High Court Backs Religion

The U.S. Supreme Court ruled Monday that an employer may be engaging in illegal discrimination when it implements a neutral policy that fails to accommodate a job applicant’s religious practices, whether or not the applicant has requested a religious accommodation.

The ruling expands protection for religious minorities in the workplace.

Samantha Elauf, a Muslim woman, was denied a sales associate position at an Abercrombie store in Tulsa, Okla., in 2008 because she wore a black scarf or hijab during her interview. A hiring official rated Elauf as qualified but asked Abercrombie’s district manager if Elauf’s hijab violated Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps.” She had not discussed the hijab with Elauf but told the manager that she thought it was being worn for religious reasons. Elauf was not hired after the manager said the policy prohibits all headwear, religious or otherwise.

The EEOC sued Abercrombie on Elauf’s behalf, arguing the store violated Title VII of the Civil Rights Act of 1964. Title VII requires employers to make exceptions to certain policies, such as dress code, where religion is concerned, provided the accommodation doesn’t incur an “undue hardship on the conduct of the employer’s business.”

The Supreme Court ruled 8 to 1 in Equal Employment Opportunity v. Abercrombie & Fitch Stores that Title VII “requires otherwise-neutral policies to give way to the need for accommodation.”

The Court said job applicants do not have to specifically ask for a religious accommodation or prove that an employer had actual knowledge of the applicant’s need for a religious accommodation. 

The Court said plaintiffs need only show that their need for an accommodation was a “motivating factor in the employer’s decision” not to hire them.

The decision represents a defeat for the U.S. Chamber of Commerce, which supported Abercrombie in the litigation, but it is not believed to be much of a departure for the Court, which has made religious freedom a priority. The Court last year ruled 5-4 that the government could not require the owners of private companies like Hobby Lobby to provide female workers with contraceptive coverage under the Affordable Care Act when it violated their religious beliefs.

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Appeals Court Puts Judge on Hot Seat in Trucking Case

The U.S. Court of Appeals for the 8th Circuit has rejected an order requiring the EEOC to pay $4.7 million in attorney fees and costs  to CRST Van Expedited, Inc., one of the nation’s leading transport companies, in an egregious sexual harassment case involving female truck driver trainees.

This lawsuit, perhaps more than any other in recent history, demonstrates the extent to which federal courts have moved away from the worthy goal of addressing serious employment discrimination to engaging in pro-business partisanship, sweeping generalizations and moronic procedural disputes.  It also raises questions about whether the EEOC, in the current environment, can actually carry out its goal of promoting  more strategic use of agency resources by emphasizing high stakes litigation involving multiple victims.

At various points, Chief Judge Linda R. Reade of the U.S. District Court of Iowa dismissed all of the 154 plaintiffs in the EEOC case and  ruled the agency  must pay CRST, one of the nation’s leading transport company, a whopping $4.7 million in attorneys’ fees and costs.

The 8th Circuit’s ruling constitutes a step in the right direction. The appeals court remanded the case back to the district court with instructions to reassess the attorney’s fee award. Among other things, the appeals court is asking Reade to explain why she dismissed dozens of sexual harassment claims as frivolous, unreasonable or ungrounded.  Moreover, the Court rejected Reade’s award of attorney fees with respect to 67 claimants whom Reade dismissed from the case under a controversial ‘failure to conciliate” theory.

Several federal circuits have ruled the EEOC must engage in individual conciliation or negotiations with an employer with respect to each and every claim in a class action lawsuit, even if the employer has indicated no willingness to settle.  This requirement allows guilty employers to delay adjudicting the issue of discrimination, constitutes a colossal waste of  EEOC resources, and ultimately severely limits the agency’s ability to file class action employment discrimination lawsuits.

Reade dismissed  67 potential class members from the CRST lawsuit on the grounds that the EEOC failed to engage in  “bona fide” conciliation efforts with CRST. She did not even consider the merits of the plaintiff’s claims, some of which involved shocking allegations of sexual harassment and abuse lodged by female truck driver trainees who were stranded in isolated conditions on the road.  These women alleged that CRST did little or nothing in response to their complaints.

