There are some fundamental requirements in United States jurisprudence. There are some things we just do not do as a matter of fundamental due process. One of those things we do not do is ask minors to make important legal decisions. Yet, that is exactly the slippery slope upon which the Trump administration has embarked. A five year old Honduran who as seeking asylum was separated from her grandmother. She was then asked to sign away her right to a bond hearing. The ABA Bar Journal is relying on a New Yorker magazine article for the story.

Helen arrived in Texas with her grandmother, Noehmi and her teenage uncle, Christian in July. The Trump administration had supposedly ended the practice of separating children from their families weeks before Helen arrived. Yet, Helen was separated from her family.

All immigrants have the right to a hearing to determine whether they are entitled to bond. If the court finds they are likely to appear for their hearing, then the court allows them to post bond and go free until his/her hearing. Little Helen checked the box indicating she wanted a bond hearing. Later, someone handed her a form, with adult language and in English, asking if she wanted to waive her right to a bond hearing. The form was checked that she wished to withdraw her request for a bond hearing. Her signature appeared in typical kindergarten scrawl, just one word, “Helen.” There was no last name.

In Texas, the age at which one may enter into a contract is 18. But, in reality, many businesses require an older age, 21. My son cannot rent a car in his own name until he turns 21. Five years old is definitely below the minimum.

The age of consent affects countless areas of law, everything from marriage, to a driver’s license to voting. It is, or was, a fundamental precept of American law. See the ABA Bar Journal report here.

Later, Noehmi and Christian were re-united. But, at the hearing, the immigration judge and the Department of Homeland Defense lawyer did not appear to realize Helen existed. The lawyer for Noehmi and Christian tracked down Helen and found her. Helen was returned to her family on Sept. 10, 2018. But, now, she is afraid to go to sleep at night for fear her family will leave her in the night.

A recurring question is what can an interviewer can ask in a job interview. Here are some things to consider…… or not.

1. How old are you? Be very careful about asking this question. There are very few jobs where age is an appropriate question for a job interview. If asked at the wrong time, such a questions could serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. In any event, why would this question be helpful? Sometimes, this question acts as a ruse to discover whether a female applicant might quit when she wakes maternity leave. Its best to just not go there.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar. It can ask an applicant if s/he has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above. Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, then questions asked in an interview would have some relevance. But, if there is adequate reason for any termination, discriminatory questions would not matter. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

Some folks think discrimination is over. They believe there is no more “true” bias among us, these days. Well, that is not true. The Dallas Independent School District has demonstrated that bias among upper management is still with us. The head of the Dallas ISD Human Resources department has resigned, as has one of her assistants in the wake of a scandal involving Instant Messages between the head and her staff. Carmen Darville would, I am sure, like to rescind many of those IM messages. In those messages, she and others poked fun at employees based on race, religion and age. Ms. Darville and her staff disparaged their co-workers and discussed ways of getting rid of them.

The superintendent, Mike Miles, apologized for their comments. Ms. Darville apologized for an “error in judgment.” Yes, I am sure she does, now. She was the head of HR. Not only should she have known better, she was also responsible for developing a work place free of discrimination and bias

Most of the discussions were between Ms. Darville and a HR Senior Executive Director, Tony Munoz. Mr. Munoz talked about pressuring one woman into quitting. Sure enough, a few weeks later, the worker, a 14 year employee, said she would be leaving due to medical reasons caused by stress. How often I have heard a similar story from the worker. See Dallas Morning News report.

The investigation apparently started with the allegations regarding another Executive Assistant who had not disclosed a long ago felony conviction. I cannot determine from the news report if someone saved these IM messages, or if they were produced as part of a forensic exam of someone’s computer. In either event, it is disappointing to see the head of  HR for a major employer flouting the anti-discrimination laws so readily.

 

 

 

Courtesy of creationc

Employment cases are exceedingly difficult, with numerous deadlines and traps for the unwary. We see some of these traps in the case of Prewitt v. Continental Automotive, No. 12-CV-582 (W.D. Tex. 8/28/2014). In this case, Larry Prewitt alleged that he had been terminated due to several reasons: race discrimination, national origin, disability, age, sex and retaliation for opposing discriminatory practices. But, said the court in ruling on the emplpyer’s motion to dismiss, the Plaintiff did not exhaust administrative remedies on the national origin, age, sex and disability claims.The court reached this result in 2013. That left claims based on race and retaliation. 

Every worker who wishes to file suit alleging discrimination must first file a claim with the Equal Employment Opportunity Commission. The EEOC will then issue a right-to-sue letter and the worker can then file suit. But, Mr. Prewitt filed three different charges with the EEOC over a period of a few years. He did not file suit until the last charge had been released by the EEOC. In the first two charges, he alleged national origin, age and disability. So when he finally filed suit in 2012, he was long past the deadline to file suit on those first two charges. So, he did not exhaust administrative remedies on those first two complaints. 

