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.
Grab your glass of eggnog, light the fireplace, and peruse the latest in Suits by Suits:
Jones International University (“JIU”) is headed for trial on claims by its former employee, Ivonna Edkins, that it discriminated against her based on her Polish origin and gender. Two weeks ago, a federal district judge in Colorado denied JIU’s motion for summary judgment on Edkins’s claims, finding evidence that JIU’s former general counsel was a “domineering male who was disrespectful and dismissive of women with executive responsibilities.” Edkins v. Jones Int’l Univ., Ltd., No. 11–cv–01790–RPM (D. Colo. 2012).
In his order, Judge Richard Matsch described the power struggle that led to the dispute.
With only two weeks to go until the Mayans’ end of days, what better way to spend your time than reading this week’s latest in Suits by Suits:
Let’s start this story with a basic truth: it’s generally a bad idea to tell a pregnant woman that her hormones will make her “get emotional” and get “caught up in things” in a way that affects her judgment.
You need not take this from me as a lawyer-blogger. Take it from me as a guy whose wife is pregnant with our first child. Blaming anything in our house on pregnancy hormones is a one-way ticket to the basement couch.
It’s also a bad idea to say this to a pregnant employee, as department-store chain Target Stores is learning. We’ve written about the Pregnancy Discrimination Act of 1978 before, and in some high-profile contexts. But the case of Spigarelli v. Target, which will move forward in federal court in Pennsylvania now that Target has lost its summary judgment motion, shows that this lesson continues to bear discussion.
On Thursday, a 4-3 majority of the Virginia Supreme Court held in VanBuren v. Grubb that individuals such as supervisors or managers could be sued as individuals and held personally liable for the common law tort of wrongful termination (also known as wrongful discharge) in addition to whatever corporate liability the employer may have.
As a practical matter, this gives plaintiffs and their lawyers additional leverage when bringing suits that contain a cause of action for wrongful termination in Virginia by being able to name the former employee’s boss as a co-defendant. From the boss's perspective, this decision means that you, personally, could be named as a defendant and ultimately forced to satisfy a judgment for improperly firing an employee from your own pockets -- not just your company's. It also means that employers and their executives who operate in Virginia need to review their D&O insurance coverage with this potential exposure in mind.
In short: whether you're an executive or an employer, you need to know about this case and its implications on the employment relationship.
We wrote yesterday about Gallaudet University’s suspension of its Chief Diversity Officer, Angela McCaskill, for signing a petition to place Maryland’s law allowing same-sex marriage up for a public vote via referendum. The action has been criticized, even drawing fire in an editorial in the Washington Post. The McCaskill case raises this important question: Can an executive be fired for political activity at work or outside of work?
The short answer: probably yes, but it depends a lot on the circumstances and the state law that would apply to any claim arising out of the dismissal. This is another case where your mileage may vary, as they say.
Just to reaffirm what My Esteemed Colleague from Baltimore has already said (twice): we are still not a political blog. We look at employment disputes, with a real focus on those involving a contract between an employer and an executive. We keep our political views to ourselves (or at least out of the blog).
But the problem is that many folks don’t keep their political views to themselves, either in or out of the workplace. And that means disputes between companies and executives about political speech – whether it’s companies encouraging employees to vote for a certain candidate, or employees getting fired for their political views – are dominating the field of employment disputes between companies and high-level employees right about now. Maybe it’s because we’re less than three weeks from the election. Maybe it’s pent-up tensions in the workplace caused by economic stress.
We don’t know why. But we do know that here in Washington, coverage of a dispute between Gallaudet University and one of its executives, centered on the executive’s signature on a petition, has dominated the news. Given that there is no more coverage of the Washington Nationals this season, the story is being followed avidly. It draws into sharp relief an issue that comes up often this time of year: can you be fired for your political views?
An executive who brings a discrimination claim must jump through a number of hurdles to get to trial. On this blog, we’ve posted on a number of occasions about how under the McDonnell-Douglas test, an executive must prove a prima facie case of discrimination, after which the employer has the opportunity to show that it acted for legitimate, non-discriminatory reasons. If the employer meets this burden, and the executive cannot come forward with evidence to rebut these legitimate reasons, then the court will award summary judgment to the employer before the case even gets to a trial.
The Eleventh Circuit’s recent decision in Ostrow v. GlobeCast Am. Inc., No. 11-16043 (11th Cir. Sep. 17, 2012), provides another example of how an employer can defeat a claim of discrimination by presenting non-discriminatory reasons for its actions.
