The University of Florida and Oxford University have been sued, in New Jersey, for violating Title VII and other federal and state laws by a former African-American professor denied tenure. The Daily Business Review has a good story here detailing the case's awkward history -- including a dismissed federal case in Florida, a second dismissed case that was orginally filed in New Jersey and then transferred to Gainesville, and now this third federal lawsuit, filed in New Jersey but with different counsel.
"Denied tenure" cases are pretty common but terribly difficult to win. Universities are given great latitude in deciding who is granted tenure and who is not and it is difficult for a plaintiff to show that, had it not been for her race or sex, she would have been granted tenure. Most colleges promote diversity and go out of their way to hire and promote minority professors. In fact, from a purely objective and documentable perspective, it is almost easier for a white, male professor to show that he was passed over for tenure in favor a minority professor. At least the university would (or likely should) have a documented policy of recruiting and hiring minorities. No company has a documented policy of recruiting white men.
The most interesting aspect of this case is that, according to the complaint, the EEOC found "reasonable cause" to believe that the University of Florida violating Title VII. This is extremely rare and the EEOC finding is admissible in court as evidence. Stay tuned...
Sarelson Law Firm is currently representing several employees at OshKosh B'gosh retail outlets who appear to have been subjected to a hostile working environment premised on racial and ethnic grounds. We would be interested in interviewing any witnesses who saw or heard inappropriate workplace conduct or commentary.
The Palm Beach County Office of Equal Opportunity ruled that a black firefighter for the City of West Palm Beach was denied a promotion due to his race. The OEO ruled that the firefighter was better qualified than several white firefighters who received promotions. The Sun-Sentinel has the full story here. The City intends to appeal.
The blog takes great pride in being as neutral as possible on legal issues and court opinions - Sarelson Law Firm (unlike most employment law firms) represents both employees and employers in employment disputes and avoids ideological based representation. But the Eleventh Circuit issued an unpublished opinion yesterday that really bothers me. The case is Ash v. Tyson Foods, and the blog has previously discussed the case the last time the Eleventh Circuit issued an opinion in the case.
The case is a race discrimination case under 42 U.S.C. s. 1981. In the original trial, the jury returned a verdict in favor of the employee and awarded both compensatory and punitive damages. The trial judge granted the employer's motion for a directed verdict - i.e., the judge overruled the jury's decision and entered a verdict fo the employer. The employee, who won (at least according to the jury), successfully appealed to the Eleventh Circuit and the Eleventh Circuit correctly ruled that there was evidence to support the jury verdict, and thus the trial judge was wrong to overrule the jury.
Despite this initial ruling, the Eleventh Circuit also affirmed the trial judge to the extent there was insufficient evidence to support the award of punitive damages.
When the case was remanded to the trial judge, the case was retried on both liability and damages. (Frankly the blog is confused as to why there was even a retrial -- the jury's original verdict should have been reinstated and a trial on punitive damages, if warranted and wanted by the plaintiff, should have been approriate).
At the second trial, a different jury again found in favor of the plaintiff and again awarded substantial compensatory and punitive damages. The employer made the same motion to the judge to have the judge overrule the jury's verdict. This time the trial judge -- no doubt taking his cue from being reversed by the Eleventh Circuit the last time - denied the motion and entered judgment in favor of the plaintiff.
Plaintiff won two jury trials and the first ruling on liability was already affirmed by the Eleventh Circuit. Case closed, right? Nope.
This time the employer again appealed making the exact same argument to the appellate court that was rejected the first time - namely, the failure of any evidence to support the jury's finding in favor of the employee.
As luck would have it, this time the Eleventh Circuit agreed with the employer, and again reversed the trial judge but in the exact opposite direction. Poor trial judge. The first time he ruled for the employer and was reversed. The second time he ruled for the employee on the exact same legal issue and the court of appeals reversed him again this time in favor of the employer.
The decision, despite being fairly lengthly, detailed and controversial, was "unpublished" by the Eleventh Circuit. This means the court does not want its own opinion to be binding in future cases. The case was also issued "per curiam," which means no one judge wishes to have his or her name associated with preparing the opinion. A visiting trial judge sitting by designation wrote a simple but strong dissent that got it exactly right -- two different juries found in favor of the employee and awarded compensatory and punitive damages.
