Earlier this month, the Mexican American Legal Defense and Education Fund (MALDEF) filed a lawsuit against the New Mexico Motor Vehicle Division (MVD) in the First Judicial District Court of New Mexico on behalf of former MVD employee and whistleblower, Laura Montaño. MALDEF alleges that Montaño was unlawfully terminated in retaliation for complaining about “several improper and discriminatory acts carried out as part of the MVD’s ‘Foreign National Residency Recertification Program.’”

Montaño’s complaint alleges that the MVD fired her after she opposed discriminatory practices against Latinos, which she claimed were carried out as part of MVD’s “Foreign National Residency Recertification Program.” According to Montaño, MVD prohibited her from translating or speaking to license applicants in Spanish. Montaño also contends that MVD was committed to cancelling as many licenses as possible.  The MVD deliberately targeted 10,000 foreigners, mostly Latinos, ordering them to attend mandatory meetings to “re-verify” their state residency by showing documents they had previously provided. The MVD then canceled the licenses of those who missed their appointments.

In addition to seeking compensatory damages for Montaño, MALDEF asks that MVD reinstate Montaño to her prior position, remove any negative information from her employment file, and pay litigation costs and attorneys’ fees.

The Employment Law Group® law firm has an extensive discrimination practice and represents employees who have been victims of retaliation and discrimination in the workplace.

Pepsi Beverages, one of the world’s largest beverage companies, agreed to pay $3.13 million to resolve allegations that Pepsi’s use of criminal background checks discriminated on the basis of race. The charges of racial discrimination were filed by the Equal Employment Opportunity Commission (EEOC) in Minneapolis, Minnesota.

The EEOC found “reasonable cause” to believe that background checks used by Pepsi violated Title VII of the Civil Rights Act of 1964 by discriminating against African-American job applicants. When not relevant for the job, the use of arrest and conviction reports to deny employment can violate Title VII because such a policy can limit applicants’ employment opportunities on account of their ethnicity or race.

According to the EEOC, Pepsi’s hiring policies adversely affected more than 300 African Americans job-seekers by disproportionately excluding them from employment. Pepsi’s former hiring policy excluded job applicants who had been arrested and whose prosecution was pending,  even if the applicants had never been convicted of any crime. The former hiring policy also excluded those who were arrested or convicted of minor offenses. Pepsi changed its criminal background check policy during the the EEOC investigation.

Julie Schmid, Acting Director for the EEOC’s Minneapolis Office, offered advice as to how companies should use criminal background checks for job applicants, stating:

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII.”

The $3.13 million settlement will be divided among African-American job applicants affected by Pepsi’s policy.  A portion of the settlement will be allocated to cover the EEOC’s administrative costs.

In addition to the monetary settlement, Pepsi will offer employment to qualified applicants who were adversely  affected by the previous hiring policy. Finally, the company agreed to allow the EEOC to monitor Pepsi’s new hiring practices for criminal background checks and will offer training to its hiring manager.

The Employment Law Group® law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been victims of discrimination in the workplace.

Matrix, L.L.C., a regional cleaning conglomerate based in Philadelphia, agreed to pay $450,000 to settle a racial discrimination and retaliation lawsuit filed by the Equal Employment Opportunity Commission (EEOC).

According to the complaint filed by the EEOC on behalf of 15 former employees, Matrix managers required that their African American employees sit in the back of the cafeteria while taking breaks.  Later, according to the lawsuit, Matrix completely prohibited African Americans from using the cafeteria for breaks.  Matrix then allegedly fired all of its African American employees and hired non-African Americans in their place.

Matrix also allegedly ordered its supervisors to discriminate against its African American employees. Matrix advised Barbara Palermi, a white supervisor, not to hire any more African Americans to work at a patron’s site in Concordville, Pennsylvania.  Palermi ignored the company’s mandate and hired qualified African Americans.  Matrix allegedly fired Palermi in retaliation for her opposition the company’s discriminatory hiring policy.

