The #MeToo Movement Hits the Judiciary: California Federal Court Judge Alex Kozinski Steps Down

/

The #MeToo movement seems to have swept into every industry and sector, from Hollywood to Washington. Sexual harassment allegations have hit the judiciary as well, shining light on problems within the courts themselves. Now that California Federal Circuit Court Judge Alex Kozinski has stepped down, people within the American Bar Association are calling for change nationwide.

In this blog post I will review the sexual harassment allegations against United States Circuit Court Judge Alex Kozinski. I will explain whether Title VII applies to professional associations and discuss what some are saying bar associations should do to respond to the #MeToo movement.

Allegations Against Judge Kozinski Date Back Decades

Circuit Court Judge Alex Kozinski has served as a U.S. Court of Appeals judge for the 9th Circuit in California for 35 years, a term that included a rotation as chief judge. He had a public reputation for writing irreverent and sometimes humorous opinions, and being in the public eye. He also had a more private reputation for behavior that sometimes crossed the line from bad jokes to sexual harassment of his law clerks and other staff.

In the wake of the #MeToo movement, six of those clerks came forward, telling the Washington Post about their experiences with the judge. Heidi Bond, who clerked for Kozinski in 2006 and 2007, claimed that the judge had called her into his office and asked her opinion on whether pornography appeared photoshopped.

“I was in a state of emotional shock, and what I really wanted to do was be as small as possible and make as few movements as possible and to say as little as possible to get out,” Bond said.

Emily Murphy, who worked for a different 9th Circuit judge, reported that Judge Kozinski approached her and several other clerks at a reception in San Francisco in 2012. She alleged that he suggested she exercise naked and kept steering the conversation back to that idea.

“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”

Both clerks have emails and other evidence supporting their allegations. Others shared similar stories anonymously for fear of retaliation by Kozinski or others in the judicial system.

The Washington Post article isn’t the first time Judge Kozinski has faced complaints about sexual behavior at work. In 2008, the Los Angeles Times reported that he had been censured after a judicial investigation found he had carelessly used a private server to distribute crude, sometimes sexually themed jokes.

Kozinski initially denied any wrongdoing and promised to fight the sexual harassment allegations. However, on December 18, 2017, he announced his immediate retirement saying:

“I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary.”

Reporting Sexual Harassment Within the Judiciary

Federal employees, including judicial clerks in the federal court system, are entitled to protection against sexual harassment and gender discrimination under Title VII of the Civil Rights Act. However, none of the women who spoke to the Washington Post filed formal complaints against Judge Alex Kozinski. According to Bond, Kozinski stressed the idea of complete judicial confidentiality. Whatever was discussed in chambers could not be revealed to the public, even when the comments had nothing to do with the cases before the court. She saw him to be in complete control.

The structure of a judicial clerkship makes employees particularly susceptible to retaliation when they complain about sexual harassment at work. Clerkships are temporary by nature. At the end of their terms, clerks rely on good recommendations from their judges to find new positions in the legal field. When a clerk has filed a sexual harassment claim, the chance for a positive referral grows dim. While this form of retaliation is illegal, it also has practical implications that could make it difficult for clerks to find new jobs. Bond and other clerks feared what Kozinski might do if they filed a complaint, particularly because he was unlikely to be fired over it. In fact, Murphy told the Washington Post that she chose not to file because the complaint would first go to Kozinski himself before being referred elsewhere.

American Bar Association Article Calls for Change

In response to the allegations, and Kozinski’s sudden retirement, the American Bar Journal published an article, “The judiciary must deal with #MeToo–and with what I know” by Nicole Vanderdoes, chief counsel of the ABA Standing Committee on the American Judicial System. She called on bar associations and the judiciary to be prepared to respond to #MeToo-style complaints.

“And lawyers and judges need to be prepared for how to respond and maintain the integrity and independence of the judiciary. Because if it looks like the legal system is protecting its own, it will lose all credibility. How can you trust a judicial system that doesn’t hold officers of the court accountable?”

Vanderdoes acknowledged there are “very few men who have more power than a judge” and that can make allegations of sexual harassment against them particularly difficult to address. She emphasized the importance of confidentiality and integrity during the investigative process. When matters do go public, she called on bar associations to respond with clarity and objectivity to allegations against judges and influential attorneys and to dispel any impression of favoritism within the system.

When the #MeToo movement involves allegations against a member of the judiciary, the power dynamics and political ramifications can make it hard to even consider filing a formal complaint. But employees of federal offices have just as much right to civil rights protections as anyone else. At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys understand the delicacy needed to handle cases involving public officials. We will meet with you confidentially to review your case, and your options, and help you decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.

Sexual Harassment and Abuse at Michigan State University Raise Title IX Concerns

/

Larry Nassar, was once a renowned sports doctor for both Michigan State University and the U.S. Olympic Gymnastics team. But reports of sexual harassment and abuse from gymnasts he worked with ended his career. Now MSU is dealing with the public and legal consequences of inaction.

In this blog post I will review the criminal convictions of Larry Nassar, a doctor at Michigan State University, for sexual harassment and abuse. I will discuss the response of professors and students to the violations of Title IX of the Civil Rights Act, and how the university responded to allegations of harassment.

