Race Discrimination Suit Brought Against Clifford Chance and Sullivan & Worcester

Both the law firms of Clifford Chance and Sullivan & Worcester find themselves defending allegation of race discrimination. According to the Wall Street Journal’s law blog, Caroline Memnon, a black Haitian woman, brought suit on March 18, 2008 in the Southern District Court of New York. Memnon claims:

From inception, the CC partners failed to provide me with meaningful work. I was afforded a series of pointless reviews… where those performing the review declared that despite my obvious intelligence the practice of law “was not for someone like me.”

Clifford Chance terminated Memnon in 2002 and, according to Memnon, the firm “surreptitiously ‘blackballed’ [her] within the community of New York law firms.” In early 2007, Memnon began working at Sullivan & Worcester, which terminated her employment just months in March 2007. Sullivan & Worcester is a co-defendant in the suit.

Pregnancy Discrimination Complaints on the Rise According to the EEOC

Pregnancy discrimination may be on the rise. The Equal Employment Opportunity Commission (EEOC) has reported an up-tick in such complaints. Over the past year, complaints of pregnancy discrimination complaints rose 14% to 5,587. This represents the biggest annual increase in 13 years. Even more alarming, the number of pregnancy discrimination complaints has surged 40% from a decade ago. To read more about this trend, check out Sue Shellenbarger’s informative article in the Wall Street Journal entitled, More Women Pursue Claims of Pregnancy Discrimination.

Pregnancy discrimination, also known as family rights discrimination, has certainly picked up steam in the past two years. In December 2007, for instance, the New York Times published a sampling of newly minted buzzwords. Included in the list was “maternal profiling,” which the Times defined as:

Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.

(The article is entitled, All We Are Saying)

Surprisingly, the Massachusetts Fair Employment Practices statute (M.G.L. c. 151B, §4) does not explicitly prohibit discrimination based upon parenthood. In 2006, a Massachusetts Superior Court in Sivieri v. Commonwealth of Massachusetts interpreted the statute to include such a prohibition. Under Sivieri, pregnancy discrimination constitutes gender discrimination.

In Sivieri, the plaintiff worked as a paralegal for the state Department of Transitional Assistance (DTA). In November 1999, Sivieri gave birth to her daughter. After returning from maternity leave, Sivieri’s direct supervisor allegedly made numerous negative comments about her pregnancy. In one instance, her supervisor allegedly remarked that their work unit would maintain its productivity as long as no other employees became pregnant. Thereafter, Sivieri was passed up for a promotion for which she believed she was qualified.

In 2002, Sivieri filed suit on the basis that DTA’s failure to promote her constituted unlawful gender discrimination. Relying on the plain language of M.G.L. c. 151B, §4, DTA moved for summary judgment, arguing that the alleged discrimination related to parental status vs. gender, and parents are not members of a protected category under Chapter 151. The Superior Court rejected DTA’s position, holding that her supervisor’s negative remarks toward pregnancy and child rearing was based on gender stereotypes and, therefore, constituted gender discrimination.

The Sivieri decision is undoubtedly a step in the right direction. As the EEOC’s statistics indicate, however, there is still much progress to be made.

Race Discrimination Settlement Reached Against Walgreen’s

In March 2007, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit alleging that Walgreen’s discriminated against thousands of black workers in hiring and work assignment decisions.

This past week, a federal judge approved a settlement in which Walgreen’s agreed to pay $24 million to compensate approximately 10,000 past and present Walgreen’s employees who suffered racial bias. Attorneys’ fees in the case amounted to approximately $4.5 million. The settlement also requires Walgreen’s to hire outside consultants to review and revise their employment practices.

Supreme Court Refuses to Review Age Discrimination Case Involving Retirees’ Health Benefits

The Supreme Court recently rejected a legal challenge from AARP, which contended that employers that reduce health benefits for former employees who become eligible for Medicare violate age discrimination laws.

The case began approximately eight years ago in 2000 when retired county workers in Erie, Pennsylvania who had their health benefits reduced when they turned 65 claimed that such a policy violated the Age Discrimination in Employment Act (ADEA). The U.S. Court of Appeals in Philadelphia held that this policy amounted to age discrimination.

Initially, the Equal Employment Opportunity Commission (EEOC) agreed with the Appeals Court decision. In 2003, however, the EEOC determined that the ruling would incentivize employers to not offer benefits to retirees for fear of running afoul of age discrimination laws. With this concern in mind, the EEOC proposed an exception to the ADEA, allowing employers to reduce health benefits when former employees became eligible for Medicare.

In June 2008, the Appeals Court essentially reversed itself and upheld the EEOC’s new policy. For more information, please visit the Los Angeles Times article entitled, Supreme Court allows retiree benefit cuts

Age Discrimination Suit Filed Against WHDH-TV by former Reporter, Michael Macklin

WHDH-TV (Channel 7) is in the midst of defending an age discrimination claim. In a lawsuit filed in Suffolk Superior Court, former WHDH reporter, Michael Macklin, claims the station fired him last year after he complained of age discrimination. Macklin had been with the station for 13 years.

