EEOC Announces Consent Decree Settling Sex Discrimination and Retaliation Suit With Two West Virginia Employers and Obtaining $115K for Three Women.

Yesterday, the EEOC announced that it had reached a $115,000 settlement in a sex discrimination lawsuit it had filed against West Virginia employers, Brooks Run Mining Company and staffing firm Neal & Associations, in federal court (Case No. 5:08-CV-0071). In its lawsuit, the EEOC had alleged that the defendant employers violated Title VII when female “security guards as a class were discriminated against because of their sex. The EEOC asserted that once the women complained about sexual harassment, they were prevented – either by layoffs or transfers – from working at the Brooks Run Cucumber mine site, although security jobs were available to men.”

According to the EEOC, “the three-year consent decree settling the suit provides for a monetary settlement to three women” who were “former security guards at the Cucumber mine site. In addition to monetary relief, the decree provides for significant remedial relief, including promoting supervisor accountability. The settlement also requires yearly training for all management staff on employee rights and employer obligations under federal and state anti-discrimination laws, with an emphasis on sex discrimination.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/6-11-09a.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. 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.

Ohio Department of Insurance Explains How Ohio’s Newly-Amended Mini-COBRA Coordinates with Federal Stimulus Act.

Last week, the Ohio Department of Insurance issued guidelines about how employees of small employers (i.e., 20 or fewer employees) who are involuntarily terminated may qualify for continued health insurance that is 65% subsidized by the federal government. Governor Strickland signed legislation which amended Ohio’s mini-COBRA (at Ohio Revised Code §3923.38 and §1751.53) and will affect health insurance policies issued or renewed for small employers after April 1, 2009. Among other changes, the statute extends the continuation period from six months to one year. The Department of Insurance also includes model notices on its website which all small employers and non-ERISA self-insured employers must use to notify laid off and other involuntarily terminated employees of their rights under the American Recovery and Reinvestment Act (“ARRA”) to continue their health insurance with 65% of the cost subsidized by the federal government. Insurers are also required to notify employees receiving continuation coverage since February 17 of their ARRA rights.

Unlike the subsidized COBRA continuation under the ARRA, under Ohio’s mini-COBRA, small employers are not required to front 65% of the insurance premium; rather, the insurance company will handle the former employee’s continuation payments and also receive the tax credits. Also unlike the federal ARRA, employees of small Ohio employers do not get a free “do-over” or extended eligibility period if they failed to elect continuation coverage within the deadlines right after they were terminated.

Insomniacs may read the full Department of Insurance revised guidelines at http://www.ohioinsurance.gov/ConsumServ/COBRAStimulusSmallEmployers.pdf. The DOI’s model form can be accessed at http://www.ohioinsurance.gov/ConsumServ/COBRAContinuationCoverageElectionNotice.doc. Other information about ARRA and Ohio’s mini-COBRA law are available at http://www.ohioinsurance.gov/ConsumServ/COBRA.htm.

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.

Ohio Supreme Court: Ohio Legislature Can Prohibit Local City Residency Requirement for Own Employees.

This morning a divided Ohio Supreme Court ruled that the Ohio General Assembly can prohibit political subdivisions and municipalities – including those organized under home rule charters – from requiring city employees to reside within city limits. Lima v. State, 2009-Ohio-2597. In that case, the challenged state statute -- Ohio Revised Code § 9.481(B)(1) -- states that “no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.” The cities of Lima and Akron challenged the constitutionality of the statute, which conflicted with local ordinances. However, the Court’s majority upheld the constitutionality of the statute: “R.C. 9.481 was enacted pursuant to Section 34 and that it prevails over conflicting local laws, because no other provision of the Constitution can ‘limit or impair’ laws enacted pursuant to Section 34.”

Insomniacs can read the Court’s full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2597.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: Title VII Does NOT Protect Family and Friends of Charging Parties

This morning, a divided en banc Sixth Circuit reversed a prior panel decision rendered on March 31, 2008 in Thompson v. North American Stainless, LP, and held that Title VII only protects from retaliation individuals who have engaged in protected conduct (i.e., filed a Charge of Discrimination, opposed discrimination or participated in an investigation, etc.) and does NOT protect the family members and friends of individuals who have engaged in protected conduct. (The earlier decision was summarized here on April 10, 2008 at Sixth Circuit: Title VII Protects Family and Friends of Employees who File EEOC Charge).

As previously explained, the employer was alleged to have fired the plaintiff just three weeks after his fiance filed a Charge of Discrimination with the EEOC against the employer. He did not allege that he personally had engaged in any protected conduct, but rather, that his termination was in retaliation for the protected conduct of his fiance. In turn, the employer asserted that he was terminated because of his job performance.

The Court examined the anti-retaliation language in Title VII:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

There was nothing in this language about protecting individuals who did not engage in any protected activity under the Act. The majority found the language clear and unambiguous and elected to defer to Congressional intent to not enlarge the protected class of individuals under the statute.

In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.

. . .

In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action.

However, the court recognized the tension with the policy argument endorsed by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), when it stated:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Nonetheless, the Court distinguished Burlington because the plaintiff in that case had engaged in protected conduct and the question presented to the court was the scope of retaliatory behavior. "We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary
actor who engaged in protected activity and not by a passive bystander."