Michigan State University Doctor and Gymnastic Coach Charged with 20 Years of Sexual Abuse

Michigan State University has come under fire in recent months because of how it responded to complaints of sexual harassment and abuse by sports doctor Larry Nassar. The complaints began in the late 1990s and ran through 2016, with athletes and students complaining that Nassar sexually assaulted them under the guise of medical treatment. The case includes complaints from several former U.S. Olympic gymnasts. In many cases, the minors’ parents were present in the room when the sexual assault occurred.

The complaints resulted in lawsuits and even an internal investigation at MSU in 2014. However, Nassar kept working and the issue remained private until 2016, when the Indianapolis Star published an investigative report about the U.S.A. Gymnastics program. Responses to that report raised concerns about Dr. Nassar’s conduct, including the story of Rachael Denhollander, a former gymnast who was abused at age 15. In total, more than 150 women came forward to testify at the sentencing hearings in criminal cases including charges of criminal sexual conduct and federal child pornography. He was sentenced to 40 to 125 years in prison, in what Michigan Circuit Court Judge Rosemarie Aquilina called “a death sentence.”

Title IX and a University’s Response to Sexual Harassment and Assault

Title IX of the United States Civil Rights Act serves a similar role in schools as Title VII does in the workplace in preventing sex and gender discrimination. It prohibits sexual discrimination in all educational institutions that receive federal funding. This includes public and private K-12 schools, and most universities. It applies to all students, regardless of gender identity, and requires schools to take proactive and reactive steps to prevent and respond to sexual harassment against students by students, faculty, or other staff.

While the Equal Employment Opportunity Commission (EEOC) handles Title VII sexual discrimination in the workplace, Title IX places school-based sexual harassment issues in the hands of the U.S. Department of Education. Each school is responsible for publishing a non-discrimination policy and designating at least one employee to coordinate compliance with the Department of Education’s regulations applying the statute. Schools must respond promptly and effectively to allegations of sexual harassment or violence, and take immediate action if they know or have reason to know sexual harassment or violence has created a hostile environment.

Many larger universities have Title IX offices that investigate and respond sexual harassment complaints by their students. When they fail, it can be grounds for a Title IX complaint to the Office of Civil Rights at the Department of Education, or even a federal lawsuit.

Michigan State University’s Response to Nassar Complaints Raise Title IX Questions

Larry Nassar continued to work for Michigan State University until the issue went public in 2016. Once Nassar pleaded guilty to the charges, public attention turned to the university and how it responded to the matter. Many of the women who came forward said that they had tried to file complaints at the school, but their concerns were ignored or downplayed. Larissa Boyce told CNN:

I told Michigan State University back in 1997. . . . Instead of being protected, I was humiliated. I was in trouble and brainwashed into believing that I was the problem.

This complaints of sexual harassment and abuse at Michigan State University have caught the attention a variety of public officials and sports regulating organizations. Many organizations and political branches have announced investigations into Dr. Nassar, Michigan State University, and its faculty:

  • The National Collegiate Athletic Association (NCAA)
  • United States Olympic Committee
  • Michigan’s Department of Licensing and Regulatory Affairs (as to Dr. Nassar’s medical license)
  • The Federal Bureau of Investigation (FBI)
  • Michigan Attorney General’s Office
  • United States Department of Education

At the same time, Michigan State University is hurrying to take what steps it can to respond to these complaints after the fact. MSU President Lou Anna Simon resigned in January 2018, but even a week before, MSU issued a statement that “any suggestion that the university engaged in a cover-up is simply false.” The Board of Trustees then named former Michigan governor John Engler as interim president to replace Simon. But even that choice has been questioned by students, faculty, and the press, because of Engler’s response to sexual harassment allegations in Michigan prisons during his time as governor.

Federal and state laws mandate that sexual harassment and abuse must be taken seriously whether it happens at school or in the workplace. At Eisenberg & Baum, LLP, our sexual harassment attorneys help employees facing gender discrimination on the job. If you are face a hostile work environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Wage Discrimination at BBC Goes Public

/

How do you measure wage discrimination in field where talent affects each individual’s pay? For the last 6 months, the British Broadcasting Company (BBC) has been wrestling with this issue in light of claims of wage discrimination at BBC. With Carrie Gracie’s resignation from the China editor position, the struggle went public, even reaching news outlets here the United States.

In this blog post I will review the open letter published by the BBC’s China editor, Carrie Gracie, about wage discrimination between the company’s four international editors. I will explain how the U.S. Equal Pay Act compares to Britain’s Equality Act of 2010, and what U.S. employees can do if they find out they are being paid less because of their gender.

On January 7, 2018, Carrie Gracie published an open “Letter to BBC Audience” on her personal blog. The letter announced that she would be stepping down from the China Editor position and resuming her role at the BBC newsroom. The reason for the sudden change was what Gracie saw as substantial wage discrimination between female and male international editors.

BBC Releases High Earners’ Salaries, Revealing Apparent Wage Discrimination

Gracie’s letter brought attention to apparent wage discrimination first disclosed in July 2017. At that time, the BBC published the salaries of all those earning £150,000 or more, grouped into £50,000 tiers, under the terms of its new Royal Charter. Two thirds of those stars were males (62 men as compared to 34 women), including the company’s top seven earners. Prime Minister Theresa May said “I want women to be paid equally,” and Lord Tony Hall, BBC’s general director, pledged to close the gender pay gap by 2020.

