The EEOC alleges that since at least 2008, Kaplan has unlawfully discriminated against a nationwide class of black job applicants by refusing to hire the applicants based on their credit history.  The EEOC claims that this hiring practice constitutes a disparate impact because of race in violation of Title VII of the Civil Rights Act of 1964 and is neither job-related nor justified by business necessity.  Regional Attorney Debra Lawrence of EEOC’s Philadelphia District Office, which oversees portions of Ohio, stated “Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally.”  Additional articles and commentary relating to the EEOC’s lawsuit against Kaplan include:

http://www.nytimes.com/2010/12/22/business/22kaplan.html

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105136.html

http://www.delawareemploymentlawblog.com/

The new rule can be found here.

The new regulations undo many of the changes made to the H-2A program in 2008.  The new rules restore the prior formula for calculating the prevailing wage rate, using U.S.D.A. survey information.  Labor contractors must now provide specific location information for jobs offered, and must reimburse travel costs from the place that the guestworker is recruited, rather than from the U.S. consulate or port of entry.  The regulations create a new electronic registry advertising available jobs, and increase employer certification compliance requirements.  Employers must display a new H-2A poster where employees can readily see it. The poster is also available in Spanish.

The New York Times also reports that the Attorney General plans on increased civil rights enforcement in the areas of  voting rights, housing, employment, bank lending practices and redistricting.  The plan includes the hiring of an addition 50 attorneys for the Civil Rights Division.  The Civil Rights Division has also increased the number of court briefs it files in private discrimination cases.

Employers must be proactive in labor and employment law compliance in order to avoid any one of the many potential quagmires in this area.  As we have mentioned before, now is not the time to cut costs in human resources or legal spending for employment law! 

(On a related note, assigning employment law work to a small or medium sized firm is one way to help control these costs without sacrificing quality.  Law.com has a recent article on a group of big firm lawyers that left and started their own practice in California to address client concerns about high hourly rates.  Frequent readers of this blog know that law firm economics is a topic we try to educate readers on because in the employment law area, bigger is not always better.)

CA — California Court of Appeals reverses $100 million award in tip-pooling case against Starbucks.  The barristas promise to appeal to the California Supreme Court.  A copy of the opinion is here.

NY — Syracuse police sergeant wins $250,000 in sexual discrimination and retaliation lawsuit against the city.

TX — Deputy of former constable (now dead) wins $253,000 in sexual harassment lawsuit, but loses wrongful termination claim.

VA — Tenants awarded $250,000 in racial discrimination in housing case in federal court in Charlottesville.

NC — Ex-police chief wins negligence suit against town for impairing his retirement benefits by hiring him.

NY — “Duane Reade Inc., a well-known New York drugstore chain that operates more than 200 stores in metropolitan New York, will pay $240,000 and furnish other substantial relief to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.  According to EEOC’s lawsuit, Duane Reade unlawfully created, maintained and failed to remedy a hostile work environment at one of its Bronx stores by subjecting several female employees to sex and pregnancy harassment. The store manager . . . frequently made vulgar remarks about women’s private parts, sexually propositioned female employees, made lewd comments about their pregnancies and bodies, assigned unfavorable job duties to pregnant employees and repeatedly grabbed female employees, including grabbing their buttocks.  Further, the EEOC said, the employees who complained and filed discrimination charges with the agency were retaliated against by being subjected to further harassment by their supervisors.”

NV — Court approves $85 million wage and hour settlement in cases involving Wal-Mart.

MD — “A Gaithersburg, Md.-based storage facility will pay $95,000 and furnish other substantial relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) . . . .  In its suit (Civil Action No. 8:08-cv-02498-PJM), filed in U.S. District Court for the District of Maryland, Southern Division, the EEOC said that Extra Space Management, Inc. unlawfully fired [plaintiff], a maintenance worker, because of a disability. [Plaintiff], who has a visible disfigurement as a result of sustaining severe burns to his body in a house fire, began working for the company in June 2006. Although he was physically capable and willing to perform all his job duties, [plaintiff] was fired after meeting the acting district manager, who said that he “noticed he was handicapped, deformed or something,” and “it’s clear he can’t get the job done.”

