Interpreting Title VII

Interpreting Title VII by James Vagnini {Read in 4 minutes}  When I was in law school 20 years ago, I wrote an article on legislation before Congress referred to as the Employment Non-Discrimination Act or “ENDA.” This legislation was aimed at expanding Title VII’s coverage to specifically include sexual orientation and gender identity as protected categories not specifically provided by Title VII.  
Title VII is part of the original Civil Rights Act federal law enacted in 1964 which provides employees protection from discrimination because of race, national origin, and gender. Over the years, the law was expanded to include some protections for those over the age of 40 and the disabled, and is the bedrock of civil rights law in the employment environment.
To this day, the ENDA legislation has not been passed and there are no specific federal laws that prohibit discrimination based on sexual orientation or gender identity.  Moreover, Title VII has not been amended to include these additional specific categories (despite other expansions). It is a sad commentary on our country, and our politics, that in 20+ years, we could not get our act together to provide the specific protections many working citizens require.
Despite this hurdle, the Equal Employment Opportunity Commission (EEOC), the watchdog agency empowered to enforce Title VII, has interpreted Title VII to protect against discrimination on account of sexual orientation and gender identity.  
In fact, the EEOC has consistently interpreted any act of discrimination on account of these factors to be something that is covered by sex/gender discrimination. This means you are protected if:

  • You don’t conform to sexual or gender stereotypes
  • You identify as a different gender than the gender you may appear to be or were born
  • You have a different sexual orientation or prefer sex that doesn’t conform with the popular notion of what a man or a woman should be
  • Trans workers who don’t fit the form of what is considered to be the gender norms of society

The EEOC has been granted broad discretion to resolve disputes but unsettled legal issues still have to be resolved, by and large, in court — and federal courts have differed. Some circuits agree with the EEOC’s interpretation that sexual orientation falls under Title VII sex discrimination,while others have found that it does not.
Whenever you have circuit court splits like this, the issues become ripe for the Supreme Court — which can either agree to take up the issue or decline to take up the case(s) that address the conflict between the circuits. Recently, it was announced that the Supreme Court will take up this issue in the next term.
This is going to be a big, big decision. Obviously, we have a different Supreme Court makeup today than we did a few years ago, but this is an issue that has gained a lot of popularity and a lot of momentum legally, politically and socially.
The decision will have a huge impact on the landscape of workplace discrimination.  The Supreme Court will determine whether Title VII is essentially expanded to include sexual orientation and gender identity as protected classes thereby making it the law of the land.  If they find that Title VII does not provide such protection, it will permit employers, to a degree, to discriminate on account of sexual orientation and gender identity.
LGBT workers would have to turn to state and local laws for protection should the Supreme Court limit the law.  Many states, such as New York, have laws that protect the LGBT community working in the state. Many states, sadly, have not extended such protections to members of the LGBT workforce.   
Things take time, but this decision will be here before we know it.  It is something that will have a huge impact on employee protections in the workplace — and could set back a lot of work and progress that has been made so far by the EEOC and the lower district courts who have upheld the EEOC’s interpretation of the law.
James A. Vagnini
Partner
email: jvagnini@vkvlawyers.com
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Let the Mother Beware: Pregnancy in the Workplace

Seal of the United States Equal Employment Opp...
Seal of the United States Equal Employment Opportunity Commission. (Photo credit: Wikipedia)

