Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR

One of the most egregious fact patterns in a race discrimination case has presented itself against NASCAR. Maurica Grant, 32-year-old black female, worked as a technical inspector from January 2005 until her termination in October 2007. During her employment, Grant was allegedly subjected to a panoply of racially hostile and offensive conduct, which included:

Being called “Nappy Headed Mo” and “Queen Sheba” by her co-workers
Being told she worked on “colored people time”
Enduring references to the Ku Klux Klan made by one particular race official
Being asked, “Does your workout include an urban obstacle course with a flat-screen TV on your back?”
Being forced to work outside more often than white male officials because her supervisors believed she couldn’t sunburn because she was black
Being instructed to duck as she passed race fans in the backseat of a carpool with one race official stating, “I don’t want to start a riot when these fans see a black woman in my car”
Being told, “Keep smiling and pop your eyes out ’cause we can’t see you.”
Being accused of being gay when she rejected the sexual advances of co-workers

NASCAR allegedly terminated Grant approximately two months after she complained about how she was treated. For more information, please visit the Chicago Tribune article entitled, Mauricia Grant, NASCAR.

Sexual Harassment Victory Before the 11th Circuit Provides Greater Protection for Employees

Sexual harassment victims just scored a major victory before the 11th Circuit Court of Appeals in Ingrid Reeves v. C.H. Robinson Worldwide. Ingrid Reeves worked for C.H. Robinson Worldwide (CHRW) based in Birmingham, Alabama as a transportation sales representative from 2001 through 2004. During her tenure, Ms. Reeves states in her complaint that she was subjected to sexually offensive remarks in which her co-workers, the large majority being men, referred to women as “bitch” and “whore.” It was also not uncommon for her male colleagues to allegedly listen to a local radio program discussing women breast sizes and pornography.

In bringing her claim for sexual harassment, Ms. Reeves faced an uphill battle because none of the derogatory comments about women were directed toward her. On this basis, the Northern District Court of Alabama granted summary judgment to CHRW, dismissing her case and preventing Ms. Reeves from going before a jury. Ms. Reeves appealed to the 11th Circuit, which had held in Walker v. Ford Motor Co. that racial epithets in the workplace could support a hostile work environment claim under Title VII, even where the derogatory statements were not directed at the plaintiff. In reversing the lower court’s decision, the 11th Circuit extended its holding in Walker to the sexual harassment context:

The language in the CHRW office included the “sex specific” words “bitch,” “whore,” and “cunt” that … may be more degrading to women than men. The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature. Accordingly, just as the language in Walker was sufficient to support Walker’s hostile work environment claim because it particularly offended Walker as a black man, we hold that the evidence Reeves presented was sufficient to survive summary judgment on the “based on” element here.

This is a key victory for employees who must endure sexually hostile work environments. Under the 11th Circuit’s decision in Reeves, employers will no longer be able to hide behind obtuse technicalities to avoid liability. For more information about this decision, please visit Law.com’s article entitled, 11th Circuit OKs Suit Based on Sexual Language in Office.

Pregnancy Discrimination Lawsuit Filed Against Bloomberg L.P.

Pregnancy discrimination, which is a form of gender discrimination, is becoming a hot button issue in 2008. The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against Bloomberg L.P., the financial-services and media company founded by Mayor Michael R. Bloomberg, on behalf of at least 54 women who accuse the firm of discriminating against pregnant employees. The suit puts Bloomberg L.P. in a familiar position, representing the latest in a series of discrimination and sexual harassment complaints filed against the firm since the 1990s.

According to EEOC lawyer, Raechel L. Adams, the number of women represented in the class action is likely to grow. As part of its continuing investigation, the EEOC is interviewing 478 Bloomberg L.P. female employees who took maternity leave at some point from 2002 to the present.

Monica Prestia is among those represented in the suit. According to the lawsuit, Ms. Prestia received the worst performance review of her career after giving birth to her first child in 2005. Thereafter, the suite alleges, she experienced hostility from a supervisor who could not have children and was asked by a different supervisor: “What is this, your third baby?”

Although Mayor Bloomberg remains the firm’s majority shareholder, the suit does not name him as a defendant. For more information about this issue, please visit the New York Times article entitled, 54 More Women Accuse Bloomberg Firm of Bias.

Equal Pay Across Genders Faces Resistance from White House

In 1996, civil rights advocates established Equal Pay Day to acknowledge the pay gap between genders in which female employees earn approximately 75% of the wages of their male counterparts. Ensuring equal pay across genders continues to be a struggle. Numerous lawsuits have been brought on behalf of women throughout the United States who, despite performing the same work as their male counterparts, are paid substantially less. In December 2007, for example, the Ninth Circuit affirmed class action certification in Dukes v. Wal-Mart, which seeks redress for approximately 1.6 million current and former female Wal-Mart employees consistently passed up for promotions and salary increases that went to lesser qualified males (See Gender Discrimination Class Action Certified by Ninth Circuit Against Wal-Mart).

Perhaps the most important suit to-date has been the United States Supreme Court’s May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co., which signifies a near-fatal blow to an employee’s right to seek redress for pay discrimination. Lilly Ledbetter worked at Goodyear for 19 years before realizing she was being paid much less than many of her male counterparts. Although a jury agreed that Ms. Ledbetter had been paid unfairly, the Supreme Court reversed on the basis that her claim was time-barred by Title VII’s 180 day limitations period. For a more detailed discussion about the Ledbetter case, please visit: Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

To undo the harsh effects created by the Ledbetter decision, Senator Edward Kennedy (D-Mass) proposed the Fair Pay Restoration Act, which would re-establish the long-standing rule that each discriminatory paycheck constitutes a new act of discrimination and re-starts the 180 day statute of limitations clock.