But Carrie Gracie didn’t want to wait. She asked the BBC to address wage discrimination between her colleagues and herself. She noted that she is a China specialist, fluent in Mandarin, and had nearly 30 years of experience in journalism. She noted that her position also brought unique challenges including distance from loved ones, censorship, police harassment and official intimidation. All of these factors could contribute to a higher rate of pay. But in a BBC Channel 4 News Interview on January 8, 2018, she disclosed that she only earns £135,000 per year, less than 50% of her male colleagues.

The BBC apparently offered her a substantial raise to resolve the matter. However, Gracie says it wasn’t big enough to eliminate the wage discrepancies, nor did it address treatment of other women across the company. She called on the BBC to engage in independent arbitration to resolve those individual cases, but she would not weigh in on whether that meant raising women’s compensation or forcing male employees to take a pay cut.

British Equality Act 2010 Compared to U.S. Equal Pay Act

The British Equality Act of 2010 created an overarching civil rights law similar to the U.S. Civil Rights Act. Among many other things, the law protects British workers from discrimination at work including pay and benefits. It allows claims even when there is no direct comparison to a worker of another gender. It also made pay secrecy clauses unenforceable, making it easier for women (and minorities) to discover illegal wage discrimination.

The British law combines several civil rights laws with American equivalents. For the purposes of wage discrimination, it connects to Title VII of the U.S. Civil Rights Act and the Equal Pay Act. Title VII protects against sex and gender discrimination in work-related decisions, including pay, benefits, and raises. The Equal Pay Act explicitly prohibits paying different wages based on an employee’s sex.

Both the British and American systems allow employers to justify pay differences based on gender-neutral characteristics. Under the Equal Pay Act that could include:

  • Merit
  • Quantity or quality of production
  • Experience
  • Skill needed to complete the task
  • Risks associated with the task

However, under the Equal Pay Act, an employer cannot solve wage discrimination by reducing the wages of other employees. The British Equality Act does not appear to have the same restriction. While the BBC has said there was “no systemic discrimination against women”, the company has admitted that meeting its own promises could cause male “talent” to face pay cuts.

What To Do If You Face Wage Discrimination

American workers facing gender-based wage discrimination have the right to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. Many states also have their own laws prohibiting wage discrimination, which allow for claims to be filed in state court.

However, in many cases, before filing those complaints an employee must exhaust internal complaints and grievance procedures. It was due to frustration with a similar internal process that finally pushed Gracie to publish her open letter and resign from her position as China Editor. However, until those remedies are exhausted, American workers may not be allowed to take the case to court.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you sort through the law and make sure you follow the right processes. If you believe that you are being paid less than your coworkers because of your gender, even in an industry with individual pay calculations, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

U.S. Supreme Court Considers LGBT Discrimination by Wedding Cake Baker

/

On December 5, 2017, the U.S. Supreme Court heard oral arguments in a case that pits protections granted to a same-sex couple in a state Civil Rights Act against claims of Free Speech and Freedom of Religion by a Christian baker. The outcome is far from certain, but the effect on state and federal discrimination cases could be far-reaching.

In this post, I will review the oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the U.S. Supreme Court will consider whether a wedding cake vendor had the right to refuse service to a same-sex couple due to his religious objection. I will discuss the history of the LGBT discrimination case and explain the possible outcomes.

Colorado Anti-Discrimination Act Protects Against LGBT Discrimination

There anti-discrimination laws at the federal, state, and even local level. These laws prohibit discrimination at work, in housing, and by businesses open to the public. No matter where you live in the United States, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) for discrimination based on protected characteristics like race, sex, religion, old age, or disability (among others). However, federal law does not explicitly prohibit LGBT discrimination (based on a person’s sexual orientation). Whether that is included in Title VII of the Civil Rights Act is a question currently up for debate at the Court of Appeals level, where two cases recently came to two different results.

Some states, including Colorado, have chosen to provide their residents with additional, more explicit, protections against LGBT discrimination. The Colorado Anti-Discrimination Act (CADA), as amended by the Sexual Orientation Employment Discrimination Act (SOEDA), prohibits discrimination based on a person’s sexual orientation, as well as the categories covered by Title VII. If a business is open to the public or offering public accommodations, it cannot refuse anyone “the full and equal enjoyment of foods and services” based on one of the protected traits.

Same-Sex Couple and Christian Baker Clash Over Wedding Cake

In July 2012, David Mullins and Charlie Craig went to Masterpiece Cakeshop to order a custom wedding cake for their reception. Bakery owner Jack Phillips told them the bakery wouldn’t sell wedding cakes to same-sex couples. Dave and Charlie filed complaints with the Colorado Civil Rights Commission (which enforces the CADA) alleging sexual orientation discrimination. The Commission determined that the bakery had violated state law.

The baker appealed in Federal Court, claiming that he had a Constitutional right to refuse to bake a cake for an LGBT couple in light of his First Amendment rights to Free Speech and Freedom of Religion. On August 13, 2015, the Colorado Court of Appeals affirmed the Commission’s ruling, finding that the CADA did not infringe on the baker’s First Amendment rights. The Colorado Supreme Court declined to hear the case, but the baker kept appealing all the way to the U.S. Supreme Court, which granted certorari on June 26, 2017. Oral arguments in the case occurred on December 5, 2017, and a final opinion is expected before the end of the current term in June 2018.

