The decision in Gross is not grounded in reality.  Gross v. FBL Financial Services does not reflect how discrimination and bias actually work.  Gross is the US Supreme Court’s recent decision on age discrimination.  For various reasons, it will probably also apply to discrimination under the Americans with Disabilities Act, also.   Harold Goldner discusses its many errors in detail.  Discrimination is never simple.  It is never clear cut.  It is often a jumble of emotions wrapped around one issue, someone’s minority background.

A manager can genuinely believe s/he is not biased.  Yet, that very same manager can look at someone and wonder why he is late so often, why he does not speak as well, etc.  But, the manager applies that extra scrutiny only to the minority person.  And, then when the manager fires the minority person, s/he can claim to have been motivated by job issues.  Under the Gross decision, the manager can claim s/he was motivated primarily by tardies, not by race.  The manager wins, but the victim loses.  

That is the problem with decisions like Gross.  Bias is not simple.  There will often be more than one motivating factor.  To require that a plaintiff show that "but for" the tardies, the employee would not have been fired is asking for more than reality will allow. 

 You’re a waiter.  Do you split your tips with the bussers?  How about with shift supervisors?  In a recent decision, the California appeals court found that the public expects the tips collected in a tip jar at Starbucks would be split with the shift supervisors.  I don’t know what I expect when I leave a tip.  But, you see the sorts of things a judge will look at when they make a decision.  They make their best guess regarding what the "public" thinks, sometimes.  A judge’s life experiences make a big difference in a close decision like this one.  The court indicated, according to this report,  it would have made a different ruling if the tip had been left specifically for the barista.  So, apparently, the court decided that tips left in a tip jar were intended for employees in general, not specifically for the barista at the counter. 

BTW, this decision reversed a $100 million decision in favor of the baristas.  It will surely be appealed. 

 I talked a while back about how it can be hard to find a plaintiff lawyer for employment cases.  How about those times when the plaintiff employment lawyer does not want your case?  Harold Goldner, a plaintiff employment lawyer in Pennsylvania, talks about some cases he (and I) do not want to accept.  

A young man called me one time and insisted he cussed out out his boss one time, not twice as his boss claimed.  I had to explain to him that a boss can fire you even for merely cussing him out one time.  Yes, folks, hate to break the bad news to you, but you can be fired for unfair reasons (or for reasons some people believe to be unfair).  Texas is what is known as a "at will" state.  You can be fired "at will" and you can quit "at will."  Most states are "at will."  We are no different.  Except for a few situations, discrimination, a union agreement, or a written employment agreement, among other situations, a person can be fired for any trivial reason.  There is still no substitute for hard work and making an effort to get along. 

In my experience, the best plaintiff is the reluctant plaintiff, the one who comes to see a lawyer only as a last resort.  

 In a recent decision, the 5th Circuit Court of Appeals found in favor of an employee (plaintiff).  EEOC v. Chevron Phillips Chemical Co. LLP.  For the 5th Circuit to find for a plaintiff employee is very rare. For example, in a study completed a few years ago, the researchers, found that discrimination case plaintiffs were the second least likely to survive on appeal in federal courts.  The only plaintiffs who fared worse are prisoner cases, notoriously weak claims. 

In discrimination cases on federal appeal, plaintiff employees win 5.8%.  Other plaintiffs win 12% of the time.  When you compare plaintiff employees to defendant employers, plaintiffs win 4.65% while defendants win 53.85% of the time.  The federal courts of appeals are tough on employees, the 5th Circuit is even tougher.  The 5th Circuit covers Texas, Mississippi and Louisiana.  

So, the Chevron decision is all the more remarkable.  The 5th Circuit found sleeping to be a major life activity.  The employee suffered from Chronic Fatigue Syndrome for 7 months, long enough to qualify as a disability under the older version of the Americans with Disabilities Act.  The fact that Plaintiff said she could work during her outbreak of CFS did not mean she did not suffer from a disability, wrote the court.  

A welcome win, but one all too rare…..

Discrimination exists.  It happens all the time even now in 2009.  When I first started doing discrimination cases in the 1990’s, some folks would tell me they did not believe discrimination still existed.  But,  as I recall, it was mostly Anglo folks suggesting that. 