The 8th Circuit ruled that the EEOC’s duty to conciliate does not constitute an element of a claim. Therefore, the appeals court said , the EEOC didn’t lose those 67 claims and the CRST was not a prevailing party with respect to those claims.  The appeals court concluded that CRST is not entitled to an award of attorneys’ fees for the claims dismissed under the “failure to conciliate” theory.

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Senator Wants to Turn Back Clock at EEOC

Not only has Congress failed to  help victims of age discrimination for more than a  decade, now the ranking member of the Senate Committee on Health, Education, Labor and Pensions  wants to stop the EEOC from helping.

U.S. Sen. Lamar Alexander (R-Tenn)  called upon the EEOC  at a hearing last week to change its strategy of litigating big, high profile lawsuits and, urged it instead to resolve its backlog of almost 71,000 discrimination charges. The EEOC adopted a new strategic plan last year that, among other things, year calls for making better use of the EEOC’s limited resources by focusing upon large-scale and systemic discriminatory practices.

Ironically, Alexander, 74, focuses criticism upon EEOC efforts to insure that major law and accounting firms abide by a provision of the Age Discrimination in Employment Act of 1967 (ADEA) that prohibits mandatory retirement. Alexander complains that the EEOC has pursued cases without complaints in which “partners” voluntarily adopted a mandatory retirement age. Two law firms — Sidley Austin LLP and Kelley Drye & Warren LLP — faced EEOC claims over mandatory retirement in recent years.  Sidley settled in 2007 and Kelley Drye settled in 2012.

Alexander ignores the fact that the title of “partner” is conferred by some employers for the specific purpose of avoiding compliance with the ADEA, and that the supposed “partner” has none of the duties or responsibilities of an actual partner.  He also fails to acknowledge that “voluntary” agreements can be coercive,  one-sided and illegal.

Alexander effectively regurgitates the mantra of the U.S. Chamber of Commerce that the EEOC needs to be reigned in. He notes that “[n]umerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faculty expert analysis, among other complaints.” He said the EEOC’s lawsuits have been so unfounded or mismanaged that it has been required to pay attorney’s fees in ten different cases since 2011. However, Alexander fails to consider whether this criticism is merited or even valid.

A federal judge in Iowa in 2013, for example, assessed millions in attorney fees against the EEOC for bringing a sex discrimination class action lawsuit against the national trucking company,  CRST Van Expedited, Inc. The judge dismissed dozens of class members who had suffered egregious sexual harassment – arguably even sexual assault – on the grounds that the EEOC had not tried hard enough to reach a settlement with the company. The so-called “failure to conciliate” defense at issue in the trucking case was flatly rejected  in another case by the 7th Circuit Court of Appeals in Chicago, which called it a legal tactic used by employers to tie up the EEOC in useless litigation to avoid the consequences of discrimination. The  Chicago court found the defense has no basis in law and, in fact, contradicts a provision of Title VII.

Alexander made his comments at a hearing last week on the nominations of P. David Lopez and Charlotte Burrows to serve as general counsel and member of the EEOC.

It is not likely that Alexander is seriously interested in reducing the backlog at the EEOC. However, if he is, Congress might consider providing additional resources to the EEOC to address the legacy of the past while moving forward with efforts to combat discrimination  today.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I criticize the U.S. Congress for ignoring the plight of older workers. I argue that the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court, leaving older workers with little or no real protection against age discrimination.  I note that Congress has failed for more than five years to pass the Protecting Older Workers Against Discrimination Act, which would reverse a 2009 Court decision that raised the level of proof in age discrimination cases far beyond that of race or sex discrimination cases.

 

Company Liable for Lovestruck HR Director

A federal appeals court in Puerto Rico has rejected the narrow limitations imposed by the U.S. Supreme Court on who is considered to be a “supervisor” in employment discrimination cases.

The U.S. Court of Appeals for the First Circuit held that Developers Diversified Realty Corp (DDR) can be held liable for sexual harassment by Rosa Martinez, an HR officer for the company, who engineered the ouster of Antonio Velázquez-Pérez, a company regional general manager, after he rebuffed her advances.

