Employer Settles Race Discrimination Lawsuit for $600,000

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Published on Monday, 07 May 2012 18:20

Race discrimination and retaliation violate Title VII of the Civil Rights Act of 1964. And, as a recent case demonstrates, race discrimination claims can be costly for employers. The case involves Bankers Asset Management, Inc., a real estate company in Little Rock, that has agreed to $600,000 to former employees and a class of applicants to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity (EEOC). According to the EEOC, the company allegedly excluded black applicants for jobs based upon their race.

The EEOC also alleged that the company then retaliated against other employees and former employees for opposing or testifying about the race discrimination, by demoting employees, by forcing one of the employees out of her job, and by suing others in state court. In addition to the settlement amount, the company must: (1) provide mandatory annual three-hour training on race discrimination and retaliation to all of its employees; (2) have its president or another officer appear at the training to inform staff of the company’s non-discrimination policy; that the company will not tolerate such discrimination; and the consequences for discriminating in the workplace; (3) maintain records of complaints of race and retaliation discrimination; (4) provide annual reports to the EEOC regarding such complaints; (5) issue a memo to one of the hiring officials explaining that the company does not discriminate on the basis of race and retaliation; and (5) post a notice to employees about the lawsuit that provides the EEOC’s contact information.

EEOC General Counsel David Lopez commented on the settlement stating that “Excluding qualified individuals from job opportunities because of their race or in retaliation for exercising protected rights are fundamental violations of the laws we enforce…As this case demonstrates, the EEOC is prepared to vigorously pursue such cases and resolutions that help ensure that workplaces will be free from discrimination. Recent cases we have filed alleging hiring discrimination, such as our suit against Bass Pro, demonstrate this continued commitment.” Read More.

Disciplinary Measures Often Form the Basis of a Retaliation Claim

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Published on Wednesday, 28 March 2012 16:27

Disciplinary measures often form the basis of a retaliation claim, particularly if they are implemented soon after an employee makes a complaint of harassment, discrimination, or some other workplace issue. In a recent case filed by the Equal Employment Opportunity Commission (EEOC) the agency charges that OfficeMax violated federal law when a manager at one of its Sarasota stores allegedly retaliated against a Hispanic sales associate after he made a complaint about race discrimination. The EEOC’s lawsuit charges that OfficeMax’s human resources department became aware of allegations raised by the Hispanic sales associate in mid-June 2009, when he was terminated by his store manager. Although OfficeMax rehired the associate following his discrimination complaint, the manager allegedly began initiated a pattern of retaliatory conduct towards the sales associate, which included unwarranted and disparate discipline, disciplinary actions based on false accusations and a reduction in hours. Eventually the employee resigned. Malcolm Medley, district director of the EEOC’s Miami District Office commented that, “Complaints of retaliation are not taken lightly by the EEOC…When an employee exercises his or her right to oppose unfair practices, they need to feel secure in exercising that right.” In order to avoid a retaliation complaint, employers must not only carefully train their supervisors and managers on the laws regarding discrimination, harassment and retaliation laws, but they must train supervisors and managers on proper disciplinary measures. Obviously, if an employee who has complained of discriminatory/harassing conduct is soon thereafter subjected to disciplinary measures by the employer (particularly if there were no prior performance issues) at a minimum such disciplinary measures create the impression of retaliatory conduct.  Read More.

Workers’ Compensation May Not be Exclusive Remedy for Work Related Injury Caused by Sexual Harassment

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Published on Monday, 06 February 2012 20:02

The Court of Appeal, Fifth Appellate District, has held in an unpublished opinion that a cause of action for work related intentional infliction of emotional distress, in a case where discrimination and harassment by an employer were involved, may not be barred by the exclusive remedy provision of California workers’ compensation law. The case was appealed after the trial court granted the employer’s motion for a summary judgment on all claims, including sexual harassment, retaliation and intentional infliction of emotional distress. The appellate court found that there were triable issues of fact in regards to these claims and reversed the trial court’s decision. The appellate court’s reasoning was that in terms of the exclusivity of the workers’ compensation remedy, harassment and discrimination by an employer are acts that are outside the normal part of the employment environment.

The court noted, however, that in order for such discriminatory and harassing acts to move beyond those of a normal work environment, and thereby outside of the workers’ compensation arena, the conduct must consist of extreme and outrageous behavior beyond all bounds of decency. Referring to existing case law, the court emphasized that outrageous behavior could be found when an individual:  (1) abuses a relation or position which gives the individual power to damage another person’s interest; (2) knows the other person is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. The court stated that if sexual harassment and retaliation claims under Fair Employment and Housing Act (FEHA) are found compensable, then a concurrent claim for intentional infliction of emotional distress , based upon the same facts, will meet the above criteria and can be tried with a civil court, instead of the workers’ compensation appeals board. Thus, employers need to be aware that although workers’ compensation laws and insurance will preclude most work injuries or illnesses at work from being brought before the civil courts, if the facts of the workers’ compensation claim can also support a claim under the FEHA, the employee may be able to seek the greater remedies available in a civil court. Read More.

Court Reverses $2 Million Dollar Judgment Against City of Los Angeles for Retaliation

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Published on Tuesday, 24 January 2012 06:53

The California Court of Appeal, 2^nd District, has reversed a $2 million dollar judgment against the City of Los Angeles (City). The case involved Richard Joaquin, a Los Angeles Police Department officer, who complained of sexual harassment by Sergeant James Sands. The department investigated and concluded that Joaquin’s complaint was unfounded. Sands then pursued a complaint against Joaquin for filing a false sexual harassment charge. Internal Affairs investigated Sand’s complaint, agreed that Joaquin’s charge was without merit, and recommended that the matter be adjudicated by a Board of Rights. The Board of Rights found that Joaquin fabricated the charges and recommended termination. Subsequently, Joaquin was terminated. Joaquin then filed a petition for writ of mandate. The superior court granted the petition and ordered Joaquin reinstated, concluding that the evidence did not support the Board of Rights’ findings. Joaquin was reinstated. He then filed suit against the City alleging that the City terminated him in retaliation for filing a sexual harassment complaint, in violation of the Fair Employment and Housing Act (FEHA). A jury agreed and awarded Joaquin more than $2 million for lost wages and emotional distress.

The City appealed, arguing that the jury’s verdict was not supported by substantial evidence. The 2^nd District Court of Appeal agreed and reversed the $2 million dollar judgment. Notably, in its decision the court focused in on the issue of whether “an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines that it was fabricated.” On this important point, the court noted that it was “not aware of any California case that has discussed” the matter although the question of whether “a false report of discrimination or harassment may lawfully be a basis for discipline has been addressed in federal cases interpreting title VII of the Civil Rights Act of 1964.” After reviewing several of these cases, the court concluded that “in appropriate circumstances, an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment.” Read More.