employment discrimination – When The Abuser Goes To Work…

Apple Takes Workplace Harassment To New Realm

Antonio Garcia Martinez would not gain entry to my inner circle because he seems immature and misogynist.

But should Apple, Inc. fire him as a product engineer on Apple Inc.’s advertising platform on the basis of my feelings, without any evidence that Martinez engaged in illegal harassment on the job?

The answer is no.

Yet, Apple Inc. has effectively banished Martinez from its ranks after only a few months on the job because Apple workers objected to passages in Martinez’ 2016 book about his work as a product manager at Facebook, Chaos Monkeys: Obscene Fortune and Random Failure in Silicon Valley.

Under the law, a hostile workplace is one where an employee or employees are victims of severe and pervasive “unwelcome conduct” based on a protected characteristic (i.e. sex, race). A few offensive comments generally don’t suffice, let alone one or two overheated passages from a six-year-old book.

If Apple didn’t offer Martinez a hefty financial incentive to voluntarily resign, it may find itself in court in the near future.

Tolerance

The most objectionable passage in Martinez’ book appears to be his contrast of his then-girlfriend – a guerilla type cartoon character taken right out of a video game – with “most” women in Silicon Valley, whom he characterized “soft and weak, cosseted and naive despite their claims of worldliness, and generally full of shit.”

A Primer On How Employers Can Exempt Themselves From Civil Rights Laws

What are the chances employers will hire job applicants who opt-out of a “voluntary” clause that requires them to forgo their right to file a lawsuit if they are subject to future civil rights violations?

Lori Burchett thought the odds were not good when she applied to work as a “My Stylist” at a Macy’s Inc. store at Oak Brook Center in Illinois in 2017. In any case, she didn’t want to gamble. She needed a job.

Burchett, then 58, agreed to something that was clearly not in her best interests, a clause requiring her to submit to arbitration any future claims of employment discrimination based on age, gender and race.

In the following months, Burchett alleges she encountered gross age discrimination from managers and coworkers that led to her termination by Macy’s in 2018.

U.S. District Judge Sharon Johnson Coleman earlier this month dismissed Burchett’s age discrimination lawsuit and granted Macy’s motion to compel arbitration in the case.

Judge Coleman notes that Burchett, who represented herself, “contends that Macy’s would not have hired her if she did not sign the arbitration agreement.”

But Judge Coleman said Macy’s legal team provided “painstakingly detailed evidence and averments” that Burchett was informed in advance of hire that she could opt-out of the arbitration clause.

“Without proof to the contrary, courts will not presume that arbitration is unfair or biased, especially in light of federal policy favoring arbitration,” ruled Judge Coleman.

Apparently, Burchett’s “averments” did not constitute evidence or proof to the contrary.

The implications of Judge Coleman’s ruling is that employers can easily exempt themselves from being sued in federal courts for future violations of U.S. civil rights laws simply by asking job applicants to sign a “voluntary” arbitration clause in an employment agreement.

Employers Eschew Settlement in Class Actions

Employers are settling fewer class action employment discrimination cases than at any time in recent history.

This is a finding of the employer defense law firm, Seyfarth and Shaw, LLP, in its Annual Workplace Class Action Litigation Report: 2014 Edition.

The tone of the report is almost gleeful as it chronicles pro-employer rulings by the U.S. Supreme Court in the past five years that make it much more difficult for employees to prevail in class action lawsuits against employers.

According to the report, the total amount for the top ten largest employment discrimination class action settlements in 2012 was $48.6 million, compared to $282.1 million in 2007 and $91 million in 2006. The number was higher in 2013 ($234.1 million) because of a single $160 million settlement. However, when that settlement is deducted, the 2013 represents the second smallest settlement figure in the past decade.

The firm attributes the reduction in class action settlements to two decisions by the U.S. Supreme Court, Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) and Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which “influenced settlement strategies in workplace class actions in a profound way.”

The report states Comcast and Walmart decisions have “impaired the ability of the plaintiffs’ bar to convert their case filings into blockbuster settlements” and improved the “ability of defendants to dismantle large class cases, or to devalue them for settlement purposes.”

“ Simply stated, Wal-Mart and Comcast Corp. aided employers to defeat, fracture, and/or devalue employment discrimination class actions, and resulted in fewer settlements at lower amounts.”

The Comcast decision, decided by a slim 5 to 4 majority, added a new weapon to employers’ arsenals in challenging class certification. The majority held that individual issues of damages may preclude class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. This means the plaintiffs may have to conduct hundreds or perhaps thousands of mini-hearings on the issue of damages, raising the cost of the litigation to prohibitive levels.

The Comcast decision has “sharply curtailed” the ability of plaintiffs to obtain certification on the damages and “provides companies with a significant and rational defense to class certification in class actions,” according to the report

The 2011 Walmart decision held that a small group of female employees of the world’s largest retail chain did not have enough in common with other Walmart female employees to constitute a class in a sex discrimination lawsuit. The Court unanimously ruled in Walmart’s favor, although Justice Ruth Bader Ginsburg concurred in part and dissented in part, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The consistent conservative majority on the Court includes Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito.

