Broadly speaking, federal protections against discrimination in the workplace serve Americans living in all 50 states. However, discrimination rules can be quite different if that discrimination took place on an Indian reservation. Many of these reservations exist as entities separate from the states, pursuant to federal law and treaties between the reservation and the federal government. As a result, victims of workplace discrimination on reservations often have to go through a different process in order to seek recourse.
While Congress does have the power to create and enforce federal law on Indian reservations, Congress also has the power to exempt Indian reservations from those same laws. For example, Indian reservations are exempt from Title VII of the Civil Rights Act and Title I of the Americans with Disabilities Act. These two acts combined comprise main sources of federal law governing race, gender, and disability discrimination in the workplace.
However, if you are a victim of discrimination on an Indian reservation, you may still have recourse. Some reservations voluntarily allow themselves to be regulated by the federal statutes from which they would otherwise be exempt, and even more reservations enter into agreements with the states in which they reside and voluntarily subject themselves to applicable state law protections for workers. You’re starting point, and best bet for a favorable outcome regarding your discrimination claim, is to become familiar with the constitution and laws of your particular reservation; see what, if any, local reservation laws have been violated; and investigate what administrative and judicial venues exist under reservation law. Often, a reservation will have its own administrative and judicial systems, with investigators, judges, and other judicial officials, to resolve employment disputes.
Smith v. Bayer, The buck does not stop here!
The Supreme Court on June 16th published a ruling with possible ramifications for plaintiffs seeking to certify a class in federal and state courts. Unlike in individual litigation, a class action requires the plaintiffs to demonstrate to the court a number of facts, including that there are other individuals who are similarly situated to the plaintiff and who were wronged in the same way as the plaintiff. During the litigation process, after the complaint is filed by the original plaintiff, the plaintiff will submit a motion to certify a class, thereby making his or her individual lawsuit into a class action.
This class action process can work on two levels: federal and state. There is a good amount of overlap between federal law and state law, and many times a plaintiff, or a class of plaintiffs, will have remedies under both. In Smith v. Bayer, the Supreme Court ruled that when a class certification is denied at the federal level, that does not necessarily spell the end of a class action lawsuit. Rather, a different potential plaintiff, even though similar to the first, may still bring a lawsuit under state law, and move to certify that class in state court, without interference from the federal court judge.
In Smith v. Bayer, the plaintiff brought a suit in federal district court in Minnesota, and was denied class certification. A different individual, wronged by Bayer in a similar way, brought a lawsuit in West Virginia state court and sought to certify a similar class there. Bayer went back to federal district court and was granted an order that prevented the state court from taking the case, ruling that this issue was already decided in federal court.
The Supreme Court recently held in Bayer that the Minnesota federal court erred and reasoned that it if a motion to certify a class has been denied in federal court, the court is saying that the potential plaintiffs differ too greatly from one another to be part of the same class. The same court cannot, then, prevent all other potential plaintiffs from seeking class certification at the state level, since denying them class certification indicates that the plaintiffs are sufficiently different, and therefore each deserves his or her day in court.
A crucial issue in this case is the difference in procedure for certifying classes between state and federal court. Let’s change the facts of Bayer such that the second, different plaintiff wanted to bring the class certification motion in federal court, the same venue that the first plaintiff brought the original class certification motion. The judge would likely look at the facts, and say that these facts are substantially the same as the first plaintiff’s attempt, and since all federal courts are bound to apply the same rules of procedure for certification motions, the second plaintiff would likely be out of luck. But the second Bayer plaintiff was not back in federal court- he brought his action in West Virginia state court, and each state has its own rules of civil procedure. Even though a state may have rules that are identical or nearly-identical to the federal rules, those state rules may be applied differently than their federal counterparts, and therefore federal courts will not preclude state courts from deciding procedural issues (such as class certification) using state procedures.
What are the practical implications for plaintiffs seeking class certification? After this Supreme Court ruling, federal courts will likely not be permitted to prevent a plaintiff from seeking class certification at the state level after a different, but similarly-situated plaintiff, was denied such certification in federal court. All this means for plaintiffs is that the federal court cannot stop the state court from hearing the case or deciding the class certification motion, but the state court may still decide that the federal court decided correctly, and deny the motion. Importantly, however, the state court retains the autonomy to make this decision.
Dukes, et al. v. Wal-Mart Stores, Inc.