Here’s the tale of two cases with four lessons about Title VII and the Equal Pay Act when it comes to claims that an employer (in this case, Dollar Tree Stores) pays employees (in this case, Dollar Tree Store Managers) less because of their gender. As we’ve said previously, claims for pay discrimination can be brought under both laws.
The first case was filed in 2008 in federal court in Alabama by Cynthia Ann Collins and Beryl Dauzat against Dollar Tree alleging that the company violated the Equal Pay Act by paying them and other female Store Managers less compensation than male Store Managers doing the same work. In 2009, the court certified an opt-in collective action under Section 216(b) of the Fair Labor Standards Act (or, the “FLSA,” of which the Equal Pay Act is a part), allowing all women who were classified as Store Managers for Dollar Tree between 2006 and 2009 to join the lawsuit. Under the court’s order, notice of the lawsuit was sent to all Dollar Tree Store Managers employed by the company between 2006 and 2009. To join the lawsuit, a woman would have to complete and sign a form and send it to the court no later than the deadline expressly consenting to become a party to the lawsuit and authorizing the named plaintiffs and their counsel to act as her agents in prosecuting her Equal Pay Act claims against Dollar Tree. About 350 women joined the lawsuit.
This week's latest in Suits by Suits:
When we promised yesterday that we would have more on the Lilly Ledbetter Fair Pay Act of 2009 later this week, we hadn’t realized that Ms. Ledbetter would be speaking to the Democratic National Convention about it last night. As Ms. Ledbetter reminded the crowd last night, the law named after her was the first bill that President Obama signed into law.
In a nutshell, the Ledbetter Act was Congress’s response to the U.S. Supreme Court’s holding in Ledbetter v. Goodyear Tire & Rubber Co., Inc., that Ms. Ledbetter, a nearly 20-year employee of Goodyear, did not timely file an EEOC charge against Goodyear alleging that, in violation of Title VII, Goodyear paid her less because of her gender.
On Friday, the Texas Supreme Court dismissed a suit brought by Dr. Diljit K. Chatha, a professor at Prairie View A&M University, against the University (there was a dissenting opinion).
Dr. Chatha, who is of Indian national origin, claimed that she was paid less than other professors because of her race and nationality. The Texas Supreme Court found that Dr. Chatha’s claims were “jurisdictionally barred” because she did not file a complaint under the Texas Commission on Human Rights Act (TCHRA) within 180 days of the University promoting her to full professor in 2004, which was when Dr. Chatha was informed of the University’s allegedly discriminatory pay decision. Instead, Dr. Chatha filed the complaint about two years later.
The pre-Labor Day highlights of Suits by Suits:
We previously covered former Yahoo! CEO Scott Thompson, who may have cost himself $10 million by inflating his credentials in a resume. Resume problems are not a one-off in the world of Suits by Suits.
One way in which untruths on resumes can come to light is through a defense called the after-acquired evidence doctrine, which employers can assert in response to wrongful termination or discrimination claims.
For the second time during this quiet week in late August, pregnancy is in the headlines.
The first time, of course, involved Rep. Todd Akin, a candidate for the U.S. Senate from Missouri who claimed – and then swiftly retracted – that women who are “legitimately raped” don’t get pregnant. That’s led pregnancy – and abortion politics – to dominate news coverage.
But here’s another story with pregnancy at its core: this week, a federal judge in Manhattan ruled that a former buyer for fashion house Gucci can move forward with her case alleging that the luxury-goods company fired her after she became pregnant.
Sexual discrimination claims continue to be big news in the world of suits by suits. We’ve previously commented at some length regarding the novel issues raised in the sexual harassment lawsuit brought by former Kleiner Perkins partner Ellen Pao.
Today, we turn to a related and equally unique issue: a sexual orientation claim brought under the auspices of the Americans With Disabilities Act, 42 U.S.C. § 1201 et seq. Although there is no federal statute that protects employees from discrimination on the basis of sexual orientation generally, Brian Anthony Martinez, the former international managing director of television for Bloomberg Media, brought a lawsuit against his former employer in 2011, alleging that he was terminated after Bloomberg discovered that he had undergone therapy for domestic abuse from his male partner, thus (arguably) bringing his claims under the ADA.
This week's latest news in suits by suits:
This just in: on Thursday, Illinois Governor Pat Quinn signed a new law making it unlawful for an employer to request or require an employee or prospective employee to provide the password for his or her account or profile on a social networking site. The law, which amends Illinois’s existing Right to Privacy in the Workplace Act, and goes into effect on January 1, 2013, supposedly addresses the trend of employers requiring job applicants to give access to their Facebook profiles as part of the job application process.
The latest gold medalists in the race for our attention:
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.