The Employment Law Daily News for Aug 01, 2010
EEOC Complaints by Federal Employees Against Federal Government Increased in 2009
Thu, 29 Jul 2010 03:48:09 - Pacific Time
Maybe this is a "do as I say not as I do" story, but the federal government published interesting information about their own compliance with federal employment discrimination law. There were almost 2.8 million women and men employed by the federal government across the country and around the world. In FY 2009, 15,825 individuals filed 16,947 complaints alleging employment discrimination against the federal government. The number of complaints filed increased by 1.2% from the number filed the previous year and there was a 1.8% increase in the number of individuals who filed complaints over the same period. In FY 2009, 6.6% of the complaints filed were by individuals who had previously filed at least one other complaint during the year, a decrease from the 7.2% in FY 2008. A total of 10,199 investigations were completed government-wide in an average of 185 days in FY 2009. Significantly, 7,432, or 72.9%, of the investigations were timely completed, less than FY 2008's 74.0% timely completed rate. In FY 2009, as a result of final agency decisions, settlement agreements, and final agency actions in which agencies agreed to fully implement EEOC Administrative Judges' decisions, agencies paid monetary benefits to EEO complainants totaling $41.7 million, up slightly from the $41.0 million paid in FY 2008. An additional $8.5 million was paid out in response to appellate decisions, a decrease from the $12.3 million paid out in FY 2008.This report covers the period from October 1, 2008, through September 30, 2009 and contains selected measures of agencies' progress toward model EEO programs. The FY 2009 Annual Report on the Federal Work Force, submitted to the President and Congress, presents a summary of selected EEO program activities in the federal government, including work force profiles of 59 federal agencies. The report provides valuable information to all agencies as they strive to become model employers. It also shows where some of our tax dollars go. Read More...
9th Circuit Finds that Emotional Volatility Justifies Fitness for Duty Examination for Police Officer
Thu, 29 Jul 2010 03:48:03 - Pacific Time
The 9th Circuit Court of Appeals held, in the case of Oscar Brownfield v City of Yakaima, that the City did not violate Brownfield’s rights under the ADA by requiring a fitness for duty exam (“FFDE”) after he repeatedly exhibited emotionally volatile behavior while serving as a police officer. Incidents cited in the decision included repeated complaints about a fellow police officer, a disruptive argument with another officer; a domestic violence call from Mr. Brownfield’s estranged wife and a report he made comments including, “It’s not important how this ends.” In 2005 he underwent a FFDE examination and was diagnosed with a “Mood Disorder due to a General Medical Condition with mixed features,” which manifested itself in “poor judgment, emotional volatility, and irritability” and which could be related to Brownfield’s 2000 head injury. Dr. Decker concluded that Brownfield was unfit for police duty and that his disability was permanent. Brownfield was transferred from administrative to FMLA leave. In December 2005, Brownfield was injured in another off duty car accident. In 2006 he was released from treatment for this accident with an indication that the could perform the physical duties of his job, but without comment about his emotional situation. He obtained a second opinion that found he was unable psychologically to perform his job, but that he might improve with treatment which he pursued and made "progress." However he refused a later request for a FFDE exam to see if his improvement qualified him for duty psychologically. He was terminated by the city from his position in April 2007 after he refused to cooperate in the additional fitness-for-duty exam. Mr. Brownfield sued the city, charging the city violated the Americans with Disabilities Act on the basis that an employer may not require a fitness-for-duty exam to determine whether an employee is disabled unless it is “consistent with business necessity.” Mr. Brownfield contended the business necessity standard cannot be met without showing that an employer’s job performance has suffered as a result of health problems. The 9th Circuit said it agrees with other courts “that prophylactic psychological examinations can sometimes satisfy the business necessity standard, particularly when the employer is engaged in dangerous work. However, we must be keen to guard against the potential for employer abuse of such exams.” The court said its consideration of the fitness-for-duty exam’s legitimacy in this case “is heavily colored by the nature of Brownfield’s employment. Police officers are likely to encounter extremely stressful and dangerous situations during the course of their work…When a police department has good reason to doubt an officer’s ability to respond to these situations in an appropriate manner (a fitness-for-duty exam) is consistent with the ADA,” said a three-judge panel, in upholding a lower court’s ruling. The opinion also upheld the lower court’s ruling dismissing Mr. Brownfield’s claims of violation of the Family and Medical Leave Act and for First Amendment retaliation. Read More...
