Monday, November 28, 2011

I Was Granted Unemployment Compensation: Does That Mean I Have a Case?

A lot of calls I receive from potential clients stems from the State of Wisconsin granting their claim for unemployment benefits.  A lot of recently-unemployed people jump to the conclusion or infer that this means the State has found some wrong-doing or unlawfulness regarding their termination, which is not the case and I then spend a considerable amount of time explaining to people why a grant of unemployment insurance does not mean their termination was necessarily unlawful.

The Standard for Receiving Unemployment Insurance is Different from a Determination of Discrimination, etc.

A determination for granting and issuing unemployment insurance is completely and utterly different from a finding of discrimination or a wrongful termination.  Wisconsin first finds out whether the person was terminated or quit and then the standard is either "misconduct connected to their employment," or "good cause attributable to the employer."  A finding for discrimination or wrongful termination has a completely different standard and burden of proof by a plaintiff and there's actually case law that forbids the use of unemployment compensation decisions in discrimination claims.

Employment claims, for the most part, use what we call "burden-shifting schemes," which is a framework used to determine whether a plaintiff/complainant was discriminated against.  A burden-shifting scheme is simply how a case is proven in a hearing or court by the parties to show that discrimination did or did not occur.  Cases are also proven either directly or indirectly (circumstantially) whereas unemployment cases do not have burden-shifting schemes and decisions by Administrative Law Judges (ALJ) are made through evidence presented by the employer (direct evidence) and the credibility of the witnesses.  An employment discrimination case can take one to several days to litigate whereas an unemployment case takes minutes to a few hours to litigate because they're not as complex.

Obtaining Unemployment Benefits is Just a Start

Just because receiving unemployment benefits provides almost no insight into the viability of a discrimination or wrongful termination claim does not mean you should not contact a local employment attorney to discuss your situation.  Often times it is helpful for an attorney to represent a claimant at an unemployment hearing because it gives us an opportunity to ask certain questions of the former employer and to get testimony under oath and on the record regarding a termination or quit.  Obtaining unemployment benefits also means that a claimant was either fired and did not engage in misconduct or quit for good cause attributable to the employer which may help in a subsequent discrimination claim.

Massachusetts Becomes 16th State to Provide Protection Against Discrimination on Basis of Gender Identity

Massachusetts recently became the 16th state to provide protection against discrimination in employment, housing, education, and credit (but not in public accommodation) on the basis of "gender identity."  As defined by the new state law, gender identity means, “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” For evidentiary purposes, “gender-related identity” may be shown by providing “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity.”

In a nutshell, this protects homosexuals (or those that appear to be homosexual), transgenders, etc from discrimination in several areas.  Wisconsin provides protection on the basis of "sexual orientation," but not specifically for "gender identity."  There have been several attempts to pass such legislation at the national level, the Employment Non-Discrimination Act ("ENDA") but has yet to pass in Congress.

Bravo, Massachusetts.   

Tuesday, November 22, 2011

EEOC Closer to Amending Regulations on Age Discrimination Law

Back in February 2010 the Equal Employment Opportunity Commission (EEOC) proposed amendments to the Age Discrimination in Employment Act (ADEA) called, “Final Regulation on Disparate Impact and Reasonable Factors Other than Age."  Prompting the changes were recent court rulings that, according to EEOC Chair Jacqueline A. Berrien, restricted the rights of age discrimination plaintiffs.  The proposed amendments have now been forwarded to to the Office of Management and Budget (“OMB”) for review and interagency coordination.  OMB will have at least 90 days to review the EEOC’s proposed regulations.  After OMB approval, the RFOA Regulations will be published in the Federal Register.  

The proposed “reasonable factors other than age” (RFOA) Regulations create a six-pronged test (not all of which necessarily need be satisfied) to determine whether an age neutral practice or factor is reasonable:
  1. Whether the employment practice and the manner of its implementation are common business practices.
  2. The extent to which the factor is related to the employer’s stated business goal.
  3. The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers).
  4. The extent to which the employer took steps to assess the adverse impact of its employment practices on older workers.
  5. The severity of the harm to the individuals within the protected age group, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm.
  6. Whether other options were available and the reasons the employer selected the option it did.
The proposed regulations also set forth a three-pronged test (not all of which necessarily need be satisfied) to evaluate whether an employment practice or factor is age neutral:
  1. The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively.
  2. The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes.
  3. The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.
Glad to see we continue to look out for older employees who still need to work to support themselves and their families.  

Not-So-Good Interview Questions To Beware Of

Here's a quick video on some perhaps not-so-good interview questions that you maybe shouldn't answer but probably have to to avoid not getting a job.  However, these types of questions, if you don't land the job, may be evidence of potential discrimination and are good to take note of if asked in a job interview.

EEOC Reports Record Year

The Equal Employment Opportunity Commission (EEOC) recently released statistics and figures for the 2011 fiscal and revealed a record-level of complaints file and money obtained for charging parties.  From The Huffington Post article on the numbers:

The Equal Employment Opportunity Commission received just shy of 100,000 charges from citizens during the 2011 fiscal year, the most logged in a single year in the agency's 46-year history, according to a new report. The agency also managed to obtain a historic amount of monetary relief for alleged victims of job discrimination -- $365 million, the most on record.

So what explains the record level of complaints?  The article attributes a large part to the "sputtering economy" but it could also have something to do with a more aggressive EEOC since there's a Democratic regime in charge.  

The EEOC's numbers reflect the "severity of the economic downturn," says Christine Owens, executive director of the National Employment Law Project, an advocacy group for workers.
"At times like this, when job loss makes workers especially vulnerable, employers bent on breaking the law are even more likely to do so," Owens told HuffPost in a statement. "The strong report the EEOC has released today underscores how critical it is for America's workers that we maintain robust laws and regulations to ensure protection of basic labor standards."
Employment discrimination complaints filed with the EEOC have generally been rising over the previous decade, with a pronounced spike during the weak economy of the last four years.  