MO — “Town & Country Grocers of Fredericktown, Missouri, Inc., doing business as Country Mart Grocery (Country Mart), will pay $27,000 to settle a race discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of a female African American worker, the federal agency announced today.  The EEOC had alleged in the litigation that co-workers and a supervisor told racist jokes and directed racial slurs at [plaintiff], a cook and deli clerk in the company’s Park Hills, Mo., store. Some of the slurs were written on a wall and in a note taped on a door. Country Mart management failed to respond to [plaintiff]‘s complaints about the harassment. [Plaintiff], the only African American employee in the Park Hills store, resigned as a result of the racially hostile work environment.”

NJ — “Oil Company ConocoPhillips has agreed to settle a religious discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.  In the suit (Civil No.07-6045 in U.S. District Court for the Northern District of New Jersey in Newark), the EEOC had charged that ConocoPhillips discriminated against [plaintiff], a long-term pipe fitter, at its Bayway Refinery in Linden, N.J., by refusing to grant his request for a religious accommodation. [Plaintiff] served as a deacon and lay leader in his congregation. In May 2006, [plaintiff] was informed by the company that he was required to work a schedule that would make him miss Sunday services for two months. Despite [plaintiff]‘s requests, ConocoPhillips failed to accommodate him, and he was unable to attend Sunday church services during this time.”

IL — “Area Erectors, Inc., a construction company headquartered in Rockford, Ill., will pay $630,000 and provide significant remedial relief to settle a race discrimination class lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) . . . .  The EEOC’s suit, filed under Title VII of the Civil Rights Act (EEOC v. Area Erectors, Inc., No. 1:07-CV-02339), charged that Area Erectors terminated [plaintiff] and a class of 23 other black employees because of their race. In addition, the EEOC alleged that Area Erectors fired [plaintiff] as a retaliatory measure after it discovered he had filed a lawsuit against another employer for race discrimination.”

MI — “Muskegon Family Care, a family medical center, has agreed to pay $85,280 and provide substantial injunctive relief to settle a race discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.  According to the EEOC’s suit (Civil Action No. 1:08-CV-618, filed in U.S. District Court for the Western District of Michigan), Muskegon Family Care subjected [plaintiff], an African American supervisor at its Getty Road clinic, to race discrimination and retaliation by failing to promote her and firing her after she complained about ongoing racial harassment. From the start of her employment, the EEOC said, [plaintiff] faced an uphill battle because her direct supervisor displayed an immediate and ongoing dislike towards her because of her race. Even though Muskegon Family Care was aware of the discriminatory animus [plaintiff]‘s supervisor harbored against her, it allowed the harassment to continue and let the boss terminate her as punishment for the complaint.”

Alaska — “Providence Alaska Medical Center has agreed to pay $220,000 and other relief to settle an age discrimination lawsuit on behalf of five workers laid off and denied rehire because of their age, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.  The EEOC charged that in February 2005, Providence laid off and refused to rehire longtime employees [plaintiffs] following a restructuring of the hospital’s operating room. The five employees had devoted between 11 and 24 years of their careers as surgery aides and anesthesia technicians to Providence and all had hoped to retire from Providence one day. The EEOC said that the five employees, ages between 46 and 56, lost their jobs due to their age, and were replaced by new hires in their twenties and thirties.”

TX — “A construction contractor operating at Texas refineries will pay $175,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.  The EEOC’s lawsuit charged Brand Energy Solutions, L.L.C., formerly known as Brand Scaffold Builders, L.L.C., with violating Title VII of the Civil Rights Act of 1964 by subjecting a female employee to sexual harassment and retaliation. The agency said that an operations manager employed by Brand at a Corpus Christi refinery sexually harassed a female timekeeper whom he supervised.