The Supreme Court recently rejected the certification of a class of plaintiffs, consisting of all of Wal-Mart’s current and former female employees, in a Title VII gender discrimination suit against the retail giant. The plaintiffs in this case allege that Wal-Mart, the largest employer in America with over one million employees, discriminates generally against women in pay, job promotions, and in administering disciplinary actions.
Commonality Requirement
In this decision, the Supreme Court set forth and clarifies the appropriate standard for seeking class certification under Federal Rule of Civil Procedure 23, and specifically, the “commonality” requirement. In order to certify a class, the plaintiffs must prove that there are questions of law or fact common to the class. In the Court’s words, there must be a “common contention” that “must be of such a nature that it is capable of classwide resolution- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
The plaintiffs can satisfy this burden through one of two main ways, the Court held. First, the plaintiffs can assert that the employer used a “biased testing procedure” to evaluate its employees or applicants; or second, that the “employer operated under… a general policy of discrimination.” In proving a general policy of discrimination, plaintiffs may use anecdotal evidence from enough members of the potential class or expert evidence. The Court cited a case that it decided in 1982 as the basis for these two methods.
In this case, however, the plaintiffs fell short. They argued that rather than there being a policy of blatant discrimination, there was a policy of providing wide latitude to store, district, and regional managers, and this policy led to rampant gender discrimination. The Court concluded that this policy of manager autonomy is insufficient to prove commonality, since there is so much potential variation in the behaviors of each manager. The Court did note, however, that such a policy of autonomy is better-suited to showing disparate impact in proving an individual discrimination claim under Title VII, just not for class certification.
Additionally, the plaintiffs in this case only offered accounts of discrimination from forty potential members of the class, where the total number of potential individuals in the class was 500,000. That would have amounted to each account of discrimination representing 12,500 other potential members of the class, where the Court noted that in previous cases, a one-to-eight ratio was found to be permissible. Moreover, the expert in this case failed to make any compelling causal link to the “culture” at Wal-Mart that allegedly led to discriminatory conduct, and could not, with any specificity, demonstrate the impact of that discriminatory “culture” on management decisions.
With regard to commonality, this decision will likely not have a great impact on victims of gender discrimination in the workplace, or even to class actions alleging the same. The Supreme Court looked at the facts of this case and applied it against a standard that it first articulated in 1982 and determined, unfortunately, that they were not sufficient to sustain a class action in this particular case.
Backpay
The Court also tackles the issue of whether or not cases in which the plaintiffs seek backpay qualify for class certification under Rule 23(b)(2). The Court, unfortunately, has held that they do not, writing that this rule cannot be used to certify claims for monetary relief where the monetary relief is not incidental to the injunctive or declaratory relief. Individualized relief, including backpay, the Court goes on to write, does not satisfy Rule 23(b)(2).
The Court cites possible issues that could arise with plaintiffs attempting to minimize the importance of monetary damages in order to become eligible for class certification under Rule 23(b)(2), and reasons that some plaintiffs may unwittingly forfeit their right to compensatory damages when the class is certified in this manner. Importantly, the Court looks to the language of Title VII and finds that if Wal-Mart proves that if it took an adverse employment action against an employee for reasons other than discrimination, the court cannot order it to pay backpay. The Court then looks to the Rules Enabling Act, which states that courts should not interpret Rule 23 in any way that would “abridge, enlarge or modify any substantive right,” and concludes that certifying the class under Rule 23(b)(2) would take away Wal-Mart’s right to litigate its statutory defenses to each individual claim. Essentially, defendants such as Wal-Mart get to raise their affirmative defenses for each employee individually, without any courts’ reliance on “Trial by Formula.”
Ultimately, this Supreme Court ruling leaves plaintiffs with the option to certify their class under Rule 23(b)(3), which only imposes a handful more burdens, many of which are easily overcome, and allows plaintiffs to opt-out of the class to pursue their claims individually. On many levels, this finding further hinders the rights of workers and their ability to to effectuate necessary change in the unlawful corporate culture impacting many minorities and women in the workplace on a daily basis.
Retaliation – Employees Should Not Fear Reporting Discrimination –
Employees who have been discriminated or harassed against in the workplace should not be hesitant to report these claims. Retaliation laws are in place to protect the employee from being harassed or targeted after they exercise their right to report discrimination. When an employee reports discriminatory acts to the Equal Employment Opportunity Commission, their respective state equivalent, the Department of Labor, or even internally to their employer, retaliation laws are in place to stop the employer from taking adverse action against the wronged employee.
