Rep. Barney Frank (D-Mass) has reintroduced the Employment Non-Discrimination Act in the form of H.R. 2981.  The bill, which was introduced in the House on June 19, 2009, would include protections for gay, lesbian, bisexual, and transgendered individuals in the workplace.  In particular, the bill would provide a comprehensive federal prohibition of employment discrimination on the basis of sexual orientation or gender identity.  Examples of prohibited conduct would include:  (1) refusing to hire an individual because of an actual or perceived sexual orientation and (2) discharging an employee because of an actual or perceived sexual orientation.  The bill would also make it illegal for an employer to retaliate against an employee who opposes any discriminatory practice under the Act. 
 
A similar version of the bill passed the House in the previous session of Congress. Currently 12 states and the District of Columbia ban job discrimination on the basis of sexual orientation or gender identity.  For information on The Employment Law Group® law firm’s LGBT Discrimination Practice, click here.

In a 5-4 decision, the Supreme Court has held that an employee bringing a claim under the Age Discrimination in Employment Act (ADEA) must show that age was the “but for” cause of the challenged adverse action.  Moreover, the court held that the burden does not shift back to the employer to prove that it would have taken the same action regardless of the employee’s age even where the employee has produced some evidence that age was a motivating factor in the adverse decision.  In Gross v. FBL Financial Services, Inc., Jack Gross, a 54-year old employee filed a complaint against FBL Financial Services, alleging that the company demoted him from a claims administration director to a claims project coordinator because of his age.  Gross won at trial under an ADEA mixed-motive instruction, which allowed the jury to find liability based on age being a “motivating factor” in the adverse action.  The Supreme Court reversed, finding that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age’ is that age was the [primary] ‘reason’ that the employer decided to act,” and not just one of many factors that played a role in the employer’s decision.  According to the Court, victims of age discrimination can no longer rely on the Supreme Court’s Price Waterhouse ruling as a basis for mixed-motive jury instructions in ADEA cases because “[t]he ADEA’s text does not authorize an alleged mixed-motives age discrimination claim.”  While the immediate impact of this decision may be discouraging for employees, the good news is that it will likely spur Congress to amend the ADEA so that employees need only prove that age was a motivating factor in an employer’s decision.  For additional information on the ADEA, visit The Employment Law Group® law firm’s Age Discrimination Practice at http://employmentlawgroup.net/PracticeAreas/AgeDiscrimination.asp.

Scott Oswald, a Principal of The Employment Law Group® law firm spoke at a D.C. Bar CLE event titled, “Changing Currents in Employment Law:  Recent Developments Update.”  The program, which took place on June 18, 2009, provided an overview of the new developments in employment law, including key issues that affect employers and employees during the current economic climate.  Mr. Oswald provided a summary of the ADA Amendments Act of 2008 and highlighted its impact on the definition of “disability” under the Americans with Disabilities Act.  Examples of definitional amendments include:

• Redefining the meaning of the term “substantially limits”;
• Amending the “regarded as” prong of the disability definition; and
• Amending the list of activities that constitute “major life activities” to include “major bodily functions.”

To view the full presentation, click here.

In a recent decision, the Maryland Court of Appeals has clarified that a school board “may not raise the defense of sovereign immunity to any claim of $100,000 or less,” including claims brought by individuals under the Age Discrimination in Employment Act (“ADEA”).  In her complaint, Ms. Zimmer-Rubert, a 60-year old teacher alleged that the Board of Education of Baltimore County (“Board”) discriminated against her by rejecting her employment application and filling vacant positions with younger teachers despite her qualifications.  The Board moved to dismiss the teacher’s claim, arguing that it could not be sued for age discrimination because as a state agency it was entitled to sovereign immunity.  The court rejected the Board’s argument, concluding that § 5-518(c) of the Maryland Code Courts and Judicial Proceedings Article expressly waives all governmental immunity, including sovereign immunity, for disputes in the amount of $100,000 or less.  Finding that Ms. Zimmer-Rubert’s complaint demanded only $100,000 in damages, the court allowed the teacher to proceed with her ADEA claim against the Board. 

The takeaway point of this case is that the Eleventh Amendment immunity from suit is not absolute.  However, plaintiff must affirmatively seek and apply any statutory exceptions to the sovereign immunity defense.  For more information on discrimination claims and the ADEA, visit The Employment Law Group® law firm’s Age Discrimination Practice at http://www.employmentlawgroup.net/PracticeAreas/AgeDiscrimination.asp.

