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New Laws Gives New Rights Delaware First Responders

Posted by Lauren Moak RussellOn September 19, 2013In: Delaware Specific, Discrimination, Discrimination & Harassment, Legislative Update

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Delaware extended employment rights to volunteer firefighters and other first responders who must miss work due to emergencies or injuries sustained while providing volunteer rescue services.

Volunteer Emergency Responders Job Protection Act

Governor Markell signed two new bills affecting the employment rights of Delaware's emergency responders. Under the Volunteer Emergency Responders Job Protection Act, employers with 10 or more employees are prohibited from terminating, demoting, or taking other disciplinary action against a volunteer emergency responder because of an absence related to a state of emergency or because of an injury sustained in the course of his or her duties as a volunteer emergency responder.

The Act defines a "volunteer emergency responder" as a volunteer firefighter, a member of the ladies auxiliary of a volunteer fire company, volunteer emergency medical technician, or a volunteer fire police officer.

Importantly, while an employer may not discipline or terminate an employee for being absent when performing emergency services, the employer is not required to compensate the employee for time away from work to perform such services. The employee also has an obligation to make "reasonable efforts" to notify the employer of a possible absence.

Under the Act, employers are also entitled to verify that an employee was absent due to emergency service or a related injury. Employers may request a written statement confirming relevant facts from either the volunteer department with which the employee serves or from a treating medical provider. The employer is entitled to the statement within 7 days of making such a request.

Amendment to the Delaware Discrimination in Employment Act

The second bill signed into effect amends the Delaware Discrimination in Employment Act, to provide protection to volunteer firefighters, ambulance personnel, and ladies auxiliary members. More specifically, the bill makes it unlawful for employers to refuse to hire, discharge, or otherwise discrimination as to the terms and conditions of employment based on an individual's service rendered to a volunteer fire or ambulance company or related ladies' auxiliary.

Bottom Line

The bottom line is that Delaware employers have one more protected classification to be aware of. Hopefully these new restrictions will not impose a significant burden upon employers--comments made in connection with the bill signing indicate that the bills are a reaction to a single incident affecting an injured firefighter working in Wilmington. However, as always, employers need to give careful consideration to the circumstances impacting hiring and disciplinary decisions.

Don't Be a Quitter: The Duty to Mitigate

Posted by Molly DiBiancaOn January 23, 2013In: Discrimination & Harassment, Purely Legal

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An employee who is unlawfully terminated may be entitled to recover damages in a variety of forms, including front pay. Front pay can be a frightening prospect for the employer-defendant--just imagine having to pay a former employee for time he doesn't work for you. Not pleasant.

But, as is the case in most employment laws, the rules tend to balance out in a fair way. An employee who claims she was unlawfully terminated because of her gender cannot merely sit at home indefinitely and wait to collect a big jury award. The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate her losses.

duty to mitigate damages.jpg

If an employee fails to look for work at all and, instead, elects early retirement, her damages are tolled. In other words, she will not be eligible for an award of front pay during any period in which she is not actively seeking work. The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment. If, instead, she elects to stay home and watch soaps all day, she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.

So, on one hand, if the employee makes constant and good-faith efforts to seek similar employment, she is eligible to receive front pay if victorious on her claims. On the other hand, she will receive no front pay if she voluntarily elects to remove herself from the job market. But, as with everything in the law, there are countless variations in between these two extremes.

For example, what if the employee decides not to look for work so she can stay home with her young children? But, once the kids are old enough, she elects to return to the workforce and begins again to actively seek employment? In the Third Circuit, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, she would not be able to collect front pay during the period when she stayed home but, once she started to look for work, she would be eligible for front-pay damages again.

And what if she elected to try a new career path and, in that effort, returned to college to complete her degree? In that case, the courts differ. Some say that she would still be eligible for front pay as long as she was ready, willing, and able to work. Others say that she could not be awarded front pay unless or until she returned to an active job search.
The cases are very fact specific and difficult to predict. However, at least in the Third Circuit, one thing is settled--an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.