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0202p-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. 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.

Ohio Supreme Court: All State Age Discrimination Claims Are Governed by § 4112.14(C)’s Deference to Arbitration Procedures and Cannot Be Re-Litigated.

This morning, the Ohio Supreme Court held in Meyer v. United Parcel Service, Inc., that the prohibition in § 4112.14(C) on pursuing an age discrimination lawsuit when an arbitration remedy is otherwise available to the plaintiff applies to all age discrimination claims brought under Ohio Revised Code Chapter 4112. If this seems complicated, that is because it is.

In Meyer, the plaintiff was fired – for a third time – by UPS after 25 years of employment. Having been reinstated twice before by using the grievance process in the collective bargaining agreement, he again filed a grievance, but it was denied and his discharge was upheld – by a panel of union members and management -- for being due to just cause under the bargaining agreement. He also filed a lawsuit alleging workers compensation retaliation and later amended his complaint to add claims for age discrimination (in that he was replaced by an employee decades younger than himself) under Ohio Revised Code § 4112.99 and public policy. Both claims were tried to a jury and he was awarded $336,208 in back pay, punitive damages and pre-judgment interest and $135,147 in attorney fees and court costs. On appeal, the appellate court ruled that the workers compensation claim should not have been tried to a jury, but rejected the employer’s argument that the §4112.99 age discrimination claim should have been barred by the arbitration prohibition provision in §4112.14(C) and remanded the case to the trial court. The employer appealed to the Supreme Court, which agreed only to resolve the dispute involving the age discrimination claim.

Under Ohio law, plaintiffs may chose between a variety of age discrimination statutes. Section 4112.02(N) provides that an

aggrieved individual may enforce the individual’s rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one hundred eighty days after the alleged unlawful discriminatory practice occurred, in any court with jurisdiction for any legal or equitable relief that will effectuate the individual’s rights. (italics added).

This provision authorizes compensatory and punitive damages for successful plaintiffs. However, a plaintiff who files a lawsuit under §4112.02(N) “is barred, with respect to the practices complained of, from instituting a civil action under section 4112.14 of the Revised Code and from filing a charge with the commission under section 4112.05 of the Revised Code.”

Section 4112.05 permits individuals to file Charges of Discrimination with the Ohio Civil Rights Commission within six months of the alleged discrimination.

Section 4112.14 (formerly codified at § 4101.17) prohibits age discrimination in hiring and firing, permits the filing of a lawsuit by an aggrieved employee or applicant, and provides reinstatement, back pay and attorneys fees to successful plaintiff. However, plaintiffs who file under § 4112.14 may not file a Charge of Discrimination with the Ohio Civil Rights Commission or file a lawsuit under § 4112.02(N). This section also provides that the remedies available “are coexistent with remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code,” but it seems unlikely that plaintiffs under §4112.14 may obtain compensatory or punitive damages. In addition, when this statute was codified at § 4101.17, the statute of limitations for these age discrimination claims were held to be six years. Since this statute was recodified at § 4112.14, it is no longer clear whether the limitations period for claims brought under § 4112.14 are still six years, but the Supreme Court has refused to confirm this or limit the claims to 180 days as in §4112.02(N). Importantly for the Meyer case, § 4112.14(C) provides that § 4112.14 lawsuits and other lawsuits brought

pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause. (italics added).

Notably, § 4112.14(C) does not specifically address claims brought under § 4112.99 (but, rather, addresses only claims brought under §§ 4112.01 to 4112.11).

Section 4112.99 provides that “Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.” This is a general statute and must be paired with a more specific statute, like §4112.02(N) or § 4112.14. In any event, this general provision authorizes compensatory and punitive damages regardless of whether it is paired with more specific statutes like § 4112.02(N) or § 4112.14. This is important because there is an argument that §4112.14 does not otherwise authorize compensatory or punitive damages. Plaintiffs who bring an action under § 4112.99 need not specify which more specific statute supports their claims.

In Meyer, the Court held that age discrimination lawsuits may not be brought “where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.” Therefore, even if the employee filed a lawsuit within 180 days under §4112.02(N) and even thought that statute does not mention arbitration proceedings, that age discrimination lawsuit is still governed by § 4112.14(C). In addition, even though Meyer’s grievance was not arbitrated by a single arbitrator, the bargaining agreement’s grievance procedure was equivalent to an arbitration and, thus, was covered by § 4112.14(C) arbitration clause.

Friends of the court filed briefs in the Meyer case urging the Court to address other questions posed by §4112.14, such as the length of its limitations period and whether it authorizes compensatory and punitive damages. However, the Court declined to do so. Instead, the reasoning of the Court was that all age discrimination claims brought under §4112.99 are subject to §4112.02(N) and §4112.14 and because §4112.14(C) prohibits age discrimination claims where the plaintiff had arbitration available to him or her, no age discrimination claims can be brought under §4112.99 if an arbitrator – or effective equivalent – upheld the discharge under a just cause standard. This might indicate that plaintiffs should only file claims under §4112.02(N) and not mention § 4112.99, but the syllabus of the Court’s opinion – which states the law of the case – does not limit its holding to §4112.99 claims. Rather, the syllabus refers to all age discrimination claims.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2463.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.