Tag: Title VII of of the Civil Rights Act

EEOC “Leadership” Says No Need for Code of Judicial Ethics

The EEOC has defended  the fact that it does not require EEOC judges to follow any code of judicial ethics.

In response to an ethics complaint, EEOC Associate Legal Counsel Carol R. Miaskoff ruled last month that EEOC judges are mere attorneys and not judges at all. “Because judicial standards do not apply, they could not have violated these rules,” states Miaskoff.

EEOC spokesperson Christine S. Nazer Friday rejected the premise that lack of a judicial ethics code is problematic.  “EEOC leadership feels its judges should be fair, impartial, and follow the law, and all evidence suggests that this is exactly what happens in our federal sector decision-making process,” she said.

Nazer said Acting EEOC Commissioner Victoria Lipnic declined to answer questions,  such as the following:

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Science Group Asks Congress to Change Sexual Harassment Laws

A study committee of the National Academies of Sciences, Engineering & Medicine is urging sate legislatures and Congress to pass new laws to better protect targets of sexual harassment from retaliation.

In a recently released report,  the Committee on the Impacts of Sexual Harassment in Academia states that current laws, policies and procedures don’t work because targets of sexual harassment fear retaliation if they report the perpetrator. The group stresses a change in culture and climate is necessary to halt sexual harassment in academia.

The committee, which began its work in 2016 prior to the #metoo movement, estimates that more than 50 percent of women faculty and staff and from 20 to 50 percent of women students “encounter and experience” sexually harassing conduct in academia.

The committee  includes scientists, engineers, physicians and experts in sexual harassment research, legal studies and psychology.

Judicial decisions encourage employers to achieve legal compliance and avoid liability, not to prevent sexual harassment.

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‘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.

EEOC Whacked Again on Background Checks

Ct Rejects Race Discrimination Initiative

Another court has rejected the U.S. Equal Employment Opportunity Commission’s initiative to combat race discrimination by limiting the use of criminal background checks in hiring.

The U.S. Court of Appeals for the Sixth Circuit in Michigan this week upheld a lower court ruling requiring the EEOC to pay $751,942.48 in fees and costs to Peoplemark, a temporary-employment agency with offices in Michigan, Tennessee, Kentucky and Florida.

The award includes $526,172 in fees to Peoplemark’s in-house expert, an amount the EEOC  called astounding, inappropriate and poorly documented.

 EEOC Director Jacqueline Berrien recently maintained that the EEOC does not challenge an employers’ decision to conduct criminal background checks but instead challenges screening processes that are not job related and consistent with business necessity and which have a disproportionate impact on African-Americans.

The EEOC filed a complaint in 2008 alleging that Peoplemark had a blanket policy of denying employment opportunities to persons with felony records and that this policy had a disparate impact on African Americans.

Obvious?

Initially, it appeared obvious that Peoplemark had a policy of denying employment to applicants with felony records. Peoplemark used  an application form that asked applicants if they have a felony record and conducted independent investigations into the criminal records of all applicants. Most importantly, Peoplemark’s Associate General Counsel Judd F. Olsten actually admitted to the EEOC that Peoplemark had a company-wide policy of rejecting felon applicants

Peoplemark did not did not deny the existence of a company-wide policy against hiring felons until July 2009 – almost two years after the EEOC began investigating and a year after the  EEOC’ filed its complaint.

The appeals court notes that Peoplemark had  turned over 178,888 discovery documents to the EEOC by Oct. 1, 2010 which showed that Peoplemark had referred felons to job opportunities.  The fee award  dates October 2010.

According to the appeals court: “When discovery clearly indicated (Peoplemark’s Chief Counsel’s) statements belied the facts, the Commission should have reassessed its claim.”

The appeals court also noted the EEOC identified a class of 286 individuals that included applicants that did not have felony convictions and applicants who obtained employment through Peoplemark despite their criminal records.

The EEOC and Peoplemark agreed by joint motion to dismiss the case in March, 2010, with Peoplemark held to he prevailing party for fee purposes.  The EEOC argued it could have filed an amended complaint stating a valid claim against e at that time, an argument the court found to be irrelevant.

The award includes  $219,350.70 in attorney’s fees, $526,172 in expert witness fees (for 123.55 hours of work) and $6,419 in other expenses.

The case involved a complaint by Sherri Scott, an African-American with a felony conviction, submitted an application and was not referred for employment.  She filed a discrimination complaint under Title VII of the Civil Rights Act and the EEOC began an investigation.

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.

The Attorney Generals  of West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah have complained about the EEOC background check policy.

The EEOC last summer filed lawsuits against BMW and Dollar General Store for refusing to hire individuals with felony records. In the Dollar Store case, the individual was incorrectly reported as having a felony record when she did not.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.