Law Firm Slapped with Sexual Harassment and Wrongful Termination Lawsuit

A Los Angeles-based law firm, Glancy Binkow & Goldberg, is facing a sexual harassment and wrongful termination lawsuit after it fired a female investigator, Ashlee Ilewicz, 14 months into the job after she complained about the performance of an attorney with the firm and about the hostile work environment she felt she was subjected to. And, as most sexual harassment and hostile work environment claims involve, this case contains some peculiar facts:

At the conclusion of the law firm’s 2009 holiday party, founding partner Lionel Z. Glancy took employees to a Los Angeles bikini bar named Fantasy Island, paid for their admissions and bought a lap dance for at least one employee, according to the lawsuit.

The lawsuit alleges that female employees at the firm were subjected to a hostile work environment that included “partners’ obsession with discussing sex in the workplace and derogatory comments about women.” One lawyer posted photographs of naked women on the wall of his office, and partners once gave a male employee binoculars to “leer at the hot women through the office windows,” the lawsuit says.

Source: L.A. Times

Wisconsin Law Journal on EEOC Investigations

In case anyone doesn't subscribe to the Wisconsin Law Journal and did not see the article on the web, I wanted to direct attention to Attorney Warren E. Buliox's article on EEOC investigations titled, "EEOC investigations can have broad scope." It's a great, short read.

EEOC Obtains $20,000 in Consent Decree Against Wisconsin Staffing Company in Title VII Suit

The Equal Employment Opportunity Commission (EEOC) obtained $20,000 under a consent decree entered yesterday, which ends a race discrimination and constructive discharge lawsuit against Rhinelander, Wis.-based staffing firm, Wisconsin Staffing Services, Inc., doing business as Nicolet Staffing. From the EEOC press release on the decree:

According to the EEOC’s suit, the president of the company allegedly engaged in repeated, acts of racial harassment toward a Native American employee, Carolyn Red Bear, allegedly including derogatory comments about Red Bear’s “ethnic” appearance, suggestions that she seek alternative employment in personal home care as more consistent with the skills of Native American people, and statements that she did not “fit in” with the white community in Ladysmith, Wis. Despite complaints, the EEOC contended, the company allowed a non-Native American co-worker to refer to herself at work using the fictitious name “Pink Feather,” allegedly to mock Red Bear.

Ultimately, according to the EEOC, Wisconsin Staffing Services forced Red Bear out of her job when she refused to comply with a directive from the company president to cut her hair, change her last name, and to stop “rubbing in” her heritage.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which makes it unlawful to harass employees based on race, including racial harassment. The EEOC filed suit (EEOC v. Wisconsin Staffing Services, Inc.. d/b/a Nicolet Staffing, Inc., Case No. 3:10-cv-543) in U.S. District Court for the Western District of Wisconsin after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to the $20,000 in monetary relief to Red Bear, the two-year consent decree resolving the lawsuit enjoins Wisconsin Staffing Services from engaging in discrimination or harassment based on race or retaliation in violation of Title VII. The consent decree also mandates that Wisconsin Staffing will implement and distribute policies prohibiting discrimination and retaliation and set up procedures for receiving and investigating complaints. The company must also provide two hours of training on race discrimination laws to managers and employees and an additional hour of training to any manager designated to investigate discrimination complaints. The company is also required to report to the EEOC about the company’s response to any complaints of alleged discrimination and post a remedial notice.

NLRB Proposes Rule to Require Posting of NLRA Rights

The National Labor Relations Board (NLRB) has submitted to the Federal Register a Notice of Proposed Rulemaking that would require employers to notify employees of their rights under the National Labor Relations Act (NLRA), similar to postings covering safety, wage and anti-discrimination laws. From the press release on the proposed rule:

As the Notice states, the Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Massachusetts’ New Law Bans the Use of Questions About Criminal History on an “Initial Written Application” for Employment

Effective November 4, 2010, Massachusetts joined the fight against discrimination of applicants based upon their criminal information. The criminal offender record information ("CORI") law provides that it is unlawful for an employer to request criminal history information on an “initial written” employment application. The Massachusetts Commission Against Discrimination (MCAD) is the state agency that enforces this new law and has held in its Fact Sheet that any written form or application requesting an applicant’s criminal history prior to an interview falls under this prohibition. The Fact Sheet and clarification was needed because as you could expect, employers previously interpreted the CORI law to permit them to ask applicants about criminal history on documents other than the initial written application.