The Second Circuit has recently ruled that an employer’s invidious comments about other individuals in an employee’s protected group can support an inference of discriminatory intent in Title VII actions.  In Sassaman v. Gamache, Carl Sassaman filed a complaint against his employer, alleging that his employer discriminated against him by forcing him to resign because of a gender stereotype related to allegations that he had sexually harassed a female colleague.  To support his allegations, Sassaman pointed to the company’s failure to properly investigate the charges of sexual harassment against him before forcing him to resign and his supervisor’s statement indicating that he probably sexually harassed his female co-worker because he is a male.  The company moved for summary judgment, arguing that the alleged statement was nothing more than a “mere stray remark” and “something of an aside after the termination decision had been made.”  The district court granted the company summary judgment, concluding that the comments attributed to Sassaman’s supervisor were “ambiguous and incapable of demonstrat[ing] actionable gender stereotyping.”  The Second Circuit reversed, holding that a reasonable jury could infer discriminatory intent from the alleged remark about the propensity of men to engage in sexual harassment and the company’s arguable failure to properly investigate the charges of sexual harassment against Sassaman.  Accordingly, the Second Circuit vacated the district court’s decision and remanded the case to the district court. 

This decision is significant because it reminds employers that discrimination against employees on the basis of a belief, perception or gender stereotype may be actionable under Title VII.  For more information about The Employment Law Group® law firm’s Discrimination Practice, visit http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.

Law360 reports that a federal judge has refused to dismiss a retaliation claim against Virginia Tech for violation of the Equal Pay Act (“EPA”).  According to the article, Shana Kennedy filed a complaint against Virginia Tech, alleging that the school discriminated against her and other female employees by paying them less than similarly-situated male employees at the school.  Kennedy also alleged that the school retaliated against her when she complained about the disparate pay and her supervisor’s discriminatory comments.  The school moved to dismiss the retaliation claim from the suit, arguing that Kennedy’s activity was not protected under the EPA because she only complained about the gender discrimination internally.  Judge Turk adopted the school’s interpretation, concluding that internal complaints with an agency are not protected.  Despite this controversial ruling, the judge still found for Kennedy on the grounds that Kennedy had submitted formal complaints about the retaliation to outside authority.  According to the judge, Kennedy had “sufficiently alleged that Virginia Tech took adverse actions against her” and therefore had a valid claim for retaliation.  The judge’s ruling in this case is significant because it reaffirms the majority position that a claim filed with a state agency or the Equal Employment Opportunity Commission is sufficient “filing” to constitute protected activity. 
 

The article is “Virginia Tech Must Face Retaliation Claim,” and the case name is Kennedy v. Virginia Polytechnic Institute & State University.
 
Attorneys at The Employment Law Group® law firm are representing Ms. Kennedy.  For more information about the firm’s Equal Pay Act Practice, click here.

In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit reiterated the notion that temporal proximity, i.e., evidence that “the employer had knowledge of the employee’s protected activity, and the adverse personnel action took place shortly after the activity” can support an inference of retaliatory motive thereby, allowing employees to survive summary judgment in Title VII and ADEA retaliation claims.  In Jones v. Bd. of Governors of the Fed. Reserve Sys., Charles Jones filed a complaint against his employer, the Board of Governors of the Federal Reserve System (“the Board”), alleging that the Board discriminated against him when it denied him a promotion to a managerial position in favor of a younger woman, and further retaliated against him when he requested a hearing before an administrative law judge on his discrimination claims.  The Board moved for summary judgment on Jones’s retaliation claims, arguing that the timing between Jones’s protected activity and the allegedly adverse evaluation does not support an inference of retaliation.

The district court granted the Board summary judgment, concluding that Jones had not satisfied his prima facie burden of retaliation because he “failed to establish that his supervisors had knowledge of” his September 2000 request for a hearing.  The Court of Appeals reversed, holding that to survive summary judgment, an employee need not provide direct evidence that the employer knew of his protected activity, but rather need only offer circumstantial evidence that could reasonably support an inference that the employer had such knowledge.  Additionally, the Court noted that because the Board asserted its legitimate non-retaliatory explanation for the 2000 evaluation, the district court should have considered only whether the evidence “either separately or in combination” was sufficient for a reasonable jury to infer retaliation, and not “whether Jones made out a prima facie case.”  Finding that Jones’s evidence of temporal proximity was sufficient to support an inference of retaliatory motive, the Court remanded the case to the district court.
 