Who Says I'm a Girly Man? Doth Sayeth the EEOC

Posted by Molly DiBiancaOn December 27, 2012In: Discrimination, Discrimination & Harassment, EEOC Suits & Settlements, Gender (Title VII), Harassment, Harassment, Other (Title VII), Harassment, Sexual

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The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven't been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of "ugly talk," the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and "ugly talk" were of a sexual nature or that they were made "because of" the employee's gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action--when a male employee is treated badly because he acts "too girly." But, here, despite the EEOC's argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC's retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was "hard to believe" that the EEOC "is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation."

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

Harassment Prevention: It's All Fun and Games . . . Until It's Not

Posted by Lauren Moak RussellOn November 4, 2012In: Discrimination & Harassment, EEOC Suits & Settlements, Harassment, Harassment, Other (Title VII), Race (Title VII)

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Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee's failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff's position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

Following the conclusion of discovery, the EEOC moved for summary judgment--and won! The Court granted partial summary judgment, concluding that the EEOC had proved elements one, two, and four of its claims. The Court's decision noted that the EEOC had brought the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct."

The Court rejected the employer's argument that the employees' participation in the misconduct indicated that it wasn't offensive. Instead, the Court left for the jury the question of whether the employees were willing participants in the harassment.
The employer now finds itself in the unenviable position of going to trial in a case with very bad facts.

The lesson to be learned may be easier said than done but absolutely essential in preventing litigation and limiting liability--inappropriate or off-color jokes do not belong in the workplace, regardless of who you seems to find them funny. Really, there's absolutely nothing funny about being suied for unlawful employment discrimination.

Employment Discrimination and Domestic Violence

Posted by Molly DiBiancaOn October 30, 2012In: Disabilities (ADA), Discrimination, Discrimination & Harassment, Gender (Title VII)

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Northern Delaware managed to escape Sandy largely unscathed, I feel very lucky to say. Our thoughts are with those who are still without power and, especially, with those whose homes were damaged by the storm. I am grateful to be able to return to work, though. In the spirit of maintaining normalcy, today's post is not going to focus on hurricanes, floods, or other natural disasters. Just employment law. Stay safe, everyone.

No federal employment law expressly prohibits discrimination against an employee because of the employee's involvement in domestic violence. For many employers, the idea of intentionally discriminating against a victim of domestic violence may be difficult to envision, even. I have seen this issue manifested in a few different contexts.

First, there's the employee who is chronically absent from work as a result of domestic violence at home. In that case, the employer wants to know whether it is lawful to discipline the employee for her absenteeism, or whether it must permit her some type of leeway because the absences are not merely a result of the employee playing "hooky." This question is particularly difficult when the employer's attendance policy distinguishes between "excused" and "unexcused" absences.

Second, there's the employer who wants to terminate an employee who is involved with a violent domestic partner for fear that the partner will carry out a violent act in the workplace. This usually arises when the employer learns that the partner has been stalking the employee, often on or just outside the employer's property. In that case, the employer is concerned about protecting its employees and wants to prevent a workplace shooting or similarly tragic event. This issue is as complicated as the first scenario, above, because it proposes that it is better to save the flock than a single sheep.

But where does Title VII and the ADA come into play in these and other situations involving domestic violence? The EEOC's most recent fact sheet addresses this question and offers some thought-provoking answers. The fact sheet offers some examples of how the federal anti-discrimination laws may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Many of the examples are not as much about domestic violence as they are about anti-retaliation and anti-harassment. For instance, the fact sheet explains that an employee who is given less favorable assignments after reporting that she was raped by a manager during a business trip. This example is, in my opinion, a bit obvious and not precisely within the framework of domestic-violence discrimination.

But a more provocative item on the fact sheet is the "Answer" that concludes that an employer who terminates an employee after learning she has been subjected to domestic violence, saying that he fears the potential 'drama battered women bring to the workplace.' On the whole, I would agree that this sort of gender-based stereotype likely violates Title VII. The trouble that I have with it, though, is that it's a bit conclusory on the question of intent.

I can easily imagine a scenario like the one I described above, when an employer decides to terminate a female employee whose husband has appeared at the workplace and threatened the employee or even her coworkers. Worried about the likelihood of future disruptions and potential violence, the employer considers whether it owes a duty to its other employees to prevent such incidents by terminating the victim. Although it would be easy to assume the worst by concluding that the employer just wanted to avoid the "drama" associated with battered women, it may be a more legitimate fear that drives the employer's decision.