This law is quite different from Wisconsin's prohibition against arrest and conviction discrimination in employment. In Wisconsin it is lawful to inquire about an applicant's arrest and conviction record during the application and interview phase because it allows an employer to decide if any offense falls under the "substantially related" defense to discrimination based upon arrest and conviction record.

Minnesota Court Finds Misrepresentation During Hiring Process Amounts to Misconduct, Denies Unemployment Benefits

An unemployment benefits case out of Minnesota highlights some of the importance of how lying about or omitting information during the hiring process can cost an employee dearly, even in the absence of a disclosure policy. A grants manager, Krista Santillana, for an agency that dealt with the elderly was terminated after a year on the job after the employer discovered that she did not reveal during her job interview that she was the subject of an ongoing criminal investigation for theft at her previous employer. Apparently the employer read a newspaper account of Santillana’s conviction for felony exploitation of a vulnerable adult (writing personal checks to herself from a nursing home resident’s checkbook for amounts totaling $6,342), and then promptly terminated her employment.

Why didn't the employer know about this before they hired her? Well, during the interview process, Santillana was asked why she left her former employer and responded that she left because she was interested in part-time work. The employer never asked her about her criminal background, she did not tell her employer during the interview about the ongoing criminal investigation, and the background check that the employer performed before hiring her came back clear. After Santillana was hired, she was then charged with felony exploitation of a vulnerable adult. The employer didn't have a policy regarding the disclosure of pending criminal charges, etc and Santillana never offered the information up as a courtesy to the employer.

Upon termination Santillana applied for unemployment benefits with the State of Minnesota but was denied after the unemployment-law judge determined that Santillana was discharged for employment misconduct, which was subsequently upheld by the Minnesota Court of Appeals which clarified that “employment misconduct” includes a misrepresentation made during hiring and affirmed the denial of unemployment benefits.

It is somewhat understandable and obvious why Santillana did not inform the employer that she really separated from her last employer because of her alleged stealing and criminal activity. The employer never asked specifically about any pending criminal charges and Santillana did not want to voluntarily bring it up. Santillana did not technically violate any of the employer's policies during the hiring process however she was not 100% honest about why she left her former employer. It is clear she separated from her previous employer because of the criminal activity and the Minnesota Court of Appeals held the employer should have been informed of this despite not having a policy regarding that information.

The case is Santillana v. Central Minnesota Council on Aging and Minnesota Dep’t of Employment and Econ. Dev., No. 23466835-3 (Minn. Ct. App. Nov. 30, 2010).

Unemployment Benefits to Resume for 12,000 Wisconsin Residents

Now that Obama extended the Bush tax cuts that provided for an extension of unemployment benefits for thousands of unemployed Americans, Wisconsin residents who qualify for the extension will see their benefits resume as of Friday night when the Department of Workforce Development began processing extension payments. From the Journal Sentinel article on the extension:

The agency pointed out that the legislation does not provide additional weeks of benefits to those who have exhausted all entitlements under previous law.

In Wisconsin, claimants are currently eligible for up to 86 weeks of benefits. In other states with higher unemployment, claimants are eligible for up to 99 weeks.

The U.S. Department of Labor says 94,291 people in Wisconsin are currently receiving extended unemployment benefits beyond the 26 weeks states always provide.

***

Key details
• Retroactive payments will be mailed Monday.

• Claimants should expect to receive payment within one to three business days after the agency processes their checks.

• Claimants can confirm that their payments have been made by using the claims inquiry system at the website www.ucclaim-wi.org or (800) 494-4944.

• Claimants can see which program (or "tier") they are in by reviewing their most recent benefits statement.

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DOJ Files Title VII Suit Against Chicago School District for Refusing to Accommodate Teacher’s Pilgrimage to Mecca

In the first suit brought under a new cooperative program between the Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC), the DOJ alleges that the Berkeley School District in suburban Chicago violated the Civil Rights Act of 1964 by failing to reasonably accommodate Safoorah Khan's religious beliefs when she opted to quit her job after being denied three weeks of unpaid leave that would allow her to take a pilgrimage to Mecca.