This case is significant because it rejects the notion that temporal proximity can serve only as persuasive evidence to establish a prima facie case of retaliation, and suggests that employees can proceed with their claims even where the only evidence of a causal connection is based on temporal proximity.  For information about The Employment Law Group® law firm’s Discrimination Practice, click here.

In an article titled, “More Bias Charges Filed in FYO8 Than Ever:  EEOC,” Law360 reports on the unprecedented increase of workplace discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2008.   According to the article, the EEOC has reported a 15% increase in discrimination charges filed with the EEOC compared to fiscal year 2007.  The EEOC attributes the upsurge in filings, which totaled 95,402, to a number of factors, including demographic shifts in the work force, heightened awareness of the law, and the distressed economy.  Although the EEOC has reported that it has not seen an increase of this magnitude for many years, employment lawyers like Jason Zuckerman, a Principal at The Employment Law Group® law firm, are not surprised by the numbers.  According to Zuckerman, the EEOC’s numbers were consistent with what he observed in his practice.  His recommendation to the EEOC – more resources—“Having more resources for intake, for investigation and for prosecution would go a long way in helping [the EEOC] combat both discrimination and retaliation.”

The Employment Law Group® law firm routinely represents employees who face discriminatory practices in the workplace.  To learn more about The Employment Law Group® law firm’s Discrimination Practice, click here.

Judge Norma L. Shapiro (U.S. Dist. Court. ED Pa) awarded Melissa Brown $160,000, more than double the jury award against her employer, Nutrition Management, for its bad faith violation of the Family and Medical Leave Act (FMLA).

Under the FMLA, any damages award is subject to mandatory liquidated damages equal to the amount of the award itself, unless the employer can show that it acted in good faith.

Noting that the FMLA does not define “good faith” and that the Third Circuit Court of Appeals has yet to provide a definition, Judge Shapiro stated that “[r]easonable good faith requires a defendant to take affirmative steps to ascertain the requirements of the law.”  Here, Judge Shapiro held, Nutrition Management’s conflicting testimony regarding its reasons for terminating Ms. Brown lacked credibility.  Further, Judge Shapiro held, testimony that Nutrition Management “reasonably believed” there was no FMLA violation without any evidence of any affirmative steps taken to understand its legal obligations was insufficient to meet its burden of proving good faith.  Thus the court held that it “would be a clear error of law for the court not to amend the judgment to include liquidated damages.”

For information on The Employment Law Group® law firm’s Discrimination practice, click here.  To view the decision discussed above, Brown v. Nutrition Management Services Co., No. 06-2034 (E.D.Pa. Jan. 21, 2009), available here.

Municipal attorney David Eng alleged that his employer, the District Attorney’s office for Pasadena California, retaliated against him in violation of his First Amendment rights, in response to statements made by his attorney to the media.  Eng’s attorney made public statements claiming that the DA’s office retaliated against Eng because he complained that a city official leaked information to the IRS causing the city’s financing agreements to be withdrawn at great expense to the city.  Thereafter, Eng was temporarily suspended without pay, and later was denied numerous benefits and passed over for promotion.

The Defendants claimed they were entitled to qualified immunity and that any First Amendment rights that applied to Eng did not extend to comments made by his attorney.  The District Court disagreed and denied summary judgment, and the Defendants filed an interlocutory appeal.

The Ninth Circuit first held that Eng’s First Amendment rights extend to his counsel, since when a lawyer speaks for his client the lawyer’s right to speak is grounded in the rights of the client, and, therefore, “his words were Eng’s words as far as the First Amendment is concerned.”    Next, the court concluded that speech about the functioning of government is inherently a significant public concern and that, since Eng’s rights were clearly established at the time of the adverse actions against him, his employer was on notice that statements on issues of public concern for which he had no duty to make are protected by the First Amendment.  Thus, the Ninth Circuit affirmed the District Court’s rejection of qualified immunity and denial of summary judgment, allowing the case to proceed.

For information on The Employment Law Group® law firm’s Discrimination practice, click here.  To read Eng v. Cooley, No. 07-56055 (9th Cir. Jan. 14, 2009), click here.