Category Archives: Discrimination

Disability Discrimination Case Brought Against Kohl’s

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A lawsuit filed in federal court in Portland, Maine alleges that Kohl’s Department Stores unlawfully discriminated against an employee based on her disability. The Equal Employment Opportunity Commission (EEOC) filed suit against the Wisconsin-based national retail store chain on behalf of Pamela Manning, who suffers from Type 1 diabetes. Manning worked at Kohl’s Westbrook, Maine store location. Because of her condition, she requires regular insulin injections. Beginning in January 2010, her complaint alleges, Kohl’s switched her full-time work schedule from a consistent daily schedule to an irregular one. This interfered with her daily routine of medical care. She presented her employer with a note from her doctor requesting that she have a regular work schedule, but Kohl’s refused to change it. She eventually developed health complications due to her inability to routinely administer her medications, and she had to quit her job with Kohl’s.

The EEOC filed suit in August 2011, alleging violations of the Americans With Disabilities Act of 1990 (ADA). It first attempted to settle the matter between Manning and Kohl’s through a conciliation process, which was unsuccessful. The lawsuit seeks monetary compensation for Manning and a revision of Kohl’s policies relating to disability discrimination. The EEOC’s Boston office is handling the litigation. They argue that it would have cost Kohl’s nothing to maintain a set schedule for Manning, but the cost of failing to do so was potentially catastrophic for Manning.

Kohl’s filed a response on October 24 denying liability and disability discrimination. According to a report in the American Journal, Kohl’s acknowledged changing Manning’s schedule in January 2010 but denied allegations regarding its knowledge of Manning’s diabetes. Kohl’s also admitted to receiving the note from Manning’s doctor but denies refusing to accommodate Manning’s needs. It claims that it makes “good faith efforts” to accommodate its employees’ scheduling needs. The Journal article does not mention how Kohl’s reconciles these seemingly contradictory claims.

The EEOC is a federal agency within the U.S. Department of Labor. Its purpose is to investigate allegations of employment discrimination and enforce federal anti-discrimination laws like the ADA and the Civil Rights Act of 1964. When an employee makes a complaint, the EEOC will investigate and make a finding or recommendation as to whether it believes unlawful discrimination occurred. Occasionally, it will file a lawsuit directly on behalf of an employee. More often, it will issue a “right to sue” letter that gives the employee a window of time to file a court claim with the help of an employment discrimination lawyer.

The ADA prohibits disability discrimination by employers, which can include an employer failing to make reasonable accommodations for an employee’s needs. By allegedly failing to adjust Manning’s schedule to allow for her particular medical needs, the lawsuit is claiming that Kohl’s discriminated against Manning and therefore violated the ADA.

The Boston employment discrimination attorneys at The Law Office of Alan H. Crede, P.C, specialize in employment law and exclusively represent employees. If you are a victim of disability discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Disability Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company, Boston Employment Lawyer Blog (October 25, 2011)
ADA Amendments Act Provides Employees with Greater Protection, Boston Employment Lawyer Blog (December 15, 2009)
Handicap Discrimination Claim Succeeds Against Wal-Mart, Boston Employment Lawyer Blog (August 12, 2008)

Pregnancy Leave in Massachusetts: Understanding the Maternity Act

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The Massachusetts Maternity Leave (MMLA) experienced a set back with the Supreme Judicial Court’s ruling in Global NAPs v. Awiszus. I had the opportunity to provide my thoughts about the decision to WBZ’s Diane Stern.

As background, the MMLA, which is codified under M.G.L. c. 149, §105D, guarantees “eligible” employees 8 weeks of unpaid leave for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. To learn more about the MMLA’s eligibility requirements and for a summary of the key differences between the MMLA and the Family & Medical Leave Act (FMLA), please visit our previous post, Medical Leave Eligibility and Handicap Status in the Workplace Explored.

In Stephens v. Global NAPs, Sandy Stephens worked for Global’s president as a housekeeper. In late 1999, she informed her supervisor of her pregnancy and that her last day of work before maternity leave would be July 14, 2000. Under the MMLA, Ms. Stephens was guaranteed 8 weeks of unpaid maternity leave. Her employer, however, promised her an additional 3 weeks of unpaid leave if she required a Cesarean section, which she did. Unfortunately, when Ms. Stephens tried to return after 11 weeks, Global reneged on its promise and informed her that she no longer had a job. Ms. Stephens brought suit under the MMLA and a jury found against Global for compensatory damages in the amount of $1,366,165 and punitive damages in the amount of $1,000,000.

