5 Notable Workplace Bias Verdicts From 2023

By Anne Cullen/Law 360

Law360 (December 15, 2023, 6:32 PM EST) — A $36 million jury verdict that the U.S. Equal Employment Opportunity Commission secured in September on behalf of a deaf truck driver marked one of many eight-digit damages awards that workers won in discrimination battles this past year.

Trials held all over the country yielded eye-popping wins for workers. Jurors in Nebraska handed down the EEOC’s trial victory in the trucking case, while a jury in Texas slapped Omni Hotels & Resorts with a $25 million damages bill in an equal pay suit in March.

Later that month, a Massachusetts jury awarded a Thermo Fisher Scientific subsidiary executive a $24 million win in her case alleging she was ousted because she suffered from anxiety.

Sarah N. Turner, a partner at Gordon Rees Scully Mansukhani LLP who advises employers, said the big jury awards are increasingly originating beyond states where they are typically expected.

“The large jury verdicts are no longer isolated to large politically liberal-leaning cities, i.e. New York, Los Angeles,” Turner said. “Large jury verdicts in excess of a million dollars are becoming more common in smaller cities, i.e. Portland, Oregon, and more conservative jurisdictions, i.e. Houston.”

While some of these awards will be cut down — due to statutory caps or employer appeals — McDermott Will & Emery LLP employment partner Jeremy White said these results emphasize the legwork that businesses facing a workplace bias claim must do before jurors are impaneled.

“These jury verdicts exemplify the uncertainty of going to trial,” said White, who is a management-side attorney. “They also show that employers need to win these cases in the trenches, during depositions, which will require additional investment at the discovery phase of litigation.”

Here’s a look at five major trial victories for workers in the past 12 months.

Jury Slaps Luxury Hotel Chain With $25.1M Damages

In March, after three days of trial, a Texas jury found that Dallas-based luxury hotel company Omni Hotels & Resorts violated both Title VII of the Civil Rights Act and the Equal Pay Act when it underpaid a food and beverage director because she’s a woman.

Sarah Lindsley, who worked for Omni for about 16 years, had risen from a part-time server to food and beverage director at the chain’s Corpus Christi location, according to case filings. However, she said that despite her hard work, she was consistently paid less than her male peers.

Lindsley also alleged the company ignored the multiple complaints she said she made about the inequity. A jury found Omni had violated federal laws by undercutting Lindsley’s pay, and awarded her $100,000 in emotional damages and $25 million in punitive damages.

A federal judge later knocked the total award down to $300,000 because of statutory damages caps, but experts said the reward is still notable because of how high the punitive damages were compared to the rest of the award.

Deborah S. Brenneman, a management-side employment partner at Thompson Hine LLP, said this demonstrates that the jury was angry at the company. And she said this could have originated from Lindsley’s allegation that Omni didn’t take any corrective action after she complained.

“The plaintiff was able to, at least from what we’ve been able to see, paint a picture that the employer didn’t take their concerns seriously, and juries punish the companies for that,” Brenneman said.

Speaking broadly about this and other verdicts from this year, she said a key takeaway is that management has to take action when it hears concerns, and make a record of the steps that followed.

“The plaintiffs were able to tell stories that the companies just weren’t listening, and it’s a big warning to employers,” Brenneman said. “It’s a big reminder that when somebody complains about an issue, companies need to show they’re taking the concerns seriously, and document why they did or did not make any change.”

The case is Lindsley v. TRT Holdings Inc. et al, case number 3:17-cv-02942, in the U.S. District Court for the Northern District of Texas.

Explore the remaining four noteworthy employment law verdicts of 2023 as covered by Law360 here.

Marilyn Manson’s Former Assistant Wins Appeal to Revive a Previously Dismissed Sexual Assault Lawsuit

Ashley Walters claims Manson sexually assaulted her, whipped her and threw her against a wall when she was his assistant in 2011.

By Daniela Avila/ PEOPLE

Marilyn Manson’s former assistant has won a critical appeal that will revive her previously dismissed lawsuit against the rocker.

On Wednesday, a tribunal with California’s Second Appellate District sided with Ashley Walters and reversed a lower court ruling — sending the case back to a judge for trial, according to documents obtained by PEOPLE.