Employment decisions are never easy. Employers often have to make tough calls and, rightfully so, worry that their choices will be later challenged as unlawful. The best starting point for these tough choices is to ask, "what's fair?" It's no coincidence that an honest answer to that question also is usually the most legally defensible position.

When Employers Talk Politics

Posted by Molly DiBiancaOn October 15, 2012In: Discrimination & Harassment

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Should an employer take a stance on political issues? This is a complicated question. On one hand, consider the negative publicity Chick-Fil-A received when the franchisor confirmed that it opposed same-sex marriage. The ripple effects were far reaching. Franchisees, who had not voice a position, faced protests and boycotts. One supporter of same-sex marriage took his opposition to YouTube and found himself out of a job as a result. Although there also those who lauded Chick-Fil-A for taking its position public, most of the publicity was not positive.

Chick-Fil-A's message was directed to the public, generally, but what about an employer who takes its position to another level? Take Nordstrom, for example. The Seattle-based company sent an email to its 56,000 employees, voicing support for same-sex marriage. The letter was signed by Nordstrom executives and brothers Blake, Pete, and Erik Nordstrom, making clear that the position was an official one.

The message stated, "it is our belief that our gay and lesbian employees are entitled to the same rights and protections marriage provides under the law as all other employees." The email comes in advance of Referendum 74, which will ask voters to either approve or reject a law passed earlier this year allowing gay marriage in Washington state.

And Nordstrom is not the only company in the Pacific Northwest to speak out in support of same-sex marriage. Amazon, Microsoft Corp., Starbucks Corp. and Nike, Inc., have also voiced support of similar laws.

So, is this type of top-down showing of support for a particular political position a good thing or a bad idea? On one hand, if the employer voluntarily prohibits sexual-orientation discrimination, supporting same-sex marriage certainly is not a far leap.

On the other hand, what about an employer who takes the opposing position and, like Chick-Fil-A, is a vocal opponent of same-sex marriage? If the company operates in jurisdictions (like Delaware) that prohibit employment discrimination based on sexual orientation, it would seem to be putting itself at legal risk. After all, wouldn't this be excellent evidence in support of a work environment hostile towards gay and lesbian employees? Maybe it would not be admissible. But, maybe it would be.

Delaware's EEOC Charges of Discrimination for FY 2011

Posted by Molly DiBiancaOn May 31, 2012In: Delaware Specific, Discrimination, Discrimination & Harassment

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The EEOC recently released new data, which identifies the number of charges filed by state. It's no surprise that the number of charges has increased steadily over the past three years, up from 163 charges filed in FY 2009, to 175 in FY 2010, to 228 last year.
But the percent of charges filed in Delaware as compared to the rest of the U.S. has remained consistent for the past 3 years--making 0.2% of the total charges filed in the U.S.

To put it in perspective, Delaware has one of the smallest populations in the country--we rank 45th out of 50. With less than 1 million residents, Delaware makes up less than 0.3% of the nation's population.

Although these numbers do sound positive, employers should remember that the EEOC isn't the only game in town. Because Delaware has a work-share agreement with the EEOC, the Delaware Department of Labor also receives charges of discrimination. In FY 2009, for example, the DDOL took 728 charges. The EEOC, on the other hand, received only 163 charges that year. In short, Delaware employers should look at these numbers with cautious optimism.

See also, What the Delaware Charge Statistics Mean for Employers
and DDOL Charge Statistics for FY 2009

Settling a Discrimination or Harassment Lawsuit

Posted by Molly DiBiancaOn November 14, 2011In: Discrimination & Harassment

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GOP presidential contender Herman Cain has been in the news for more than his political platform recently. Instead of addressing issues like job creation, Cain has been facing tough questions about on-the-job harassment. Specifically, Cain is having to deal with charges of unlawful harassment leveled against him when he was the head of the National Restaurant Association in the 1990s.

There likely are multiple lessons that can be learned from this story but I'll offer you just one. In short, employers should not dissuade this news story from settling a lawsuit or charge of discrimination brought by a current or former employee.

Contrary to what some of the pundits may claim, lots of people and businesses settle lawsuits even though they know they've done nothing wrong. This is the reality of today's litigious society. There are a multitude of factors that get weighed when deciding whether and when to settle a lawsuit. But the equation is always based on business factors and is, by no means, an indication of "guilt" or "innocence."

