U.S. Supreme Court decides for the little guy

California Courts interpreting California anti-discrimination laws often look to federal court decisions interpreting federal anti-discrimination laws under “Title VII”. A recent U.S. Supreme Court case, Burlington Northern & Santa Fe Railway Co. v. White (Decided June 22, 2006) is positive for employees who claim they have been injured by employer retaliation because they protested discriminatory employer actions.

In Burlington, plaintiff Sheila White was the only woman working in her department as a forklift operator at Burlington Northern & Santa Fe Railway Co. After White complained internally that her supervisor had remarked several times that women should not be working in such a department, Burlington removed White from her forklift duties and assigned her to perform laborer tasks. Burlington explained that the reassignment reflected co-worker’s complaints that a “more senior man” should have the “less arduous and cleaner job” of forklift operator.

White then filed an EEOC complaint based on unlawful gender discrimination and retaliation. A few days after the filing of her complaint, Burlington suspended White without pay after an alleged disagreement with her supervisor, who claimed that White was insubordinate. White invoked internal grievance procedures. Burlington concluded at the end of the grievance investigation that White had not been subordinate. Burlington therefore reinstated White and gave her back-pay for the 37 days she was suspended.White then filed a claim in federal court alleging that Burlington’s corrective actions were insufficient. She argued successfully that reinstatement and back-pay did not address the full measure of her losses, including her emotional injury.

Burlington argued that White wasn’t harmed enough to justify a lawsuit. The Supreme Court focused on just how much employment harm must occur for an employee to prove “adverse employment action”. Requiring an employee to have extreme or obvious economic harm would operate to limit the number of cases that would succeed. On the other hand, requiring little injury would operate to put employer’s on notice that retaliation, even if mild, could result in liability. The test adopted by the U.S. Supreme Court was whether, from the viewpoint of a reasonable employee, the actions taken against the employee were sufficient to deter the employee (and others like her) from complaining about illegal discrimination. The Court found that being without pay for 37 days would deter a reasonable employee from exercising her rights to complain internally of discrimination, even if she had access to a grievance procedure.

The California Supreme Court in Yanowitz v. L’Oreal (2005) addressed much the same question as the U.S. Supreme Court in Burlington, but reached its decision some months before the federal court. The Yanowitz Court held that an employee suing for retaliation under California’s anti-discrimination law must demonstrate that the employer's retaliation caused a "material affect" on the "terms, conditions, or privileges of employment". The State Supreme Court explained that a “material affect” was one that 1) detracted the employee from her job performance, 2) discouraged her from remaining on the job, and 3) kept her from advancing in her career.

The two Courts, while using different standards of “deterrence” [Burlington] or “material affect” [Yanowitz] actually are quite close in how they define “adverse employment action”. Therefore it is likely that California Courts will rely on the analysis of the Burlington Court to decide future State discrimination/retaliation cases. Employee attorneys would be wise to cite the Burlington case as a source of guidance, if not precedent, when presenting proof of "adverse employment action".

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Putting your money where your mouth is

In California, abusive language can cost about $3195.17 per word. Hope v. California Youth Authority, 134 Cal. App. 4th 577 (2005)

The jury awarded Bruce Hope $917,104 in economic damages and $1 million in emotional damages after he was repeatedly called demeaning names and his employer did nothing to stop the abuse.

While Hope worked as a cook at a youth correctional facility, he was subjected to several derogatory remarks based on his sexual orientation. Many of these remarks were made by his immediate supervisor, Marcellino, and a security officer assigned to the kitchen named Ortiz. Hope estimated that Ortiz called him a “faggot ass mother f****r”around 150 times.

Ortiz disliked Hope, in part because Hope had once reported Ortiz for giving an unknown substance to one of Nelles's youthful offenders, or wards. Hope believed that Ortiz's "whole attitude" toward him changed after this incident.

Ortiz called Hope a “faggot ass mother f****r” in front of the wards while they were serving dinner. Thereafter, the wards began treating Hope differently, calling him a "faggot" and ignoring his instructions.

Hope claimed that Ortiz "would take trash and throw it all over my area." Ortiz once threw a trash can in an area Hope had just cleaned. At other times, other individuals threw food or trash in a cleaned area. Each time, Hope had to clean the area without help.

Hope approached one of his supervisors, Hedgepath, who had witnessed the harassment against Hope. When his supervisor advised Ortiz to stop, Ortiz refused. Hedgepath, from then on, merely ignored Ortiz’s harassment. Although Hedgepath believed that Ortiz did not like Hope because of Hope's sexual orientation, Hedgepath did not report any of this to his superiors and told Hope he could not control the perceptions of others.

