Wal Mart a Target for Another Huge Lawsuit

Posted on February 18, 2010 by Diane Crumpacker

 

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 11th.

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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Court of Appeals Rejects Harassment Case

Posted on February 14, 2010 by Diane Crumpacker

 

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.

Image: www.topnew.in

 

 

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