To Succeed, Plaintiffs Need Comparative Evidence and Not Just Subjective Opinions

Earlier this month, the Sixth Circuit affirmed an employer’s summary judgment on an employee’s claims for FMLA retaliation, disability discrimination, sexual harassment and unequal pay.   Santiago v. Meyer Tool, Inc. No. 22-3800 (6^th Cir. 6/8/23).   The Court ultimately found that the plaintiff failed to identify any employees who were both similarly situated and treated differently because she had significant attendance and performance issues, unlike employees who only had one or the other.  It also found that she could not show FMLA retaliation when she was given her requested FMLA leave, failed to mention FMLA leave when calling off during the attendance infractions and never claimed when given the pre-litigation opportunity that her absences were covered by the FMLA.  She also did not provide sufficient comparative evidence – about skills, responsibility, effort, etc.,  to show that she was paid less on account of her gender merely because other men were paid more.  Finally, the Court found her sexual harassment EEOC Charge was filed 58 days too late and could not relate back to her original timely ADA Charge when she never indicated any continuing violations and had focused only on the date of her termination.

According to the Court’s opinion, the plaintiff was fired in 2017 as a machinist after 19 years of employment.  She had informed the Company of her HIV diagnosis in 2015 and was given intermitted FMLA leave to seek medical treatment, etc. in 2016 and 2017.  Nonetheless, both before and after her HIV diagnosis, she was frequently disciplined for excessive absenteeism, including a suspension a month before her termination.  Prior to the litigation, she never claimed that her attendance infractions were covered by her FMLA entitlement, even when given the opportunity on the disciplinary action form to protest the disciplinary action.  She also was occasionally disciplined for poor performance for creating deviated parts (that did not meet the customer’s specifications).  Her last such incident was on May 17, when she created 4 deviated parts that were ultimately rejected by the customer after her termination.   In contract, she had similarly created deviated parts in February 2017 without disciplinary action.  She was fired in July 2017 after her suspension for poor attendance and creating the deviated parts on May 17.

She filed an EEOC Charge in October 2017 alleging that non-disabled employees had also created deviated parts and not been fired.   In July 2018 – 358 days after her termination – she filed a second EEOC Charge alleging that her supervisor sexually harassed her for years and that she was paid less than other male machinists.  After filing suit, the trial court granted summary judgment to the employer, which was affirmed on appeal.

The Court found that the employer articulated a legitimate and non-discriminatory reason for her termination on account of her poor work performance and chronically poor attendance.  She failed to produce evidence disputing that she created four deviated parts on May 17, even if her performance at other times had been satisfactory.  She also failed to produce evidence that her attendance had been satisfactory or that she had complied with the employer’s call-off policies.   She could not simply rely on her own opinion to satisfy her burden of proof.

The Court also rejected her evidence of pretext based on statistics showing that all machinists who took FMLA leave between 2014 and 2017 were eventually terminated.  While that might be sufficient evidence to satisfy a prima facie case, it was insufficient without additional circumstantial evidence to show pretext or that discrimination/retaliation more likely than not motivated the decision in her case when it was rebutted by evidence showing the basis for the termination decision in this case – i.e., that she created four deviated parts and had repeatedly violated the attendance policy.  “Her statistical evidence, standing alone, is not so significant to indicate that her termination was more likely than not retaliation for her FMLA leave, particularly in light of her documented disciplinary history.”

The plaintiff also could not “show by a preponderance of the evidence that ‘other employees, particularly employees not in the protected class, were not fired even though they were engaged in substantially identical conduct to that which the employer contends motivated its discharge.’”  None of the other employees to whom she vaguely referred had both performance and attendance issues.  “First, she points to no employee with a disciplinary record that demonstrates the employee engaged in “substantially identical conduct” to her own.” One employee had been suspended for three days because of deviated parts, but had no attendance or other misconduct issues.  While the plaintiff asserted that there were nine other employees with more egregious performance issues, she failed to identify them or explain how their situations were comparable to hers.   Finally, while she was not personally aware of any other employees being terminated for poor performance, the employer had produced records showing that it had previously fired employees for creating too many deviated parts.

The Court also rejected her wage discrimination claim.  She produced evidence that male employees were paid more on average than female machinists.  She also showed that male employees with similar tenure to her – and some that she trained --  were given larger raises than her year after year.  However, she failed to produce any evidence of their respective skills, experience, responsibility, effort or job titles so that an effective comparison could be made to her.