What Does the Baker’s Religion Have to Do with the Case?

In oral arguments before the U.S. Supreme Court, Jack Phillip’s attorneys argued that the CADA was unenforceable in this case because baking custom wedding cakes was a form of expression. They said that the law prohibiting bakers from refusing service to homosexual couples based on their sexual orientation forced Phillips to make expressions he did not agree with. In particular, it would require him to celebrate same-sex marriages, which he is opposed to on religious grounds.

The attorneys claimed that because the law infringed on his First Amendment rights, the court should apply “strict scrutiny”, the highest test for government actions, and find that the prohibition on discrimination was unconstitutional. According to their argument, preventing discrimination was not enough of a reason to pass the law, since same-sex couples could choose a different baker.

Public Accommodation Laws and Religious Expression

According to the Colorado Civil Rights Commission, the CADA isn’t designed to interfere with religious expression or free speech. The CCRC said the law was an ordinary, neutral, and generally applicable public accommodation law that applies universally to companies that offer public goods and services. The Supreme Court has upheld similar laws that regulate commercial conduct to prevent discrimination against protected classes in the past. The CCRC asked the court to apply similar standards in this case.

What a U.S. Supreme Court Decision Means for Discrimination Law

The decision in Masterpiece Cakeshop, LTD v Colorado Civil Rights Commission, is probably still months away. After oral arguments, Supreme Court justices must discuss cases behind closed doors and draft opinions (often in favor of both sides). Then each justice must determine which arguments he or she will support. Whichever opinion achieves a majority (5 votes), becomes the law of the land.

Those who regularly observe oral arguments and read U.S. Supreme Court decisions know that it is often impossible to guess the outcome of a case before the opinion is released. However, a commentator for the American Civil Liberties Union (which represented the couple), said it appeared at the end of the day as though the decision will depend on the vote of Justice Anthony Kennedy. As has often been true in recent years, his vote will likely tip the scales either for increased discrimination protections or broader religions expression.

Should the U.S. Supreme Court determine that the CADA unconstitutionally interfered with baker’s free expression of his religion (or any of the variations of this argument that were presented), it could allow employers, landlords, and business owners to create a kind of personal religious exemption to state and federal anti-discrimination laws. Whenever a professional’s conduct includes expression, whether in the form of speaking, acting, or artistic creation, that professional may be able to raise religious defenses to anti-discrimination claims under state laws.

If, however, the Justices decide in favor of the CCRC, discrimination attorneys and their clients will be able to rely on the enhanced protections built into many states’ civil rights laws. They will continue to use these laws to ensure gay and lesbian citizens are granted the same protections at work, in finding a house, and as consumers, for years to come.

At Eisenberg & Baum, LLP, we know how important it is for our employment discrimination attorneys to stay up to date with current sexual orientation discrimination case law. We make it a priority to follow changes in the law, and we can help you understand your rights, and what your remedies might be if you have faced discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.

Harassed at Work: Can You Sue for Emotional Abuse?

/

When you are harassed at work, it can make you dread every shift and put your physical and mental health at risk. But can you do anything to stop it? Can you sue for emotional abuse if harassed at work?

In this post, I will review the laws that protect employees from workplace harassment and emotional abuse. I will summarize the damages available for stress, mental health treatment, and other emotional distress, and how an employment discrimination attorney can help you be compensated for your emotional pain and suffering.

Emotional Abuse Can Cause Serious Health Concerns

Emotional abuse at work is always about power. The conscious, repeated effort to wound an employee with words is designed to undermine those employees’ accomplishments and rob them of their self-confidence. Workplace harassment can include:

  • Misplaced blame for errors
  • Sabotage of work done
  • Unreasonable work demands
  • Stealing credit for work done
  • Discounting accomplishments
  • Intimidation
  • Insults and put-downs
  • Humiliation
  • Threats to a person’s job, seniority, or assignments

Workplace bullying and other forms of emotional abuse aren’t just about hurt feelings. Psychological harassment can seriously harm an employee’s well-being and productivity. Over time, emotional distress caused by a hostile work environment can result in anxiety, depression, stress, and even trauma responses like Post Traumatic Stress Disorder (PTSD). It can cause reduced productivity, increased absenteeism, and even require leaves of absence as the victim addresses the mental-health consequences of the abusive treatment.

The effects of emotional abuse can’t be easily undone. They often require ongoing mental health treatment, therapy, and sometimes even require medication. When emotional abuse rises to the level of psychological trauma, the effects can even be permanent. Stress and trauma can also cause physical illnesses including ulcers, digestive issues, and sleep disorders.

When Emotional Abuse is Illegal

There is no general law against workplace bullying or other forms of harassment at work. But state and federal laws do protect against a hostile work environment based on a number of protected traits:

Often, a hostile work environment includes emotional abuse and derogatory statements based on or about a person’s protected trait. When an employer doesn’t respond to complaints about sexual harassment or racial jokes, it can open the door for an employee to sue for emotional abuse.

