Show posts for: Discrimination

  • | William A. Schreiner, Jr.

    Did you hear the one about the Buddhist marketing director who refused an order to add Bible verses to the daily morning e-mail he sent to all employees – and then got fired the next day, after an otherwise successful eight-year career?

    This is, of course, not an opening line to a joke, but another installment in our occasional series about the intersection of religious beliefs (of all types) and employment – also of all types.  Religion and employment issues – whether it’s an employee in the C-suite or someone further along the hierarchy – almost never mix well.  Just this week, of course, nine of our fellow lawyers who happen to sit on the Supreme Court are hearing arguments in two cases about whether a company with a religious belief about contraception is exempt from the Affordable Care Act’s requirements for employer-provided health insurance. 

    Far away from the hallowed marble home of the Supreme Court (which, by the way, we think is in a fine building -- unlike former Justice Harlan Fiske Stone) and down in the Eastern District of Texas, a new suit raises an interesting question of prohibited religious discrimination under Title VII: namely, can a fired Buddhist employee win damages from a company that, he says, fired him after eight years because he refused to put Bible quotations in the daily e-mail his employer had him write and send to all of the company’s 500 employees? 

  • | William A. Schreiner, Jr.

    Ah, the smells of the holiday season: fresh-cut evergreen trees, just-baked cookies and other goodies, bowls of tasty fruit punch.  Take a deep whiff wherever you are.  Breathe it in deep. 

    But be careful about sniffing those smells, though. 

    That is the apparent lesson from the Fifth Circuit Court of Appeals’ decision in Tonia Royal’s retaliation lawsuit against her employer, an apartment management company named CCC&R Tres Arboles.  The appellate court held that the trial court incorrectly gave the apartment company summary judgment, because too many material facts about the basis for Ms. Royal’s firing were in dispute.  And many of those facts relate to the behavior of other CCC&R employees, who Ms. Royal alleged sexually harassed her by sniffing her in a rather curious and uncomfortable manner.  

  • | John J. Connolly

    A Baltimore police officer claimed she was fired because she got married.  The police department agreed.  The problem was that the officer married Carlito Cabana, an incarcerated murderer and the “supreme commander” of a prison gang called Dead Man, Inc.  The question presented was whether the police department’s action violated the officer’s “constitutional right to marry and to engage in intimate association.”  The Maryland courts didn’t think much of that claim, see Cross v. Baltimore City Police Dep’t, and it does seem as though the police department had a point. 

    But what about Mr. Cabana?  Surely Cabana’s “employer,” nominally a private corporation, could not have been pleased with his choice of spouse, either.  (Let’s ignore Dead Man’s failure to register to do business in Maryland.)  Could the Dead Man board have fired Cabana for marrying a cop?  Could a legitimate private employer (like the Coca-Cola Co.) have fired an executive for marrying an employee of its mortal adversary (like PepsiCo)? 

  • | Jason M. Knott

    Those of us who live in or near big cities know the value of a good parking space.  Two years ago, New Yorkers paid an average of $540 a month to park in midtown Manhattan.  And here in Washington, D.C., a permanent space can go for as much as $100,000.

    A good parking spot was also important to Pauline Feist, an assistant attorney general with the Louisiana Department of Justice.  Feist, citing a disability (osteoarthritis of the knee), asked the Department for a free space in her building rather than in the garage across the street, but her employer turned down her request.  She filed a complaint with the EEOC, and five months later, she was out of a job.  Feist sued the Department in federal court, alleging that it had discriminated against her by denying her a parking space and then by retaliating against her for filing the EEOC complaint.

    The federal trial judge slammed the door on Feist, granting summary judgment on both of her claims.  However, in a ruling last week, the Fifth Circuit reversed the summary judgment ruling on Feist’s discrimination claim, sending the case back to the trial court for a second try.  Feist v. State of Louisiana, No. 12-31065 (5th Cir. Sept. 16, 2013).

