Employer's Suggestion To Employee To Quit Not Necessarily A Constructive Discharge, April 27, 2005

by Kevin J. Allis

A teen-age food server employed at a Pennsylvania home for retired priests was not subjected to an adverse employment action when given the suggestion from a supervisor that she should quit. Uncomfortable with events occurring on the job, the teen-age employee, and her parents, met with management. During the meeting, it was suggested by management that if she was uncomfortable with working at the facility, she could resign. After the meeting, and at home, the employee decided to quit her job.

The family filed a sexual harassment and retaliation claim in federal court. Both claims depended upon the ability to prove a "constructive discharge." The Third Circuit found the suggestion to resign completely benign. To find constructive discharge, a court must find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. The court found that management immediately addressed the problem and made efforts to abate the teen-age employee's complaint. Since the problem was abated, and such conditions were not allowed to continue, and given the benign nature of the suggestion to resign, the young employee was not constructively discharged. Therefore, her employment discrimination claims, which required the proof of a discharge, were dismissed.

The Whopper Escapes- Judge Rules Not Enough Discrimination to Equal a Pattern or Practice Of Sexual Discrimination By A Burger King Chain, April 22, 2005

by Sarah C. Chernish

On April 20, 2005 a federal judge in Syracuse, N.Y., ruled that the Equal Employment Opportunity Commission (“EEOC”) had failed to show a pattern or practice of sexual harassment at the approximately 350 Burger King restaurants in 16 states owned by Carrols Corp. The EEOC had alleged that Carrols Corp had a pattern or practice of failing to remedy sexual harassment, retaliating against employees who complained about it, and/or of constructively discharging employees by failing to remedy hostile work environments. In granting summary judgment to the restaurant chain, Judge Frederick J. Scullin found that the statements submitted by claimants and witnesses showed "that only 333 out of 90,835, or .367%, of the women whom [the restaurant chain] employed between 1993 and 2001 have alleged claims which, if proven, could constitute sexual harassment" which fell way short of what is required to establish pattern or practice.

The EEOC's asserted that a statistical approach was inappropriate for analyzing the claim because victims systematically under-report sexual harassment. The Judge disagreed saying that due to the turnover rates at the restaurants, the majority of women employed by the restaurant chain between 1993 and 2001 were no longer working for the company in 2001, so any potential retaliation or intimidation that these women might face would be relatively minor. Thus there was no basis to conclude that the number of EEOC submissions reflected a systematic under-reporting of sexual harassment. The Judge also rejected the EEOC’s claim that multiple discrete incidents at various restaurants should be considered cumulative because he noted that most employees did not work at more than one restaurant and had little or no knowledge of what went on at other sites so the occurrences at one restaurant could not contribute to a hostile environment at another.

Additionally, at least for purposes of a summary judgment motion, the Judge refused to accept the restaurant chain’s contention that pattern or practice claims cannot be brought for hostile environment sexual harassment. Proving a pattern or practice of hostile work environment would require proof that an employer had a regular practice, policy, or procedure that an objectively reasonable person would perceive as condoning or tolerating an environment of severe and pervasive sexual harassment. The EEOC may proceed with sexual discrimination claims on behalf of individual current or former employees. Commission attorneys asserted that they have identified 511 claimants who were sexually harassed or subjected to a hostile work environment as well as another 308 potential claimants.

(EEOC v. Carrols Corp., N.D.N.Y., No. 5:98-cv-1772, 4/20/05).

Don’t Drink- Don’t Smoke—what Do Ya Do; Mormon Sues After Being Told His Religious Tenants Are A Detriment To His Ability To Sell Airplanes , April 20, 2005

by Sarah C. Chernish

Mike Kolman, a former sales director for Bombardier Aerospace Corp, will be paid $159,000 and receive a positive letter of reference under a consent decree his former employer reached with the Equal Employment Opportunity Commission. Kolman filed suit for religious discrimination under Title VII of the Civil Rights Act of 1964 alleging that he was subject to anti- Mormon remarks from his boss and then fired when he complained.

Kolman worked at Bombardier's Texas-based Business Jet Solution facility and he alleged that he was subjected to discriminatory comments about his Mormon faith by the vice president of sales. Kolman claimed that the Vice President told him that his religion was a detriment to his ability to sell business jets because he did not drink or smoke. The Vice President also told him that customers would be "highly offended" by Kolman's religious-based abstention from alcohol. Kolman filed a complaint reporting the discriminatory comments to the Company’s Human Resources department and he was fired eight days later. He subsequently filed a discrimination charge with EEOC. The EEOC agreed that religious discrimination had occurred and filed suit against Bombardier.