The Court also rejected her sexual harassment claim as being filed too late with the EEOC and too unrelated to her timely ADA charge regarding her termination.  Charges must be filed within 300 days.  She did not indicate any continuing violations in her original, timely charge, but rather focused only on her termination date.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms City's Judgment But Reversed Union's Judgment in Case Alleging Discriminatory Layoffs

This week there have already been three interesting decisions.  In one, the Sixth Circuit absolved a City of discrimination for accommodating a union demand to layoff one group of employees over another, but pulled the union back into the litigation for potential discrimination liability for making that demand in the first place.   Peeples v. City of Detroit, No. 17-222 (6^th Cir. 2018). The Court refused to let plaintiffs alleging race discrimination “piggyback” on the only timely EEOC Charge which resulted in a right-to-sue letter when that charge alleged only national origin discrimination.  It also refused to find statements made by a city employee about the union’s purported motivation as direct evidence.  It also found no circumstantial evidence of discrimination based only on statistics which did not attempt to show significant deviations from non-discriminatory factors, like seniority, and which were based on small sample size.  The Court, however, found that the plaintiffs did not need to show that the union breached its duty of fair representation in order to sue the union under Title VII.

According to the Court’s opinion, the City of Detroit instituted layoffs in advance of filing for bankruptcy protection.  It announced the layoff list based on city-wide seniority, but the fire department union objected on the grounds that it should be based on department seniority and filed a grievance. The City ultimately resolved the grievance by granting the union’s request.   The distinction resulted in the layoff of more minority officers under the union’s proposal than the City’s plan.  After four EEOC Charges followed, the fire union relented and agreed to the City’s initial plan.  The City ended up re-hiring the affected employees 80 days later and giving them full back pay, missed overtime pay and medical benefits.  Nonetheless, even though only one of the plaintiffs had obtained a right-to-sue letter from the EEOC, eleven of the affected minority employees brought suit against the City and the Union, seeking compensatory and punitive damages.

The Court addressed whether all of the plaintiffs could piggy back onto the one plaintiff’s right-to-sue letter.  Sadly for the plaintiffs, they did not raise any arguments to rebut the failure-to-exhaust remedies argument raised in the City’s summary judgment motion and, thus, were limited in what could be argued on appeal.   The only plaintiff to obtain a right-to-sue letter asserted only a national origin discrimination claim and the remaining plaintiffs were asserting racial discrimination.  The Court found that they were not substantially related claims, and thus the race claims could not piggyback onto an EEOC Charge asserting only national origin discrimination.

The Court also rejected the plaintiff’s claim of direct evidence of discrimination.  One of the plaintiffs testified in deposition that he heard a City employee state that he concluded the union was trying to protect the “white boys” from layoff.    This was not direct evidence of discrimination because it was a city employee explaining the union’s motivation and required an inference that the City endorsed that motive.  It also likely hearsay, but the Court did not ultimately resolve that issue.  

The Court also rejected the plaintiffs’ statistical evidence, which was pretty much all that they had to show that they were selected for the layoff on account of their race (in that they were not replaced).  First, they failed to organize their statistics in any meaningful way before the trial court.  Second, the fact that the percentage of white layoffs fell and of minority layoffs rose significantly under the union plan did not, by itself, show impermissible bias.  To prove an inference of bias, “the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.”  For instance, one could use three standard deviations from hypothetical random chance.   The plaintiffs made no effort to account for seniority differences, for instance.  The City also argued about the sample size (only 27 people) and the other cost-cutting efforts made, including demotions, reductions in overtime and rescinded promotions.   The plaintiffs also made no effort to show the racial composition of the fire department before and after the layoff. “Unless the statistics, standing alone or in comparison, are sufficient to lead the mind naturally to the conclusion sought, they have no probative value; they do not move the proof one way or another.”

The Court also rejected the plaintiff’s damage claim in that they had already received full back pay with the resolution of their grievances. The plaintiffs failed to introduce any evidence disputing that they had already received full back pay.  The union pointed out that they never raised breach of settlement agreement claims based on the resolution of their grievances when they were reinstated.  Accordingly, while they might have some compensatory and punitive damages available under Title VII, their claims for backpay were rejected by the trial and appellate courts.