Title VII of the Civil Rights Act of 1964 prohibits both employment discrimination on the basis of race and retaliation against employees who oppose racially discriminatory practices. The EEOC filed its suit in the U.S. District Court for the Eastern District of Pennsylvania.  The court issued the consent decree approving the settlement on January 4.

In addition to agreeing to pay $450,000 to the class of 15 former employees, Matrix will institute training sessions for its supervisors and managers on the legal prohibitions against race-based discrimination and retaliation. Finally, Matrix is required to report any complaints of racial discrimination or retaliation for a period of three years.

The Employment Law Group® law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been victims of discrimination in the workplace.

On December 14, 2011, the New York Civil Liberties Union (NYCLU) filed a complaint against the Intelligence Department of the New York City Policy Department (NYPD) claiming that it promoted white officers over more qualified African-American officers. The three complainants, who are African-American detectives, allege that NYPD Deputy Commissioner David Cohen and Assistant Chief Thomas Galati maintain a “secret list” of mostly white officers whom they plan to promote.

NYPD Deputy Commissioner Paul Browne denied the allegations, saying that there is no “secret list” and that the department has a formal review process that is based on job  performance and years in rank. But the complainants allege that they were overlooked for promotions on multiple occasions despite their excellent work records and recommendations from superiors. In addition, they claim that no African-American in their unit holds a rank above sergeant and that most serve as third grade detectives, with a salary differential of $30,000 per year.

According to the complaint, “The NYPD has chosen to cloak promotions in secrecy, and give the all-white high-level supervisors who run the Intelligence Division unfettered discretion to handpick white detectives for promotion over more qualified African-American detectives.”

The complaint was filed with the Equal Opportunity Employment Commission (EEOC) and asks the EEOC to investigate the alleged discrimination.

The Employment Law Group® law firm has an extensive employment discrimination practice and represents employees nationally who have been the victims of racial discrimination in the workplace.

On January 11, 2012 the U.S. Supreme Court issued its decision in the in the Hosanna-Tabor v. EEOC case, holding that clergy members employed by religious institutions may not bring employment discrimination suits against their employers.

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The unanimous decision was the first time that the Supreme Court has recognized the so-called ‘ministerial exception’ to federal employment discrimination laws. The doctrine was originally developed by lower courts and blocks religious clergy from bringing employment lawsuits against the faith-based organizations that employ them.

The case was originally brought by the Equal Employment Opportunity Commission (EEOC) on behalf of Cheryl Perich, a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Michigan. After being diagnosed with narcolepsy, Perich took leave from work and was not allowed to return, allegedly because of her disability. When Perich threatened to take legal action for retaliation under the Americans with Disabilities Act (ADA) she was terminated. At issue in the case whether the ministerial exception barred such suits and whether Perich qualified as a minister under the exception.

The trial court dismissed Perich’s suit, holding that the ministerial exception applied to her and therefore she could not sue the church. The U.S. Court of Appeals for the Sixth Circuit, however, reversed the trial court’s ruling and held that the ministerial exception was inapplicable to Perich because the majority of her employment consisted of teaching secular subjects, not religious ones, and therefore she could not be designated as a ‘minister’.

The Supreme Court reversed the Sixth Circuit by holding that Perich qualified as a minister for the purposes of the exception. However, the Court did not set out a precise formula for determining when an employee qualifies as a minister. The Court rejected the Sixth Circuit’s functional test which sought to determine whether the plaintiff’s work duties were mostly secular or religious, but it did note as significant that the school had given Perich the title of minister after a period of study and training, that Perich held herself out as a minister, and that her work duties did include some religious functions.

Writing for the Court, Chief Justice Roberts outlined the court’s rationale for the ministerial exception by noting that permitting discrimination suits against religious groups may require them to accept or retain unwanted clergy. Such an action would, according to the Chief Justice, “[infringe] the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.” Additionally, the opinion noted that allowing clergy to sue religious institutions would violate the Establishment Clause, which prohibits government involvement in religious organizations’ decisions.

