Age Discrimination Criticism Arises as EEOC Works to Revise Standards for Employers

Age discrimination continues to be a hot button issue. Fox News commentator John Stossel stirred controversy in a report on age discrimination in the workplace in which he suggests that the law should not protect older workers from termination based solely on their age. In doing so, Stossel states “we slow down as we age” and “maybe 25 year olds can do it better.”

Of course, federal law protects employees from discrimination based on age. Specifically, the Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against employees who are at least 40 years old. Such protection applies to both employees and job seekers in relation to any and all terms and conditions of employment, benefits, promotions, hiring, firing, layoffs, and job assignments.

The Equal Employment Opportunity Commission, the federal agency responsible for enforcing anti-discrimination laws, recently voted 3-2 to propose regulations defining “reasonable factors other than age” (RFOA) in the ADEA. The proposals could significantly increase protections for older employees, both in the context of layoffs and firings. Congress and the Supreme Court have held that personnel decisions that affect older workers in greater proportion than younger workers need only be “reasonable” to comply with the ADEA. This is different from the higher standard of “business necessity” used for disparate impact claims based on sex or race under Title VII. As the Supreme Court in Smith v. City of Jackson recognized:

Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.

The proposed RFOA standards define “reasonable” from the objective standpoint of a hypothetical reasonable employer, and they provide a sample list of factors employers should consider. Such factors, relating to an employer’s practices that impact older workers, include whether: (1) the practice is common to the employer’s business, (2) it directly relates to the employer’s business goals, (3) the employer adequately assessed the impact on older employees, (4) the employer considered other options, and (5) the employer attempted to mitigate any harm to older workers. Much of this proposal appeared in the Federal Register in February 2010. Clarification is still needed as to how each factor will be weighed and when to follow them. The Office of Management and Budget will review the EEOC’s proposal, and the process of reviewing, drafting, and modifying the proposal may continue for months.

The Boston age 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 age 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 Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain, Boston Employment Lawyer Blog (October 22, 2011)
Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing, Boston Employment Lawyer Blog (April 1, 2011)
Age Discrimination Mixed Motive Standard Before the Supreme Court, Boston Employment Lawyer Blog (January 1, 2009)

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A Brief History of Sexual Harassment

Sexual harassment has been at the forefront of the news in recent weeks thanks to two major stories. One involves the allegations of sexual harassment against Republican presidential candidate Herman Cain. The other is the twentieth anniversary this year of the sexual harassment allegations against Supreme Court Justice Clarence Thomas during his confirmation process. The Christian Science Monitor recently published an article examining the history of sexual harassment as both a legal and social concept over the past 30 to 40 years, identifying six high profile cases that have raised public awareness of the issue. While sexual harassment is undoubtedly still a widespread problem across the country (and the world), it is worthwhile to occasionally review how far we have come.

1. Meritor Savings Bank v. Vinson: Originally, quid pro quo was the only type of legally actionable sexual harassment. This type of sexual harassment occurs when an employee is required to submit to a supervisor’s sexual advances as a condition of employment (e.g., “sleep with me or you’re fired”). The Supreme Court’s 1986 ruling in Meritor Savings Bank v. Vinson expanded the definition of sexual harassment to include hostile work environment:

In sum, we hold that a claim of “hostile environment” sex discrimination is actionable under Title VII … and that the District Court did not err in admitting testimony about respondent’s sexually provocative speech and dress.

For more information on the differences between quid pro quo and hostile work environment sexual harassment, please visit our website here.

2. Jensen v. Eveleth Tavonite Co.: The first class-action sexual harassment lawsuit was filed in 1988 on behalf of Minnesota mining company employee Lois Jensen, who described a pattern of harassment and abuse beginning when she went to work there in 1975. The lawsuit continued until a settlement was reached in 1998. Jensen’s story was the subject of the 2005 Charlize Theron film “North Country”.

