On May 18, 2010, Law360 reported on the latest news from Kennedy v. Virginia Polytechnic Institute and State University which we previously blogged about here and here.  The plaintiffs, a group of women working in the school’s development office, originally filed suit in November of 2008, claiming that they were paid less than equally qualified men who held the same fundraising jobs.  The plaintiffs have now filed a motion to certify a class action alleging that the school engaged in a pattern and practice of discrimination against female employees in the development office, paying females on average 15.2 percent less their male counterparts.  The motion seeks to certify a class of all female fundraisers hired between 2005 and 2009, approximately 25 individuals. 

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 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.

On February 16, 2010, U.S. District Court for the District of Columbia Judge James Robertson allowed TELG client Mary Kate Breeden to proceed with her FMLA retaliation claim in Breeden v. Novartis Pharmaceuticals Corp.. Breeden worked as a pharmaceutical sales representative.  After announcing that she intended to take maternity leave, Novartis announced a restructuring of their sales territories reassigned Breeden to an area with lower sales.  After she objected, her manager said the change was temporary and that she would be “made whole.”  When she returned from leave, Breeden learned that the changes were permanent and was never “made whole.”  Novartis later reorganized the territories again, at which time they consolidated Breeden’s territory with another and terminated her position. 

Novartis claims that it would have taken the same actions regardless of Mrs. Breeden’s use of FMLA leave and sought summary judgment of her claims.  Judge Robertson granted the motion in part and dismissed Breeden’s discrimination claim.  However the Judge found that her employer’s decision not to make her “whole” could be seen as retaliatory.  The Judge held that “employees might reasonably fear that asserting their rights under the FMLA, as Breeden did, would result in diminished sales territories, with attendant risks of reduced opportunities for promotion and increased risk of termination.”  Further “Novartis’s eventual decision to terminate Breeden’s employment provides some ex post confirmation of the reasonableness of such fears.”

For more information about The Employment Law Group® law firm’s Family and Medical Leave Act Practice, click here.

On February 1, 2010, District of Columbia Superior Court Judge Erik Christian denied the defendants’ Motion to Dismiss in Altan v. IK Retail Group.  The defendants sought dismissal of Mr. Altan’s claims which include allegations of sexual orientation discrimination and retaliation.  The defendants argued that the court lacked subject matter jurisdiction, forum non conveniens, and that Mr. Altan had failed to state a claim upon which relief may be granted.

In siding with Mr. Altan, the court noted that the laws of the District and Maryland are substantially similar in this area and Maryland law grants venue both where the prohibited actions took place and the location where the decision was made to engage in the unlawful acts.  The court then proceeded to examine both public and private interest factors.  Observing that “the case involves a Defendant who is headquartered in the District of Columbia, and a substantial amount of the alleged discrimination against [the] Plaintiff originated in the District of Columbia,” the court found that it had the authority hear the matter and was unconvinced that there were any burdens sufficient to disturb Mr. Altan’s choice of forum.  

In analyzing defendants’ argument that Mr. Altan failed to state a valid claim, the court was clearly moved by the egregious facts alleged in Mr. Altan’s complaint, and found that it was certainly possible for Mr. Altan “to prove a set of facts which would entitle him to relief.”  A copy of the order is available here.

For more information on The Employment Law Group® law firm and its Sexual Orientation Discrimination Practice, click here.

On January 20, 2010, the Eleventh Circuit issued an en banc decision ruling that, “a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.”  The unanimous ruling came in a rehearing and affirmation of an earlier 3-judge panel which overturned the district court’s grant of the employer’s motion for summary judgment in Reeves v. C.H. Robinson Worldwide, Inc..

Reeves, the only female employee on the sales floor of a shipping company was confronted with such extreme vulgarities that the Eleventh Circuit’s opinion contains a disclaimer that “we do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read has having created ‘an environment that a reasonable person would find hostile and abusive.’”  In addition to offensive language, Reeves also observed her co-workers discussing the anatomy of another female employee and witnessed a co-worker viewing pornography on his computer.  Reeves attempted unsuccessfully to resolve the issues with her co-workers, middle, and senior management and at one point was told, “better wear your earplugs tomorrow.”  Reeves resigned and filed a Title VII complaint in the U.S. District Court for the Northern District of Alabama. 

Examining the record, the Eleventh Circuit found “a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace.”  The court applied a disparate treatment analysis and isolated the issue to whether “the conduct alleged. . . created a hostile work environment that ‘exposed [Revees] to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed.’”  The court distinguished between general and indiscriminate vulgarities and references to sex from repetitive “comments addressed to the plaintiff’s ‘target area’,” which the court said may constitute actionable harassment. The court next addressed the employer’s inaction, finding their complacency to be the same as an affirmative authorization of the conduct and thus an intent to discriminate.  The court also rejected the employer’s argument that it lacked intent since the same behavior took place before Reeves was hired. 

In an important win for victims of harassment and discrimination, the Eleventh Circuit declared that insults aimed “at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”  Accordingly, a “jury could reasonably find. . . the alleged offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender,” creating a hostile environment.  Also of note, the court observed that insulting a man by comparing him to a woman could be taken as humiliating to women as a group as well.

This decision affirms the right of employees not to suffer conditions in the work place that are disparately humiliating, abusive, or degrading.  The Employment Law Group® has developed a practice committed to protecting the rights of employees.  For information on The Employment Law Group® law firm’s Sexual Harassment Practice, click here.

On January 5, 2010, United States District Court Judge Bernice B. Donald denied, on all counts, defendant Hilton Hotels’ motion for summary judgment of state and federal claims of discrimination and retaliation, allowing Kumar v. Hilton Hotels Corp. to proceed to trial.  Mr. Manoj Kumar, an Indian native and former information technology department employee, alleges that he was denied a promotion due to alienage, retaliated against, and ultimately terminated in violation of Title VII of the Civil Rights Act, Section 1981, and the Tennessee Human Rights Act. 

Also included in Mr. Kumar’s complaint are allegations that he was told to start a business selling statues of a Hindu god and ridiculed over his accent.  After attempting to assert his rights, Mr. Kumar was retaliated against and ultimately terminated.  Hilton Hotels claims that the adverse employment actions suffered by Mr. Kumar were related to performance and in no way related to his national origin or alienage.  They also claim that continued poor performance and behavioral issues were to blame for his termination and not his engagement in the protected behavior of asserting his rights.  Finding that genuine issues of material fact exist surrounding all claims, Judge Donald appropriately denied the motion on all counts.  Importantly, Judge Donald also found direct evidence of alienage discrimination, prohibiting summary judgment from being granted.  A copy of the opinion is available here.  A jury trial is scheduled to begin January 19, 2010.

Mr. Kumar is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information on the firm’s Discrimination Law Practice, click here.

Earlier this week, Outback Steakhouse agreed to pay $19 million to settle a sex-discrimination class action brought by the Equal Employment Opportunity Commission.  The suit, filed in 2006, alleges that the company discriminated against female employees by not allowing them to advance to management positions.  OSI Restaurant Partners, the parent company of Outback denies the allegations and stated that settling the suit with funds provided by insurance was preferable to continued litigation.  The settlement also requires Outback to hire an outside consultant and implement an online application system to ensure equal opportunities in the future.  In 2001, Outback settled a sex-discrimination brought by a corporate level female employee for $2.2 million.

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