In law school, we learn how to read legal terminology.  Learning to "read the law" may be the most important skill lawyers develop.  But, learning to read it does not mean we should actually use that mumbo-jumbo.  Personally, I diligently avoid words like "therein" and "herein," but am not offended if other lawyers prefer "legalese."  But, in prosecuting civil lawsuits, some of us shoot ourselves in the foot simply by how we talk. 

At a recent deposition, for example, the Opposing Counsel asked questions of my client for many hours.  The OC persisted for several hours in using legal mumbo jumbo in questioning a layperson.  She asked the witness if the document "contained an accurate account of the information contained therein?"  "Did the supervisor tender you the document on the date denoted?"  "Does the email accurately depict the conversation in connection with your termination?"   

Really?  Do you really want an answer to a question only a lawyer would understand?  Communication requires that both participants share the same language.  There are times when we, as lawyers, may prefer to intimidate or obfuscate.  But, at a deposition, the purpose is generally to acquire information, not bury it.  So, why do we talk in a language no one else understands? 

My client struggled to answer compound questions that were riddled with legalese.  The witness asked the Opposing Counsel to re-phrase.  But, instead of translating her legalese, she would simply ask the court reporter to read the question back to the witness.  Still not understanding the same question, the witness would re-state the question to make sure she understood it.  Then, sometimes the OC would over-react and assume the witness was trying to evade the question.  She would fuss and lose her temper.  And, on the deposition would go.  Neither party really understanding the other.  And both parties increasingly suspicious of the other. 

It was a busy day for the Supreme Court, yesterday.  The high court decided a second employment case regarding retaliation cases.   Congress amended Title VII in 1991 to add many new facets.  It also added that to show discrimination, a plaintiff needed to show that discrimination was a "motivating factor."  Did that change also apply to retaliation claims?  That question has been litigated ever since the amendments first went into effect.  In Univ. of Texas Southwestern Medical Center v. Nassar, No. 12-484 (6/24/13), the Supreme Court ruled in another 5-4 decision that the appropriate standard for Title VII retaliation claims is "but for" analysis.  That is, would the employer have taken the adverse employment action "but for" the retaliatory motive?  

"But for" is generally considered a more rigorous standard of proof.  But, really, this decision may make no difference to most claimants.  The difference between "but for" and "motivating factor" is hazy.  It is a subjective analysis and may make little difference to most juries.   See Supreme Court decision here.  See Scotus blog for an excellent discussion of the competing theories of proof. 

When is a supervisor not a supervisor?  For purposes of Title VII, the U.S. Supreme Court has answered that question in a 5-4 vote and has imposed a more narrow definition.  See the decision in Vance v. Ball State Univ., No. 11-556 (6/24/13) here. 

The Court found that a person is a "supervisor" only if that person is empowered by the employer to take tangible employment action regarding an employee, that is, to affect a "significant change" is an employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  Id., at 15.  The Court rejected the EEOC definition of supervisor: 1) someone authorized to take action or recommend action affecting an employee, including hiring, firing, transfers, etc., and 2) a person who is authorized to direct the employee’s daily work activities.  The Court found the more expansive definition to be based on "colloquial" usage of the term supervisor.  

The Supreme Court relied on the decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998), seminal decisions regarding supervisor based harassment.  As the dissent notes, the more expansive definition is also more flexible, recognizing the wide variety of employment situations.  Employers are creative.  They need to be.  They are dealing with everyday life with the full range of the human experience.  For example, the miscreant lifeguard supervisor in Faragher could impose toilet duty on female lifeguards who resisted his advances, but he could not take tangible employment actions against them.  Yet, that same male senior lifeguard was enabled by his perceived authority in harassing the female lifeguards.  Under the Vance decision, that male lifeguard would not be a "supervisor."  Any legal action against him by an oppressed female lifeguard would fail. 

So, yes, colloquial definitions should apply whenever the court is dealing with what, after all are "colloquial" situations.  This decision in Vance undermines its prior holding in Faragher.  Worse, the newest decision simply does not reflect the reality of a more modern, flexible workplace. 