Practice pointer: It is very unwise to file a claim alleging the "kitchen sink." Basing a discrimination claim on multiple bases, such as age, race, national origin, disability, etc. suggests speculation or even desperation. It is much more effective to focus on one or two claims, which should be the stronger claims. When a plaintiff alleges everything but the kitchen sink, all of the claims will look weak. 

The third EEOC charge included the claims based on race discrimination and retaliation. So, the court addressed those allegations. The race claim was not plausible, said the court. The Plaintiff’s own allegations claimed he was fired because he took too many absences. The factual allegations of his Complaint nowhere indicated his termination was due in some way to his race. The court allowed the plaintiff to amend his complaint to fix that inconsistency.  

Practice pointer: The Plaintiff is white. He was claiming that he was fired due to his white race. I am not saying Caucasian based claims are impossible. But, they are more difficult than other claims. It would have been better to drop that claim at some point.  

A year later, the Defendant then moved for summary judgment on the remaining claims, race discrimination and retaliation. The Plaintiff filed a response to the motion that was too long. It violated local rules on page length – without seeking court permission to do so. So, the court struck that reply. The Plaintiff then filed a "sur reply" to the motion for summary judgment. The Plaintiff did so without the court’s permission. Filing a sur reply (i.e., an "extra" reply) without the court’s permission violates local rules. So, the court also struck the sur reply. 

During oral argument on the motion for summary judgment, Plaintiff admitted in court that he lacked evidence for a race based claim. So, the court granted summary judgment as to that claim.

Inexplicably, the Plaintiff also argued that Mr. Prewitt was fired due to his disability. The disability claim, however, had been expressly rejected a year earlier when the court ruled on the motion to dismiss. 

Regarding the retaliation claim, the court noted that the employer argued it had terminated the worker because he violated the attendance policy. The Plaintiff had ten attendance "events." That is, he had ten occasions in which he was absent and allegedly did not follow attendance protocol. The Plaintiff responded that on one of those attendance events, he had received permission to be absent. That absence should not have been counted, said the Plaintiff. Thus, he was arguing that the employer’s explanation lacked credibility. The court found that argument created sufficient issue of fact and denied summary judgment regarding the retaliation claim. So, the retaliation claim remained. 

A week later, the Defendant then filed a motion to reconsider, which the court accepted as a second motion for summary judgment. In this second motion for summary judgment, the employer argued that a manager could not grant permission for an absence. The employee’s testimony to the contrary was wrong, in effect. The manager could not have allowed Mr. Prewitt to leave work early that day, since the attendance policy requires 24 hour notice for any absence. The manager’s permission did not matter. And, the employer claimed that the event to which Plaintiff referred did not happen on the day Plaintiff claimed. Plaintiff claimed he was allowed to leave work early one day in August. The employer claimed that according to its records, it could not have been in August. 

The Plaintiff then responded by changing his testimony. He submitted a new affidavit in which he changed the month from August to July. But, said the court, Plaintiff did not contradict the manager’s affidavit that a manager could not override the Continental attendance policy. 

Comment: I am not so sure. Did not Mr. Prewitt implicitly contradict the manager when Mr. Prewitt said the manager did allow him to leave early that day? 

But, said the court, in the end, the Plaintiff did not present "competent" evidence regarding when he was allowed to leave work early. It could have been one of the ten attendance events, or not. The court suggested that it was mere "conjecture" on the Plaintiff’s part when that attendance event occurred. 

The Plaintiff submitted evidence that the time-keeping system at Continental was flawed and not accurate. But, noted the court, none of that evidence explicitly contradicted one of those ten attendance events for which he and been fired.  So, the granted summary judgment regarding the one surviving claim, retaliation.

Later, the Plaintiff submitted a motion for new trial on his own. He filed this motion without a lawyer. But, unfortunately, pro se motions rarely succeed. That motion is still pending. 

Discrimination cases are not easy. They present many traps for the unwary. The best plaintiffs are the ones who file suit reluctantly, perhaps very reluctantly. Alleging too many bases of discrimination at the outset will color everything that comes afterward. 

 Filing charges of EEOC complaints has reached an all-time high.  Though just a small increase over 2010, the filings reflect the state of the economy.  Filings generally rise when the economy worsens.  That is due, I believe, to employers taking advantage of the economic "cover" to get rid of employees and more terminations simply cause more complaints.  See MSNBC report.  

The EEOC said it received 99,947 complaints in Fiscal Year 2011.  35% of these complaints were based on race; 29% alleged gender discrimination; and 24% of the complaints were based on age discrimination.  26% of those complaints were based on disability discrimination.  The EEOC says 18% of those complaints received a "merit resolution," which means they achieved some sort of settlement. 

