Employment Lawyer Blog

Last Monday, Bentonville, Arkansas-based retailer, Wal-Mart, escaped the possibility of having to face a nationwide class action lawsuit regarding gender discrimination, thanks to a unanimous U.S. Supreme Court decision. The case had been percolating through the courts since 2001

Thanks to the ruling, 1.5 million current and former female workers at the United States' largest private employer will now be forced to seek redress through smaller lawsuits. Pundits suggest that Wal-Mart may have won something of a pyrrhic victory, in that the company may soon be besieged with thousands of tiny gender discrimination lawsuits. In other words, had the retailer taken on the 1.5 million women in a class action, Wal-Mart may have had to pay out a multi-billion dollar settlement. But at least this would have resolved the legal battle in one fell swoop.

Now, at least according to some analysts, the fractured class of plaintiffs may reconstitute into smaller groups and create a long-term, complicated struggle over whether companywide policies favored male employees over female ones.

Had the Supreme Court allowed the plaintiffs to get certified as a class, the mass tort would have been the biggest case of its kind in U.S. history.

Attorneys, interest groups, and pundits spent the week feverishly debating the ramifications of this SCOTUS decision. Does the decision reveal that the Supreme Court is somehow biased against workplace victims? And, if so, will this bias trickle down to other critical matters? Or does this thinking constitute a case of "reading too much into the tea leaves"? Or, perhaps, is there actually such a thing as too big a class and that justice is better served for groups only up till a certain number of participants?

Given the recentness of the decision, it's probably impossible to draw too many conclusions at this point. Yes, this was a high profile case and a victory for a powerful employer. But the Supreme Court was not looking at whether or not women workers at Wal-Mart had been wronged; rather, the Court made a decision about whether 1.5 million women could be certified as a class in a class action suit - a much narrow and more specific point.

All this is to say that, if you have been struggling with an issue at work - such as a boss harassing you, a manager withholding your pay illegally, or a coworker making racially insensitive comments - you still have ample rights and resources at your disposal.

Learn more about your potential to take decisive legal action by connecting with Joseph & Kirschenbaum at 866-348-7394. Or learn more about our firm and its philosophy on the web at www.jhllp.com.

Victims of workplace sexual harassment, gender discrimination, wage and hour violations, and other atrocious and illegal treatment often wait a shockingly long time to take action to stop the bad behavior, seek justice, and move on. Why is this?

Are victims psychologically weak, scared, or intimidated? Are their cases less than rock solid? Are they seeing mistreatment where there really isn't any?

In many cases, the problem can be summed up nicely with the famous "boiling frog" metaphor. This is a metaphor that Al Gore made famous in his "Inconvenient Truth" documentary. Scientists and pundits evoke it to illustrate how it is possible for someone to drift into desperate straits without realizing it... until it's too late to do anything about it.

Boiling Frog Syndrome: If you toss a frog into a pot of boiling, the frog will immediately and alertly hop out of the water to safety, given the chance. But if you put that same frog into a pot of colder water and slowly heat the water until it comes to a rolling boil, the frog will just sit there and slowly allow itself to be boiled to death.

The same principle might be at work with workplace sexual harassment and other kinds of mistreatment. If, on the first day of your job, your boss or co-workers made outlandish sexual comments to you, forwarded you lewd pictures, or propositioned you, chances are that you would leave and never come back... and potentially alert the authorities. This would be a logical and rational response.

However: imagine you take a job at an office - maybe somewhere in Midtown Manhattan, for instance. You work at that job for several months and begin to enjoy it and develop relationships. Then, one day, your boss makes a veiled sexual proposition, which you choose to ignore. Slowly, but surely, the innuendo escalates. Pretty soon, you are dealing with a full blown case of sexual harassment - including, perhaps, lewd propositions, surreptitious e-mails, unwanted touching, etc. But now -- much like the frog placed in the cold water slowly heated to a boil -- you don't react "rationally" and instead allow the behavior to continue. You are now so used to your surroundings -- and you've become inured to the incremental increase in the sexual harassment -- that you know longer see it as weird but rather as something that's a normal part of the tapestry of your office life, or at least something you should or could tolerate.