  • | Jason M. Knott

    We thought about getting a Putin op-ed to cap off this week at Suits by Suits.  But instead, we decided to stick with our tried-and-true formula of canvassing the week’s headlines in employer-executive disputes:

    • Bloomberg Law reported on a recent ruling by the Delaware Chancery Court that a company officer and trustee could not invoke the attorney-client privilege for communications with their personal attorneys and advisors sent from their work e-mail accounts.  The court wrote that the company could access the e-mails because it had reserved the right to do so in its employee manual, and therefore the officer and trustee did not have a reasonable expectation of privacy in the e-mails.
    • Pete Brush of Law360 (subscription required) covered the hearing in the New York Court of Appeals, the state’s highest court, on claims by a former Intesa SanPaolo executive, Giuseppe Romanella.  Romanella alleges that the company illegally fired him after he complained of depression.  The company argues that it was allowed to fire him because he refused to provide any reasonable time frame for his return from leave.
    • A federal judge tossed a number of claims against Bloomberg LP in an EEOC case alleging that the company discriminated against employees who returned from maternity leave, reported Jonathan Stempel and Jennifer Saba of Reuters.  The court found that the EEOC could not pursue a class action because it failed to show that discrimination was Bloomberg’s standard operating practice.  Further, the judge said that the EEOC had failed to investigate its individual plaintiffs’ claims and unfairly rebuffed Bloomberg’s attempts to settle.  The Wall Street Journal characterized this as a “sue first, investigate later” approach.
  • | William A. Schreiner, Jr.

    The toughest part of this post, for me, is how to categorize this one: does this go in my file of “Things Not To Do At Work?”  Or is this one another example of “Lawyers Behaving Badly?” Or maybe “Generally Unacceptable Management Styles?” 

    Well, I’ll let you decide.  But here is the takeaway: however you categorize it, it’s likely a bad idea to tell a woman that works for you that she’s “not that pretty,” that prior female employees were “smart…good-looking…just gorgeous” and used to wear tight sweaters, and that “it’s all been downhill since women got the vote.” 

    Statements like that can give rise to allegations of gender discrimination in violation of Title VII of the Civil Rights Act that can survive a motion to dismiss.  That’s what the City of Evanston, Illinois learned last week, in Elke Tober-Purze v. Evanston, pending in federal court for the Northern District of Illinois.  

  • | William A. Schreiner, Jr.

    In the previous part, we looked at Elke Tober-Purze’s lawsuit against her employer, the City of Evanston.  The federal court hearing the case ruled in Tober-Purze’s favor on Evanston’s motion to dismiss her claim that it had discriminated against her by paying her male colleagues more and ultimately terminating her from her job as an assistant city attorney. 

    In the same opinion, the court also denied Evanston’s motion to dismiss Tober-Purze’s claim for age discrimination based on federal law.  That law – the Age Discrimination in Employment Act – requires an aggrieved employee to demonstrate that he or she: 1) is over forty; 2) otherwise meets the employer’s expectations; 3) suffered an adverse employment action – such as being terminated or passed over for promotion; and 4) was treated less favorably than others who are not over forty.  

  • | Marcus, Ellen

    On Tuesday, we examined the dismissal by a Georgia federal court of Lisa T. Jackson’s race-based discrimination claim against Paula Deen and others, and noted that, under Title VII, an employer may not discriminate against an employee for associating with employees of another race.  But we don’t want you to be left with the impression that the association has to be between co-workers.  Courts also have recognized “interracial association” Title VII claims for associations occurring outside of the workplace.  The U.S. Court of Appeals for the Second Circuit is one such court.

  • | Marcus, Ellen

    Last week, a federal court in Georgia dismissed Lisa T. Jackson’s race-based discrimination claim against Paula Deen, her brother Earl “Bubba” Heirs, and their restaurant businesses.  Earlier events in the Jackson v. Deen case – including Deen’s deposition testimony and what it may mean for alter ego liability – caught our attention at Suits by Suits.  This recent ruling interests us as a reminder that it is not always the case that a white employee who works in an environment that is hostile to blacks has no claim for damages against her employer for race-based discrimination.