In fact, most settlement agreements include a confidentiality provision, whereby one or both sides agree not to disclose the terms of the settlement or to discuss the facts underlying the lawsuit. Sometimes, though, this is not the case, and, for a variety of reasons, the parties may agree in advance to what will be said, thereby ensuring that neither steps over the line and leaving no room for misunderstanding.

Which brings me back to Mr. Cain's story. The individual who is claiming that she was harassed by Mr. Cain apparently entered into a settlement agreement to resolve the matter. It seems that, pursuant to the agreement, she received a settlement payment in exchange for her dropping her claims. Presumably, the agreement also included a confidentiality provision. And, presumably, she violated the provision by releasing information about her claim or the settlement. If that is the case, and she did renege on her promise, those who are following the story should consider how reliable the source really is.

But employers should, in my opinion, disregard the story altogether for the purposes of deciding whether or not to settle a lawsuit or potential lawsuit. Stick to the facts as applied to your particular business at this particular time. Settling a lawsuit is not, contrary to what some of the pundits might have us believe, an indicator of wrongdoing.

3d Cir: Employees' Failure to Plead State-Law Discrimination Claim Will Cost $9m

Posted by Molly DiBiancaOn August 22, 2011In: Discrimination & Harassment

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The cat’s-paw theory of liability in the context of an employment-discrimination claim was upheld by the Third Circuit last week in McKenna v. City of Philadelphia last week. The case has far-reaching consequences, though—about $9.1 million farther.

At trial, the jury awarded the three plaintiffs a total of $10 million dollars. The trial-court judge reduced the verdict to $300,000 each, for a total of $900,000, in accordance with the compensatory-damage cap prescribed by Title VII. The plaintiffs argued that the damages should not have been reduced because the applicable state law, the Pennsylvania Human Rights Act, does not provide for caps on damage awards. The judge disagreed and found that the time to amend the complaint was before the jury returned the damages award. The Third Circuit affirmed the decision and the plaintiffs’ significantly reduced damages remain in place.

Many employee-plaintiffs allege a claim under federal law, as well as under the applicable state law, when filing a complaint of discrimination against their current or former employer. But, if they don’t, there can be significant consequences—more than $9 million worth in this case.

3d Cir. Issues Decision on Cat's-Paw Theory

Posted by Sheldon N. SandlerOn August 19, 2011In: Discrimination & Harassment

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In McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug.17, 2011), the Third Circuit affirmed a jury award in favor of a fired Caucasian Philadelphia police officer, who claimed he had been retaliated against for complaining to his supervisor about racially discriminatory treatment of minority officers. The City claimed that even if the supervisor’s conduct was retaliatory, the City was insulated from liability because the termination decision was made by an independent Police Board of Inquiry (“PBI”) after a hearing.

In affirming the verdict, the court cited the recent “cat’s-paw” decision, Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), in which the U.S. Supreme Court held that, if an action by a biased supervisor is the proximate cause of a worker's termination, an employer can be held liable even if the supervisor did not make the ultimate decision. Since the supervisor in McKenna had testified at the PBI hearing, the Third Circuit concluded that the jury could reasonably have decided that the supervisor’s retaliatory animus bore a direct and substantial relation to the termination, and the PBI’s decision was not independent and was foreseeable.

The case has special significance for Delaware employers. Delaware recognizes the implied covenant of good faith and fair dealing, including a subcategory that is markedly similar to the cat’s paw theory. In Delaware, if an employee’s employment record is falsified or manipulated by a supervisor in order to bring about the employee’s termination, the employer can be held liable even if the employer is unaware of the supervisor’s animus.

Under the cat’s-paw theory, the supervisor’s animus is actionable only if related to one of the discrimination laws, as in McKenna, where the supervisor retaliated against complaints of race discrimination, in violation of Title VII. In Delaware, the basis of the supervisor’s animus is not so circumscribed. The action of the Delaware supervisor could arise from personal animosity unrelated to discrimination, but if the result is to create a false record in order to procure a termination, and the employer relies on the supervisor’s statements, the employer may be held liable under the implied covenant.

As more cases are decided under the cat’s paw theory, it seems likely that terminated Delaware employees will draw an analogy to the cat’s paw theory and it will become more difficult for employers to avoid liability under the implied covenant theory.