The question before the SJC was whether Ms. Stephens could properly state a claim under the MMLA. According to the Massachusetts Commission Against Discrimination (MCAD), the Commonwealth’s chief civil rights agency charged with interpreting and enforcing the law in question, the answer is “yes.” In fact, the MCAD’s Maternity Leave Act Guidelines explicitly address this issue:

An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.

Although the SJC has previously acknowledged that such guidelines “represent the MCAD’s interpretation … and are entitled to substantial deference,” it abandoned the MCAD’s interpretation of the MMLA. Specifically, despite the employer’s promise that Ms. Stephens could take an extra 3 weeks off, the SJC held that she “was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks.” As the SJC noted, however, the employer’s broken promise may give rise to a claim “for breach of contract, breach of oral representations, detrimental reliance, or the like.” For reasons beyond the scope of this discussion, such claims may be more difficult for an employee to pursue.

In light of the Awiszus decision, employees are well-advised to understand their rights under the MMLA. As the SJC has made clear, relying solely on the word of an employer that promises more maternity leave than the MMLA contemplates may leave you unemployed.

Proving Workplace Discrimination Through Circumstantial Evidence: A Review Of Thermo King

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Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as “smoking gun” evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, “We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot.” Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This brings us to the case of Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer’s initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company’s policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer’s failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

ADA Amendments Act Provides Employees with Greater Protection

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Under the Americans with Disabilities Act (ADA), employees who are “substantially limited” in a “major life activity” are considered disabled and entitled to reasonable accommodations in the workplace. Handicapped employees experienced a welcome change with the ADA Amendments Act (ADAAA), which became effective on January 1, 2009.

The Americans with Disabilities Act (ADA) went into effective in 1992 and, since that time, has faced numerous criticisms. Namely, the strict standards under the ADA created scenarios in which employees were either not sufficiently disabled to state a viable claim or too disabled to be deemed qualified for the position in question.

The ADA Amendments help to minimize these concerns and, in doing so, essentially overturn certain Supreme Court precedents that made it difficult for employees to show that they suffered a substantial limitation in a major life activity. In Sutton v. U.S. Air Lines, 527 U.S. 471 (1999), for instance, the Supreme Court held that “the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment ….” The Supreme Court reiterated this principle in Murphy v. UPS, 527 U.S. 516 (1999) and Alberstons, Inc. v. Kirkinburg, 527 U.S. 555 (1999), which were both decided the same day as Sutton. Likewise, in Toyota v. Williams, 534 U.S. 184 (2002), the Supreme Court stated that a substantial limitation in a major life activity must be “interpreted strictly to create a demanding standard for qualifying as disabled ….”

The following is an overview of some of the key changes brought by the ADAAA:

1. Broadened Definition of Disability

Since the ADA was enacted, numerous federal courts found several severe medical conditions – including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder – to not meet the ADA’s definition of “disability.” The purpose of the ADAAA makes explicit that its purpose is “to reinstate a broad scope of protection” by expanding the definition of “disability,” which immediately reverses more than one decade of conservative federal court decisions. The ADAAA also makes clear that a medical condition that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.

2. Broadened Definition of Major Life Activity

The ADA was silent as to what constituted a “major life activity.” The ADAAA now provides a non-exhaustive list of examples of major life activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The ADAAA also makes clear that major life activities include major bodily functions related to the immune system, cell growth, as well as digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions. As a result, serious medical conditions such as cancer (which affects normal cell growth) and diabetes (which affects the endocrine system) should clearly be considered disabilities under the ADAAA.

3. The Effect of Mitigating Measures

Contrary to the trilogy in Sutton, Murphy, and Kirkinburg, the ADAAA requires that mitigating measures be ignored in evaluating whether an impairment substantially limits a major life activity. As such, a mitigating measure can longer be used against employees.

4. “Regarded As” Disabled Standard Revised

The ADA has always offered protection for those employees whom an employer wrongly “regarded” as being disabled. Federal courts, however, required ADA plaintiffs to demonstrate that the employer regarded them as being substantially limited in a major life activity in order to prevail. The ADAAA dispenses with the holding in Sutton:

Standing alone, the allegation that respondent has a vision requirement in place does not establish a claim that respondent regards petitioners as substantially limited in the major life activity of working. … When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.