The Fifth Circuit has recognized that a hostile work environment claim can exist under the Age Discrimination in Employment Act.  The Fifth Circuit has never reached such a conclusion before now.  In Dediol v. Best Chevrolet, Inc., the Federal appellate court reversed a grant of summary judgment in favor of the employer.  

The Court found that such a claim would include the following elements: 1) the employee is over the age of 40, 2) the employee was subject to harassment based on age – either through actions or words, 3) the harassment is severe enough that it  creates an objectively intimidating, hostile, or offensive work environment, and 4) the employer is liable in some way.  See decision.  Mr. Dediol was 65 years old while he worked for Best Chevrolet.  Typically, the employer would be liable if it became aware of the harassment and failed to take action or if a supervisor conducted the harassment against the worker. 

In this case, Mr. Dediol showed that his supervisor called him names such as "Old mother f*****," "old man," and "pops" several times everyday for eight weeks.  The manager also made negative comments about the employee’s faith.  Mr. Dediol was a born-again Christian.  The plaintiff eventually quit coming to work. 

Evidence showed that that the supervisor charged at the plaintiff at a staff meeting, threatened to "kick his a**."  He removed his shirt saying, "You don’t know who you’re talking to.  See these scars.  I was shot and in jail"  

Mr. Dediol quit coming to work and was then terminated.  The Fifth Circuit found that this was sufficient evidence to support a claim for constructive discharge.  That is unusual.  The Fifth Circuit rarely sees a situation it considers sufficiently severe to justify an employee resignation. 

The Older Workers’ Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act.  The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights.  See EEOC Fact Paper.  The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver. 

What if the worker accepts severance pay at the time he signs the release?  Must the worker return the severance pay in order to rescind his signature?  Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998).  If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination.  See EEOC Guidance, Note 13.  

Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live.  That is why Oubre provides they need not return a severance payment related to the waiver.  Most workers who are terminated leave with little resources.  But, Oubre only applies to age claims.  If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim.  Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.  

Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements.  Wrong,  The failure to meet the requirements of the OWBPA only applies to any potential age claim.  Your race claim would remain barred or waived.  The waiver is effective in regard to other non-age related claims.  Same waiver, same provisions.  But, age claimants get a break, while others do not.  

The reality is that most people who are fired are extremely upset at the time.  Even if they do not shed tears, they are are still too disturbed to think clearly.  They do sometimes sign things they should not and accept payments they should not accept.  Age claimants can undo such agreements. The others cannot. 

Many times, an employee comes to see me and asks me how strong his/her case is.  Often, i do not know.  It is hard to gauge the strength of a case until we know the reasons used by an employer for a questionable adverse personnel action.  Indeed, sometimes those reasons change over time.  

In a reent case, the 8th Circuit Court of Appeals has confirmed that yes, shifting reasons over time do help show pretext.  See report.  In Jones v. National American University, the plaintiff employee was turned down for a promotion to the Director of Admissions.  The plaintiff was in her mid-50’s.  The plaintiff had spoken with one of the decision-makers about another applicant who was in his mid-50’s also.  This particular decision-maker had mentioned that he was not sure he would want a "grandpa" working with high school students.  The school later picked a 34 year old woman for the position.  

The plaintiff quit when she was not picked for the position.  When she quit, the same decision-maker told her that the person picked was simply the better choice long-term.  

The plaintiff filed with the EEOC.  She claimed she was not hired due to her age.  The employer responded to the EEOC that Ms. Jones was not picked because of her poor work performance.  But, at trial, the employer claimed no, it was actually because she lacked management experience. Indeed, at trial, the testimony about the plaintiff’s work performance was all positive.  And, none of the job postings listed management experience as a requirement.  Ms. Jones also introduced evidence showing that she was more qualified for the position than the younger person who was picked.  So, the employer’s case essentially fell apart at trial. 

The reasons for the selection changed at trial significantly.  Shifting reasons suggests pretext. 

We have known since the decision in Reeves v. Plumbing Products, Inc., 530 US 133 (2000), that the US Supreme Court accepts changing reasons as proof of discriminatory bias.  That decision found that a jury can infer discriminatory bias if the employer’s proffered reason for a discharge is shown to be false.  The jury is not required to draw such a conclusion, but it may draw such a conclusion.  So, the decision in Jones should not be surprising.  But, too many courts still do not follow the Reeves reasoning and give enough weight to shifting reasons.  

It helps that the employer made the statement showing age bias.  But, proof of falsity should be enough.  People do not discriminate and then admit it.  They almost always deny any discriminatory bias. 

It is always harder to find a job when you reach a certain age.  A female lawyer, almost 60,  has submitted 1,000 applications and has yet to find a job.  According to the ABA Journal report, she has applied for everything from day care worker to clerk.  The former shopping center lawyer was laid off in January, 2009.  She has not even had one interview.  She compares finding a job interview to looking for a unicorn…..

Many of my clients who lost their jobs in their 50’s typically take a year or more to find a new job.