Third Circuit Keeps the Peace but Dismisses Her Lawsuit

Posted by Adria B. MartinelliOn January 20, 2011In: Delaware Specific, Discrimination & Harassment

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The Third Circuit Court of Appeals (which covers Delaware) recently issued a reassuring decision for employers. In the case, the Court affirmed dismissal of racial discrimination and retaliation claims where there were no overt racial statements made by supervisors and the employer addressed all allegations promptly and in a manner reasonably calculated to prevent further harassment.

Facts of the Casegavel

Janeka Peace-Wickham, who was African-American, was hired as a manager in the Café at the Delaware Memorial Bridge facility of the Delaware River and Bay Authority (DRBA). Her position was that of a "working supervisor" and she was expected to fill in as needed with cooking, cashiering, and serving. Shortly after she began employment, she got into a heated argument with a Caucasian co-worker, which resulted in both of them filing claims of racial harassment against the other. Peace alleged that some of the Café customers (primarily DRBA employees) made racially inappropriate remarks. She claimed to overhear one customer remark to another when she was not happy the way her meal was prepared, "back in the day, down South, blacks would have been hung for things like this."

Another customer remarked to Peace that the Café had "changed" since Peace's arrival, and Peace took this to be motivated by racial animus because the previous supervisor was caucasian. Peace also alleged that a customer had balled up receipts and thrown them at her. Following the departure of the Café Supervisor, who was also African-American, someone posted a sign at the Café which said "Free At Last , Free At Last, Thank God Almighty, Free at Last," which Peace took to be directed at her because she was the only African-American employed at the Café at that time.

Served up with a healthy dose of complaints

A mere three months into her employment, Peace complained of harassment from the Caucasian co-worker, and things only got worse from there. She routinely complained of understaffing in the Café and about how she was treated by customers as well as fellow employees in the Café. By the time she was done she'd filed numerous internal complaints, two charges of discrimination with the Delaware Department of Labor, and claimed that her rejection for a promotion was the result of her race and the fact she'd filed charges.

The Proof is In the Pudding, or Remedial Measures

The Court ruled that the DRBA was not liable for discrimination or retaliation. It noted that the record was devoid of any overtly discriminatory statements or conduct by her supervisors. While such conduct was not required to show intentional discrimination, the presence or absence of such conduct proves helpful in determining the motives of the decisionmakers. Here, the Court said the fact that Peace could not point to any overtly discriminatory conduct on the part of her supervisors lent further support to the conclusion that supervisors could not be held directly responsible for any hostile environment that may have existed.

Most importantly, however, the Court found that the DRBA took appropriate remedial steps in response to allegations of discrimination once it became aware of them. In response to Peace's complaints that it took to long to investigate and conclude her initial harassment claim, the DRBA revised its investigation procedures. It also posted anti-harassment signs and instituted diversity and harassment training for all employees. While the DRBA did take longer to investigate Peace's complaint than her co-worker's, it addressed the issue immediately by separating the two employees. The Court held that these measures fell "comfortably within the realm of legally adequate legal measures."

The Court further stated that it was "unwilling to step into the shoes of DRBA management, as suggested by Peace-Wickham, and make highly particularized judgments as to whether the DRBA should have docked pay, demoted, or withdrawn certain fringe benefits instead of following the course of action chosen here."

Bottom Line

Employers can take comfort that as long as it takes steps "reasonably calculated to end the harassment" once it becomes aware of allegations, it will not be liable for a hostile work environment. Diversity and harassment training, in particular, were compelling to the Court in this case.

Albertsons Pays $8.9 Million to Settle EEOC Harassment and Retaliation Lawsuits

Posted by Teresa A. CheekOn December 21, 2009In: Discrimination & Harassment, Harassment, Harassment, Other (Title VII)

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The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado. eeoc logo

According to the EEOC lawsuits and a news report, 168 minority employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. Allegedly, supervisors were aware of and even participated in the harassing conduct. One African-American employee whose leg was broken by a piece of equipment at work was allegedly left lying on the warehouse floor for thirty minutes by a white supervisor who told him that was what he got for being black. Albertsons denied that it had engaged in discrimination or harassment.

The $8.9 million settlement will be divided among the 168 employees who complained about harassment between 1995 and 2008 (an average of about $53,000 per person).