Class Action Suit Claims Employment Discrimination by Oakland Bus Company
Wed, 28 Jul 2010 05:45:55 - Pacific Time
An Oakland woman is the lead plaintiff in a federal class action lawsuit against the Ohio-based First Transit bus company, one of several service providers for East Bay Paratransit, claiming the company's hiring policy barring applicants with felony convictions is discriminatory against blacks and Latinos and violates civil rights and fair employment laws. The complaint, filed Tuesday in U.S District Court in San Francisco on behalf of 44-year-old Adrienne Hudson, is backed by the nation's largest transit unions. It asserts that, because blacks and Latinos have a higher incarceration rate nationally, employment-selection policies based on criminal background checks — such as First Transit's — have "a disparate impact on African-American and Latino job applicants and employees." "First Transit has a blanket ban for anyone who has ever had a felony conviction," said Kalman Resnick, a Chicago attorney representing Hudson. "This kind of a ban, which doesn't take into consideration the length of time since the offense, or whether the offense is related to the job at hand — such as vehicular manslaughter for a job as a bus driver — but rather bans anyone who has ever spent a day in jail on a conviction for anything, not only affects that individual, but has societal implications. This can continually depress a class of people who could get better pay and work their way out of poverty." First Transit, a subsidiary of First Group America in Cincinnati, contracts to provide bus service in cities around the U.S. and Canada. Company spokesman Timothy Stokes provided this prepared statement: "While we cannot comment on litigation we have not seen, we take very seriously the safety and security of the passengers we transport each day." The suit states that Hudson, who is black, was hired at First Transit's Oakland office in 2009. She trained for three weeks and was driving a bus for only two days when she was fired after her background check came through, revealing a 2002 felony conviction for welfare fraud, which was later reduced to a misdemeanor and eventually dismissed in 2007. "She had been upfront about her background during the interview process, and the HR person told her it would not be a problem," Resnick said. "Studies have shown that after seven years with a clean record, an individual is no more likely to offend than a person who never was arrested or convicted. A ban like this is saying, we're not only going to punish you, but keep punishing you over and over again by denying you the ability to be gainfully employed in your community." The suit seeks monetary damages and an elimination of such hiring practices. Officials with the Amalgamated Transit Union, the nation's largest union of mass transit workers, say the policy violates the 1964 Civil Rights Act which states employers can't base hiring on a past felony conviction if it would disproportionately impact minority groups. In Hudson's case, "This is a person who was convicted many years ago for an offense that is completely unrelated to driving a bus," said Oscar Owens, ATU secretary-treasurer. "She did everything she was asked to do. She served her sentence, she completed her probation, and her conviction was expunged. Seven years later, she's got a good-paying job, she's supporting her family, and you're going to kick her out on the street and bar her from employment? We can't let employers get away with that kind of discriminatory behavior." Read More...
Area Temps Agrees to Pay $650,000 for Profiling Applicants by Race, Sex, National Origin and Age
Wed, 28 Jul 2010 05:38:13 - Pacific Time
Area Temps, a Northeast Ohio temporary agency, agreed to pay $650,000 to resolve a class discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged in its lawsuit (1:07-cv-02964) that the temporary agency violated federal law by considering and assigning (or declining) job applicants by race, sex, Hispanic national origin, and age. The EEOC also alleged Area Temps unlawfully complied with discriminatory requests made by its clients based on race, sex, national origin and age, and unlawfully fired two of its employees in retaliation for their opposition to Area Temps’ discriminatory practices and for one employee’s participation in the EEOC’s investigation. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin both by employers and placement agencies, and protects employees who complain about or oppose such discrimination from retaliation. It also violates the Age Discrimination in Employment Act (ADEA), which prohibits discrimination based on age against people 40 years of age or older. The three-year consent decree settling the suit, in addition to monetary relief, requires the company to post a notice of resolution regarding this lawsuit, visible to employees. The company must also provide a notice-of-resolution letter to all applicants, management and selecting officials and to outside clients on the obligations of the company under federal anti-discrimination laws, as well as Area Temps’ commitment to abide by such laws. Read More...
