Southern California Employment Law Report : Los Angeles Employment Lawyer & Attorney : Diane Crumpacker : Crumpacker Law Group : Discrimination, Disability

Wal Mart’s employment troubles were compounded recently when a law firm's newspaper  solicited witnesses to sexual harassment at a local Wal-Mart store.

Nine New York employees sued Wal Mart for $20 million arguing that the Wal-Mart store in Monticello, N.Y., routinely fires older, more experienced workers and replaces them with younger, less experienced employees. The same law firm that filed a sexual harassment lawsuit a couple of weeks earlier against the gargantuan retailer filed the age discrimination suit on February 11^th.

The lead partner in the law firm of Rosenbaum Faria said that the firm learned about the earlier age discrimination lawsuit only after it placed an ad in a local newspaper looking for witnesses to sexual harassment at the local Wal-Mart store.

Not surprisingly, Wal Mart has been the target of multiple lawsuits and has entered into huge settlements in recent years, emboldening plaintiffs’ attorneys to use aggressive solicitation tactics to recruit new plaintiffs. Since these attorneys’ routinely recover 30-40% of the overall recovery in these lawsuits, it is not surprising to see copycat actions cropping up with more likely to follow.

As recently as December of 2009, Wal-Mart settled the purported larges wage and hour class action in Massachusetts history by paying $40 million dollars.  In this action, the plaintiffs argued that hourly workers in Massachusetts Wal-Mart stores and Sam's Club stores were forced by their managers to work off the clock; were denied breaks or had shortened breaks.    This settlement agreement also required Wal-Mart to agree to use a clock-in/clock-out system which prevented employees from using the company's equipment if they weren't clocked in for work.  Wal-Mart was also obligated to institute a hot-line which its employees could call to report missed breaks or off the clock work.

The latest lawsuits follow a series of major settlements that Wal-Mart has paid over the past year to resolve employment disputes. Most recently, Wal-Mart agreed in December to pay $40 million dollars to resolve the wage and hour class action dispute. In February 2009, Wal-Mart paid $17.5 million to a class of  African American truck drivers in a federal court action pending in Little Rock Arkansas  which involved allegations that African American drivers applied to drive for Wal-Mart between 2001 and 2008 and were turned down. While the company denied wrongdoing, this and the $40 million dollar precedent have made it an obvious target for plaintiffs’ attorneys looking to cash in on the attorneys’ fees which are often recoverable in these discrimination actions.

A word to the wise employer – think twice or three times before quickly settling the frivolous claim against you. The same lawyer may be waiting in the wings to file another action as soon as the first check is paid. 

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A recent appellate court decision brought some relief for California employers in the area of sexual harassment.  Although it has always been the case that not all sexual conduct in the workplace is sexual harassment, the definition of when the line is crossed has been vague for quite some time.

In a decision entitled Haberman v. Cengage Inc., an appellate court followed the recent California Supreme Court decision of Hughes v. Pair in which the high court held “In construing California’s FEHA...the hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe…To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial.”

The conduct involved in the Haberman case involved solely comments and no touching. They also took place over a long period of time yet the court found no harassment.

Some of the allegations which the court found insufficiently severe and pervasive included:

·        At a conference, the alleged harasser, Bredenberg, asked the plaintiff how she looked so pretty early in the morning;

·        Bredenberg talked to the plaintiff about his wife’s recurrent battle with cancer and said he thought the next time around he would “go for the younger ones because women in their 40s get sick;

·        Bredenberg commented that a school administrator was “hot for being an older woman”;

·        Bredenberg joked that his father was known as “Big Dick”;

·        Bredenberg told the plaintiff that he was not ready for a relationship and just wanted to have sex, and he asked her what she thought; whether she had any friends that just wanted to have sex and whether she knew anyone who was good in bed;

·        Bredenberg told the plaintiff that a customer had the “hots” for her and wanted to date her;

 The Haberman court found that all the comments were inappropriate, they were not sexual harassment. In so ruling, the Court stated that “Bredenberg made brief and isolated comments to Haberman over the course of a two or three-year period...no instance of alleged sexual harassment involved any physical contact.”   In summary, the court endorsed the proposition that the FEHA is not a general civility code and is not designed to rid the workplace of vulgarity.

Although this case will be valuable precedent for employers defending claims of sexual harassment, it is extremely risky to assume that another court would rule similarly under a different set of facts. Rather all employers are well advised to insure that all allegations of harassment are taken seriously and investigated thoroughly and promptly. These cases continue to represent substantial potential exposure for employers.