What to Do When Workplace Harassment Isn’t Discrimination

Even when your emotional distress isn’t caused by racial tension or unwanted sexual advances, you may still have the ability to sue for emotional abuse. Many employer have anti-bullying policies against workplace harassment. When a superior refuses to enforce those policies it can create a breach of contract action against the company. However, the claims and damages available in these cases depend on the language in each individual contract or policy. So it is important to meet with an experienced employment lawyer to review your options.

Damages Available in an Emotional Abuse Lawsuit

If you and your employment discrimination attorneys determine you have a valid emotional abuse lawsuit, you may be able to recover a variety of damages and other remedies. On the one hand, you will be entitled to back pay and front pay for any time you were unable to work as a result of the abuse. This can cover leaves of absence under FMLA or short-term disability, as well as constructive firing if you had no choice but to leave your job.

You should also keep a record of all actual costs connected to the abuse and any related job loss. You may be able to receive compensation for anything from hospital bills and therapy costs to travel for interviews in replacement jobs or training needed to shift employment.

Depending on the nature of your workplace harassment claim, and the laws in your state, you may also be entitled to compensatory and punitive damages based on your emotional distress, pain and suffering, harm to reputation, and other non-economic injuries. Often these damages must be objectively demonstrated. You and your lawyer should be prepared to use medical records and even expert witnesses to present your claims.

Finally, if you want to keep your job, you may be entitled to injunctive relief. This is where a judge orders your employer to change its ways. An injunction could require a company to create or enforce anti-harassment policies, change hiring, job assignment, and firing practices, or put managers, supervisors, and employees through training. A judge could even require a business to fire the one responsible for the harassment.

There are many options for remedies available in an emotional abuse lawsuit. At Eisenberg & Baum, LLP, our employment discrimination attorneys will review your case, determine which laws apply to your circumstance, and help you understand your rights. We will discuss your options and create a plan, so you know what to expect. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Autistic Dishwasher Sues for Psychiatric Disability Discrimination, Sexual Harassment and Discharge

/

Chronic mental and emotional conditions can make it hard to hold down a job. Everyday activities are often much more difficult when working around a diagnosis like depression or autism. When your employer engages in psychiatric disability discrimination, it can become too much to handle. But the EEOC and private employment discrimination attorneys are here to help you stand up to psychiatric disability discrimination, sexual harassment, and wrongful discharge, just like they did for one autistic dishwasher in North Carolina.

In this blog post, I will review the Complaint in EEOC v Jax, LLC d/b/a Golden Corral, Civil Action No. 3:17-cv-00535-RJC-DCK), alleging psychiatric disability discrimination, sexual harassment and wrongful discharge. I will explain how the Americans With Disabilities Act and Title VII of the Civil Rights Act protect employees from discrimination based on mental health disabilities. I will also summarize the remedies available to a disabled employee facing harassment and discrimination.

Golden Corral Restaurant Creates Hostile Work Environment for Autistic Dishwasher, EEOC Says

Sean Fernandez was a dishwasher at the Golden Corral restaurant in Matthews, North Carolina. He had a psychological disability in the form of high-functioning autism. This limited his ability to communicate and interact with others. According to the complaint filed in EEOC v Jax, LLC d/b/a Golden Corral, an assistant manager in his workplace took advantage of that disability, creating a hostile work environment. The EEOC complaint says that this male assistant manager called Fernandez a “retard” and “stupid”, swore at him, requested oral sex, threatened to sexually assault him, and made repeated unwanted physical contact. Fernandez filed a complaint with Golden Corral and asked to be assigned a different shift, with a different manager. When he was again assigned to the same assistant manager, who again sexually harassed him, Fernandez was allegedly forced to leave his job.

The Golden Corral complaint raises concerns over psychological disability discrimination under the Americans with Disabilities Act (ADA), sexual harassment under Title VII of the federal Civil Rights Act, and wrongful discharge.

Psychological Disability Discrimination and the ADA

The Americans with Disabilities Act (ADA) protects workers from discrimination based on their disabilities. It also requires employers to make reasonable accommodations to allow disabled workers to complete their assigned tasks. The ADA applies to psychiatric disabilities resulting from mental illness as well as physical limitations. According to the ADA National Network, 44 million adults report having a mental health condition in the past year. That is about 18% of the U.S. working population. This includes diagnoses like:

  • Anxiety disorders such as post-traumatic stress disorder (PTSD), panic attacks, or generalized anxiety disorder
  • Depression
  • Attention deficit/hyperactivity disorders (ADD or ADHD)
  • Bipolar disorder
  • Schizophrenia
  • Autism-spectrum disorders

All of these psychological diagnoses can qualify a person for protection under the ADA. The statute defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” In the case of autism, this could include limitations on how the person communicates with coworkers. The ADA protects employees with current disabilities, those who have a record of psychiatric disability, and even those who are perceived as having a psychiatric disability.

Workers with qualifying conditions cannot be subjected to psychiatric disability discrimination by their managers, supervisors, or coworkers. The EEOC has take the position that this includes hiring and firing decisions, as well as unfair treatment in the workplace that could create a hostile work environment, such as the use of disability-related slurs.

