October 27, 2011

Twenty Years Later, Workplace Sexual Harassment and Anita Hill Still Linked

It was 20 years ago this month that Anita Hill testified against U.S. Supreme Court nominee Clarence Thomas regarding sexual harassment. Her accusations were part of testimony subpoenaed during a Senate investigation into Clarence Thomas. At the time of the alleged harassment, Clarence Thomas was her boss at the U.S. Department of Education and, ironically, the Equal Employment Opportunity Commission (EEOC). Ms. Hill's disappointment in Clarence Thomas eventually being confirmed by the Supreme Court was in part a result of feeling "...they didn't understand the relevance of my testimony to Thomas' respect for the law. He did these things while he was in charge of enforcing sexual harassment laws."

But the confirmation of Clarence Thomas did not stop Ms. Hill's testimony from positively affecting sexual harassment. In 1980, only one sexual harassment complaint was filed with the EEOC. After Ms. Hill's testimony in 1991, 6870 complaints were filed. That number almost doubled again in 1992, and the complaints continued to increase for years, only tapering off more recently. What was once a subject too embarrassing to discuss became common conversation in workplaces across the nation. Women who previously kept quiet for fear of losing their jobs or other retaliation began seeking justice.

Sexual harassment was included in Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and retaliation in the workplace. Years later, the Civil Rights Act of 1991 was passed, strengthening sexual harassment and all other discrimination laws by allowing a complainant to seek emotional distress damages and have a jury trial.

What constitutes sexual harassment? The EEOC website says:

"Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer."

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October 18, 2011

One Kentucky Employment Lawsuit Ends and Another Begins

In October 2009, Dawn Simpson filed a lawsuit against the city of Louisville after allegedly being sexually harassed and retaliated against by her former employer at Louisville Metro Animal Services. According to the suit, the former director of Metro Animal Services began sexually harassing Ms. Simpson shortly after she began working there in 2007. After Ms. Simpson complained to the second person in command, the suit alleges she was retaliated against by not being allowed to hire employees, make decisions on animal euthanasia, or utilize shelter volunteer coordinators. Her suit with the city of Louisville was settled this year for $287,000. Both men involved in the suit have resigned from their positions.

Ms. Simpson's claim stemmed from her employer touching her stomach and making inappropriate comments about her physical appearance. Other examples of sexual harassment that create a hostile work environment include crude jokes or sexually explicit photos or pictures being visible in the workplace. Another type of sexual harassment is quid pro quo sexual harassment. In this type of harassment, an employee must provide sexual favors to maintain or improve his or her position, benefits, or salary. Employees often believe that if they perform the sexual favors they cannot file a claim, but this is not the case. If the employee felt they had to do it, a sexual harassment lawsuit can be filed.

In a new workplace lawsuit in Lexington, Kentucky, Cynthia Elliot has filed a claim against the Appalachian Research and Defense Fund of Kentucky (AppalReD) alleging she was discriminated against because of her race and gender. Ms. Elliott, who is black, also felt she was retaliated against for firing white employees when she was terminated in January. The AppalReD board states she was fired after an audit showed the agency had spent $1 million more than its budget over four years and because funds were allegedly missing.

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October 14, 2011

Are Friends and Relatives Protected by Anti-Discrimination Laws in the Workplace?

They may be, according to the U.S. Supreme Court. In September, 2002, Miriam Regalado filed a complaint with the Equal Employment Opportunity Commission (EEOC) against North American Stainless that alleged sex discrimination by her superiors. At the time the complaint was filed, Ms. Regalado's fiancé, Eric Thompson, was also employed by North American Stainless. About three weeks after North American Stainless received notice of Ms. Regalado's complaint from the EEOC, Mr. Thompson was fired.