Contrary to Sutton, under the ADAAA, an employee satisfies the “regarded as” prong if she demonstrates discrimination based on “an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

With these changes, federal law is catching up to the Massachusetts Fair Employment Practices Act. In 2001, for instance, the Supreme Judicial Court of Massachusetts decided Dahill v. Police Department of Boston, in which the court refused to follow the Supreme Court’s reasoning in Sutton v. U.S. Air Lines and ruled that mitigating measures or corrective devices should not be considered when determining whether an employee is handicapped under M.G.L. c. 151B(1)(17).

Workplace Discrimination Laws Broadened By The Genetic Information Nondiscrimination Act (GINA)

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Employees will soon gain protection against employers that utilize genetic testing or consider genetic background in making hiring, firing, promotion decisions. The Genetic Information Nondiscrimination Act (“GINA”) passed by Congress in March 2008 becomes effective law in the next coming weeks as this New York Times story details:
Law Seeks to Ban Misuse of Genetic Testing. On November 21, 2009, the Genetic Information Nondiscrimination Act takes effect for all employers with 15 or more employees and on December 7, 2009, the Act takes effect for insurers.

GINA forbids certain discrimination on the basis of genetic information and the collecting and sharing of certain genetic information. GINA only allows the collection of genetic information in a few limited circumstances:

(1) If the information is necessary for a certification requirement under the Family and Medical Leave Act or a state leave statute.
(2) If the information is used to monitor the effects of hazardous workplace exposure; or
(3) If the employer conducts DNA analysis as a forensic laboratory.

As science uncovers more and more genetic predispositions for disease, the importance of protecting employees from discrimination on the basis of their genes increases. Without GINA, employers would have a strong incentive to discriminate against talented employees whose genetic background threaten to drive up their health insurance premiums. Senator Ted Kennedy heralded the Genetic Information Nondiscrimination Act as “the first major civil rights bill of the new century.” Without GINA, as genetic screening became more common place, employees with “bad genes” might have found themselves unemployable.

GINA forbids discrimination not only on the basis of an employee or prospective employee’s genetic information, but also discrimination based upon genetic information of family members. A “family member” includes an individual’s spouse, dependent child and certain other relatives.

Employees should know that, unlike HIPAA and some other health laws that do not allow an employee to sue for violations, the Genetic Information Nondiscrimination Act confers a private cause of action on certain victims of genetic discrimination. Section 207 of the Genetic Information Nondiscrimination Act gives a cause of action to employees and prospective employees who are discriminated against on the basis of their genetic information or whose genetic information is improperly collected or shared.

GINA enables employees to recover lost wages, costs, attorney’s fees and, in some instances, punitive damages. The punitive damages provisions have ceilings. For example, if the employer has more than 500 employees, an employee may recover up to $300,000 in punitive damages. There is also a retaliation provision to GINA that gives a cause of action to any employee who opposes a policy or procedure that violates GINA.

Employeees Who Suffer Workplace Discrimination Gain Clarification On Obtaining Punitive Damages

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Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone’s future earnings are reduced by discrimination), back pay (the plaintiff’s lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney’s fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge’s decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court (“SJC”) agreed with the plaintiff that the trial court’s decision to take away the jury’s award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge’s order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant’s conduct is outrageous or egregious. In determining whether the defendant’s conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant’s conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.
You can watch a video of the oral arguments in the Haddad case on Suffolk Law’s website.

Ledbetter Fair Pay Act Gains Traction Quickly

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Unequal pay victims are quickly realizing the benefits of the Lilly Ledbetter Fair Pay Act (FPA). The District Court of New Jersey’s recent decision in Gilmore v. Macy’s Retail Holdings is believed to be the first case in the country to recognize the applicability of the Fair Pay Act in unequal pay act cases under Title VII. In that case, the plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) on July 7, 2005 on the basis of alleged race discrimination. The court noted the FPA’s retroactive application:

The FPA takes effect as if enacted on May 28, 2008 and applies to all claims of discrimination in compensation under Title VII and the Civil Rights Act of 1964 (42 U.S.C. et seq.) … that are pending on or after that date. The FPA therefore applies to this case. (internal quotations omitted) (emphasis added)

The court further noted that the FPA allows victims of unequal pay to recover back pay for up to 2 years preceding the filing of the charge.

