The jury returned an award of punitive damages in the amount of $250 million against Novartis Pharmaceuticals.  See report.  I discussed this case the other day.  This is the case where a manager told a female applicant, apparently when discussing flex time, "First comes love, then comes marriage, then comes flex time and a baby carriage."  According to this report, the entire class of 5600 women will share the punitive damage award.  

 Progressive discipline.  I wish I had a nickel for every potential client who told me the employer did not follow the progressive discipline policy and, instead, fired the potential client after only one (or none) write-ups.  Well, as I have mentioned elsewhere on this blog, the employee handbooks are not binding on the employer.  Many handbooks provide that an employee will be disciplined in writing three times before termination.  

But, the reader should keep in mind the result in Berube v. Great Atlantic & Pacific Co. (2d Cir. 2009).    In this case, the second circuit overturned summary judgment for the employer.  The court found that evidence that the employer did not follow its progressive discipline policy in regard to an older worker showed there was enough evidence to justify a jury trial.  The key was that the employer could not explain why it deviated from its progressive discipline in the case of this one older worker.   

The older employee pointed to other employees who were charged with offenses of "comparable seriousness," yet who were not terminated.  The court found that when the employee compared his discipline to that of other workers, the worker need not show identical supervisors or even identical infractions.   It was enough to show that the infractions were of equal seriousness.  The alleged infractions should be of "comparable seriousness," said the court.  

So, the case will proceed to trial.  As one commentator pointed out, employers need to apply their progressive discipline consistently across the board.  One can debate the utility of progressive discipline policies.  But, if the employer uses them, the employer needs to make sure they are applied evenly. 

A case arising out of New York demonstrates what not to say when a woman applies for a job.  One male manager reportedly responded in an interview with a female applicant, "First comes love, then comes marriage, then comes flex time and a baby carriage."  This comment and others helped provide good evidence for a class action sex discrimination lawsuit against Novartis Pharmaceuticals.  The class includes some 5600 women.  See NY Times report.   

Delaware Employment Law Blog is generally defense minded, but they understand, as we all should, that forming presumptions about gender roles based on caring for a family member is sex discrimination.  There is a line of cases alleging so-called Family Caregiver Responsibility discrimination. Such duties often fall on a woman.  This is a growing area of litigation.  

The May, 2010 issue of the ABA Bar Journal says suits alleging bias asgainst workers caring for children or parents have increased 400% in the last decade.  Employees prevail about half the time, which is much higher than other types of discrimination cases.  A recent study on this topic found that in caregiver cases, 67% were related to pregnancy and maternity leave; 9.6% were related to elder care; 7% concerned sick children; 4% were related to caring for ill spouses and 2.4% were related to caring for a family member with a disability.  88% of such cases were filed by women.  

On May 17, 2010, the jury returned a verdict in favor the women plaintiffs.  See report.  The jury awarded several million dollars in compensatory damages.  The jury has yet to decide punitive damages, but indicated that it would assess punitive damages.    Novartis, which has been included in one of the top 100 places for women to work may lose its ranking…..

Its an issue that strikes home with me.  Do gays belong in the military?  One law school prof discusses his view, based on the harm sometimes done by the "Don’t Ask, Don’t Tell" policy.  See discussion.  Having served 28 years in the Army National Guard and Army Reserve, I look at the issue through the prism of my own experience.  I think the real question is why not?  In every unit I was in, we never had enough good soldiers.  I would hate to automatically exclude any soldier until we see how s/he performs.  Soldiering is a subjective profession.  The ability to get along and foster teamwork is crucial.  Many soldiers, straight or gay, cannot hack it.  

The most important trait of a good soldier is simple desire.  They "gotta want it."  I am sure many gay soldiers have done very well in the soldiering business.  As a former company and battalion commander, I would be happy to have any productive soldier, regardless of background.  