In July 2007, the U.S. House of Representatives passed the Fair Pay Restoration Act by a vote of 225 to 199. Unfortunately, the White House recently threatened to veto the bill in an effort to keep the Ledbetter decision as the status quo. This will likely be a talking point in the 2008 Presidential Race. While most Democrats support the bill, most Republicans oppose the legislation. The likely Republican nominee, Arizona Senator John McCain, opposes the Fair Pay Restoration Act:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems. This is government playing a much, much greater role in the business of a private enterprise system.

For more information on this issue please visit the Washington Post’s article entitled, White House Threatens to Veto Discrimination Bill.

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.

Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases

The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.

In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute “opposition” to sexual harassment. Click here for the Sixth Circuit’s decision.

The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF’d employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer’s business necessity defense. Click here for the Second Circuit’s decision.

The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.

Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender

Employment attorneys seem to agree that the most controversial decision in 2007 was the Supreme Court’s ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co. Let’s review what happened:

In 1979, Lilly Ledbetter began working as a supervisor at Goodyear’s tire assembly department in Gadsden, Alabama. During her first weeks of employment, her wages were identical to those of her male counterparts. Twenty years later, a rift in pay between Ms. Ledbetter and her male colleagues had become painstakingly clear.

In 1998, Ms. Ledbetter received an anonymous letter, which revealed that she made about $15,000 less than her male co-workers at Goodyear. Inexplicably, Ms. Ledbetter’s pay was not even on par with recent hires with far less job experience. Ms. Ledbetter filed a discrimination charge with the Equal Employment Opportunity Commission less than a month after receiving the anonymous tip. At trial, her attorneys highlighted the disparity in pay between males and females doing the same work at the Gadsen Goodyear plant. The jury ultimately sided with Ms. Ledbetter, awarding her over $3.5 million in damages, which the district judge later reduced down to $360,000.

Title VII requires discrimination complaints to be made within 180 days of the employer’s discriminatory conduct. Goodyear appealed, arguing that the jury should not have considered each of the annual salary reviews that Ms. Ledbetter had received throughout her 20 year career with Goodyear. Citing Title VII, Goodyear maintained that the jury should only have evaluated the lone annual salary review that Ms. Ledbetter received in the 180 day limitations period before Ms. Ledbetter filed her complaint, despite the fact that the pay disparity had occurred over nearly two decades.

The U.S. Court of Appeals for the Eleventh Circuit, in part, agreed with Goodyear’s argument and held that the jury should have not have been allowed to evaluate Goodyear’s discriminatory pay decisions over Ms. Ledbetter’s entire career in light of Title VII’s 180 day limitations period. In doing so, the Eleventh Circuit ignored the vital fact that Ms. Ledbetter had not learned of the pay disparity until 1998.
Determined to seek redress, Ms. Ledbetter appealed to the United States Supreme Court, which granted certiorari. In a 5 – 4 decision, the Supreme Court ruled that Ms. Ledbetter’s claim was time-barred by Title VII’s 180 day limitations period. In a scathing dissent, Justice Ruth Bader Ginsburg called the majority’s ruling “a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose” and suggested that “the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

The Supreme Court’s decision in Ledbetter provides a sobering example of how quickly years of progress can unravel through “cramped interpretations” and “parsimonious readings” of statutes designed to ensure equality across genders.

In response to the outrage surrounding the Ledbetter decision, a bipartisan bill called the Fair Pay Restoration Act (S. 1843) has emerged in the Senate. Among others, the bill is supported by Senators Kennedy (D-MA), Snowe (R-ME), and Specter (R-PA). Click here to urge your Senator to support the Fair Pay Restoration Act.https://www.youtube.com/watch?v=jRpYoUu5XH0

Gender Discrimination Class Action Certified by Ninth Circuit Against Wal-Mart

Wal-Mart is just not getting it: gender discrimination in the workplace really is illegal. From coast to coast, Wal-Mart is learning this principle one case at a time. This past summer, in Haddad v. Wal-Mart, a Berkshire County jury in Massachusetts awarded nearly $2 million to a former Wal-Mart pharmacist who was paid less then her male counterparts and later fired in retaliation for complaining. More recently, on December 11, 2007, the Ninth Circuit in Dukes et al. v. Wal-Mart Stores, Inc. affirmed a class certification order. With the decision, Wal-Mart finds itself in the familiar position of defending claims of gender discrimination.

The case began in 2000. Betty Dukes, a 54-year-old Wal-Mart employee in California, worked for the company for six years. During her tenure, she received excellent performance reviews. Notwithstanding her stellar performance, Ms. Dukes was consistently passed up for promotions and salary increases that went to lesser qualified males. The deeper her attorneys dug, the more they realized that Ms. Dukes’ experience was not an isolated occurrence.

Dukes v. Wal-Mart Stores, Inc. has become the largest civil rights class action suit in United States history, seeking redress for approximately 1.6 million women who work or have previously worked in a Wal-Mart store since December 1998. To say the least, this case is being closely followed.