Call me old fashioned but I take the Seventh Amendment's right to a jury trial seriously. The blog hopes the case is reheard en banc and perhaps petitioned to the Supreme Court if necessary.
By now we all know of the tragedy in Connecticut where a crazy gunman murdered eight employees before taking his own life. Workplace violence --- so common that it is often referred to as "going postal" - is on the rise as stress levels increase. The demands of employees has risen dramatically over the last several years and the risk of losing your job puts added strain on workers.
Now we're hearing reports that the gunman - an African-American - suffered extreme racism on the job. According to ABC news, the gunman repeatedly was subjected to racial comments and behavior - including pictures of a hangman and a noose and phrases such as "kill the nigger."
None of this justifies workplace violence, but someone needs to investigate the company's workplace policies and procedures. Federal and state anti-discrimination laws are designed to prevent racism in the workplace. Company's with inadequate policies and procedures are more likely to face lawsuits, government enforcement actions, or worse.
Sarelson Law Firm has experience counseling businesses on regulatory compliance and pre-litigation investigations and resolutions. The benefit to having an experienced employment lawyer on your staff in advance is immeasurable.
In Alansari v. Tropic Star Seafood, the Eleventh Circuit recently affirmed summary judgment for the employer where a black, Muslim employee alleged a hostile work environment. The plaintiff alleged that co-workers encouraged him to "find Jesus," played Christian music on the radio and made derogatory comments about his Muslim faith. The court concluded that these comments, while unwanted and in poor taste, did not rise to the level of being threatening or humiliating and did not unreasonably interfere with the plaintiff's ability to perform his job. As a result, the working environment was not considered "hostile" as that term is used in employment litigation. The seven-page, non-binding opinion demonstrates the difficulty employees face when filing hostile work environment claims. It also demonstrates that importance of contacting an experienced employment attorney while you are still employed and while the hostile environment is ongoing. Employees generally have an affirmative obligation to report hostile working environments to management and human resources before it becomes a lawsuit.
A group of Mexican janitorial workers in Chicago will receive proceeds from a $350,000 settlement with their employer, Chicago-based Gonella Bakery, Inc. The suit alleged that a mid-level manager routinely made derogatory remarks to the Mexican workers regarding their national origin. The company also agreed to enter into a consent decree to ensure that similar violations of the Title VII do not happen again. The EEOC's announcement is here.
According to a recently filed lawsuit in New Jersey, a Sikh-American who wears a Turban was denied employment as a sales representative with Tri-County Lexus in northern New Jersey. This blog has written repeatedly about companies with grooming or dress codes that prevent religious Sikhs, Jews and Muslims (and some Christians) from gaining employment. The lawsuit, filed in cooperation with the Washington, D.C.-based Sikh Coalition, was filed last week in the New Jersey Superior Court and was brought under state law only. The complaint is here: Kherha v. Tri-County Lexus Lawsuit
Sarelson Law Firm is not involved in this matter but has represented three Sikhs denied similar employment.
More proof that religious discrimination lawsuits are on the rise and that the EEOC is stepping up enforcement. Last week shipping giant UPS agreed to settle a claim brought by a Rastafarian who was terminated because he refused to cut off his religiously mandated dreadlocks and beard. UPS is paying the employee $46,000 and has agreed to enter into a two-year consent decree to prevent further discrimination and retaliation.
Successful lawsuits by Rastafarians are rare because frequently someone who wears dreads will falsly claim, in an effort to avoid complying with a corporate grooming standard, that he is a Rastafarian just to not be forced to cut his hair. Religious beliefs must be "genuine" in order to become protected under Title VII, and many employers are doubtful about a Rastafarian's genuine religious belief. (In fact, the blog is unaware of any other successful Rastafarian Title VII claim - so, way to go EEOC).
For years the EEOC race discrimination lawsuit against Abercrombie & Fitch was one of the most talked about matters among employment lawyers. It seems the on-again off-again love affair between the EEOC and Abercrombie is on-again, or at least the signs of an early courtship have appeared.
