We Have Moved!

Two interesting cases are being argued this week in the Supreme court:

On Tuesday, the Court is scheduled to hear argument in Gomez-Perez v. Potter (06-1321), on whether the Age Discrimination in Employment Act bars retaliation by public employers for the filing of age discrimination complaints.

On Wednesday, the Court is scheduled to hear oral argument in CBOCS West v. Humphries (06-1431), on whether employees may bring race retaliation claims under 42 USC 1981.

In Gomez-Perez v. Potter, Myrna Gomez-Perez, a 45-year-old employee of the U.S. Postal Service, filed an age discrimination complaint after her supervisor denied her transfer request. After filing her complaint, Gomez-Perez alleges her supervisors and co-workers retaliated against her, and that her hours were drastically reduced. She appealed a summary judgment ruling against her in the U.S. District Court for Puerto Rico, which did not reach the question of whether the ADEA’s private cause of action for federal employees alleging age discrimination implicitly includes a retaliation cause of action.

On appeal, the First Circuit noted that the parallel ADEA provision governing private employers expressly provides for retaliation claims and reasoned that Congress would have said so explicitly had it intended for a similar cause of action against federal employers. The Court was not persuaded that Congress meant to prohibit “discrimination and retaliation” when it said merely “discrimination,” and held that the ADEA does not include a cause of action for retaliation by federal employers.

In the Humphries case, Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant, alleged that he was fired because he complained about his supervisor’s racially discriminatory behavior. Humphries’s claims under Title VII were dismissed for procedural deficiencies, but the Seventh Circuit held that Section 1981 authorizes suits where employers retaliate against employees complaining of racial discrimination, and Humphries should be allowed to proceed under that statute.

At the Supreme Court, the company argues that there is disagreement in the lower courts over whether Section 1981 in its amended form includes retaliation in its ban of racial discrimination in contractual relations. The company argues that under a straightforward reading of the statutory text, employer conduct is not actionable under Section 1981 unless it is racially motivated, and noted that a retaliatory termination is based on an employee’s conduct (the allegation of racial discrimination), not on the employee’s race.

In his opposition brief, Humphries asserted the correctness of the Seventh Circuit ruling and also noted language in the legislative history of the Civil Rights Act of 1991 indicating Congress intended to expand Section 1981’s scope to claims of “harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” The brief also disputed that the courts are inconsistently interpreting the amended statute, noting that all eight circuits to address the issue have held that Section 1981 prohibits retaliation.

Sources: ScotusWiki, which utilized material obtained from ScotusBlog.

Yes friends, it’s time once again to issue our Questionable HR Management Award Grand Prize. As you know we periodically hand out this prestigious award to a company that has shown particularly bad HR judgment and a complete lack of common sense.

Today the award goes to Packaging Corporation of America in Counce, Tenn. for its inadvisable termination of an employee in response to said employee’s election to the Mississippi State Senate. According to the Clarion Ledger, Freshman state Sen. Eric Powell learned two days after his swearing-in last week that he had been fired from his regular job. Powell, said his firing came as a result of his election as a state senator in Mississippi.

“All of a sudden, with no phone call or anything, just a letter in the mail after 11 1/2 years of service,” said Powell, who is married and has three children. “That’s the kind of thanks I get for hard work and loyalty. It’s the kind of thing I came to the Senate on behalf of working people to fight.”

Labor Prof Blog, who put me on to the story, noted that it seems pretty clear that the termination was directly related to Mr. Powell’s election. This was especially boneheaded given the fact that the company initially encouraged Powell in his run for office.

Now thanks to this bizarre HR snafu, instead of having an employee in the state senate, PCA likely has:

1) a union grievance (Powell was a union member and the collective bargaining agreement specifically allows for employee leave when running for public office and only requires resignation if the office obtained is a full-time job);

2) a lawsuit (many states have statutory prohibitions on retaliation against employees for serving in public office); and

3) a state senator that is less than enamored with the company.

We therefore proudly award Packaging Corporation of America our Questionable HR Management Award! Feel free to print out the award emblem and wear it with pride.

The House voted Tuesday to reverse the Supreme Court’s Ledbetter decision limiting the time that workers have to sue their employers for pay discrimination. The House voted 225-199 to restart the statute of limitations for pay discrimination lawsuits each time an employee gets a paycheck affected by sexism or racism, repudiating a decision by the high court’s five most conservative justices.

The Bush administration has threatened to veto the legislation.

Source: Washington Post

Legislation has been introduced in the U.S. House in response to the U.S. Supreme Court’s recent Ledbetter decision that said victims of pay discrimination lose their right to sue 180 days after the company’s initial pay decision is made, even if the employee does not learn of the discriminatory treatment for years.

Rep. George Miller is sponsoring the Lilly Ledbetter Fair Pay Act, which would expand the time in which a plaintiff has a legal right to sue for back pay.

The court last month ruled in a 5-4 decision that Ledbetter, according to existing statutes, had to have filed her claim within 180 days of the first evidence of discrimination — essentially the first paycheck in which she earned less than her male peers. Ledbetter didn’t learn of her pay differential until years later.

The bill proposed by Miller would give workers the right to file claims within 180 days of the issuance of any discriminatory paycheck.

Today the Supreme Court split 5-4 in rejecting a worker’s claim of unequal pay, finding that the time for filing such a lawsuit under Title VII begins running with the original decision on a pay differential and ends 180 days later. The majority rejected the arguement that in pay cases there is no new violation each time a later paycheck is issued.

Relevant Links:
Court’s Opinion
Petitioner’s Brief
Respondent’s Brief
National Employment Lawyers Assoc. Amicus Brief
NPR Coverage by Nina Totenberg

A major employment case under review by the U.S. Supreme Court is headed for dismissal just a week before justices were to have heard arguments, Washington lawyer Tom Goldstein said Wednesday. The government had sued BCI Coca-Cola Bottling Co. over the firing of a black employee in what lawyers refer to as a “cat’s paw” case. BCI planned to ask the Supreme Court on Thursday to dismiss the company’s appeal, according to BCI’s attorney.

Link to the story.

We continue to follow the progress of this “Cat’s Paw” theory case through the Supreme Court. This past week the Petitioner in BCI Coca-Cola Bottling Co. v. EEOC filed its brief on the merits. As we have previously noted, the issue in this case involves the question of whether an employer is liable for discrimination in a discharge case where the decision-maker making the discharge decision had no discriminatory animus, but the discharged employee’s direct supervisor (who provided information acted on by the decision-maker) arguably did. Thomas Goldstein with my former firm, Akin Gump Strauss Hauer & Feld, is co-counsel for the Petitioner with E. Todd Presnell of Miller & Martin in Nashville. Oral argument is scheduled for April 18th.

EEOC v. BCI Coca-Cola Bottling Co. is a case out of the 10th Circuit involving the so-called “cat’s paw” theory of liability. Put simply, it involves the issue of whether an employer is liable for discrimination in a discharge case where the decision-maker making the discharge decision had no discriminatory animus, but the discharged employee’s direct supervisor (who provided information acted on by the decision-maker) arguably did.