Category Archives: employment discrimination

In Significant Workers’ Rights Case, The U.S. Supreme Court Grapples With Grammar

In legal disputes, success or failure often turns on the definition of a word.  For example, what does the word “file” mean?  To some, it refers to that ubiquitous manila or colored organizer that many an office could not survive without.  To others, it refers to the act of lodging something with a particular body, agency, or office; e.g., to file a complaint.  Lawyers speak of a client’s “file” meaning the papers and records and other materials comprising the client’s case, dispute or matter.

Black’s Law Dictionary defines “file” in this way:

1. “A record of the court.  A paper is said to be filed when it is delivered to the proper officer…received to be kept on file as a matter of record;
2. To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference…To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file…as a matter of record…It carries the idea of permanent preservation as a public record.”  (Black’s Law Dict. (6ht ed. 1990) p. 628, col. 1, citing City of Overland Park v. Nikias (1972) 209 Kan. 643, 498 P.2d 56, 59.

Once again, Black’s Dictionary seems to sum it all up nicely, simply and succinctly.  Oh, but if language were that simple.  Words don’t exist in a vacuum, after all.  They represent beliefs and intent expressed in a particular context.  As I heard an attorney state in a recent oral argument, “Nomenclature matters.”  Yes, it does.  But, so does context.

During its October term, in an employment law retaliation case that will potentially affect tens of millions of workers, the Justices of the U.S. Supreme Court are grappling over how to define the word “file.”  While their struggle may seem like petty semantics, “file” is important in the context of the employment law statute at issue – the Fair Labor Standards Act (FLSA).  The case involves an employee who sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory.  Both a federal district court judge and the U.S. Court of Appeals for the 7th Circuit ruled against the employee, holding that the FLSA required a written complaint.  The employee’s case invokes FLSA’s anti-retaliation provisions, which seek to prohibit employers from taking adverse actions against employees who raise internal complaints about their working conditions, safety as well as others.

So, the crux of the issue is this:  Does the word “file,” by definition, mean to put something in writing as when you complain, or is a verbal complaint enough?

According to an excellent article in Law.com, at oral argument, the Justices peppered both sides with hypothetical situations involving verbal employee complaints.  These situations are well worth reading, and illuminate the analytical problem facing the Court and the real-world problem vexing employers.  Based on the questioning, the right wing of the Court appeared concerned that too broad a definition might expose employers to retaliation-based lawsuits over nothing more than a verbal reminder about a minor maintenance issue initiated in passing, or even social remarks made outside the office.

The “left-ish” wing of the Court, however, seemed to invoke the history of the FLSA.  In particular, many of the workers whose conditions were most improved by the FLSA – and who will likely be most affected by the Court’s ruling – include migrant field workers or others employees working in situations where writing something down was not thought to be all that easy to do.  Counsel for the employee, Kevin Kasten, remarked:

“It’s implausible to think migrant workers would leave the field to file written complaints with a government agency,” he said. “Migrant workers, coal miners, factory workers — they don’t write memos. This has to have a broad interpretation. Employees are the engine that drive this act.”

Realistically, both sides have a valid point.  In those case, the “right” decision usually is a combination of both viewpoints.  Retaliation lawsuits represent a serious threat to employers, particularly smaller employers who often have haphazard or non-existent complaint/response procedures.  Employers should have some parameters to rely upon when an employee makes a complaint, which should be easy for all to understand and follow.  To preserve the intent of the FLSA, an employee should not have to jump through burdensome or confusing procedural hoops to register a complaint about their working conditions.  In and of itself, that smacks of unfairness.

Fortunately, we live in a world where information sharing has been greatly improved over the world that existed when the FLSA was passed in its original form and even when its anti-retaliation provisions were added.  Today, as reported at Cyber-Esq., the vast majority of Americans own cell phones.  Cell phones are capable of confirming a verbal complaint (at least to some degree of specificity) with a text message or send even longer messages, textual and visual.  Mobile, hand-held forms of communication grown more capable and more approachable every day to “average” workers; they are no longer the playthings of the well off.  These “average” workers are the very people, as Justice Ginsburg correctly, remarked, the FLSA was intended to protect.