The pilgrimage, known as Hajj, is required by Khan's religion. According to the complaint, Berkeley School District denied Ms. Khan’s request because the purpose of her leave was not related to her professional duties nor was it leave for any of the specific purposes set forth in the Professional Negotiations Agreement between the district and the teachers’ union.

The matter was initially charged with the EEOC who found reasonable cause to believe discrimination occurred and then it was referred the charge to the Department of Justice after conciliation failed. Here is the DOJ Press Release on the suit.

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7th Circuit Overturns Eastern District of Wisconsin Injunction Against Republic Airways in Union Dispute

The Court of Appeals for the Seventh Circuit issued an opinion, authored by Judge Richard Posner, yesterday addressing what it labeled, "...a novel question under the Railway Labor Act, 45 U.S.C. §§ 151 et seq., which despite its name also governs labor relations in the airline industry."

The problem originated when Republic Airways acquired Frontier Airlines in October of last year. As with every acquisition, a number of changes were made and Republic Airways announced that it was shifting maintenance work on Frontier’s aircraft to Milwaukee—where maintenance is performed by nonunion workers—from Denver, where Frontier’s maintenance workers are represented by the Teamsters Union. Teamsters argued that its collective bargaining agreement with Frontier determines the rights of Frontier mechanics affected by the shift.

Republic Airways disputes Teamsters' position and asserts that the airlines that it owns, although separately incorporated, constitute a “single transportation system” or “single carrier,” within the meaning of the Railway Labor Act. This is significant because if it is held that Republic Airways and all that it owns is a "single carrier," then the Teamsters Union would not represent a majority of its members, and would not be authorized to represent Frontier’s workers.

Prior to reaching the 7th Circuit, the U.S. District Court for the Eastern District of Wisconsin issued a preliminary injunction forbidding Republic from altering pay, work rules, or working conditions until the National Mediation Board rules on the issue of whether Frontier is a single transportation system. The 7th Circuit found a problem with this injunction:

The injunction issued in this case does have a problem, but not a problem having to do with the district court’s authority—rather a problem with how that court has exercised its equitable discretion. The injunction maintains, for the indefinite future (it has no expiration date, and is “preliminary” in name only), what may well be an illegal status quo—a union supported by only a fourth of the bargaining unit yet acting as the bargaining representative of that minority. We are given no reason to think that a majority of Republic’s mechanics want to be represented by the Teamsters Union, and if not they may be placed at a disadvantage if Republic is required to extend special privileges to Frontier’s mechanics.

That is, the District court has placed a union in a workplace outside of federal law governing unionization of an airline. The 7th Circuit held that this "perverse result" can be fixed through "the application of age-old equitable principles" and ruled that the injunction must be modified to condition continuance on the Teamster Union’s prompt application to the National Mediation Board for a ruling on its representation status.

The case is Int’l Brotherhood of Teamsters Airline Division v. Frontier Airlines, Inc., No. 10-2291 (De. 13, 2010).

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NLRB Weekly Summary of Cases

For the week of December 6-10.





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Milwaukee Journal Sentinel Article on the Wisconsin Education Association Council

The Milwaukee Journal Sentinel has an article about WEAC and their known resistance to change and reform. Very interesting read.


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Winter Weather Stalls Union Contract Vote at Kohler

Today the United Auto Workers (UAW) Local 833 was scheduled to vote on a new labor contract but that has been cancelled due to the snow that has finally arrived in the Milwaukee area. A new date and time has not been set for the vote.




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Employer's Remarks About Employee's Miscarriage and Pregnancy Allow Discrimination Claim to Move Forward

A former employee, Pauline Rumbley, who first miscarried then became pregnant again within one year was terminated after allegedly failing to improve her job performance after being placed on a performance improvement plan (PIP). Prior to her termination, the employee complained to several human resource members about experiencing harassment related to her pregnancy and requested to be transferred to other positions including one beneath her skills and experience and that paid less but was denied. Part of the reason the former employee felt she was being harassed because of her pregnancy was because:

1) During the first pregnancy,Rumbley told May (her supervisor) that she was expecting. When she miscarried, Rumbley missed work. Upon her return to work following the miscarriage, Rumbley asked May if she could fill out a slip for sick leave and asked May to sign her sick leave slip. At that point, May told Rumbley “that he didn’t want [her] to start abusing [her] sick leave. And he asked if [she and her partner] were going to try again.”

