a person’s status as an employee under Title VII, allowing an individual protection from discrimination. In Bryson v. Middlefield Volunteer Fire Dep’t Inc., an administrative aide to a volunteer fire department alleged that she had been sexually harassed by the Fire Chief. She further asserted that after complaining of the harassment she was retaliated against, leading to her constructive discharge.

The lower court dismissed the claim reasoning that even though the administrative assistant was an employee, the members of the volunteer fire department did not receive pay and as a result were not employees. Because Title VII only applies to employers who employ at least 15 employees, the court determined federal sexual discrimination law was not applicable.

Continue reading "6th Circuit Determines Volunteers May Be Considered Employees In Bryson v. Middlefield Volunteer Fire Dep’t Inc. " »

Many times work place biases influence how we are treated at work. Fortunately, congress has enacted laws to protect us from many forms of employment discrimination. One of these laws is the Americans with Disabilities Act, which prohibits disability discrimination against qualified individuals. The ADA prohibits your employer from taking adverse action against you because of your disability and also protects you from harassment and retaliation for complaining about disability discrimination or being involved in another employee’s disability discrimination case.

Who does the ADA protect? The ADA protects qualified individuals with a disability. This is typically defined as a worker with any medical, psychiatric or physiological condition that substantially limits a major life activity. This definition has also been extended to included discrimination based on stereotypes – sometimes called “regarded as.” For example, an employee may have a condition that doesn’t affect him or her in any way, but due to unfounded fears the employer believes employee is disable and takes negative action. In a recent disability discrimination case out of the First Circuit, the court determined that a schizophrenic worker sufficiently pleaded that his employer forced him to stop working because it regarded him as disabled. His complaint allege that he had been removed from his job even though he had favorable medical reports and that his employer mistakenly believed his psychiatric condition limited his ability to do his job. The court also determined that the employee’s schizophrenia had not had a substantial impact on his work.

Continue reading "Man With Schizophrenia Can Bring "Regarded As" Claim" »

Employment discrimination laws require you to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating all claims of employment discrimination. As part of that process, the EEOC will begin an investigation into claim. Many people worry about taking the first step in filing a lawsuit and being unsure the extent of the discrimination. A recent lawsuit determined that even if an individual files a lawsuit, it may be possible to search company wide for evidence that a the business engages in system-wide discrimination, making it possible to bring a class action lawsuit.

In EEOC v. Schwan’s Home Service, a former female Schwan’s management trainee filed a sex discrimination case in 2007. She later amended her claim in 2009 to add classwide claims and sought to obtain information by subpoena about just how many women were local managers and how the company prepares and selects employees for these jobs.

Schwan's objected, claiming that the charges fell outside Title VII’s 300-day statute of limitations period. The Eighth Circuit court disagreed, noting that during the subpoena information gathering process questions of timeliness are immature. Further, charges of individualized discrimination “need not be compartmentalized” from charges of systemic gender discrimination in determining the validity of claims. In fact during the subpoena process if a valid charge exists, requests for information “related to” unlawful practices covered by Title VII are valid, and may include any evidence that “might case light on the allegations.” Here, because the investigation into a charge of individual gender discrimination revealed potential systemic gender discrimination, authority existed to subpoena evidence further exploring potentially relevant systemic gender discrimination.

Continue reading "EEOC Can Investigate Widespread Discrimination Even If Only One Employee Complains " »

In keeping with its mission to promote a workplace free from discrimination, the Department of Labor has updated its own personnel policy to include prohibitions against employees and applicants based on gender identity and pregnancy.

The new DOL personnel policy now includes protections against bias based on race, color, religion, national origin, sex – including pregnancy and gender identity, age, physical or mental disability, genetic information, parental status, sexual orientation, and other non-merit factors.

Labor Secretary Hilda Solis noted, “I am expressing my personal commitment to ensure that the U.S. Department of Labor is a model workplace, free from unlawful discrimination and harassment, which fosters a work environment that fully utilizes the capabilities of every employee.”

Such a policy is in keeping with Federal law that prohibits employment discrimination under Title VII. Title VII prohibits discrimination against employees, former employees and applicants on the basis of their race, color, sex, national origin and religion. Additional federal laws protect against age discrimination, disability discrimination, and discrimination based on genetic information.

If you feel like you have been treated negatively as the result of any one of these categories, it is important to speak to a knowledgeable Georgia employment discrimination lawyer to determine your next steps.

Continue reading "New Department of Labor Personnel Policy Bars Gender Identity And Pregnancy Bias" »

The New York Times reports that a New Jersey man, El’Jai Devoureau – who was born a woman – has filed a ground breaking transgender discrimination lawsuit. At issue is whether he is considered a “man.”