The EEOC said the harassment included subjecting her to repeated unwelcome physical contact, sexual advances and comments; placing lurid images on her work computer; and threatening and intimidating behavior such as throwing objects at her and locking her in a trailer. According to the suit, the woman was forced to quit her job when Brand Scaffold failed to take prompt and appropriate remedial action to address the harassment, as the law requires.  Further, the EEOC charged, Brand retaliated against the woman for complaining about the abuse. After she complained to management she was removed from her work site, placed directly in the harasser’s office and was shunned by the other employees. She was told by co-workers and at least one Brand manager that whistleblowers never keep their jobs.”

* * * * *

CA — Last, but not least, we provide a link to this press release announcing that the Los Angeles Superior Court entered judgment on an arbitration award in an employment case in the amount of $4.1 billion.  (Hat tip to the Manpower Employment Law Blog.)

UPDATE:  Law.com has a story here that fills in the gaps on how the number got so big.

Managing the Holiday Cheer (Pennsylvania Labor & Employment Law Blog)

Holiday Office Parties:  What Issues Should An Employer Be Considering?  (Connecticut Employment Law Blog)

Despite Economy, Small Businesses Plan Holiday Parties (George’s Employment Blawg)

Tis the Season to Avoid Disaster (Delaware Employment Law Blog)

Employers Limit Liability At Holiday Parties (Labor Law Center Blog)

Dear Blogger,

The ABA Journal is surveying lawyers about the job market and the current state of the economy. We’d appreciate it if you could let readers know about our survey with a mention on your blog. Here is the link.

Survey results will be published in the January ABA Journal. If you post a note about our survey on your blog and send us the link, we’ll be sure you’re among the first to know when we’re ready to post the results. Answers will be kept confidential and used only in combination with all other responses received. If you have any questions or suggestions, please feel free to contact me.

Thanks for your help.

Sincerely,

Stephanie Francis Ward
Legal Affairs Writer
ABA Journal

Alaska — Jury awards $480,000 in wrongful termination and defamation case in Alaska.

MN — Minneapolis jury rejects police sergeant’s retaliation claim.

CA — Jury finds that Black supervisors discriminated against Hispanic deputy.  Case settles for $432,000 shortly thereafter.

The Pennsylvania Employment Law Blog’s commentary is here.  The Connecticut Employment Law Blog’s commentary is here.  The Word on Employment Law has a collection of posts on the issue here.

There is little question that the election of the Democratic candidate for President, along with any gain in the Democratic party’s position in Congress, will result in a significant change in employment law as we see it today.  Whether that is good or bad is a debate for another place.  But given the radical changes that are already on the table as proposed legislation, one has to wonder why employment law has not been given any more attention.  Both candidates say that creating jobs for Americans is the critical issue they will face as President.  It is difficult to see how the legislation on the table expanding employee rights in virtually every segment of employment law is going to create jobs — other than for employment lawyers.

We turn back to the question of more employment lawsuits after the break.

The international law firm of Fulbright & Jaworski, LLP, making use of its extensive resources as a large, institutional law firm, has issued a lengthy report on its annual survey of litigation trends.  The summary can be found here.  (Hat tip to the Manpower Employment Law Blawg for pointing out the study.)  They say the following regarding employment cases:

“Workplace Cases on the Rise

24. Wage-and-Hour Pressures – With employment cases perennially taking up the largest portion of corporate dockets, Fulbright sought to learn which types of employment disputes are the most nettlesome, particularly in multi-plaintiff cases and class actions. Respondents report the greatest spike in wage-and-hour suits – in which employees allege underpayment for overtime, meal and rest times. Nineteen percent of U.S. companies cited an increase in wage-and-hour cases in the past year vs. only 1% noting a decrease. Retailers, which frequently call on part-time or seasonal workers, appear to have the most exposure: One-third of retail firms saw an increase in wage-and-hour litigation, with none reporting a drop. In contrast, 6% of U.K. companies saw any upward movement in wage-and-hour disputes.