Fortunately, there are resources that can help you out of the metaphorical boiling pot. If you or someone you know and care about has been experiencing workplace mistreatment of any kind, connect immediately with the law firm of Joseph & Kirschenbaum at www.jhllp.com, or dial our offices for a free and private consultation at 866-348-7394.

Nine cocktail waitresses have banded together to sue Atlantic City's Resorts Casino Hotel for age discrimination and gender discrimination. According to the Daily Mail (a UK paper), "Atlantic City waitresses claim they were made to strip in front of their co-workers and told to squeeze into flapper outfits that were too small for them. Their photographs were then sent to a modeling agency that decided who should stay and who should be axed."

The hotel, for its part, maintains that it evaluated each waitress fairly and maintained that the flapper costumes were a key part of its rebranding to capitalize on the revival of the "Roaring 20s" style spurred by the popular HBO TV series, Boardwalk Empire. Terry Bruno, a former waitress at Resorts, said "we had to go up into this poorly lit, dingy room with uniforms strewn all the floor and we had to try and find something to fit us." Another waitress, 53-year-old Katharyn Felicia, insisted that the resort's rebranding was "very degrading to women... we had no idea that the photo shoot was fighting for our jobs." She also told the Daily Mail: "I was forced to get undressed in front of six co-workers, one of them being my manager... I had no top on because you can't wear a bra with the uniform. I had stockings on, but that's it. It was the most embarrassing thing I've ever had to do."

The gender discrimination allegations touched off a rowdy and at times unpleasant debate on the blogosphere about the rights and responsibilities of cocktail waitresses. Critics of the lawsuit argue that the job of "cocktail waitress" is by nature intended for younger women. The resort deserves the chance to make money; if the law required the hotel to employ septuagenarian and octogenarian (to go to the extreme) cocktail waitresses, then the business would lose money. Not so fast, say advocates of workers. Sure, businesses like casinos should be entitled to screen employees legally and pick the best people suited for the job. But the screening process cannot be arbitrary. It cannot violate age discrimination and gender discrimination laws.

Gloria Allred, an attorney representing the women, put it this way: "Mr. Gomez [the resort boss] may have sought to recreate the 1920s with the flapper uniforms and G-men. But we are here to remind him that, although there were no laws prohibiting employers from discriminating against women on account of their sex and age at that time, there are laws that prohibit such discriminatory conduct now."

The lawsuit fascinates the public because it touches on multiple "hot button" issues, including:

• The rights of the women in the workforce;
• The fears and anxieties of baby boomers as they age out of certain jobs and face uncertain retirement circumstances;
• The fears of many Americans languishing in the stagnant economy;
• The new obsession many Americans have with the 1920s, thanks to Boardwalk Empire;
• Americans' ongoing fascination with the somewhat seedy world of casinos and cocktail bars.

If you or someone you care about has been retaliated against or has experienced unfair treatment at work, wage and hour violations, or discrimination of any kind, the team at Joseph & Kirschenbaum can help you understand and protect your rights and get abusive behavior to stop. Learn more about your rights at www.jhllp.com, or call us toll free at 866-348-7394.

Earlier this week, Specialist Adam Jarrell filed a racial discrimination complaint against the New Mexico Army National Guard. Specialist Jarrell's story is more than a little scary and disturbing. The 23-year-old served the National Guard since 2006. He was recently deployed to Afghanistan, where he was the only African-American among 216 soldiers in his unit.

According to a Reuters news report: "The alleged harassment began after Jarrell reported the physical abuse of two subordinate soldiers by an officer in Afghanistan in 2009... after that, Jarrell said he was subjected to increasing torment, including threats of physical violence and racial slurs. The abuse culminated in a noose hanging outside his barracks door."

