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

 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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 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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 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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 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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 Enforcement of civil rights laws fell significantly during the Bush administration, according to a GAO report, as reported in the NY Times.  The non-partisan Government Accountability Office reports, for example, that the DOJ Civil Rights Division had filed 11 cases of sex or race harassment per year during the Clinton years, but only 6 per year during the Bush years.  Political appointees rejected the recommendations of career CRD lawyers to proceed further with cases for no apparent reason, according to the report.  The GAO audit was based on records from 2001-2007.  

The reduction in suits filed is all the more remarkable since EEOC filings have been rising each year for the past 20 years or more.  And, of course, we now know that the Bush administration often hired DOJ lawyers more for their political correctness than for their competence in civil rights. 

The Civil Rights Division is responsible for enforcing the civil rights statutes against state and local governments.  Whereas, the EEOC enforces the employment discrimination statutes against private employers.  Charges against state and local governments are still filed with the EEOC.  When the EEOC investigates a charge against state and local governments and finds evidence of discrimination, the EEOC refers the charge to the CRD for review.  

So, it is very remarkable that that when staff lawyers wanted to investigate a report of voter intimidation by a state government, the supervisor told them they could not contact the state government.  Say what?  That makes no sense.  I cannot imagine investigating harassment by a state government without actually talking to the state government.  That would be like investigating a murder without actually speaking with any of the murder suspects. 

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 Sometimes, management lawyers like to scare potential clients and sometimes, they are simply concerned.  But, either way, they over-state the effect EEOC has.  The EEOC means well, but they simply have too many cases to perform an actual investigation.  Each investigator carries 75-80 cases per investigator.  Their budget was cut way back in the 1980's and has seen little relief since.  One local San Antonio management lawyer actually suggests business owners should be wary of the EEOC.  ("The EEOC Is On The Hunt. Are You The Prey?")  Is he kidding??

He must understand, as we all do who deal with the EEOC, that the EEOC very rarely finds in favor the employee.  Unfortunately, the EEOC is often a paper tiger.  

I was in federal court once when a federal judge chastised a government lawyer for suggesting that since the EEOC did not find in favor of the employee, there was something wrong with the employee's case.  The judge fussed at the lawyer and told him the EEOC does little or nothing in almost every case they get.  The EEOC means well.  They really do want to do right by the employee and the employer.  But, unfortunately, they accomplish very little in 99 out of 100 cases. 

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 The new regulations for the Americans with Disabilities Act have been proposed.  The EEOC promulgates those regs and seeks public comment before making them final.  You can view the new regs at this website.  These regs are based on the ADA Amendments Act which was passed last year.  Among other changes, they list new impairments that will be considered to be a disability.  Many of these new disabilities are impairments that might be in remission or episodic.  They make it clear that working is now a major life activity, which had been in doubt.  And, of course, as required by the amendment, the regs state that an impairment will be looked at in its non-treated form or without mitigation.  See the good folks at Workplace Prof for more discussion.  

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 Eric Holder, the US Attorney General, is pushing the Dept. of Justice back to enforcing higher impact civil rights.  So says the New York Times.  The DOJ will focus more on high impact litigation, instead of the former administration's preference for individual cases.  DOJ can prosecute employment discrimination cases against state or local governments.  They can also prosecute employment discrimination cases against federal contractors.  

What this means is that DOJ's Office of Civil Rights will focus on pattern and practice sort of cases involving many employees, not just one or two.  That makes sense.  DOJ's resources are limited, just as the EEOC's resources are limited.  It makes more sense to focus on cases ainvolving more potential victims of discrimination.  

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 I wish I had a dollar for everytime this has happened here in San Antonio or especially across the country.  A person came to see me who did *not* receive his "right-to-sue letter" from the EEOC.  It was sent four months ago, but he just now found out about it.  He contacted the EEOC to get a status report and learned of his RTS letter.  Across the country, this happens many times, perhaps dozens, each year.  It has been a problem ever since some time in the 1970's when the EEOC stopped sending right-to-sue letters certified.  

Invariably, the Charging Party (the employee filing the complaint) responds to this problem by going to the EEOC and asking them to rescind the first RTS letter and issue a new one.  Most regional offices refuse. They point to their log that says they mailed the letter.  They offer nothing else.  The employee is stuck.

A right-to-sue letter is the street term for the Dismissal and Notice of Rights.  The EEOC sends these out as a conclusion to its supposed investigation.  The Notice notifies the Charging Party that s/he must file their lawsuit within 90 days.  If you miss the 90 days, your rights to file suit are waived forever.  Just a few days ago, I talked about how hard it can be to hire a lawyer for these cases.  It is a heck of a lot harder if your rights have already expired.....     

There may be ways around this.  That is, there are one or two other causes of action one may be able to file for particular types of discrimination.  But, darn, discrimination cases are difficult enough without having statute of limitation (deadline to file suit) issues floating around.  

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 Looking for a lawyer is never easy.  In the employment law business, many clients call me or other plaintiff employment lawyers at the last minute or close to the last minute.  Typically, potential plaintiffs do not start calling lawyers until they receive the "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC).  Most charging parties naively believe the EEOC will conduct a true investigation.  So, naturally, they do not start looking for lawyers until it is clear the EEOC will not resolve their issues.  

Unfortunately, in San Antonio, as in most jurisdictions, there are far more potential plaintiffs than there are lawyers.  It is hard to find a plaintiff employment lawyer.  Some potential plaintiffs get caught up in the referral from one personal injury lawyer to another, all of whom decline the case.  So, by the time the 90 deadline (statute of limitations) is about to expire, they still have not found a lawyer willing to accept their case.  By far, most potential plaintiffs need a lawyer willing to accept the case on contingency.  Not surprisingly, most potential plaintiffs have little money - they have lost their job quickly and unexpectedly.  

It is a system almost designed to frustrate lawsuits.  Indeed, that was the intent when the Civil Rights Act of 1964 was passed.  Many members of Congress hoped then that the EEOC would resolve most disputes.  In actuality, the EEOC resolves very little.  

I tell all potential clients, employment law or otherwise, they should speak to 2-3 lawyers before choosing one.  In the employment law area, I warn them they also need to see lawyers asap.  If I cannot accept their case, I provide three names of lawyers who might be able to help them.  Because the 90 days passes so quickly, I tell them they need to make appointments with all three right away.  otherwise, many potential clients make the mistake of seeing one lawyer before even making an appointment with the other two.  Making one appointment at a time takes too long.

It is a very significant challenge finding lawyers for an employment case, when you are an employee.  Do *not* waste your 90 days.  Heck, many clients do not even start looking until 30 days or so have passed.  They just do not realize how hard it can be to find a good plaintiff employment lawyer.  

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