It is somewhat hard to believe in this day and age that women experiencing pregnancy in the workplace are still being subjected to workplace policies that put their livelihood in jeopardy. Despite federal laws dating back to the Civil Rights Act of 1964 and several updates and addendums, there are still employers in the United States that have written policies that terminate workers due to pregnancy, regardless of the ability to perform that job’s duties and the overall physical capabilities of the workers.
A recent case in point was brought by the EEOC against a Baytown, Texas, restaurant chain called Bayou City Wings. Acting on behalf of a former employee named Maryann Castillo and eight other dismissed workers, the EEOC claimed that Bayou City Wings, and its parent company, JC Wings Enterprises, LLC, operated with a discriminatory policy against their workers who were experiencing pregnancy in the workplace. Their written policy mandated laying off workers after their third month of pregnancy, regardless of the employees’ desire and ability to stay on the job. In this case, Castillo was not experiencing any difficulties performing her job duties and had received approval from her doctor to work up to her 36th week of pregnancy.
Despite the honorable desire of the employer to take responsibility for the well-being of the unborn babies in these cases, it is important to note that the law and previous Supreme Court cases have determined that it is not the responsibility of employers to make decisions to protect the well-being of the unborn children of their employees, but rather the sole responsibility of the mothers involved. For employers, this could be a release of guilt if a mother’s decision to work jeopardizes her unborn child. The true benefit for this is that the women carrying their children should be able to have control over what they can or cannot do, without the arbitrary decisions of companies that are driven by the bottom line.
The EEOC cannot be the only protector of these cases of injustice and discrimination in the workplace. It is important for all employees, and especially women, to know their rights in a situation where they are facing a pregnancy in the workplace. Under the laws of this country, mothers-to-be are protected and have the law on their side. The Law offices of Valli, Kane, and Vagnini are specially equipped to help any victim of this or any other kind of discrimination in the workplace. Contact them for a free consultation to make sure that your rights are protected.

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The Great Showdown: The Supreme Court, Arizona, and Immigration


On June 25th, the Supreme Court issued its decision in what will prove to be one of the most important cases in our country’s immigration history. Arizona v. United States considered the Constitutionality of SB1070, an Arizona state law granting state police unprecedented authority to identify and arrest illegal immigrants within its borders.

supreme court Arizona ruling

The law was championed by (now former) Arizona State Senator Russell Pearce, who is known as one of the nation’s most vocal adversaries of illegal immigration. Pearce and his followers cite to two primary concerns about illegal immigration: (1) they believe that illegal Mexican immigrants are stealing jobs from U.S. citizens living in Arizona, and (2) that the Mexican drug war, which by all accounts is violently out of control, is spilling into the United States and, specifically, across Arizona’s borders.
On April 23, 2010, SB1070 was passed into law. However, after a contentious battle, challengers of the novel new law convinced the Supreme Court to get involved. On Monday, the Court struck down several provisions of SB1070 law. Now, with the recently failed election bid of the law’s creator, former Senator Pearce, the political crusade against Arizona’s illegal immigration has been tempered.
What the High Court Struck Down
Three extremely contentious provisions of SB1070 were struck down by the high court. Section 6 allowed police, in certain cases, to make warrantless arrest of individuals suspected of being illegal immigrants. Section 3 made it a crime for legal immigrants to be present in the state of Arizona without valid immigration papers. Finally,  Section 5(c) imposed criminal penalties on illegal immigrants who seek or accept work in the United States without authorization. All three of these provisions of the law were preempted by federal immigration laws, and therefore struck down by the Court.
What the High Court Upheld
The Supreme Court did, however, maintain what Arizona Governor Jan Brewer called the “heart” of the law: Section 2(b) allows Arizona state police are permitted to investigate the legality of individuals if they do so while enforcing other laws.
State vs. Federal Sovereignty
In several cases throughout American history, civil rights law has boiled down to states’ policing power v. the powers that the Constitution expressly grants to the federal government. In Arizona v. United States, the U.S. Supreme Court has attempted to clarify the circumstances in which immigration enforcement – which has traditionally been a federal power – can justifiably be carried out by states as part of their policing powers. One way or another this decision will have far reaching implications in the world of civil rights law.
If you feel your civil rights as an immigrant have been violated, call the Law Offices of Valli, Kane & Vagnini for a free consultation.

Dionne v. Floormasters Enterprises, Inc. and the FLSA.