Finally, the Court rejected the union’s argument that Title VII claims were subject to the same burden of proof as fair representation claims under labor-relations laws, meaning that the plaintiffs need not show that the union breached its duty of fair representation before it could sue them for discrimination under Title VII. Because the union had prevailed on that issue before the trial court, the Sixth Circuit reversed the union’s summary judgment.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases 2017 Fiscal Year Enforcement Statistics

Last week, the EEOC released its annual enforcement statistics for the fiscal year that ended on September 30, 2017.  As I explained earlier this month in my recent presentation to the Human Resources Council of South Central Ohio, there is unlikely to be any radical changes at the EEOC in the near future because of budget cuts and vacancies which still remain in key positions, such as Chair, Commissioners and the General Counsel.   Nonetheless, the EEOC reported that it had reduced its extensive backlog of open charges to the lowest level in 10 years.  Retaliation remains the most common form of allegation made in Charges of Discrimination, being asserted in almost half of all charges filed.  This is followed by race discrimination in over a third of Charges filed, and then by disability and sex discrimination and/or harassment in approximately 30% of filed Charges.  Age discrimination was asserted in only 22% of Charges and the remaining issues were only in the single digits.   (Obviously, Charges may contain more than one type of allegation).   The EEOC more than doubled the number of substantive lawsuits it filed last fiscal year, but dismissed over 70% of Charges for lacking merit – the highest percentage since at least 1997.

The EEOC reported that 84,254 charges were filed, and 99,109 charges were resolved. Almost 2400 of Title VII Charges had been filed in Ohio and the proportion of the types of Charges filed in Ohio was consistent with the national trend: retaliation, followed by race and then sex discrimination. There were approximately 200 fewer Title VII  Charges filed in Ohio in the last fiscal year than in the prior fiscal year.

As for the resolution of Charges, 6.4% were resolved through settlement and 5.4% were withdrawn by the Charging Party (without a formal settlement) with benefits.  Fifteen percent were administratively closed (which likely means that the Charging Party could not be located or had stopped returning calls). Over 70% of Charges were dismissed for lacking probable cause (i.e., lacked merit).   While this is the highest percentage of no-merit dismissals since at least 1997, it is not a substantial increase over recent years.  Only 2.9% of Charges (approximately 2900 of the Charges) were found after an investigation to assert probable cause of discrimination.  Again, while this is the lowest percentage since at least 1997 and is substantially lower than in some past years, it is not a substantial decrease over the prior three years.   Slightly more than half of these Charges were successfully conciliated prior to litigation.  The EEOC’s resolution of Charges in the last fiscal year (prior to litigation) resulted in the recovery of $355.6M for Charging Parties, which is consistent with recoveries in five of the last six years.

The EEOC also reported that it had filed 184 substantive lawsuits, including 124 individual suits and 30 suits involving multiple victims or discriminatory policies and 30 systemic discrimination cases.  This was a significantly higher number of enforcement lawsuits commenced than since 2011, when 261 lawsuits were commenced. In contrast, only 86 lawsuits had been commenced in fiscal year 2016.  By the end of its last fiscal year, it had 242 cases on its active docket and claimed a successful outcome in 90.8 percent. It recovered $42.4M on behalf of Charging Parties through litigation, which is less than the prior two fiscal years, but almost twice as much as in 2014.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases 2015 Fiscal Year Charge Enforcement Statistics

Last week, the EEOC released its enforcement statistics for Charges of Discrimination and litigation filed during the fiscal year ending September 30, 2015. There was a slight increase in the number of Charges filed (89,385) over the prior year (88,778) and it resolved more charges (92,641) than it received, unlike the prior year.   Unsurprisingly, retaliation not only remained the most common allegation, but the number of charges alleging retaliation increased and was present in 45% of all private sector Charges filed.  Unlike prior years, the EEOC did not this year release Charge statistics by state. 

Most Charges allege more than one type of illegal employment practice.   Race remained the second most common allegation, but disability overtook sex discrimination and harassment to become the third most common allegation nationally. 

The EEOC filed 142 lawsuits nationwide last year – 9 more than the prior fiscal year.    Following an investigation, 65.2% of Charges were dismissed as lacking reasonable cause.  Almost a third were dismissed without an investigation: 16.7% were administratively closed, 5.7% were withdrawn with benefits and 8.9% were closed following a settlement between the parties.  Only 3.5% of Charges were found to have reasonable cause after an investigation.

The EEOC announced that it obtained$356.6M in pre-litigation settlements, mediation and conciliation, compared to $296.1M last year, $372.1M in 2013, $365.4M in 2012, and $364.6M in 2011.  Litigation settlements last year obtained $65.3M, compared to $22.4M  in 2014, $39M in 2013, $44.2M in 2012, and $91M in 2011. 

Most Charges continue to complain about discharges, harassment, discriminatory terms and conditions of employment, and disciplinary action.  There was a slight decrease in the number of Charges complaining about illegal waivers and wage discrimination.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases Fiscal Year 2013 Statistics Reflecting Less Activity

 Last week, the EEOC released its enforcement statistics for the 2013 fiscal year, which ended on September 30.   It announced that it recovered a record $372.1M on behalf of Charging Parties through the administrative process even though it received 5.7% fewer Charges of Discrimination than in the prior year and dismissed 82% of Charges it received without any monetary recovery for the Charging Parties.  Ohio employees accounted for 3.3% of the Charges it received.  The Commission initiated 131 lawsuits (more than the last year, but far fewer than in 2011), resolved 209 lawsuits and recovered $39M (which is a decrease over the prior year) through litigation.  Following an investigation, 66% of the Charges were dismissed for lacking probable cause. Another 16% were administratively closed without an investigation. Reasonable cause of discrimination was found in only 3.6% of Charges processed.  Approximately 15% were resolved through mediation or settlement.

