Employment Lawyer Blog

A controversial employment discrimination decision--covered by the Joseph, Herzfeld, Hester & Kirschenbaum blog back in April--promises to command national attention over the next several weeks, due to the fact that the case, Ricci v. New Haven, was adjudicated by President Obama's pick for the Supreme Court, Sonia Sotomayor.

Ricci was brought by local New Haven firefighters, who claimed that they had been passed over for promotion due to "unfair" affirmative action. Judge Sotomayor dismissed the claims and upheld a Federal District Court ruling in favor of the city of New Haven.

Political Lightning Rod?

The titular claimant, Frank Ricci, grew up economically disadvantaged, and he suffered from a severe learning disability, dyslexia. After tremendous effort and study, Ricci scored 6th out of 77 test-takers on a critical firefighter skills exam--definitely high enough to qualify for a promotion. However, because none of the African-American firefighters who took the exam scored a passing grade, the city of New Haven threw out the results and denied promotions for Ricci and 19 others (including two Hispanics).

The Supreme Court may take up the matter this summer. Whether or not the Court agrees with the claimants that the city of New Haven practiced workplace discrimination; or whether the Court sides with Sotomayor and the Connecticut Federal District Court, the broader political ramifications for the Ricci decision will now be much more highly charged, given Sotomayor's new status as a nominee to the highest court in the land.  

Further complicating the dynamics is the fact that Judge Sotomayor would be the first female Latina Justice to preside on the Supreme Court. It's a fair bet that her proponents and detractors alike will "read the tealeaves" in her decision on Ricci for hints at her worldview and judicial philosophy--particularly as they might apply to future harassment, workplace discrimination, and retaliation cases.

If you or a friend or family member has endured workplace harassment or race-based discrimination or retaliation, you can turn to the Law Offices of Joseph, Herzfeld, Hester & Kirschenbaum for active and aggressive representation. Call our offices to set a free consultation.

The U.S. Supreme Court decided May 18 that women may not sue over retirement benefits that reflect their companies' history of pregnancy discrimination, the Associated Press reported May 18. The case pits four women retired from AT&T whose benefits are lowered because they took pregnancy leave before federal law required pregnancy leave to be treated like other temporary disabilities. The seven-justice majority agreed with AT&T that because the plan was legal during the plaintiffs' leaves, the lowered benefits do not violate the law.

The four plaintiffs in the pregnancy discrimination lawsuit took maternity leave between 1968 and 1972, at a time when AT&T did not credit maternity leave toward pensions. In 1979, Congress passed the Pregnancy Discrimination Act, which requires companies to treat pregnancy leave like other temporary disability leaves. The Pregnancy Discrimination Act was an amendment to Title VII of the Civil Rights Act, which made gender discrimination illegal. It requires employers to treat pregnancy like any other temporary disability, which means allowing the same kind of leave, the same kinds of accommodations, the same benefits and the same policy for holding jobs open. Employers also cannot make hiring or firing decisions based solely on pregnancy. And as with other employment rights laws, employers may not retaliate against workers for exercising their rights under the Act, or supporting others who did so.

Under that law, the maternity leaves would have counted toward the plaintiffs' pensions. The plaintiffs argued that the pre-1979 discrimination was covered by the law because they are receiving pensions now, well after the Pregnancy Discrimination Act took effect.

The Supreme Court rejected that argument. The language of the Act did not make it retroactive, the majority wrote, nor does it apply to rules that are still in effect but were set before the Act. The two dissenters wrote that the majority misunderstood what Congress intended with the law. Justices Stephen Breyer and Ruth Bader Ginsburg -- the court's only woman -- wrote that Congress did not intend any further pay discrimination against pregnant women when it passed the law.

The pregnancy discrimination attorneys at Joseph, Herzfeld, Hester & Kirschenbaum LLP are disappointed by this ruling, which allows the effects of discrimination to continue 30 years after the discrimination itself was made illegal. After all, AT&T could have recalculated pension benefits for formerly pregnant workers anytime during the last three decades. The ruling means that millions of retiring Baby Boomers, many of whom had children before the Pregnancy Discrimination Act, must rely on their employers to do the right thing when they retire.