The 11th Circuit Court of Appeals, which controls Florida, Georgia, and Alabama, recently ruled that plaintiffs may not recover attorney fees, as they normally would be entitled to under the Fair Labor Standards Act (FLSA), in situations where the defendant-employer pays plaintiffs all the actual damages, liquidated damages, and interest owed to them outside of a negotiated settlement. In Dionne v. Floormasters Enterprises, Inc., the plaintiff filed a lawsuit alleging overtime violations by the defendant. The total amount of damages sought by the plaintiff, including liquidated damages as provided under the FLSA and interest, amounted to $3,000. After the plaintiffs filed the suit, the defendant tendered a payment to the plaintiff for the full amount they were seeking, “in the interests of expeditious resolution of Plaintiff’s claim and efficient use of this Court’s time and resources.” After tendering this payment, the defendant moved to dismiss the claim as moot, since even if the employer was found to be liable, the employer would not have to pay any additional amount to the plaintiff. The court granted the defendant’s motion, dismissing the case with prejudice. However, the employer did not compensate the plaintiff for attorney’s fees and costs, and the court’s dismissal of the case means that the employer’s liability for its illegal conduct was never established.
On appeal, the plaintiff argued that it was owed attorney’s fees, which go above and beyond the $3,000 that the defendant tendered. The FLSA provides attorney fees for the plaintiff, if the plaintiff proves that the employer violated the FLSA wage and overtime laws in his or her suit. Since the only reason that the defendant paid any amount to the plaintiff is that the plaintiff brought a lawsuit, the plaintiff felt he was entitled to the reasonable attorney’s fees that he incurred in bringing the suit and facilitating the payment.
The 11th Circuit Court of Appeals decided that this is a classic application of “catalyst” test, which states that “a plaintiff should be found as prevailing if its ends are accomplished as a result of the litigation even without formal judicial recognition, there is a causal connection between the plaintiff’s lawsuit and the defendant’s actions provided relief to the plaintiff, and the defendant’s actions were required by law.” However, the Court notes, the Supreme Court rejected the “catalyst” test in 2001 in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, which requires that plaintiffs demonstrate that such a payment alters the legal relationship between the party’s in order for the plaintiff to be considered the “prevailing party.”
Since the plaintiff is not considered the “prevailing party” as decided in a court of law, it reasons that the plaintiff is not entitled to attorney’s fees as provided by statute.
Even though the 11th Circuit here seems to break new ground, the facts of this case may limit its applicability going forward. For example, the Court distinguishes cases in which plaintiffs are awarded lawyer’s fees and costs following the court’s dismissal of the plaintiff’s claims, where the dismissals incorporate the terms of a settlement between the parties. It is very likely that where there is a settlement between the parties that has been incorporated into a court order, Dionne may not apply. This is supported by the Supreme Court in Buckhannon, which states that judicial imprimatur, or the court’s seal of approval, is a necessary part of establishing a prevailing party in a lawsuit.
Importantly, in this case, the defendant never admitted liability, paid the full amount of damages sought by plaintiffs (including unpaid wages, liquidated damages, and interest), and never entered into a settlement agreement, let alone a settlement agreement that was entered as a court order. For this holding to be applied against plaintiffs in the future, a defendant would have to provide the full amount of unpaid wages, liquidated damages, and interest sought by the plaintiff. While in this case that amount was only $3,000, in many cases that amount may be much higher, and many defendants may be unwilling to pay the entire amount of the damages that plaintiffs seek in lieu of a negotiated settlement.

