San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 The EEOC was hit with an award of $4.5 million in attorney's fees by a federal district court in Iowa.  That is, the EEOC was ordered to pay $4.5 million to the winning side in their lawsuit.  Workplace Prof has discussed the award.  Turns out the EEOC filed suit on behalf of one woman and unspecified other women in a sex harassment case.  The employer was a trucking company with many different locations.  So, as the lawsuit progressed, the EEOC added other female plaintiffs as they came forward.  The women were in different locations working for various male supervisors and co-workers.  The EEOC then turned the initial lawsuit into a "pattern and practice" case.  

Eventually, the district court dismissed claims on behalf of some women and issued summary judgment against the rest of the women.  So, the EEOC lost on all claims.  At some point, there were 67 women with claims still pending but into which claims the EEOC did not investigate and did not attempt conciliation.  Thus, the EEOC created a huge burden for the court and the employer, said the court.  

As Law Professor explains, its a case of darned if you, darned if you don't.  If you add the new clients, then you do have a pattern of sex harassment.  But, many women filed their charges after the lawsuit had been filed.  So, yes, it would appear to the employer that the lawsuit would never end, as new plaintiffs joined and deadlines were extended.  The EEOC could have chosen not to add the women to the one lawsuit, but then lawsuits would have been pending against the employer for years and years.  

Its a case also of the EEOC simply does not perform actual investigations 99 times out of 100.  Yet, they do have the power to complete investigations.  More is expected of them.  But, because they have so few investigators, they accomplish very little.  Most US district court judges are aware of the EEOC's limitations.  But, the EEOC's limitations essentially make more work for the federal court system. 

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 In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities.  Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims.  The EEOC represented persons with disabilities who had worked at Sears.  In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis.  This is the largest ADA settlement ever.  Some 235 Sears employees received an average of $26,300 each.  

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies.  See report.  Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation.  These policies are fairly common, since they supposedly avoid claims of discrimination.  The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically).  If all employees with health problems are treated the same, then there is no discrimination, correct? 

No.  Wrong, because the ADA requires an individualized assessment of a person's need.  Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation.  For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave.  As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now.  Many of us viewed such policies as unlawful.  Now, we know they are unlawful.  Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation. 

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 Judge Keller of the Court of Criminal Appeals is not out of hot water, yet.  The Court of Criminal Appeals, of course, is the highest court in Texas for criminal cases.  So, her case is significant.  See San Antonio Express News report.  The special counsel appointed in her case recommended that she suffer some sort of discipline.  The Special master, Judge Berchelmann, had previously found her conduct deficient but said Judge Keller did not break any laws.  Well, as the special counsel points out, Judge Berchelmann was very critical of her conduct.  In the legal world, we are not supposed to violate custom or even unwritten rules without a good reason.  Most lawyers would suffer some sort of discipline from the bar association for such conduct.  So, the special counsel recommends that she be disciplined simply for violating protocol. 

Judge Keller's latest reaction is concerning.  Her lawyer, "Chip" Babcock filed objections to Judge Berchelmann's report.  He referred to Berchelmann's comments that Judge Keller showed poor judgment in not being more helpful as a public servant.  Judge Berchelmann said her failure to keep the clerk's office open was "highly questionable" and that failure was a reason many in the legal community are not proud of her actions.  Mr. Babcock commented that Judge Keller is not part of some "popularity contest among Texas lawyers."    

Judge Keller and her lawyer apparently do not "get it."  Judge Berchelmann was explaining as respectfully as he could that Judge Keller violated known protocol.  She did not violate any statute or law.  But, for a lawyer or judge, violating known, expected protocol is also serious.  "Discipline" in the legal world can include everything from a private letter of reprimand to suspension of the right to practice law.  It is bad enough that she did what she did.  It is even worse that she does not appreciate the gravity of her actions.  Judge are public servants, after all.  More is expected of them,. not less. 

As I have discussed many times, the background and experiences of a judge do matter.  Judge Keller spent many years in the appellate section of the Harris County District Attorney's office before becoming a judge.  So, she has done little actual litigation in her career.  It shows.....

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 They are sometimes forbidden, but they occur all the same.  Work place romance always occurs, and perhaps surprisingly, often leads to marriage.  According to a recent San Antonio Express news article, more than 20% of office romances lead to marriage.  One wedding planner says 25% of his weddings started in the workplace.  The parties are not always employed by the same firm, but work helped them get together.  

But, the article reminds us, people need to be professional about the romance and not allow the romance from getting in the way of work.  Amen.  The best work policies in the world cannot prevent employees from becoming unprofessional.  Emloyees must do that themselves. 

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 Yes, you too can be hit with an award of attorney's fees.  In federal court, the losing party is almost always ordered to pay the other side's court costs.   And, yes, if the plaintiff has a "frivolous" case, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees.  See this report of a case in which the EEOC was ordered to pay $4.5 million in attorney's fees for the employer.  It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous.  And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.  

