Sexual Harassment Victims and the 'Reasonableness' Equation
June 28, 2007
When a supervisor is identified in a lawsuit as the alleged harasser, the employer may still avoid liability, under certain circumstances, as long as the harassment did not result in a 'tangible employment action.' To this end, most, if not all, employers are intimately familiar with the U.S. Supreme Court's <i>Faragher</i> and <i>Ellerth</i> decisions issued in 1998. Yet during the past eight years since the decisions, employers have faced the brunt of scrutiny from courts evaluating the application of this affirmative defense.
Supreme Court Limits Time Frame for Filing EEOC Claims
June 28, 2007
On May 29, the Supreme Court made it significantly easier for employers to defend against Title VII workplace discrimination claims that are based on long-ago decisions about salary and raises. By a 5-4 vote, the Court said that employees claiming they received disparate treatment based on gender or race must do so within 180 days of the original discriminatory action ' not within 180 days of their last paycheck. Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074.
The EEOC Is Thinking Big
June 28, 2007
Like most government agencies, however, the EEOC faces significant obstacles. Its budget is rigorously scrutinized each year. Staffing is down and the backlog of individual discrimination charges is up. Concerned members of Congress have petitioned key House appropriators for funding increases to boost the organization's frontline staffing. In light of all of this, newly appointed EEOC chair Naomi Earp has her work cut out for her. As Earp succinctly stated, '[o]ur challenge in 2007 is to make the most effective and efficient use of agency resources.' In other words, the EEOC must get more bang for its buck to remain effective. Enter the agency's new Systemic Discrimination Initiative. This two-part article discusses how EEOC plans to implement the Initiative.
Verdicts
May 29, 2007
Recent rulings of importance to you and your practice.
Rethinking Mandatory Arbitration of Employment Disputes
May 29, 2007
For a number of reasons discussed below, employers truly interested in turning back the clock on the 1991 amendments to Title VII would be well served to cease using mandatory arbitration agreements and instead have their employees execute waivers of their right to jury trials. It is juries that employers generally fear, not the courts themselves. Prior to the 1991 amendments, employers felt no imperative to exempt themselves from the civil justice system available in the courts. Thus, employers do not now need to flee the court system altogether in order to avoid jury trials, and there is certainly no reason for them to require their employees to agree to the wholesale replacement of court litigation with mandatory arbitration.
Court Certifies Class in Wal-Mart Case
May 29, 2007
On Feb. 6, 2007, the U.S. Court of Appeals for the Ninth Circuit, in a 2-1 decision, affirmed the district court's certification of a nationwide class of approximately 1.5 million current and former female employees who were employed at one or more of Wal-Mart's 3400 stores across the county. The court's ruling is significant due to the 'historic' nature of the plaintiffs' motion, which sought approval of 'the largest certified class in history,' and because many of the court's findings, if they stand, undoubtedly will form part of the judicial debate in other jurisdictions as to the appropriate standards in analyzing the availability of class certification in large employment discrimination cases.
GA High Court Ruling May Widen Workers' Comp Net
May 29, 2007
The Georgia Supreme Court issued a sharply divided ruling on March 26 that some say exposes employers to workers' compensation claims for just about anything their employees might do while traveling. <i>Ray Bell Construction Co. v. King</i>, S06G0891.
The Office Bully: Are You Liable?
May 29, 2007
Title VII and similar state statutes penalize employees who harass others based on their status in a protected class. But there are currently no federal or state laws outlawing simple 'bullying.' However, the absence of these statutes does not permit employers to ignore with impunity the 'equal opportunity jerk' in their offices simply because the conduct, while obnoxious, is directed at everyone. In <i>EEOC v. National Education Association ' Alaska ('NEA-Alaska')</i>, 422 F. 2d 840 (9th Cir. 2005), the Ninth Circuit extended Title VII's reach to prohibit a supervisor's unquestionably abusive, but non-gender-related conduct, because the behavior impacted female employees more harshly than their male counterparts. Even before this case, there existed a grassroots movement to outlaw workplace bullying.