Both Martinez and Velázquez worked in the Puerto Rico offices of DDR, a shopping center management company based in Ohio.

In its ruling , the appeals court acknowledged that the U.S. Supreme Court last year limited employer liability under Title VII of the Civil Rights Act in cases where a non-supervisor causes a discriminatory action. Martinez was not Velázquez’ supervisor.  However, the 1st Circuit court said, DDR should have known that Martinez’s recommendation that Velázquez be fired was the product of discriminatory animus and therefore can be held liable under Title VII for negligently allowing Martinez to cause Velázquez’s termination.

Noting the case presented issues that it had not addressed previously. the appeals court concluded that an employer can be held liable if  the co-worker acted for discriminatory reasons with the intent to cause the plaintiff’s firing; the co-worker’s actions were in fact the proximate cause of the termination; and the employer allowed the co-worker’s acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

The Court reversed the district court’s grant of summary judgment on Velázquez’s claim of sexual discrimination in violation of Title VII.

According the  opinion, Velázquez and Martinez had mutually flirted with each other when they both went to a company meeting in April 2008 and stayed at the same hotel. That night, Velázquez was walking with two female employees of the company when Martinez appeared in their path and asked where they were going.  Martinez followed Velázquez to his room,  tried to force her way in and refused to leave until Velázquez threatened to call security.  She then telephoned hm several times and sent a jealous email to one of the women that he had been walking with.  Shortly thereafter, Martinez threatened to have Velázquez fired, stating, “I don’t have to take revenge on anyone; if somebody knows your professional weaknesses, that person is me.”

Velázquez complained about Martinez’s behavior to his supervisor, who advised him to send her a “conciliatory” email because “[s]he’s going to get you terminated.” He and another male employee then jokingly suggested that Velázquez have sex with Martinez.

Martinez began a campaign of harsh criticism of Velázquez’s work, culminating with a recommendation that he be terminated. The top company official in Puerto Rico suggested that instead of termination Velázquez be issued a formal warning and placed on a Performance Improvement Plan.  Martinez went over his head and complained to two senior officials at the company’s headquarters in Ohio.

Meanwhile, Velázquez and Martinez went to another business meeting and stayed at the same hotel.  This time Martinez followed Velázquez into an elevator and said  she loved him and “wanted to have a romantic relationship with him.” Velázquez refused. That night, Martinez sent an email to the Ohio officials recommending that Velázquez be terminated immediately “because his behavior has been against the company code of conduct and has already impacted the trust form other team members.”

Four days later, on August 25, 2008, Velázquez was terminated for “[a]bsenteeism,” “[f]ailure to report,” and “[u]nsatisfactory performance.”

Settlement is Mother’s Day Gift to Working Mothers

On the heels of Mother’s Day,  a Texas woman has won an important victory for all nursing mothers in the workplace.

Donnicia Vetters  accepted an out of court settlement of $15,000  on the eve of a trial in her lawsuit alleging pregnancy discrimination by her former employer, Houston Funding II, LLC, a Houston, TX,  debt collection agency.  After giving birth in 2012, Vetters inquired whether  she would be able to pump breast milk when she returned to her job.  Her boss allegedly responded by telling her that her position had been “filled.”

If that wasn’t outrageous enough,  U.S.  District Judge Lynn N. Hughes of Houston summarily  dismissed Vetters’ lawsuit against Houston Funding on the grounds that “lactation is not pregnancy, childbirth, or a related medical condition.” He said that “firing someone because of lactation or breast-pumping is not sex discrimination.” Judge Hughes, who is male, suggested that “pregnancy-related conditions” end on the day that a mother gives birth.

Fortunately, Judge Hughes’ opinion was unanimously reversed by the U.S. Court of Appeals for the Fifth Circuit, which held that firing a woman because she is expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  Congress passed the Pregnancy Discrimination Act to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.

Ms. Vetters was represented in the case by the U.S. Equal Employment Opportunity Commission.

