Employment Law Strategist

This year, on the second of July, I had the privilege of joining President Bush at a White House ceremony in which he led our Nation's observances of the 40th anniversary of one of the most sweeping and influential pieces of legislation in our history: the Civil Rights Act of 1964. This is the Act which, for the first time in U.S. history, addressed discrimination in voting, education, public accommodations, federal programs and employment. This is also the Act that established the U.S. Equal Employment Opportunity Commission, which opened its doors exactly one year later. Thanks to this landmark piece of legislation, it became illegal under federal law to discriminate in employment on the bases of race, color, sex, national origin, and religion. Since that time, the Commission has played a pivotal and preeminent role in preventing and eradicating discrimination in the workplace. Passage of the Civil Rights Act was truly a historic feat, but one that did not come easily.

It's no secret that over the last decade, employees have been able to obtain large damages awards from employers in Title VII claims. Accusations of glass ceilings and racial and sexual harassment, for instance, are regularly splashed across headlines. Juries often see a sympathetic plaintiff and an employer with deep pockets. The prospect of a runaway jury is a prime motivation for employers to seek mandatory arbitration of these claims. Arbitration can in some cases reduce the costs of litigation, provide greater confidentiality, and provide a decision that is more predictable and less charged with emotion. There has been much controversy over so-called mandatory arbitration agreements, but a number of Supreme Court decisions in the last two decades have substantially refined the law in this area since the seminal case of Alexander v. Gardner-Denver Co.

As Title VII of the Civil Rights Act of 1964 (the primary federal discrimination law) celebrates its 40th anniversary, the method of proving a discrimination claim has greatly evolved. Virtually gone are the "smoking gun" statements using the "n-word," advertisements for applicants of a certain sex, or statements that individuals over a certain age aren't qualified to apply for a particular job. Although the world hasn't reached an era of perfection, blatant discriminatory expressions or policies are comparatively infrequent in modern discrimination litigation.

The comedian George Carlin once asked, "If you try to fail and succeed, which have you done?" A similar question arises in the context of sexual harassment: If a supervisor demands sexual favors of his subordinate and she silently acquiesces to keep her job, does she have a claim of sexual harassment against her employer? Despite the Supreme Court's many pronouncements on sexual harassment, the answer to that precise question is still unresolved.

A former modeling agency executive has been arrested on charges that she tampered with a jury in an unusual civil suit over cigarette smoke in the workplace.

The United States Supreme Court has declined to review a Seventh Circuit Court of Appeals ruling that bars plaintiffs alleging retaliation claims under the Americans with Disabilities Act (ADA) from seeking compensatory and punitive damages. Kramer v. Banc of Am. Securities LLC, U.S., No. 03-1451, cert. denied 6/21/04. Earlier this year, the Seventh Circuit was the first federal appellate court to conclude that the ADA does not provide plaintiffs the right to seek such damages in retaliation cases. Kramer v. Banc of Am. Securities LLC, 355 F.3d 961 (N.D. Ill. 2004).

National rulings of interest to you and your practice.

In one of its most important employment decisions on the subject of sexual harassment since its landmark decisions in Burlington Industries, Inc. v. Ellerth (524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998)) and Faragher v. Boca Raton (524 U.S. 775, 808, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)), the Supreme Court, in Pennsylvania State Police vs. Suders (124 S. Ct. 2342, 159 L. Ed. 2d 204, 2004 U.S. LEXIS 4176 (2004)), addressed the issue of a constructive discharge resulting from sexual harassment.