In the court filings, Walters claims that Manson (whose real name is Brian Warner) forced her hand into his underwear, whipped her, pushed her into a wall, forced her to stay awake for 48 hours straight, offered her up sexually to friends and associates, once required her to stand on a chair for 12 hours and fed her cocaine to keep her awake among other accusations. She also claims he used threatening behavior, like blackmail, to ensure her silence.

“We believe this ruling makes clear that courts must factor in trauma induced repression into the legal reasoning why survivors often come forward years after their trauma to raise claims,” Walters’ lawyer, James Vagnini, says in a statement to PEOPLE. “This clears a path, much like many of the newly passed laws sweeping the country, allowing victims of sexual assault and harassment to raise their claims against their abusers when they are able to, not by a deadline set by statute.”

In 2021, Walters sued Manson, 54, with claims of sexual assault, sexual harassment and sex discrimination. At the time, she argued that though the alleged abuse took place during her year of employment in 2011, the two-year statute of limitations didn’t apply because she had suppressed her memories until 2020.

Read the full article from PEOPLE here.

Marilyn Manson’s Ex-Assistant Wins Appeal, Can Sue for ‘Horrific’ Sexual Harassment and Assault 

By Nancy Dillon/ Rolling Stone

“This is a great victory for all survivors as it provides a clear path for issues of repressed memories,” Ashley Walters’ lawyer says.

THE FORMER ASSISTANT who claims Marilyn Manson sexually assaulted her, whipped her and threw her against a wall during a drug-induced rage won a critical appeal ruling Wednesday that revives her previously dismissed lawsuit against the shock rocker.

Ashley Walters initially sued Manson, whose legal name is Brian Warner, with claims of sexual assault, sexual harassment, and sex discrimination in May 2021. She argued that while the alleged abuse took place during a “horrific” year of employment that ended in 2011, the typical two-year statute of limitations didn’t apply because she had suppressed her memories until 2020. She said the “delayed discovery” rule, which postpones the starting clock for statutes of limitations in cases where victims bury painful memories, had extended her window to file. She further alleged Warner used threatening behavior to ensure her silence.

A trial court judge considered her argument but ultimately tossed her case in May 2022, ruling she “failed to plead facts to invoke the delayed discovery rule.” Walters appealed, and a tribunal with California’s Second Appellate District sided with her Wednesday, reversing the lower court ruling and sending the case back to the judge for trial.

“Walters’s allegations of delayed discovery were sufficient to withstand demurrer, and we reverse,” the judges wrote in their ruling. They noted that while Warner’s defense team argued her allegations were “too memorable and happened too many times for her to have remembered none of it,” the court wasn’t supposed to concern itself with her ability to prove her claims at this stage of her case, only that she asserted them properly.

“This is a great victory for all survivors as it provides a clear path for issues of repressed memories and delayed discovery in these types of cases. I think the court is very firm in articulating a very clear decision as to why survivors have repressed memories and why that should be relevant when they come forward later in life to bring those claims,” Walters’s lawyer, James Vagnini, tells Rolling Stone. He noted that Warner’s camp also was ordered to pay the appellate costs as well. “We think that sends a message,” he says. Warner’s lawyers did not immediately respond to a request for comment.

In court filings, Walters alleged Warner forced her hand into his underwear, whipped her, threw dishes at her, pushed her into a wall, broke down doors to get to her, charged at her and forced her to stay awake for 48 hours straight, one time requiring her to stand on a chair for 12 hours.

Warner, 54, has denied Walters’ allegations and similar claims of abuse from more than a dozen women. In September, he reached a private settlement with a Jane Doe accuser who alleged he brutally raped her in 2011. Doe further claimed Warner deprived her of food and sleep during their abusive dating relationship and that he threatened to “bash her head in” if she reported him. That deal followed after Warner reached a separate settlement with Game of Thrones star Esmé Bianco in January. Bianco had alleged Warner raped and battered her.

Former accuser Ashley Morgan Smithline let her lawsuit end in default in January and formally recanted her allegations against Warner. A second Jane Doe sued Warner in January for sexual assault.

Read the article from Rolling Stone here.

Worker Settles Overtime Suit Against Home Remodeler

By Caleb Drickey/Law360 · 2023-10-16 19:49:04 -0400 ·  Listen to article

A worker who accused a home remodeling firm of misclassifying him as an overtime-exempt, salaried employee asked a New York federal court Monday to sign off on an individual settlement to his wage action.