Roberts Tells Congress to Set Aside Politics?

Chief Justice John G. Roberts Jr. has called on Congress to set aside politics when it comes to funding the federal courts.

Oh, the irony.

In his year end report, he wrote, “The United States courts owe their preeminence in no small measure to statesmen who have supported a strong, independent, and impartial judiciary as an essential element of just government and the rule of law.”

This from a Supreme Court justice who is considered to be the most pro-business, anti-worker justice since World War II.

One cannot help but wonder how the Court hopes to rally public support when it has consistently refused to allow its proceedings to be televised and has provided virtually no leadership to encourage the use social media and internet technology to better serve the public. The Roberts’ court has done little, if anything, to help the public understand the importance of the judiciary is a democratic society.

The U.S. Supreme Court who?

A suggestion for Congress – this might be a good time to encourage the Court to open its doors to television cameras.

Moreover, the Roberts’ court appears to be terribly, woefully and sadly out of touch with the masses, tuning out the little folk who pay federal judges’ hefty salaries while providing a megaphone to the U.S. Chamber of Commerce.

Roberts is seeking $7 billion appropriation in 2014, which compares to $6.97 billion allocated last year (reduced by about $300 million by sequestration, after Congress gave the courts an additional $51 million in October). The Court has passed along budget cuts to federal public defender offices, clerks, parole and probation officers.

The business of federal courts appears to be down overall. Filings in civil and criminal cases grew by 1 percent in 2013 but filings in appeals courts dropped by 2 percent; filings in the Supreme Court dropped by 2.6 percent; and, filings in bankruptcy courts dropped by 12 percent.

One reason for the decline may be that victims of employment discrimination are foregoing the use of federal courts because of the hostility of federal judges to job discrimination claims.

A 2013 article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Roberts and Associate Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946. And three other current conservative justices are in the top ten of most pro-business justices since 1946. They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

Appeals Ct Sides with EEOC in Conciliation Dispute

A federal appeals court in Chicago has departed from several other federal circuits by ruling that judicial review is not appropriate over efforts by the U.S. Equal Employment Opportunity Commission to settle employment discrimination complaints.

Title VII of the Civil Rights Act directs the EEOC to try to negotiate an end to an employer’s unlawful employment practices before it seeks a judicial remedy but it does not require the EEOC to actually reach a settlement.

Nevertheless, several federal appeals courts have allowed employers to raise an affirmative defense in employment discrimination cases that the EEOC failed to engage in good faith settlement negotiations prior to filing a lawsuit. This is referred to as a “failure-to-conciliate” defense.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled last week that an implied failure-to-conciliate defense would add an “unwarranted mechanism” in Title VII by which employers could avoid liability for unlawful discrimination. “They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle,” said the panel.

In addition, the panel said, the implied failure-to-conciliate defense runs “flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process ‘as evidence in a subsequent proceeding.’”

Six other federal circuits – the Second, Fourth, Fifth, Sixth, Tenth and Eleventh Circuits – allow some form of judicial review over the sufficiency or good faith of the EEOC’s conciliation efforts.

The 7th Circuit ruling came in a 2008 sex discrimination case filed against Mach Mining, which allegedly refused to hire female applicants for coal mining jobs. After investigating, the EEOC found there was reasonable cause to believe Mach had discriminated against a class of female job applicants at its Johnston City site. The EEOC engaged in informal conciliation with Mach but in 2011 the EEOC concluded the parties could not agree and filed a lawsuit.

Mach argued the suit should be dismissed because the EEOC failed to conciliate in good faith. The EEOC did not contend that its efforts were either sincere or reasonable, only that they were not reviewable as a defense to unlawful discrimination.

The 7^th Circuit panel said the U.S. Congress gave the EEOC broad discretion to negotiate as it sees fit, including the power to accept or reject any offer or proposed settlement for any reason. “Nor can Mach Mining explain just how many offers, counteroffers, conferences, or phone calls should be necessary to satisfy judicial review, despite repeated invitations to provide the court with a workable standard,” it added.

The U.S. Chamber of Commerce filed a brief in the case arguing that it was necessary to keep the EEOC on a tight leash to avoid “agency shenanigans” but the 7th Circuit panel noted the EEOC filed only 122 merit lawsuits in 2012. “That so few unsuccessful efforts at conciliation end up in court shows how constrained the agency is by practical limits of budget and personnel,” said the appeals court.

The panel remanded the case, EEOC v. Mach Mining, No. 13-2456, to the lower court for further proceedings.

In brutally harsh decision last fall in EEOC v. CRST Van Expedited, Inc., Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled that the EEOC must pay CRST, one of the nation’s leading transport companies, a judgment of $4,694,422.14 stemming from a lawsuit filed by the EEOC alleging sex discrimination. Judge Reade dismissed at least 67 class members from that case because the EEOC’s allegedly failed to conciliate with CRST with respect to each individual class member.