In  EEOC v. Houston Funding II, LLC, the Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, the court said, firing a woman because she is expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.

Instead of showing some decency, acknowledging fault and apologizing to Ms. Vetters, an attorney for Houston Funding was quoted as blaming the EEOC for forcing it to pay up.

The monetary settlement won’t put Ms. Vetters’ baby through college, and won’t compensate for the loss of a job in a difficult economy, but it is a great victory for all working mothers to know that they can’t be fired simply because they choose to nurture their infants with breast milk.

Donald Sterling, Racism & Federal Courts

The life-time suspension from the National Basketball League of  Los Angeles Clippers owner Donald Sterling for making racist comments to his girlfriend raises questions about how such conduct is treated in the workplace.

Although Sterling received the equivalent of a death sentence from the NBA, it is  unlikely that a federal court would consider Sterling’s conduct to be severe enough to violate the nation’s leading civil rights law, Title VII of the Civil Rights Act of 1994.

It what may be a sad commentary about the federal courts, racist, ageist and sexist comments often are relegated to the category of ordinary workplace incivility.

The  U.S. Supreme Court has cautioned federal judges against changing  Title VII into a “civility code” for the American workplace. See Oncale v. Sundowner Offshore Services, 523 U.S. Reports 75 (1998). As a result, most federal judges require numerous instances of egregious racist or sexist conduct before they hold employers accountable.

Sterling told his girlfriend, in a telephone conversation, that he was bothered that she associated with blacks.

Racist & Sexist Comments

A federal appeals court upheld the dismissal of a Title VII lawsuit brought by  an African-American clerk for CSX Transportation Company, Inc.  who was allegedly subjected to a racially and sexually hostile work environment.  The  court ruled that “occasional offensive utterances” do not rise to the level required to create a hostile work environment.

When Stephanie Williams declined to watch the Republican National Convention on a television at the plant in 2004, she said a male supervisor  told her that  she was a Democrat “only because she was a black woman; that unmarried women cannot ‘have the love of God in their heart[s]’; and this country should “get rid of Jesse Jackson and Al Sharpton because without those two ‘monkeys’ the country would be a whole lot better.”  The following day, the supervisor allegedly told Williams that “if she returned to school, she would not have to pay for her education because she was a single black mother. He also allegedly said all blacks should go back to where they came from.

A federal judge granted a pre-trial motion to dismiss Williams’ claim that she was a victim of a sexually hostile environment on the grounds that  her supervisor’s conduct was “neither severe nor pervasive enough to constitute a sexually hostile environment.”  He rejected on technical grounds evidence that pornography was left on tables at the plant for all to see.

The judge permitted Williams to proceed to a trial on the claim that she was subjected  to a racially hostile environment but dismissed the case before it reached the jury after finding that Williams’ evidence of a racially hostile work environment was not sufficiently “severe or pervasive” as a matter of law.

Mere Offensive Utterance

In two different opinions, the  U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Ohio, Michigan and Kentucky,  upheld the lower court’s dismissal of Williams’ claims.  See Williams v. CSX Transp. Co. Inc., 643 F.3d 502 (6th Cir. 2011) and Williams V. CSX Transp. Co., No. 12-6197 (6thCir. Sep. 19, 2013).

The appeals court agreed the supervisor’s conduct was “despicable” but said the incident was not sufficiently ‘severe’ or ‘pervasive’ standing alone. “The statements were isolated, not pervasive; all but two occurred over a two-day period,” held the court.

The court said the reference to Jackson and Sharpton and the statement that black people should go back where they came from  “are certainly insensitive, ignorant, and bigoted. But they more closely resemble a ‘mere offensive utterance’ than conduct that is ‘physically threatening or humiliating.”

NBA commissioner Adam Silver said he will try to force Sterling to sell his franchise. Sterling also was fined $2.5 million, the maximum amount allowed under the NBA constitution.  Silver has called upon the NBA’s Board of Governors to force Sterling to sell the Clippers.

