Supreme Court Rules on Age Discrimination Case Involving “Me Too” Evidence

Employees who are victims of age discrimination may be able to submit a new kind of evidence at trial to prove their case. The U.S. Supreme Court issued a unanimous ruling in Sprint/United Management Co. v. Mendelsohn, which involved the issue of “me too” witnesses at trial.

Ellen Mendelsohn, who worked for Sprint for 13 years, was 51 years old at the time she was selected for a mass layoff. During trial, she sought to introduce the testimony of former employees who allegedly saw spreadsheets with the ages of employees targeted for layoffs and who allegedly heard managers make age-biased comments. Mendelsohn’s proposed witnesses had not worked for the same immediate supervisor as Mendelsohn and had not been dismissed from Sprint at the exact same time.

The Supreme Court granted Mendelsohn’s writ of certiorari on the issue of whether the federal rules of evidence allow victims of workplace discrimination to offer testimony of co-workers who may have suffered discrimination under similar circumstances, but under different supervisors.

Although the Supreme Court did not issue a definitive finding on the issue, the Court concluded that “such evidence is neither per se admissible nor per se inadmissible.” Notably, the Supreme Court stated that the 10th Circuit Court of Appeals had not fully explained her reasons for excluding Mendelsohn’s proposed witnesses. In doing so, the Court vacated the 10th Circuit’s ruling and remanded the case back to the U.S. District Court in Kansas City, Kansas.

Pay Inequality Still Exists: Gender Discrimination Fuels Wage Gap

In 1964, Congress passed Title VII of the Civil Rights Act banning workplace discrimination based on, among other things, race and gender. Gender discrimination then, as evidenced through the wage gap, ran rampant. When Title VII was passed, women working full-time made approximately 59 cents to every dollar earned by their full-time working male counterparts. While progress has certainly been made, wage inequality between women and men persists. A recent article in the Wall Street Journal entitled, On Diversity, America Isn’t Putting Its Money Where Its Mouth Is
reveals the current wage gap:

Women, overall, are substantially lagging behind men in pay. Full-time female employees earned 77% of all men’s median wages. Breaking it down in terms of race, Asian-American women earned 78% of the median annual pay of white men; white women earned 73%; black women, 63%; and Hispanic women, 52%.

What can be done to put an end to the wage gap? Dr. Evelyn Murphy, President of The Wage Project, Inc., considered this very question in her book, Getting Even: Why Women Don’t Get Paid Like Men and What To Do About It.

As Dr. Murphy points out, seeking justice from the legal system is only part of the answer. Getting Even discusses the “pressure triangle,” which involves exerting pressure to end gender discrimination from the bottom up, from the top down, and from the outside in. The bottom up requires employees to document gender discrimination to their bosses and management. The top down requires those in control to respond to wage disparities and make a concerted effort to close the wage gap within their establishment. The outside in requires that we as a society make it socially unacceptable for employers to engage in discriminatory pay practices.

The wage gap will continue to exist if we continue to ignore it.

Supreme Court To Decide Whether Age Discrimination in Employment Act (ADEA) Prohibits Retaliation Against Federal Employees

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employers from refusing to hire, discharge, or otherwise discriminate against employees who are at least 40 years of age. The goal of the ADEA is to promote the employment of older persons and to prohibit employers from engaging in arbitrary discrimination based on age.

This term, the Supreme Court will hear no less than five cases involving age discrimination. As reported by National Public Radio (NPR) in an article entitled
Age Discrimination Hits Supreme Court, the traditional notions of retirement are changing:

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year …. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

Novel issues abound. In Gomez-Perez v. Potter, for instance, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. After filing an age discrimination charge against her supervisors under the ADEA, Gómez alleged that she suffered retaliation. The federal district court granted summary judgment for the Postal Service, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA.

Gómez appealed to the United States Court of Appeals for the First Circuit. The First Circuit reversed, in part, holding that the United States did waive sovereign immunity, but that Section 15 of the ADEA does not provide a cause of action for retaliation by federal employers.

As reported in an article by the Washington Post entitled Public Workers’ Shield Against Reprisal for Bias Claims Pondered, Chief Justice John G. Roberts Jr. and Justice Antonin Scalia will likely interpret this issue differently from Justice Ruth Bader Ginsburg.

Sexual Harassment Decision Against Town of Grafton Handed Down by First Circuit

It seems like common sense: a boss who incessantly stares at an employee’s chest to the point that she must hold objects in front of her to deter his wandering eyes constitutes sexual harassment. The First Circuit in Billings v. Town of Grafton et al. agreed, holding that a secretary who alleges that a supervisor repeatedly stared at her chest could sue her employer for sexual harassment.