Subsequently Mr. Thompson filed his own complaint with the EEOC alleging the company was retaliating against him for Ms. Regalado's claim, which he asserted is illegal under Title VII of the Discrimination in Employment Act of 1967. Title VII states that an employer cannot retaliate against an employee who has filed a discrimination claim by terminating his employment. Mr. Thompson's complaint was dismissed by the U.S. District Court for the Eastern District of Kentucky on the grounds that he was not protected by Title VII since he did not file the initial discrimination claim. The decision was upheld by the U.S. Court of Appeals for the Sixth Circuit.

The case was sent to the U.S. Supreme Court, which overturned the lower courts' decision. The court used a "zone of interest" test to determine if Mr. Thompson had a right to file a claim under Title VII. Per the syllabus of the opinion of the Supreme Court:
"Applying that test here, Thompson falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII's purpose is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado. Thus, Thompson is a person aggrieved with standing to sue under Title VII."

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October 5, 2011

Recent Kentucky Workplace Discrimination Suits

Workplace discrimination comes in several different forms. Sexual discrimination occurs when employees or potential employees are treated differently because of their gender. Negative employment decisions based solely on someone's faith constitutes religious discrimination. In the last week, cases have been filed against companies in Kentucky alleging racial discrimination and age discrimination.

On September 26th, 2011 the Equal Employment Opportunity Commission (EEOC) filed suit against River View Coal LLC alleging racial discrimination in the hiring of new employees between 2008 and 2010. Although it is unknown exactly how many people were involved, 13 people have filed complaints with the EEOC. In 2008, River View began interviewing applicants for a new mine that subsequently opened in 2009 in Waverly, Kentucky. The applicants who filed complaints were qualified and said no specific reason was given for why they were not hired or not even interviewed for the positions.

According to a press release from the EEOC, "The agency is seeking back pay, compensatory and punitive damages against River View Coal, as well as other relief, including a permanent injunction to prevent the company from engaging in future hiring discrimination." While back pay is fairly self-explanatory, compensatory and punitive damages require a little more explanation. Compensatory damages, often called "actual damages," are damages that are less tangible than back pay. They may include pain and suffering, emotional or mental distress, or certain medical bills. Punitive damages are meant to punish the offenders to discourage them and others from repeating the offense. This type of damage can be awarded only if it can be proven that the company knew what it was doing was illegal but did it anyway. In employment cases filed under the federal anti-discrimination law, known as Title VII, both compensatory and punitive damages are capped based on the number of people employed by the company.

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September 28, 2011

Age Discrimination Complaint Filed and Settled by Ex-dean of Indiana University Southeast

On April 30, 2010, Annette Wyandotte, former dean of the School of the Arts and Letters and associate professor of English at Indiana University Southeast, filed a complaint with the Indiana office of the Equal Employment Opportunity Commission (EEOC). The charges were age discrimination and sex discrimination. Ms. Wyandotte was being forced to retire from her dean position on June 30, 2010.

Indiana University Southeast has a policy that requires individuals at an executive level to retire at the end of the academic year when they reach the age of 65. This may seem illegal based on the Age Discrimination in Employment Act of 1967, which protects employees over 40 from being forced out of their jobs. But section C12 of the Act states, "Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000." This section allows employers to require individuals in higher positions to retire at a certain age to promote turnover at upper executive levels.

Ms. Wyandotte, who is currently 67, was allowed to finish out her three-year term as dean. When her term was up, she was not recommended for another term as dean, despite a 33 to 1 vote by the department to reappoint her for another three years. The vice chancellor for academic affairs said she was denied another term based on the university policy. In addition to the age discrimination claim filed with the EEOC, Ms. Wyandotte also claimed sex discrimination because exceptions to this mandatory retirement policy were made for other individuals who were male.

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September 20, 2011

Bullying in Places of Employment Prompts New Legislation

Thumbnail image for Thumbnail image for 1000622_worried_man_against_white_background.jpgAdolescent bullying is a hot topic right now, and includes face-to-face interactions as well as online activity. Unfortunately for some, the bullying doesn't end in their teenage years. Recent polls have shown that over 30 percent of working adults feel they have been bullied at work. No one knows for sure why people become bullies. Perhaps they were bullied themselves or they feel insecure. Some research with brain scans has shown that bullies derive pleasure from seeing someone else being hurt. Workplace bullying can include verbal, physical or emotional abuse by an employer or a co-worker.