Retaliation laws protect against all forms of retaliation. Retaliatory actions include, but are not limited to:
– Disparate Hiring Practices
– Unwarranted Firing
– Pay Reductions
– Change in Job Assignments
– Promotion Discrepancies
– Layoffs
– Unwarranted Training Procedures
– Denial of Fringe Benefits
– Alteration of any other Term or Condition of Employment.
The Equal Employment Opportunity Commission is a federal agency in place to protect the rights of employees. It is “an unlawful employment practice for an employer to discriminate against any of his employees…because the employee has opposed any practice made unlawful employment practice by Title VII.” 42 U.S.C. § 2000e-3(a). EEOC Retaliation laws bar the employer from exercising any retaliatory acts, even retroactively, against an employee after they file an EEOC Charge of Discrimination. Employees should not fear reporting discrimination because the EEOC is an agency to rectify these wrongs.
Most states have a functional state equivalent to the EEOC and this is another avenue for discriminated employees to use to remedy the harassment they have endured. In New York specifically, New York Labor Law Article 20-C § 740 is in place to forbid an employer from taking retaliatory actions against an employee who reports discrimination in the work place. New York employees have protection at both the Federal and State level when exercising their right to be free of discriminatory actions taken by their employer. For employees working in New York City, they even have a third layer of protection under the New York City Human Rights Law.
Employees do not have to report acts of discrimination to one of these agencies in order to be afforded protection under these anti-retaliation laws. An employee is safeguarded against retaliation in any form when they complain about discrimination or harassment directly to their employer by complaining to Human Resources, management or some equivalent. It is vital, however, when complaining directly to your employer, that the aggrieved employee document their complaint of discrimination or harassment in some manner, whether through a formal document, email, or in the presence of a trusted witness.
For an employee to prove they have been retaliated against, they only need to show that the retaliation has produced “an injury or harm.” Burlington Northern & Sante Fe Ry. V. White, 548 U.S. 53, 67 (2006). The injury or harm requirement must however stem from or convey a feeling or perception of discrimination. Employees should not be weary of reporting acts of retaliation, but should exercise their right to be free of these acts. Retaliation can also occur if someone has been negatively affected by your report of discrimination. The EEOC’s Retaliation laws protect the rights of third–parties, even though they have not made claims of discrimination themselves. Thompson v. North American Stainless, LP (2011). For a more detailed discussion on how third-parties are protected by the law, check back to see further blog discussion on our website.
VKV and DiNovo Price Ellwanger & Hardy with Hank Aaron at the Unveiling of Ambassador Young Portrait at the National Portrait Gallery
Pictured here (from left to right) at the Unveiling of Ambassador Andrew Young’s portrait in the National Portrait Gallery: Robert J. Valli, Jr., Jay Ellwanger, Hank Aaron, Rev. Peter Johnson, and David Ellwanger. Baseball legend, Hank Aaron was in attendance to honor the life and work of Ambassador Young. Hank Aaron was the last African-American player from the Negro Leagues to play in the major leagues. He played 21 seasons with the Milwaukee/Atlanta Braves, where he achieved most of his acclaim and records. In 2002, Aaron received the Presidential Medal of Freedom.
Unveiling of the Portrait of Ambassador Andrew Young
VKV was honored to be invited and attend the unveiling of the Portrait of Ambassador Andrew Young at the Smithsonian National Portrait Gallery. Sara Kane is pictured here with Ambassador Young, Martin Luther King, III and Rev. Peter Johnson and wife Delores. Ambassador Young is a champion of the Civil Rights Movement and has served as the Mayor of Atlanta, a Congressman, and United States Ambassador to the United Nations. He has also received the Presidential Medal of Freedom. Ambassador Young was a member of the Southern Christian Leadership Conference during the Civil Rights Movement and was a friend and supporter of Dr. Martin Luther King, Jr.
Understanding Pregnancy Discrimination and Your Rights as an Expecting Mother
Women shouldn’t
have to fear for their jobs when starting a family. But, we hear about pregnancy discrimination in the workplace all the time. Companies frequently do not abide by the Pregnancy Discrimination Act of 1978 or the U.S. Department of Labor’s Family Medical Leave Act. Women are too often subject to unlawful actions made by employers because of pregnancy.
There are many different forms of pregnancy discrimination. The majority include: reassignment to a department out of your career path or a lower paying position, refusal of medical health care benefits that are available to other employees, or cutting your hours and pay during pregnancy.
