Employment Law Strategist

Who's moving where, who's doing what.

For a number of reasons discussed below, employers truly interested in turning back the clock on the 1991 amendments to Title VII would be well served to cease using mandatory arbitration agreements and instead have their employees execute waivers of their right to jury trials. It is juries that employers generally fear, not the courts themselves. Prior to the 1991 amendments, employers felt no imperative to exempt themselves from the civil justice system available in the courts. Thus, employers do not now need to flee the court system altogether in order to avoid jury trials, and there is certainly no reason for them to require their employees to agree to the wholesale replacement of court litigation with mandatory arbitration.

On Feb. 6, 2007, the U.S. Court of Appeals for the Ninth Circuit, in a 2-1 decision, affirmed the district court's certification of a nationwide class of approximately 1.5 million current and former female employees who were employed at one or more of Wal-Mart's 3400 stores across the county. The court's ruling is significant due to the 'historic' nature of the plaintiffs' motion, which sought approval of 'the largest certified class in history,' and because many of the court's findings, if they stand, undoubtedly will form part of the judicial debate in other jurisdictions as to the appropriate standards in analyzing the availability of class certification in large employment discrimination cases.

The Georgia Supreme Court issued a sharply divided ruling on March 26 that some say exposes employers to workers' compensation claims for just about anything their employees might do while traveling. Ray Bell Construction Co. v. King, S06G0891.

Title VII and similar state statutes penalize employees who harass others based on their status in a protected class. But there are currently no federal or state laws outlawing simple 'bullying.' However, the absence of these statutes does not permit employers to ignore with impunity the 'equal opportunity jerk' in their offices simply because the conduct, while obnoxious, is directed at everyone. In EEOC v. National Education Association ' Alaska ('NEA-Alaska'), 422 F. 2d 840 (9th Cir. 2005), the Ninth Circuit extended Title VII's reach to prohibit a supervisor's unquestionably abusive, but non-gender-related conduct, because the behavior impacted female employees more harshly than their male counterparts. Even before this case, there existed a grassroots movement to outlaw workplace bullying.

Recent rulings of interest to you and your practice.

Who's doing what; who's moving where.

The Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White resolved a split in the Circuits when it held that a so-called ultimate employment decision is not necessary to establish a retaliation claim. Instead, the Court held that any act that might dissuade a reasonable employee from making or supporting a claim of discrimination can create employer liability for retaliation under Title VII of the Civil Rights Act of 1964. After the decision, many commentators have expressed concern that the new standard will open the floodgates for a wave of new retaliation lawsuits, but what has Burlington Northern really changed, and what does the new framework mean for employers?