Nancy M. Billings began working as a secretary for Grafton Town Administrator, Russell J. Connor, Jr. in 1999. A few months into the job, Billings noticed that Connor would repeatedly stare at her chest during their conversations. In one particular instance, Connor stared at Billings’ chest so many times in the first half-hour of her workday that she felt compelled to drive home and change her sweater.

Not surprisingly, other women who worked for the Town of Grafton also reported Connor’s wandering eyes and objectionable conduct. Billings filed numerous complaints about her boss’ misconduct to no avail. Rather than take remedial action against Billings’ boss, the Town placed the blame on Billings, and ultimately transferred her to a different department under less desirable working conditions. In attempting to defuse Connor’s actions, the Town of Grafton claimed that an ailment, called “alternating intermittent exotropia,” caused Connor to essentially stare at Billings’ chest.

Writing on behalf of the First Circuit, Judge Jeffrey R. Howard opined that Billings states a legal claim for sexual harassment:

We cannot reasonably accept, however, that a man’s repeated staring at a woman’s breasts is to be ordinarily understood as anything other than sexual. In arguing to the contrary in this case, the defendants rely on Connor’s eye condition, coupled with the fact that others who worked with him “did not sense any sexual intent underlying” his “failure to maintain eye contact.” While this might have some bearing on whether Connor’s staring created an objectively hostile work environment, it does not mean that the staring cannot support such a claim as a matter of law, because “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”

This case will be closely monitored as it progresses to trial.

Whistleblowers Working Abroad Gain Protection under the Sarbanes-Oxley (SOX) Act

Whistleblowers working abroad for American subsidiaries just scored a major victory. The Southern District of New York in O’Mahony v. Accenture et al. recently ruled that the plaintiff, Rosemary O’Mahony, states a valid claim under the Sarbanes-Oxley Act (SOX). O’Mahony, a British citizen, worked at Accenture in France for 14 years before being suddenly demoted after alerting her superiors in both the United States and France that the company failed to make more than $3 million in social security payments to France.

The main issue before the Southern District of New York was whether the Sarbanes-Oxley Act applies to employees, like O’Mahony, working overseas. The court held that SOX applied to O’Mahony because: (1) she was employed and compensated by a United States subsidiary of a foreign corporation; (2) the alleged retaliation and cover-up implicated Accenture employees working in the United States; and (3) the suit was being brought against a “foreign parent and its United States subsidiary for the alleged misconduct of the United States subsidiary in the United States.”

To read more about the case, please visit’s article entitled, N.Y. Judge Applies SOX Protections to Ex-Partner of Global Firm’s French Office.

Family Medical Leave Act (FMLA) Sees Changes

The Family and Medical Leave Act (FMLA) may undergo a shake up. The United States Department of Labor (DOL) has proposed regulatory changes to the FMLA. The changes, which are 500 pages long and have a 60 day comment period, make significant modifications to the FMLA. A sampling include:

Serious health condition: The definition of “serious health condition” would be substantially revised to require two or more treatments within a 30 day calendar period. In addition, to qualify as a chronic condition, an employee would be required to see a physician for the particular condition at least two times each a year.

Medical Certification: An employee’s burden to provide medical certification would be set higher, which allows an employer to dig deeper into an employee’s medical file, raising privacy concerns.

Notification: The notification period that employers are required to provide would be watered down. Under the proposed changes, employers will be given five days, versus the current requirement of two days, to provide employees with notice of FMLA eligibility.

The changes, which were initiated by President George W. Bush, are not employee friendly. Senator Hillary Clinton’s campaign issued the following Press Release:

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

We will keep you posted on what the 60 day comment period yields.

Race Discrimination Reports to the Equal Employment Opportunity Commission (EEOC) rose in 2007

Reports of race discrimination rose in 2007. The Equal Employment Opportunity Commission (EEOC) registered an increase of 24% from 2006. Complaints rose from 5,646 in 2006 to 6,977 in 2007. In an article entitled, Racial harassment cases rise sharply, USA Today reveals the changing face of race discrimination:

“Nooses are more prevalent,” says EEOC chair Naomi Earp. “The noose has replaced the N-word … as the choice if you want to threaten or intimidate someone.”

As race discrimination continues to rise, so will lawsuits. Last week, Judge Thelton Henderson of the U.S. District Court for the Northern District of California preliminarily approved Morgan Stanley’s $16 million proposed settlement for a racial-bias class action filed on behalf of 1,200 African-American and Latino brokers. In an article entitled Morgan Stanley $16 Million Race Bias Settlement Gets Prelim OK, CNN Money reported on some of the non-monetary aspects of the settlement:

Morgan Stanley agreed to settle alleged discrimination claims by setting up a $16 million settlement fund and establishing programs to boost diversity in its work force. The firm has agreed to work with industrial psychologists to develop hiring, retention and development initiatives for African-American and Latino financial advisers and broker trainees.

