The Laconic Law Blog

Three recent decisions by the Courts of Appeals offer the opportunity to discuss discrimination or retaliation based on a person’s association with another person.  The first is Holcomb v. Iona College, No. 06-3815 (2d Cir. 2008).  The opinion can be found here.  The second is Thompson v. North American Stainless, LP, No. 07-5040 (6th Cir. 2008).  The opinion can be found here.  The third is Trujillo v. Pacificorp, No. 06-8074 (10th Cir. 2008).  The opinion can be found here.  While the Trujillo decision applies the express associational discrimination provision of the Americans with Disabilities Act, the other two decisions interpret Title VII to include such protection in the absence of an express provision.

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IL — Chicago woman awarded $1.7 by U.S. Magistrate Judge in age and sex discrimination suit.  Her employer allegedly pulled her hair back and asked the 72-year old woman if she had had a face lift before terminating her employment.  The district court had previously denied the employer’s motion for summary judgment.  A copy of the opinion is here.

A review of the court’s docket shows that the judgment is actually a default judgment entered by the court.  Apparently the employer had trouble maintaining legal counsel.

The U.S. House approved the Senate version of the Genetic Information Nondiscrimination Act of 2008 today in a 414-1 vote.  According to PointofLaw.com, the bill is expected to be signed by the President.

UPDATE:  President Bush signed the GINA on May 21, 2008.

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According to statistics released today, employment discrimination charge filings with the U.S. Equal Employment Opportunity Commission rose 7% overall in 2007.  All categories showed double-digit percentage increases in the number of filings except for sex/gender claims, which only increased 7%.  The EEOC also recovered $345 million for charging parties in 2007, up from $274 million in 2006.

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Two young women are claiming that Southwest Airlines discriminated against them because they are too attractive.  Wiz Bang Blog has the story, along with video here.  Hat tip to Overlawyered.

You can’t make this stuff up.  Does anyone think that these kind of allegations cheapen real allegations of discrimination?

The Washington Post reports today that “a Republican state senator from Fairfax County [Virginia] has introduced a proposal that would allow a boss to fire employees who don’t speak English in the workplace, which would make them ineligible for unemployment benefits.”  The bill was introduced ostensibly to protect employers from increased unemployment tax assessments in such cases.  Even if the measure passes, the decision to terminate the employee would still have to pass muster with the EEOC (if challenged).   The EEOC takes the position that a blanket English-only rule is discriminatory.

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On January 2, 2008, the U.S. Court of Appeals for the Fifth Circuit affirmed an award of $125,000 in punitive damages against an employer to each of eight plaintiffs for racial discrimination despite the plaintiffs being awarded $0 in compensatory damages.  The district judge added a $1 nominal damage award to the judgment.  Here is a copy of the opinion.

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The EEOC released a fact sheet today on employment tests and selection procedures.  It “provides technical assistance on some common issues relating to the federal anti-discrimination laws and the use of tests and other selection procedures in the employment process” and lists a number of “employer best practices” recommended by the EEOC.  The fact sheet also sets out several cases filed by the EEOC as illustrative of their position on screening practices.

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(h/t Workplace Prof Blog)

An initial report by the Federal Judicial Center on summary judgment practice across the federal district courts suggests that between 9% - 14% of all employment discrimination cases are actually terminated on summary judgment (Table 12).  The report shows that between 34% and 38% of all defendants file a motion for summary judgment in employment discrimination cases.  (Table 7).  In employment discrimination cases, the defendant was the moving party on summary judgment 90% of the time.  (Table 1).

The statistics show, however, that defendants in employment discrimination cases are more successful than the general population when it comes to summary judgment motions.  Only 3% - 4% of all cases are terminated on summary judgment.  (Table 12).  As noted above, 9% - 14% of all employment discrimination cases are terminated on summary judgment.

The report took the 276,120 civil cases filed in 2006 (and the 60,013 summary judgment motions) and narrowed them to 118,796 cases (and 20,697 motions) due to various reporting issues.  In all, they looked at 39,120 motions for summary judgment.

Continuing a thread of comments today and yesterday, we note the passing of legislation in Montgomery County, Maryland, extending protection from discrimination in housing, employment, public accommodations, cable television service and taxicab service to transgender people.  In a press release dated November 13, 2007, the Montgomery County Council announced the unanimous approval of a bill that will prohibit discrimination against transgender people in housing, employment, public accommodations, cable television service and taxicab service.  If approved by the County Executive, the county will join “13 states, the District of Columbia and 91 other local jurisdictions [that] have enacted similar legislation that prohibits discrimination against transgender individuals.”  The Washington Post noted that there was significant opposition to the bill, but that their efforts were directed at the public accommodations portion.

The controversy over the Montgomery County ordinance highlights another side to the evolving definition of “protected classes.”  That is the question of how far we go in defining those who are legally protected from employment discrimination (and those who are not).  If everyone falls within a protected class, then is there simply a universal wrongful discharge claim?  If we go beyond immutable characteristics (such as gender or race) in defining “protected classes” — for example, the District of Columbia Human Rights Act prohibits discrimination in employment based on “personal appearance” (including manner and style of dress) – then what is the basis for choosing those who fall with a “protected class”? 

Difficult questions, but ones that may be debated in the U.S. Senate when the Employment Non-Discrimination Act is considered.

In perhaps a strange coincidence of timing, a King County, Washington, jury awarded a lesbian $4.4 million in her lawsuit against Goodyear Tire & Rubber Co. for demoting her after she complained of discrimination because of her sexual orientation the same week that the House of Representatives passed the Employment Non-Discrimination Act, which would prohibit discrimination based on sexual orientation across the nation.

The U.S. District Court for the District of Columbia recently held in American Ctr. for Int’l Labor Solidarity v. Federal Ins. Co. (D.D.C., Oct. 15, 2007), that an employer that failed to notify its insurance company of an employment discrimination claim filed at the EEOC cannot recover the costs of settlement and defense from the insurer.

Credit to Daniel Schwartz at the Connecticut Employment Law Blog for his commentary on this case on November 1, 2007.

On November 7, 2007, the U.S. House of Representatives passed the Employment Non-Discrimination Act of 2007.  The Act, if enacted into law, would extend the protections of the Civil Rights Act of 1964 to bar discrimination against an individual based on his/her actual or perceived sexual orientation.  The bill defines “sexual orientation” to include homosexuality, heterosexuality, or bisexuality.  The bill passed 234 to 184 with 14 not voting.  Senator Ted Kennedy (D.-Mass.) has stated that he will introduce a verison of the bill in the Senate during this session.  The White House has indicated that it will veto ENDA if it passes.

 Various states and local jurisdictions already prohibit discrimination in employment on the basis of sexual orientation.  A change in the White House in 2008 may be the final piece in the puzzle for those who have advocated such protection on the federal level.