While workplace bullying has been occurring for years, it is only recently that action has been taken to begin protecting employees both from their superiors and their co-workers. Several movements, including The Healthy Workplace Campaign, have been created to encourage legislators to take action against workplace bullying. Some forms of bullying are covered by current anti-discrimination laws. If an individual is being bullied based on his race, gender, or religious beliefs, he can take legal action under existing laws. However, if the person being bullied is not in a protected class, or if the bully is in the same protected class as the victim, filing a lawsuit becomes much more difficult.

Since 2003, 21 states have introduced workplace bullying legislation. As of today, none of the bills have become law. This legislation differs from anti-discrimination laws. It would cover all individuals, not just those in a protected class; it would make companies liable for bullying being done by co-workers, not just superiors; and it would pertain to companies of any size.

Companies are concerned that this type of legislation could lead to an enormous number of lawsuits, some legitimate, but others frivolous. Some employees may file claims simply because they were disciplined, or because they were unhappy with a review. The proposed bill in New York hopes to curb some of the unnecessary lawsuits by making employers not liable if the proper bullying prevention and correction techniques are in place. Another way a company can protect itself is to try to identify and turn away potential bullies when interviewing job applicants.

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September 15, 2011

Workplace Rights of Religious Institution Employees to be Determined by Supreme Court

The separation of church and state has always been a tough subject. While the topic does not relate to the majority of us in regards to employment issues, it can affect anyone employed by a church, religious school, or other religious institution.

"Ministerial exception" is a doctrine that was put in place to allow religious institutions the ability to hire individuals that they feel are most qualified to minister to their followers without government intervention. For example, a Lutheran church cannot be sued for discrimination for failing to hire a rabbi for a religious leadership position within the church. However, the subject becomes more unclear when it is applied to other positions within a religious institution.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fourth-grade teacher at the religious school was terminated after several months of not being able to work due to undiagnosed narcolepsy. After she was diagnosed, her doctors cleared her to return to work with the appropriate medication. The school was concerned about her ability to perform her teaching duties and asked her to leave the school voluntarily and waive her disability. She refused, threatening legal action if she was not reinstated, and she was fired.

Ms. Perich, the dismissed teacher, contacted the Equal Employment Opportunity Commission (EEOC) and filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating Ms. Perich was included under the ministerial exception because she taught at a religious school. Ms. Perich and the EEOC appealed, stating that only 45 minutes of her 7-hour days were spent in religious activity; the rest of her work was secular. They won the appeal, and the case is headed to the Supreme Court.

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September 9, 2011

Age Discrimination by Companies, Agencies, and Unions in Hiring and Training

As baby boomers age and the economy struggles to recover, the subject of age discrimination is being discussed more frequently than ever before. Everyone knows if an individual's employment is subject to wrongful termination based solely on age, it would constitute age discrimination. But there are many other situations in which age discrimination can occur.

When an employer is seeking a new employee, it is unlawful for her to directly ask the age of the prospective employee or to ask questions to help her ascertain the interviewee's age. While this is fairly common knowledge, what you may not know is that it is also illegal for an employment agency to use age as a basis for referring potential employees to a company. Some companies try to get around the age discrimination issue by having an employment agency do the screening for them. In a case involving Hollywood TV writers over 40, talent agencies were included as defendants because they were not recommending older writers to networks and studios for sitcoms or dramas. In 2010, the case was settled when the defendants agreed to pay $70 million to thousands of writers whose careers were damaged by this discrimination.

