On May 5, 2010, the Ninth Circuit Court of Appeal issued an Opinion, to be published, in the case titled Porter v. Winter (9th Cir. 07-171250). Attorney Charles L. Post prepared and submitted the briefs and attorney Lizbeth V. West appeared and argued before the Ninth Circuit on behalf of Appellant, Ronald Porter.
Continue Reading...In the recent case of Gross v. FBL Financial Services, Inc., the United States Supreme Court held that a plaintiff must prove that his/her age was the “but for” cause of the adverse employment action they claim was discriminatory (e.g. demotion). Plaintiff was 54 years old when his employer reassigned him from his position as a claims administration director to a claims project coordinator. Many of his responsibilities in the director position were transferred to one of his subordinates who was in her early 40’s. Although Plaintiff’s compensation was not reduced, he believed that his transfer to the coordinator position was a demotion and filed an age discrimination claim under the federal Age Discrimination in Employment Act (ADEA).
Continue Reading...In his first significant act as President in the labor and employment arena, President Obama effectively overturned the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. by signing the Lilly Ledbetter Fair Pay Act ("Ledbetter Act") into law this Thursday. The main thrust of the Ledbetter Act is that it “resets” the statute of limitations for wage claims based on discrimination each time an employee receives a paycheck affected by the alleged discriminatory practice.
Background
Lilly Ledbetter worked for her employer, Goodyear, for 19 years. She accused Goodyear of gender discrimination under Title VII on the grounds that, throughout her almost 20 career, she was consistently paid less than male employees who were similarly situated. The Supreme Court found that Ledbetter’s Title VII action was time-barred; holding that the statute of limitations starts running under Title VII when the employer makes the original discriminatory pay decision. The Court rejected Ledbetter’s argument that her claim was “refreshed” each time she received a paycheck affected by Goodyear’s discrimination.
The Ledbetter Act
The Ledbetter Act “resets” the statute of limitations for wage claims based on discrimination (in any form recognized by federal law) each time an employee receives a paycheck affected by the alleged discriminatory practice. Moreover, the Act defines “unlawful employment practices” broadly to encompass any practice that affects an employee’s compensation.
Bottom Line
Given the speed of which this new administration was able to push through this fairly substantial legislation, employers should anticipate continued robust efforts from Washington to further bolster employee protections in the coming months.
What Steps Should Employers Take?
While it will likely take some time for the courts to interpret the new law and provide guidance for employers to take steps to avoid litigation, there are a few initial steps employers should consider taking now:
In 2002, Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by one of its employees, Gene Hughes. A member of Metro’s human resources department asked plaintiff Vicky Crawford (a 30-year Metro employee) whether she had witnessed any of Hughes’ “inappropriate behavior.” Crawford, who was not the subject of the investigation and who had not previously complained of sexual harassment by Hughes, responded that Hughes had actually engaged in inappropriate behavior with her, which she described in detail. A few months after the investigation was completed, Crawford was terminated allegedly for embezzlement.
Crawford filed suit against Metro, alleging that Metro retaliated against her in violation of Title VII for her participation in the sexual harassment investigation. To state a prima facie claim for retaliation under Title VII, an employee must show that she either "opposed" a discriminatory employment practice or "participated" in a statutorily covered activity under Title VII. Metro moved for summary judgment arguing that Crawford could not sustain a claim for retaliation because she neither “opposed” a discriminatory employment practice (since she had never complained about Hughes’ conduct) nor had she “participated” in a statutorily covered activity under Title VII. Crawford argued that although she never reported Hughes’ conduct, her response to Metro’s human resources employee during the investigation constituted “protected activity” under Title VII’s prohibition against retaliation because she “opposed” the harassment by describing it in response to her employer’s questions.
The United States District Court for the Middle District of Tennessee entered summary judgment in favor of Metro and the Six Circuit Court of Appeal affirmed. The Supreme Court granted certiorari.
In finding for Crawford, the Supreme Court found that the primary objective of the anti-retaliation provision under Title VII is avoiding harm to employees. The Court held that for the purposes of Title VII’s anti-retaliation provision, an employee can “oppose” discrimination in the workplace by responding to an employer’s question about the discrimination at issue. The Court made clear that in order to "oppose" a discriminatory act, an employee need not engage in “active” or “consistent” resistance to it. In fact, Justice Souter who wrote for the majority, said that the required opposition would encompass “someone who has taken no action at all to advance a position beyond disclosing it.”
Justice Alito wrote a separate concurring opinion emphasizing his understanding that “the Court's holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive behavior.” Justice Alito stressed that the Court's holding should not extend Title VII protection to an employee's “silent opposition” to harassment or to mere conversations with a co-worker “at the proverbial water cooler” that may be subsequently relayed to the employer.
WHAT IS EXPECTED FROM THE RULING?
It is anticipated that the Supreme Court’s holding in Crawford will now open the door for retaliation claims by investigation participants claiming they were “retaliated” against during or after an investigation. The lesson for employers is to treat all information it receives from employees (whether through a report/complaint, or in response to questions during an investigation) seriously and act upon it appropriately. Employees who participate in a workplace investigation should not suffer any adverse employment action because of such participation.
The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership ruled that individuals may not be held personally liable for retaliation claims under the FEHA.
If you read the FEHA, section 12940(h) makes it unlawful for any “employer, labor organization, employment agency, or person” to retaliate against an employee. Read literally, this would appear to impose individual liability on a “person” who retaliates. California intermediate appellate courts have wrestled with the issue for years. However, in a decision split 4 to 3 among the justices, the California Supreme Court has finally decided the matter.
As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course. In October 2000, The Lodge hired a new beverage director, Jean Weiss. That is when the alleged problems began. Weiss and the kitchen manager developed a habit of telling jokes and making sexual remarks about women and employees known as “cart girls.” They also made fun of Jones’ sexual orientation. Jones complained about this treatment. Jones alleged that Weiss became hostile and threatened to fire Jones if he reported the matter to human resources. Jones did complaint to the HR manager and Weiss subsequently retaliated by writing him up for a laundry list of performance problems. Finally, Jones filed a DFEH complaint, resigned, and sued for sexual orientation discrimination against his employer and for retaliation against his employer and his supervisor, Weiss, individually.
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