3. Clarence Thomas and Anita Hill: While Clarence Thomas awaited confirmation to the U.S. Supreme Court in 1991, Hill went public with allegations of sexually suggestive remarks when she worked as his assistant years earlier. The Supreme Court confirmed Thomas, but the controversy served to make the whole country aware of the topic of sexual harassment, sparking a dialogue on what is and is not appropriate in the workplace.

4. General Larry Smith and Lieutenant General Claudia Kennedy: In 1999, Lt. Gen. Kennedy was the highest-ranking female officer in the Army and was nearing retirement. When she learned that General Smith was being considered for an inspector general position, which would involve investigating sexual harassment claims, she went public with allegations that he had touched her in an inappropriate and unwanted manner in 1996. An inquiry found that Smith had behaved inappropriately and his nomination was withdrawn.

5. Senator Bob Packwood: The Oregon senator resigned in 1995 when at least 29 women, including aides, interns, and campaign workers, came forward with allegations of sexual harassment and even possible assault. After several years of scrutiny and calls for ethics investigations by fellow senators, the Senate Ethics Committee recommended his expulsion from the Senate.

6. President Bill Clinton and Paula Jones: Jones, a former Arkansas state employee, filed suit against then-President Clinton in 1994, alleging incidents of harassment and inappropriate behavior. Although a judge dismissed the suit for lack of evidence of damages, the case brought the Monica Lewinski scandal to light and led to the president’s impeachment. He settled with Jones in 1998 and paid her $850,000.

One key case not mentioned in the article is Robinson v. Jacksonville Shipyard, which established that nude pin-ups in the workplace constitute sexual harassment, even if not directly targeted at the employee who found this offensive.

The Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of sexual harassment, 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 Sexual Harassment Blog Posts byThe Law Office of Alan H. Crede, P.C.:

Sexual Harassment Disproportionately Affects Restaurant Workers, Boston Employment Lawyer Blog (November 14, 2011)
Sexual Harassment Claims Against Herman Cain, Boston Employment Lawyer Blog (November 3, 2011)
Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)

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If You Believe In Patient Safety, You Need Not Apply For Government Work

Last week, Dr. Donald Berwick resigned as the acting head of the Center for Medicare and Medicaid Services (CMS) after it became obvious that his formal appointment to the position would never be put to a vote in the Senate and, if it were, Senate Republicans would vote him down.

As blogger Harold Pollack points out, Berwick is just one of a string of eminently qualified people whom Republicans in office have prevented from being appointed. Some of the other notable figures whose appointments have been blocked by Senate Republicans include Elizabeth Warren and Peter Diamond.

As blogger/physician Bill Gardner notes in a post entitled “Don Berwick And The Lives Not Saved,” the blocking of Dr. Berwick’s nomination is far more consequential than the kaiboshing of Warren and Diamond’s nominations inasmuch as lives will likely be lost due to the failure to confirm Berwick.

What was Berwick’s crime? Among other things, he has been an outspoken advocate of patient safety. He was a coauthor of the landmark Institute of Medicine report “To Err Is Human,” which estimated that preventable medical errors kill 98,000 Americans each year.

Berwick’s radical program, had he been appointed head of CMS would have included a renewed focus on preventing central line infections, preventing surgical site infections and preventing ventilator-associated pneumonia.

But apparently Berwick’s background and qualifications did not square with the Republican narrative that trial lawyers, rather than doctors, are the problem with medical malpractice and that the “free market” is best method for delivering health care services.

People like Dr. Berwick make tremendous personal sacrifices to involve themselves in the political process, often relocating their family to Washington, D.C., surrendering privacy and the financial and other rewards of work in the private sector. They should be appointed or rejected on the basis of their qualifications, not reduced to being political footballs.

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Ideas For Health Care Savings

Continuing his Opinionator series on ways to reduce health care spending, Dr. Ezekiel Emmanuel points out that each year administrative costs account for $360 billion of our health care spending, roughly fourteen percent of our health care tab.