The EEOC also resolved more Charges last year than it received (because of the well-known backlog).  Although most Charges cite multiple legal violations, retaliation remains the most frequent claim asserted (at 41.%), followed by race (35.3%) and then sex and sexual harassment (29.5%) and disability (27.7%).  The percentages for retaliation, race and disability Charges increased, while the number of sex discrimination charges decreased by 2,600. The issues being raised the most often in Charges include: job assignment, benefits, constructive discharge, demotion, discharge, discipline, hiring, harassment, intimidation, promotion, reasonable accommodations, wages and other terms and conditions of employment.   

As for Charges filed in Ohio, retaliation was the most cited claim (38%), followed by race (35.8%), disability (31.6%), age (28.5%) and sex (26.5%).

These statistics obviously do not include amounts recovered through litigation brought by the employees without the assistance of the EEOC (as employees have the right to file their own lawsuit within 90 days after the EEOC has dismissed their Charge or closed their file).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Upholds Injunction Requiring Firefighter Promotions Based on Disparate Impact from Promotional Examination

Yesterday, the Sixth Circuit Court of Appeals found that a district court did not abuse its discretion in ordering the promotion of 18 white, minority and older plaintiffs to lieutenant and captain positions in the Akron fire department. Howe v. City of Akron, No. 11-3750 (6^th Cir. 7-22-13). The plaintiffs alleged that the 2004 promotional test caused a disparate impact in promotions among minorities and officers over the age of 40 seeking a promotion to lieutenant and among white officers seeking promotion to captain. Among the interesting conclusions in the opinion, the Court relieved the plaintiffs of the burden of establishing which part of the promotional test (i.e., written multiple-choice examination, interview, oral assessment, consideration of seniority level, and written work exercise or group exercise) or element of the promotional process constituted the specific employment practice being challenged as causing the disparate impact without having to show that the elements were incapable of separation. Second, the Court permitted the plaintiffs to prevail by showing there was a disparate impact in the rate of promotions even though there was no statistical disparity in the pass rate on the promotional test because the employees were promoted in rank order of their test scores. Third, the Court found that the trial court had not been required to instruct the jury about the "unusual employer" which engages in reverse discrimination because the employer failed to object during the charge conference and because this was a disparate impact (where motive is not an issue) instead of a disparate treatment case (where motive is an issue). Fourth, because, among other things, the City failed to suggest how to distinguish between worthy and unworthy plaintiffs, there was no abuse of discretion in ordering promotions even though the City had not budgeted for so many promotions and each of the plaintiffs only had a 29% chance of being promoted in the absence of discrimination. Fifth, a delay in promotions necessarily constitutes irreparable injuries to firefighters and back pay is not a sufficient remedy where the lack of experience from a non-promotion will adversely affect the plaintiffs in the next round of promotions. The Court also refused to consider harm to minority non-plaintiff employees who scored higher on the test and would be bypassed by the court-ordered promotions.

 According to the Court's opinion, the liability case was tried in 2008 to a jury, which found the City to have unlawfully discriminated against the 23 plaintiffs – 12 white captain candidates on the basis of race, 8 lieutenant candidates on the basis of age and 3 African-American lieutenant candidates on the basis of age and race. Although the Chief was permitted to interview candidates and select from among a ranked list of the top candidates for each promotion, he always selected the person with the highest test score. There was no statistical disparity in the pass rates on the exam, but there was a statistical disparity in the rate of promotions. Upon the commencement of the litigation, the City stopped making regular promotions off the list and, by July 2011, the Court concluded that there were 25 available vacancies in which to promote the successful plaintiffs and ordered the promotions of 18 plaintiffs. The City appealed the order. The Court also held a new trial on damages in November 2012 and indicated that it might reconsider the injunctive order to promote the plaintiffs. However, no final judgment has been rendered to date.

 In a Title VII case, the plaintiff-employee must make out a prima facie case wherein he identifies "a particular employment practice" that "caused a significant adverse effect on a protected group."