The suit alleges that the station’s news director, Linda Miele, reduced Macklin’s shifts beginning in January 2006 while simultaneously hiring several younger reporters. Just this week, WHDH announced that it would replace long-time anchor Jonathan Hall, who is in his late 40s, with Adam Williams, who is 27 years old. Hall will join the investigative unit.

Macklin’s suit seeks reinstatement, compensation, attorney’s fees, and court costs. To read more about Macklin’s suit, please visit the Boston Globe article entitled, Macklin sues Ch. 7 for age discrimination.

The Importance of Discovery in Proving Workplace Discrimination Based on Circumstantial Evidence

Employment discrimination claims are usually proven on circumstantial evidence as opposed to direct evidence. The latter is also known as the “smoking gun,” which very often does not exist. Below are two examples to illustrate the difference between these two types of evidence using, as I’ve been known to do, characters from the TV sitcom, The Office:

(1) Michael Scott falls under the misguided impression that the surest way to increase profits is to fire all employees above 40 years old. He promptly terminates Phyllis Lapin and provides her with a letter stating that he has enjoyed working with her and regrets having to terminate her because of her age. This is clearly direct evidence of discrimination. Dunder Mifflin is embarrassed and promptly settles out of court.

(2) Michael Scott falls under the same misguided impression. However, after discussing his scheme with Dunder Mifflin’s Human Resources guru, Toby Flenderson, Michael is flabbergasted to discover that such a termination would be illegal. Rather than discharge Phyllis, Michael enlists his trusty sidekick, Dwight Schrute, to convince Phyllis to retire. Together, Michael and Dwight engage in a series of age-based comments directed toward Phyllis. In one instance, Michael asks Phyllis about her plans to retire and tells her, “There’s not much time left.” In another instance, Dwight starts an office pool and awards the proceeds to the employee who comes closest to guessing Phyllis’ age. Unperturbed, Phyllis keeps working. Michael eventually gives in and terminates Phyllis under the auspices of poor performance. Toby is shocked and reminds Michael that he gave Phyllis an excellent performance review the month before. Michael laughs Toby off, tells him he worries too much, and assigns Phyllis’ sales accounts to the receptionist, Pam Beesly, who has no prior sales experience. There is clearly circumstantial evidence of discrimination. The case against Dunder Mifflin is not air tight, but Phyllis will likely prevail.

Cases based on circumstantial evidence follow a three-step analysis. First, the employee alleging workplace discrimination must establish what is called a prima facie case. In the second example, Phyllis satisfies this burden because: (a) she falls into a protected category being 40 years old or older, (b) she suffered an adverse employment action by way of her termination, and (c) she was replaced by Pam, who happens to be at least five years younger. Having established her prima facie case, the burden now shifts to Dunder Mifflin to supply a legitimate, non-discriminatory reason for the termination. Based on Phyllis’ superb performance, the company realizes that it cannot credibly claim that Phyllis was terminated based on performance. Accordingly, Dunder Mifflin claims that her position was eliminated through a re-organization. The burden then shifts back to Phyllis to show that the company’s alleged rationale is pretextual.

A showing of a pretext can be accomplished in many different ways. First, the age-based comments to which Phyllis was subjected certainly raises a specter of impropriety. Furthermore, the fact that Michael terminated Phyllis based on performance, despite a very recent glowing evaluation, shows inconsistency on Dunder Mifflin’s part. In addition, the changing rationale for Phyllis’ termination — from performance to re-organization — is yet another factor commonly used to show pretext. Finally, that Phyllis’ responsibilities were actually assigned to another employee, with far less experience, rings pretext.

The biggest part of any case is discovery, in which either party can request documents from the either side to prove their case or mount their defense. For example, perhaps there were e-mails between Toby and Michael in which Michael shared his ideas to increase profits by firing all employees above 40 years old. Perhaps there were also e-mails between Michael and Dwight detailing the plot to force Phyllis to resign. Such documents would be discoverable. If asked to do so, Dunder Mifflin would be forced to produce such e-mails to Phyllis and her attorney.

One might wonder: what if Dunder Mifflin claimed that such e-mails did not exist, even though they did? This is exactly what is at issue in a case against the law firm of Foley & Lardner. According to an article in Law.com entitled, Age Discrimination Suit Against Foley & Lardner Sparks Discovery Tiff, Hideko Shiroyama, who worked as a legal secretary at Foley & Lardner, is suing for age discrimination. Prior to her exit, Ms. Shiroyama took more than 800 pages documents to support her claims. Based on these documents, her attorney believes he has a road map to discover other documents in Foley & Lardner’s possession to substantiate the claim that Ms. Shiroyama’s termination was due to age discrimination. The law firm, however, refuses to produce those documents in discovery.

Discovery if the heart of any case. It will be interesting to see whether the court rules that Foley & Lardner’s decision to withhold information is lawful or whether it amounts to an abuse of process.