According to a recent report, pregnant women are denied basic accommodations allowed for persons with disabilities.  These pregnant women are forced to quit.  Employers in particular deny accommodations to low wage workers who are pregnant.  The report by the National Women’s Law Center and A Better Balance cites such examples as a woman at a fast food restaurant who lost her job after she being denied permission to drink water and eat snacks during her breaks.  Another woman, a truck driver, was told she was too much of a liability to continue working after she became pregnant. She was fired and lost her health insurance.  See CBS News report. 

It is a shame we cannot do better with half our workforce. 

 A panel discussion in Chicago addressed workplace bullying.  See ABA Journal report.  According to the panel of experts, one-third of employees suffer some workplace bullying.  Dept. of Justice statistics say two million violent crimes occur each year in the workplace.  Workplace bullying is defined as verbal bullying, as well as physical altercations.

The experts however, believe that only one-third to one-half of such incidents are reported.  Many employees are afraid to speak out.   Some employees simply believe the employer will not take any action.

The panelists agree the best thing for employers to do is have a clear policy in place that prohibits any act of violence.  The panelists believe that 90-95% of employees will comply with employer requirements, so long as those requirements are made clear.   A good policy on preventing violence will: 

  • define workplace violence
  •  provide a reporting procedure for workplace bullying
  • encouraging reporting of incidents by using language like "all acts will be investigated"
  • include a "no retaliation" for reporting clause
  • inform employees that violation of staff policy will result in discipline

Be quick to investigate, urges one panelist.  Document problems, urges another employment lawyer.  One panelist also suggests the first line of defense for workplace violence is a good prescreening.  Require two letters of reference for every employee.  Be sure that at least one is a personal reference.  Some folks behave differently at work than they do away from work.  Bullies will have difficulty obtaining letters of reference, because they have a track record of alienating those they know and work with.  Make sure resumes are factually accurate.  

Sometimes, employers make a bullying situation worse.  According to one poll, 6 out of 10 victims said the employer made things worse.  To avoid making the situation worse, employers should not:

  • ignore threatening or abusive behavior
  • be confrontational
  • retaliate against the complainant
  • fail to document and respond to misconduct
  • ignore provisions in company policies
  • rely on employee assistance programs or healthcare providers to change personalities of bullies

Employment lawyer, Carlos Perez, says escorting employees out of the building is generally overkill.  It is counter-productive and makes it harder to resolve the issue.  It is counter-productive.  Escorting an employee out of the building is demeaning.  Many potential clients have told me they were okay with the termination until they found themselves "treated like a criminal."

Lilly Ledbetter sued her employer for pay disparities which had occurred over years.   She worked for Goodyear Tire and Rubber for decades.  She sued based on the Equal Pay Act, a federal statute.  She lost.  The U.S. Supreme Court found that she sued too late.  The statute of limitations required her to sue within 180 days of each violation.  See opinion.  The Court could have simply required her to sue within 180 days of the last violation.  The problem for victims of pay disparities is that they, like Ms. Ledbetter, may not know until the very end of their career that that have been paid less for the same work.  So, in response to the Ledbetter v. Goodyear decision, Congress passed the Lilly Ledbetter Fair Pay Act to make it easier for women to file suit if they learn late about a pay disparity.  

Pay rates are remarkably difficult to investigate.  Co-workers rarely discuss their pay.  The employer will never publish pay rates.  So, if a victim learns about pay issues, it is  often accidental.  Congress understood this when it passed the statute. 

Since that act was passed, some 40 states have passed laws amending their state version of the Equal Pay Act to allow for late discoveries of pay disparities.  Texas was set to become the 43rd state to pass such a law.  Bipartisan support moved a bill through the recent Texas legislature seeking to amend the Texas version of the Equal Pay Act.   But, Gov. Perry vetoed the bill.  Disingenuously, he said there was already a federal law in place.  

Yes, there is a federal law already in effect.  But, for various reasons, many workers are unable or prefer not file suit in federal court.  Federal court can be very unfriendly to discrimination victims.  Federal deadlines to file suit are tighter.  Just three years ago, there was the long drawn-out case of Judge Kent in Houston and Galveston, who was sexually assaulting his own female employees.  See my post about Judge Kent.  Now, there is Judge Hughes in Houston who made possibly  racist comments about a plaintiff in a discrimination case.  See my post about Judge Hughes.  So, yes, federal court can be very unfriendly to discrimination claims.  State venue provides an important option. 