The City argues, citing Grant v. Metro. Gov't of Nashville and Davidson Cnty., 446 F. App'x 737 (6th Cir. 2011), that the district court erred as a matter of law by permitting Plaintiffs to identify the promotional process in its entirety as a specific employment practice without requiring Plaintiffs to first show that the elements of the process were incapable of separation. According to the City, the only employment practices identified by Plaintiffs were the promotional exams, which cannot be said to have had an adverse impact because comparing pass rates did not demonstrate disparate impact based on race or age.

The Court disagreed: "The challenged promotional process in this case is easily distinguishable from that in Grant. Here, the City promoted candidates in rank-order by score results (where the score was the sum of the candidate's exam score plus seniority)."
 
The City next argued that it was an error to allow Plaintiffs to demonstrate an adverse effect from the examination by applying the "four-fifths rule" to the rate of promotions instead of to the exam pass rates. (This rule provides that "[a] selection rate for any race, sex, or ethnic group which is less than four-fifths . . . of the rate for the group with the highest rate" be "generally . . . regarded . . . as evidence of adverse impact." 29 C.F.R. § 1607.4 (D)). "Because we agree with the district court that the promotional process in this case constitutes a specific employment practice, we must also agree that the outcomes of that practice—promotion rates—are the proper metric for determining "adverse effect" or lack thereof." The City did not dispute that application of the rule showed a disparate impact in the promotion rates of minorities and older employees to the lieutenant position. While the City argued that the rule should have been applied to the pass-fail ratios from the examination, the plaintiffs successfully argued that this would be inappropriate where the applicants are promoted based on their test score. The Court refused to follow its prior unpublished decision in United Black Firefighters Ass'n v. City of Akron, 81 F.3d 161, at *2 (6th Cir. 1996) where it noted that the "District Court properly looked to the examination pass rate for black candidates, not the number of actual promotions . . . ."). Moreover, the Court found that the City's use of the "rule of three" (where the top three candidates were considered for each promotion) did not make a difference here where the Chief always promoted the candidate with the top score.
 
The City also disputed that there was any unlawful disparate impact based on race in the captain promotions. It challenged the trial court's refusal to instruct the jury that the plaintiffs must prove that the City was the "unusual employer" that engaged in reverse discrimination. However, the Court found that this objection was waived by not raising it during the charge conference even though it had raised this argument at the summary judgment stage. Moreover, the Court explained that it has had misgivings about the "unusual employer" rule and had never applied it in a disparate impact case where motive – unlike in disparate treatment cases – is irrelevant.
 
While the Court was sympathetic to the City's argument that not all of the plaintiffs would have been promoted in the absence of discrimination, all of them had proven a likelihood to prevail on the merits. 
 

Assuming, for argument's sake, that the City correctly estimates that the average candidate in this case would have only a 29% chance of promotion, there is no way for the district court to give each candidate 29% of a promotion while waiting for a final judgment. Additionally, the City has provided no basis on which to distinguish between worthy and unworthy Plaintiffs.

Given that Plaintiffs have demonstrated a substantial likelihood of success on the merits as to liability and there is no way to provide a partial injunctive remedy, there is a sufficient likelihood of success as to individual promotions to warrant a preliminary injunction.

The Court also rejected the City's argument that the plaintiffs had failed to show irreparable injury because of a possible award of back pay. "Among other things, the district court noted that, without promotions, Plaintiffs will be unable to gain experience and unable to seek the next rank during the following round of testing." Moreover, "this Court has previously found that promotion delays constitute irreparable injury for firefighters."

 The Court also rejected the City's argument that 10 minority non-plaintiff officers would be harmed by promoting 8 older, white plaintiffs officers ahead of them because the City failed to explain whether the 10 non-plaintiffs would be promoted in the absence of the Court's order and because the City failed to prove that the harm would be caused from the Court's order rather than its own inaction in halting all promotions during the pendency of the litigation.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

 

EEOC Releases Statistics Showing Busy FY 2009 Which Favored Employers

Earlier this month, the EEOC released its Fiscal Year 2009 statistics which showed a slight decrease in the number of discrimination charges filed with the agency compared to the prior fiscal year. In terms of the type of allegations, 36% alleged race discrimination, 36% retaliation, 30% sex discrimination, 24% age discrimination and 23% disability discrimination.(Obviously, some Charges alleged more than one factor). Interesting, the EEOC disclosed that it dismissed over 60% of all charges filed after an investigation as lacking reasonable cause of discrimination. Almost 20% of Charges are closed administratively because the Charging Party ceases cooperating or could not be located, etc. Ten percent of cases were closed with settlement and almost 6% of cases resulted in a withdrawal of the Charge with benefits to the Charging Party. Only 4.5% of all charges filed were found to show probable cause of discrimination following an investigation. Nonetheless, the EEOC obtained almost $300M in benefits through settlement, mediation, and litigation for successful Charging Parties, an increase over FY 2008.