In its opinion, the Court limited its holding to the case before it and declined to extend the ministerial exception to other types of employment-related suits that religious ministers could bring against a religious employer, such as breach of contract or tort-based claims.

Some commentators expressed concern that the ministerial exception would allow a religious organization to fire clergy for reasons wholly unrelated to religion and that clergy would be prevented from seeking court assistance in the event that they experienced workplace harassment.

The Employment Law Group© law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been victims of disability discrimination by their employers.

On January 17, 2012, the U.S. Court of Appeals for the Sixth Circuit held that courts in its circuit must apply a burden-shifting test when assessing interference claims under the Family and Medical Leave Act (FMLA).

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The case was originally filed in the U.S District Court for the Eastern District of Michigan by Gwendolyn Donald, a former employee of Sybra LLC which employed Donald as a cashier at its Arby’s restaurant. Donald claimed that the company terminated her employment because of her medical conditions. The case was brought under the FMLA, the Americans with Disabilities Act (ADA), and included a state law claim under Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). The district court granted summary judgment in favor of Sybra, which Donald then appealed to the Sixth Circuit.

The Sixth Circuit held that Donald had failed to show that her employer’s justification for her termination was pretextual. Additionally, the Court held that courts should use apply the burden-shifting approach formulated by the U.S. Supreme Court’s decision in McDonnell Douglas v. Green in FMLA retaliation cases where an employee shows indirect evidence of a causal connection between a protected activity and an adverse employment action.

The Sixth Circuit concluded that this burden-shifting framework should also be used in FMLA interference cases, as its prior decision in Grace v. USCAR had “effectively adopted the McDonnell Douglas tripartite test.”

After determining that Grace was binding precedent, the Court then held that the district court had not erred in applying the burden-shifting approach to Donald’s interference claims and that the dismissal of Donald’s claims had been appropriate.

The Employment Law Group© law firm has an extensive leave interference and retaliation practice and has experience fighting for employees whose rights under the Family and Medical Leave Act (FMLA) have been violated.

Discount retailer Family Dollar Stores of Virginia, Inc. has agreed to pay $45,000 to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) last year.

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The settlement comes after the EEOC filed a lawsuit on September 29, 2011 in the U.S. District Court for the Eastern District of Virginia, alleging that Chanele Brown, a customer service representative, was sexually harassed by her store manager at the Family Dollar Stores of Virginia’s Richmond location.  The complaint alleges that Brown’s manager physically assaulted her and made unwanted sexual advances toward her.  The complained also accuses the manager of reducing Brown’s work hours and threatening not to reinstate the hours unless she allowed him to visit her at home. Brown refused her supervisor’s request and resigned the following day

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace. The EEOC brought the suit after it initially attempted to reach a pre-litigation settlement through its conciliation process.

According to the consent decree approving the settlement, Family Dollar has agreed to provide its employees with copies of the company’s anti-discrimination policies as well as the procedures for filing complaints. The company has also agreed to provide training to managers and employees regarding these policies.

EEOC Charlotte regional attorney Lynette A. Barnes commented on the settlement:

“Employers are reminded that it is not enough to have policies prohibiting sexual harassment in place, hidden away in a handbook somewhere.  Employers must ensure that employees are adequately informed of these policies and of procedures for making complaints about sexual harassment.”

The Employment Law Group® law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been victims of discrimination in the workplace.

On January 11, 2012 the U.S. Supreme Court heard oral arguments regarding whether state employers are subject to lawsuits seeking monetary damages under the self-care provision of the Family and Medical Leave Act (FMLA).

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Specifically, the case, Coleman v. Maryland Court of Appeals, considers whether a provision of FMLA that permits states to be sued for damages if the state does not provide sick leave to employees violates states’ immunity under the Eleventh Amendment.

