Archive for January, 2012

Private Sector Workplace Bias Charges Break Record Again

Thursday, January 26th, 2012

For the second year in a row, there were a record number of private sector discrimination claims lodged in the EEOC in 2011, breaking the record set in 2010 by a small margin. The EEOC also announced that relief to workers in the form of settlements and as a result of litigation exceeded $455 million. This number exceeds the relief from 2010 by over $50 million and continues an upward trend in settlement and litigation awards to workers alleging discrimination. The EEOC itself filed 300 lawsuits and obtained over $90 million in awards to workers, reflecting another increase in the money recovered by the EEOC’s own litigation efforts.

For the second straight year, retaliation claims represented the largest single category of allegations of discrimination. This represents only the second time, along with 2010, that retaliation claims have constituted the largest category. Allegations of race and sex discrimination decreased, while allegations of disability and age discrimination increased. Age discrimination claims also represented the category of allegations resulting in the largest amount of money awarded, increasing my almost $30 million dollars. The largest subset of disability claims were made up of back impairments.

This was also the first full year that the EEOC has enforced the Genetic Information Nondiscrimination Act. This Act seeks to prevent discrimination based upon the genetic information of employees, which includes genetic diseases in their family histories. The EEOC received 245 charges under this Act, but none have yet proceeded to litigation.

The clear trend over the past few years reflects an increase in allegations of workplace bias and discrimination to record levels. These increases provide new challenges for employers as they attempt to navigate through this difficult economy. In any event, it provides a very real warning that employers must take workplace discrimination laws seriously, and enact workplace policies to prevent such conduct.

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Massachusetts Announces Pilot Program to Prevent Seafood Mislabeling

Friday, January 20th, 2012

The Massachusetts Department of Public Health and the Department of Fish and Games Division of Marine Fisheries recently announced that they are considering using DNA testing to prevent fish mislabeling and are launching a pilot program in partnership with Legal Sea Foods that would trace seafood using barcodes.  The announcement follows the results of the Boston Globe’s five month investigation revealing extensive seafood misrepresentation at Boston area restaurants.  Seafood mislabeling puts consumers at risk by violating dietary restrictions, permitting customers to ingest chemicals banned in the United States, and increasing the potential for customers to suffer allergic reactions.  The pilot programs will enhance trace-back procedures by using barcoding to follow fish products through the production system.  The pilot programs will be accompanied by a statewide education and outreach effort by the Department of Public Health that will be aimed at alerting local officials and industry partners about the laws related to the sale of fish and fish products.

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Supreme Court Holds ADA Does Not Apply to Teacher at a Religious School

Thursday, January 12th, 2012

On Wednesday, the Supreme Court unanimously held that the First Amendment precludes the application of the federal employment discrimination laws to religious institutions.  In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Cheryl Perich, a teacher at a Lutheran Church and School developed narcolepsy and began the first semester of the 2004-2005 school year on disability leave.  When Perich attempted to return to work in January 2005, the principal told her that the school had already contracted with another teacher to fill her position for the remainder of the school year.  The school subsequently terminated Perich.

Perich filed a charge with the Equal Employment Opportunity Commission claiming that her employment had been terminated in violation of the Americans with Disabilities Act.  The District Court granted the school’s motion for summary judgment on the grounds that the ADA claim was barred by the First Amendment.  The Sixth Circuit vacated and remanded on the grounds that Perich did not qualify as a minister under the exception.  The Supreme Court reversed.

In a majority opinion written by Chief Justice Roberts, the Court acknowledged the existence of a ministerial exception grounded in the First Amendment that precludes the application of federal law to claims concerning the employment relationship between a religious institution and its ministers.  The Court reasoned that requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, interferes with the internal governance of the church and therefore the right of the religious group to shape its own faith and mission.

The Hosanna-Tabor Court further determined that the application of the ministerial exception was not limited to the head of a religious congregation.  It refused however, to adopt a rigid formula for deciding when an employee qualifies as a minister within the scope of the exception.  Instead, the Court examined the circumstances of Perich’s employment in reaching its determination that she qualified as a minister.  In particular, the Court considered the formal title of “Minister of Religion” given Perich by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church.  Accordingly, the Court concluded that Perich’s ADA claim was barred under the ministerial exception of the First Amendment.

The Hosanna-Tabor decision only applies to employment discrimination suits brought on behalf of a minister challenging their termination.  The Court refused to state a view on whether the ministerial exception bars other types of suits such as actions by employees alleging breach of contract or tortious conduct by their religious employers claiming that “there will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

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Former Partner of a Law Firm Found Not Protected By Federal and State Discrimination Laws

Monday, January 9th, 2012

A New York Supreme Court Justice recently determined that a former partner of Holland and Knight, LLP was not protected by State and federal discrimination laws because he did not qualify as an “employee.”  In Weir v. Holland & Knight, LLP, the former partner claimed that his expulsion from the firm at age 55 constituted age discrimination in violation of the Age Discrimination Act (ADA) and New York state law.  In rendering its decision, the Court relied on a six part test that was originally created by the Supreme Court in Clackmas Gastroentorology Assoc., P.C. v. Wells, to determine whether a shareholder of a professional corporation was an employee for the purposes of the ADA.  The six factors include: examination of whether the individual can be fired, if they report to someone higher within the organization, if and to what extent the individual’s work is supervised, if the individual shares in the profits and losses of the organization, the individual’s ability to influence the organization and whether the parties intended that the individual be an employee.   The Clackmas factors have since been applied by courts to determine whether a partner is an employee under Title VII of the 1964 Civil Rights Act.

The Weir Court found that the former partner could not be considered an employee because he could only be expelled from the firm by a vote of at least 70% of the firm’s Directors committee, he had no specifically defined reporting responsibilities and his work was not supervised.  Additionally, the plaintiff’s status as a partner was memorialized in a Partnership agreement and under that agreement he shared in the profits and liabilities of the firm.  Due to these findings, the Court did not reach the merits of the plaintiff’s discrimination claims because they were unsupported by any evidence.

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