But, Gov. Perry has seen fit to limit options for victims of pay discrimination. 

Judge Edith Jones has been accused of making racist comments and discussing pending cases.  I previously wrote about that here.  Well, one of those pending cases came before the Fifth Circuit.  A man convicted of rape and murder and scheduled for execution has requested a stay of execution.  His lawyers asked that Judge Jones recuse herself from this decision.  She refused.  So, two other judges on the panel agreed the case should be heard by a new panel – without Judge Jones. 

See San Antonio Express News report.  Judges are held to a high ethical standard.  They are required to avoid even the appearance of impropriety.  I am surprised she would refuse the request.  Perhaps, she has difficulty accepting that her comments may undermine the appearance that she can remain objective about the case.  

 In Texas employment lawsuits, sometimes both a manager and the company are named in a lawsuit.  In such situations, the employer typically provides a lawyer for the management official.  "Provides" generally means pay for.  Almost always, the same defense lawyer represents both the manager and the company.  But, the manager’s interest and the employer’s interest are not always the same.  In a recent case, the New Jersey Supreme Court looked at the arrangement used by the employer and found some ethical problems.

The employer told the employee which attorneys they could hire, agreed to pay for them, but said the employer could cease payments at any time.  The company told the employees they could hire their own attorney if they wished.  The matter was criminal.  The state Attorney General was the plaintiff.  The AG’s office objected to this arrangement and tried to disqualify the counsel for the employees.

The New Jersey Supreme Court disapproved of the "take it or leave it" nature of the attorney representation plan.  Relying on several ethical rules, common to most states, the court found 1) that in the future, the employee would have the right to pick his/her own lawyer at the employer’s expense, 2) that the employer could not stop paying the lawyer without court approval, 3) the counsel could not withdraw without court approval, and 4) specifically held that the employer could not terminate payments simply because the employer did not like the tack the employee and his  counsel were taking.  See In re State Grand Jury.  

Texas has a similar ethical rule to New Jersey’s: no one but the client can tell the attorney how or what to do in a litigation.  In some situations, both the company and a lower level manager are named in a lawsuit.  The employer provides the same lawyer for both he company and the manager.  In such situations, who is the client?  Sharing the same lawyer works well for some situations, but not for others.  What happens, for example,  when the company has some liability regarding a policy which the manager faithfully followed?  That is, the company’s policy is at fault, but not the manager. Or, what happens if a higher level manager uttered some discriminatory statement about which the lower level manager has personal knowledge?  These are conflict of interest situations.  But, the company’s lawyer has strong financial interest not to raise these potential conflicts.  If the company’s layer raises these potential issues, he risks losing a valuable client for the law firm. 

When you have a conflict of interest situation, the company’s lawyer should quit.  He cannot represent both parties any longer.  If the company then provides a separate lawyer for the lower level manager the company cannot control the tactics employed by that lawyer.  And, relying on this New Jersey decision, the company cannot terminate the lawyer once the representation heads south for the employer.  

I have talked here about how a judge’s personal background will affect his/her judicial opinions.  Now, it seems one judge’s personal beliefs may reveal her own motivations.  Judge Edith Jones, once considered for appointment to the U.S. Supreme Court, has regularly affirmed dismissals and summary judgments in discrimination cases.  She has expressed some impatience with discrimination claims many times. 

For example, in DeAngelis v. El Paso Municipal Officers Assn., 51 F.3d 591 (5th Cir. 1995), a female officer (a new sergeant) complained about sex harassment appearing in the form of an anonymous column in the police association newsletter.  The column satirized upper echelon officers, including the plaintiff.  About ten different columns made anti-female remarks.  Judge Jones pointed out, however, that some 30 columns, which were not admitted into evidence, did not include anti-female comments.  One of the ten columns even referred to her EEOC complaint as the E-I-E-I-O complaint.  The jury found in favor of the plaintiff.  But, Judge Jones found the jury verdict was based on insufficient evidence.  