The Age Discrimination in Employment Act of 1967 also pertains to unions. Unions may not discriminate against potential members, nor may they use age as a basis for referring individuals for employment. A union may also be liable if it fails to act on an employer's discrimination against an employee.

An individual can be discriminated against for youth as well. Even though he may be qualified as far as experience and education, a younger applicant may be passed over for a supervisory role because the interviewer incorrectly thinks he will be less authoritative and not respected by older employees. Young female applicants may also be wrongfully denied employment if the prospective employer thinks she will need maternity leave or may decide to quit working after having a child.

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September 2, 2011

Workers Sue City of Louisville in Class Action Suit for Unsafe Work Environment Due to Toxic Mold Exposure

Employees from the metro police department in Louisville, Kentucky have sued the city of Louisville and the Metro Housing Authority in a class-action suit. The suit claims that the plaintiffs were exposed to mold and other contaminants at a toxic level in a government building at 768 Barret Ave. The case was filed Monday in Jefferson Circuit Court. The suit claims that because of gross negligence and fraudulent concealment, up to 1000 past and present employees were exposed, leading to symptoms including congestion, headaches and skin and respiratory issues.

In 2003, the Occupational Safety and Health Administration (OSHA) and an outside consultant found toxic levels of mold in the air. According to the lawsuit, nothing was done to fix the situation, and employees were not informed of the findings. Last year, after some employees' symptoms worsened, OSHA ordered that the ventilation system be cleaned out or replaced, and employees were relocated. Now that the employees are scheduled to return to the building, the plaintiffs are requesting confirmation that the building has been brought up to OSHA standards, that funds be in place for medical testing of employees, and that treatment is provided for any employees that were affected.

Gross negligence occurs when an individual or entity knowingly places a person or group of people in danger. In this case, it is alleged that the city of Louisville and the Metro Housing Authority were aware of the air-quality issue, but did not fix it.

Gross negligence can also be found in car accidents caused by drunk drivers or those distracted by texting. Medical malpractice claims may also include gross negligence if the doctor was under the influence of drugs or alcohol while operating, or an incorrect surgery is performed, such as the unnecessary removal of an organ or limb.

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November 8, 2010

Court Upholds Retaliation Claims

An Ohio man who successfully sued his employer under the Age Discrimination in
Employment Act (ADEA) prevailed once again on appeal in front of the United States District Court for the Southern District of Ohio. Jon Spengler was fifty-three years old when he started as a seasonal employee in charge of spray-washing pressure cylinders designed to hold propane and other industrial gases. Despite his above average performance, Spengler was repeatedly not promoted to regular full-time status like many of his high-achieving counterparts.

A supervisor attempted to quell Spengler's questions about promotion by telling Spengler that he would recommend a transfer to the Steel Division because Spengler would "probably have trouble keeping up with the younger guys" in the Cylinder Division. When Spengler reported such comments to the Plant Manager, that supervisor was admonished. Less than four weeks later, the plant terminated Spengler because of "negative comments" from his co-workers concerning Spengler's "attitude and interpersonal skills".

After his firing, Spengler continued to defend his right to work and filed an EEOC complaint against Worthington Cylinders. Within five months of his firing, he also retained counsel and brought the ADEA claims.

Given the notorious high standards of proof under ADEA, Spengler's age discrimination
claim did not survive summary judgment. But because he prudently raised his concerns to a supervising manager at the early stages of the situation, his retaliation claim had legs. The jury awarded him about $22K for lost wages and an equal amount in liquidated damages.

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November 4, 2010

Another Great FLSA Settlement Approved

Last week, a federal judge approved a $2.33 million settlement in a state based on violations of the Fair Labor Standards Act. The case Wilcox v. Alternative Entertainment, Inc. was litigated in the Western District of Wisconsin.

The employees were satellite installers who claimed the company failed to pay them overtime and further suffered from unlawful deductions from their pay. The class included over 900 employees in two states: Wisconsin and Michigan.

