Autism is becoming more and more common. Folks disagree about why, but all agree we see more and more of the diagnosis. The remarkable thing about persons with autism is they can display brilliance in a wide variety of subjects. Yet, many employers resist hiring persons with autism. The employer who do hire them really appreciate them. Microsoft is one. They hired Christopher with a degree in computer science. They wanted to hire persons with a diagnosis of autism. As one of the hiring managers mentioned, persons with autism are one of the great un-tapped niches in hiring. But, Jenny Lay-Lurie herself also has an impairment. She is deaf.

Ms. Lay-Lurie helped create a different sort of hiring process, one that relies less on the traditional job interview. Job interviews are hard for persons with autism. One symptom of autism is a lack of social skills. For a orson with limited social skills, job interviews reveal little about the person. So, she helped create a hiring program that relies on team building exercises and a vetting process that lasts weeks.

Christopher was hired soon after going through that process. He was not self-concious while performing a set of tasks, rather than the traditional interview. Christopher’s manager was soon impressed with his ability to think outside the box. That is no small skill in the software world.

In April, 2017, 50 large corporations came together to determine how to bring more persons with autism into the work force. The meeting was hosted at SAP in Silicon Valley, California. SAP started its Autism at Work program five years ago and has hired some 128 persons on the spectrum since then. SAP has experienced a 90% retention rate for its employees with autism. One technique that worked for SAP was to assign a onsite mentor for each person on the spectrum. That person has provided the one-on-one coaching persons with autism need. Microsoft also employs mentors for each person on the spectrum.

See CBS news report.

We see more and more service animals. Setvice animals have become a critical tool in dealing with the PTSD suffered by many soldiers. Many public places do not understand the rules regarding service animals. In one recent instance, American Airlines refused to allow a veteran on board with her service dog. Lisa McCombs of Mississippi filed suit in 2016 and just recently settled her case. A veteran of both Iraq and Afghanistan, Ms. McCombs, like most veterans with PTSDS, relies on the service dog to provide trained skills. Those skills include shielding Ms. McCombs from other persons when she is feeling trauma and to moving closer to the veteran when she is feeling stress. Those are not small skills when a person suffers from PTSD.

Ms. MCombs was not allowed to board with her service dog, despite having documentation that her dog, Jake, was a trained animal. The AA clerk upon seeing the dog, said, “Ummmmm are you trying to fly with that?”

Ms. McCombs apparently sued under the Air Carrier Access Act. American Airlines argued that the ACA Act does not allow a private right of action. See Task & Purpose report.

Regulations define a service animal as one that has received specialized training to perform skills it would not otherwise possess. It helps that the service animal display some rig or vest to indicate it is a service animal.

The district judge in Gulfport, Mississippi rejected the Airlines’ motion to dismiss. It also allowed the Plaintiff to amend the complaint to add other veterans who were also denied boarding by American Airlines with their service animals. See Miami Herald report. One of the other female veterans had a full blown panic attack after some American Airlines employees surrounded her and asked her why she needed a dog since she was not blind.

The requirements of the ADA are not well known,. But, in each the instances mentioned in the lawsuit, the veteran called ahead and had his/her papers with them. They did their part to educate AA employees. The Airline needs to do its part. On a personal level, if that happened while I was about, I would find it very difficult to not get in someone’s face.

There are a few law firms that specialize in representing employers in employment cases. A very few of those firms operate nationally. One such law firm is Ogletree, Deakins, Nash, Smoak and Stewart, PC. Ogletree Deakins represents employers everyday regarding employment matters. They have offices across the country. Yet, that firm is the defendant in a $300 million claiming the law firm discriminates against female partners in regard to pay. Shareholder Dawn Knepper, once a resident of San Antonio, accused the law firm of substantial pay disparities when she moved to California and found herself paid considerably less than her male counterparts.

According to the lawsuit, the firm does not give female partners credit for the business they bring in, does not give them the same opportunities to develop, and does not select women to represent the firm at business meetings as much as the firm chooses male partners. The lawsuit notes that pay is based on a vote of the equity shareholders, 80% of whom are male. The suit seeks $100 million in lost pay, $100 million in compensatory damages and $100 million in punitive damages. See ABA Bar Journal report.

A separate suit seeks a declaratory judgment that Ms. Knepper is not limited by an arbitration agreement she signed with the law firm. Ahhh yes, those pesky arbitration agreements.

