The WIB Legal Line is our new regular feature. Employment laws are confusing. The WIB LEGAL LINE updates members on developments that could impact your business. Robert E. Gregg is a partner in the Boardman Law Firm of Madison and has long been associated with WIB. Want to read even more employment law legal updates? Visit the WIB website, WWW.WIBIZ.ORG and click on LEGAL LINE.

LEGISLATION AND ADMINISTRATION ACTION 

Lilly Ledbetter Fair Pay Restoration Act.  President Obama has signed a law that extends the statute of limitations for pay discrimination cases.  The law was in response to the 2007 Supreme Court’s ruling against Ledbetter in her case against Goodyear Tire.  Now, pay discrimination is a “continuing violation” and a case can be filed within 180 days of the last (most recent) discriminatory pay check, instead of having to be filed within 180 days of the first such pay check. 

Genetic Testing Regulations.  The Genetic Information Nondiscrimination Act (GINA) prohibits the improper use of one’s genetic information.  However, there are no rules to give guidance to employers, doctors and courts in dealing with such information, and especially to resolve conflicts between the GINA and other laws such as the ADA and FMLA, which allow employers to request certain medical information.  The EEOC is now taking commentary in preparation for drafting those rules. 

Health Care Religious Objector Rules Take Effect.  On January 20, 2009, the Department of Health and Human Services’ new contracting rules on religious objectors took effect.  Employees who object to participating in medical or pharmaceutical services may not be discriminated against by their employers.  Health care providers that receive DHHS funds must certify compliance with the rules and can be de-funded for violations.  Many members of Congress have stated a concern that the new rules threaten access to prompt provision of critical health care, information and medication.  As with many of the outgoing administration’s “last minute” regulations, this one may be re-examined by the new Congress and new administration. 

EEOC Filings Escalate As Staff Cuts Decrease Agency’s Effectiveness.  The U.S. Equal Employment Opportunity Commission’s Annual Accountability Report shows a record number (95,402) of private sector discrimination cases were filed in 2008.  This is a 15% increase from the previous year.  However, the EEOC staff has been cut by over 25% during the recent Bush administration.  With increasing complaints and decreasing staff, only 48% of filed complaints were effectively processed.  What does this mean?  More cases are going to court.  Complaints the EEOC might have conciliated, resolved or made a No Cause finding are just being issued a Right To Sue letter, letting the plaintiff proceed to litigation.  American businesses are paying billions of extra, and perhaps needless, dollars in litigation expenses to defend cases that may well have been resolved or preempted by a more up-to-staff EEOC.  In spite of staff cuts, the EEOC is being effective in several areas.  Of the cases it did process, it increased its prosecution of “systemic” (multiple employee) cases and increased the amounts received for employees in settlement of these cases (see several examples in this Legal Update). 

LITIGATION 

The Legal Update includes new developments and matters of interest throughout the United States.  Be aware that our various federal circuit courts reach somewhat differing conclusions.  So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction.  Some courts lead the way; others lag behind.  The Legal Update lets you see the overall trends and compare them with your jurisdiction.  Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana). 

Employee Polygraph Protection Act 

Bank Employee Was Validly Fired For Suspicion Of Robbery, But Can Still Sue Under The EPPA.  The EPPA makes it illegal to discharge an employee “on the basis of the results of any lie detector test.”  In an unusual case, the Fourth Circuit Federal Court dismissed an ex-employee discharge case but allowed him to continue to sue the bank for violation of his rights under the EPPA.  The employee claimed that he was kidnapped and forced to participate in a robbery of his bank.  He quickly became a suspect and failed two polygraph tests given by the FBI.  The bank also investigated and concluded the employee could not be trusted and decided to discharge.  Unfortunately, the bank’s manager had learned of the two failed polygraph tests, and they were mentioned in the discharge.  In the resulting suit, the court used the “mixed motive” standard to split the difference.  It found the bank would have fired the employee regardless of knowing of the polygraph results, so it could not be sued for the discharge.  However, it did “consider” the test results, even if they were not the determining factor.  So, the fired employee can continue to sue for damages for the violation of the EPPA.  Warden v. Sun Trust Banks, Inc. (4th Cir., 2008). 