Unequal Pay Victims Gain Protection through the Ledbetter Fair Pay Act

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Gender discrimination just became more expensive. On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. After approximately 19 years as an employee of Goodyear Tire and Rubber Company, Lilly Ledbetter learned that she earned less than her male colleagues. A jury found Goodyear liable for gender discrimination. In a controversial decision, the United States Supreme Court reversed, ruling that Ms. Ledbetter should have filed her claim within 180 days of the date that Goodyear first paid her less than her male counterparts. (For more information about the Supreme Court’s decision, please visit our blog post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.)

The Ledbetter Fair Pay Act of 2009 has three key features. First, the statute not only applies to gender discrimination, but also to unequal pay based on the following types of discrimination: (a) race, color, religion, and national origin under Title VII; (b) age under the Age Discrimination in Employment Act (ADEA); and (c) handicap discrimination under the Americans with Disabilities Act (ADA). Second, the statute allows employees who have suffered these types of unequal pay discrimination to recover back pay for up to two years preceding the filing of a charge with the Equal Employment Opportunity Commission. Third, the Act takes effect retroactively as if enacted on May 28, 2007.

The Fair Pay Act is a welcome change for employees who suffer pay discrimination. For more information on this issue please visit the New York Times article entitled,Obama Signs Equal Pay Legislation.

Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense

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Employees who are victims of sexual harassment must take great care to protect their rights. The First Circuit’s decision in Chaloult v. Interstate Brands represents a broadening of the Farragher/Ellerth defense, which allows employers to escape liability even when an employee has clearly suffered inappropriate and demeaning conduct over a prolonged period of time.

The Farragher/Ellerth defense is an affirmative defense arising out of two 1998 Supreme Court decisions: Farragher v. City of Boca Raton, and Burlington Industries v. Ellerth. For the Farragher/Ellerth defense to be apply, an employer must satisfy two elements: (1) reasonable care was taken to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.

In June 1999, Bonnie Chaloult began working at Interstate Brands in Biddeford, Maine. In August 2005, Chaloult resigned after a enduring a series of debasing remarks from her supervisor, Kevin Francoeur. Such remarks included:

Accusing Chaloult of having sexual relations with her direct supervisor
Complaining about his wife, his lack of sexual relations with her, and voicing his desire murder his wife
Asking about the distance between her nipples and telling her to go home and measure this distance
Asking her if her nipples chafed or stood out like headlights
Stating that her breasts were “melons” and “big hooters”
Asking her to hold her breath and push her chest out
Offering to go to her house and have sex with her
Stating that he wanted to see how far she could stick an eclair down her throat, stating “[i]f there isn’t enough cream in there, . . . I have plenty”
Asking Chalout’s manager, “How long have you [two] been fucking?”

Francoeur made many of these disparaging remarks both in front of Chalout’s co-workers as well as her manager. Ironically, the employer had a policy requiring all managers to all report sexual harassment and inappropriate conduct to Human Resources. Chalout’s manager failed to abide by this policy. Although Chalout’s letter of resignation did not detail specific instances of misconduct, it made clear that she no longer felt comfortable working at Interstate Brands because of statements made by Francoeur.

Approximately one year later, Chaloult filed a lawsuit based on, among other things, the sexual harassment she suffered from Francoeur. Surprisingly, the federal District Court of Maine accepted the Farragher/Ellerth defense on the basis that Chaloult failed to report specific instances of misconduct. The First Circuit affirmed the district court’s decision. In doing so, both courts failed to acknowledge the reality of workplace. If your manager knows that your supervisor is subjecting you to such demeaning conduct, and fails to take remedial measures, how confident would you feel in voicing such concerns. Would you keep quiet to ensure to avoid possible retaliaton?

Workplace Discrimination Claims in Federal Court: A Word of Caution

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If you’ve been discriminated against in the workplace, you should think twice before bringing your claims in federal court. In 2009, the Harvard Law & Policy Review will publish, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?. The study, conducted by Cornell Law School Dean Stewart J. Schwab and Cornell Law Professor Kevin M. Clermont, examines official data from the Administrative Office of the United States Courts. The article reveals that plaintiffs who bring employment discrimination claims in the federal courts fare less favorably when compared to plaintiffs in other types of cases. As an example, the authors discovered that employers found liable for workplace discrimination at trial enjoy more than a 40% chance of reversal on appeal. In stark contrast, plaintiffs who lose at the trial court level have only an 8% chance of receiving a favorable appellate decision.