Devoureau – a urine monitor at a drug treatment center – was fired because his employer claimed being male was a job requirement, implying that because Devoureau was transgender, he wasn’t really a man. Devoureau has identified himself as a male for his entire life and in 2006, began taking male hormones and had sex-change surgery.

New Jersey is one of a handful of states that ban transgender discrimination. Continued efforts have been made to pass the Employment Nondiscrimination Act (ENDA) banning workplace discrimination based on sexual orientation and gender identity, with the latest bill introduced to the U.S. House of Representatives this past March.

Continue reading "Transgender Discrimination Lawsuit Filed" »

On December 22 the Senate approved the nomination of Jacqueline Berrien as the chair of the Equal Employment Opportunity Commission (“EEOC”).

The EEOC is responsible for enforcing Title VII and other federal laws making employment discrimination illegal on the basis of race, color, national origin, religion, age, disability or genetic information. These laws cover most places of business that employ over 15 employees.

The Senate also unanimously confirmed Commissioners Chai Feldblum and Victor Lipnic as well as General Counsel P. David Lopez. In March, Berrien and the other two commissioners began serving recess appointments after an anonymous hold in the Senate had blocked a vote on the president’s nominations.

In announcing her nomination, President Obama noted that Berrien “has spent her entire career fighting to give voice to underrepresented communities and protect our most basic rights.”

Continue reading "Four EEOC Nominees Confirmed" »

The U.S. Court of Appeals for the Second Circuit recently revived an engineer’s job bias claim, determining that it was error for the trial court to require the jury find “personal knowledge of an alleged protected activity” in order to establish causation in a retaliation claim. The court also explained that it is not necessary for an employee to show that an employer’s reason for taking adverse action was “pretext” to prove discrimination and cautioned District Courts against using jury instructions with this language.

Title VII and other discrimination laws prohibit retaliation in the workplace. “Retaliation” refers to almost any negative action by your employer against you in response to your complaint about discrimination, or for participating as a witness in someone else’s discrimination case.

In Henry v. Wyeth Pharms. Inc., an employee – Howard Henry – filed a claim for race discrimination based on several different claims of bias. In a separate cause of action for retaliation, Henry asserted that he was demoted as a result of his discrimination claim. The trial court instructed the jury that “personal knowledge of an alleged protected activity” was needed to establish causation. The 2d Circuit disagreed, finding the instruction constituted reversible error.

Writing for the court, Judge Pierre N. Leval noted, “Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.” As such, an employee need not prove that the specific person who carried out the adverse action knew of the employee’s protected status. Rather, a causal connection is demonstrated when the agent who decides to impose the adverse action – such as firing or demotion – does so at the encouragement of a superior who does have knowledge of the protected status.

Additionally, the trial court also erred in instructing the jury on the concept of “pretext.” Pretext typically implies a “conscious intention” to deceive. Leval explained that Title VII does not require employees show that an employer’s stated reason for an adverse action constituted “pretext.” As such, Leval cautioned district courts not to provide this instruction in the future.

Continue reading "Personal Knowledge Of Protected Status Not Required For Retaliation Claim" »

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination in the workplace on several bases including race, color, sex, national origin, and religion. Title VII laws apply to all private employers, state and local governments, employment agencies, labor organizations and the federal government if they employ at least 15 employees.

However, where religious employers are involved, the circuits are split.

In a recent decision involving the Roman Catholic Diocese of Tulsa, Oklahoma, the Tenth circuit determined that a woman’s duty’s as the director of the department of religious formation placed her squarely within the ministerial exception to federal employment discrimination laws. Applying the ministerial exception, as endorsed by the Tenth, Fifth, Ninth, and District of Columbia, a church employee’s hostile environment claim improperly entangles of church and federal law. As a result, these circuits have held that not only are religious employers shielded from hostile environment claims, but all forms of discrimination under Title VII, including equal pay and age discrimination.

Although the ministerial exception typically applies to ministers, the exception covers any employee shown to be important to a church’s “spiritual and pastoral mission.”

This decision is at odds with the Ninth Circuit’s holding in a previous case, Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) that a minister’s hostile environment claims against a church may be viable “so log as the church does not claim ‘doctrinal reasons for tolerating of failing to stop the [alleged] sexual harassment.”

The interplay between church tenets and federal sexual discrimination laws continues to evolve, with differences from circuit to circuit – even amongst the courts within a circuit.

Continue reading "Ministerial Exception Applies to All Title VII Claims" »

On April 21st, the U.S. Supreme Court unanimously reaffirmed the 11th Circuit Court of Appeals' decision that reasonable attorney fee awards may include enhancements for superior performance under a federal fee-shifting statute in civil rights cases. (Perdue v. Kenny A., U.S. No. http://08-970, 4/21/10). However, the enhancement may only be allowed in “extraordinary circumstances.”

