Friday, August 21, 2009
The former employees, two young men and one woman, were subjected to widespread and repeated sexual harassment by male and female managers and coworkers at a Lowe’s store in Longview, Wash., according to the EEOC. The sexually hostile workplace, which endured for more than six months, included physical and verbal abuse which culminated in one instance of sexual assault.
Among the many allegations in the litigation (Civ. No. CV08-331 JCC in U.S. District Court for the Western District of Washington), the EEOC said the female employee, age 21 at the time, was sexually assaulted by the 44-year-old male store manager in his office. Prior to the alleged assault, the EEOC said she was implicitly propositioned for sex by the manager related to a recent promotion she received. EEOC asserted that Lowe’s not only failed to take prompt remedial action to stop the sexual harassment, but also fired the three victims in the case.
“Corporate America should be on notice that sexual harassment and retaliation will not be tolerated by the EEOC,” said Commission Acting Chairman Stuart J. Ishimaru. “In this case, severe sex-based harassment of young workers was permitted to run rampant at one of the nation’s largest retailers. It is shocking that Lowe’s store managers actively engaged in, and even encouraged, such blatant unlawful conduct and then retaliated against the victims for objecting to it.”
In addition to the $1,720,000 in monetary relief for the three victims, the three-year consent decree resolving the case requires Lowe’s to provide comprehensive training to management, non-management, and human resources employees in all Washington and Oregon stores. Employees will be trained on what constitutes harassment and retaliation, and on their obligation not to harass or retaliate against any individual. Managers and supervisors will be trained on what constitutes harassment and retaliation, their obligation to provide a discrimination-free work environment, and their responsibilities if an employee complains about harassment or retaliation, or if they observe it. Human resources personnel will be trained on what constitutes harassment and retaliation, how to institute policies and practices to correct past discrimination and prevent future occurrences, informing complainants about the outcome of internal investigations, and the steps Lowe’s will take to assure a discrimination-free workplace in the future.
. . .
The EEOC consent decree covers 37 Lowe’s stores in Washington and 13 stores in Oregon. Cindy O’Hara, a senior trial attorney at the EEOC’s San Francisco District Office, led the federal government’s litigation efforts. Seattle private attorney Scott Blankenship intervened in the case on behalf on the three victims and served as co-lead counsel with the EEOC.
In Mike Selmi's terms, it's still Discrimination Seventies Style. Although the conduct was very egregious, and the plaintiffs were undoubtedly harmed, I would be curious to know more about the allegations specifically. Given that both men and a woman were harassed (it appears by different people), this appears on the surface to be the equal opportunity harassment problem, which the Seventh Circuit (at least) has held does not violate Title VII. If both men and women have to sleep with the bosses to keep their jobs, there is no different treatment "because of sex." Given that we use a "differences" model of discrimination, rather than a dominance model, equal opportunity harassment is problematic. Still, the retaliation problem alone is probably enough to warrant the settlement.
Particularly ironic, to me, is that Lowe's has long advertised that it intended to serve women more effectively, beginning to research female customer preferences in the early 1990s (see this Business Week article).
Hat tip: Victoria Herring
Update: ABC News gives more details here that suggest the harassment was not "equal opportunity" in the sense referred to above and that this was both a quid pro quo and hostile environment case:
[the two male plaintiffs], both in their 20s at the time, said department heads called them gay although they are heterosexual and subjected them to graphic sexual references. Davison said that when he complained to the store manager, he was told that he and Harrison should avoid spending time together.
The EEOC recently filed a suit against AT&T alleging age discrimination in its early retirement program. Apparently, after employees signed on to an early retirement plan AT&T refused to consider them for rehiring because they took part in the plan. According to the EEOC, this policy disproportionately affected older employees in violation of the ADEA. I guess we'll soon see what AT&T argues is their "reasonable factor other than age" for the no-rehire rule.