Many federal judges avoid employment cases partly because they involve so much detail. But, it is in those details that a circumstantial case is won or lost. And, most employment cases depend on circumstantial evidence. in Robinson v. Jackson State, No. 16-60760 (5th Cir. 12/4/2017) (unpublished), the Fifth Circuit dived into those details and provided some helpful lessons. The lower court granted a motion JNOV (not withstanding the verdict) after the close of jury trial. That means the judge overturned the jury verdict.

Fredrick Robinson noticed a supervisor, Dr. Fuller, eyeing a secretary in a provocative way. Dr. Fuller, the new athletic director, fired the secretary. The athletic director then fired Mr. Robinson and another employee about  month after they were both interviewed by the EEOC. Robinson and the other employee were the only employees to corroborate the secretary’s allegations.

At trial, Dr. Fuller did not admit to knowing that Robinson had been interviewed by the EEOC. The school attorney who was present for the EEOC interviews denied telling Dr. Fuller about the witnesses and who they were. So, it was a classic case. The official who terminated Mr. Robinson denied she knew Mr. Robinson assisted with the EEOC investigation. If the supervisor does not know you assisted the EEOC, then that supervisor cannot be guilty of reprisal because you assisted the EEOC. So, Mr. Robinson’s case hinged on what Dr. Fuller knew and when she knew it.  The jury found in favor of Plaintiff Robinson and awarded $7,100 in lost pay, $25,000 in compensatory damages, and $75,000 in punitive damages.

The district judge then granted JNOV on that issue, finding there was no evidence that Dr. Fuller knew about the participation in the EEOC process before she decided to fire the two employees.

On appeal, the Fifth Circuit noted the timing. Robinson and the other witness were both fired one month after testifying to the EEOC. Jackson State attorneys knew about Robinson and the other worker. And, the purported reasons for firing Robinson were weak. Mr. Robinson was a trainer. The department was already below the require number of trainers when she fired Mr. Robinson. Dr. Fuller’s explanation shifted over time. And, Dr. Fuller did not comply with procedures for terminating an employee.

In reviewing the matter, the higher court noted that the McDonnell-Douglas burden shifting paradigms did not apply, once the jury heard the case. The court noted that in a relation case, it is important to show the decision maker had knowledge of the opposition to discrimination conduct. If Dr. Fuller truly did not know Mr. Robinson had spoken its the EEOC, then her action is firing the trainer could not have been retaliation. The plaintiff argued that the court should accept a “general; corporate knowledge” test as used in the Second Circuit. The Fifth Circuit, however, declined, noting that the circuit had always required “actual” knowledge by the decision maker. The court noted that the plaintiff provided some evidence of the Dr. Fuller’s knowledge. He attitude toward the trainer changed dramatically after he spoke with the EEOC. Prior to the EEOC interviews, the president of the university has explicitly threatened anyone who opposed Dr. Fuller with termination. The school’s two lawyers were aware of the interviews. Dr. Fuller met with both attorneys prior to her own interview with the EEOC and she continued to meet with them afterward. It wasps aid the court, not unreasonable for the jury to infer that Dr. Fuller knew about Robinson’s testimony.

The court noted rightly that it relied on Robinson’s testimony that Dr. Fuller started avoiding him after the interview with the EEOC. But, his testimony that he believed she was aware of his interview solely because of that change toward him was speculation. That is, his observation of her behavior was admissible. But, his conclusions about that behavior was not admissible.

The parties disputed whether the attorney’s knowledge should be imputed to the school. The court would not go there. But, it did note  in a footnote that there was sufficient evidence to infer knowledge on the art of Dr. Fuller from the school’s attorneys.

The court makes an important point that a change in attitude is relevant. But, for the plaintiff to infer the motive for that change is speculation on his part. When the jury makes the inference, that is traditional fact-finding. It is a shame this decision is not published, because that is an important point, rarely made. See the decision here.

According to a May 28, 2017 article in the Austin American-Statesman, members of Congress, including Lloyd Doggett, asked the Department of Labor to change rules that shield frequent violators of USERRA. USERRA is the law that protects Guardsmen, Reservists and other service members from discrimination in their civilian jobs. Some employers just do not get it. They do discriminate frequently. Dept. of Labor knows who they are because DOL processes with administrative complaints filed by the Reservists.

In 2016, the House Veterans Affairs Committee opened an inquiry into the ,matter after the newspaper reported several employers in Texas frequently discriminated against Reserve members in their civilian jobs. DOL initially agreed to change their rules, but have not cooperated since. In Texas, some 16 different employers have had multiple complaints filed which DOL investigated. Those investigations resulted in a settlement or a finding of discrimination.

In 2016, the American-Statesman submitted FOIA requests to DOL seeking the names of the employers. But, the DOL refused, saying they need to protect the privacy of the service member. Lloyd Doggett met with DOL officials in December, 2016. They told him they feared that outing these employers would cause them to hire veterans less.

