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.

• Arbitration
• Discrimination

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.  

• Discrimination
• Title VII

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:

• A store manager for American Apparel has sued Dov Charney, the company’s CEO, accusing him of assault.  UPI reports that the manager alleges that Charney called him nasty names and tried to rub dirt on his face at an industry convention.  Lawyers can get a bad rap, but I doubt anything like that has ever happened at the ABA’s annual meeting.

• Confidentiality
• Discrimination
• The Inbox
• Whistleblowers

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. 

• Discrimination
• Pregnancy Discrimination
• Summary Judgment

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.

• Discrimination
• Fiduciary Duties
• The Basics
• Title VII
• Whistleblowers
• Wrongful Termination

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. 

• Discrimination

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?

• Discrimination
• Wrongful Termination

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.  

• Age Discrimination
• Discrimination
• Summary Judgment

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.

• Discrimination
• Equal Pay
• The Basics
• Title VII

This week's latest in Suits by Suits:

• A trombonist and former leader of the Glenn Miller Orchestra is in the mood for some litigation.  Gary Tole, who is white, has sued the orchestra’s production company claiming that he was fired in retaliation for him promoting and hiring African Americans and Hispanics.  Among other things, Tole alleges that the president of the company questioned his hiring of two African American musicians, saying at the time to Tole that “[T]his is the Glenn Miller Orchestra, not the Count Basie Orchestra,” or words to that effect.

• Discrimination
• The Inbox
• Title VII
• Wrongful Termination