Daniel Coleman, a former employee of the Maryland Court of Appeals, filed the lawsuit in the U.S. District Court for the District of Maryland alleging that he was terminated after requesting sick leave. The self-care provision of FMLA gives employees with serious health conditions the right to request unpaid medical leave. The district court dismissed Coleman’s suit and the U.S. Court of Appeals for the Fourth Circuit upheld the dismissal, finding that Congress had not abrogated the states’ sovereign immunity by passing the self-care provision of FMLA.

Coleman contends that Congress acted within its authority under the Equal Protection Clause of the Fourteenth Amendment when it enacted the self-care provisions of FMLA. Coleman’s attorneys argued that Congress enacted the self-care provisions to address stereotypes that female employees need more leave than men and, that by mandating that employers provide leave to both male and female employees, the self-care provision would thereby lessen the incentives employers have to hire only men.

Additionally, Coleman’s attorneys argued that because in Nevada v. Hibbs the Supreme Court held that the family leave provision of the FMLA was a valid exercise of Congress’ Fourteenth Amendment powers to prevent discrimination, the Court should not view the self-care provision as separate from the other leave provisions of FMLA that the Court previously upheld.

The case is important because its ruling may impact millions of state employees’ rights to sue their employers for monetary damages when their employers violate federal employment laws. The Supreme Court is expected to rule on the case later this year.

The Employment Law Group® law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been denied their rights under the Family and Medical Leave Act (FMLA).

BOK Financial Corporation, also known as the Bank of Albuquerque, allegedly violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) by firing two female employees and disciplining another female employee over the age of forty.

On January 4, 2012, the EEOC, on behalf of three women, Elizabeth Morantes, Yolanda Fernandez, and Betty Brewer, sued the Bank of Albuquerque, claiming sex and age discrimination.  According to the EEOC’s complaint, Morantes and Fernandez, who were bank managers, and Brewer engaged in behavior that was also engaged in by their younger male counterparts.  The bank allegedly fired Morantes and Fernandez and disciplined Brewer but took no action against the male employees.

Title VII prohibits workplace discrimination on the basis of sex and the ADEA prohibits discrimination on the basis of age for workers aged 40 and above.  Speaking on behalf of the female plaintiffs, EEOC Regional Attorney Mary Jo O’Neill stated, “longtime employees should not be jettisoned because of their age and sex. Discrimination on the basis of age and sex violates federal law.”

The suit was filed in the U.S. District Court for the District of New Mexico.  In addition to seeking monetary relief for the three women, the EEOC also seeks an injunction which would prohibit the bank from engaging in any further acts of discrimination.

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On December 22, 2011, Joni D. Ffrench sued PricewaterhouseCoopers LLP (PwC) in Texas for sex discrimination and retaliation.  Ffrench, an attorney and former PwC director, claims PwC paid higher salaries to less experienced male directors.  Ffrench also claims PwC fired her when she complained about the pay disparity.  The suit alleges that PwC violated the federal Equal Pay Act as well as Texas state employment laws.

Ffrench, a PwC director with 25 years of experience in corporate law, worked for PwC as a Chief Compliance Officer for approximately three years before PwC fired her in 2009.  While at PwC, she learned in 2007 from PwC President Mike Milani that her male peers earned higher salaries than her own.  Milani encouraged Ffrench to talk to PwC partner Cyrus Pardiwala about her salary.  Ffrench alleges that, “after numerous discussions and an exchange of correspondence, [she] essentially received a ‘keep up the good work’ and ‘we’ll get back to you’ response from Pardiwala.”  PwC, through Milani, fired Ffrench, despite excellent performance evaluations, two months after she questioned the pay disparity.

Ffrench seeks compensatory and punitive damages, in addition to attorney’s fees and expenses.    She also seeks reinstatement to her former position or, alternatively, front pay, including lost benefits and bonuses.

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