A Word to the Wise
Many major employers have adopted internal dispute resolution programs designed to resolve internally employment disputes, and the numbers of such programs are only increasing. In prior years, these programs typically included a mediation step and ended in a final step of binding arbitration. Under such programs, employees were barred from opting out of the program to bring their claims in court. This is still the case with many employer dispute resolution programs. A growing number of employers, however, have moved away from this binding arbitration model and instead have provided employees with the option of opting out of the program after the mediation stage and permitting the employee to take his or her claim to court.
Supreme Court Rejects Reverse Age Discrimination Claim
By a 6-3 majority, the United States Supreme Court rejected a claim of reverse discrimination under the Age Discrimination in Employment Act, finding that Congress in enacting the ADEA concluded that the "enemy of 40 is 30, not 50." <i>General Dynamics v. Cline</i>, 2004 WL 329956 (U.S. 2/24/04).
Arbitration and Delay
Arbitration often is lauded as a relatively more economical and expeditious means to resolve employment disputes. In many cases, arbitration does achieve these objectives. However, when arbitrators issue significant punitive damage awards, employers may not be content to accept the award as final and binding.
You Be the Judge!
To prevail on a hostile work environment claim, a plaintiff must prove that the workplace was permeated with discriminatory intimidation that was "sufficiently severe or pervasive to alter the conditions" of employment. <i>Meritor Savings Bank FSB v. Vinson</i>, 477 U.S. 57, 106 S.Ct. 2399 (1986) An objectionable environment must be "both objectively and subjectively offensive, one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so." <i>Faragher v. City of Boca Raton</i>, 524 U.S.775, 118 S.Ct. 2275, 2283 (1998). Courts must examine the totality of the circumstances in deciding whether a hostile environment exists. <i>Id</i>.
Med-Mal Cases Down - Is 'Tort Reform' the Cause?
The 15 medical malpractice cases in the Top 100 jury verdicts of 2003 were a mixed bag of tragedies that may (or may not) have been affected by efforts to limit tort rights. The verdicts totaled $545.5 million. While that is a robust sum, it is nearly $178.6 million less than in the previous year's top verdicts, even though 2003 had two additional cases. Some attorneys and med-mal experts contend that trend-spotting is a pointless parlor game leading to faulty conclusions. Verdicts are fact-driven, they say. Others see shrinking verdicts and blame "tort reform," which, they say, includes damage caps in 27 states and indirectly affects juries everywhere.
Verdicts
Recent rulings of importance to you and your practice.
Expert Witness Liability: An Expanding Field
Expert witnesses have become a necessity in virtually all litigation, from medical malpractice to products liability to family law cases. Technical understanding of disputes is required for juror determination in this increasingly technical world. Damages need to be calculated using expert data; professional standards and their application to any medical malpractice action require expert opinion. But what happens when the side hiring the expert loses, or the independent evaluation doesn't come up with the hoped-for answer? Increasingly, what happens is the disappointed party sues the expert. In some cases, the experts have immunity to lawsuit, but in an increasing number of instances, they simply do not.