Here are some things you should know about the laws protecting women, and the action you should take if you believe you have been discriminated against.
U.S. Department of Labor’s Family Medical Leave Act
Under this act, employers with 50 or more employees must give up to 12 weeks of unpaid leave to employees that have worked for the company for at least 12 months and have clocked a minimum of 1,250 hours of service. The FMLA regulates leave of absences that are necessary for one of the following reasons:
- Childbirth and infant care of the employee’s newborn
- Adoption or foster care placement with the employee
- A serious health condition of an immediate family member that requires care
- A serious health condition of the employee
Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act of 1978 provides guidelines that employees and employers must follow during pregnancy to ensure that there are no discriminatory actions.
- An employer cannot refuse to hire you because of your pregnancy as long as you can complete the functions of the job
- If you are temporarily incapable of completing the tasks of your job because of your pregnancy, your employer must modify tasks and assignments (as done with other temporarily disabled employees).
- You must be permitted to work as long as you can complete the functions of your job.
- If you are provided with health insurance by your employer, the insurance must cover pregnancy-related expenses as it would for other medical conditions
- When crediting seniority, vacation time, pay increases or other benefits, you must be treated the same as other temporarily disabled employees.
If you feel you have been discriminated against, take these steps:
- Document any discriminatory conversations or occurrences. Detail the time and place, as well as participants and witnesses.
- Continue to perform your tasks and assignments, but start documenting how well you are performing.
- Compile a record of previous performance reviews to keep as evidence.
- Consider contacting your human resources department to file a complaint, and document your complaint within your own files.
- Contact an attorney to discuss your options
To prove you have been discriminated against, you must fit this criteria:
- Be a member of a protected class (as a woman, you are protected)
- Meet the expectations of your job and your performance was up to par with your employer’s demands (this can be proven with your performance reviews, raises, promotions and your own documentation of such material)
- Be fired, demoted, passed over for a promotion, not hired for a position, or suffered any other form of adverse action.
- Be treated differently or less favorably than other employees with similar circumstances who were not a member of a protected class.
In court, your employer must provide a legitimate and non-discriminatory reason for the adverse action. You must show that the employer’s reason is a pre-text (a false reason used to conceal the discriminatory action). If you are able to prove their rationale is pre-textual, you have a chance of winning in front of a judge or jury.
Contact an attorney to discuss your circumstances and further explore your legal options.
Your Cheat Sheet to Understanding the ADA Amendment Act of 2008
The Americans with Disabilities Act was enacted to protect workers across the U.S. from discrimi
nation against disability. Congress has recently amended the definition of disability within the ADA by instating the Americans with Disabilities Act Amendment Act of 2008. The March 25, 2011 ruling made significant changes to the ADA, making it easier for individuals to prove they are disabled under the ADAAA’s guidelines.
The changes appear minimal, but will have a sizable impact on the number of citizens classified as disabled. The Amendment is one of the most significant changes in the fight for equality among disabled citizens. It finally provides the disabled an opportunity for protection against unjust discrimination, and implements the necessary change for equality.
We have compiled the most important things you should know about the new ADA Amendment Act. The ADAAA does the following things:
- Provides an interpretation of the word “disability” that is applicable to many impairments that were previously unprotected. The definition of disability remains the same, “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” However, the ADAAA encourages that the terms in the definition should be interpreted broadly.
- Supplies guidelines for determining if the disability is “substantially limiting”. A substantially limiting disability is one that makes a person ”significantly restricted as to the condition, manner, or duration under which a major life activity can be performed, in comparison to the average person or to most people.” The ADAAA also encourages this term to be interpreted broadly, but further develops the law to include guidelines for future court cases.
- Broad construction- The narrow interpretation of the words “impairment” and “substantially limiting” was changed to provide a broader spectrum of the definitions.
- Comparison to general population– The disability can be substantially limiting if the person cannot perform a major life activity in comparison to the general population.
- Primary issue is compliance, not substantial limitation– Court cases should focus on if the employer was in compliance with the law, rather than focusing on if the disability was, in fact, substantially limiting.
- Individualized assessment– all impairments that are alleged to be substantially limiting must be determined on an individual basis.
- No requirement for scientific analysis- when the performance of a major life activity by the disabled person is compared to the general population, no scientific, medical or statistical analysis is needed.
- No consideration of mitigating measures– when determining if a disability is substantially limiting, mitigating measures (other than ordinary eye glasses or contact lenses) may not be considered.
