Wednesday, August 31, 2005

Ouch! - $800 hourly attorney fee award affirmed

A California Court of Appeals recently approved a plaintiff’s attorney’s fee award of $800 per hour in a sexual harassment case.  It’s an unpublished opinion, but can be found here (this is a direct link to an MS Word Document).

Friday, August 26, 2005

Looking Good and Job Requirements

Check out the en banc oral argument in Jesperson v. Harrah’s here.  (This is a direct link to a Windows Audio File!). The case deals with employer rules for sex-differentiated grooming standards.  We’ve got a bunch of articles discussing the 9th Circuit’s earlier decision here.

Friday, August 19, 2005

“Why We Hate HR”

I’m behind the curve on this one, but if you haven’t already seen it, check out his month’s issue of Fast Company.  The cover story seems to be generating some serious debate.

Monday, August 15, 2005

Outside the Statutory Time Period but Inside the Courtroom

Can an employee present evidence of an alleged discriminatory or harassing incident that occurred more than 300 days before that employee filed a charge with the EEOC?  Many would think that the answer is “no.”

Most HR professionals and employment attorneys are well aware that a charging party must file a charge with the EEOC or other agency within 180 days (or within 300 days if the alleged unlawful conduct occurred in a jurisdiction that has a local or state agency that handles fair employment practices charges) of the alleged unlawful occurrence.  However, the passage of 300 days without a charge filed certainly does NOT mean that evidence of the alleged occurrence will not ultimately be presented to a jury.  Let me explain . . . .

On July 21, 2005 the Equal Employment Opportunity Commission (“EEOC”) revised the portion of its Compliance Manual that addresses time limitations on filing employment discrimination charges.

Per the EEOC, it issued the revision to its Compliance Manual to reflect the holding of the U. S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In that case the Supreme Court noted that a hostile work environment claim may be based on a series of separate acts which collectively constitute the hostile work environment for which recovery is sought.  The Court found that as long as even one act contributing to the claim occurred within the filing period, all of the contributing acts during the entire period of the hostile environment can be considered for determining liability.  Thus the EEOC Compliance Manual now provides that in a hostile work environment claim, the entire claim, including incidents that occurred outside the filing period, is actionable as long as at least one incident that is part of the claim occurred within the filing period.

“Oh,” you say, “but at least the Supreme Court in National Railroad Passenger Corp. made it clear that discrete acts, such as termination, failure to promote, denial of transfer or refusal to hire are not actionable if time barred.” Do not be too quick to make that assumption. The EEOC creatively asserts in its Compliance Manual that even a discrete act may be argued to be part of a hostile work environment (and thus still actionable even if otherwise time-barred).  In doing so, the EEOC cites to a 2003 decision by the D. C. Court of Appeals, and disagrees with a 2004 decision by the Ninth Circuit Court of Appeals.  The EEOC does note that recovery for an untimely-asserted discrete act is limited to assessment of damages for the hostile work environment, and the charging party would not be entitled to specific relief, such as back pay or instatement, for the discrete act itself.

Both the Supreme Court in National Railroad Passenger Corp. v. Morgan, and the EEOC also point out that evidence of alleged discriminatory acts, for which no timely charge was filed, can also be admitted at trial and considered as background evidence in support of a timely claim.  Of course, once a jury has seen evidence of acts for which no timely charge was filed, there is no guarantee that the jury will not, consciously or subconsciously, factor those acts into their damage award in some way.

Finally, the EEOC takes the position in its Compliance Manual that if a claim alleges a pattern or practice of discrimination, and at least one act that is a component of the pattern or practice of discrimination occurred within the statutory filing period, there is no time limitation at all, and damages can be awarded for all acts that occurred as part of the pattern or practice, without regard to how long ago they occurred.

Monday, August 08, 2005

Are you a lovable fool? a competent jerk?

The June issue of Harvard’s Business Review includes a new study on work partners.  According to the abstract:

“New research shows that work partners tend to be chosen not for ability but for likeability. Drawing from their study encompassing 10,000 work relationships in five organizations, the authors have classified work partners into four archetypes: the competent jerk, who knows a lot but is unpleasant; the lovable fool, who doesn’t know much but is a delight; the lovable star, who’s both smart and likeable; and the incompetent jerk”.

Clearly, everyone wants to work for the lovable star, but most people would rather work for the lovable fool than the competent jerk.  That doesn’t surprise me (having had to work for a number of competent jerks over the years), but what’s the lesson to learn?  Attempt to reform the jerks in your organization and recognize that it’s not always foolish to keep a few fools around.

Friday, August 05, 2005

Sending the Wrong Message

According to a new Tulane University study, flirtatious women get fewer raises and promotions.  You can check out the article here.  I’m no economist, but something about this study strikes me as odd.  The study is based on self-reporting by 164 MBA graduates, in which they were asked to respond to ten questions about their conduct at work, including “I flirt with people at work” (all 10 are reproduced below).  While 49% of the women reported engaging in at least one of the 10 behaviors, almost all of the women said it was “infrequent”.  I haven’t seen the actual study (to be released on Monday), but if I’m reading the article correctly, women who infrequently flirt with co-workers will be promoted, on average, one less time than women who never engage in this type of behavior.

Obviously, the issue is not whether the two are correlated, but whether the flirty behavior causes the managerial decision not to promote or grant a pay raise.  I’m not sure whether the study does (or can) prove causation, but how can you control for the myriad of policies and procedures that govern promotions and raises?  If you’ve ever had the misfortune of litigating a failure to promote or an Equal Pay Act case, particularly in a large company, you know how tedious it can be to ferret out the causes for these decisions.

Ten Questions:

Thursday, August 04, 2005

Firing Employees in the Information Age

If you didn’t think it was already tough enough to fire an employee, check out this web site.  It’s dedicated to stories submitted by former employees about their terminations.  If I had to guess, it’s a marketing strategy for an affiliated site (a search engine for job postings).  I read through a couple of “stories” and none of them seemed silly, outrageous or embarrassing to me (at least not the ones that sounded true).  Most of them just made me cringe.  One of the posts is titled “Fired Over Known Handicap”.  Who’ll be surprised if some company files suit, claiming it was defamed by one of the stories?  (On a related information-age lawyering note, always remember to seek discovery on an employee’s post-employment communications—you might be surprised by what you find).