When Hope complained to the food manager, Yamamoto, she informed Hope that she believed the harassment was due to his sexual orientation. When Hope’s supervisor Marcellino referred to Hope as a "faggot" in front of other employees, Yamamoto made no effort to correct his behavior. She would simply tell Marcellino to "calm down."

Hope was promoted to a new position but then four days later, his promotion was revoked.

Hope complained to Yamamoto that "on many occasions" Ortiz had caused him problems, resulting in "an ongoing harassment problem." The memo concluded, "I would like some kind of resolution to these matters. I have exhausted all of my efforts to resolve these matters myself with no success. I am requesting assistance from you. This ongoing harassment ... by Mr. Ortiz needs to be addressed by higher authority."

No action was taken against Ortiz.

Hope began missing work because of stress. Hope’s psychiatrist testified at trial that the stress on Hope caused him to lose vision in one eye. Hope complained again, and this time got warned for sleeping in the bathroom, which Hope claimed was due to HIV medication he was taking.

The harassment towards Hope never stopped. Hope was placed on a medical leave of absence, but never returned to work

The Court of Appeals concluded that Hope believed that the work environment was hostile and offensive, and there was substantial evidence that Hope was subjected to harassment that was sufficiently severe or pervasive to create a hostile work environment.

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get redressed!"
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Monkey Business

The Gorilla Foundation in San Francisco recently settled claims by two former employees, Nancy Alperin and Kendra Keller, who were allegedly sexual harassed when forced to show a gorilla their bare breasts.

Apparently, the foundation president Francine Patterson interpreted the sign language of Koko the gorilla and determined that Koko was curious about the breasts and nipples of Alperin and Keller. The plaintiffs claimed that Patterson told them that "if [they] did not indulge Koko's nipple fetish, their employment with the Gorilla Foundation would suffer."

The plaintiffs believed that they were never informed prior to accepting their job offers that they would be required to take off their clothes to bond in a more personal way with Koko.

Both women claimed they refused to show Koko their nipples.

The Gorilla Foundation had denied that Patterson ever translated Koko's communications into sexual requests: "There are no allegations that Dr. Patterson's translations were sexual advances of any type, that the statements involved 'sex,' or that they resulted in any adverse consequences to Keller or Alperin," its response said. "There are no facts suggesting any discrimination based on conduct of a sexual nature."

Alperin and Keller asked for more than $1 million in damages in their sexual discrimination and wrongful termination suit. However, attorneys on both sides declined to comment on the terms of the settlement agreement.

Incidentally, Koko's first words, "eat," "drink" and "more," evolved into a vocabulary of some 1,000 signs, including such abstract concepts as "love," "jealous," and "shame." Koko actually had a live inter-species internet chat in 1998.

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Shuttling back and forth

Have you ever wondered whether you should be compensated for your travel time to and from work because, well, you're being forced to travel? A man named Bobby Overton attempted to be compensated by his employer for his travel time, and lost! He claimed that Disney should compensate its employees for the required mile long journey on the shuttle headed to the Happiest Place on Earth.

Of course, the Court was quick to point out that the shuttle was not the only way Disney employees could get to work. For example, some employees arrived in buses, some in trains, some were dropped off by friends and family, and some came in vanpools. The fact that these individuals did not take the shuttle indicated that the shuttle was not required.

The Court distinguished Overton's case from a claim brought by certain agricultural employees who were forced by their employer to park and group at the Disneyland parking lot, travel in the Disneyland shuttle that the employer paid for, and arrive at the fields where they worked. In this case, the employees were forced to take the shuttle by their employer, were subject to the control of the employer, and thus had to be compensated for their shuttle ride.

Overton's ingenuous solution of moving the time clock from the main entrance to the shuttle departure area in the Disneyland parking lot did not sit well with the Court. The Court noted that many employees could take advantage of this solution by walking (very slowly) to work instead of taking the shuttle, or having a hearty meal in between punching in and showing up for work. Also, with this solution, Disney would have to redirect employees who took other forms of transportation to the parking lot just so that they could punch in! Obviously, the Court decided not to force Disney to take such drastic measures and instead slapped Overton with the costs of Disney's appeal.

"If the pink slip doesn't fit,
get redressed!"
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Chicken plant sued for racial bias

The U.S. Supreme Court has recently held that racial discrimination may be evidenced by use of the term 'boy', regardless of whether a racial classification (such as 'black' or 'white') has been made.

The decision is one of the first with new Supreme Court Justice Samuel Alito.

Two African-American superintendants at Tyson Foods, Anthony Ash and John Hithon, sought to be promoted to two open shift manager positions. Ash had 15 years experience with Tyson Foods and Hithon had 13 years. Two white males were eventually selected for those positions instead. One of these white men had less than two years experience.