Hat Tip: Barry Hirsch
Thursday, August 20, 2009
Congratulations to our own Jeff Hirsch and Paul Secunda, both quoted in a Washington Post article about a federal judge's ruling that unpaid furloughs for union employees under contract violated the Contract Clause of the Constitution.
From the article,
the salaries were guaranteed under contract and that the county could have used other means to save money, including tapping its sizable reserve fund . . .
Williams ordered the county to repay employees the money saved by the furloughs, estimated by county officials at $17 million. A county spokesman said Tuesday that the expense would result in "massive layoffs" and cuts to services.
Amid a prolonged recession, a number of county and state governments across the country have implemented, or considered, furloughs to help close budget gaps. Regardless of whether it withstands appeal, experts said Tuesday's ruling will be embraced by labor groups as a model for combating the measures.
"Virtually every union in the country is probably already well aware of this decision," said Jeffrey Hirsch, an associate professor at the University of Tennessee College of Law who specializes in labor law. "You better believe they are going to wave this around."
The decision could be overturned, some legal experts said. The contract clause is infrequently cited in these types of labor cases, and modern readings of it have afforded governments more leeway in certain situations, said Paul M. Secunda, associate professor of law at Marquette University Law School.
"It hasn't been interpreted that broadly, at least in the modern era," Secunda said. "More recently . . . the Supreme Court has made clear that the contract clause doesn't obliterate the police power of the state. The state can take necessary action in order to respond to a public situation, a public crisis, in this case, the recession."
Secunda said the pending appeal will limit the ruling's effect in other courts, as some judges would want to let the process unfold before lending it weight. Although a court might not deem furloughs illegal based on the ruling, a local judge might be more open to issuing an injunction to stave them off until the U.S Court of Appeals for the Fourth Circuit rules on the Prince George's case, experts said.
Jeff also was quoted about this case on WAMU, a D.C. NPR affiliate. Great job, guys!
Wednesday, August 19, 2009
NBC New York's news of the weird reports on a recent survey done by Careerbuilder.com of hiring managers across the country, asking about the top 20 strangest complaints they've received from employees.
The answers are often what you might expect, ranging from criticism of personal appearance to obnoxious idiosyncracies. These were ranked the best, though:
- Employee suspected co-worker was a pimp
- Employee smells like road ramps
- Employee's aura is wrong
- Employee's body is magnetic and keeps de-activating my magnetic access card
- Co-Worker reminded employee too much of Bambi
- Employee is so polite, it's infuriating
- Employee is trying to poison me
- Employee is personally responsible for the federally-mandated tax increase
- Employee was annoyed the company didn't provide a place for naps during break time
- Employee only wears slippers or socks at work
- Employee breathes too loudly
- Employee wore pajamas to work
- Employee spends too much time caring for stray cats around the building
- 8 a.m. is too early to get up for work
But of the 20 complaint-worthy infractions noted by Careerbuilder, perhaps none is so commonplace and universally despised upon as this:
"Employee eats all the good cookies".
In a recent decision, Van Ansdayle v. International Game Technology, the Ninth Circuit held that in-house attorneys are permitted to make Sarbanes-Oxley retaliatory discharge claims against their former employers. In so holding, the court rejected the employer's argument that issues over confidentiality and attorney-client privilege should bar such claims, as is the case under Illinois (the locus of the dispute) law. The lawyers involved--a husband and wife--were fired after raising patent issues to IGT's general counsel. Those concerns threatened to devalue a pending merger.
The Ninth Circuit acknowledged the Illinois precedent, but noted nothing in SOX indicated that Congress intended to bar such claims and that Title VII and the ADEA both allow suits by in-house counsel. The court also rejected IGT's confidentiality concern because the district court could manage the case while minimizing harmful disclosures.