Insomniacs can read more about the statistics at http://www.eeoc.gov/eeoc/newsroom/release/1-6-10.cfm.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces Record Increase in Filings of Charges of Discrimination

Yesterday the EEOC announced “that workplace discrimination charge filings with the federal agency nationwide soared to an unprecedented level of 95,402 during [the 2008] Fiscal Year” (which ended in September). This is a 15% increase from last year. “The FY 2008 enforcement and litigation statistics, which include trend data, are available online at http://www.eeoc.gov/stats/enforcement.html.”

According to the FY 2008 data, all major categories of charge filings in the private sector (which includes charges filed against state and local governments) increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges. The surge in charge filings may be due to multiple factors, including economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of the law, EEOC’s focus on systemic litigation, and changes to EEOC’s intake practices.

In particular, there were 95,402 total discrimination charges filed in the last fiscal year (compared to less than 83,000 in FY 2007), including 33,937 race discrimination, 28,372 sex discrimination, 10,601 national origin discrimination, 3,273 religion discrimination, 32,690 retaliation, 24,582 age discrimination, 19,453 disability discrimination and 954 Equal Pay Act Charges filed.

The FY 2008 data also show that the EEOC filed 290 lawsuits, resolved 339 lawsuits, and resolved 81,081 private sector charges. Through its combined enforcement, mediation and litigation programs, the EEOC recovered approximately $376 million in monetary relief for thousands of discrimination victims and obtained significant remedial relief from employers to promote inclusive and discrimination-free workplaces.

Insomniacs can read the full press release at http://www.eeoc.gov/press/3-11-09.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Sixth Circuit Rejects Disparate Impact Sex Discrimination Claims of Employees Laid Off in RIF by Columbus Moving Company.

Today, the Sixth Circuit affirmed the dismissal of sex discrimination claims brought by four terminated female employees who alleged that their employer’s reduction in force disproportionately affected women by focusing the RIF on predominately female departments. Shollenbarger v. Planes Moving & Storage, No. 06-4454 (10/21/08). In particular, the plaintiffs alleged that the RIF resulted in the termination of twelve women and only one man even though 53% of the employer’s total workforce consisted of women. At one point in the Court’s opinion, it noted that “the odds of selecting 12 women from the [employer’s] entire non-management labor pool is 0.1%.” Nonetheless, because the employer articulated a legitimate business justification for focusing its RIF on the predominately female departments, “statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

According to the Court, “[p]rior to the RIF, [the employer’s] non-management workforce comprised 120 women and 86 men, split into several departments. Management
comprised 18 women and 35 men. So, there were 259 total employees (53% female).” The employer then focused its RIF on certain departments: “Customer Service; Credit & Collections; Operations; and Billing & Rating. Of the 101 total employees in these departments, 90 were women and 11 were men, meaning that the departments were 89% female. Meanwhile, [the employer] excluded from the RIF its other departments: Warehouse; Movers & Packers; and Drivers. These departments consisted of 30 women and 75 men (105 total), meaning that they were only 29% female. [The employer] delegated to the individual department managers the decision of which employee(s) from their departments to lay off, using criteria of conduct, performance, reliability, and seniority. Ultimately, [the employer] laid off 12 women and one man.”

“The plaintiffs first challenged [the employer’s] ‘particular employment practice’ of selecting only certain (predominantly female) departments for the RIF. . . . The plaintiffs contend that the statistics . . . show a disparity and we agree. At this step in the analysis — the prima facie step —[the employer’s] reasons for selecting certain departments is immaterial; the only questions at this point are whether there was an identifiable disparity and, if so, whether the challenged employment practice (i.e., the selection of certain departments) could have caused the disparity. Based on a rudimentary statistical analysis, we answer both in the affirmative. If [the employer] had randomly selected one employee for layoff from its entire non-management labor pool (i.e., all departments), it would have had a 58% chance (120/206) of selecting a woman. By targeting only certain departments, the likelihood of selecting a woman increased to 89% (90/101). More telling is that the odds of selecting 12 women from the affected departments is 23%, whereas the odds of selecting 12 women from the entire non-management labor pool is 0.1%. We find this to be a sufficient disparity to demonstrate a disparate impact from the decision.”

Because the plaintiffs met their prima facie burden, “ the burden shifts and [the court] must consider whether [the employer] set forth a legitimate business justification. [The employer] explained that its declining business necessitated the RIF and that some departments were affected more that others; specifically, those employees who dealt most directly with customers were the most affected. In addition, the predominantly male, unaffected departments were staffed largely with seasonal workers (typically high school and college students) who had already left at the end of the peak summer season. And, there was no decline in the business being done by the warehouse. We conclude that the challenged employment practice of subjecting only certain departments to the RIF had a legitimate business justification.”

