The Doctor You Never Heard Of Who Saved 800,000 Lives

Most New Englanders can recite half the names on the roster of the Super Bowl-bound Patriots. But most  New Englanders, myself included, would be hard-pressed to identify Dr. Mary Ellen Avery. And that is a travesty.

Dr. Avery’s life, and passing, came to my attention several weeks ago in her obituary in The New York Times. Dr. Avery was the first female head of pediatrics at Children’s Hospital in Boston, a distinction that is remarkable enough in itself. But Dr. Avery’s true legacy is as savior of over 800,000 newborns’ lives.

Up until the late 1960s, tens of thousands of babies died each year of respiratory distress syndrome. The newborns would be unable to breath and would foam at their mouths before dying. Autopsies would reveal a glassiness to the babies’ lungs.

Dr. Avery’s research of respiratory distress syndrome led to the discovery that it was caused by an absence of a surfactant which coats the lungs of healthy infants and adults. Dr. Avery then helped to develop a synthetic lung surfactant that could be used to coat the lungs of newborns until their bodies learned to manufacture surfactant of their own.

We should celebrate the accomplishments of researchers like Dr. Avery as much as we celebrate the pigskin feats of people like Rob (“Yo soy fiesta”) Gronkowski.

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Rich And Poor Alike Receive Terrible Health Care

As featured in USA Today, Dr. Otis Browley, chief medical officer of the American Cancer Society, has recently penned a book entitled “How We Do Harm: A Doctor Breaks Ranks About Being Sick In America.”

One of the book’s themes is how just being wealth and having private health insurance is no guarantee of getting good health care. As Browley writes, “wealth in America is no protection from getting lousy care.… Wealth can increase your risk of getting lousy care. If you have more money, doctors sell you more of what they sell, and they just might kill you.”

Having good health insurance can lead to you receiving inferior care because it gives doctors an economic incentive to overtreat. This is all part of the problem with the fee-for-service model of health care that dominates American medicine, that we’ve blogged about many times before.

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Race Discrimination Victim Prevails Before the Eleventh Circuit

In an unusual but welcome move, the U.S. Court of Appeals for the Eleventh Circuit in Ash v. Tyson Foods has reversed its own decision in a race discrimination case. The court had overturned a jury verdict against Tyson Foods related to employment bias at a plant in Gadsden, Alabama. A brief filed by a retired Alabama federal judge and a group of civil rights leaders urged the court to reconsider its ruling. More than a year after its last ruling, the court reversed itself, albeit grudgingly. The New York Times’ coverage on the decision can be viewed here.

This case has made its way through the appellate courts several times over the years. Two black employees at the Tyson plant, Anthony Ash and John Hithon, alleged discrimination based on race when they were passed over for promotion in favor of two white employees. The plaintiffs further alleged that their manager created a hostile work environment by frequently referring to adult black male employees as “boy.” They filed suit based on, among other causes of action, Title VII of the Civil Rights Act of 1964. When the case went to trial in 2002, the jury awarded the plaintiffs over $1.4 million in compensatory and punitive damages.

Following the jury verdict, the employer first appealed the case to the Eleventh Circuit. A three-judge panel of the Eleventh Circuit unanimously affirmed in part and reversed in part, finding that the evidence presented at trial was not sufficient to establish unlawful discrimination or to support the damage award. It held that the manager’s use of the word “boy,” in the absence of an adjective such as “black” or “white” is not in and of itself evidence of discriminatory intent. In 2006, the Supreme Court unanimously vacated the Eleventh Circuit’s ruling and remanded the case, rebuking the court for its finding regarding the manager’s language. The Supreme Court’s per curiam opinion noted that the circuit court should have considered factors like “context, inflection, tone of voice, local custom, and historical usage.”

At this point, Hithon pursed the case on his own, without Ash. When the Eleventh Circuit heard the case again, this time in 2010, it reached a conclusion similar to its earlier finding. In a 2-1 ruling, the court held that the manager’s use of the word “boy” was “conversational” and “nonracial in context,” and it once again mostly reversed the trial court’s verdict. Once again, the Eleventh Circuit’s controversial ruling caught the attention of the New York Times in this article.