  • | Jason M. Knott

    It’s unseasonably cool here in Washington, DC, where most of our Suits by Suits editors toil.  News about the latest in disputes between employers and executives, however, is always in season.  Here are the latest headlines:

    • Ruth Simon and Angus Loten of the Wall Street Journal brought us this excellent take on the rising tide of non-compete litigation.  According to Simon and Loten, non-compete agreements are spreading beyond the executive ranks to sales representatives, engineers, and researchers.  For more, check out our ongoing State-by-State Smackdown series on the changing law of non-competes in various states (here, here, here . . . and here).
    • A conference call hosted by AOL’s chief exec Tim Armstrong took an unpleasant turn when Armstrong fired – on the spot – Abel Lenz, an employee who was videotaping the call.  The New York Times reported that Armstrong later admitted that he made a “mistake” in the hasty firing, which was broadcast to a thousand employees.  Lenz’s photos of his last moments at AOL later surfaced online at jimromenesko.com
    • The Third Circuit upheld a decision by the Luzerne County (PA) Retirement Board to terminate the benefits it was paying to a former county clerk, William Brace, based on Brace’s guilty plea to a bribery charge.  Brace claimed that the termination violated his constitutional rights, but the court disagreed, holding that Brace was not entitled to a hearing before the decision.  Brace’s crime appears to have been the acceptance of a $1,500 tailor-made suit from a county contractor, which puts this case in the unique category of Suits by Suits over Suits.
    • Matt Reynolds of Courthouse News Service reported that IMAX has sued a competitor for trade secret misappropriation.  IMAX’s complaint alleges that Gary Tsui, a former IMAX employee, sold its 2-D and 3-D conversion technology to the competitor, GDC Technology USA, which is now using the secrets to compete with IMAX.  It calls Tsui an “international fugitive.”  Sounds like this case may be exciting enough for the big screen.
    • A former U.S. Bank manager, Serge Adamov, has successfully appealed the dismissal of his claim that he was terminated in retaliation for complaints of discrimination based on his Azerbaijani origin.  The Sixth Circuit held that when an employee does not exhaust his remedies in the Department of Labor before bringing suit in federal court, that failure does not deprive a district court of jurisdiction over the case.  As a result, because the bank did not raise a failure to exhaust as part of its motion to dismiss Adamov’s suit, the district court could not raise it on its own as a ground to get rid of the claim.
  • | William A. Schreiner, Jr.

    Yes, yes, we’ve asked you before to nominate us to the you-know-what, but we swear this is the very last time because nominations for that prestigious list close today.  We only ask because for lawyers who blog, this list is like the Academy Awards, and the Emmys, and the Grammies, and the Country Music Awards, all rolled into one.  And at Suits by Suits we are, in fact, ready for our close-up, Mr. DeMille (take the afternoon off if you know what movie that’s from).  Thanks if you’ve already nominated us. 

    We’re not all about awards around here, though.  We’re hard at work.  While the streets around our Suits by Suits Global Headquarters are notoriously quiet while most folks are at the beach and Congress has left town, we’ve been scouring the planet looking for interesting stories to bring to your attention.  We have much to do – the CEO of Amazon is not yet paying $250 million for our work, unlike the venerable blog-printed-on-dead-tree just up the street.  Perhaps it’s because they have horoscopes and we don’t. 

    In any event, here are some more items to add to that stack of must-read beach books:  

  • | William A. Schreiner, Jr.

    Part fashion model, part beverage server, part charming host and hostess.  All impossibly lovely.  The sensational Borgata Babes are the new ambassadors of hospitality…On a scale of 1 to 10, elevens all.

    Eyes, hair, smile, costumes so close to absolute perfection as perfection gets, Borgata Babes do look fabulous, no question.  But once you can breathe again, prepare to be taken to another level by the Borgata Babe attitude. The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams. 