Appeals Ct Says OK for Supervisor to Throw Things

shoeA federal appeals court panel  has ruled that a supervisor did not violate the rights of a subordinate when he allegedly yelled at her in front of coworkers and violently threw a heavy notebook at her.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the above conduct may be  “unprofessional, uncivil and somewhat boorish” but it does not rise to the level of malevolence necessary to constitute a “hostile work environment” under Title VII of the Civil Rights Act o f 1964.

Instead, the appellate panel compared the behavior to the “ordinary tribulations of the workplace,” which include petty insults, vindictive behavior and angry recriminations.

The  decision, written by Justice Janet Rogers Brown, comes in a case that is also unusual because it involves the Merit Systems Protection Board, an independent agency charged with addressing the grievances of federal workers who challenge discriminatory employment practices.

Patricia A. Brooks, who is an African-American, filed a race discrimination complaint alleging that she was a victim of a “hostile workplace environment” at the Office of Information Resources Management of the MSPB.

Brooks, who had worked at the MSPB since 1998, said her supervisor in 2005 insulted and demeaned her in front of coworkers when he yelled at her and threw a heavy notebook in her direction.  The supervisor admitted slamming the book with his hand. Brooks said she was subsequently given poor performance ratings and became subject to selective enforcement of workplace rules.

After filing several equal employment opportunity complaints, Brooks filed a lawsuit alleging  race discrimination and retaliation in violation of Title VII.  A federal judge dismissed Brooks’ complaint on a pre-trial motion for summary judgment, which means the judge ruled that no reasonable jury could find that the supervisor’s “conduct was so severe and pervasive as to alter the conditions of Brooks employment.”  The three-judge panel for the D.C. Circuit court upheld the dismissal of  Brooks’ complaint.

Justice Brown writes in an April 15 decision that Brooks failed to show that she was subjected to “discriminatory intimidation, ridicule and insult” that was “sufficiently severe or pervasive to alter the conditions of [her] employment.”  Justice Brown said the panel evaluated the “totality of the circumstances, including the frequently of the discriminatory conduct, its severity, its offensiveness and whether it interferes with an employee’s work performance.”

Even if the supervisor did violently throw a book at Brooks, the appellate panel said, the incident involved “unprofessional conduct” but was isolated and not sufficiently malevolent to constitute actionable abuse.

A retaliation complaint and other other claims were rejected on technical grounds.

See Patricia Brooks v. Susan Tsui Grundmann, chairman, Merit Systems Protection Board, No. 12-5171.

 

EEOC to Examine National Origin Discrimination

EEOCAn aspect of discrimination law that is gaining increasing attention is, not surprisingly, national origin discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC)will meet on Nov. 13 in Washington, DC, to examine issues and hear testimony related to the problem of national origin discrimination.

The backdrop of the EEOC’s meeting is impending immigration reform and the rise in the percentage of foreign-born workers in the U.S. workforce.

The Bureau of Labor Statistics (BLS) reported in May that there are 25 million foreign-born persons in the U.S. labor force, making up 16.1 percent of the total workforce. Hispanics accounted for 48.3 percent of the foreign-born labor force in 2012 and Asians accounted for 23.7 percent. The BLS reports that  the proportion of the foreign-born labor force made up of 25 – 54 year olds (75.6 percent) is now higher than for the native-born labor force (63.4 percent).

Under Title VII of the Civil Rights Act of 1964  and EEOC rules “national origin” discrimination includes the denial of equal employment opportunity because of an individual’s place of origin, their ancestor’s place of origin,  or because of the physical, cultural or linguistic characteristics of a national origin group.

Counsel for employers, in written testimony submitted to the EEOC, describe the enormous challenges faced by employers in tackling discrimination issues involving foreign-born workers.

Douglas J. Farmer, of Ogletree, Deakins, Nash, Smoak & Stewart, writes that  many foreign-born workers have little or no understanding of basic legal prohibitions on discrimination or harassment, have never seen an anti-harassment policy, and have never participated in anti-harassment training.  In one workplace, he states, an employer was confronted with a workforce in which workers spoke 60 different languages and dialects.