Victims of pregnancy discrimination and retaliation have the right to file a pregnancy discrimination lawsuit claiming compensation for unpaid wages, benefits and other financial losses. If you believe you were treated unfairly at work because of a pregnancy, we would like to help. For a consultation with the national pregnancy discrimination attorneys at Joseph, Herzfeld, Hester & Kirschenbaum, please contact us through the Internet or call toll-free at 1-866-348-7394 from anywhere in the United States.

Illinois has been besmirched by its fair share of sexual harassment, retaliation, and corruption cases this year. The latest of the bunch to go to trial involved an alleged "aborted forced tryst" between a top state government employee and her assistant.

The plaintiff, Mr. Carlos Estes, alleged that he was sexually harassed by his boss, Ms. Teyonda Wertz, who serves as Chief of Staff to Carol Adams, the head of Illinois's Human Services Department.  

Another Rod Blagojevich Legacy?

Curiously, Carol Adams was hand-picked for her position by former governor Rod Blagojevich, who was driven out of office earlier this year for corruption charges stemming from his illegal and unseemly attempts to sell the Senate seat vacated by Barack Obama. Although the scandal-ridden ex-Governor was not directly implicated in these allegations, the fact that his hand-chosen deputy was (Caroline Adams) has no doubt further tainted the state's political reputation.

Facts Alleged

In 2003, so alleged the suit, Ms. Wertz took her assistant and driver, Mr. Estes, with her to an Illinois hotel on a business trip. While the two roomed together, Ms. Wertz allegedly slipped into a sexually provocative dress and ordered her subordinate to "make love to her" or lose his job.  Mr. Estes refused to comply; and Ms. Wertz made no further direct sexual aggression.  But the matter so disturbed Mr. Estes that he filed a formal complaint with the state. Three weeks later, however, he was dismissed from his job on charges of improperly using a state vehicle.

Mr. Estes argued that he had been fired due to retaliation for filing the harassment and discrimination claim. But the defendants convinced the jury that Mr. Estes had indeed been fired for good cause.

This case illustrates how intricate and layered these kinds of discrimination and retaliation cases can get.  To unravel your gender-based harassment or retaliation case, trust the expert attorneys here at Joseph, Herzfeld, Hester & Kirschenbaum to provide serious, aggressive and knowledgeable support.  To learn more about how we can help, please peruse our website at www.JHLLP.com, or call/e-mail us to set up a free consultation.

The Fourth U.S. Circuit Court of Appeals has ruled that three employees of a horse racing and gambling center in West Virginia were incorrectly classified as exempt from overtime eligibility, the West Virginia Record reported May 4. John Desmond, Dana Witherspoon and M. Larry Sanders sued Charles Town Races & Slots, alleging that they routinely worked more than 40 hours per week, but had never been paid overtime for it. The ruling allows them to collect years of unpaid overtime wages.

All three plaintiffs were employed as "Racetrack officials," which, on race days, meant that they served as judges, clerks of scale and horse identifiers. On days with no race at the track, they handled clerical duties such as putting together racing programs and tracking changes in riders. During their trial, the racetrack argued that these clerical duties meant they were correctly classified as exempt from overtime, because those duties were required by state law, and thus indispensable general business operations. This would make them administrators exempt from overtime under the Fair Labor Standards Act. The federal district court agreed.

On appeal, the Fourth Circuit reversed that ruling, saying the trial court interpreted the law incorrectly. The legal indispensability of a employee's job does not influence whether that employee is eligible for overtime, the court wrote. Instead, it reminded the lower court of the established test for whether an employee is exempt, laid out in the Fair Labor Standards Act. An employee is exempt from overtime rules as an administrator if he or she:

• earns $455 or more per week;
• primarily performs office work or non-manual labor related to the management of the employer or its general business operations; and
• exercises discretion and independent judgment in matters of significance.

