|
News
Read about the attorneys of White and Steele
making news and sign up for our Newsletter
-
The U.S. Supreme Court expands the scope of liability for employers
The U.S. Supreme Court held in CBOCS West, Inc. v. Humphries, (No. 06-1431), that 42 U.S.C. § 1981 (Section 1981), a law enacted just after the Civil War, which prohibits race discrimination in the making and enforcement of contracts, also protects persons who are subject to retaliation because they have complained about such discrimination – even though Section 1981 never mentions retaliation. Section 1981 was enacted after the Civil War and provides that "All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." The Court relied in large part on two of its earlier cases that had interpreted a similar law against discrimination to encompass retaliation claims.
Section 1981, which the Court earlier held prohibits discrimination based on ethnicity as well as race, offers plaintiffs three key advantages over the more well-known federal fair employment practice law, Title VII of the Civil Rights Act of 1964. First, although Title VII precludes plaintiffs from suing until they have first filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and waited for that agency to issue a right-to-sue notice, Section 1981 plaintiffs may sue without exhausting any administrative process. Second, while Title VII has a fairly short statute of limitations, requiring plaintiffs to file an EEOC charge within 180 or 300 days after an act of alleged discrimination or retaliation has occurred, Section 1981 gives plaintiffs four years after such an act has occurred in which to sue. Third, although Title VII allows employees to recover all lost wages and benefits, it limits how much a successful employee can collect for emotional distress and punitive damages, with the cap for such other damages ranging from $50,000 to $300,000, depending on the employer’s size. Section 1981, on the other hand, allows a plaintiff to recover unlimited compensatory and punitive damages.
In light of these differences, employers may expect current or former employees who believe themselves to have been subject to retaliation based on complaints about alleged race discrimination to sue under Section 1981 instead of or in addition to Title VII. Retaliation claims have generally increased since the Supreme Court's 2006 ruling in Burlington Northern v. White, which lowered the bar for retaliation claims. With retaliation claims already on the rise, employers should be particularly careful not to act in a manner that could be construed as retaliatory against employees who have engaged in protected activity.
In the wake of this ruling, employers should take care to:
- Make sure your organization has an effective anti-retaliation policy.
- Train your supervisors and employees to ensure compliance with the anti-retaliation policy.
- Encourage those who have engaged in protected activity to report any perceived instances of retaliation immediately so that such claims can be investigated promptly, corrective action taken if needed, and litigation can be avoided.
- Consult with experienced in-house or outside counsel before taking any adverse action against an employee who has engaged in protected activity
Employee’s own opinion as to why he was fired does not establish pretext
After an unsatisfactory performance review, an employee was placed on a performance improvement plan. Three months later, the employer fired the employee, and sent him a memorandum detailing the reasons for his firing. The memo stated that the employee had improperly performed a routine task, failed to take directions on a more complex task, modified a unit that he was not supposed to modify, and slept on the job. The employee sued his former employer claiming violations of Title VII of the Civil Rights Act of 1964, as amended. The United States Court of Appeals for the Tenth Circuit sided with the employer. The court explained that when an employer cites multiple nondiscriminatory reasons for an employment decision, the employee must then present evidence that the reasons are pretextual. In this case, the employee attempted to demonstrate that the reasons were pretextual by presenting his own opinions as to why he was fired. The court noted that it is the manager’s perception, and not the employee’s, that is the relevant factor in determining pretext. As this case demonstrates, employers should be aware of the importance of documenting legitimate nondiscriminatory reasons for employment decisions.
Sydney v. ConMed Elec. Surgery, No. 07-1414, unpublished opinion (10th Cir., Apr. 18, 2008)
-
The Equal Employment Opportunity Commission (“EEOC”) is revising its regulations under the Age Discrimination in Employment Act (“ADEA”) based on the U.S. Supreme Court's decision in Smith v. City of Jackson, 544 U.S. 228 (2005), which held that disparate impact on older workers can result in a claim under the ADEA, even if there was no overt intent to discriminate against older workers. But the Supreme Court found that an employer can defend a disparate impact claim by using "reasonable factors other than age" and did not need to defend the claim using the higher standard requiring "business necessity." The EEOC issued proposed regulation on March 31, 2008. The comment period on the proposed regulations ends on May 30, 2008.
-
A unanimous U.S. Supreme Court has ruled that 401(k) plan fiduciaries may be held responsible to employees for losses to their individual accounts that occur when the fiduciaries fail to execute employees' investment selections. Where things stand: The case has been sent back down for further proceedings, where the employee must prove that his employer breached its fiduciary duty. LaRue v. DeWolff, Boberg, & Associates, Inc., U.S. Sup.Ct., No. 06-856, 2008. For more information on this ruling or for questions regarding the decision, please contact Brett Wendt, Esq. at bwendt@wsteele.com or at (303) 296-2828.
Articles/Publications
White and Steele is pleased to announce that DRI's publication, For the Defense, recently selected an article co-authored by James M. Meseck for publication. This article is entitled "Medicare Reimbursement Problems, Making the Possible Impossible". The article was published in the February, 2008 edition of For the Defense. The article discusses the pitfalls and shortcomings of the current Medicare reimbursement policies and practices, and the lack of a comprehensive strategy for addressing reimbursement issues. Mr. Meseck is an Officer of White and Steele, P.C. Mr. Meseck's practice focuses on representing clients in a wide variety of liability claims and declaratory judgment actions.
Victories
Read about recent White and Steele landmark victories
- Defense Verdict Obtained for Town of Minturn
- White and Steele Wins Court of Appeals Decision Regarding Offer of UM/UIM Coverage
-
Julie M. Schlater v. Sarah Santeramo f/k/a Sarah Oehlner and Ed Jalowsky
Denver District Court - 05CV4264
Jury verdict in favor of the defense in a case involving claims of fraudulent concealment / non-disclosure and breach of contract against a real estate broker. The claims against Ms. Santeramo were previously withdrawn.
Julie Schlater purchased a residence in December 2004. She claimed that the broker, Ed Jalowsky, fraudulently concealed and/or did not disclose the existence of a water leak that occurred in August 2004, and the subsequent discovery of mold. Ms. Schlater sought actual damages of approximately $90,000.00, non-economic damages of $400,000.00, punitive damages of $400,000.00 and reasonable attorneys’ fees. Mr. Jalowsky generally denied that he failed to disclose any material defect, and certainly did not do so with any fraudulent intent. The jury returned a verdict in favor of Mr. Jalowsky.
Events
White and Steele, P.C. holds events throughout the year relating
to our practice. These events are held in Colorado and Wyoming as
well as in other areas of the country. To see our currently planned
events please go to the Events
page for more information.
|