In a letter to U.S. District Judge Diane Gujarati, ex-PHRG Management LLC remodeling consultant Sean Wachter said that a proposed $11,500 settlement to individual age claims would make him whole for withheld back wages and was a fair resolution to disputed claims.

The total settlement equates to more than 100% of what the plaintiff could have recovered under the Fair Labor Standards Act and New York Labor Law, Wachter said, adding: “The proposed settlement agreement is both fair and reasonable.”

Under the terms of the deal, Wachter would receive approximately $6,500 after the payment of attorney fees and expenses. That sum, the worker said, outpaced the roughly $2,400 unpaid overtime wage bill he racked up during his tenure at the company and amounted to roughly 55% of his total potential damages figure.

That return was fair, Wachter said, in light of the risks of further litigation. The worker noted that his former employer maintained its belief that he had been properly classified as an overtime-exempt outside sales worker and contested the number of overtime hours he worked.

“The settlement alleviates plaintiff’s risk of a lower recovery or no recovery at all,” the worker said.

Wachter’s attorneys, meanwhile, would receive an above-benchmark 40% cut of the total settlement fund, plus roughly $230 in expenses, for a total of approximately $4,700. Although Wachter noted that the Eastern District of New York generally limits attorney awards to 33% of a worker’s return, he said that the Second Circuit dissuaded district courts from placing ceilings on fee awards in 2020’s Fisher v. SD Protection Inc. 

He also argued that the proposed fee sat below a nearly $9,500 lodestar figure and was thus reasonable on its face.

Wachter accused the company of violating the FLSA and NYLL in a proposed class and collective action filed in November 2022. In his complaint, he alleged that he should have received time-and-a-half overtime wages instead of a flat, $1,000-per-week salary to compensate him for his up-to-60-hour workweeks.

Representatives of the parties did not immediately respond to requests for comment Monday.

Wachter is represented by Alexander White of Valli Kane & Vagnini LLP.

PHRG is represented by Anthony Mingione of Blank Rome LLP.

The case is Wachter v. PHRG Management LLC, case number 2:22-cv-07155, in the U.S. District Court for the Eastern District of New York.

–Additional reporting by Isaac Monterose. Editing by Nick Petruncio.

See the article from Law360 here.

How to Prepare a Strong Discrimination Claim Against Your Employer

By Kellie Hand

When faced with discrimination in the workplace, it is important to take action as soon as possible, as there are time limits for filing discrimination claims. The best way to protect yourself from discrimination, harassment, and retaliation is to (1) know your legal rights, (2) document everything allowed within state law and company policy (3) consult a legal professional, and (4) remember to take care of your mental and physical health. 

Know Your Rights

In the U.S., employees and job applicants are protected from discrimination in various aspects of employment under federal and state laws. These protections are based on specific “protected classes” such as Race, Color, National Origin, Religion, Sex (including sexual orientation and gender identity), Pregnancy (including childbirth or related medical conditions), Age, Disability, and Genetic Information. 

Note: The Age Discrimination in Employment Act (ADEA) protects individuals who are 40+ years old from age discrimination. However, state laws may have a lower age threshold. For example, New York State’s age discrimination law protects individuals 18+ years old.

Employment aspects protected from discrimination include (but are not limited to):

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements;
  • Recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Fringe benefits;
  • Pay, retirement plans, and disability leave;
  • Other terms and conditions of employment.

Employees are also protected from retaliation if they engage in a legally protected activity, such as reporting discrimination or participating in a discrimination proceeding or investigation. 

Document Everything 

Start by keeping a record of each incident you believe is discriminatory. This can include emails, memos, text messages, or any other form of communication. Also, make a note of any verbal conversations. Be as detailed as possible – write down dates, times, locations, people involved, what was said, and any witnesses. However, please be aware that what you can record and document will vary depending on state laws and company policies. 

Report the discrimination to your supervisor, Human Resources department, or any other relevant authority in your organization. Be sure to follow the company’s procedures for reporting, and do this in writing so you have a record of your report. Additionally, keep copies of your job evaluations and any letters or memos that show you perform your job well. This can be crucial if your employer tries to defend their actions by criticizing your job performance.