Sexual Harassment and Mental Illness

The EEOC says that Fernandez also faced illegal sexual harassment while working for Golden Corral. Sexual harassment and mental illness can often be linked. In some cases, severe sexual harassment can cause temporary, or even permanent, mental health conditions such as anxiety or depression, which in turn can affect a person’s ability to work. In other cases, like with Fernandez, a person’s existing psychiatric disability can make him or her vulnerable to sexual harassment at work. Abusive coworkers and superiors may see the disabled person as an easy target, singling him or her out for discriminatory conduct.

Can You Quit Your Job to Escape Psychiatric Disability Discrimination?

The last part of the EEOC’s complaint against Golden Corral says that conditions on the job were so bad that Fernandez was forced to quit. The ADA and Title VII both protect against retaliation, including discharge, after a discrimination complaint is filed. They also both cover wrongful discharge or termination. But your employer doesn’t have to take the first step. If the conditions at work are bad enough that a reasonable person wouldn’t work there, you may be able to quit your job and still recover for wrongful discharge.

Under this theory, if the EEOC and Fernandez win their case, Golden Corral may have to give Fernandez his job back, and either reassign or fire the offensive assistant manager. Fernandez may also receive lost wages, both past and future (if he does not get re-hired), and other money damages for the harm caused by the psychiatric disability discrimination and sexual harassment.

Psychiatric disability discrimination can make living with mental illness even tougher. These conditions are often invisible, and many who suffer from them learn coping mechanisms and take medication that allow them to carry on at work. But when you become a target, it can put extra strain on your coping mechanisms. You shouldn’t have to put up with psychological discrimination or sexual harassment just because of your mental health condition.

If your mental illness is leaving you exposed to psychological disability discrimination at work, the disability discrimination attorneys at Eisenberg & Baum, LLP, can help. We will help you negotiate with your employer, prepare your case, and stand up for you in court. If you or a loved one is being targeted at work because of a mental illness, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Sexual Harassment in the Federal Government: #MeToo Hits Congress

/

The #MeToo movement has affected big names from Hollywood to Washington. Now, a string of allegations against Congressmen (and women) are raising questions about how sexual harassment in the federal government is handled, and who gets to know about it.

In this blog post, I will review allegations weighed against a number of U.S. Representatives and congressional candidates. I will explain how the Congressional Accountability Act and Title VII can be used to protect federal employees, including congressional staffers.

#MeToo Sexual Harassment Complaints Sweep Washington

Since the #MeToo movement went viral recently, allegations have been raised against actors and producers, news personalities, corporate executives and others. Now, a number of complaints have been raised against members of Congress and congressional candidates leaving some staffers wondering who will be next.

Senator Al Franken

Senator Al Franken, a Democrat from Minnesota, was the first sitting congressional figure to face sexual harassment allegations. At least 6 women claimed Franken groped them while posing for photos during his media career. On December 7, 2017, Franken announced he would resign from the Senate. However, by December 18, he was still appearing on the Senate floor, and several legislators who had called for his resignation appear to have had a change of heart.

Representative John Conyers

Representative John Conyers from Michigan, the longest-serving member of Congress, also faced allegations of sexual misconduct. An online news article described a confidential settlement of over $27,000 paid to a former staffer who claimed the congressman created a hostile work environment for women staffers. Marion Brown told USA Today that Conyers pressed her for sexual favors, particularly when his wife was out of town. Conyers resigned his seat on December 5, 2017, despite continuing to deny the allegations by Brown and at least six other women and witnesses.

Representative Blake Farenthold

Representative Blake Farenthold, a Republican from Texas, also settled a sexual harassment lawsuit filed by a former aide. Lauren Green said Farenthold made sexually charged statements and engaged in off-color behavior. The settlement was paid through the Office of Compliance, which handles all congressional workplace concerns. However, Farenthold has since promised to repay the taxpayer funds used to cover the cost and announced he would not seek re-election at the end of his term.

Representative Ruben Kihuen

Representative Ruben Kihuen, a Democrat from Nevada, faces allegations by a young woman working on his 2016 campaign that he touched her thighs without consent twice. She quit the campaign rather than report the behavior. He apologized for his behavior amid calls that he resign.

Representative Trent Franks

Representative Trent Franks, a Republican from Arizona, resigned just hours after Sen. Franken. He too faced allegations of sexual harassment. This time two female staffers reported he pressured them to agree to act as surrogates and discussed fertility issues with them.

Congressional Candidate Roy Moore

Sexual harassment allegations also played a large role in the recent special election in Alabama. Republican senate candidate Roy Moore was accused of kissing and sexually assaulting a 14 year old girl when he was 32 years old. Three other women said Moore had pursued them while they were underage. Despite several members of his party recommending he withdraw from the election, Moore pressed on with the support of President Donald Trump. He lost to Democrat Doug Jones by a narrow margin.

The Congressional Accountability Act and Sexual Harassment in the Federal goverment

The 1995 Congressional Accountability Act (CAA) ensures that federal government employees are covered by employment and workplace safety laws, including Title VII of the Civil Rights Act. The CAA applies to over 30,000 legislative branch employees both in Washington and in state offices across the country. Under the CAA, those employees can raise complaints about sexual harassment in the federal government, among other worker protection laws.

The CAA created the Office of Compliance, an independent administration office that handles all congressional workplace complaints. The Office facilitates settlement of claims, provides workplace education and training programs, and investigates and enforces the laws described in the CAA within the halls of Congress.