A review by the newspaper suggests some 40% of lawsuit filed based on USERRA are against state and federal agencies. Texas lead the nation in 2015 with 230 USERRA complaints filed with DOL.

The Trump administration has reportedly instructed departments to refuse requests from Democratic members of Congress, further obstructing Rep. Doggett’s efforts to seek transparency. See Austin American-Statesman report.

One would expect that a case involving direct evidence of age bias would not be granted summary judgment. Yet, that is what happened in Lopez v. Exxon Mobil Development Co., No. 14-16-00826, 2017 WL 4018359 (Tex.App. Houston 9/12/2017). Plaintiff David Lopez worked for Exxon for over ten years when he was terminated in 2014. He was 56 years old at the time. He worked at various positions, mostly in management. He was told he would have to move from Texas to Canada. He complained about the assignment and the lack of a housing waiver. Not having a housing waiver, his family would have to move with him. Plaintiff Lopez spoke with his senior supervisor, Don Moe, about the transfer. Mr. Moe said higher-ups were concerned that someone of Lopez’ age was complaining about a move. He said older guys should just shut up. It was clear, said Mr. Moe, that Lopez was not on the “fast track.”

Plaintiff Lopez did not mention the ageist remarks for another six months. He finally mentioned them to his functional supervisor, Irfan Khan. Mr. Lopez said his transfer was discriminatory. The employee said Mr. Khan said he would look into the matter. Mr. Lopez received a poor evaluation after complaining. He was placed on a PIP. Mr. Khan and two other supervisors decided to terminate Mr. Lopez. The two other managers said Mr.Lopez was “old and stubborn.”The employee filed suit based on the Texas Commission on Human Rights Act. Exxon moved for summary judgment, which was granted.

On appeal, the court of appeals claimed the “old and stubborn” comment was not direct evidence. Without explaining its reasoning, the court simply said the court would have to draw an inference or make an assumption to determine whether the comment indicated motive. If the comment was direct evidence, then no inference or presumption would be necessary to see its discriminatory bias.

Reviewing the case as one of circumstantial proof, the court noted that Mr. Lopez had been ranked in the bottom third of his peers for the last four or five years. Acknowledging the many good performance reviews received by the plaintiff, the court of appeals simply found his testimony conclusory and subjective. Yet, at the same time the court made that observation that Lopez was describing the subjective evaluation process that resulted in his PIP. It then remarkably concluded that showing good performance evaluations simply shows the plaintiff might show the employer provided a false reason – that is not competent summary judgment evidence, claimed the court. Of course, that flies in the face of Reeves v, Sanderson Plumbing Products, 530 U.S. 133, 147 (2000), which expressly had that evidence of falsity of the reasons alone may support a finding of improper motive. The court actually accused the plaintiff of drawing a subjective conclusion when he argued that Exxon’s process was “highly subjective.” The court apparently never heard the phrase “what is good for the goose is good for the gander.”

The Fourteenth Court has imposed a doctrine known as pretext plus. It required the plaintiff to show more than pretext. It has held the plaintiff to a different standard than that set for the employer. The employer may engage in a subjective process, but the employee may not. Too, it has engaged in fact-finding. It finds the ageist remarks by Moe, and others to be too distant in time. That should be a jury finding. The jury should determine whether six months was too long. Certainly, the comments about “old and stubborn” were not distant in time. This is a motion for summary judgment, not a trial. Summary judgment exists to test the evidence, not to resolve it. See the decision here.

The Fourteenth Court has issued a poorly thought decision. It is decisions like this that have come to undermine our jury system. Decisions like this take away from the jury assessments which serve as bedrock for our judicial system.

What is sex harassment? Whatever it is, it must be severe or pervasive. In Royal v. CC&R Tres Arboles, No. 12-11022 (5th Cir. 11/21/2013), the Fifth Circuit found the following acts amounted to sex harassment: standing over and behind a woman and smelling her hair several times a day; one man sat in front of the woman with a visible erection and stared at her, saying nothing; smelling women as they emerge from the bathroom. The woman told the male co-workers she did not appreciate the smelling, but the actions continued. The woman reported the conduct to management, who ignored her concerns. The appellate court found that amounted to sexual harassment, but the lower court did not. See my prior post about that case here.

