Now Start Disclosing Records Of Employer Misconduct

A federal appeals court panel this week approved publicly disclosing records of unsubstantiated misconduct complaints lodged against law enforcement authorities in New York City.

Now let’s extend that rule to employers.

The U.S. Equal Employment Opportunity Commission (EEOC) has long refused to disclose any details with respect to discrimination complaints filed against employers. The EEOC even hides from public view its decisions adjudicating those complaints. Many complaints in which the EEOC found probable cause the employer engaged in discrimination are quietly settled pursuant to mediation or conciliation agreements. No one is ever the wiser.

The EEOC’s secrecy rule permits discriminatory employers to avoid accountability for violating laws that ban discrimination based on age, race, sex, disability, religion, color, national origin, etc. Some nefarious corporations undoubtedly make it a cost of doing business to pay off discrimination victims.

If the public has a right to know when a police officer or firefighter is charged with misconduct, there is no justification for permitting employers who are charged with violating civil rights laws to hide behind confidentiality laws. At the other end of the spectrum, courts should stop the practice of sealing out-of-court discrimination settlements from public view.

Courts should stop sealing from the public view out-of-court settlements in discrimination cases.

Prospective job applicants have a right to make informed decisions about whether to take a job with a prospective employer that discriminates based on race or age. Members of the general public should be allowed to patronize only employers that treat their workers well.

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Mocking Comments of Tourette’s Syndrome May Cost Costco

A federal appeals court in New York has shed light on when simple teasing crosses the line and gives rise to a “hostile” work environment under the law.

A three judge panel for the U.S. District Court of Appeals for the Second Circuit this week overturned the dismissal of a hostile workplace claim filed by a veteran Costco employee with Tourette’s Syndrome and Obsessive-Compulsive Disorder.

It was a case of first impression for the 2nd Circuit, which joined several other federal circuits in finding that hostile work environment claims are cognizable under the Americans with Disability Act (ADA).

The plaintiff,  Christopher Fox, a 21-year veteran employee at a Costco store in Holbrook, NY, said he began experiencing higher levels of stress after a management change in 2013. He was reprimanded for making inappropriate comments to two female customers and reassigned from a Greeter position to an Assistant Cashier position, where he had less contact with patrons.

In his new position, Fox said, Costco employees began mocking him and made “hut-hut-hike” remarks to mimic Fox’s strategy for avoiding verbal and physical tics. He claimed the abuse was audible to managers, who did nothing.

Fox’s verbal and physical tics mocked with reference to football play

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The New Untouchables – Wall Street Crooks

Most of the federal appellate decisions I read every week attempt to justify why federal judges were  correct when they summarily dismissed a worker’s claims against an employer before the case even got to a jury.

So few of these cases make it through the federal judiciary that it has raised questions about objectivity and balance.

Perhaps that is why it is so irksome that the U.S. Department of Justice failed to criminally prosecute even a single Wall Street executive in connection with the 2008 collapse of Wall Street, which caused widespread unemployment and a massive loss of wealth for senior citizens who are facing an uncertain retirement.  ( Note: The PBS show Frontline did a superb job examining the DOJ’s failure to prosecute in the documentary, The Untouchables.)

Now it appears the U.S. Securities and Exchange Commission – which at least did something even if it was too little, too late – is effectively foreclosed from bringing future prosecutions for civil fraud arising from the Wall Street meltdown.

The U.S. Supreme Court unanimously ruled last month in Gabelli v. SEC that while some private plaintiffs can extend the statute of limitations through the so-called “discovery rule,” the SEC cannot.  The Court held that the five-year statute of limitations for the SEC to bring a civil suit seeking penalties for securities fraud against investment advisers begins to tick when the fraud occurs, not when it is discovered.

Is it over? Will the titans of Wall Street who brought down the economy to fill their own pockets   continue to summer in Nantucket and winter in the Carribean?  It seems so.

The SEC alleged that Marc Gabelli, a portfolio manager, and Bruce Alpert, chief operating officer at the investment firm Gabelli Funds, LLC, allowed a client to engage in a trading technique known as “time zone arbitrage”  from1999 and 2002 while assuring  other investors in the same mutual fund that the technique would not be tolerated. Time zone arbitrage unfairly takes advantage of the differing time zones between markets. The SEC launched its investigation in 2003, but did not file a complaint until 2008.

Gabelli and Alpert argued the SEC waited too long to bring charges against them.  The U.S. Court of Appeals for the Second Circuit in New York  disagreed, ruling that the time runs out five years after the agency discovers — or could have reasonably been expected to discover — the fraud.