“Because [the employer] clearly met its burden of showing a legitimate business justification, the burden shifts back to the plaintiffs to show that “other tests or selection devices, without a similarly undesirable . . . effect, would also serve the employer’s legitimate [business] interest.” The plaintiffs argued that “there wasn’t any exploration of alternatives to these layoffs at all.” But, this is a misunderstanding of the standard and, hence, completely irrelevant. plaintiffs were obligated to prove equally effective alternatives and — although they offer alternatives to a RIF in general — they offer no alternative to subjecting only the particular, selected departments to the RIF. The purpose of this step is not to second guess the employer’s business decisions, it is to show — by pointing to obviously ignored alternatives — that the “particular employment practice” was actually pretext for discrimination.” Once the decision to focus the RIF on certain departments, the statistical anomalies disappear: “The RIF was 92% female (12/13), which is perfectly consistent with a random selection from an 89% pool. Statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0631n-06.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Dismisses ADEA Claims by Employees Who Claimed They Were Terminated For Budget Reasons Rather than For Violating Confidentiality Policy.

Today, the Sixth Circuit affirmed the dismissal of claims by two employees who alleged that they had been terminated on account of their age because the new CEO had sought to increase turnover among (more expensive) employees with more seniority so that he could hire less expensive, newer employees. Allen v. Highlands Hospital Corp., No. 07-6414 (10/21/08). The plaintiffs admitted to the conduct which the hospital explained motivated it to terminate their employment, but the plaintiffs denied their conduct was the actual reason for their termination. Indeed, the court was sympathetic that the plaintiffs had not actually violated patient confidentiality as alleged, but still gave more weight to the hospital’s argument that it held an honest belief that the plaintiffs had violated its HIPAA policy based on a thorough investigation by the human resources department. In any event, the court found that there was no evidence that the hospital’s business strategy to reduce its budget for employee compensation had a disparate impact on older employees and did not constitute direct evidence of age discrimination.

The plaintiffs were terminated for violating the hospital’s HIPAA policy when one of the plaintiffs obtained the x-rays of her own granddaughter (at the parent’s request) from the other plaintiff without having a signed authorization from the parent of the granddaughter. The grandmother plaintiff had been told by another employee that the parent’s signature was mandatory, but there was no written policy governing the situation. Moreover, the plaintiff grandparent then forged the parent’s signature on the authorization form, back-dated the form and placed it in the medical record (which may have shown knowledge of her own guilt in violating an unwritten policy). Both employees were terminated for violation of the HIPAA policy, which the hospital considered to be a major offense.

The Court acknowledged that the hospital’s actions in this case were unduly harsh: “the facts of this case are not a “textbook example” of a privacy violation for which a hospital would usually take such serious action against its long-time employees. The record shows that [plaintiff] was not only the biological grandmother of the patient, but also was involved in her care and guardianship (although [plaintiff] was admittedly not [the granddaughter’s] legal guardian). Moreover, [the hospital] does not dispute that [the mother], as [the granddaughter’s] mother and legal guardian, in fact gave [plaintiff] verbal authorization to retrieve the x-rays. The plaintiffs have thus undoubtedly pointed to a weakness in the Hospital’s policy, if for no other reason than that this case highlights the potential ambiguity caused by the lack of detail in the employee manual’s prohibition against an unauthorized release. But the fact that the Hospital would benefit from developing a more detailed policy on this issue does not mean that [the plaintiffs] have succeeded in creating a genuine issue of material fact about whether HHC’s stated reason for terminating them was a pretext designed to hide age-based discrimination. We thus agree with the Hospital that, in determining if the plaintiffs have raised a genuine issue of material fact as to pretext, we should consider not whether [the plaintiffs] actually breached patient confidentiality, but rather whether the Hospital had an honestly held belief that they had committed a Group I offense.”

To support their age discrimination claims, the plaintiffs produced evidence that the hospital’s new CEO sought to increase employee turnover among more senior (and presumably more expensive) employees. According to the court, the hospital’s budget manager testified “one of [the CEO’s] strategies was to terminate employees based on seniority to facilitate the hiring of new, less costly employees. In fact, [the CEO] increased the annual turnover rate from 2% to 28%. [The budget manager] did not know whether the cost-cutting measures had a disproportionate effect on older employees, but she said that [the CEO’s] focus was at all times on improving HHC’s financial situation.” In any event, the Court of Appeals found that this testimony did not constitute direct evidence of age discrimination.