    -  Excerpt from a brochure recruiting candidates to work as “Borgata Babes,” serving drinks in the Borgata casino in Atlantic City, New Jersey.   

    In our first post in this series, we looked at the facts of the case that 22 “Borgata Babes” brought against that Atlantic City, New Jersey casino.  In their suit, these woman alleged the casino’s enforcement of a weight requirement – no Borgata Babe (the vast majority of whom were women) could gain more than 7% of their weight while employed as “Costumed Beverage Servers” to ferry drinks to high-rollers – was applied in a way that violated New Jersey’s law barring gender discrimination, because female Babes who gained this amount of weight were disciplined or terminated while male Babes who gained weight allegedly were not.  

  • | William A. Schreiner, Jr.

    They’re beautiful.  They’re charming.  And they’re bringing drinks.

    She moves toward you like a movie star, her smile melting the ice in your bourbon and water.  His ice blue eyes set the olive in your friend’s martini spinning.  You forget your name.  She kindly remembers it for you.  You become the most important person in the room.  And relax in the knowledge that there are no calories in eye candy.

    Excerpt from a brochure recruiting candidates to work as “Borgata Babes,” serving drinks in the Borgata casino in Atlantic City, New Jersey.   

    Here at Suitsbysuits, we write posts that usually focus on rather serious disputes between executives and employers: the impact of arbitration and non-compete clauses, for example; or protections for whistleblowers.  Occasionally we’ll write on more general features of employment that can impact the executive-employer relationship, such as religious discrimination or discrimination based on gender or pregnancy

    Those are all, shall we say, weighty matters.  Today’s post is about a weighty matter in another sense: a lawsuit between a group of women who worked at the Borgata casino in Atlantic City, New Jersey, as cocktail servers, and alleged that the casino discriminated against them because of their gender and weight.  

  • | Jason M. Knott

    May flowers are blooming, and so is the Suits by Suits news:

    • CEO dismissals hit a 10-year high in 2012, according to The Corporate Board’s study of CEO succession practices.  Matteo Tonello of the Corporate Board published this summary of the study on the Harvard Law School Forum on Corporate Governance and Financial Regulation.
    • The Anderson County Council is talking settlement in its long-running dispute with former county administrator Joey Preston, reports Bill Poovey of GSA Business.   The South Carolina legislators have spent $3 million in legal fees in their unsuccessful effort to recover Preston’s $1 million severance package.  That money would have bought a lot of Skins’ hot dogs.
    • We previously brought you the story of David Nosal, a former Korn/Ferry executive who was facing trial on charges of gaining unauthorized access to Korn/Ferry’s system and stealing trade secrets.  Joanne Lublin of the Wall Street Journal reports that the trial did not turn out well for Nosal: he was convicted on all counts.  Nosal told Lublin that he is confident that the verdict will be reversed.
    • New Mexico legislators criticized the large buyout offered to the new head coach at the state university, reported Alex Goldsmith at kqre.com.  Craig Neal will get $1 million plus up to $300,000 if the school decides to fire him in the next four years.  In his defense, Neal could have pointed to Mike Krzyzewski, who received $9.7 million from Duke in 2011 (when, incidentally, the Blue Devils lost to 15-seed Lehigh in the NCAA tournament).
    • More sports news: Sean Newell of Deadspin reports that warm and fuzzy coach Bill Belichick and the New England Patriots may have cut a player, Kyle Love, because he was diagnosed with diabetes.  Newell’s post discusses the Americans with Disabilities Act, which could have protected Love from termination based on his condition, and the at-will employment doctrine.
  • | Marcus, Ellen

    Grab your matzoh or Scotch cream eggs or whatever your favorite snack is this time of year and settle in for this week’s Inbox on Suits by Suits:

  • | William A. Schreiner, Jr.