California Employer Awarded Attorney Fees for Frivolous Title VII Claim
Tue, 27 Jul 2010 03:25:41 - Pacific Time
Gennady Dolzhenko applied for a temporary job as a factory assembler with Valley Temps, Inc., who is an employment services business principally serving manufacturing businesses. He scored poorly on screening examinations including a shop safety test. In a personal interview appellant was found not to be fluent in English. Based on these results, he was determined not to be a good candidate for any electronics job then available. After Valley Temps received communications from Dolzhenko it considered rude, condescending, and threatening, his application was closed and he was not considered for job openings. Dolzhenko then filed a suit for national origin discrimination under title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (Title VII)). In its answer, the employer asserted several affirmative defenses, including Dolzhenko’s failure to exhaust his administrative remedies under Title VII. The employer moved for summary judgment. No opposition to the summary judgment motion was filed and the employee did not appear at the hearing on that motion. (It appears that he was acting in pro per during this litigation.) The court ruled that he had notice of the hearing. Summary judgment was granted The employer then moved for an award of $79,171.00 in attorney fees as prevailing party. The trial court found that this is the unusual Title VII case warranting an award of fees against the plaintiff because the claims were “‘frivolous, unreasonable, or groundless.’” (Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 791, quoting Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 422 (Christiansburg).) Dolzhenko opposed the request for fees. Based on the totality of the circumstances, the complexity of the case, and “especially in the excessive number of Court appearances required by a number of meritless motions brought by the Plaintiff,” including multiple reconsideration and discovery motions, the court found reasonable fees to be 26 hours (at $375 per hour) for the period before January 3, 2008, and 56 hours for the period after that date. The total fee award was $30,750. He appealed the fee award to the Court of Appeal. They reviewed the record, and the appropriate law and did not find any abuse of discretion in the award of fees in favor of the employer. The order awarding attorney fees was affirmed in an unpublished opinion. Read More...
ADA at 20: Breakthroughs Abound, But Some Attitudes Unchanged
Tue, 27 Jul 2010 03:25:33 - Pacific Time
The Americans With Disabilities Act, signed 20 years ago, has changed the face of America. But some attitudes toward those with disabilities need to change, say advocates. Monday marks the 20th anniversary of President George H. W. Bush signing the Americans with Disabilities Act (ADA) into law and proclaiming, “Let the shameful walls of exclusion finally come tumbling down.” Officials, advocacy groups, and the public are applauding how transformational the law has been for tens of millions of Americans with disabilities. In its 20 years, the law has made buildings, vehicles, and streets more accessible, yet many say much more can be done to end discrimination for those with a physical impairment. “Twenty years after the passage of the Americans with Disabilities Act, we can see tangible results,” says James Weisman, senior vice president and general counsel for the United Spinal Association, which advocated for and drafted significant provisions for the legislation. “The ADA mandates have broken down architectural, transportation and communication barriers,” adds Mr. Weisman. “The opportunity, which has afforded those with physical, sensory and cognitive impairments the enjoyment of all America has to offer, has changed us all. The accommodation of people with disabilities has made us a world model.” The ADA is a broad civil rights law that forbids discrimination based on disability. It gives similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made illegal any discrimination based on race, religion, sex, national origin and other characteristics. Iowa Sen. Tom Harkin (R), in an op-ed for Politico, recalls hearings before the law's passage: "We heard stories of Americans who had to crawl on their hands and knees to go up a flight of stairs, or to gain access to their local swimming pool; who couldn’t ride on a bus because there wasn’t a lift; who couldn’t go to concerts or ballgames because there was no accessible seating; who couldn’t cross the street in wheelchairs because there were no curb cuts…. Twenty years later, that wall is indeed falling.” “Legislation invites interpretation,” says Robin Bond of Transition Strategies, LLC, an employment law firm. She says that while the ADA has raised the level of awareness about disabled workers, and provided “more legal safeguards for the disabled than people originally thought it would" over the last 20 years, there are troubling trends. That interpretation can lead to inconsistencies for many workers with disabilities, says Ms. Bond. "How successful a disabled worker is at staying employed is more often determined by the sensitivity of the boss, and the culture the employer adopts,” she says. Moral and attitudinal shifts need to follow the ADA's legal strides, say several experts. “The public doesn’t really have an appreciation for what it means to be disabled,” says Dr. Susan Schmeltzer, professor in the college of nursing at Villanova University. “People need to be more aware of the gigantic contributions these people are making to society, that they are not a drain on the system – they are raising families and taking care of children and parents while holding very responsible positions," she says. "That is still not a view that many in society have.” Bond, a workplace legal expert who represented employers for 15 years before representing employees for the past 13, says the discrimination against the disabled still exists but now takes subtler – even “sneakier” forms. Read More...