A few years later in one of my Army Reserve courses taught by a Reserve officer, the teacher related a story from his own civilian job.  In his civilian job, he also taught for a major university.   On a trip to Indonesia, he was shocked to drive by a recent car wreck with an Indonesian colleague.  In Indonesia, ethnic Chinese constitute a significant minority.  My teacher remarked that perhaps they should stop and help.  No, the Indonesian replied, it was just another dead Chinese, which was good, he said.  That, my teacher, emphasized, was *discrimination.*  His point was not that America lacks discrimination, but that in some countries, discrimination is far worse than it is here.  

I noticed during my own time in Iraq that the Sunnis and Shia really do have issues.  Some get along fine.  But, sometimes, they simply cannot discuss the other without lapsing into some degree of prejudice.

One of the many things I appreciate about my time in the Army is that in the Army, we face discrimination head-on.  I believe discrimination or prejudice is always with us to some degree.  It is those wise ones who face it and address it.  In my Army Reserve course, we discussed whether it existed and if so, to what extent.  That conversation took place in many different venues throughout my career.  The Army is not perfect, but I am proud to say that in the Army, a minority can get a pretty fair shake, as can a white person.  We face it.  We discuss it.  Where in the civilian workforce do we ever discuss race and prejudice? 

 

 Aaron Ramirez in Dallas discusses the issues in finding a plaintiff employment lawyer.  Aaron is a plaintiff employment lawyer in Dallas.  He adds to what I said previously.   He presents some very helpful information.  This info is just as true for San Antonio and South Texas as it is for Dallas and North Texas.  

I cannot emphasize enough that an employee needing a lawyer needs to start looking as early as possible.  Too many good cases have been lost because the individual waited until they received the right-to-sue letter and then waited too long *after* receiving the RTS letter.  The best time to start looking is right after the adverse personnel action, or even sooner if possible.  

Everything Aaron says is right on. 

 Its a repulsive case, one in which a large company was able to effectively buy "justice."  Highlighted on 60 Minutes and elsewhere.  Now, the US Supreme Court has spoken and found in favor of the good guys.  Caperton v. AT Massey Coal Co. Inc.  But, as Mike Maslanka points out, it could lead to other issues, such as more requests for judges  to recuse themselves from a case.  But, as Mike adds, when the rights of one are trampled, the rights of all are trampled.  It was a 5-4 decision, so it was close.  But, it needed to be made. 

For those less familiar with the judging business, judges run for election.  They need campaign dollars to do so.  The judges in the West Virginia Supreme Court run for election, as in most states.  One judge received $2.5 million from one coal company.  When a case concerning that coal company came to the bench, the West Virginia judge, his pockets stuffed with $2.5 million, refused to recuse himself from the case.  Guess who he ruled in favor of.  Justice was not blind that day…..

 NPR has a good story on the evils of  mandatory arbitration in the workplace.  Unfortunately, it is all too accurate.  Mandatory arbitration simply does not work well in the non-union workplace.  It favors employers over employees.  Note the experience of one arbitrator who ruled against the company one time, after finding in favor of the credit card companies 19 previous times.  She was removed from the list of potential arbitrators.  

The problem with arbitration in the workplace is that arbitrators are employed or hired for a case only when both sides agree.  Both sides are presented with a list of potential arbitrators.  Both sides can strike whoever they wish.  Employers go to arbitrations multiple times.  Employers will have an institutional memory of who rules which way.  An employee will generally go to arbitration only once. The arbitrators understand this.  If they want future employment, they must find in favor of the employer.  

Support the Arbitration Fairness Act now before Congress. 

 Jerks at work cause all sorts of problems.  It is worse when the jerk is your boss.  But, ultimately, the jerks will cause enough issues that most employers would agree they need to go.   The good news is that according to at least one source, the nice boss gets his/her way more often that the jerk boss.  

In one study, many women reported they would prefer to work for a male supervisor than a female supervisor.   

 A recent study indicates that while men tend to be equal opportunity bullies, women tend to bully other women.  Bullying may be ineffective, but it still occurs.  I have not run into woman on woman bullying in any lawsuits, but it appears to be a fact at some workplaces.  If you wish to be heard regarding bullying, click here to take a survey.