    In Part 1 of this series, we relayed the case of Pamela Hill, an engineer with the Virginia Department of Transportation.  Hill was passed over for promotion.  Another applicant, a man, who has less experience than Hill and doesn’t have a college degree like she has, got the job.  VDOT’s only reason for the decision is that the man did better in the interview. 

    Hill sued VDOT, alleging sexual discrimination in violation of Title VII of the Civil Rights Act.  VDOT moved for summary judgment – an early resolution in its favor – and at the end of this post, I’ll tell you if Hill won or not. 

  • | William A. Schreiner, Jr.

    A necessary part of life that no one particularly enjoys is the job interview: it’s tricky for the interviewee and taxing for the interviewer.  Unless the interviewer gets a thrill out of asking why manhole covers are round or testing the applicant’s knowledge of medieval saints

    We’ve written about questions that shouldn’t be asked on interviews, because they can suggest a discriminatory basis for the employer’s failure to hire the job applicant.  But can an interview that doesn’t include potentially discriminatory questions – just the failure to hire the applicant after the interview itself – provide the basis for the rejected applicant to allege discrimination?    

    Hiring executives may be interested to know the answer to this question, which was the central issue in an opinion in Hill v. Virginia Department of Transportation, released by a federal court in Virginia at the end of January. 

  • |

    We have written previously about litigants’ attempts to compel arbitration under a theory of “equitable estoppel.”  For example, last July we discussed the move by Silicon Valley venture capital firm Kleiner Perkins to force its former partner, Ellen Pao, to arbitrate their sexual harassment dispute on the theory that, despite the absence of an agreement to arbitrate between the parties, it would be inequitable to allow Pao to avoid arbitration.  Although the trial court rejected this argument, Kleiner Perkins appealed and is awaiting a decision.

    Since then, the issue of equitable estoppel has cropped up again in the California courts.  Just last week, in a decision that may have ramifications for Pao and Kleiner Perkins, the California Supreme Court declined to review (subscription required) a decision by a California appeals court affirming the denial of The Sports Club Company’s motion to compel arbitration against its former employee, Susan Gorlach.

  • | Marcus, Ellen

    Between baking cookies, assembling toys and driving to the in-laws, you may have missed the Iowa Supreme Court’s decision on December 21 that a male dentist was not liable to his former female assistant of ten-and-a-half years – admittedly the best assistant he ever had – for gender discrimination.  The dentist fired the assistant after:  he complained that her clothing was too tight, he told her that she would know her clothes were too revealing if she saw his pants bulging, he texted her to ask how often she experienced an orgasm, he observed that the apparent infrequency in the assistant’s sex life was “like having a Lamborghini in the garage and never driving it,” and he was confronted by his wife, who believed the assistant was a “big threat” to the dentist and wife’s marriage and demanded that the assistant be terminated, which he then did by reading a prepared statement to the assistant in the presence of his church pastor.  

  • | Jason M. Knott

    The Inbox

    Grab your glass of eggnog, light the fireplace, and peruse the latest in Suits by Suits:

    • Fox Business reports that a New York law firm is making a cottage industry out of lawsuits against company directors based on the Dodd-Frank Act’s “say-on-pay” provision, which requires an advisory shareholder vote on executive compensation once every three years.  The lawsuits by Faruqi & Faruqi, which a defense lawyer calls a “shakedown” effort, claim that companies aren’t giving their shareholders enough information to assess executive pay.  They haven’t resulted in awards to shareholders, but have resulted in some additional disclosures (and some legal fees to the plaintiffs’ counsel).

We cover a broad range of issues that arise in employment disputes. Occasionally, we also spotlight other topics of relevant legal interest, ranging from health care to white-collar defense to sports, just to keep things interesting.

Led by Jason Knott and Andrew Goldfarb, and featuring attorneys with deep knowledge and expertise in their fields, Suits by Suits seeks to engage its readers on these relevant and often complicated topics. Comments and special requests are welcome and invited. Before reading, please view the disclaimer.

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Jason M. Knott
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Andrew N. Goldfarb
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