25. Other Employment Cases – After wage-and-hour, companies saw pronounced increases in five other areas of workplace litigation: General discrimination suits, followed by privacy, ERISA, disability claims, and age discrimination. Retailers and financial services firms saw the sharpest rise in discrimination claims; retailers shared the lead with energy firms in ERISA cases; and retailers led again in cases tied to ADA claims.

26. Money Cases – Of 10 major types of employment litigation, U.S. companies pointed to race discrimination cases as creating the highest financial exposure, followed by claims stemming from sexual discrimination; wage-and-hour violations; ageism; harassment; retaliation; disability; non-compete disputes; and violations of the Family Medical Leave Act.”

(c) Fulbright & Jaworski, LLP

They further report that “More than half of in-house counsel surveyed by Fulbright felt that the pace of new lawsuits will at least remain stable, with 34% expecting an increase in legal disputes into 2009.” 

Only time will tell whether the credit crisis and economic cycle will result in an increase in employment-related litigation.  We anticipate that the biggest factor will be whether the economy can effectively absorb the jobs that are being lost in the financial sector.  Many employment cases spring from the inability of an individual to obtain another job in a tight economy.

PA — Woman wins second lawsuit against borough.  After winning initial failure to promote lawsuit, the plaintiff won a retaliation lawsuit alleging that the borough stopped offering her work after she won the first case.  Additional coverage here.

NH — Female drywaller wins $400,000 in sexual harassment lawsuit alleging hostile work environment.  The jury rejected the plaintiff’s claims of a discriminatory lay-off and retaliation.  Additional coverage here.

FL — Public works employee wins $60,000 in racially hostile work environment case.

Plaintiffs Carol West Judkins and Sabrina Dewalt were employees of Dillard’s, Inc. (“Dillard’s”), in the City of Hampton.  In December 2001, Dillard’s discharged both plaintiffs after a co-worker accused them of embezzlement.  Soon thereafter, Dillard’s brought criminal charges against both plaintiffs for embezzlement.  The criminal charges, which resulted in the plaintiffs arrest, were ultimately dismissed after preliminary hearings.  Plaintiffs subsequently filed motions against Dillard’s for malicious prosecution.  Dillard’s brought a motion to compel arbitration, based on an arbitration agreement that plaintiffs had signed during their employment with Dillard’s.  The Supreme Court of Virginia reviewed the circuit court’s ruling on interlocutory appeal that the arbitration agreement in question did not cover the dispute

 In 2001, Dillard’s required all its employees to enter into an arbitration agreement as a condition of continued employment.  The “Rules of Arbitration” required by Dillard’s ended with:  “DEFINITIONS … You or the associate means the associate of Dillard’s, Inc., who is covered by this agreement and has a disputed resulting from termination of employment.”

Here, plaintiffs made no complaint that they had been wrongfully terminated.  The plaintiffs complained that they had been wrongfully subjected to criminal prosecution after employment had ended.   The Court found that if Dillard’s had intended for all disputes arising out of employment to be submitted to arbitration it could have used less restrictive language in the agreement.  Further the agreement contained eight specific subjects that were “not covered,” one of which was “Criminal Charges.”  Therefore, the Supreme Court found that the dispute was not covered by the arbitration agreement. 

Contributed by Michael K. Wilson

A copy of the final bill can be found here.  Significant provisions in the bill include:

• One stated purpose of the Act is to reinstate “a broad scope of protection to be available under the ADA.”
• The Act is specifically intended to overturn the Supreme Court decisions in Sutton and Toyota that placed limitations on the definitions of “disability” and “substantially limits.”
• The Act provides that mitigating measures should not be considered when determining whether a person has a covered “disability.”

Several other blogs have commentary, including the Connecticut Employment Law Blog, Ohio Employer’s Law Blog, Manpower Employment Law Blawg, and Workplace Prof Blog.

