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Archives for June 2013

United States Senator Explains “The Dwindling Jury”

Randy Freking

On June 10, United States Senator Sheldon Whitehouse of Rhode Island, a member of the United States Senate Judiciary Committee and a former U.S. Attorney, wrote an article that explains how the Supreme Court and Congress have watered down the Constitution’s guarantee of a right to a civil jury trial.

Many of our clients are surprised to learn that judges have the discretion to dismiss cases prior to trial, despite the Constitutional guarantee, and that many cases are forced into mandatory arbitration to be decided by one or more arbitrators rather than juries.

Unfortunately, many politicians who claim to be “strict constructionists” of the United States Constitution have failed to take any action to prevent the erosion of your constitutional right to a jury trial.

For a more complete analysis, see this link.


Supreme Court Deals a Major Blow to Workers’ Rights

Elizabeth "Booka" Smith

On June 20, 2013, the United States Supreme Court issued its 5-3 decision in the case of American Express Co. v. Italian Colors Restaurant (Case No. 12-133).  The Court decided that corporations can force small businesses and individuals into arbitration even when it can be proven that they will not be able to vindicate their rights through arbitration.  The Court’s decision is a major blow to employees – from minimum wage workers to high level executives.  The American Association for Justice characterized the decision as giving corporations a “license” to “use the fine print in contracts” to “steal and violate the law” (see AAJ press release).

Justice Kagan, who dissented in the decision, blasted the majority’s interpretation of the Federal Arbitration Act (FAA), noting that “Congress never intended the FAA to be used against America’s workers or to invalidate their substantive legal rights.”  Worker advocate groups including the National Employment Lawyers Association (NELA) are calling upon Congress to enact the Arbitration Fairness Act (AFA) of 2013 (S. 878/H.R. 1844), which would curtail employers’ ability to force workers into arbitration. (Read NELA’s response to the Opinion.)



Colorado Legislature Enhances Remedies for Violations of Colorado’s Anti-Discrimination Act

Elizabeth "Booka" Smith

Despite considerable opposition from business groups, on May 6, 2013, Colorado Governor John Hickenlooper signed into law the Job Protection and Civil Rights Enforcement Act of 2013 (HB 13-1136)(“JPCREA”).  The JPCREA, which has been five years in the making, amends Colorado’s Anti-Discrimination Act (the “CADA”) to enhance remedies for employees of businesses who are subjected to illegal discrimination based on race, color, disability, gender, sexual orientation (excluding transgender status), national origin, ancestry, religion, creed, and age.  Before the JPCREA, Colorado was one of only eight states that did not enable employees of small businesses to recover attorney fees, or compensatory or punitive damages in discrimination or retaliation cases.

Prior to the JPCREA, a successful CADA plaintiff could only be awarded reinstatement, back pay, front pay and interest on back pay.  The JPCREA enhances remedies for CADA plaintiffs in several ways.  First, it allows the court discretion to award a prevailing CADA plaintiff recovery of his or her attorney’s fees (and only allows an employer to recover fees if the plaintiff’s claims were frivolous, groundless, or vexatious).  Second, the JPCREA allows awards of compensatory and punitive damages, subject to caps of $10,000 for employers with fewer than five employees, and $25,000 for employers with between 5 and 14 employees, and for employers with 15 or more employees, the sliding scale of damages caps under federal law will apply.  Third, the JPCREA allows a CADA plaintiff or defendant employer to demand a trial by jury.  Fourth, the JPCREA makes clear that CADA plaintiffs with age discrimination claims are entitled to the same remedies provided by the federal Age Discrimination in Employment Act.

Some of these changes, including the allowance for recovery of reasonable attorney’s fees, go into effect on August 7, 2013, whereas others, including the allowance for recovery of compensatory and punitive damages and the right to trial by jury, do not become effective until January 1, 2015.