“Indeed, the Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), has specifically held that the strategies discussed by [the budget manager] are permissible methods for employers to cut costs: When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age . . . . On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee’s age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’”

Moreover, the court found insufficient evidence that the CEO’s budget practice had a disparate impact on older workers either. The hospital’s expert produced evidence that the hospital’s increased turnover did not result in a disproportionate reduction in the number of employees over the age of 40. “ Nor is the plaintiffs’ disparate-impact claim salvaged by the allegation that the number of terminations of those over 40 years of age increased from 14.3% to 62.5% of all terminations between 2002 and 2003. As the district court noted, this data is not statistically significant because the pools from which those percentages were drawn were very small—i.e., there were only 21 terminations in 2002 and 16 terminations in 2003.”

Finally, “[t]he plaintiffs, however, have failed to satisfy their burden of isolating and identifying a specific employment practice that disproportionately impacts employees who are at least 40 years old. As we have already explained, the plaintiffs have at best alleged that HHC desired to reduce costs associated with its highly paid workforce, including those costs associated with employees with greater seniority. But the plaintiffs have not established that this corporate desire evolved into an identifiable practice that disproportionately harms workers who are at least 40 years old. Because Allen and Slone have simply “point[ed] to a generalized policy,” as opposed to specific practice, they have therefore failed to raise a genuine question of material fact with respect to their disparate impact claim.”

The plaintiffs also produced evidence that a the supervisor of a hospital contractor told one of its employees that the employee should start looking for another job because it looked as though all of the older employees would be let go. The court also rejected this as direct evidence that the plaintiffs were terminated on account of their age because the solitary statement was not made by their supervisors and was, instead, made in connection with another employer.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0381p-06.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Reports Record Number of Charges Being Filed by, and Financial Recoveries for, Employees in 2007

Yesterday, the EEOC announced that it “received a total of 82,792 private sector discrimination charge filings last fiscal year, the highest volume of incoming charges since 2002 and the largest annual increase (9%) since the early 1990s. . . . The data, available online at www.eeoc.gov/stats/charges.html, also show that the EEOC recovered $345 million in monetary relief for job bias victims.” The monetary relief is also a record high.

Rather than attributing the increased volume in Charges – which are only unproven allegations -- to a slowing economy and employment insecurity, the EEOC attributes the uptick to a resurgence in employment discrimination: “Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively,” said Commission Chair Naomi C. Earp. “To ensure that equality of opportunity becomes a reality in the 21st century workplace, employers need to place a premium on fostering inclusive and discrimination-free work environments for all individuals.” Nonetheless, the EEOC conceded that “[t]he jump in charge filings may be due to a combination of factors, including greater awareness of the law, changing economic conditions, and increased diversity and demographic shifts in the labor force.”

“According to the EEOC’s FY 2007 data, allegations of discrimination based on race, retaliation, and sex were the most frequently filed charges, continuing a long-term trend. Additionally, nearly all major charge categories showed double digit percentage increases from the prior year -- a rare occurrence.

The EEOC also reported that “for the first time, retaliation was the second highest charge category (behind race), surpassing sex-based charges in total filings with EEOC offices nationwide. Historically, race has been the most frequently filed charge since the EEOC became operational in 1965. In addition to the statutory bases of discrimination, charges filed with the EEOC and state and local Fair Employment Practices Agencies (combined) also trended upward for the high visibility issues of pregnancy discrimination and sexual harassment.”

“During FY 2007, pregnancy charges surged to a record high level of 5,587, up 14% from the prior fiscal year’s record of 4,901. Sexual harassment filings increased for the first time since FY 2000, numbering 12,510 – up 4% from the prior fiscal year’s total of 12,025. Additionally, a record 16% of sexual harassment charges were filed by men, up from 9% in the early 1990s. Other year-end statistics released today show that the EEOC:
· Recovered approximately $345 million in total monetary relief for charging parties, up 26% from the prior year’s total of $274 million. Nearly $55 million was obtained through EEOC litigation and more than $290 million through administrative enforcement, including mediation. Additionally, the agency obtained substantial non-monetary relief, such as employer training, policy implementation, reasonable accommodations, and other measures to promote discrimination-free workplaces.
· Resolved 72,442 private sector charges, with a historically high merit factor rate of 23%. Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation. Most meritorious charges are resolved voluntarily with employers prior to any EEOC litigation.
· Filed 336 merits lawsuits (direct suits, interventions and other enforcement actions), including 116 class cases involving multiple aggrieved parties or victims of discriminatory policies. Significant injunctive and remedial relief was also achieved through litigation settlements, jury trials and court rulings. The agency’s litigation program increasingly focused on class and systemic cases as part of its national law firm model.
Insomniacs can read the full press release at http://www.eeoc.gov/press/3-5-08.html.