As a matter of fairness, taking into account the intent of the FLSA but also the current technologies available for creating a “writing” without having to leave the field and write a memo, it is not asking too much for employees to lodge some form of a writing that at least memorializes or confirms what may have started out as a verbal complaint.  In turn, an employer ought not require or expect the specificity of a pleading, motion or other instrument that transforms a remedial procedure like a complaint procedure into nothing more than a barrier to improved working conditions.

A word of advice for workers reading this article – I have counseled employees for more than a dozen years, and have given them all the same advice when it comes to making a complaint.  If a complaint is worthy enough of a verbal reproach to your boss, why not protect yourself and confirm that with something in writing.  In past generations, that might have been a letter, a handwritten note perhaps.  Today, it can be easily achieved via electronic means.  Do yourself a favor and don’t lock yourself into a dispute like this employee did.

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Jury Hits Pharma Giant Novartis With Sex Discrimination Verdict

Breaking News from NYC:

A NYC jury has rendered a verdict against pharmaceutical giant, Novartis, finding that the company had engaged in a pattern and practice of discrimination against women.  In particular, the jury found that the company paid women less than men and treated pregnant women unfavorably.  You can link to an article from ABC News here, discussing the case.

Second Sex Discrimination Verdict Against Novartis:

This verdict is the second sex discrimination verdict the company has suffered in the last few months.  In early March, a jury in the United States District Court for the District of Columbia rendered a verdict in favor of pharmaceutical sales representative Mary Kate Breeden against Novartis, awarding her $289,669on on a claim of retaliation for taking leave under the Family and Medical Leave Act (FMLA).

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Discrimination In Employment Claims Hit Record High In 2009

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that 93,277 workplace discrimination charges were filed with EEOC during Fiscal Year (FY) 2009, the second highest level ever.  The EEOC is responsible for prosecuting federal administrative charges of discrimination under various federal laws, including the Americans With Disabilities Act (ADA).

Monetary recovery by plaintiffs in those cases totaled over $376 million.  The data released by the Commission shows that private sector bias hit an all-time high in 2009, not surprising considering the sluggish U.S. economy.

For further information about the data release by the EEOC, you can link to the EEOC’s information here.

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Genetic Information Nondiscrimination Act (GINA) Goes Into Effect

November 21, 2009 saw an important new employment law go into effect.  Commonly referred to as GINA, the Genetic Information Nondiscrimination Act was signed into law on May 21, 2008, after 10 years of attempting to pass the law.  GINA is designed to prevent two main problems.  The first problem involves the use of a person’s genetic information by insurance companies to deny health care coverage or determine how much coverage will cost.

Second, and relevant for employment law purposes, GINA prohibits certain employers from discriminating against individuals based on genetic tests and information.  GINA’s provisions apply to employers covered by Title VII of the 1964 Civil Rights Act and are similar to many provisions of Title VII. For example, employees must file a charge with the Equal Employment Opportunity Commission (EEOC) before filing a discrimination lawsuit. Additionally, GINA provides for the right to a jury trial, compensatory and punitive damages patterned after Title VII, and recovery of attorney fees for prevailing plaintiffs under the general fee-shifting statute applicable to federal civil rights act claims  However, GINA does not create a disparate impact cause of action for genetic discrimination.

GINA provides six exceptions to the statutory sections prohibiting employers from acquiring genetic information, which are:

(1)   where the employer inadvertently obtains genetic information (sometimes referred to as the “water cooler” exception);

(2)   where the employer offers qualifying health or genetic services, including such services offered as part of a voluntary wellness program;

(3)   where the employer requests family medical history to comply with the certification provisions of the Family and Medical Leave Act (FMLA) or state or local family and medical leave laws;

(4)   where the employer acquires genetic information from documents that are commercially and publicly available, including print and Internet publications, except that an employer may not research medical databases or court records for the purpose of obtaining genetic information about an individual;

(5)   where the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace, provided that the employer complies with monitoring restrictions provided in the proposed regulation; and

(6)   where an employer that conducts DNA analysis for law enforcement purposes requires genetic information of its employees, apprentices, or trainees for quality control purposes to detect sample contamination.

Employers are required to update all posting in the workplace to reflect the new law.

If you are interested in this new development, or have concerns about what GINA’s provisions, I have included a GINA table in the Box from the Genetics and Public Policy Center.  You can also listen to an audiocast about GINA on NPR by following this link.

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