Although Bombardier denies Kolman’s charges and the determination of the EEOC, the company agreed to the terms of the consent degree. In addition to the award Kolman will receive, the Company has promised to take steps to guard against future violations including the training of managers, supervisors, and other employees on issues of religious and other types of discrimination; posting of a notice about the case; and distribution of the company's anti-discrimination policy. Supervisory and management employees will be required to attend at an annual two-hour training session for the three-year duration of the agreement.

(EEOC v. Bombardier Aerospace Corp., N.D. Tex., No. 3:03-CV-1904, consent decree approved 4/15/05).

$312,000 Verdict Affirmed for a Man Claiming Reverse Discrimination; Company’s Defense- He was ‘Bland and Boring'- Rejected, April 18, 2005

by Sarah C. Chernish

A White man claiming reverse race discrimination will be allowed to keep the $312,000 verdict recently awarded to him after he won his suit alleging he was fired and replaced by a Black woman who was not qualified to do his job. Douglas Clement, the former head of Human Resources in a Mississippi casino, had been with the casino for two years and had 14 years' experience in human resources, when he was replaced by Tami Tolliver, an African American female, who lacked the same experience.

Clements sued in the U.S. District Court for the Northern District of Mississippi, alleging reverse race bias under Title VII. The court ruled in his favor, in part because Clements had been told in October 2001 that he was going to lose his job "because of Barden Gaming's desire to 'diversify' " and that the owner of the casino had said, "if you look at our wall of managers here you'll see all white males ... so we're gonna have more women as managers and more African Americans as managers."

The U.S. Court of Appeals for the Fifth Circuit rejected the casino’s argument that because Clement was "bland" and "boring" it was justified in its employment decision and/or precluded from being charged with the $260,000 in punitive damages. The Fifth Circuit also upheld the lower courts judgment that the Casino had violated Title VII of the 1964 Civil Rights Act, and its order that the casino pay $32,000 in back pay and $20,000 in emotional damages in addition to the punitive damages.

(Clements v. Fitzgerald's Miss. Inc., 5th Cir., No. 04-60523, unpublished opinion 4/5/05),

Employee Fired After Returning from Iraq Awarded $385,000, April 14, 2005

by Frank L. Kollman

A federal trial court has awarded a returning veteran of the Iraq war nearly $400,000 in back pay and future earnings because he was fired 4 months after coming back to his job. The court acknowledged that the company had proven budgetary constraints, but concluded that the timing of the termination was just too close to his return. Duarte v. Agilent Techs. Inc., No. 04-B-0298 (D. Colo., March 31, 2005).

Under the Uniformed Services Employment and Reemployment Rights Act, employers have an obligation to re-employ returning veterans (and reservists), and not penalize them in any way for their military service. In most cases, unless the employee has engaged in serious misconduct upon his return, or the company had compelling reasons to terminate his employment, a decision to let the employee go will be a violation of the law.

Well, Of Course, April 13, 2005

by Frank L. Kollman

The AFL-CIO announced on April 11 its finding that when executives are paid "excessive amounts," those amounts come at the expense of working families. The AFL-CIO also cited that executive compensation is going up faster than the compensation of rank-and-file workers, 12% versus 3.6% in 2004.

If the Executives had their own organization, you can be sure that it would report that paying excessive amounts to rank-and-file workers comes at the expense of hard working executives. These executives might also point out that they are exempt from overtime and generally have a greater pressure to perform than a factory worker. Of course, there is no such organization, so the debate must end here.

Union Shop Clause Requires 14 to Be Fired, April 11, 2005

by Frank L. Kollman

In a "right-to-work" state, it is illegal for an employer and a union to enter into a union shop agreement. Under the National Labor Relations Act, a state can adopt a law barring union shop clauses, which require employees to join the union or be fired. In states that do not adopt such restrictions, however, union shop clauses are completely enforceable.

Fourteen nurses in Missouri found this out recently. They had refused to pay monthly union dues to the union to keep their jobs, and the employer refused to fire them under the union shop provision. The National Labor Relations Board ruled that the hospital violated federal law when it did so. As part of its order, the NLRB required the hospital to fire those 14 nurses. St. John's Mercy Medical Center, 344 NLRB No. 44 (2005).