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State and federal laws prohibit discrimination based on sex. Under the federal law, Title VII of the Civil Rights Act of 1964, an unlawful employment practice is established when an employee can prove that sex or gender was a motivating factor for an adverse employment action.  In a recent decision entitled,  Lewis v. Heartland Inns of America, L.L.C., 8th Cir., No. 08-3860, Jan. 21, 2010, the Eighth Circuit Court of Appeals which governs federal courts in Iowa, Minnesota, Missouri, North and South Dakota, Missouri, Arkansas and Nebraska, found that sexual stereotypes can form the basis of a discrimination claim.

In Lewis,, a female hotel desk clerk was terminated after a member of management complained that she lacked the pretty and “Midwestern girl” look that was desirable for a front desk position.

In this case, the employee worked as a night auditor and was offered a front desk shift position. She accepted the position and began to work in it until the Director of Operations who had approved the promotion, changed her mind when she met Lewis in person. Once she saw Lewis, the Director stated that she wasn’t a “good fit” for the position as she lacked the “Midwestern girl” look necessary at the front desk. Lewis was tomboyish, was mistaken for a male, didn’t wear make-up and often wore more masculine clothing than other employees.

The Director then ordered Lewis’ immediate supervisor to return Lewis to her original position. The supervisor refused and was told by the Director that she should resign. Lewis was then re-interviewed for the position she had held for a month and, three days later, was terminated for “thwarting the interview process.” Lewis sued alleging sex discrimination and argued that she was terminated for not confirming to sexual stereotypes in violation of Title VII. While the lower court found in favor of the employee, the court of appeals reversed, finding that sexual stereotyping can violate Title VII when it impacts employment decisions as it did in this case. 

This case is instructive even though it does not govern the federal courts in California in that it serves as a reminder that attention to sexual stereotyping, even if inadvertent can expose employers to significant liability. 

In general, any employer who takes action against an individual because that individual doesn’t fit within sexual stereotypes is engaging in sex discrimination because the action would not have occurred but for the sex of the individual. 

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As increasing numbers of employees find themselves out of work, many employers are faced with charges of discrimination which would never have been brought before the recent economic downturn.

Both state and federal agencies regulate discrimination in employment. In California, the California Fair Employment and Housing Commission accepts claims of discrimination on the basis of age, sex, pregnancy, race, religion, national origin, disability, marital status, and sexual orientation. In enforcing federal discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC) accepts the same claims and enforces the main discrimination statute, Title VII of the Civil Rights Act of 1964 as well as the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). 

The EEOC recently  reported receiving a the second highest number of claims in its history during 2009. It noted that  of the 93,277 workplace discrimination charges filed,  race and sex discrimination continued to be the most frequently filed.   The Fiscal Year 2009 data showed that the private sector bias charges alleging discrimination based on disability, religion and/or national origin hit record highs.  charges alleging age-based discrimination reached the second highest level ever.

The agency noted that it had resolved, either through settlement, withdrawal of the charge or a conciliation agreement, 85,980 charges. These charges resulted in approximately $376 million in relief for the aggrieved employees. This relief represented a $20 million increase over awards made in 2008.

As discussed in the comprehensive enforcement and litigation statistics .published on January 6, 2010, the EEOC feels that  "The near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees' greater awareness of their rights under the law, and changes to the agency's intake practices that cut down on the steps needed for an individual to file a charge."

The statistics published by the EEOC should be viewed as a indication of the willingness of terminated or disgruntled employees to file charges of discrimination in numbers never seen before in the history of the agency. Consequently all California employers are well advised to insure that their written policies and procedures and all of their practices are in compliance with both state and federal anti-discrimination statutes and regulations. 

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Under the federal disability law, the Americans with Disabilities Act ("ADA"), an employee is considered to be "disabled" within the protection of this law if the employee suffers a mental or physical impairment that "substantially limits one or more major life activities".  This law applies to most employers with 15 or more employees.  Recent amendments to the ADA were intended to broaden the meaning of the term "disability" and, in turn, to extend the reach of the ADA to cover a larger proportion of the workforce.  Unfortunately, many of the difficult interpretive questions presented by this law remain unanswered.

Last week, a federal Court of Appeals found that a public health nurse who had attendance problems due to panic attacks which made her too anxious to drive, had no viable ADA claim.  In a Seventh Circuit decision (the court that governs in Illinois, Indiana and Wisconsin), entitled Winsley vs. Cook County Department of Public Health, the court found that that nurse could not bring an ADA claim because driving was not a "major life activity".