Government workers must report civil rights violations within 180 days of the incident. Then the victims are required to go through 30 days of counseling and another 30 days of confidential mediation. If the matter is not resolved, the OCC may hold a hearing, or the employee can file a lawsuit in federal court.

When a federal legislative office commits a civil rights violation, including sexual harassment of staffers, the Office of Compliance is authorized to pay settlements out of the U.S. Treasury. Between 1997 and 2014, the office paid $15.2 million toward 235 awards and settlements addressed by the Office of Compliance. That means that when the victims of sexual harassment by members of Congress or other federal employees, the money comes from U.S. Taxpayers.

Changes to Sexual Harassment Claims in Washington

The House of Representatives recently voted on HB 4155, a bill that would amend the CAA to make the names of those accused of sexual harassment publicly accessible. Both houses have also approved bills to make sexual harassment and gender discrimination training mandatory.

Federal government employees face sexual harassment just like any other industry. But the CAA adds extra layers to the process to receive relief. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment in the federal government. If you are a congressional staffer facing discrimination, contact us today to schedule a free consultation.

What is Ford Motor Company Doing About Harassment of Women and African-Americans?

/

When a workplace turns hostile, it is often not just one employee who suffers. Even when only a handful of employees come forward to the Equal Employment Opportunity Commission (EEOC), it is often a sign that relief will take company-wide changes. At Ford harassment of women and African-Americans has been going on for decades. Find out what Ford Motor Company is doing to combat harassment in its Chicago plants. In this blog post I will discuss the recent Ford Motor Company settlement with the EEOC. I will explain when sexual harassment and racial discrimination can result in class action lawsuits. I will also explain how the EEOC’s conciliation process can sometimes be used to avoid public embarrassment, and lengthy litigation.

Title VII Protects Classes of Protected Employees

Title VII of the Civil Rights Act makes it illegal for employers to engage in or allow harassment or discrimination based on race, color, or national origin, as well as sex or gender. Employers are not allowed to make hiring or other employment decisions with these traits in mind. They are also required to take reasonable steps to stop discrimination or harassment from creating a hostile work environment for their employees.

When a Title VII complaint includes larger employers like Ford Motor Company, it often includes harassment against more than a handful of employees. In these cases, the EEOC or private workplace discrimination attorneys often pursue class action lawsuits for the benefit of all employees in the protected class.

EEOC Conciliation Settlement Advantages

Class action lawsuits can become large and complicated, including extensive testimony from affected employees, witnesses, and experts. They are also attractive to journalists, and can turn into bad press for the employer. What that happens, it puts the representative plaintiffs in the uncomfortable position of becoming the public face of a highly publicized lawsuit.

This can make a settlement attractive for everyone involved. EEOC investigations include a request that the parties voluntarily engage in conciliation, an informal mediation process, to resolve complaints. Many larger companies are willing to use conciliation, especially when there is a chance the complaints will lend themselves to a class action lawsuit. In those cases, employees may want to take advantage of the mediation process to resolve their cases more quickly and privately, while still getting the relief they need.

If employees do decide to use the EEOC conciliation process, it is a good idea discuss the matter with an independent employment attorney first. The EEOC often has the big picture in mind — looking for ways to make the workplace less hostile for the largest number of employees. If an individual claimant’s damages or concerns are different or more severe than the average class member, those needs can sometimes be overlooked in the settlement process.

Ford Motor Company’s Conciliation Settlement

In August 2017, Ford Motor Company decided to take advantage of the EEOC’s conciliation settlement to resolve complaints of workplace harassment of women and African-Americans. The charges claimed that personnel at the Chicago Assembly Plant and Chicago Stamping plant had subjected female and African-American employees to sexual and racial harassment. The EEOC’s investigation also revealed evidence that Ford had retaliated against employees who complained about the treatment.

According to announcements by the EEOC and Ford Motor Company, the settlement included:

  • Up to $10.125 million in cash damages
  • Regular training at the Chicago facilities over 5 years
  • Distribution of the company’s anti-harassment and anti-discrimination policies to employees and new hires
  • Reporting to the EEOC on all harassment and related discrimination complaints
  • Workplace monitoring

By entering into the settlement, Ford was able to avoid admitting liability for the harassment allegations.

Neither Ford nor the EEOC commented on how many employees were involved in the original charges. But the financial part of the settlement could apply to any of the company’s 5,500 employees at the two plants who are women or African-American men working at the plant after January 1, 2010. To receive their portion of the settlement, employees will need to establish their eligibility through a process set out in the agreement.

A conciliation settlement can often resolve claims of workplace harassment of women, African-Americans, and other protected employees sooner and more discreetly than extensive litigation. But it isn’t right for every case. If you are facing harassment at work, our experienced workplace harassment attorneys at Eisenberg & Baum, LLP, can help you consider your situation, and your options through the EEOC and in court. Contact us today to schedule a free initial consultation and get your case started.

U.S. Supreme Court to Decide Whether Employment Arbitration Agreements Can Block Class Actions

/

Sometimes problems in the workplace are so widespread that they affect hundreds or even thousands of employees. That’s when lawyers and government enforcement agencies use class action lawsuits to protect employee rights. But if the U.S. Supreme Court decides that employment arbitration agreements apply to employment disputes, it could put the solutions out of reach.