Discrimination 

Supreme Court 

The U.S. Supreme Court has settled a split of opinion in the lower courts:  Do the anti-retaliation provisions of Title VII protect only those who participated in an actual EEOC or court case?  Or, are participants in internal investigations entitled to file retaliation cases as well?  Crawford v. Metro Government of Nashville and Davidson County, Tennessee (2009) involved a person who was a witness in an internal investigation of a sexual harassment complaint.  Following this, she was fired.  The court ruled that her participation in the internal investigation of discrimination was “participation” under Title VII, and she is entitled to bring a retaliation case. 

Other Retaliation Cases 

Police Officer Wins $3.6 Million For Truthfulness.  During a department investigation of a complaint, a male police officer truthfully testified about the ongoing sexual harassment of the K-9 unit’s only female officer.  He was then harassed, removed from the K-9 unit, ostracized, and demoted to a desk job that required him to commute two hours each way.  He sued under the California Fair Employment Act and was awarded $176,000 back pay, $927,000 future lost earnings, $1.5 million for past non-economic damages (pain, suffering and punitive damages) and $1 million for future non-economic damages.  Bender v. City of Los Angeles (Cal. Supreme Ct., 2008). 

Principal Stands Up For His Principles.  A male principal of a private school raised concerns that female teachers were receiving unequal pay for the same work as male teachers.  When the concerns were not addressed, he initiated an Equal Pay Act complaint to the EEOC on behalf of the female teachers.  The school promptly fired him.  He sued for retaliation under Title VII and the Fair Labor Standards Act.  A jury found in his favor.  He will receive $950,000.  White v. Lake Ridge Academy (N.D. Ohio, 2008). 

Jurisdiction 

The Board Stands Alone.  You cannot sue “the state” in a discrimination case.  Even though the general state budget may pay damages, a case must be filed against the specific agency that was the actual employer.  The Pharmacy Board had fewer than 20 employees.  Therefore, the court dismissed an Age Discrimination in Employment Act case.  It refused to allow the plaintiff to lump in the “state government” in order to get beyond the jurisdictional number.  No one in any other state agency had made the decision an issue, so the Pharmacy Board stood as an individual entity.  Garrett-Woodberry v. Mississippi Board of Pharmacy (5th Cir., 2008). 

National Origin 

$435,000 For Favoring Asians Over Hispanics In Pay.  A technology company has denied discrimination but agreed to pay a group of Hispanic workers back pay to settle a wage discrimination case.  A group of 38 workers claimed the company favored Asian and Asian-descent employees, paying them $2.00 per hour more for the same work.  EEOC v. First Wireless (E.D., NY). 

$249,000 For Discriminating Against Asians.  A discount chain has denied discrimination but agreed to settle a harassment case filed by Asian employees in seven of its stores.  The district manager allegedly singled out Asian employees for improper attention, sexual harassment and retaliation.  In addition to the payments to employees, the company will conduct anti-harassment training for all supervisors and special training for the specific manager.  EEOC v. National Wholesale Liquidators, Inc. (E.D., NY). 

Sex 

$3.75 Million To Harassed Auto Parts Warehouse Worker.  A woman got a job in an auto parts warehouse.  Her direct supervisor immediately began a series of sexually-harassing verbal and physical behaviors, including graphic sexual comments, obscene gestures and slapping her on the buttocks with his belt.  She and other line supervisors reported this to the warehouse manager, who did nothing.  She and others than complained to Human Resources, and no action was taken.  The jury awarded $3.75 million under the Missouri Equal Rights Law.  The company appealed the award as being “excessive.”  However, the State Appellate Court ruled that the award was more than justified due to “a workplace rife with sexual harassment” and the evidence of “indifference” to employees’ welfare; instead of acting to address the problem, “the company chose to ignore, hide and trivialize the situation.”  Lynn v. TNT Logistics N. America, Inc. (Ct. App., MO, 2008).  

Newspaper Settles Harassment Case.  The court approved settlement of EEOC v. Star Tribune Co. (D. Minn.).  The EEOC alleged the paper allowed a hostile environment in its mailroom operation (vulgar comments, dirty jokes and sexist stereotyping).  Star Tribune denies any wrongdoing but has agreed to a payment of $300,000 to female workers, the presence of a supervisor at all times, and hiring of one additional Human Resource person to monitor the work environment and resolve complaints. 

Religion

$2 Million To Non-Mormon Employees.  The University of Phoenix has settled a case alleging that it discriminated against non-Mormons in pay, promotion and discipline.  The funds will go to 52 current and former professional employees.  The University has denied any discrimination.  EEOC v. University of Phoenix (D. Arizona).

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