The lesson for employers is clear, according to the EEOC’s press release. “EEOC Acting Chairman Stuart J. Ishimaru said, ‘Employers simply cannot overlook or tolerate this kind of outrageous discrimination and retaliation. The EEOC certainly won’t. We will aggressively pursue employers who violate the laws we enforce. And we’ll insist on substantial and meaningful relief for the victims before settling these cases.’” Albertsons also agreed to four years of court-supervised monitoring and a training program for its managers.

Employers who suspect or know about harassing behaviors in the workplace must act promptly to stop them to avoid liability, and should train all employees regarding compliance with equal employment opportunity laws.

Delaware Department of Labor Issues Final Regulations

Posted by Teresa A. CheekOn November 10, 2008In: Delaware Specific, Discrimination & Harassment, EEOC Suits & Settlements

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The Delaware Department of Labor (DDOL), is the agency responsible for processing charges of discrimination filed under Delaware’s various discrimination statutes. Because the DDOL has a work-sharing agreement with the U.S. Equal Employment Opportunity Commission (EEOC), the Department has authority to process charges filed under state and federal discrimination laws.image

Until now, the charge process, including applicable deadlines and controlling procedures, has not been regulated by state law. How a charge is handled by the DDOL, and the rules governing charging parties and responding employers have been available only in the form of proposed regulations for the past several years. But, last month, the DDOL published its first set of final regulations applicable to the charge process.

In this post, the new regulations are summarized and explained. A second, follow-up post will offer some commentary about these important changes.

The Charge of Discrimination

The regulations set forth what must be included in a charge of discrimination. A charge must identify:

  • the basis for the DDOL to assert jurisdiction over the charge;
  • the type(s) of discrimination alleged;
  • the type(s) of adverse action alleged;
  • the facts that support the claim;
  • the laws that have allegedly been violated; and
  • the reasons that the charging party believes support a finding of discrimination.

For the charge to be valid, the charging party must swear under oath that the allegations are true and correct and must sign the charge before a notary public.

Initial Processing of a Charge

Once a verified charge is filed, the DDOL must send a copy to the employer, by certified mail, within 14 days. The DDOL may also include a request for information with the charge, and, in its discretion, may invite the employer to participate in mediation. Even if the DDOL has not invited the employer to participate in mediation, the regulations permit the employer to request mediation in lieu of filing an answer.

The employer has 20 days to submit an answer, though the Administrator has the discretion to grant an extension of time to respond. The answer must respond “fully and completely” to the allegations asserted in the charge.

Preliminary Findings

The next step is the issuance of a preliminary finding. The Administrator must issue her preliminary finding within 60 days from the date the charge was served to the employer. The DDOL Administrator has three options. She can refer the case to mediation, refer the case for investigation, or recommend dismissal of the case.

The Administrator may dismiss a case in the following circumstances:

  • the DDOL does not have jurisdiction over the case (because, for example, the employer has too few employees to be covered by the law or the employment was not located in Delaware);
  • the charging party is not cooperating;
  • the employer has filed for bankruptcy or relief is otherwise precluded;
  • the charge was filed after the statutory deadline, or
  • the charge does not allege facts that would, even if true, constitute a violation of the law.

Administrative dismissal is rare. And, even if dismissal is recommended, the charging party will be given the opportunity to provide additional evidence demonstrating that an investigation is warranted.

Mediation

The regulations also address the DDOL mediation process. The Administrator is authorized to refer a case to mediation at any time, after 20 days from service of the charge. The regulations make clear that mediation communications and records are confidential and may not be used against either party. The regulations preclude the mediation director and staff from participating in the investigation of any case that is unsuccessfully mediated. And, if the case is settled, the settlement agreement will be kept confidential unless there is an allegation that one of the parties has breached the agreement.

Investigation

If the parties do not mediate the charge or if the mediation fails, the charge will be referred for investigation. The employer has 20 days from the date it receives notice that the case has been referred for investigation to file its answer, if it has not done so already. If the employer did file an answer, the employer will have 20 days from the date of notice of investigative referral provide a supplemental response or to respond to any pending request for information.

The regulations include a lengthy description of the DDOL’s tools for investigating claims. The DDOL’s powers include obtaining information from the employer through written requests for information and documents, on-site visits and interviews. The DDOL can obtain information from third parties with subpoenas and depositions. The DDOL also has the authority to obtain information at a fact-finding conference.