The administrative costs of our health care system dwarf the amount we spend on all aspects of medical malpractice — from treating the malpractice to paying victims and lawyers for the injuries.

These administrative costs include the amount that insurance companies spend processing (and denying) claims, the amount that doctors spend on office staff needed to interact with the insurance companies and the amounts spent on third-party billing services.

Dr. Emanuel suggests that switching over to digital medical records could save at least $32 billion a year.

Of course, the single biggest thing that we could do to reduce administrative expenses is switch over to a single-payer “Medicare for all” system. But it would be imprudent for someone in the administration actually to say that.

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These Things Don’t Write Themselves You Know

…Which is why, oftentimes, I will see a quite bloggable story but not get around to blogging it. By the time I do have a spare moment to sit down and pen (er, keyboard) a blog post about the story, the story’s expiration date will often be up, leaving me no choice but to pass the story over. (This blog is cutting-edge, people!).

But fortunately, a recent post by Walter Olson at Overlawyered.com gives me a chance to circle back around to one story that I intended to blog about but never did (until now):  the weeks-old saga of a $43,000 lawsuit brought against a wedding photographer by the (now) divorced groom, which seeks to force the photographer to recreate the wedding.

The story was originally published several weeks ago by The New York Times.

The story sparked outrage on many legal blogs because the groom’s claim for “specific performance” (i.e., having the photographer recreate the wedding so that satisfactory pictures could be taken) seemed so disingenuous. After all, why would the (now divorced) groom want pictures of what is presumably a bad memory? The lawsuit seemed like the ultimate frivolous/shakedown lawsuit.

Other blogs picked up on a different angle to the story:   the groom is the son of Shepard M. Remis, a partner in the Boston office of the national law firm Goodwin Procter, LLP.

A number of blog posts focused on the absurdity of seeking $43,000 in damages when the original contract called for the photographer to be paid only several thousand dollars for his taking the pictures.

Even the judge in the case, in ruling on a motion, said that the damages plaintiff sought are way too high.

What I didn’t see any bloggers saying is that, theoretically, the plaintiff could collect far more in damages than the contract price for the photography. There’s actually a quite famous contract case right on point. The case, Mieske v. Bartell Drug Co., is from Washington state. In Mieske, a woman paid a drug store to splice together a bunch of her home movies onto a single reel. The drug store, however, wound up losing the film.

Mieske filed suit. The question presented to the Washington Supreme Court was: What should the measure of Mieske’s damages be? Are damages limited to the amount that she paid the drug store to splice together the film? Or do proper damages include the emotional value that the film had for Mieske?

The Washington Supreme Court carved out a middle ground. The Court held that Mieske could recover more than the contract price in damages; in other words, Mieske could recover more than the several dollars she paid the drug store to splice together the film.

But a jury was not to value the film simply by the subjective value that Mieske put on it either. To the extent that Mieske was an overly sentimental person, the jury should not compensate her oversentimentality.

What the jury should do, the Supreme Court ruled, is compensate Mieske for the amount that a typical person would place on the emotional loss of the film.

The Mieske case, and others like it, mean that our divorced and disgruntled groom can (theoretically) recover far more than the contract price of the wedding photos.

And such a rule makes sense. Mieske’s loss was much greater than the several dollars spent on film development. And if your wedding photographer screwed up all the pictures of your wedding, the lost value to you would be much greater than the fee you paid the photographer.

In a post yesterday at Overlawyered.com, Walter Olson reported on another situation where emotional damages surpass contract cost: the loss of a pet. Texas’ Supreme Court recently overruled a 12o-year old case saying that pet owners can only recover the purchase price of their pet when someone kills it. The new rule in Texas allows for pet owners to recover emotional distress.

The legal rules found in the Mieske case and the new Texas case make a great deal of sense. But unfortunately, as the recent wedding photography lawsuit shows, they are susceptible to abuse.