Get Legal Advice

If you feel you may be experiencing discrimination, consult with an employment law attorney right away to ensure that you are taking the best possible steps from the start. An employment lawyer can provide advice tailored to your specific situation, guide you through the process, and help protect your rights. 

Take Care of Yourself 

Experiencing discrimination in the workplace can be emotionally draining. Therefore, it is important to seek support from friends, family, or a mental health professional. Taking care of your physical health is also vital during stressful times.

US appeals court adopts lower bar for proving workplace bias claims

By Daniel Wiessner/ Reuters

Aug 21 (Reuters) – A U.S. appeals court has thrown out its unique decades-old precedent that made it more difficult for workers to prove discrimination claims.

The en banc 5th U.S. Circuit Court of Appeals on Friday revived a lawsuit claiming Dallas County, Texas, required female jail guards, but not men, to work at least one day each weekend, overruling its longstanding precedent that federal anti-discrimination law only prohibits bias in “ultimate employment decisions” such as hiring, promotions and setting pay.

That precedent imposed a more strict standard than Title VII of the Civil Rights of Act 1964 itself, which applies to any “terms, conditions, or privileges of employment,” the New Orleans-based court said.

“It is no wonder … that no other court of appeals applies so narrow a concept,” Circuit Judge Don Willett wrote for the 5th Circuit.

Jay Ellwanger, a lawyer for the plaintiffs, said the ruling makes clear that Title VII prohibits all workplace discrimination.

Read the full article from Reuters here.

New York City Bans Appearance-Based Discrimination

Updated May 30, 2023

New York City Mayor Eric Adams enacted an anti-discrimination law on May 26 banning discrimination based on an individual’s height or weight when it comes to employment, housing or access to public accommodations.  With the new legislation, residents of New York City will be able to bring claims of discrimination related to their physical appearance before the New York City Commission on Human Rights, a local agency responsible for examining cases of discrimination and harassment.

The bill, sponsored by Manhattan Democratic Councilman Shaun Abreu, will be effective on Nov. 22, 2023. Prior to that date, employers must review their official policies to ensure that they do not include discriminatory practices against height and weight The law includes an exemption for positions where a certain height and weight are required to complete the functions of the job, as stated in federal, state or local law, or if permitted by the NYC Commission on Human Rights.

New York State legislators are aiming to pass a similar bill on the state level, which would prohibit weight and height discrimination across the state. Other states, including Massachusetts, Vermont, and New Jersey, are considering similar legislation in their respective states.

Michigan is currently the only state that bans height and weight discrimination, and only three US cities already have an ordinance in place to ban appearance-based discrimination – San Francisco, California; Madison, Wisconsin; and Urbana, Illinois.

Mayor Eric Adams said the passage of this bill is a significant step towards eliminating appearance-based discrimination in New York City.

“It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job, are out on the town, or trying to rent an apartment,” he said. “This law will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”

Full 5th Circ. To Examine Employer-Friendly Title VII Rule

The family behind a massive Brooklyn Navy Yards film studio complex stands accused of stiffing local partners out of $50 million in profits, a new lawsuit contends.

Steiner Studios — where films such as Steven Spielberg’s”West Side Story” and Lin-Manuel Miranda’s “Tick Tick Boom!” were filmed — has been named in a civil suit filed by a group of local entrepreneurs who says they developed the complex then were cut out of profits, court records show.

Continue reading

Brooklyn Movie Studio Shut Out $50M Profits From Partners

The family behind a massive Brooklyn Navy Yards film studio complex stands accused of stiffing local partners out of $50 million in profits, a new lawsuit contends.

Steiner Studios — where films such as Steven Spielberg’s”West Side Story” and Lin-Manuel Miranda’s “Tick Tick Boom!” were filmed — has been named in a civil suit filed by a group of local entrepreneurs who says they developed the complex then were cut out of profits, court records show.

Continue reading

Wage and Hour Litigation: Are You Being Paid What You Deserve?

Wage and Hour Litigation: Are You Being Paid What You Deserve? by Robert J. Valli, Jr.

Wage and Hour Litigation: Are You Being Paid What You Deserve? by Robert J. Valli, Jr.
{6 minutes to read}  In addition to employment discrimination the firm practices wage and hour litigation. Wage and hour litigation is mostly comprised of two separate violations, minimum wage and overtime.  The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) delineate the rules for employers regarding paying Minimum Wage and Overtime.Continue reading