$17 Million Verdict Against Union For Defamation Reversed
Mon, 26 Jul 2010 07:30:30 - Pacific Time
In the the partially published opinion of Sutter Health v. UNITE HERE, the Court of Appeal reversed a $17 million jury verdict in favor of Sutter Health against UNITE HERE, a labor union. UNITE HERE is the collective bargaining representative for about 450,000 workers employed in the garment industry, industrial laundries, and food service establishments across North America. Angelica Textile Services, Inc. is the largest healthcare laundry company in the United States, with approximately 31 laundry facilities nationwide. In an effort to force Angelica to employ only union members and to improve their working conditions, the labor union commenced a campaign utilizing a variation of a technique known as secondary picketing. The campaign was directed at a group of hospitals, including Sutter Health that used the services of the laundry company. The union mailed postcards to prospective clients of the hospitals, warning them that the hospitals had their laundry cleaned by a company that did not ensure the cleaned linens would be free of blood, feces, and other harmful pathogens. The postcards were intended to (1) dissuade people from using the hospitals because of the laundry company's shortcomings, thus (2) put pressure on the hospitals to stop using the laundry company's services, which would (3) persuade the laundry company to agree to the union's demands in order to avoid the loss of the hospitals‟ business. The hospitals sued the union for defamation, trade libel, and intentional interference with prospective economic relations. The union appealed the $17 million judgment entered after a jury found in favor of the hospitals. The California Court of Appeal reversed the judgment. They found that the court committed harmful error by refusing to instruct the jury that the hospitals had the burden of proving by clear and convincing evidence that the union made the defamatory publication with actual malice, i.e., with knowledge of its falsity or with reckless disregard of whether it was true or false. Federal law holds that this actual malice burden of proof applies to plaintiffs who seek state remedies for defamatory labor dispute publications, and that such publications include those directed at "secondary targets," i.e., companies using the services of a company that is engaged in a labor dispute with an employee union. The postcard publication in this case was such a labor dispute communication because the union used it to advance the union's primary dispute with the laundry company by exerting pressure on the hospitals to stop using the laundry's services if the labor dispute was not resolved. Instead of giving the required actual malice instruction, the trial court told the jury that the union could be liable if it failed to use reasonable care to determine the truth or falsity of the publication. This was harmful error because the instruction omitted a vital element of the case and misinformed the jury regarding the hospital's burden of proof. Read More...
Senate Passes Extension To Unemployment Insurance Benefits
Fri, 23 Jul 2010 12:55:49 - Pacific Time
Following a Republican procedural delay, the U.S. Senate passed an extension to unemployment insurance benefits. As a result, benefits may soon be restored to approximately 2.5 million unemployment Americans. The vote was 60 to 40, with two Republican senators, both from Maine, voting with the Democratic majority. Republicans have strongly opposed the measure, and used a procedural rule to delay the final vote for over a day. According to Senate Majority Leader Harry Reid, “Every time $1 goes out in unemployment benefits, $1.61 comes back into the economy.” Republicans have said they do not oppose extending unemployment insurance benefits, but they want to pay for it out of stimulus funds already appropriated, as opposed to increasing the deficit by paying for the benefits out of the general fund. The measure must now return to the House for approval because it was amended in the Senate. Read More...
California Moscone Act Declared Unconstitutional
Thu, 22 Jul 2010 08:03:40 - Pacific Time
The California Court of Appeals (Third District) in the case of Ralphs Grocery v. UFCW, held that the Moscone Act and a related statute were unconstitutional. The Moscone Act limits the equity jurisdiction of the courts in cases involving labor disputes. Without referring to the Moscone Act, Labor Code section 1138.1 restricts the authority of the courts to issue a preliminary or permanent injunction in a case involving a labor dispute. In this case, a union peacefully picketed in front of a grocery store, a private forum, contrary to the grocery store's demands that the union not use the private property for its expressive activities (its "speech," using the term generally). When the grocery store sought injunctive relief against the picketing, the court denied the relief based on California's statutory scheme making it virtually impossible for an employer to obtain injunctive relief in a peaceful labor dispute. This case presents the question of whether the state, based on the content of the speech, can force the owner or possessor of real property that is not a public forum to give an uninvited group access to the private property to engage in speech. In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard), the California Supreme Court held that the liberty of speech clause of the California Constitution protected speech in a privately-owned shopping center, subject to the owner's reasonable time, place, and manner restrictions, because the owner had created a public forum for speech. Subsequent cases decided by the Courts of Appeal have distinguished the large Pruneyard-type shopping center from large individual retail stores, even though those stores are located within a larger retail development. However, the Moscone Act selectively allows speech in a private forum based on the content of the speech. Governmental discrimination based on the content of speech is subject to strict scrutiny. It "may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest." Accordingly, as applied in this case, the Moscone Act violates the First and Fourteenth Amendments of the United States Constitution. The Act affords preferential treatment to speech concerning labor disputes over speech about other issues. It declares that labor protests on private property are legal, even though a similar protest concerning a different issue would constitute trespassing. And it denies the property owner involved in a protest over a labor dispute access to the equity jurisdiction of the courts even though it does not deny such access if the protest does not involve a labor dispute. This took the case out of the Pruneyard line of cases. Read More...