The issue of when an enhancement may be allowed was raised in a civil rights class action brought on behalf of foster children throughout Fulton County and DeKalb County, Georgia by private attorneys and non-profit children’s rights advocacy groups alleging that the State’s foster case system violated 42 U.S.C. Sec. 1983, as well as other state and federal laws. After 3 years of extensive motion and discovery work, both sides resolved the issue through mediation, entering into a consent decree aimed at implementing sweeping reforms.

As part of the decree, plaintiffs’ attorneys were entitled to fees pursuant to 42 U.S.C. Sec. 1988. Fees allowed under Sec. 1988 are subject to the same standards as those allowed pursuant to federal employment discrimination and wage/hour statutes.

The fees were determined by a lodestar figure (reasonable hourly rate multiplied by hours worked). The lodestar figure was then enhanced by a factor of 1.75 based on the plaintiffs’ attorney’s quality of work – which the district court noted, “far exceeded what the foster children could have received in the private market” and the exceptional results achieved.

Continue reading "Supreme Court Determines Fee Enhancements Are Allowed For Superior Performance" »

When Congress returns from its April recess, several significant employment and labor related issues will be addressed. These include legislation prohibiting job discrimination based on sexual orientation and gender identity, fair pay and paid sick leave under the Family Medical Leave Act (FMLA).

Under current law, Title VII prohibits employment discrimination on the basis of any protected category. This means that any private employers, state and local government, employment agencies, labor organizations or federal government who employs more than 15 employees cannot discriminate against you regarding almost any employment matter – including hiring, firing and discipline.

Senate bill 1584 and H.R. 3017,the Employment Non-Discrimination Act, seek to extend the protections already in place for race, religion, gender, national origin, age and disability to “gender identity.”

The Legislation defines “gender identity” as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designation at birth.”

Other legislation being considered includes the Paycheck Fairness Act (S. 182, H.R. 12) which seeks to amend the Equal Pay Act to create greater consequences for sex discrimination regarding wages. These include non-retaliation requirements, as well as increasing penalties and providing for compensatory and punitive damages where violations occur.

Continue reading "Congress To Review New Employment Discrimination Laws " »

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.

Continue reading "Agreement to Arbitrate USERRA Discrimination Claim is Enforceable" »

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.

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

We recently wrote about the Senate’s passage of the Genetic Information Nondiscrimination Act, a federal law that would prohibit employers from discriminating against employees based on the results of genetic tests and also prohibit health insurance companies from relying on the results of genetic tests in setting premium rates or making enrollment eligibility decisions.

The good news is that on May 1, 2008, the House got on board by passing an identical version of the bill, by a margin of 414-1, with the only dissenting vote coming from Texas Republican and former presidential candidate Ron Paul.

President Bush has already expressed his support for the law and is expected to sign it in the near future.

Unfortunately, we’re seeing a lot of discrimination cases involving armed forces personnel these days. Under the Uniform Services Employment and Reemployment Rights Act (USERRA), employers may not discriminate against active armed services personnel and veterans in employment, but unfortunately a lot of employers are ignoring the law. A recent case from the Seventh Circuit Court of Appeals, although not from a Georgia court, is a good reminder of the rights of armed services personnel and veterans to be free from employment discrimination.

In Davis v. Advocate Health Center Patient Care Express, Advocate briefly employed Robert Davis, a Vietnam veteran, as an answering service agent in the spring of 2007. During his probationary period, Advocate fired Davis, and Davis in turn filed a federal discrimination case against Advocate under the USERRA, claiming that it fired him because of his prior military service. Davis also asked the court to waive the filing fee for his case, claiming that the USERRA excused him from having to pay such fees. The lower court disagreed with Davis, concluding that the statute did not waive fees because such an interpretation would encourage frivolous lawsuits.

On appeal, the Seventh Circuit agreed with Davis and reversed the lower court, holding that Congress’s intent in enacting the statute was to waive the filing fee for covered service personnel. The court noted that his rule applies whether or not the individual can actually afford to pay the fee.

In a unanimous 95-0 vote, the U.S. Senate passed an anti-discrimination bill on April 24th that would prohibit employers from using genetic information in making employment-related decisions. The proposed law, known as the Genetic Information Nondiscrimination Act, bars employers from using the results of an employee’s genetic test in hiring, firing, or promotion decisions and also prohibits health insurance companies from using genetic information in making enrollment or eligibility decisions or in setting premiums.

With the recent dramatic advances in genetic science, there are now more than 1,000 genetic tests available, but most employees do not take advantage of such tests for fear their employers will discriminate against them based on their test results. This fear could prevent millions of employees from taking genetic tests—tests that could help employees identify serious health conditions and allow them to seek out early intervention and treatment. If the law passes, employees will no longer need to fear retaliation from their employers, and they can get the testing and treatment they need.

The House is expected to pass the bill in the near future, and President Bush has already expressed his support for it. We’ll keep you posted.