But, a plaintiff should always have enough evidence to avoid charges of frivolousness.  Always.  Factors that help show frivolous include poor investigation prior to suit.  The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit.  Everyone knows they usually do not conduct an actual investigation.  Unlike the private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation.  Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (ie, quick) judgment a close call.  if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then they really should not be filing suit. 

This time, the EEOC is found to have filed a very large lawsuit without enough evidence to overcome summary judgment.  Many federal court judges are predisposed to find against employees.  But, still to award attorney's fees at all, much less this large, suggests there may have been issues with the quality of the EEOC's evidence.  

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court.  That is a real risk in every discrimination lawsuit.  And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs.  Court costs can amount to $5,000 or more.  Think before you leap. 

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 We do this thing in litigation we call "depositions."  One side can ask questions of a key witness.  The testimony is recorded by a court reporter.  Depositions can be very dull.  They an also be very tense.  After all, if the parties got along, there would be no lawsuit.  Every client I have ever had was very stressed at being deposed for hours about their story.  Male and female clients have cried at various times during their depositions.   The atmosphere can become very tense.  So, when I see the following video clip, I am not surprised:  link.  This is an extreme deposition.  But, I am sure a good deal of stress preceded this deposition.  There are no judges present at a deposition.  But, as lawyers, we are supposed to carry on the deposition as if the testimony was being provided in court.  

This second video clip is more typical of depositions:  link.  The key in any deposition is to simply always be sure to tell the truth and never guess.  Some plaintiff employees feel the need to answer every question, even if the answer is a guess.  Do not guess.  There is no requirement that a witness remember every fact.  In fact, most witnesses do not recall every detail about a particular event.  Some witnesses feel the need to recall every date.  But, again, there is no requirement for a witness to recall every detail.  

In the world of litigation, "niceness" does count.  See this video clip in which a witness is supposedly tough in responding to a particular question.  The witness probably enjoyed some momentary satisfaction in expressing himself.  But, if that clip was shown to a jury, the jury would be far less impressed with his answer.  Juries do not appreciate "tit for tat."  On the contrary, juries respond to professional disagreement.  Everything a plaintiff or defendant do in a lawsuit is recorded and saved.  Every party needs to be sure they do nothing that could cost you a vote or two with the jury.  

Many clients press me to respond tit for tat when the other side takes a cheap shot of engages in unprofessional behavior.  We must resist the temptation to give in to our inner "Mongo."  As a well known litigation commentator, James McElhaney,  says, "Mongo not like.  Mongo want revenge!"  Mongo may gain brief satisfaction.  But, Mongo will probably lose the trial.  

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One would think that law firms would follow the law.  Well, sometimes, its is more the opposite.  A medium sized Ohio law firm is sued for wage violations in its office.  The firm pays salary to secretaries and never pays overtime.  Lazzaro Law Firm in Cleveland represents some 40 secretaries in a class action law suit filed in US district court.  The secretaries were classified as executive, even though none of them supervised other employees or performed any managerial work.  

Anthony Lazzaro, the plaintiffs' lawyer, said he doubted this particular firm is the only firm to commit this violation.  Lazzaro specializes in wage and hour cases.   As one lawyer commented, this is probably a failry common mistake in many businesses and law firms.  

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 A man has filed suit to obtain more time to complete the LSAT, the law school admission test.  See report.  The LSAT is critical to any admissions application for law school.  Title III of the Americans with Disabilities Act provides that an individual with a disability is entitlted to necessary accommodation.  Title III of the ADA applies to public accommodations, not to employment.  Matthew Scott Jones of Austin reports a diagnosis of ADHD and seeks additional time in which to complete the test.  He filed suit in the Western District of Texas.  

The Law School Admission Council, however, responds that Mr. Scott has not shown that his disability affects a major life activity.  That is, to qualify as a person with a disability, he must show that his disability affects a major life activity, such as walking, sleeping, eating or learning.  This is a frequent defense to such claims.  ADHD is one of those disabilities that is hard for some to understand.  All emotional disabilities carry that sort of liability.  They are simply hard to understand and, therefore, hard to litigate.  In such situations, the person with the disability must present "extra" good evidence that the requested accommodation is necessary.  

Litigation should not be like that.  A person with a legitimate disability should not carry an "extra" burden.  But, that is true of many areas of law.  The eventual audience is a jury of your peers.  Some of your peers do not understand some issues. Litigation is as much about education as it is about persuasion.  In fact, most test providers now know they must provide accommodation to persons who who are blind, cannot hear, etc. 

In this case, if Mr. Jones has not already provided medical documentation that he needs more time, he surely should present such evidence, now. 