In this blog post, I will review Epic Systems v. Lewis, 16-285; Ernst & Young v. Morris, 16-300; and National Labor Relations Board v. Murphy Oil, 16-307, three lawsuits consolidated for the U.S. Supreme Court’s consideration this term. I will explain how employment arbitration agreements work and how they could affect future of workplace discrimination law.

What Are Employment Arbitration Agreements?

In arbitration, the parties pay one to three individuals, usually with relevant legal or professional experience, to hear the arguments and make binding decisions about how the dispute will be resolved. In commercial litigation, arbitration can be used used to resolve collections issues, product defect problems, and a variety of other possible lawsuits. Employment arbitration agreements come into play in enforcing non-compete agreements, wage disputes, and even claims of sexual harassment and workplace discrimination.

Today, nearly every credit card contract, lease agreements, and other consumer contract includes a mandatory arbitration agreement. This contract language removes disputes from the courts and places them in front of private, professional arbitrators. Arbitration agreements are also part of many employment contracts across the country. From large corporations to small start-ups, many employers have included these provisions in their employee handbooks and other employment contracts in an effort to control the cost of litigation.

What’s Wrong With Employment Arbitration Agreements?

Consumer advocates and others say that the close financial relationship between arbitrators and the companies who use them regularly can sometimes make it harder for individuals to receive a fair outcome. They also say that mandatory arbitration agreements can sometimes keep people from the relief they deserve. The cost of arbitration is often so high that it doesn’t make sense to take many smaller disputes through the process.

In the court system, cases with small remedies are addressed through class actions. The law allows hundreds or thousands of employees facing the same illegal treatment by the same employer to be compensated for small-figure wage disputes or harassment claims in one large class action lawsuit. However, employment arbitration agreements have the ability to interfere with those class action lawsuits. This is because an arbitration clause requires each dispute to be arbitrated individually before (or often instead of) going to court.

The U.S. Supreme Court Weighs Arbitration Against Collective Litigation

Attorneys for employers have successfully argued that employment arbitration agreements prevent employees from joining together in collective litigation including class action lawsuits. Three recent lawsuits, Epic Systems v. Lewis, 16-285; Ernst & Young v. Morris, 16-300; and National Labor Relations Board v. Murphy Oil, 16-307, all of which have been granted certiorari by the U.S. Supreme Court, have addressed this issue. The three cases arose when employees who had entered into employment arbitration agreements tried to file class actions or collective litigation in federal courts:

  • In Murphy Oil, the lawsuit was for unpaid overtime compensation. However, the court dismissed the case because the employees had not taken their disputes to arbitration first. The representative plaintiff, Sheila Hobson, then took the issue to the National Labor Relations Board. The NLRB sued the gas company saying that requiring employees to waive their right to collective litigation was an unfair labor practice. The case was again dismissed for lack of arbitration.
  • In Epic Systems, Jacob Lewis also filed his class action lawsuit for denied overtime pay. But his lawsuit went forward after federal court judge rejected the software company employer’s argument that its arbitration agreement was enforceable.
  • In Ernst & Young, two employees sued for violations of the Fair Labor Standards Act and state laws. There the district court enforced the arbitration provision, but the Circuit court reversed and reinstated the employees’ case.

These three cases, and their different outcomes, showed how important the upcoming U.S. Supreme Court decision will be for employment litigation. The Justices heard oral arguments on October 2, 2017. During the arguments, and in the closed-door deliberations that will occur in the months to come, the Supreme Court Justices will weigh the Federal Arbitration Act’s (FAA) mandate that arbitration agreements “shall be valid, irrevocable, and enforceable” against the National Labor Relations Act (NLRA), which protects employees right to engage in “concerted activities” for “mutual aid or protection”.

The employees’ attorneys say that if the Justices enforce the employment arbitration agreements it will interfere with the NLRA’s purpose to correct the power imbalance between employers and employees. By prohibiting the employees from coming together to pursue collective litigation, the employers may be able to avoid proper compensation all together because the cost of arbitration would outweigh the potential remedy.

Arbitration Agreements and Workplace Discrimination

The Supreme Court cases center around wage issues. However, if the FAA is held to “unequivocally” protect an employer’s right to enforce arbitration agreements, it could also affect employees’ ability to advocate for changes in the workplace. Private employment discrimination attorneys and the Equal Employment Opportunity Commission (EEOC) often bring claims on behalf of classes of employees to enforce Title VII of the Civil Rights Act against sexual harassment and workplace discrimination.

Depending on the outcome of the FAA, these cases could be broken up into individual, single-plaintiff lawsuits. Particularly in sexual harassment cases, the strength of the plaintiffs’ claims is often in their similarities and the patterns within their stories. When arbitrated one by one, this could weaken employees’ abilities to get relief in hostile workplaces.

A great deal hangs on the U.S. Supreme Court’s resolution of employment arbitration agreements and collective litigation. From wage disputes to employment discrimination litigation, employee attorneys use class action lawsuits to great effect. Whether that tool will remain available in the future remains to be seen.

If you are facing fair pay concerns or workplace discrimination, the skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can help. Contact us today to schedule a free initial consultation and get your case started.