2) Rumbley informed May on April 10, 2008, that she was expecting again. May responded by saying: “Look around, how many pregnant women do you see?”. Rumbley replied “None.” And then, according to Rumbley, May “said something about keeping it that way . . . [, w]e plan on keeping it that way[, or] we should keep it that way.”

3) On May 19, Rumbley and May met again. May remarked during the meeting that “even if they had to pay for maternity leave[,] then [Rumbley] sure as hell wouldn’t have a job when [she] came back.”

4) May confirmed to Rumbley, via a head nod, that another supervisor was trying to get rid of her beause of her pregnancy.

These comments loaned themselves to the Plaintiff to pursue a sex discrimination claim under Title VII as direct evidence and to avoid summary judgment on her disparate treatment claim, ruled the federal district court in Alabama.

The case is Rumbley vs. Austal USA , Civil Action No. 1:09-499-KD-B

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Employment Case Law Update

--Hertz v Luzenac America, Inc., DColo, November 29, 2010: Employer's motion for summary judgment of former employee's Title VII retaliation claim DENIED. This case is very complicated and has involved a whole lot of litigation and a whole lot of motions. This motion involves the employer's attempt to get the former employee's claim that he was retaliated against by the Defendant when it “falsely accused him of stealing its trade secrets” and by filing “baseless counterclaims against him” dismissed. The court denied this motion because it held the alleged false accusations made by the Defendant in an email to constitute a "materially adverse action" under the prima facie case in their burden under the McDonnell Douglas burden-shifting framework. However, the court did not find the employer's counterclaims to be a "materially adverse action."

--Woolsey v Klingspor Abrasives, Inc., NDTex, December 1, 2010: Court DENIES in part and GRANTS in part Defendant's motion for summary judgment. Plaintiff filed age and sex discrimination claims under the ADA and Title VII and Texas state statutes and retaliation claims under those statutes as well. Plaintiff produced evidence of a remark (employer stated two older employees were no "spring chickens") that related to his age and showed that Defendant's reason for terminating him differed in several areas and at several times which allowed him to survive summary judgment on his age claim.

With respect to Plaintiff's sex discrimination claim, he failed to respond to Defendant's response and was deemed to have abandoned the claim. Likewise, Plaintiff's retaliation claim failed even though a clever attempt to use the expanded definition of "adverse employment action" under Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) was implemented to suggest Defendant's filing of a declaratory judgment could be viewed as dissuading him from "asking his lawyer to write a letter to the former employer, raising allegations of age discrimination and retaliation, where the employer responds with an out-of-state lawsuit against that now unemployed worker." The court was unconvinced by this argument because Plaintiff filed an EEOC complaint a mere 12 days after the filing of the declaratory judgment.


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NLRB Weekly Summary of Cases

For the week of November 29, 2010-December 3, 2010.








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Skip the Holiday Party, Say Employees

It's that time of year where the office holiday party is typically held and while employers are continuously learning how not to host a party because of legal liabilities like sexual harassment and drunk driving, employees appear to be in agreement that more money in their pocket is desired over the annual office holiday party.


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Enochs Law Firm on WISN 1130am Talk Radio's "Valor Latino" This Weekend

This Sunday from 9:30-10am I will be interviewed on Milwaukee's News/Talk 1130am WISN Sunday radio show, "Valor Latino," hosted by Perfect Rivera. Tune in!

UPDATE: The show will air Sunday, December 19, 2010 from 9:30-10am.

Enochs Law Firm in Wisconsin Law Journal

I recently provided commentary for an article in the Wisconsin Law Journal titled, "Antisocial networking can backfire," about the recent NLRB complaint filing in Connecticut regarding an employee's Facebook posting about her place of employment. Have a look!