“Several of our employer clients have expressed concern that employer cost and lack of technical expertise present significant obstacles to the translation and effective implementation of policies and training programs,” Farmer writes.

He urged the EEOC to make anti-discrimination and harassment policies and educational programs available in multiple languages  to help employers convey these concepts to foreign-born employees in a cost-effective manner.

Rebecca  Smith, Deputy Director of the National Employment Law Project (NELP), urges the EEOC to address  “second-generation discrimination” practices that involve cultural attributes (language, accent) as well as stereotypes associated with a particular national origin or ethnic group. She said this form of discrimination can be seen in discriminatory recruitment practices and occupational segregation by ethnicity or national origin   For example, a restaurant may employ an Hispanic worker as a dishwasher but not as a server because of his or her accent.

Smith also said some unscrupulous American employers are using labor recruiters from the source country that are notorious for discrimination to handle the hiring of foreign-born workers, while arguing that they are not responsible for labor violations committed by their recruiters. In this way, Smith writes, the employer can shift labor costs and liabilities to the smaller entity, which is often an undercapitalized firm that cannot satisfy potential judgments against it

Smith also writes that harassment and threats of deportation are “almost standard operating procedure” in some guestworker-dominated work sites

NELP estimates that eight million undocumented workers form 5.2 percent of the U.S. labor force.

Perhaps it is a sign of the times but no union representative is slated to testify before the EEOC at the hearing.

‘No Swords’ Rule Religious Discrimination?

A federal appeals court has reinstated a claim of religious discrimination filed by a former Internal Revenue Service worker who was fired for going AWOL after security agents wouldn’t admit her to the federal building in Houston, TX, because she was wearing a  Sikh religious ceremonial sword.

In Tagore v. United States, (5th Cir., Nov. 13, 2013), the 5th Circuit Court of Appeals remanded for reconsideration Kawaljeet Tagore’s claim that her rights under the Religious Freedom Restoration Act (RFRA) were abridged when she was prevented from reporting to work for the IRS by security guards who denied her admission to the federal building.

The Federal Protective Service said  Tagore could not wear the sword, which is called a kirpan, into the federal building because it had a three-inch blade that fell within the statutory definition of  a “dangerous weapon … readily capable of causing death or serious bodily injury … .”.  A federal statute (18 USC Sec. 930) prohibits weapons with blades more than 2.5 inches in length from being taken into  federal building.

A kirpan resembles a knife or sword but has an edge that is curved or blunted. It is meant to remind its bearer of a Sikh’s solemn duty to protect the weak and promote justice for all.

The RFRA provides that a “religiously neutral” law that burden a persons’ exercise of religion must be necessary for the “furtherance of a compelling government interest.”

The appeals court  said the Federal Protective Service issued a Policy Directive after Tagore’s case was dismissed by the lower court that permits the granting of exemptions in federal buildings for Sikh articles of faith. The appeals court said the policy contradicts the government’s claimed need for uniform application of the weapons ban.

The appeals court said its ruling did not reflect upon the merits of the government’s security concerns, adding:

“Precisely because kirpans may be dangerous weapons in the wrong hands or may fall into the hands of evildoers who are not Sikhs, there would seem to be support for certain limitations, e.g.on blade length, security clearance status of the bearer of the kirpan, the frequency of the bearer’s visits to a particular federal facility, the degree or method of concealment, or degree of attachment tothe person’s body.”

The Court dismissed another claim in the case involving Title VII of the Civil Rights Act of 1964.  The court said the IRS was not required to accommodate Tagore’s request for a waiver that would enable her to wear the kirpan because the request placed the IRS at odds with the Federal Protective Service and federal law.  “An employer need not accommodate an employee’s religious practice by violating other laws,” said the appeals court.

Tagore refused requests by the IRS to wear a kirpan with a blade shorter than 2.5 inches, to wear a dulled blade sewn in its sheath, to wear a plastic or lucite kirpan or to leave her kirpan in her car while she was in the federal building. She said all of these options  would violate her conscience or religious mandates.

Tagore’s attorneys argued that kirpans are less dangerous than scissors, box cutters, or other objects that are regularly brought into federal buildings.