A DDOL representative advises the parties in advance of the conference to bring specified witnesses and documents. During the fact-finding conference, the DDOL representative will question the witnesses and parties. The regulations state that “the parties shall not be entitled to cross-examine witnesses,” but the representative has the discretion to allow attendees to question the witnesses.

Determination and Findings

When the DDOL concludes its investigation, the Administrator will issue a determination. The determination can state that the Administrator either did or did not find reasonable cause to believe that the employer violated the law by discriminating against the charging party. A “no-cause” finding results in a dismissal of the charge. A finding of “cause,” on the other hand, means that the Administrator has determined that there is reasonable cause to believe that the employer unlawfully discriminated against the charging party.

In the event of a “cause finding,” the employer has 10 days to file a written request for reconsideration of the finding. The Administrator will determine whether the employer will be granted permission to submit additional information in support of its request. The Administrator’s decision will be issued within 10 days of the date the request for reconsideration is made.

Conciliation

If the reasonable-cause finding is not reversed by the Administrator, it is considered final. A final cause finding triggers the conciliation process. Similar to the mediation process, conciliation provides an additional pre-litigation opportunity for the parties to resolve the dispute.

If conciliation fails and the parties do not reach agreement, the DDOL will issue a Right-to-Sue Notice to the employee, which authorizes the employee to file a complaint in state court. At that point, the DDOL’s involvement in the case concludes. The DDOL will retain its file for two years. If litigation ensues, the parties will have the right to obtain copies of the witness statements and factual written data, reports and documents in the DDOL’s file by making a written request and serving a copy of the request on the other party or the other party’s attorney.

DOJ: How to Prevent Discrimination Arising from the Use of E-Verify

Posted by Molly DiBiancaOn August 22, 2008In: Discrimination & Harassment, E-Verify, Hiring, National Origin (Title VII)

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From the U.S. Department of Justice (DOJ), comes a new published Guidance relating to the use of E-Verify.  The recent, though short-lived excitement over the use of E-Verify for employment verification has now quieted down. Private-sector employees are back to the voluntary use of the system as a method for confirming that newly hired employees are authorized to work in the country.   DOJ


One of the concerns that was raised with the E-Verify program was its potential effect on discrimination in the workplace.  If, as a result of using E-Verify, an employer receives a no-match letter or a “tentative” no-match letter, he cannot terminate the employee without first trying to resolve the mismatch.  Failure to work with the employee to determine the cause of the mismatch could result in a claim for national-origin discrimination.


Anticipating the likelihood that employers would not want to engage in the additional steps of “working with the employee,” the DOJ issued guidelines outlining the step that an employer must take upon receiving information about a potential mismatch.  (See Antidiscrimination Guidance Concerning the DHS No-Match Rule).

See alsoE-Verify Employer Dos & Don'ts

Supreme Court Grants Cert in Pregnancy Discrimination Case

Posted by Adria B. MartinelliOn June 24, 2008In: Cases of Note, Discrimination & Harassment, Pregnancy (Title VII), U.S. Supreme Court Decisions

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Pregnancy Discrimination is back in the news, courtesy of the U.S. Supreme Court's grant of certiorari in the case of AT&T v. Hulteen, No. 07-543.  Employees who took maternity leave, pursuant to the company's decades-old policy, were not given the same credit towards their pension as employees who took other kinds of disability leave.

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The Pregnancy Discrimination Act (PDA) was not enacted until 1979 and, since then, AT&T’s maternity leave has been credited toward retirement, in compliance with the law. At issue is whether AT&T must now give female retirees credit for maternity leave taken from 1968-1976, preceding enactment of the PDA.

The Ninth Circuit held that the benefits system violated the PDA.  AT&T appealed and the Solicitor General recommended that cert be granted.  The SCOTUS Blog covers AT&T v. Hulteen and provides more details as well as links to the previous filings.

A ruling against AT&T would seem to be contrary to the Court’s recent ruling in Ledbetter v. Goodyear, related to the timeliness of discrimination claims whose effects may not be apparent for many years later. Further, it is generally held that statutes are not retroactive absent statutory language otherwise. In light of these precedents, a ruling in favor of the employees in this case may signal a real interest in this type of discrimination. Stay tuned!