Gender Discrimination Claim Filed Against Boston Law Firm

One of Boston’s largest defense law firms finds itself in the same position as its clients: defending a lawsuit. In December 2007, Kamee Verdrager filed a gender discrimination and retaliation Charge of Discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Mintz Levin. Ironically, Ms. Verdrager is an associate in Mintz Levin’s employment law department where she defends claims brought against employers.

In her Charge, Ms. Verdrager details the repeated instances of gender bias that she allegedly experienced since the start of her employment in 2004. The Charge names Mintz Levin as a firm and also the following partners on an individual basis: David Barmak, Robert Gault, and Donald Schroeder.

Massachusetts Lawyer’s Weekly reported on this case in an article entitled, Mintz, Levin associate hits firm with MCAD bias complaint. According to the article, Mintz Levin is no stranger to gender discrimination allegations:

In 2005, the 4th U.S. Circuit Court of Appeals ruled that a jury had acted permissibly on the evidence in finding that Mintz, Levin’s Reston, Va., office had retaliated against a female employee, attorney Dawn M. Gallina — by deferring a pay increase and ultimately terminating her — because of her continued complaints of gender discrimination.

Given the factual issues at stake and the need for extensive discovery, we expect this case to be pulled out of the MCAD and wind up in Superior Court. To learn more about the MCAD process, please visit our post entitled, Massachusetts Commission Against Discrimination (MCAD) Issues Probable Cause Finding in Handicap Discrimination Case.

Job Discrimination Complaints Jump 9%

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

Supreme Court Decides Statute of Limitations Issue in Second Age Discrimination this Term

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits workplace discrimination based on age against employees and job applicants who are 40 years of age or older.

Age discrimination cases before the Supreme Court this term abound. The Court recently issued another opinion in an age discrimination case; the second one in less than one week. In Federal Express v. Holwecki the Supreme Court decided what constitutes a “Charge of Discrimination” submitted to the Equal Employment Opportunity Commission (EEOC).

In Federal Express v. Holwecki, the plaintiff-employees filled out an intake questionnaire in which they alleged age discrimination and filed it with the EEOC. Attached to the questionnaire was an affidavit further detailing the discrimination and stating: “Please force Federal Express to end their age discrimination plan.” The plaintiff-employees, however, did not fill out the official Charge of Discrimination documentation.

A Charge must be filed with EEOC within 180 days from the date of the alleged violation. As an aside, the 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law, which is the case in Massachusetts.

After filing suit, the Federal District Court in Manhattan dismissed the suit on the basis that the statute of limitations had expired. In doing so, the district court took a hyper-technical approach, concluding that the questionnaire and affidavit were insufficient to constitute an official Charge. The Second Circuit Court of Appeals reversed the lower court’s decision, stating that the plaintiff-employees’ documentation was the equivalent of an official Charge of Discrimination. The Supreme Court agreed:

Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.
For more about the Supreme Court’s ruling in Federal Express v. Holwecki, check out the New York Times article entitled, Supreme Court Alters Tone in Discrimination Case.

Handicap Discrimination Based on Association Decision Handed Down by Seventh Circuit

The Americans with Disabilities Act (ADA) is one of the youngest anti-workplace discrimination statutes on the books. The ADA became effective on July 26, 1992 and prohibits employers from discriminating against qualified employees and job applicants with disabilities. In order to meet the definition of “handicap” under the ADA, the employee or job applicant must: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such an impairment; or (3) be regarded as having such an impairment.

Recently, in Dewitt v. Proctor Hospital, the 7th Circuit Court of Appeals issued an interesting decision, which confirms that employees who prove the they were discriminated against because of the disability of a family member or another associate state a viable claim for handicap discrimination under the ADA. This is known as association discrimination.

In Dewitt v. Proctor Hospital, a nursing supervisor at a hospital alleged she was fired because of, among other things, the expense associated with treating her husband’s prostate cancer. In the three years preceding the nurse’s termination, her husband’s medical expenses totaled more than $300,000. The hospital, which was was self-insured, took issue with cost of medical care, going so far as to suggest a less-expensive hospice option. In discharging the plaintiff-employee, the hospital conceded that performance was not an issue without saying much more. In concluding that the plaintiff-employee states a viable claim for handicap association discrimination, the 7th Circuit reasoned:

That the powers-that-be at Proctor were interested specifically in the high cost of Anthony’s medical treatment is obvious. Davis, Dewitt’s supervisor (and the person who ultimately fired her), pulled Dewitt aside twice in five months to inquire about Anthony’s condition. … She also asked Dewitt whether Anthony’s doctor had considered hospice placement—a far cheaper “alternative” to the costly chemotherapy and radiation Anthony was receiving. Finally, the timing of Dewitt’s termination suggests that the financial albatross of Anthony’s continued cancer treatment was an important factor in Proctor’s decision. Dewitt was fired in August 2005—five months after her last chat with Davis and three months after Proctor warned employees about impending “creative” cost-cutting measures. … A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.

This is an important win for employees who must care for family members with serious medical conditions.