When Jarrell reported what had been happening to his commanding officers, "they ignored the issue and wrote him up for jumping the chain of command, even though harassment claims were not subject to those rules." A spokesperson for the American Civil Liberties Union of New Mexico summarized the blunt argument: "No one should suffer the kind of racial hatred Specialist Jarrell experienced, least of all someone who is on the frontlines of battle."

Although the modern American military is a far more integrated and tolerant institution than the military of a generation or two ago, Jarrell's complaints suggest that problems like sexual harassment, racial discrimination, retaliation, and general mistreatment have not been excised entirely from the military system.

There are various ways to contextualize Jarrell's story. One can make this argument: hey, we're making progress. Sure, we have a long way to go, but we are heading in the right direction, in terms of stamping out bad behavior, harassment, discrimination, etc.

On the other hand, another argument may be equally viable: Intolerance, fear, and hatred can never be excised entirely from an institution like the military - or indeed, any institution, corporation, or social structure. These problems -- and the targets of abuse -- can only shift form. Whereas in past generations, racial discrimination and harassment against African-American was culturally normal, today it's not. But our prejudices did not go away. They only shifted towards other groups, such as homosexuals and Arabs.

Both camps make interesting and compelling arguments. It's hard to escape the conclusion that we have made at least some progress; but how much more progress can we hope to make, and what will our final "success" ultimately look like?

Speculation aside, many people who have personally experienced sexual harassment, racial discrimination, wage and hour violations at work, and other kinds of employer mistreatment need urgent help to understand their rights and responsibilities. The law firm of Joseph & Kirschenbaum can give you immediate, free assistance. Connect this reputable firm now at www.jhllp.com or 866-348-7394.

Reuters reports that French prosecutors are investigating sexual harassment accusations against Georges Tron, a leading minister in the French government. Two women filed complaints against the minister. Both victims said that the recent arrest of IMF Chief, Dominique Strauss-Kahn, inspired them to finally speak out against Tron.

According to Reuters, a former receptionist at Tron's office admitted that "she was driven to break her silence after former IMF Chief Strauss-Kahn was arrested on charges of attempted rape... 'when I see a little chambermaid is capable of taking on Dominique Strauss-Kahn, I tell myself I do not have the right to stay silent.'" Tron, for his part, has disputed the sexual harassment allegations as "incredible" and has asserted "that the two women [victims] were connected to people from the political far right."

Will the very public and embarrassing accusations against high profile French politicos like Tron and Strauss-Kahn, compel the French (and other Europeans and Americans) to revisit and change their behavior? Will these high profile events change the way government officials comport themselves and diminish sexual harassment in the future?

The debacles involving Tron and Strauss-Kahn raise other intriguing questions, including:

• Might publicizing the naughty behavior of the French ministers be counterproductive? When people in positions of power repeatedly engage in sexual harassment, and the news media covers this, does the naughty behavior start to seem common? And if so, does its very commonness begin to influence people into thinking that it's is okay to do it, too?

• Will certain "bad" behaviors always happen, regardless of negative PR or rules that forbid them? Many reformers envision an ideal scenario: we draft perfect laws -- a balanced system of incentives and disincentives -- and thus stamp out sexual harassment forever. But can that ideal ever be reached, even approximately?

• Should society swing to an extreme to root out bad behaviors? Policy changes always have both intended and unintended consequences. We need to be attentive to (and responsible for) the accidental consequences of our policies. A garden may get overgrown with weeds. But weed the garden too much, and you kill plants that you want to keep.

One conclusion is certain: to stamp out sexual harassment, retaliation, gender discrimination, and other misbehavior, we need to think beyond short-term solutions and purely punitive actions and instead take a broader, more open-minded view. If you or somebody you care about needs help with a matter, connect with the team at Joseph & Kirschenbaum for a free case evaluation at 866-348-7394 or learn more at www.jhllp.com.