A mere ten columns were not "severe or pervasive," said the Judge.  They occurred over a 2.5 year period. Only one or two of the ten appeared to refer directly to Sgt. DeAngelis.  Id., at 596.  As if references to all female officers did not include Sgt. DeAngelis.  The Judge even noted with some apparent sarcasm that none of the female officers, including the sergeant, attempted to write rebuttal columns.  Id., at 593.  She remarked that protecting women from daily insults would impose some form of "Victorian reticence" on the work place.  Id., at 593.  She concluded her opinion by saying that Title VII cannot remedy every tasteless joke or groundless rumor.  Id., at 597.  Judge Jones looked at evidence that had not been admitted at trial.  She parsed the available evidence.  She then took away a verdict applied by the local community.  She relegated the plaintiff’s concerns  (and that of other female officers) to mere jokes and rumors.  She disregarded the findings of the community in the form of a jury.  

So, now, Judge Jones has been accused of making racist comments at a speech to the Federalist Society at the University of Pennsylvania Law School.  

She has been accused of saying certain "racial groups like African Americans and Hispanics are predisposed to crime," are "prone" to commit acts of violence, and they get involved in more violence and heinous crimes than people of other ethnicities.  She also supposedly said claims of mental retardation in criminal cases disgust her.  If someone is convicted of a capital crime, that shows the defendant was not in fact "mentally retarded."  See San Antonio Express News report.  

Various legal groups, including the Texas Civil Rights project, have filed a complaint about Judge Jones saying her remarks detract from her impartiality.  If true, these comments do reflect poorly on the Judge’s impartiality.  

Judge Jones has expressed antipathy to discrimination claims in other cases.  She was one of three authors of the opinion in Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th Cir. 1999), which ignored age related remarks and which found that evidence of the employer’s prevarication did not in itself suggest age discrimination. The opinion relied on the now discredited "stray remarks" doctrine to find that age related remarks were too remote in time to show age discrimination.  But, the Fifth Circuit was overruled by the U.S. Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 130 (2000).  In the final decision, the Supreme Court criticized the use of the stray remarks doctrine and said flatly that yes, evidence that the employer lied about a decision could alone support an inference of discrimination. 

In cases such as Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009), Judge Jones was accused by her colleagues of ignoring jury verdicts.   Id., at 312.  In her dissent, judge Jones expressed more sympathy for public officials who withhold contrary evidence than for a wrongfully convicted murderer.  Indeed, the evidence would have shown the wrong blood type for the defendant – type B blood when the defendant had type O blood. 

In Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989), Judge Jones dissented when the panel denied summary judgment – thus allowing the lawsuit to proceed.  The female employee had been groped, grabbed and pornographic material had been placed in her locker.  During oral arguments, Judge Jones remarked, "they didn’t rape her, did they?"  When the employee’s lawyer mentioned that a male worker pinched her breast, Judge Jones, remarked that well, he apologized for that.  In her dissent, Judge Jones remarked that the incidents were "spaced well apart chronologically."  id., at 483.  She found that sexually explicit graffiti was not directed at the plaintiff, as though being general in nature against all women would remove or obviate any gender bias.  

Throughout many of her opinions, judge Jones has consistently tried to explain away the actions of those who have discriminated and shown a lack of respect for the law. 

You would think lawyers would know better.  But, really, often we do not.  Molly DiBianca recounts a story about a senior lawyer she met at a conference of some sort with attendees from all over the country.  Molly hails from Philadeplphia.  By her own account, she has a bit of a Philly accent. 

Yet, some senior male partner from a Midwestern law firm confused Molly for a Midwestern lawyer, suggested she dyed her hair, all apparently before saying hello.  Then, speaking to three female lawyers, he said with no hesitation that when it comes to hiring new lawyers, female candidates were always better.  But, as all three women knew, said the senior male law firm partner, women lawyers always quit when they have a baby and do not return.  As Molly says, "really?"  

The remarkable thing is how he said it, as though all three practicing female lawyers would agree with him.  See Delaware Employment Law blog post. 

I am on a listserv with many female and male lawyers.  One of the women lawyers started a thread titled " the only girl in the room."  The female lawyer mentioned that at her law school, women made up some 45% of the student body.  But, she finds herself one of the very few lawyers in any courtroom, no matter how busy the court is that day.  Her point was that many areas of the local bar are still quite male dominated.  It was surprising to me as a male how many women responded echoing her experience.