And there’s not really much that a judge can do to stop lawsuits like the groom’s. A judge can’t say that the photographs obviously have no emotional value to the groom because the groom is now divorced; that’s something for a jury to decide, not a judge. And from what I’ve read, if this case ever goes to trial, it will result in a defense verdict.

Unfortunately in the meantime, the photographer will have to shell out to pay a lawyer to defend the case.

 

 

 

 

 

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Sexual Harassment Disproportionately Affects Restaurant Workers

The link between sexual harassment and the restaurant business has come into the national spotlight recently, in part due to allegations by several women against Republican presidential candidate Herman Cain and the discussions they have inspired. As we discussed in a previous blog post here, journalists at MSNBC took the opportunity to review statistics on the prevalence of sexual harassment in restaurants. The surprising results appeared last week in a Huffington Post article entitled, Restaurants, Sexual Harassment Go Hand-In-Hand, According To New Report.

According to the article, fewer than 9% of American workers are employed by restaurants, yet 37% of the sexual harassment suits reported by the federal government so far in 2011 have taken place in restaurants. A poll of Louisiana restaurant employees cited by MSNBC indicated that 42% of female restaurant employees had experienced some form of sexual harassment during their careers.

The Equal Employment Opportunity Commission announced in 2006 that it had entered into a settlement agreement with Cracker Barrel, a nationwide chain of “family dining” restaurants, for $2 million to resolve discrimination claims including sexual harassment. Earlier this year, a female employee of a Gordon Ramsay-affiliated restaurant in New York City filed a sexual harassment complaint with the state’s human rights agency. She alleged that male chefs subjected her to ongoing verbal abuse, sexual propositions, and groping. Male chefs staged a walkout in protest in April that apparently shut the restaurant down for several days.

The amount of sexual harassment settlements has also been a topic of debate. According to a Slate article entitled Is $45,000 a Lot for a Sexual Harassment Settlement?, one woman who accused Cain of sexual harassment received a $45,000 settlement and a second woman received a $35,000 settlement. The article points to a study that reviewed 50 sexual harassment cases before Chicago magistrate judges, revealing that victims of sexual harassment who prevail at trial receive an average jury award of $217,000. Those who resolve their cases before trial receive significantly less, with an average settlement of $53,000 and median of $30,000.

As with all discrimination cases, the value of a sexual harassment case is very fact specific. It is not uncommon for sexual harassment to lead to constructive discharge, where the sexual harassment victim has no choice but to resign due to intolerable working conditions. In such a scenario, recovery is not limited to emotional distress damages since the employee will certainly suffer economic loss as well. As one can imagine, the economic loss can vary greatly depending on one’s salary and length of unemployment.

If you are a victim of sexual harassment, contact the Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

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

Sexual Harassment Claims Against Herman Cain, Boston Employment Lawyer Blog (November 3, 2011)
Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)
Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million, Boston Employment Lawyer Blog (June 8, 2008)

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Your Doctor’s Tie Could Be Making You Sick

….and his lab coat too.

We’ve known for a couple decades now that doctors’ clothing are big germ carriers.

Experts recommend that doctors wear shortsleeves to avoid spreading germs.

But a short-sleeved, tie-liess doctor does not convey to people a very professional image.

A doctor’s dress plays a big part in our conceptions of his competence. As one doctor noted a generation ago:

“The physician’s dress should convey to even his most anxious patient a sense of seriousness of purpose that helps to provide reassurance and confidence that his or her complaints will be dealt with competently. True, the white coat is only a symbol of this attitude, but it has also the additional practical virtues of being identifiable, easily laundered, and more easily changed than street clothes if accidentally soiled…. Casual or slovenly dress is likely to convey, rightly or wrongly, casual or inattentive professional handling of their problem….”

Now we’re beginning to see reformers like Julia Hallisy (who lost a daughter to a hospital-borne infection) campaigning for a change in doctors’ uniforms.