Post Wal-Mart Ruling in U.S. v. City of New York

In the case of U.S. v. City of New York, United States District Judge Nicholas Garaufis, in the Eastern District of New York, rejected defendant New York City’s attempt to de-certify a class of black firefighters in their suit alleging race discrimination in hiring procedures. The City unsuccessfully relied on the Supreme Court’s recent ruling in Wal Mart v. Dukes, in which the Court more strictly limited the parameters for certifying class actions.
The Supreme Court held in Wal-Mart that there must be a “common question” of law or fact that “must be of such a nature that it is capable  of class-wide 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.” In U.S. v. City of New York, the court found there to be four common questions, which are “whether Defendants” uses of [the written examinations] had a disparate impact upon black applicants for the position of entry-level firefighter; whether Defendants’ uses of those examinations were job related to the position in question and consistent with business necessity; whether alternative practices that satisfy the asserted business necessity without disparate effect are available; and whether Defendants engaged in a pattern or practice amounting to intentional discrimination.” Importantly, this court also cites to a 2nd Circuit case from 2006, finding that “for purposes of Rule 23(a)(2) [class certification] even a single common question will do.”
Why were the plaintiffs in this case permitted to maintain their class status, while the plaintiffs in Wal-Mart lost theirs? It boils down to the breadth of the scope of the class. In Wal-Mart, the class was essentially every woman, regardless of position or geographic location, employed by a company that has many different classes of employee, ranging from greeters paid on an hourly basis to salaried managers. The Wal-Mart court essentially found that there was not a common issue of law or fact between a store greeter working in a rural Arkansas location and an assistant store manager working in a Californian urban location, especially given the lack of evidence in that case.
Judge Garaufis in this particular case was confronted with no such issue. The class was limited to only black firefighters and firefighter applicants who sat for one of two specific written exams, and who were harmed by the City’s use of a pass/fail screening device with specific cutoff scores or a method of rank-order processing. Compared with the very broad class in Wal-Mart, which included all women who were harmed by a vague and lightly-evidenced “culture” of sexist discrimination, the class considered in this case is very narrowly tailored and easily meets the statutory requirements.
This case is likely the first of many that will demonstrate that Wal-Mart applies most forcefully to cases that push the boundary in terms of how broad a class should be. For the majority of class actions that specify classes based on specific and tailored criteria, Wal-Mart should not pose a major threat to plaintiffs going forward.

3 sisters allege harassment at restaurant – Newsday

Photo credit: Howard Schnapp | From left, Gabrielle D'Annunzio stands with her sisters, Ashley and Lauren, in Mineola as they discuss the lawsuit they have filed against Ayhan's Fish Kebab in Port Washington. (July 13, 2011)

Three sisters from Port Washington charged Wednesday that they had been sexually harassed continually while working as teenagers at a Port Washington restaurant.
The three — Ashley, Gabrielle and Lauren D’Annunzio, who are now in their early 20s — made the assertions in announcing the filing of a civil suit in federal court in Central Islip. They are seeking unspecified damages on allegations of sexual harassment and emotional distress from the restaurant, Ayhan’s Fish Kebab, its owner Ayhan Hassan, and a manager, Dario Gomez.
At a news conference on the steps of the State Supreme Court inMineola, the three said that, while working as hostesses at the restaurant, they had complained to management about the harassment, but nothing was done to stop it.
The harassment included male employees making lewd remarks to them and touching their arms, legs and buttocks, according to the suit filed by their attorney, Sara Kane of Garden City.
An attorney for the restaurant, Bruce Migatz of Garden City, said that he had not seen the lawsuit, but that “I’m familiar with the contentions, and they are wholly without merit, anyway.”
The sisters, who had worked at the restaurant for between 1 1/2 and three years — quit in July of 2008 after an incident in the restaurant’s basement when Lauren D’Annunzio, then 17, was restrained in a bear hug by a cook who groped her though “she shouted unsuccessfully for him to stop,” the suit says.
The cook, Juan Pablo Orellano, halted the attack when a busboy came down to the basement, the suit says.
A spokesman for the Nassau district attorney’s office, Christopher Munzing, said that Orellano was convicted in October 2008 of attempted sexual abuse, a felony, and served four months in jail because of the D’Annunzio incident.
Article Written By: Robert E. Kessler, Newsday.com
For Original Article: Click Here

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.