In a 9-0 ruling, the U.S. Supreme Court in Gabelli v. SEC reversed the appellate court and said the SEC cannot extend the statute of limitations through the so-called “discovery rule.” Chief Justice John Roberts wrote:  “Unlike the private party who has no reason to suspect fraud, the SEC’s very purpose is to root it out, and it has many legal tools at hand to aid in that pursuit. It can demand that securities brokers and dealers submit detailed trading information.”

In some respects, the Supreme Court’s decision represents good public policy because it requires federal investigators to move quickly and protects innocent  citizens  from costly and protracted investigations.  But in another sense, the Court’s decision represents very bad public policy because iIt contributes to what courts like to call the appearance of prejudice. Many citizens feel – with good reason – that the system is tilted in favor of the rich and powerful and the Gabelli decision does nothing to disabuse them of that notion.

Meanwhile, Eric H. Holder Jr., the nation’s attorney general, remained unapologetic this week:

 “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute — if we do bring a criminal charge — it will have a negative impact on the national economy, perhaps even the world economy,”

So much for the Dodd Frank financial regulation law, which was the .Obama administration’s remedy for problem of banks that are too-big-to-fail.

Band-Aid Not Enough in Sexual Harassment Case

NOTE:  On 1/23/13, a federal judge  denied a request from a lawyer for Paul’s Big M Grocer to reduce the $467,269 punitive damages portion of the jury verdict against the store, former manager Allen Manwaring and the store’s owner, Karen Connors.

A federal appellate court panel has issued an important ruling that it is not enough for employers to pay off victims of sexual harassment. They also must fix the underlying problem that led to the harassment.

The U.S. Court of Appeals for the Second Circuit in New York ruled on Oct. 19, 2012 that a lower court abused its discretion in denying any injunctive relief in a sexual harassment case brought by the U.S. Equal Employment Opportunity Commission.

Injunctive relief is essentially a court order that requires the employer to stop the practices that led to the discriminatory conditions.

“At minimum, the district court was obliged to craft injunctive relief sufficient to prevent further violations of Title VII by the individual who directly perpetrated the egregious sexual harassment at issue in this case,” ruled a three-judge panel of the appeal courts.

The case, EEOC v. Karenkim, Inc., 11-3309 (2nd Cir. 2012), involved  Paul’s Big M Grocer, which is owned by Karenkim, Inc.,  in Oswego, New York. Karenkim  was found liable for sexual harassment and fostering a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964.  The jury awarded the ten members of the class of defendants a total of $10,080 in compensatory damages and $1,250,000 in punitive damages. The  award was subsequently reduced pursuant to a statutory cap to a total of $467,269.

The store is owned and managed by Karen Connors, who hired the store manager, Allen Manwaring, in 2001.  Connors and Manwaring almost immediately began a romantic relationship and now are engaged and have a son together. Women who worked at the store, some as young as 16, complained to no avail that they were being sexually harassed by Manwaring. Some were  terminated after filing a complaint.

At one point, Manwaring was actually arrested and pled guilty to second degree harassment after he approached an employee, a  high school student, who was talking on the phone, stuck his tongue in her mouth as she was talking and then walked away “with a smirk on his face.”    In deposition testimony, Connors said she did not believe Manwaring had done anything wrong and accepted his explanation that he had “falleninto” the girl.

The store had no anti-harassment policy until 2007 and no formal complaint procedure until after the trial.

 The EEOC asked the court for an injunction because the store had “not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur.”  Specifically, the EEOC noted that Connors and Manwaring remained in a romantic relationship, that Manwaring still worked at the store as a produce contractor, and that following the verdict Manwaring continued to deny he had engaged in sexual harassment.

The district court denied the EEOC’s request for injunctive relief, ruling it was unnecessary and overly burdensome in that it would require the defendant to “alter drastically its employment practices …”

The appeals court said that ordinarily terminating a lone sexual harasser might be sufficient to eliminate the danger that the employer will engage in subsequent violations of Title VII. In this case, however, the Appeals Court noted that Manwaring,  the store manager, engaged in harassing conduct that was “unchecked for years” because he was involved in a romantic relationship with the owner – a relationship that continues.

The appeals court panel said the EEOC’s requested ten-year proposed injunction was overly broad but that the lower court at least should have prohibited the store  from directly employing Manwaring in the future and from entering the store premises. In addition to those provisions the EEOC had asked the court to order KarenKim to hire an independent monitor for the store.

The appeals court concluded that under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate. … Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.”