Employees who work for smaller employers with fewer than 15 employees not covered by federal civil rights statutes will benefit most from the JPCREA.  With the enactment of the JPCREA, the number of CADA claims in Colorado is expected to increase dramatically.  Moreover, there is expected to be a rise in state court employment litigation, which historically has proved more dangerous for employers than litigation in federal court.


Exxon Mobil Resists Protections for Employees Based on Sexual Orientation

Carrie Barron

In May, Freedom to Work filed a complaint with the Illinois Human Rights Commission alleging that Exxon Mobil violated the state’s law prohibiting discrimination against employees based upon their sexual orientation.  According to the complaint, Exxon Mobil was sent two resumes in response to a job posting in Illinois. One fictional applicant identified herself as gay, but had higher high school and college grades than the other. Exxon Mobil attempted to contact the less qualified job applicant several times,  but never contacted the gay candidate.  Freedom to Work, an organization committed to rights of gay, lesbian, bi-sexual, and trans-gendered people, teamed with a Washington, DC based law firm that works with many advocacy groups.

The filing of this complaint, perhaps not coincidentally, was two weeks prior to Exxon Mobil’s annual shareholder meeting where the issue of adding sexual orientation to the company’s official equal employment opportunity statement is on the agenda for the 14th consecutive year. The first time Exxon shareholders were asked to vote on this issue was in 1999 when the military instituted “Don’t Ask-Don’t Tell” policy and Matthew Shepard’s murderer was convicted.

Exxon Mobil takes a minority position amongst other Fortune 500 companies on the issue of protecting employees from discrimination on the basis of sexual orientation.  According to the Human Rights Campaign, 88% of Fortune 500 companies have adopted such policies.

Only 21 states, the District of Columbia, and 160 cities have laws prohibiting employment discrimination based on sexual orientation.  Neither Cincinnati nor Ohio has such laws.  No federal law offers that type of protection.

Trillium Asset Management, a company devoted to sustainable responsible investments, has submitted shareholder resolutions requesting that Exxon Mobil broaden its anti-discrimination policies to include sexual orientation and gender identity.

Prior to its acquisition by Exxon, Mobil Oil had policies protecting gay and lesbian employees from discrimination and extended benefits to same-sex couples.  Exxon rescinded those protections when it acquired Mobil in 1999.


GINA Enforcement

Carrie Barron

The Equal Employment Opportunity Commission recently announced the filing of a class action lawsuit against The Founders Pavilion, Inc., a Corning, NY, nursing and rehabilitation center, for, violations of the Genetic Information Nondiscrimination Act (GINA), by asking for genetic information during the hiring process. This is the EEOC’s second such lawsuit ever.  The first, against Fabricut, Inc., in Tulsa, OK, was settled via consent decree earlier this month.

Title II of GINA, which is enforced by the EEOC, prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.  (Title I, which addresses the use of genetic information in health insurance, is regulated by the Departments of Labor and Health and Human Services, and the Treasury.) Genetic information includes information about an individual’s genetic tests and family medical history.  An employer may not use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work. It is also illegal to harass a person because of his or her genetic information or retaliate against a person for opposing discriminatory conduct.

In Founders Pavilion, the nursing home conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired.  As part of this exam, Founders requested family medical history. The EEOC also charged the nursing home with discriminating against women because they were pregnant or had perceived disabilities.

In Fabricut, the EEOC accused the company of using genetic information gathered post-offer, pre-employment in the hiring process.  The parties reached a consent decree soon after the suit was filed.  In a statement issued by Fabricut, the human resources denied that it engaged in any discriminatory conduct and asserted that the genetic information in question had been obtained by a third party. However, employers are prohibited from using genetic information in the employment process even it is gathered by a third party, even if the employer is not aware that information is being gathered since employers are responsible for hiring third parties who abide by the law.

Although GINA was signed into law by President George W. Bush in 2008, the EEOC’s Strategic Enforcement Plan for 2013-2016 recently identified six national priorities, which includes genetic discrimination.