Hat Tip: Alex Long
Kathleen Kim (Loyola Los Angeles) has just posted on SSRN her article (forthcoming U. Chicago Legal Forum) The Trafficked Worker as Private Attorney General: A Model for Enforcing the Civil Rights of Undocumented Workers. Here's the abstract:
In theory, undocumented workers victimized by exploitive employment practices may act as private attorneys general in the enforcement of workplace harms and may sue their employers under many of the same civil rights laws that protect citizen workers. Regardless of whether workers are foreign-born, the substantive guarantees of our civil rights laws protect all workers against exploitation. The Thirteenth Amendment guarantees freedom from slavery and involuntary servitude, the Equal Protection Clause of the Fourteenth Amendment provides all individuals with equal protection of the laws, and various civil rights statutes, most prominently the Civil Rights Act of 1964, prohibit discrimination in a variety of settings. In practice, however, the goals of immigration enforcement take precedence over the individual rights of undocumented workers. These workers are often deported and deprived of access to civil courts. As a result, workplace violations are not prosecuted and basic workplace protections are undermined. Consequently, both the workers and the nation suffer deterioration in civil rights.
In the human trafficking context, undocumented workers forced to labor in exploitive conditions may sue their traffickers and may also obtain immigration status pursuant to the Trafficking Victims Protection Act, thereby ameliorating the divergent goals of immigration enforcement and civil rights laws that adversely impact other undocumented workers. This Article examines the ways in which the trafficked plaintiff fulfills the role of private attorney general by not only obtaining individual relief, but by also vindicating important societal interests in the advancement of constitutional and civil rights. A comparative analysis of litigation in the undocumented worker context demonstrates similar individual and societal benefits. This analysis supports an additional policy objective: The trafficked worker as private attorney general represents a model of civil rights enforcement. If replicated by other undocumented victims of workplace abuse, this model would allow these victims, unimpeded by restrictive immigration laws, to advance civil rights imperatives.
Tuesday, August 18, 2009
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has announced that Gerber Products Company has agreed to settle findings of hiring discrimination against 1,912 rejected minority and female applicants for entry-level positions. From the announcement,
During a scheduled compliance evaluation of Gerber Products in Fort Smith [Arkansas], OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber's use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions. The company is headquartered in Florham Park, N.J.
Under the terms of the conciliation agreement, Gerber will not only pay 1,912 minority and female applicants $900,000 in back pay and interest, but will provide 61 entry-level positions, 11 of whom have already been hired. The company has also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and immediately correct any discriminatory practice. In addition, Gerber will ensure compliance with Executive Order 11246 recordkeeping requirements.
Some lessons to be taken from this are that the OFCCP can be a very effective enforcer of employment discrimination laws for recipients of federal funds in part because serious strings can be attached to that federal funding, and when information reporting and auditing is one of those strings, the OFCCP gains access to information about hiring practices and their effects that individual employees and the EEOC don't have. This is also a reminder that all kinds of companies receive federal funds and can be regulated by the OFCCP as a result. Another lesson is that disparate impact enforcement appears to be alive and well in the post-Ricci world, at least as a matter of federal policy.
Hat Tip: Patricia Schaeffer
We've long noted the overlap of business costs, employee benefits, and health coverage in the U.S. Starbucks is now facing employee protests over this issue after the company increased the employee contributions required for health insurance coverage. This increase led newly unionized employees (coincidence? I think not) to protest outside Starbuck's Manhattan regional headquarters. According to the New York Times:
Saying it spends nearly as much on health insurance for its workers as it does on coffee, Starbucks recently announced that it would increase the amount that eligible employees need to contribute to keep their health care coverage. On Monday evening, newly unionized Starbucks baristas gathered at the company’s regional headquarters in Manhattan to protest the move, which they said would effectively double the cost of their health insurance.
The change would increase the cost of the most basic plan to $20 from $12.50 each paycheck and the annual sign-up cost to $200 from $100, according to Liberte Locke, a barista who has been active in unionization efforts with the Industrial Workers of the World. “If they’re going to charge us this amount, our pay needs to increase,” she said. She added that a growing number of employees were ineligible for the health insurance because they work fewer than 20 hours a week.
The BBC, via Above the Law, reports that an employment tribunal awarded U.K. law student Riam Dean £8000 in compensation for having relegated her to the stockroom instead of the sales floor on account of her prosthetic arm.