Doctors know better than to wear germ-carrying ties. But the blame for patients’ preconceptions of what a doctor should look like. We should trust our doctors based on training and credentials, not based on their fashion sense.

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Congratulations To Professor Bernabe

Last week, AbnormalUse marked its 500th post.

This week there’s another milestone in the torts law blogosphere worthy of congratulations: the third birthday of Prof. Alberto Bernabe’s Torts blog. Prof. Bernabe has blogged 1145 posts since Nov. 7, 2008.

1145 posts: all I can say is “Wow.” I hope to make it there someday too — if carpal tunnel does not derail me first.

 

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When It Comes To Health Care Savings, You Have To Think Big. Really big.

  Dr. Ezekiel Emanuel (brother of Rahm and Ari) had an op-ed in last week’s New York Times that hammered home how big you really have to think if you want to stabilize health care costs. As Emanuel pointed out, lots of conservatives and liberals have their own pet ideas for how to rein in the cost of health care. But most of these ideas are too small to really make a dent in health care spending.

We spend $2.6 trillion a year on health care. Our health care spending is growing at a rate of $100,000,000,000.00 annually. So, if your proposal for trimming the cost of health care comes to less than 100 billion annually, health care spending will still be growing, despite your reform. Emanuel proposes that any health care reform proposal should have to net at least $26 billion in savings. That’s one percent of our (current) health care spending.

By this criterion, $250,000 caps on damages in medical malpractice fail the test. As Emanuel notes, caps on medical malpractice damages would only save at most $11 billion a year. And they might even lead to higher health care costs as doctors become more careless. (Gee whiz, given that avoidable medical errors are our sixth-leading cause of death, do you think so?).

I thought Emanuel’s op-ed made a lot of sense but one thing that surprised me was the disparaging tone he took toward the idea of identifying “million dollar babies” (patients whose health care tabs run into the millions of dollars). Emanuel seemed to suggest that once we identify the “million dollar babies,” there’s no way to reduce spending on them, other than cutting them off from more health care services. Have you heard of hotspotting, Zeke? Maybe that’s worth a shot.

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A Business Legend Explains Why Insurance Companies Delay Resolving Personal Injury Claims

  Insurers always deny they’re acting in bad faith when they delay and dispute claims. They insist that they need to take so long to sort out the facts and determine if they are liable.

Trial lawyers and others have long insisted that these excuses are designed to conceal the insurance companies’ financial motives for stretching everything out.

This week, courtesy of a column by Arthur Licata in Massachusetts Lawyers Weekly, I came across a lengthy quote from Warren Buffet (a quote I don’t recall previously seeing) that perfectly explains how the insurance industry works.

Of course, the insurance business is a mainstay of Buffet’s Berkshire Hathaway and GEICO insurance and others are owned by Berkshire.

This is how Buffet explained the insurance component of Berkshire Hathaway in his 2009 letter to Berkshire shareholders:

“Insurers receive premiums up front and pay claims later. In extreme cases, such as those arising from certain workers’ compensation accidents, payments can stretch over decades. This collect now, pay later model leaves us holding large sums — money we call ‘float’ — that will eventually go to others.

“Meanwhile, we get to invest this float for Berkshire’s benefit. Though individual policies and claims come and go, the amount of float we hold remains remarkably stable in relation to premium volume. Consequently, as our business grows, so does our float.

“If premiums exceed the total of expenses and eventual losses, we register an underwriting profit that adds to the investment income produced by the float. This combination allows us to enjoy the use of free money — and better yet, get paid for holding it.”

What tort reformers and others don’t want you to understand is that the insurance business is really the investment business. When doctors’ medical malpractice premiums go up, doctors, ignorant of the insurance business, blame medical malpractice suits, instead of understanding that medical malpractice premiums are really controlled by investment returns, rather than payouts.

The next time sometime tells you they’re from an insurance company, think of it as a “getting paid-to hold-free money” company.

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