The Eleventh Circuit’s new ruling once again overlooked evidence beyond the words themselves. Testimony at trial by the plaintiffs and other witnesses established the connotation that the word “boy” evinces. Ash, for instance, told the jury that “being in the South, and everybody know [sic] being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

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Gender Discrimination Suits Continue Against Wal-Mart

Betty Dukes worked for years at the Wal-Mart in Pittsburg, California, hoping for advancement. She found herself frustrated at the lack of promotion and poor treatment by managers. She believed their denial of opportunities to her was based on both her gender and her race. When her complaints to the corporation’s chain of command went unheard, she sought legal help. She became the face of the largest gender discrimination class action suit in United States history, Dukes v. Wal-Mart, first filed in a San Francisco federal court in 2001 and eventually including female Wal-Mart employees from all over the country. In 2010, the Ninth Circuit Court of Appeals upheld a district judge’s order allowing the case to proceed as a class action with nearly a million class members. The lawsuit has not gone well for the plaintiffs since then.

Wal-Mart appealed the Ninth Circuit’s ruling, and it went to the United States Supreme Court. On June 20, 2011,the Supreme Court overturned the Ninth Circuit, denying the plaintiffs the right to go forward as a class. Justice Antonin Scalia, writing for the majority, held that the plaintiffs had not demonstrated that Wal-Mart had a “general policy of discrimination” that impacted all class members. In denying class certification, the Court noted that the plaintiffs worked in different stores in different regions and that they suffered different types of discrimination under different managers for different reasons.

The employees and their advocates, however, have not given up. New efforts to hold Wal-Mart accountable for alleged discrimination target smaller areas, rather than the entire country. New suits have been filed in California and Texas on behalf of plaintiffs from the original suit, and more regional suits may follow. These lawsuits tend to focus on the corporation’s stores within a single state, thus narrowing the scope of the alleged discrimination.

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Pepsi Settles Federal Race Discrimination Claim

Pepsi Beverages reached a settlement agreement with the Equal Employment Opportunity Commission (EEOC), in which it will pay $3.13 million and modify its training and hiring processes based on allegations of racial discrimination. An investigation by the EEOC found evidence that Pepsi’s use of criminal background checks during the hiring process had an adverse and disproportionate impact on black job applicants. Under Pepsi’s policy, job applicants who had been arrested pending prosecution were refused job offers, even if they had not been convicted. In addition, Pepsi’s policy denied employment to job applicants arrested or convicted of particular minor offenses. The EEOC found that Pepsi’s policy disproportionately impacted more than three hundred individuals.

This case demonstrates how a policy that is not specifically intended to discriminate may still violate anti-discrimination laws. Disparate impact gives rise to liability where a facially neutral employment practice or policy, that serves no purpose in promoting a legitimate business interest, disproportionately affects employees in a certain protected class. Under this framework, proof of discriminatory animus is unnecessary.

The Supreme Court’s ruling in Griggs v. Duke Power Co., which was decided just two years after race discrimination in the workplace became illegal, is a prime example. There, the company required job applicants to obtain a high school education or to pass a standardized general intelligence test as a condition of employment. At the time, these requirements disproportionately affected black applicants. In considering whether this policy violated Title VII, the Court stated “the consequence would appear to be directly traceable to race,” noting that blacks “have long received inferior education in segregated schools.” Finally, the Court found that “neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” For these reasons, the policy violated Title VII.

Similar to Title VII, the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B) recognizes disparate impact claims. In School Committee of Braintree v. MCAD, for instance, a female teacher brought a sex discrimination claim under the disparate impact framework. There, the school relied on a policy and denied the plaintiff the ability to use her accumulated sick time during her maternity leave. In sharp contrast, the school had allowed the use of accumulated sick time for reasons other than pregnancy such as Peace Corps work and military service. The Massachusetts Commission Against Discrimination found the school’s policy had a disparate impact on women. The Supreme Judicial Court agreed:

Unlike leaves of other kinds, maternity leave possesses an essential character of being medically necessary. During several weeks of maternity leave a woman, by necessity, is physically disabled and incapable of performing her job. No comparable situation exists with respect to men.

The Boston race discrimination lawyers at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of race 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 Race Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit, Boston Employment Lawyer Blog (December 28, 2011)
Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs, Boston Employment Lawyer Blog (February 7, 2011)
Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR, Boston Employment Lawyer Blog (June 26, 2008)

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