Of course, as with any soldier, I would expect that soldier to manage his/her personal issue or background.  But, isn’t that what leadership is all about?  Some soldiers, for example, suffer from weight problems.  Weight control and physical conditioning are big issues in the Army.   Many soldiers are discharged every year because they cannot get their weight down to the Army norm. But, if a soldier does successfully manage a weight problem, aren’t they a better soldier because of it?  That is what leadership is all about.  

 I have written before on the costs of litigating a discrimination lawsuit.  Connecticut Employment Law blog reports about a case in which the employee obtained as part of her settlement $16,000 in lost pay and $130,000 in attorney’s fees.  Note how much higher are the attorney’s fees of the employee’s lawyer.  $130,000 means the lawyer spent anywhere from 200-500 hours on the case, not unheard of at all.  Typically, employment lawsuits are fought over much more than other sorts of lawsuits.  Lawyers on both sides will invest 200 hours or more in an average employment lawsuit.  

 The Ninth Circuit granted class certification in a lawsuit against Wal-Mart alleging gender based discrimination against some 2 million women.  See report.  It was a close 6-5 decision at the court.  The Ninth Circuit heard the arguments en banc, which means the that the Ninth Circuit issued an initial decision.  One of the parties did not like the initial decision, so they asked  for the entire Ninth Circuit (en banc) to hear the case.  The en banc court then granted the class certification. 

It is a big win for employees.  Wal-Mart commits its share of violations of employment statutes.  The class will be for current and former female employees who have been passed over for promotion. 

 The state appeals court in Austin looks at what is sexual harassment and what is not.  Sex harassment refers to the situation in which a woman (or a man) is harassed without explicit requirement of a sexual relationship.  Sex harassment simply refers to harassment short of an explicit  relationship.  in Twigland Fashions, Ltd. v. Miller, the state Third Court of Appeals looked at a 49 day period in which a regional manager focused his attentions on a female store manager.  He hugged her twice – two "full body hugs." He told he loved her.  He told her she had to kiss him whenever she made a mistake.  Mike Mslanka discusses the case in his recent post.  The supervisor came up behind the female employee and wrapped his arms around her and pressed his body against hers.  She was fired after she spent two weeks avoiding the regional manager. 

But, the employee also testified that she could perform her work just fine when the regional manager was gone.  He only came to the store once or twice a month.  To constitute sexual harassment under Title VII or Texas Labor Code Art. 21, the harassment must rise to the level such that it affects the terms and conditions of her employment.  The court said the harassment must be so extreme and abusive that it deprives the victim of an equal opportunity in the workplace.  The court found that since the employee could perform her tasks well in the absence of the male supervisor, then her work conditions were not affected.  

Mike Maslanka describes this court decision in positive terms.  Of course, I represent employees mostly and find the decision troubling.  If the woman must fear every visit from this supervisor, are not her working conditions affected?  If she must work so hard to avoid him when he is present in the store, are not her working conditions affected?  Mike does not mention that the victim, a store manager who had been promoted by the regional manager, believed that the supervisor was suggesting that she cooperate with him if she wanted continued promotions.  See court decision. 

As Mike points out, this standard should be the same standard for racial victims, too.  He is right.  It should be.  But, we know that the standard used in this Miller case is not the same standard.  In a race or national origin case, it would be enough that the supervisor made disparaging comments about a man’s race or national origin.  It would be enough if the supervisor suggested a deal with an employee, cooperate with him outside the office and promotions would continue.  But, because this case is sexual harassment, these facts are not enough.  The Miller court is applying a higher standard.  If this were not a sex harassment case, most courts would find the working conditions have been adversely affected in this work environment.  

The jury apparently agreed with me.  In this case, the appeals court took away the jury verdict.  As I have mentioned before, many juries understand the realities of the workplace better than many judges. 

Department of Labor has released a Disability Nondiscrimination Law Adviser.  Once the reader answers some general questions, the adviser will provide some a customized list of statutes that apply to the reader’s particular business and the requirements of those statutes.  See DOL website.  The stated purpose of the Adviser is to allow employers to identify which disability nondiscrimination laws apply to their business.  

This Adviser is one in a series of electronic advisers regarding various employment statutes.