The practical impact of these amendments will be to expand the scope of ADA coverage, which is the express intent of Congress.  In other words, employees not previously considered “disabled” under the ADA will now be covered.  Employers will be well-advised to carefully consider whether it is appropriate to refuse to accommodate an employee on the ground that they are not “disabled” given the new standard.

UPDATE:  The Connecticut Employment Law Blog has an updated post here on the ADA Amendments that discusses the Act in greater detail and has a post here noting that the Act was signed into law by President Bush.

A plasma technology company located in Knoxville, Tennessee has plead guilty to ten counts of illegally providing a Chinese national with technological data used in the development of an unmanned aerial weapons system in violation of the Arms Export Control Act.  The maximum punishment for each offense includes a $1 million fine and a maximum 5 year probation term.  Three agencies, the FBI, the US Air Force Office of Special Investigations, and the Immigration and Customs Enforcement branch collaborated in the investigation. 

In a related indictment, a university professor providing services to the company was also charged with taking restricted documents to China and e-mailing restricted documents to a foreign national.

This case highlights the need for employers to constantly screen the nationality of participants on various government contract projects.  US law prohibits the “export” of defense-related data to any foreign national or foreign nation.  Such disclosure of defense-related information is a ‘deemed export violation.’

Contributed by Robert R. Gillispie

CT — The Connecticut Employment Law Blog has a post on a $4 million retaliation jury verdict here and follow-up with a copy of the verdict form and jury instructions here.

The Washington Labor, Employment and Employee Benefits Blog has a recent review of jury verdicts in employment cases here.

OR — The EEOC announced the settlement of two harassment and retaliation cases with an electronics retailer for $630,000.  According to the press release, two employees “faced repeated slurs and jokes about their race, national origin, and religion. The abuse included use of the “N-word” by management; the telling of racially offensive “jokes”; use of the epithet “beaner”; and a doll with its hair and face painted black that was hog-tied and hung by a nail in the break room.  The EEOC also alleged that the company retaliated against Gonzales and Lewis after they reported the harass­ment by, among other things, hiring a private investigator to gather information in an effort to discredit their harassment claims. Company officials also confronted co-workers who supported the complain­ants by telling them they were hurting the company and trying to get them to quit, the EEOC charged.”

MO — Arab American wins $337,000 in hostile work environment harassment case against state agency.  He alleged workplace harassment after 9/11 and that his employer failed to respond to complaints about the harassment.

FL — Employee loses failure to promote discrimination jury trial but wins back pay for wrongful termination in separate arbutration proceeding against state agency.

PA — The Law.com headline reads “Brokers Employment Suit Backfires; Defendant Awarded $1.6 Million.”

NY — Former tunnel worker awarded $735,000.  According to The New York Times, “[a] federal jury has awarded more than $700,000 to a former Queens-Midtown Tunnel employee who said his bosses denied him a promotion and penalized him for taking sick days because he was Jewish, according to lawyers for the employee.  The jury, in United States District Court in Manhattan, decided on Monday that the former employee, Gregory Fishman, should get $235,000 for emotional pain and $500,000 in punitive damages. Mr. Fishman, 45, is also seeking more than $1 million in lost pay, but whether he receives anything will be up to the judge in the case, Lawrence M. McKenna, to decide.”

TX –  According to the press release, “[a] Dallas County jury awarded $411,339 to an AT&T call center employee this week after finding that race was a motivating factor in the company’s repeated failure to promote her. Additionally, the jury agreed that AT&T had created a hostile work environment and retaliated against her when she complained.”

According to the EEOC, “The Section addresses what constitutes “religion” within the meaning of Title VII; disparate treatment based on religion; the requirement to reasonably accommodate religious beliefs and practices; religion-based harassment; and retaliation. The Section also provides guidance on the sometimes complex workplace issues involved in balancing employees’ rights regarding religious expression with employers’ need to maintain efficient, productive workplaces.

The EEOC issued this section in response to an increase in charges of religious discrimination, increased religious diversity in the United States, and requests for guidance from stakeholders and agency personnel investigating and litigating claims of religious discrimination.”

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