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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New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently settled a discrimination suit against New York-based fish wholesaler M. Slavin & Sons, Inc. for $900,000. The EEOC filed suit in December 2009 based on complaints by more than thirty employees of physical and verbal sexual harassment. According to the EEOC’s 2009 Press Release, some of M. Slavin’s owners and managers subjected certain non-Caucasian male employees, mostly African-American, to ongoing harassment including groping, offensive sexual comments, and racial slurs.

Some employees left the company because of the harassment, and the individual who first reported the harassment further alleges that he faced retaliation from M. Slavin managers. He claims that managers instructed other employees not to associate with him and threatened his life.

The EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of New York, claimed that M. Slavin violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, sex, and other protected categories. Discrimination based on sex includes sexual harassment, and it encompasses actions against any gender. The law also protects people who seek to defend their rights from retaliation by their employer, and it allows employees to make claims against employers who create a hostile work environment based on race, sex, and other protected categories.

On December 15, 2011, the EEOC announced that M. Slavin had agreed to pay $900,000 to settle the lawsuit, in addition to providing other relief. As part of the settlement, the company is required to revise its policies on sexual harassment, discrimination, and retaliation, and submit to monitoring by the EEOC for a period of five years. The Company is also required to retain an independent consultant to handle discrimination complaints and must provide one-on-one training for the owners and managers who committed the worst acts of harassment. Finally, the Company is required to provide annual anti-discrimination training for all of its owners and managers, publicize the resolution of the lawsuit to all employees at the work site, and notify the EEOC of any and all new discrimination complaints.

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Age Discrimination Presents a Problem for Older Job Seekers

Age discrimination in the workplace manifests itself not only in the form who gets fired, but also who gets hired. A study performed by AARP reviewing employment data for August 2011 found that job seekers age 55 or older spent an average of 52.4 weeks unemployed. In sharp contrast, the average length of time for younger job seekers was 37.4 weeks. The unemployment rate for applicants in the same age demographic jumped from about 3% in December 2007 to about 7% in August 2011, with rates roughly equal for men and women. By August 2011, nearly half of older job seekers met the criteria to be designated “long-term unemployed,” meaning they had been out of work for 27 weeks or more.

Not surprisingly, there appears to be a correlation between a faltering economy and age discrimination claims. According to the National Bureau of Economic Research, the most recent recession began around December 2007 and ended in about June 2009. Based on the EEOC’s Enforcement & Litigation Statistics, the number of age discrimination cases filed dramatically rose from 2007 to 2008 by 5,479 or about 29%. There was a relatively small decrease from 2008 to 2009 and a relatively small increase from 2009 to 2010. Overall, from 2007 through 2010, the EEOC saw about a 21% rise in age discrimination claims.

The federal Age Discrimination in Employment Act (ADEA) protects employees age 40 years old or older from age discrimination. The law prohibits employers with 20 or more employees from discriminating in hiring or firing, as well as pay, job duties, and other aspects of employment, because of age. The Massachusetts Fair Employment Practices provides similar protection for employees age 40 years old or older, but applies to employers with 6 or more employees.

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Disability Discrimination Case Brought Against Kohl’s

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)

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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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