In the Winsley case, the nurse worked in the field and was required to be able to drive two hours a day to her assignments.  Because of an automobile accident, the nurse had been diagnosed with post traumatic stress disorder.  Her doctor restricted her driving because she "would go into a full panic attack when she got into a car."  When the employer failed to accommodate her driving restrictions, the nurse resigned, claiming that the employer had violated the ADA.

The Winsley court found that the "major life activities" identified by the federal agency charged with enforcing the law, the Equal Employment Opportunity Commission, have a number of things in common with each other that driving does not share with them.  "Most importantly, the listed activities are so important to everyday life that almost anyone would consider himself limited in a material way if he could not perform them.  This is not the case with driving.  In fact, many Americans choose not to drive and do not consider the quality of their lives to have been diminished by their choice."  In ruling this way, the Seventh Circuit joined the Second Circuit which governs New York, Connecticut and Vermont, the Tenth Circuit which governs Wyoming, Colorado, New Mexico, Kansas and Oklahoma and the Eleventh Circuit which governs Florida, Georgia and Alabama in ruling that driving is not a major life activity.

This decision is significant for employers in that it emphasizes the importance of carefully drafting job descriptions to define all essential functions of the job.  It also underscores the importance of analyzing all ADA or other disability type claims with the assistance of employment counsel since the law in this area remains, to say the least, extremely gray.

Image:  www.nowpublic.com

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The Equal Employment Opportunity Commission ("EEOC") is the federal agency charged with enforcement of federal discrimination laws such as Title VII and the ADA. Today a Task Force commissioned by the EEOC released an extensive document entitled "Best Practices of Private Sector Employers" outlining its findings and providing significant recommendations for all employers.

The 183 page document reflects the results of many individuals and companies and months of research into the inner workings of American companies both large and small.  The Task Force divided its study into six major groupings:  (1) recruitment and hiring practices; (2) promotion and career advancement; (3) terms and conditions; (4) termination and downsizing; (5) alternative dispute resolution and (6) other. 

The Task Force noted that, in order to qualify as a "best practice", the practice should promote equal employment opportunity and address one or more barriers that adversely impact equal employment opportunity.  The practice must also involve a serious commitment from management to the EEO objectives and must involve management accountability for equal employment opportunity.  The practice must essentially embrace fairness to all employees and must be implemented conscientiously and should show noteworthy results.

In attempting to obtain data from a statistically significant slice of the American workplace, the Task Force sent letters to any employer with 25,000 or more employees.  In addition to numerous surveys sent to associations representing employers, employees and civil rights groups, the Task Force sent letters to each member of the Senate Labor and Human Resources Committee and the House Committee on Education and the Workforce asking for input on all matters under Task force consideration.

All employers are well advised to review this detailed analysis of the types of practices this governmental agency would consider to be acceptable in the area of EEO compliance.  It provides many suggestions and recommendations applicable to many businesses.  

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While many employers are well aware that state and federal law protects employees against employment discrimination on the bases of race, sex, national origin, religion, sexual orientation and disability, few are aware that these laws also protect against associational discrimination. Title VII of the Civil Rights Act of 1964, the federal civil rights statute, makes it unlawful to discriminate against individuals who associate with members of a protected class and who experience discriminatory treatment, even if they are not members of that protected class.

A recent appellate decision entitled Barrett v. Whirlpool Corp. addressed a lawsuit filed by three Caucasian women who claimed they were discriminated against based upon their friendship with and advocacy on behalf of African American employees.

The allegations in the Barrett matter involved egregious conduct such as statements that “we missed you ladies at the [Ku Klux] Klan meeting last night” and the fact that the plaintiffs were forced to view racial graffiti in the workplace and listen to racial slurs and racist jokes. However, the Court made a significant finding that no particular degree of association is needed in order to state a claim of associational discrimination under federal law. The court stated that “If a plaintiff shows that 1) she was discriminated against at work and 2) the discrimination was because she associated with members of a protected class, then the degree of the association is irrelevant.”

The Barrett decision is a harsh reminder for all employers that the discriminatory comments and actions of its employees may subject the employer to liability, not only to the one at whom the comments or actions are directed but also to others who associate with these employees. Since a valid claim for associational discrimination brings with it the potential liability for compensatory and punitive damages as well as attorneys’ fees, employers are well-advised to insure that all supervisory employees are instructed as to the risks posed by any discriminatory comment or action.

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