Anne Marie Lofaso (West Virginia) has just posted on SSRN her article (forthcoming Maine L. Rev.) The Persistence of Union Repression in an Era of Recognition. Here's an excerpt of the abstract:
This article uses examples of government action to show how these working class rights have been diminished. In the initial section entitled The Vanishing Employee, I focus on two areas: the Bush II Board’s willingness to read three subclasses of employees (salts, students, and the severely disabled) out of the NLRA; and the willingness of all three branches of government to broaden the statutory exemptions (Congress’s Taft-Hartley amendments, which created the supervisory exemption; the Supreme Court’s Kentucky River decision, which broadens that exemption; and the Bush II Board’s Oakwood Trilogy, which further broaden that exemption). In the following section, I illustrate the shrinking contours of Section 7 with three examples. First, I examine the extent to which the Supreme Court’s Lechmere/Babcock doctrine—employers are privileged to post their property against nonemployee union organizers—and the Bush II Board’s recent treatment of salts work together to curtail employees’ right to self-organization. I then review the oscillating history of employees’ right to insist upon a witness during an investigatory meeting, arguing that these Weingarten rights are essential to protecting the nonunionized workplace. I then examine the Bush II Board’s Register Guard decision to discuss the extent to which employees’ right to self-organization has been curtailed by the employers’ discriminatory control over e-mail access. I round out the discussion with a review of the case law that has diluted the right to strike, has weakened the NLRA’s remedial framework, and has undermined the Board’s long-standing doctrine of voluntary recognition.
I conclude with several observations and recommendations. The benefits of the NLRA’s formal recognition of unions have proven fleeting: The protective power of the NLRA has been eroded by legislative amendment, judicial “amendment,” and even by the Board itself—the very agency tasked by Congress with protecting workers’ rights. The trend reveals three branches of government willing to erode the protections provided for workers using the very law that was intended to safeguard those protections. But to re-empower workers, more than simple legal reform is necessary. Educating the public about the needs of workers, coupled with fundamental reform of the labor movement especially at the level of political and economic strategizing, are needed.
Monday, August 17, 2009
The Supreme Court has just granted cert. in Jones v. Harris Associates, a case in which the plaintiffs are mutual fund investors who allege that the fund overpaid its investment adviser. Although not strictly an employment case, the decision could have an impact on executive salaries if the door is opened wide enough for investor challenges. Either way, it should be interesting to follow as it reviews a Seventh Circuit decision in which JudgesEasterbrook and Posner were on opposite sides of a debate about the private market's ability to regulate fees.
The New York Times has an interesting article on the unscrupulous practices of some job search firms that charge high fees, promise access to "hidden" or "unpublished" jobs, and deliver little in return. From the article,
“Career management” or “career marketing” companies . . . which charge large up-front fees, are easy to stumble upon on employment Web sites. Often . . . they contact job seekers after they post their résumés. They usually focus on professionals and managers, massaging their egos by boasting that they accept only the most marketable candidates. Some companies place advertisements that appear to be job postings but instead are lures for sales pitches.
The offices of several state attorneys general said they had fielded complaints about career counseling companies during this recession.
. . .
Many of the companies do little more than provide ordinary job search assistance: overhauling résumés and cover letters, giving advice on how to network and helping sort through public job listings. While this can be a legitimate and useful service, much of it can be obtained more cheaply.
The article describes the experiences of a couple of people who paid thousands of dollars and received very little help, and none of the advertised "inside track" information. There used to be state laws that targeted this kind of conduct, but many have been altered to allow temp agencies to do business. For a good historical view of these practices, you might read Harris Freeman & George Gonos, Taming the Employment Sharks: The Case for Regulating Profit-Driven Labor Market Intermediaries in High Mobility Labor Markets. The final version will be coming out later this year on the second issue of Volume 13 of the peer-reviewed Employee Rights Employment Policy Journal, and a draft can be found on SSRN here.