Man Wins $1 Million Gay Discrimination Suit
Thu, 22 Jul 2010 07:54:10 - Pacific Time
A jury has awarded a Buxton man more than $1 million in a discrimination case based on sexual orientation -- the largest such award to date in Maine. Edward Russell's attorney, Guy Loranger, argued in Cumberland County Superior Court that his client was repeatedly passed up for promotion because he is gay. In late June, a jury agreed after hearing three days of evidence and deliberating for six hours. The jury found that Russell's former employer, Express Jet Airlines, had violated Maine's Human Rights Act, which bars discrimination based on sexual orientation. Jurors awarded Russell $500,000 for emotional distress, $500,000 for punitive damages and $47,000 in lost wages. Loranger said Tuesday that the judge will determine what award caps to apply; he speculated the overall award will be capped at $547,000, plus attorney's fees and other costs. Attorneys for the company are arguing for a lower cap, Loranger said, and have said they would appeal. Express Jet's Vermont-based attorney could not be reached for comment, and the company's media relations office did not return a call for comment. Loranger said this is the largest sexual orientation discrimination award in Maine, a fact confirmed by John Gause, corporate counsel to the Maine Human Rights Commission. "This guy was completely qualified to do the job," Loranger said. "The jury said it didn't matter his color, his race, his national origin or his sexual preference -- he was qualified to do the job and you should have allowed him to do it." Express Jet Airlines operates regional jets for other airlines. It has been the regional operator for Continental Airlines at the Portland International Jetport, though that arrangement is coming to an end. Russell worked for Express Jet from 1998 until 2007. According to court documents, the company faced a complaint in 2003-04 from three female employees who had unsuccessfully applied for an open supervisory job. At the time, Express Jet managers at the jetport were all gay men. The women complained that the general manager at the time, who was gay, would hire only gay men. The general manager lost his job, according to court documents. Over the next four years, that position became open four times. Russell filled in several times, and wanted the job, but was told by regional managers not to waste his time applying for it, the documents said. "Our theory was they decided they did not want another gay man out there," Loranger said. At one point, according to the documents, the company hired a general manager whom a regional executive described as a "real man." That general manager made disparaging comments about gay people at work, according to the complaint. Russell left the job in 2007 "because of the discriminatory treatment," court documents said. Read More...
Past Employment Law News Articles
• Wal-Mart Spends Millions Challenging $7,000 Fine: Wed, 21 Jul 2010 06:29:37 - Pacific Time: Read More...
• Court Finds Employer Did Not Violate Labor Code Section 226 (a): Tue, 20 Jul 2010 09:44:56 - Pacific Time: Read More...
• Novartis Reaches $152.5 Million Sex-Bias Settlement: Mon, 19 Jul 2010 09:00:42 - Pacific Time: Read More...
• 10th Circuit Finds Catholic Church Immune From Workplace Discrimination Suit: Mon, 19 Jul 2010 09:10:17 - Pacific Time: Read More...
• Dodd-Frank Bill Provides Robust Whistleblower Protections: Fri, 16 Jul 2010 05:29:26 - Pacific Time: Read More...
• OSHA Seeks Applications for $2.75 Million in New Targeted Safety and Health Training Grants: Fri, 16 Jul 2010 05:27:43 - Pacific Time: Read More...
• Failure of Injured City Employee to Request Interactive Process Precludes FEHA Award: Thu, 15 Jul 2010 16:15:40 - Pacific Time: Read More...
• 24 Hour Fitness Chain Faces Discrimination Lawsuit: Wed, 14 Jul 2010 15:54:26 - Pacific Time: Read More...
• Obama's New "Silent Raids" Sneak Out of the Shadows: Tue, 13 Jul 2010 07:59:09 - Pacific Time: Read More...
• 4.5 Million New Workers Eligible for Tax Exemptions: Tue, 13 Jul 2010 07:53:25 - Pacific Time: Read More...