Sikhism, which originated in the 15th Century in the Punjab region of South Asia is one of the  world’s largest religions, with over 25 million adherents. The current Prime Minister of India, Manmohan Singh, is a practicing Sikh. Devout Sikhs are mandated to keep five articles of faith at all times: unshorn hair, a wooden comb, an iron bracelet, cotton undergarments and the kirpan.

Tap on Wrist for ‘Egregious’ Sexual Harassment

Ct Slashes Jury’s Punitive Award

A decision by the U.S. Court of Appeals for the Ninth Circuit  this week raises questions about  the way courts calculate damage awards in discrimination cases.

A three-judge panel of the San Francisco-based court reduced what started out as a $868,750 jury award for punitive damages in a sexual harassment case to $125,000.

The defendant is the American Smelting and Refining Company (ASARCO),  a Sahuarita, Arizona company owned by Grupo Mexico Corp. that is the third largest copper producer in the US, with estimated earnings in excess of $800 million.

The appeals court agreed that ASARCO employee Angela Aguilar was the victim of “particularly egregious” sexual harassment while working for ASARCO from December 19, 2005 to November 8, 2006.  However, the court said it was required to lower the award because the ratio of punitive damages was excessive compared to the $1 the jury awarded Aguilar for compensatory damages .

Punitive damages are supposed to deter the defendant from engaging in future similar conduct. In other words, the punitive damages should be significant enough to get an employer’s attention so that it will change the illegal practices that led to the damages in the first place.   Will a $125,000 punitive damage award compel a billion dollar corporation to eliminate serious  sexual harassment at the Arizona plant? Not likely.

Statutory cap

The jury’s original punitive damage award was actually hit with a double whammy.

The lower court immediately reduced the $868,750 punitive damage assessment to $300,000 pursuant to a statutory cap placed on such awards by the U.S. Congress.  However, the  lower court refused to further reduce the punitive damage award because of the egregious nature of the harassment suffered by Aguilar.  ASARCO had argued the award should be reduced to $2,500.

The appeals court agreed that ASARCO’s conduct supported  a “very large punitive award” but said the U.S. Supreme Court ruled in 1996 that punitive damages must bear a “reasonable relationship”  to compensatory damages under the due process clause of the U.S. Constitution.  If left to stand, the appeals court said, the ratio of $300,000 in punitive damages to $1 in compensatory damages would be among the highest (if not the highest) ratio since 1996.

“The Supreme Court has repeatedly emphasized the importance of the ratio inquiry and we cannot set it aside … [W]e conclude that the highest punitive award supportable under due process is $125,000, in accord with the highest ratio we could locate among discrimination cases.”

One member of the three-judge appellate panel, Judge Andrew D. Hurwitz, issued a partial concurrence/dissent, arguing the court should affirm the earlier $300,000 judgment because it fell within the statutory cap on damages in Title VII cases.

The Harassment

Here’s a very abbreviated account of what Aguilar experienced while working  at ASARCO:

  • Her supervisor, a very large man, asked her out every day and refused to train her or help her when she rejected him. When she asked for help, he would press up against her. She was afraid he might rape her. ASARCO’s HR Department and said there was nothing it could do.  She transferred to another unit.
  • There was no functioning women’s restroom in the building so the company rented a “porta-potty” for Aguilar’s use.  It was vandalized repeatedly with pornographic graffiti directed at her. She reported it to HR and the mill supervisor in 2006 but photos showed that visible pornographic graffiti remained on the toilet in 2007.
  • Another supervisor told Aguilar “your ass is mine” and often gave her conflicting orders, snapping his fingers at her, telling her to watch herself, yelling at her and threatening her with termination.  Needless to say, management did nothing when Aguilar complained. ASARCO maintained in the litigation that the supervisor’s behavior was not motivated by sex but instead by his general boorishness toward everyone.

Aguilar finally quit.

The case, State of Arizona v. ASARCO, was initially filed by Arizona on behalf of Aguilar and the state. Aguilar subsequently filed her own lawsuit.