It would be interesting if the Equal Rights Division released figures to see if Wisconsin had a parallel record-breaking year.

Wednesday, November 16, 2011

Pregnancy Discrimination Case Against Chicago Law Firm Allowed to Proceed to a Jury

A three-judge panel for the Court of Appeals for the Seventh Circuit has overturned a district court's grant of summary judgment in a case filed by a former marketing director for Chicago-based law firm SmithAmundsen, LLC.  The plaintiff, Lisa Makowski, was fired by SmithAmundsen while she was out on FMLA leave during her pregnancy and the law firm cited "firm organizational restructuring."  However, Makowski was then told by the firm’s human resources director informed her she was actually terminated because she was pregnant and took medical leave, and suggested speaking with a lawyer. The human resources director, who monitor’s the firm’s compliance with anti-discrimination laws and consulted outside counsel before Makowski’s firing, denied saying that.

The firm's HR director's comments caused Makowski to filed suit under Title VII and FMLA but the district court granted SmithAmunden's motion for summary judgment on the grounds the comments were inadmissible hearsay.  The 7th Circuit saw it quite differently and reversed that granted motion.  From the Wisconsin Bar's article on the decision:

The district court ruled that O’Gara’s alleged statements to Makowski were not admissions by a party opponent because her job responsibility did not relate to the termination decision. Without O’Gara’s statements, the district court ruled, summary judgment was warranted. 
But the appeals panel disagreed, explaining that O’Gara’s statements were admissions by a party opponent because she was involved in the process leading up to Makowski’s termination even though O’Gara did not make the decision to terminate. 
“O’Gara’s duties as Human Resources Director at the Firm included regular consultations regarding decisions to eliminate positions and terminate employees in order to ensure compliance with federal anti-discrimination laws, making her a part of the firing process,” wrote District Judge Richard Young, sitting by designation. 
The panel ruled that a jury must decide whether O’Gara made those statements, but assuming she did for purposes of summary judgment, granting summary judgment was not warranted. 
“O’Gara’s alleged statements to Makowski, which are now admitted under Rule 801(d)(2)(D), provide direct evidence that pregnancy was a motivating factor in Makowski’s discharge,” Judge Young wrote. “Although O’Gara denies having made the alleged statements, whether or not she made such admissions is a question for the jury."

Monday, November 14, 2011

Employment Case Law Update

--Overly v KeyBank Nat’l Ass’n, 7thCir, November 10, 2011, Case No. 10-2705: Employer-defendant's motion for summary judgment, granted by lower court, on plaintiff's gender discrimination, retaliation, and hostile work environment because of gender AFFIRMED.  The facts in this case are not incredibly outrageous and it's fairly obvious to see why the 7th Circuit affirmed summary judgment for the employer but it also is easy to see why the plaintiff filed the claims she did.  Often times there is unprofessional and inexcusable conduct engaged in by the employer against an employee based on the EE's sex but court's simply consider some statements "stray remarks" or not "passing muster."  

--Bayer v Neiman Marcus Holdings, Inc, NDCal, November 8, 2011, Case No. CV 11-3705 MEJ:  Employer sought to have plaintiff's disability discrimination claim dismissed and arbitration compelled DENIED.  Although the terms of an arbitration agreement stated that continued employment constituted consent, an employee’s express rejection of the agreement, which required written acknowledgment, was sufficient to document his refusal to consent to the agreement, so an employer could not compel the employee to arbitrate a disability claim.  Instead of signing the agreement, the employee forwarded his refusal and rejection of the agreement on several occasions. Employers, therefore, should be wary of a conflict between provisions in agreements that can undermine a showing of consent.

--McIntire v Keystone RV Co, NDInd, November 9, 2011, Case No. 3:10-CV-508:  Defendant's motion to dismiss DENIED.  Plaintiff filed a claim of race and religious discrimination when employer began hiring amish employees over non-amish and fired him and hired an amish employee.  The defendant motioned to dismissed claiming that being “non-Amish” is not a category protected by Title VII.  Because this is a religious discrimination claim based on the employee NOT holding the same belief as the employer, the court properly noted that a more relaxed standard is applied in denying the employer's motion to dismiss.

--Howard v Penn Dept of Pub Welfare, EDPa, November 3, 2011, Case No. 11-1938:  Defendant's motion for summary judgment GRANTED in part, DENIED in part.  An employee’s FMLA claims survived an employer’s motion to dismiss where the employer demanded that she return to work or face discipline, refused to let her return, and then issued a second demand that she return.

Wednesday, November 9, 2011

Women Who Work in Positions with Greater Likelihood of Sexual Harassment Paid More

In a unique and interesting study by Law Professor Joni Hersch, it was discovered that women in jobs with an average probability of sexual harassment are paid 25 cents an hour more than those in jobs with no risk of sex harassment. For men, the wage differential is 50 cents an hour.  From the ABA article on the study:

Hersch adopted the same kind of methodology used to estimate boosts in pay associated with jobs where the risk is greater for death or injury. She found that women are more at risk of sex harassment in male-dominated industries such as mining. She estimates the pay differential for women miners at $2 an hour, the Post says.Hersch explained the likely reason for her findings in an interview with the Post. Unhappy workers quit jobs, she says, and the only way to keep them is to pay more. “Sexual harassment is the kind of working condition that is so universally despised that people require some compensating differential,” she says.Women in high sex-bias risk jobs would likely earn even more if there were no right to sue and other workplace protections, Hersch tells the Post.