The full preliminary conference program schedule for LatCrit XIV and the LatCrit/SALT New Faculty Development Workshop, hosted by American University Washington College of Law Oct. 1-4, has been released. It is here: www.tinyurl.com/LatCritXIV-program
From the announcement,
The conference theme narrative and initial call for papers/panels are here, although the submission deadline has long past and, absent cancellations, there will be no more panel and work-in-progress slots available (with the exception of commentators for works-in-progress colloquia): www.tinyurl.com/LatCritXIV-call
Hotel and conference registration materials are here: www.tinyurl.com/LatCritXIV-registration
Everyone I know who has gone to this conference in the past has had a fabulous experience. And as the Legal Profession Blog notes "the program for development of new and junior faculty, cosponsored by SALT and the University of Denver, includ[es] an eye-opening mock 'Job Talk' for law teaching aspirants."
- Leticia M. Saucedo (left), National Origin, Immigrants, and the Workplace: The Employment Cases in Latinos and the Law and the Advocates' Perspective, 12 Harv. Latino L. Rev. 53 (2009).
- JoNel Newman (center), Will Teachers Shed Their First Amendment Rights at the Schoolhouse Gate? The Eleventh Circuit's Post-Garcetti Jurisprudence, 63 U. Miami L. Rev. 761 (2009).
- Rachel Santoro, Narrowing the Cat's Paw: An Argument for a Uniform Subordinate Bias Liability Standard, 11 U. Pa. J. Bus. L. 823 (2009).
- Arissa Meyer (right), Title VII - Eighth Circuit Holds That "Reasonable Accommodation" Language Does Not Require Employers to Eliminate Conflict Between Work and Religious Beliefs, 62 SMU L. Rev. 829 (2009).
Sunday, August 16, 2009
Dayna B. Royal (Cumberland; photo left) has just posted on SSRN her article Jon & Kate (photo right) Plus the State: Why Congress Should Protect Children in Reality Programming. Here's the abstract:
To this end, Part II identifies the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children and to society. Part III surveys the current legal landscape addressing the federal law on point - the Fair Labor Standards Act - and then numerous state laws, focusing heavily on those states with historic ties to the entertainment industry. Part III concludes that the current legal regime is inept at remedying this emerging problem and argues that state law is not the best vehicle to do so. Part IV posits that a national solution is necessary, canvasses the options, and then argues that a federal statute providing a sliding scale of prohibition is the best solution. Finally, Part V maintains that such a statute will not violate the Constitution because it is within Congress’s Commerce Clause authority and does not violate either parents’ due process rights or the First Amendment.
All the nation’s children deserve to live as children and not as spectacles for public amusement. A federal statute regulating employment in reality programming would prevent the sale of children’s privacy to the highest bidder.
- Lucian A. Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs and Lucky Directors (197).
- Guido A. Ferrarini, Niamh Moloney, & Maria-Cristina Ungureanu, Understanding Directors' Pay in Europe: A Comparative and Empirical Analysis (190).
- Michael S. Lynk, Labour Law and the New Inequality (130).
- Thomas D. Jeitschko (left) & Byung-Cheol Kim (right), Signaling, Learning and Screening Prior to Trial: A Theory of Preliminary Injunctions (111).
- Charles A. Sullivan, Raising the Dead? The Lilly Ledbetter Fair Pay Act (94).
- David Maber & Fabrizio Ferri, Say on Pay Votes and CEO Compensation: Evidence from the UK (94).
- Mathias M. Siems & Simon Deakin, Comparative Law and Finance: Past, Present and Future Research (87).
- Daniel Shaviro, The 2008-09 Financial Crisis: Implications for Income Tax Reform (81).
- Robert S. Chang & Adrienne D. Davis, Making Up is Hard to Do: Race/Gender/Sexual Orientation in the Law School Classroom (80).
- Claire Kilpatrick, British Jobs for British Workers? UK Industrial Action and Free Movement of Services in EU Law (65).