This week a Muslim-American woman, working with the Council on American-Islamic Relations, filed an EEOC charge of discriminination against Abercrombie when she refused to not wear her religiously mandated hijab and when she ultimately was terminated for violating Abercrombie's "look" policy. CAIR's press release is here.
This past September, the EEOC actually filed suit against Abercrombie in Oklohoma on behalf of another Muslim-American who was refused a retail position because of her hijab. Both the September lawsut and new EEOC charge allege that Abercrombie's "look" policy (which precludes head coverings) is facially discriminatory against observant Muslims, Jews and Sikhs.
Abercrombie's "look" policy is not the only grooming manual to come under fire recently. As the blog reported earlier, Orlando-based entertainment giant Disney has twice been sued alleging that its "Disney Look" policy was facially discriminatory against Muslims, Sikhs and Jews.
As a practical matter, it is extremely difficult for employers to argue that an employee's head covering violates a "business necessity" of the company or that it would frequire substantial resources to accommodate the head covering. In 2010, there is no morally or intellectually defensible arguement that someone who works at a Ft. Lauderdale cash register or greets new arrivals at an Orlando hotel must be denied the position due to a religiously mandated turbon or yarmulke.
Sarelson Law Firm has experience representing victims of religious discrimination by major publicly traded corporations. Are you afraid? Need to speak to someone confidentially?
In a lengthy, 53 page opinion, the Atlanta-based Eleventh Circuit Court of Appeals affirmed, in large part, a jury verdict against the Alabama Department of Transportation. The plaintiff, a black employee, alleged that she was repeatedly denied various promotions on account of her race. The jury agreed and the court agreed with the jury on several, not not all of the claims. What makes the case so interesting is that the court went to great lengths to explain the history of racism in Alabama state agencies and that black state employees are still feeling the lingering effects of decades old bigotry.
The court also affirmed the trial court's granting of injunctive relief -- i.e., the plaintiff was reinstated to a sufficiently senior position that would compensate her for the years of lost promotions. Public employees, unlike private employees, are likely to be reinstated or promoted by court order.
Discount retail giant Big Lots agreed to pay $400,000 to five black employees as part of a settlement with the Equal Employment Opportunity Commission. Big Lots also agreed to new policies and procedures to insure that racial discrimination does not occur and that a racially hostile working environment can be reported and cured without fear of retaliation. In the Big Lots case, the hostile work environment came from the plaintiffs' co-workers at the same level of employment. But what got Big Lots in trouble was that the company failed to take corrective action once it was put on notice that the co-workers were making racist remarks on the job.
When you're working in a hostile working environment, the hostility alone is not what gets the employer in trouble and is not alone sufficient to bring a lawsuit. What get's the company in trouble, and what makes them liable, is the failure to correct a hostile working environment after the company knows about it. This is why it is imperative to speak with an experienced employment discrimination attorney before you are terminated or you voluntarily resign. Proactive representation is the key.
The Richmond-based Fourth Circuit Court of Appeals tossed a $10M punitive damage award in a case that reminds us that race discrimination claims can be based on just about any business or contractual relationship. In Worldwide Network v. Dyncorp, a jury found that Dyncorp (one of the nation's largest military contractors) terminated a subcontract with Worldwide Network because Worldwide Network was owned by African-Americans.
Title 42, Section 1981 of the federal statutes prohibits the use of race as a determining factor in entering into a business or contractual relationship. The court affirmed the jury's liability finding, i.e., Dyncorp violated anti-discrimination laws by terminating a contract due to the subcontractor's owners' race. But the court was troubled by the evidence supporting Worldwide Network's argument that the actual decisionmakers at Dyncorp who made the termination decision were racially motived. Punitive damages can only be awarded when the actual decisionmaker knows he or she is violating federal law. (A visiting judge strongly dissented and believed that there was ample evidence that Dyncorp's decisionmakers were aware that they were violating federal law).
The case was not a complete victory for Dyncorp -- the appellate court vacated the punitive damage award and remanded for a new trial with better jury instructions on when punitive damages are available. The blog anticipates that the parties will settle the punitive damage claim without the need for a retrial -- which could easily be larger than the original award and which would merely increase the attorneys' fees and costs Dyncorp would have to pay to both its attorneys and Worldwide Network's.