- Episodic impairments or conditions in remission– episodic impairments are still regarded as disabilities when in remission as long as the disability would limit a major life activity when active.
- One substantial limitation is sufficient– one determination of a limitation of a major life function is enough to classify an impairment as a protected disability.
If you feel that you have been discriminated against because of your disability, contact an attorney to discuss your options.
Workplace Bullying Cases are Hard to Prove
Workplace bullying can be found in offices across America, but few laws regulate or protect workers from such verbal abuse or mistreatment. Workplace bullying is defined by the Workplace Bullying Institute as “repeated, health-harming mistreatment…in one or more of the following forms: verbal abuse, threatening, humiliating or offensive behavior/actions, work interference, sabotage which prevents work from getting done”.
Title VII and other anti-discrimination laws protect workers if they belong to a specific protected class based on race, gender, national origin, age, and other characteristics. However, if you cannot establish that workplace bullying is based on one the protected classes covered by laws against discrimination, Title VII and other anti-discrimination laws will not prove useful. This leaves other majority groups virtually unprotected from workplace bullying.
Why has the U.S. not enacted a federal workplace bullying law? There are many objections to bullying regulations. First, it is hard to classify certain actions as bullying, as American workers are regularly subject to criticism and high demands. Second, the context of bullying varies from industry to industry. For example, a resident at a hospital may be subject to more pressure and intensity than other occupations because of the nature of the work.
There is an effective method to determine workplace bullying in the court system, but the terms of the system are susceptible to the interpretations of the court. The Intentional Infliction of Emotional Distress claim provides the groundwork to prove that certain workplace bullying may be intentional and causes extreme emotional distress. The plaintiff must prove four elements of IIED in order to win in court:
- Intentional or Reckless Conduct
- Extreme and Outrageous conduct
- The actions of the wrongdoer caused the plaintiff emotional distress
- Emotional distress must be severe
The second element of the IIED claim is the most difficult to prove. Many cases of workplace bullying do not fall under this category, because harassment or verbal abuse is not often considered as outrageous. If it is determined that the conduct is outrageous, it must also be proven that severe emotional distress was the result. The plaintiff
must also establish that emotional distress is so vast they suffered a compensable injury.
If you feel that you have suffered emotional distress based upon bullying in the workplace, consult an attorney to discuss a potential suit. Although many cases are not severe enough for court, an attorney may provide advice based upon your circumstances and conditions.
Protect Your Privacy in the Workplace
Employers are utilizing new 
technologies to monitor employees on computers, telephones, email and video. There are very few federal laws that protect a worker’s privacy. Therefore, if you are using company owned devices your employer can legally read your email conversations, listen to your personal telephone calls and check what websites you are visiting.
According to a 2007 American Management Association’s “Electronic Monitoring & Surveillance Survey”, 73% of employers monitored email messages, 66% scrutinized Web surfing, 48% watched over video surveillance, and 45% checked keystrokes and computer files. In some cases, employees are unaware of the company’s privacy policies and are being monitored oblivious to the watchful eye.
Because privacy rights are virtually unregulated, it is the employee’s responsibility to become informed of the company’s policies and to regulate their usage on company devices. Privacy policies can be presented in memos, employee handbooks or at meetings. It can even be as simple as a sticker on a computer or phone that displays the company’s rights to surveillance.
Always be mindful of what you say and do at work. Improper usage of employee technology can lead to termination. Therefore, it is important that anything that is private is communicated through personal devices or emails. Use a mobile phone or pay phone for personal calls, and create your own personal email for discussions that are not work-related. Be wary of your social network sites as well. According to a 2009 survey, 60% of executives believe they have a right to monitor employee’s social networking sites to see how employees portray themselves online. Don’t ever bad-mouth your workplace or boss on social networking sites, as there are no laws to protect you from termination.
If you believe that your employer is monitoring you for discriminatory reasons, it is important to take the necessary precautions to protect yourself. If you are being monitored more than other employees, or are being isolated as the sole employee being watched, file a complaint with HR and document any instances that attest to your claim. It may be advisable to consult an attorney if workplace discrimination is present.
If you are pursuing a legal claim against your employer, or even if you are just contemplating one, the most important way to protect yourself is to always use personal means of communication when contacting your attorney or a prospective attorney. Attorney-client communications may not be privileged if they are taking place over your work phone, email or other device owned and monitored by your employer.
Always assume that your workplace communications are being monitored, and protect your rights by avoiding personal conversations on company property.