Category Archives: Discrimination

Seventh Circuit Issues Employee-Friendly Pregnancy Discrimination Act Decision

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In 1978, Congress passed The Pregnancy Discrimination Act of 1978, which acts as an amendment to
Title VII of the Civil Rights Act of 1964. The Act makes clear that “[d]iscrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.” The Act further states that “[w]omen affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.”

Recently, the Seventh Circuit in Hall v. Nalco interpreted the Act to apply to women who undergo infertility treatments. In that case, the plaintiff, Cheryl Hall, was allegedly discharged after requesting further time off to undergo vitro fertilization. In 2003, Ms. Hall underwent an embryo transfer. To ensure adequate time to recuperate, her physician recommended that she take time off after the procedure. Unfortunately, the embryo transfer failed, necessitating a second procedure. Despite receiving approval for a second leave of absence, Ms. Hall’s supervisors allegedly laid her off due to absenteeism associated with her infertility treatments.

If Ms. Hall had taken time off to give birth or prepare for her child’s birth, there would have been little question that her employer’s decision to terminate her employment violated The Pregnancy Discrimination Act of 1978. This case, however, hinged on Ms. Hall’s infertility treatment. Not surprisingly, the Seventh Circuit allowed Ms. Hall’s case to proceed forward to a jury trial, reasoning that infertility is not a gender-neutral condition:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

According to statistics published by the MayoClinic, estimates reveal that 10% to 15% of couples suffer from infertility, with female infertility accounting for 40% to 50%. The Seventh Circuit’s decision will no doubt benefit thousands of employees nationwide.

Handicap Discrimination Claim Succeeds Against Wal-Mart

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Handicap discrimination claims continue to make headlines. Patrick Brady, who suffers from cerebral palsy, worked at Wal-Mart as a pharmacy assistant. In joining Wal-Mart, Brady brought with him two years of experience working at a local pharmacy. Despite being qualified, Brady’s supervisor stripped him of his pharmacy assistant functions and transferred him to the personnel department.

No longer a pharmacy assistant, Brady eventually resigned and filed suit against Wal-Mart for failing failing to participate in the interactive process and refusing to accommodate his disability. Amazingly, although plainly evident that Brady’s cerebral palsy impaired his motor skills, Wal-Mart argued that it had no obligation to accommodate his disability. As expected, the court disagreed. Indeed, while the burden generally lies with employees to inform the employer of the need for an accommodation, the burden shifts to the employer where the disability is obvious, as in Brady’s case:

[A] situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious-which is to say, if the employer knew or reasonably should have known that the employee was disabled.

For more information, please visit the Second Circuit’s full opinion in Brady v. Wal-Mart

Disability Discrimination Suit Against Wal-Mart Settles for $250,000

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Handicapped employees must often overcome significant hurdles in the workplace — both those related to their medical conditions and, unfortunately, misconceptions that commonly result. Where feasible, employers must provide reasonable accommodations to handicapped employees. Failing to do so, as Wal-Mart recently learned, violates the Americans with Disabilities Act (ADA). In Massachusetts, such infractions also trigger liability under the Fair Employment Practices statute.

In June 2008, the Equal Employment Opportunity Commission (EEOC) reached a settlement with Wal-Mart on behalf of a long-time pharmacy technician who suffered a disability, which the company failed to accommodate. Glenda D. Allen was a Wal-Mart employee since July 1993. In 1994, she was wounded during the course of a robbery at another employer causing permanent damage to her spinal cord. As a result, Ms. Allen walked with an abnormal gait, which required her to use a cane.

Despite her medical condition, Ms. Allen was able to perform the full scope of her duties and responsibilities as a pharmacy technician. Nevertheless, Wal-Mart terminated Ms. Allen. The EEOC settled the suit on behalf of Ms. Allen for $250,000. In discussing the victory, Ms. Allen had this to say:

After beating all the odds — surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases — I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could no longer accommodate my handicap needs. I am hopeful that this settlement will make Wal-Mart take a closer look at its policies and practices with respect to the employment of individuals with disabilities so that what happened to me will not happen to someone else.

To read more about the settlement, please visit the EEOC’s Press Release entitled, Wal-Mart to Pay $250,000 for Disability Bias.

Family Rights Discrimination Continues to be a Hot Button Issue

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Family rights discrimination (FRD) — discrimination against an employee who serves as a caregiver to a family member — continues to be a hot button issue in the workplace. According to the Center for WorkLife Law (CWL), there were a total of just 8 FRD cases filed in the 1970s. The number significantly increased over the next several years, with a total of 97 FRD cases filed from 1986 to 1995. Unfortunately, FRD has shown little sign of abatement. From 1986 to 2005, FRD filings totaled 481; an increase of approximately 400%.