Merrill Lynch & Co., the largest retail brokerage house in the United States, is also facing a similar race discrimination suit from African-American brokers.

Sexual Harassment Victim Denied Right to Trial: Halliburton Remains Above the Law

Employers have found a new way to minimize the bad publicity that results from their discriminatory practices. Sexual harassment is no exception. Mandatory arbitration agreements are on the rise. Increasingly, employers require workers to sign arbitration agreements as a condition of employment. In doing so, employees give up the right to a trial by jury. As one woman’s plight against Halliburton reveals, mandatory arbitration clauses are unconscionable.

Ms. Barker is a mother of five. To support her family, she took a job in Iraq working for Halliburton. She recounts her experience in an ABC News article entitled, Sex Assault Suit Vs. Halliburton Killed:

The manager of the camp kept making gestures of how if I wanted my safety to exist on the camp, that I needed to sleep with him, and that’s all he kept saying to me. … On my way into the office, there was pictures of prostitutes and animals having sex pasted in the hallway. Our office was just wallpapered with pornography. There was not one space of wall at all.

Not surprisingly, Ms. Barker filed claims against Halliburton for, among other things, sexual harassment. Halliburton, however, had an ace up its sleeve. In order to be hired, Halliburton required Ms. Barker to sign a mandatory arbitration agreement. On February 6, 2008, a judge in Texas ruled that, per the terms of the agreement, Ms. Barker’s case must be heard in arbitration.

The United States Constitution recognizes the right to a jury trial as a fundamental civil liberty. Hopefully someday, the courts will do the same.

Houston Chronicle Editorial Urges Senate to Pass the Fair Pay Restoration Act

The Houston Chronicle ran an Editorial entitled, Pay Stub, which urges the Senate to pass the Fair Pay Restoration Act to ensure equal pay across genders. We wrote about the Act in a post on January 30, 2008 entitled, Two Important Congressional Bills: The Fair Pay Restoration Act & The Civil Rights Act of 2008.

The Act would essentially nullify the Supreme Court’s ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which sets a strict deadline for filing actions based on equal pay. Under the Supreme Court’s ruling, the statute of limitations in such actions starts to run when an employee first begins to receive unequal pay, even if the employee is completely unaware of the employer’s discriminatory pay practice. As the Editorial points out, the ruling panders to the corporate interest:

[I]t’s a disaster for employees. The reality of the work environment, as almost any employee knows, is that it is difficult to know how much money any individual worker makes. In fact, companies typically discourage employees from discussing pay issues in the workplace at all. Anyone receiving discriminatory wages will be highly unlikely to find out in a timely manner.

To read more about the Ledbetter decision, please visit our January 31, 2008 post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

The Perils of Work E-mail: Protecting the Attorney-Client Privilege

Employment discrimination rears its ugly head in many different ways. Wrongful termination is just as common as an employee who suffers the loss of a promotion due to his or her age, race, or national origin. From a practical standpoint, however, representing a client who was unfairly passed up for a promotion creates a different communication dynamic. Namely, the client in such situations is usually gainfully employed by the same employer against which allegations of discrimination are being lodged. Inevitably, the client and attorney will need to communicate during business hours through e-mail, which may place the attorney-client privilege in jeopardy.

I bring up this topic because the Wall Street Journal Law Blog recently featured a post entitled, Note to Litigants: Don’t Use Work Email to Discuss Your Case. To establish that the attorney-client privilege applies to a communication, the burden rests with the party asserting the privilege to show: (1) the existence of the attorney-client relationship; (2) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (3) that the communications were made in confidence; and (4) that the privilege as to these communications has not been waived.

The WSJ points out the following hypothetical based on the Supreme Court of New York’s ruling in Dr. W. Norman Scott v. Beth Israel Medical Center, Inc. et al.:

Plaintiff preparing to bring a lawsuit against his employer corresponds with his lawyer through his work email account. Defendant employer discovers the emails after litigation is filed, and forwards the messages to its in-house counsel. May the litigant rely on attorney-client privilege to keep the emails out of evidence?

Unfortunately, as the ruling indicates, the attorney-client privilege would be lost in this hypothetical where the employee has no expectation of privacy as to his or her work e-mail. The expectation of privacy doesn’t exist where an employer puts employees on notice that such e-mails are monitored.