On March 26, 2010, Law360 reported on U.S. District Court for the Western District of Virginia Judge James C. Turk’s denial of the defendant’s motion to dismiss a putative class action alleging violations of the Equal Pay Act and Title VII.  The lawsuit, Kennedy et al. v. Virginia Polytechnic Institute and State University, claims that the school consistently discriminated against female employees and applicants and paid them less than their male counterparts. 

According to the complaint, Kennedy was offered a position with a salary $20,500 lower than the starting salary of the male she was replacing.  Explaining the difference in pay, the hiring manger told Kennedy, “you are a woman, and you’re not the head of your household.”  Her would-be predecessor “had a family to support and mouths to feed at home – that is why he was paid what he was paid.”  Further justifying her lower pay, Kennedy was told that, “‘hiring a woman can be a liability’ because ‘they could get pregnant’” and need time off.  A copy of the Memorandum Opinion is available here.

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 5, 2010, a jury in the United States District Court for the District of Columbia found Novartis Pharmaceuticals liable for retaliation in violation of the Family and Medical Leave Act (FMLA), awarding Mary Kate Breeden over $289,669 in back pay.  Under the FMLA’s liquidated damages provision, this amount is automatically doubled and entered as a partial judgment of $579,338.  The District Court has yet to decide the amount of front pay, attorney fees, and costs to award.

Kate Breeden worked as a pharmaceutical sales representative for Novartis.  After announcing that she was pregnant, Novartis cut her sales territory in half leaving her with fewer and smaller accounts.  When she objected to the change, her supervisor said it was temporary and that she would be made “whole.”  Upon returning from maternity leave, Ms. Breeden was informed that the changes were permanent.  Novartis later reorganized the sales territories again, at which time they consolidated her territory with another and eliminated her position.  Defending their actions, Novartis claimed that an outside consulting firm organized the realignment and did not take Ms. Breeden’s FMLA leave into account.  However, her maternity leave was mentioned in a Powerpoint presentation given by the consulting firm.

The jury found that Novartis retaliated against Ms. Breeden by cutting her sales territory when she announced that she was going to take leave or later when Novartis refused to make her “whole” after she returned to work, ultimately hurting her career and leading to her termination.  Ms. Breeden is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information about Mr. Carter, Mr. Oswald and the firm’s Family and Medical Leave Act Discrimination Practice, click here.

On March 1, 2010, it was announced that Wal-Mart reached an $11.7 million settlement with the EEOC, ending an almost nine-year-old class action lawsuit.  The action, filed August 24, 2001, accuses Wal-Mart of discriminating against female job candidates for orderfiller positions at its London, Kentucky distribution center. 

Under the settlement, the first 50 openings for orderfiller positions at the London, Kentucky distribution center must be filled by female class members from a list provided by the EEOC.  For the next 50 orderfiller openings, every other position will be filled by a female class member from the EEOC list.  Thereafter, one of every three available orderfiller positions must be filled by an individual from the list.  Individuals offered the job are still subject to the criteria applicable all applicants for that position. 

In addition, Wal-Mart has agreed not to discriminate against females in filling orderfiller positions, to refrain from retaliating against those who oppose unlawful employment practices or participate in investigations or proceedings under Title VII, and to provide ongoing Title VII training to interviewers and managers.  Wal-Mart will also “make an effort to place its advertisements for employment in local publications which are geared toward female readers.”  A copy of the consent decree is available here.

For more information on The Employment Law Group® law firm’s Employment Discrimination Practice, click here.

On February 18, 2010, the Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking in the Federal Register.  The proposed rule will address the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA) in response to the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008). 

In Smith, the Court held that a disparate impact claim can be made under the ADEA but that such claims are limited by the RFOA provision of the ADEA.  In Meacham, the Court held that the RFOA provision of the ADEA creates an affirmative defense for employers.  Seeking to clarify the scope and application of the RFOA provision, the EEOC has proposed amendments to 29 C.F.R. § 1625.7 which would add the following:

• A totality of the circumstances test specifying that the analysis of an RFOA defense “must be made on the basis of all the particular facts and circumstances surrounding each individual situation.”
• A definition for “reasonable” and a sample list of factors to examine when determining whether an employment practice is reasonable.  Generally, “a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer” that is “mindful of its responsibilities under the ADEA.” 
• A sample list of factors to consider when determining if an employment practice is based on “factors other than age.”

For more information on The Employment Law Group® law firm’s Age Discrimination Practice, click here.