Documentation and Other Effective Ways to Avoid Liability for Discrimination
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.
Constructive Discharges Resulting from Sexual Harassment
In one of its most important employment decisions on the subject of sexual harassment since its landmark decisions in <i>Burlington Industries, Inc. v. Ellerth</i> (524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998)) and <i>Faragher v. Boca Raton</i> (524 U.S. 775, 808, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)), the Supreme Court, in <i>Pennsylvania State Police vs. Suders</i> (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.
To (b)(2) or Not to (b)(2)?
Is there a person alive who does not know that Wal-Mart Stores Inc. has been sued in a gigantic class action? On June 21, U.S. District Judge Martin J. Jenkins of the Northern District of California certified the largest employment discrimination class action in American history. <i>See Dukes v. Wal-mart Inc.</i>, No. C 01-02252 (N.D. Calif. 2004), 2004 U.S. Lexis 11365.
ADA Retaliation Claims
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. <i>Kramer v. Banc of Am. Securities LLC</i>, 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. <i>Kramer v. Banc of Am. Securities LLC</i>, 355 F.3d 961 (N.D. Ill. 2004).
Defining 'Spousal' Benefits
Recent moves by various cities, states, and municipalities to legalize or ban same-sex marriage have generated a flood of press, but little concrete advice as to the potential implications of these laws and related court rulings. The dearth of specific and actionable analysis of the implications of these shifts in the law places law firms, as well as most large enterprises, at a competitive disadvantage by forcing them to react as these laws change. This issue is an especially pressing one for large law firms with offices in many states because the definition of "spouse," and thus the availability of "spousal" benefits, may differ in diverse localities.
Goodridge Decision Spawns Action
Although the average American might feel that same-sex marriages in Massachusetts materialized overnight, activists who have worked on the issue say that the <i>Goodridge</i> decision by the Massachusetts Supreme Judicial Court (SJC) in November 2003 was not a complete surprise. <i>Goodridge was</i> the result of a well-planned, long-term strategy by same-sex marriage proponents to bring the issue into the legal, cultural, and political mainstream.
Disability Dilemmas for Supervisors
As we all know, the ADA prohibits discrimination on account of past, present and perceived physical and emotional disabilities. Generally, the key to avoiding liability is focusing on abilities and not disabilities. That's an easy mantra to articulate, but it can be deceptively complicated for a supervisor to implement.