When certain employees works overtime, they may be entitled to pay at a rate of one and half times their typical hourly rate (or double time if they work particularly long hours). If you or someone in your family working overtime without being paid, you should talk with a wage and hour attorney about your rights.

October 31, 2010

Olan Mills Pays $3 Million in FLSA Claim

A Tennessee federal court judge approved a $3 million class action settlement agreed to by Olan Mills Inc. and its employees.


The 18 class representatives worked for Olan Mills in Tennessee, California, Florida, North Carolina, Georgia, Florida and Michigan. Most of the class members were employed as studio photographers and paid on an hourly as opposed to a salary. The claimed that Olan Mills required them to work off the clock including before their shifts and after their shifts. In addition, the employees claim that the company failed to pay overtime, failed to allow employees rest and meal breaks, and failed to reimburse employees for expenses. These violations allegedly occurred between 2003 and 2009.

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October 5, 2010

Danville Settles Wrongful Demotion Case

The City of Danville, in central Kentucky settled a lawsuit with its former chief financial officer, reports the Lexington Herald Leader.

The plaintiff, Spencer Rodgers, alleged that he was demoted after an investigation of mishandling of city finances in 2007. The lawsuit was filed in Boyle Circuit Court in October 2008.

The City has agreed to pay Rodgers a total of $125,000, with $75,000 coming from city funds and an additional $50,000 from the city's insurer. In addition, Rodgers will continue as IT technician for six weeks and will receive letters of reference.
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If you have also been demoted or fired because you participated in an investigation, you should contact an Kentucky attorney to find out if you have a case.

September 30, 2010

Kentucky Court of Appeals Reviews Wage Case

Earlier this month, in the unpublished decision of Sparks v. Wal-Mart Stores Inc., the Court of Appeals of Kentucky, affirmed a jury verdict dismissing a former Wal-Mart employee's claims for unpaid wages.

The plaintiff, Sparks, worked as a pharmacist for Wal-Mart from June 1992 through December 2008. He was compensated based on a forty-five hour workweek, or ninety hours each two weeks. In 2006, he sued Wal-Mart alleging that they owed him nearly $30,000.00 in unpaid wages. He made additional claims for retaliation for filing a complaint with the Kentucky Department of Labor.

According to Sparks, Wal-Mart had paid him for only eighty-five hours each two weeks from November 2000 and September 2005. His manager realized the error and started paying Sparks 90 hours biweekly in 2005, but did not retroactively pay the difference in wages. Sparks filed suit for the five hours of unpaid wages during the November 2000 through September 2005 pay periods.

Sparks claimed that the common law theory of equitable estoppel prevented the megastore from now denying him the additional five hours of pay biweekly. Reviewing the elements of equitable estoppel, the court held that Sparks had not proved Wal-Mart had "knowledge, actual or constructive, of the real facts."

The court also reviewed several evidentiary rulings from the lower court and found in favor of Wal-Mart.

If you believe your employer has failed to properly pay you overtime pay or wages, you should speak to a wage and hour attorney.

September 27, 2010

Justice Department to Investigate Sexual Harassment Claims in Kentucky

The Justice Department announced that it will investigate sexual harassment claims brought by three former secretaries of the probation office. These women are represented by Miller & Falkner trial attorney, Charles Miller.

The law suit, filed in September 2009 in the U.S. District Court in New Albany, alleges that the plaintiffs' were sexually harassed by Gary Collins, a Chief Probation Officer. According to the pleadings, Collins subjected the women to inappropriate sexual comments, leered at their breasts, and sent them inappropriate emails.

Collins has previously been accused of sexual harassment. In 2002, a law suit, also filed in the U.S. District Court, alleging similar facts was settled out of court for a confidential sum.

It is significant that the Department decided to engage in its own investigation. While the Justice Department ill look into claims of employment discrimination and harassment, it will typically only conduct its own investigation when the allegations are serious.

To read more about this interesting case, see the Courier Journal who reported this Kentucky discrimination case.