Were you denied a franchise because of your race? Were you denied a loan or other financial product, including insurance, because of your race? Anti-discrimination laws do not just apply to employment relationships and you should contact an experienced discrimination attorney as soon as possible.
Among the most common discriminatory employment practices that have spiked in recent years is discrimination against employees or prospective employees who wear a religious head covering (yarmulke, turban or hijab). Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act require that employers make an effort to accommodate employees' and applicants' sincerely held religious beliefs. A "no head covering" policy, while seemingly innocous, will disproportionately hurt anyone whose religious mandates conflict with the policy, i.e., observant Jews, Muslims and Sikhs. Employers cannot and should not be able to dismiss an employee or prospective employee's request for a simple and reasonable accomodation.
The EEOC recently settled a $43,000 lawsuit against Ivy Hall Assisted Living in Atlanta when the company refused to permit a Muslim employee to wear a hijab.
Orlando based entertainment giant Disney has been sued twice for similar violations. Aicha Baha v. Disney World Co. (filed in 2004) concerned a Muslim woman who wears a hijab and Channa v. Disney World Co. (filed in 2008) concerned a Sikh musician who wears a turban.
The "best practices" for employers is to always allow religious employees to wear their normal religious articles of faith, unless it truly interferes with the workplace and is truly a financial burden on the company. It's illegal and morally wrong. Contact an experienced religious discrimination employment attorney as soon as possible to avoid or fix a problem.
An Alabama woman with a perfectly valid and strong racial discrimination claim against Tyson Food's lost out on any chance to convince a jury that she was illegally discriminated against because she failed to inform the bankruptcy court of her lawsuit. Most people do not realize that a legal claim against a person or business is an "asset" of the person bringing the lawsuit. As an asset, albeit an unrealized one, it must be disclosed to the bankruptcy court and trustee if you file for bankruptcy protection. Failure to do so could prove fatal.
In Robinson v. Tyson's Foods, Inc, the Eleventh Circuit affirmed dismissal of a perfectly valid employment discrimination lawsuit solely because Ms. Robinson failed to inform the bankruptcy court. She filed for bankruptcy years prior, but her debts had not been fully discharged by the bankruptcy court when she filed suit for race discrimination against Tyson's Foods. The trial court dismissed her claim on the grounds of 'judicial estoppel." Since Ms. Robinson did not declare the lawsuit as an "asset" to the bankruptcy court (and theoretically by denying her creditors the ability to seek a portion of the asset to pay off debts), Ms. Robinson could not then sue for discrimination.
The case essentially pitted the nation's bankruptcy laws up against the nation's anti-discrimination laws. The court ruled that the right of a creditor to seek a debtor's assets trumps the country's anti-discrimination laws. Both bankruptcy and anti-discrimination laws are firmly grounded in the Constitution (with anti-discrimination laws being enacted pursuant to the Fourteenth Amendment).
Harsh result? Yes. The court did not distinguish between employees who intentionally fail to disclose information to the bankruptcy court (which can not and should not be tolerated) and those who act in good faith and merely did not know or think to know that they should inform the bankruptcy court (which is a fact issue that should not always, automatically kill an employee's discrimination lawsuit).
Room for reasonable disagreement over the issue? Absolutely. Judge Anderson, a very distinguished senior appellate judge, wrote a short concurring opinion inviting the Eleventh Circuit to revisit its prior opinions on the subject to create a more reasonable and equitable rule that would permit a victim of racial discrimination to avoid an automatic dismissal. The blog commends Judge Anderson for encouraging a reconsideration of this issue, but it remains unclear whether the losing plaintiff will seek rehearing en banc.
The University of Florida and Oxford University have been sued, in New Jersey, for violating Title VII and other federal and state laws by a former African-American professor denied tenure. The Daily Business Review has a good story here detailing the case's awkward history -- including a dismissed federal case in Florida, a second dismissed case that was orginally filed in New Jersey and then transferred to Gainesville, and now this third federal lawsuit, filed in New Jersey but with different counsel.