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 In a recent survey, over half of low wage workers were found to not be receiving as much pay as they have earned.  According to a study by the National Employment Law Project, the average worker lost $58 per week in unpaid wages.  About one-fifth of workers were not paid the prevailing minimum wage, but that amount varied by industry.  53% of laundry workers to 2% of construction workers ere not paid the minimum wage.  The survey focused on New York, which has a high rate of union activity in the construction trades. 

Even more common was the failure to pay overtime wages (1.5 times the hourly wage) to workers.  About one-fourth were not paid their normal hourly wage or simply not paid overtime at all, said the report.  The survey included some undocumented workers.  The survey estimated that some 315,00 workers in New York are not paid what they earned. 

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 One of my first jobs was waiting on tables.  I envied the female waitresses because they often scored better tips simply because they were attractive.  The women knew that.  They generally accepted that fact and used it.  But, what if the employer told the waitresses, as some do to put on more makeup and look more feminine?  Would that be discrimination?  The argument would be that if stereotyping by gender itself is a form of discrimination.  In one recent case, a female clerk at a hotel was fired because she could not or would not dress up and put on that "Midwestern Girl look."   The clerk needed to look pretty, said her manager.   Was that discrimination based on gender?

The 8th Circuit Court of Appeals thought so and ruled in her favor.  Several circuits have adopted the reasoning that gender stereotyping is discrimination.  The 2-1 decision resulted in one dissent.  The dissenting judge said that hiring or firing based on physical attractiveness  is not discrimination unless it is pretext for putting women at a disadvantage.  One commentator agrees with the majority in this decision.  

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 Many non-lawyers expect lawyers to follow the law.  Not always.  In one recent lawsuit, for example, a major law form was sued by the EEOC for age discrimination.  The employee claims in this lawsuit that his law firm, Kelley Drye, provides in its partnership agreement that if a partner wishes to continue working past age 70, he must give up any equity (ie, partnership) interest in the firm.  The employee also claims his pay was reduced by $25,000 in 2009 after he filed his charge with the EEOC.  If true, this would be a strong lawsuit.  Age distinctions in a partnership agreement are relatively easy to prove.  Taking reprisal after filing a charge is also relatively easy to prove.  Kelley Drye is a one of the largest law firms in the country.  One would expect them to follow the law better than others. 

In a separate lawsuit, a black lawyer at another national law firm, Howrey, a global law firm, encountered racism in the Bruissels office.  Howrey had recruited Ms. Menns from another firm.  They sent her to the Brussels office.  At the Brussels office, she was removed from favorable assignments and even moved to a different floor of the building.  When she complained, she was told by management that she was so impressive that the white employees felt uncomfortable around her.  The Manager also told her that because she was the first black lawyer, the staff was not used to being forced to be in a "subordinate position" to a black person.  

She then contacted firm leaders in washington, D.C.  The diversity committee and the firm CEO met with her in June, 2009.  The young associate, Ms. Menns was fired that day.   Ooops.  Can anyone say retaliation?  A bad day for a for a firm that ranked No. 13 out of the top 200 grossing firms for commitment to diversity.  

Ms. Menns seeks $30 million in damages. 

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 You gotta love these stories, sometimes.  An employee goes back to her home country, the Phillipines with her husband for seven weeks.  They visit family, friends.  The husband is disabled.  They visit a miraculous Catholic church, known for its healing abilities.  The wife pushes her husband's wheel chair, comforts him, provides psychological counseling, helps with the luggage.  Visiting family and friends consume perhaps 40% of their time.  She is gone seven weeks and claims FMLA leave when she returns to the US.  The employer denies her claim.  She sues.  Who wins?  The employer.  Because, she was seeking a miracle, not medical treatment, said the court.  According to Mike Maslanka.  Too, the court added, a priest is not a medical care provider under the FMLA. 

In an opinion out of the Massachusetts district court, the judge said even if this trip constituted medical treatment, the FMLA does not cover a vacation trip with a sick spouse, even if treatment is an incidental part of that trip.  Tayag v. Lahey Clinic Hospital.  It is not clear to what extent, if any, caring for a sick spouse on a medically necessary trip would be covered under the FMLA.  Courts have found that providing indirect psychological support for an ill family member does qualify as caring under the FMLA.  But, in reading the opinion, it appears that the court was too troubled by the vacation aspect and the absence of actual medical treatment. 

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 English only rules always bring controversy, even at a bookstore in New Haven, Connecticut, very near Yale university.  The EEOC generally frowns on such rules, but allows them for "business necessity."   In this case, the book store is essentially claiming the customers are uncomfortable with employees speaking Spanish.  Does the comfort of customers count as a business necessity?  Maybe, according to Workplace Prof.  It depends on whether there is evidence of discriminatory motivations.  That means an employer seeking to implement such a policy needs to show something more than mere perception of what makes a customer happy.  

It would also help to show some safety issue.  ....  Safety at a bookstore?  Those paper cuts can be viscious.....

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