While smaller businesses present the highest incidence of FRD, large companies — even those recognized by Fortune as “Best Companies to Work For” — have been sued for such discrimination. According to the CWL, the success rate of FRD cases is relatively high, coming in at greater than 50% versus 20% for other types of discrimination cases. Notably, the average award for FRD cases is slightly over $100,000 with a high of $25 million.

Not surprisingly, women are plaintiffs in the overwhelming majority of FRD cases. It is not uncommon for such cases to arise in the context of pregnancy. A recent article featured in Forbes entitled How To Balance Work and Pregnancy, highlights two scenarios of which employees should be mindful:

Be Conscientious
If you do all this and notice your boss is restricting the types of projects you work on or has taken you off the partnership track, address it with him. In the best scenario, the boss is trying to make things easy on you (albeit unfairly). Document all of these changes and then say something to him. In most cases, it’s a misunderstanding that will be rectified by your bringing it to his attention.

Be Wary
If it’s a more serious situation, such as the boss making offhand comments about your pregnancy affecting your work, continue to document those instances. Also keep note of the change in assignments you’re getting. First, go to your boss and ask if there’s a problem with the quality of your work. If it doesn’t improve, bring all the examples to human resources. Discriminating against someone because they’re pregnant is illegal, and most companies will handle the situation immediately.

When in doubt, consult with an attorney who concentrates in employment law. You owe it to yourself, your family, and your career.

Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR

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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.

Massachusetts Maternity Leave Act Applies to Men

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The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that “an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA” (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

The MCAD’s long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman’s career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million

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The Equal Employment Opportunity Commission (EEOC) recently finished prosecuting a case involving severe sexual harassment as well as gender and race discrimination against New York’s landmark restaurant, Tavern on the Green. According to the EEOC, Tavern on the Green subjected female, black, and Hispanic employees to continual lewd and degrading conduct. Female employees were allegedly forced to endure demands for sexual acts as well as various forms of groping and inappropriate touching. Black and Hispanic employees also allegedly experienced racial epithets and ridicule for their accents.

The EEOC, which brought the suit on behalf of 50 employees, was successful in securing a settlement of $2.2 million. As part of the settlement, Tavern on the Green is also required to establish a telephone hotline for employees to report discrimination complaints. In its Press Release, EEOC New York District Director Spencer H. Lewis made clear the duty that employers owe to their workers:

This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.

According to Professor Marcia McCormick of Cumberland School of Law (Samford University), the lawsuit signified a victory for the EEOC’s EEOC’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was launched in 2008 to eliminate race discrimination from the workplace by enhancing public awareness and through litigating unlawful employment practices.

For more information, please visit the New York Times’ article entitled, Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim.

Retaliation Claims Recognized: Employees Victimized by Discrimination Gain Victory Before Supreme Court

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Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee’s right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court’s decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

Second Circuit Recognizes Associational Discrimination Claim Based on Race

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Employment discrimination laws prohibit adverse employment actions, such as termination or demotion, based on race, gender, religion, disability, and certain other protected categories. More recently, the courts have had to grapple with claims of “associational discrimination.”

The Second Circuit’s recent ruling in Holcomb v. Iona College recognized the viability of such claims. In that case, the plaintiff worked as an assistant coach of the Iona College basketball team. Iona College eventually fired Holcomb, claiming that his termination had to do with his poor job performance. Holcomb, who is white, believed that he was fired because his wife is African-American. While the district court granted summary judgment for Iona (i.e., dismissing the case), the Second Circuit remanded on appeal.

The issue before the Second Circuit was one of first impression: Can an an employer violate Title VII if it takes action against an employee because of the employee’s association with a person of another race? The court rejected Iona’s reasoning and answered this question in the affirmative:

We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race. All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion.

In reaching its decision, the court also noted the egregious conduct that the plaintiff endured from Iona’s Director of Athletics, Richard Petriccione:

Early in his tenure as an assistant coach, Holcomb claims to have heard Petriccione say: “[E]verybody at Fordham thinks they have these good black kids, and Iona has niggers.” A year later, when several black members of the Iona Gaels were accused of stealing and selling telephone access codes, Petriccione allegedly told Holcomb that the basketball program needed to “keep [its] niggers in line.” Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a “jungle bunny” and an “African princess.” When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked: “[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?” The most striking of the allegations against Petriccione relates directly to Holcomb and his wife. Plaintiff testified that in February 2000, he asked Petriccione whether he had received the wedding invitation that Holcomb and Gauthier had sent him. According to Holcomb, whose claim is backed up in this respect by a third party, Petriccione replied: “[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover.”

In recognizing associational discrimination claims based on race, the Second Circuit joins the Sixth, Fifth, and Eleventh Circuits.

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

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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.