China's IP Is Not Entirely Out of the Haze Yet
March 01, 2004
When China first bid for WTO membership, its intellectual property-related laws were one of the main obstacles to its joining the organization, as WTO membership required China to comply with the Agreement on Trade-Related Intellectual Property Rights (TRIPS). In its WTO accession documents, China declared its commitment to bringing its legal system in conformity with the TRIPS Agreement. Since then, China has come a long way. Nevertheless, not all problems have been resolved.
Does Constructive Discharge Bar an Employer's Defense?
February 09, 2004
In last month's <i>Employment Law Strategist</i>, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called <i>Ellerth/Faragher</i> affirmative defense in constructive discharge cases. We began with an analysis of <i>Suders v. Easton</i>, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in <i>Ellerth</i> and <i>Faragher</i>. Granting <i>certiorari</i> to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.
Lump Sum Damages: What Happens to Employers?
February 09, 2004
More often than not, it is the defendant who brings the post-trial motions that follow a jury finding that an employer is liable for employment discrimination. Those motions normally seek, among other things, a new trial, a judicial determination that the evidence did not support the verdict, and/or a remittitur of the damages awarded. Less common are substantive motions brought by the victorious plaintiff, such as a motion for additur, where a damages award larger than that assessed by the jury is sought. That may soon change, as victims of discrimination, bolstered by a new trial court decision from New Jersey, may seek to hold their employer responsible for any increased taxes that he or she may have to pay as a result of winning at trial. Such a tactic has the potential to increase greatly -- perhaps into six figures -- the amount of damages for which the employer found to have discriminated may be liable.
ADA Denial of Rehire
February 09, 2004
Recently, a unanimous, seven-member, United States Supreme Court held that the only relevant question on summary judgment in an action alleging disparate treatment under the American with Disabilities Act (ADA) was whether there was sufficient evidence from which a jury could conclude that an employer made its decision based on an employee's status as disabled, notwithstanding the employer's proffered explanation. <i>Raytheon Company v. Hernandez</i>, 504 US __ , 124 S.Ct. 513 (2003). The Court further held that the employer's unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules was a legitimate, non-discriminatory reason under the ADA. This case briefing discusses the Court's opinion in <i>Raytheon</i>, and the decision's implications for employers.
Breaking News...
January 14, 2004
An audit by Wal-Mart of 128 stores and over 25,000 employees has reportedly revealed thousands of labor violations at the Arkansas-based retailing chain, including 1371 violations of child labor laws, 60,000 missed breaks and16,000 skipped meal times, primarily in violation of state labor laws. The July, 2000 internal audit was apparently distributed to high-level company executives but has now come to public attention through lawsuits filed against the company, which employs more than 1.2 million U.S. workers.
Massachusetts and Same-Sex Marriages: An Update
January 01, 2004
As reported on these pages late last year, on Nov. 18, 2003, the Massachusetts Supreme Judicial Court decided <i>Goodridge v. Department of Public Health</i>, holding, in a 4-3 decision, that the denial of marriage licenses to same-sex couples in the Commonwealth of Massachusetts violated the state's constitution.
<i>Ellerth/Faragher</i> Affirmative Action Defense: Resolving the Conflict
January 01, 2004
On Dec. 1, 2003, the United States Supreme Court agreed to consider whether a constructive discharge caused by a supervisor's sexual harassment constitutes a tangible employment action that bars an employer from raising the defense that the employee unreasonably failed to employ the employer's procedures for preventing and correcting such conduct. In granting the Pennsylvania State Police's request for review from the United States Court of Appeals for the Third Circuit's decision in <i>Suders v. Easton</i>, 325 F.3d 432 (3d Cir. 2003), the Supreme Court has the opportunity to resolve a growing conflict among the circuit courts regarding the availability of the so-called <i>Ellerth/Faragher</i> affirmative defense in constructive discharge cases.