The work the plaintiffs did, especially on race days, did not meet all three parts of that test, the court wrote. They were not supervisors and they did not make high-level decisions about the business. Thus, they were non-exempt employees entitled to overtime for each minute they spent on the clock after an ordinary 40-hour week.

Misclassifying employees eligible for overtime as "exempt" is a common strategy employers use to illegally avoid paying overtime wages. Others include requiring or pressuring workers to work off the clock and simply shaving time off employee time cards. The overtime attorneys at Joseph, Herzfeld, Hester & Kirschenbaum LLP have years of experience fighting these and other illegal tactics by employers. Our wage and hour lawyers also handle related complaints, such as denying employees their legally mandated breaks, illegal tip pooling or "tip outs" of managers and paying employees less than the minimum wage for their states and job categories. In a successful overtime lawsuit, you can win up to double the amount of the unpaid overtime you are owed, along with payment of attorney fees.

If you believe you and your colleagues are being exploited by your employer and you'd like to fight back, please contact the wage and hour attorneys at Joseph, Herzfeld, Hester & Kirschenbaum via e-mail as soon as possible or call 1-866-348-7394 from anywhere in the United States.

The First U.S. Circuit Court of Appeals has revived a sex discrimination lawsuit by a Maine woman who claims she was denied a promotion after supervisors found out that she has four children. The lawsuit was filed by Laurie Chadwick, an employee of health insurer Anthem Health Plans of Maine (formerly Wellpoint). According to the Wall Street Journal, court papers say Chadwick had worked for Anthem for nine years, with good reviews, and been promoted once before the incident.

When another promotion became available, Chadwick applied. However, the WSJ wrote, the hiring manager discovered shortly before deciding that Chadwick had four children -- an 11-year-old and six-year-old triplets. The promotion went to another candidate, one with less experience and lower scores on performance evaluations. The hiring manager allegedly told Chadwick that "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." Chadwick filed a gender discrimination lawsuit, which was thrown out by a federal district court in Maine but reinstated by the federal appeals court. Anthem denies that there was any discrimination.

An April 28 story in the Boston Globe says that Chadwick's case was the first in Maine to raise the issue of sex discrimination when an employer assumes a woman will prioritize family ahead of work. However, the issue of "caregiver discrimination" -- employment discrimination against people who are responsible for taking care of a young, elderly or disabled person -- is not new. In fact, the U.S. Equal Employment Opportunity Commission issued new employer guidelines in late April explaining "best practices" for employers whose workers are also caregivers. Those guidelines updated a 2007 document explaining when and how caregiver discrimination may break the law.

No federal law prohibits employment discrimination against caregivers, although the laws of individual states may. (The Maine legislature is now considering such a law.) Rather, the EEOC has written, discrimination against caregivers of any gender may constitute illegal gender discrimination or disability discrimination in the workplace, as would retaliation and creating a hostile work environment. In all cases, the prohibited behavior can be described as stereotyping. It is illegal under the Americans with Disabilities Act for employers to discriminate against workers who care for disabled people because of an unfavorable stereotype -- for example, an assumption that the worker might frequently be absent because he or she cares for an aging parent.

Similarly, employers may violate Title VII of the Civil Rights Act if they make assumptions about a caregiver based on his or her gender. Like Chadwick, many women face discrimination from employers who assume that their caregiving responsibilities or pregnancy will interfere with their work performance. That's true even when, as may have been the case with Chadwick, the employer believes it's acting in the employee's best interests. Men may also be victims of this unfair gender stereotyping, often when employers assume that men are not or should not be caregivers. Men are entitled to all of the same family and medical leave granted to female employees, except pregnancy leave.

Joseph, Herzfeld, Hester & Kirschenbaum LLP specializes in representing victims of all types of job discrimination. Our gender discrimination lawyers and disability discrimination attorneys represent victims from around the United States, including victims of illegal caregiver discrimination. If you believe your job has suffered because of discrimination in the workplace, including retaliation or creation of a hostile work environment after you reported discrimination, please contact us as soon as possible to learn about your rights and your legal options.