Now, the office of Congressman Blake Farenthold had the following occurrences: staff drinking liquor at work and discussed sex tapes, strip clubs and which anchors on Fox news had breast implants, lobbyists who tested shots of their genitals. A Congressman’s aide wanted to post a photo of a staff member attending an opening of a Twin peaks restaurant/bar ( a Hooter like chain) on Facebook as a promotion of Text business. Two female staffers lodged sex harassment complaints. See Politico report. Rep. Farenthold had an outside agency come investigate these incidents, as he should have. The investigation did not agree these incidents revealed sexual bias. But, the Congressman and the office did undergo sensitivity training.

Yes, in some courts, that conduct would indeed amount to sexual harassment. If there was also some otherwise unexplained personnel decisions that favored male employees. In other courts, it might not be severe or pervasive enough.

And, of course, before these two women complained about the sex talk at work, another female staffer, Lauren Greene, filed a lawsuit against Congressman Farenthold, which he settled for $84,000. Apparently, that training on sexual harassment came too late to avoid a lawsuit. The Congressman says he did not sexually harass Lauren Greene. But, people do not pay $84,000 to settle a claim that has no evidence.

And, look what happened in the Sanders v. Christus Santa Rosa case. In that case, the Western District of Texas found the incidents of alleged sex harassment was severe or pervasive. It rejected the employer’s argument that those incidents were just flirting or sexual bantering. It denied the employer’s motion for summary judgment. Yet, at trial the jury found for the employer. See my post about that case here.

Sometimes, what constitutes sex harassment is in the eye of the beholder. But, we can all agree there is no good reason for discussing sex tapes and genitals at work. And, is there any reason why work related outings need to occur at Hooter’s or Twin Peaks?

Yes, sexual harassment cases are often rejected by the courts, i.e., by the judges. Over the past several years, the courts have developed a test for just how bad the harassment is (or is not). The legal term is “severe or pervasive.” The harassment must be severe or pervasive. See my prior posts here and here. In the Sanders v. Christus Santa Rosa, the district judge even comments in his opinion that the Fifth Circuit seems to be counting the number of incidents within a certain amount of time. In the Sanders case, the judge denied the motion for summary judgment, but the plaintiff later lost her case in front of the jury.

Sociology professor Sandra Sperino read through some 1,000 sexual harassment cases, apparently filed in federal court. She says only 3-6% ever make it to trial. See NPR news report. Another researcher for the American Bar Foundation looked at a random sampling of sexual harassment cases and found that 37% were dismissed before trial. About half settled, Laura Beth Nielsen added. Some judges dismiss the claim if there was no skin on skin contact. One plaintiff endured some 24 taunts and thinly veiled invitations over ten days. The judge said it only lasted ten days and was not, therefore, severe or pervasive. Ms. Nielsen found only 2% of plaintiffs proceed to win their sexual harassment trials.

The report indicates about one-half of all women in the work place endure some form of sexual harassment. But, only 5-15% report the behavior.

 

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, color, religion, race, and national (ethnic) origin. Other statutes prohibit discrimination based on age and disability. But, the statute does not apply to all businesses. An employer must have 15 or more employees for Title VII to apply. For the Age Discrimination in Employment Act to apply, an employer must have 20 or more employees.  That means thousands of small employers are not covered by Title VII or the other discrimination statutes.

The intent behind this number of employees was to not burden smaller employers, the “mom and pop” shops. Small businesses employ a huge percentage of workers. It was felt at the time that new rules and statutes was more than the small businesses could handle. We might not feel that way, today. And, certainly, for those folks working for smaller employers who may be fired due to race, age, etc., this is not a good thing. A young man came to see me, once. He had a steady girlfriend, someone he cared about very much. But, his older female boss and sole proprietor kept “making moves” on him. She just would not stop. He was very upset. He loved his work. But, this steady pressure to cooperate was taking a toll. I had to break the bad news to him. Even with part-time employees, his employer was way short of 15 employees.

He left my office knowing he would have to quit or risk losing his job. He was not ready to give up his girl friend. And, his girlfriend was not happy with him for staying there as long as he had. We often assume today that we are entitled to a discrimination-free work place. But, that is not always true.

Coach Bev Kearney’s lawsuit has returned back to the trial court. She will soon start deposing various officials, including former Coach Mack Brown. She also plans to depose former school president, Bill Powers and former Athletic Director, DeLoss Dodds.

I previously wrote about her lawsuit here. Coach Kearney alleges she received harsher discipline in 2013 because she is black. Coach Kearney claims that other white coaches were given second chances for a similar offense. The coach was fired when a relationship with a student came to light. The university has spent $500,000 defending against the lawsuit so far. That is a shame, since the lawyers appear to have committed a serious error during the appeal. But, the university will have additional opportunities to make their point, that comparing discipline will not work when the supervisor in each situation as different.