Ash and Hithon sued Tyson, alleging that they had been discriminated against on account of their race.

The Court found that there was evidence that a Tyson plant manager, who had made the decision not to hire Ash and Hithon, had referred to both Ash and Hithon on several occasions as "boy".

Ash and Hithon's attorney argued that the term "boy" was offensive, was considered a slur by other courts, and had its origins in the slave era.

The lawyers for Tyson Foods said that evidence showed the manager "was rude and curt to all employees - white and black - but had never used racial epithets."

The Court unanimously decided that even though the use of the word "boy" in and of itself did not always imply racial discrimination, there was a possibility that it could. According to the court, the meaning of the word depended on several factors, such as context, inflection, tone of voice, local custom, and historical usage.

The case has returned to the 11th U.S. Circuit Court in Atlanta for the court to reconsider the case.


"If the pink slip doesn't fit,
get redressed!"
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California law trumps federal law averaging minimum wage

In a case of first impression, the California Court of Appeal has ruled that even though federal law permits an employer to use the "averaging" method to determine if an employer has met its minimum wage obligations, California wage and hour law does not permit such "averaging."

In Armenta v. Osmose, Inc. (Dec. 29, 2005), plaintiffs were union members subject to a collective bargaining agreement that provided that employees should be paid hourly wages ranging between $9.08 to $20.00 per hour. The employer Osmose, Inc. was a business relating to the maintenance of utility poles. The plaintiffs' work time was classified as either "productive" or "nonproductive." "Productive" time was time directly related to maintaining utility poles in the field. "Nonproductive" time was all other time including, but not limited to, time maintaining and cleaning the trucks used during "productive" time, repairing tools, driving to and from job sites, preparing paperwork, and the like.

The plaintiffs claimed that, while they were paid for their "productive" time at their regular hourly rate of pay, they were not paid at all for their "nonproductive" time. Osmose claimed that when the number of hours the employees worked per week was divided into their wages for that time period, it "averaged" out to more than the minimum wage.

The trial court found that Osmose violated California's minimum wage laws by using the "averaging" method of determining minimum wage compliance. The Court of Appeal affirmed the trial court's decision. In so holding, the court explained that, while the "averaging" method is acceptable under the federal Fair Labor Standards Act (FLSA), it is not acceptable under California wage and hour law. The FLSA requires payment of the minimum wage to employees who "in any work week" are engaged in commerce. By contrast, California law requires employers to pay employees wages not less than the minimum wage "for all hours worked" in the payroll period. The court explained that this language requires employees to be paid for each hour worked.


"If the pink slip doesn't fit,
get redressed!"
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Sexual harassment can put damper on Christmas parties

From the Bakersfield Californian:

The two most worrisome terms a company personnel manager can string together in a sentence might be these: open bar and office Christmas party.

One employee’s idea of dance-floor enthusiasm might not agree with that of the co-worker he has just coaxed under the disco ball. One employee’s willingness to set aside his 9-to-5 inhibitions might not jibe with that of his more discreet associates. Add a half-dozen vodka tonics to that imbalance and it only gets worse.

Meet AB 1825, which becomes law Jan. 1. If you run a company with more than 50 employees or contract workers, you should already have been introduced. The new law, signed into law in September 2004 by Gov. Arnold Schwarzenegger (who, I’m told, knows a thing or two about sexual harassment allegations), requires employers to provide training for supervisors every two years.

Sexual harassment isn’t just an appropriate topic now because the law is about to take effect. It’s appropriate because we’re moving deeper into that most treacherous of potential sexual-harassment minefields, the company Christmas party.

“You get it all this time of year,” said Bakersfield attorney Daniel Klingenberger. “Employees need to remember that just because it’s outside of normal work hours, they still need to treat each other with respect. A lot of these issues have to do with respect. And hopefully people will show respect even after a couple martinis.”

Sexual harassment has been in the workplace vernacular for years but, even with companies paying plaintiffs sizable liability damages in court, some supervisors still don’t seem to get it.

“In some ways things haven’t changed much as far as the complaints I get,” Klingenberger said. “The jokes. The sexual innuendo. There’s probably less of that than there was. More and more people realize that’s off limits, but it certainly still happens.”

Bakersfield attorney Thomas Anton says that a company’s demonstrated level of commitment can mean almost as much as the actions of its employees.

“What’ll happen is, one of the plaintiff’s lawyers will say, ‘Wait a minute, has anyone taken a look at whether you’ve conducted your training?’” Anton said. “If you have, that’s one thing. But if you haven’t, that’s an indication you didn’t follow the law and you don’t care. Now we’re looking at punitive damages.”

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.