Here are some of the details . . .

Wal-Mart Makes History

On Monday, a federal court in San Francisco certified the largest class-action employment lawsuit in U.S. history. That means that a case that could involve several hundred thousand plaintiffs demanding billions of dollars in damages may now proceed to trial.

The suit was first filed in 2001 by a greeter named Betty Dukes who worked in Wal-Mart’s Pittsburg, California store. Dukes and others claim that female employees are paid less and given fewer opportunities than their male counterparts. They also contend that women make up more than 70% of Wal-Mart’s hourly workforce but less than a third of store management, saying that the company’s “strong, centralized structure fosters or facilitates gender stereotyping and discrimination.” The plaintiffs seek back pay and punitive damages.

Wal-Mart has objected to the size of the suit, calling it “historic” in scope and arguing that it would be too difficult to litigate. Judge Susan Graber of the appeals court disagreed, ruling that although “the size of this class action is large, mere size does not render a case unmanageable.”

Wal-Mart has indicated that it may appeal the court’s sharply divided 6-5 decision to the Supreme Court, saying “We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates.”

College Pays $1 Million

Lafayette College in Easton, Pennsylvania agreed to pay $1 million and furnish significant remedial relief to settle a sex harassment lawsuit filed by the EEOC.

The EEOC alleged that Lafayette’s supervisor of loss prevention engaged in repeated harassment of five female public safety employees, including groping, forcible kissing, lewd comments, explicit gestures and pornographic e-mails. One employee was forced to quit due to the harassment, according to the EEOC.

“No one should have to endure the abuse these women faced at work,” said EEOC Chair Jacqueline Berrien. “This significant settlement shows that the EEOC will insist on meaningful relief for workers who are victims of harassment.”

Each of the five plaintiffs will receive $200,000 under the terms of the settlement.

Fire Department Pays $263,360

The Selden Fire District in Long Island, New York agreed to pay a total of $263,360 to 23 firefighters to settle a class-action age discrimination suit brought by the EEOC.

The EEOC alleged that the district refused to let volunteer firefighters over age 55 accrue credit toward a length-of-service award due to their age. As a result, the EEOC contended, older firefighters lost pension amounts after they turned 55 in violation of the Age Discrimination in Employment Act.

“Older workers, like these firefighters, should not be deprived of valuable pension benefits simply because of their age,” EEOC Chair Berrien said. “This settlement ensures that these highly valued public servants will finally receive fair compensation.”

Union Settles Retaliation Suit

The Maryland Classified Employees Association (MCEA) agreed to pay $80,000 to settle an EEOC retaliation suit. The EEOC charged that MCEA (1) fired an employee for her “perceived involvement” in a prior EEOC investigation of MCEA’s alleged unlawful employment practices and (2) unlawfully denied a promotion to another employee who filed a discrimination charge against the union. The MCEA also agreed to various anti-retaliation remedial efforts in a two-year consent decree.

“Title VII depends for its enforcement upon the cooperation of employees who are willing to oppose or report employment discrimination,” said EEOC Acting Regional Attorney Debra Lawrence.

Stay tuned.

History

The lawsuits were filed in 2000 against several media giants including ABC, CBS, NBC, Fox, Columbia, DreamWorks, Universal and Warner Brothers, as well as several talent agencies including International Creative Management (ICM), Creative Artists Agency (CAA) and William Morris. The writers alleged that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failures to hire them.

ICM settled in 2008 for approximately $4.5 million plus an agreement to implement institutional changes to promote hiring of older writers. The lawsuit continued against the rest of the defendants.

Latest Settlement

The settlement calls for payment of $67.5 million to 165 TV writers. Another $2.5 million will be used to establish a fund to supplement the writers’ pensions and to provide grants and loans to help further their writing careers.

“The importance of the settlement cannot be overestimated, given the fact that television shows — even in this era of multiple entertainment platforms — remain crucial in shaping our culture,” said AARP Foundation attorneys. The AARP Foundation indicated that it would continue pursuing the case against the lone holdout from the settlement — talent agency CAA.

The settlement must be approved by a California state court before it becomes final.

The Lessons

As discussed previously here on the Blawg, age discrimination cases typically rank #1 in terms of verdict size. Those numbers will most likely continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy. The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees. Those cases usually don’t work out too well for employers.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact. Older employees can be a valuable resource and often have tremendous skills and experience. Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.

The EEOC says that age claims were down 7% last year. That’s pretty shocking, especially considering all the RIF activity nationwide and the EEOC’s announced intention to more aggressively enforce the law. The 7% drop is a stark contrast to the 30% increase the prior year.

“The facts are turning out different than people thought in terms of age discrimination charge numbers,” said EEOC Assistant Counsel Carol Misaskoff. “What is sort of anecdotally appearing to people is not what we’re seeing in the numbers.”

The EEOC scheduled the hearing due to “widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions.” Here are the highlights . . . 

New Technical Assistance

Of most interest to employers is a new technical assistance — Understanding Waivers of Age Discrimination Claims in Employee Severance Agreements – available on the EEOC’s web site here. It includes waiver FAQs, a checklist for employees to use when reviewing a waiver and a model agreement for employers.

The Comments

A variety of experts testified during the hearing, including EEOC representatives, a professor, a defense attorney and plaintiffs from age discrimination cases.

One former plaintiff, John Stannard, said he believed that he was selected for layoff due to “the false stereotype which characterizes older workers as less flexible and critical.” He described the difficulties of finding work after the layoff, saying that the only job he could find was as a janitor cleaning up after his former co-workers.

“Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination,” said Acting EEOC Chair Stuart Ishimaru. “Employers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations.”

Click here for the EEOC’s summary of the hearing, which includes additional comments by the panelists.

What’s Next?

The EEOC pledged to consider the panelists’ comments and to offer additional regulations to address concerns regarding “ageist” comments in the workplace and burdens of proof in age cases. It also urged Congress to add more teeth to the Age Discrimination in Employment Act (ADEA).

Stay tuned.

The EEOC says the hearing is necessary due to “widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions.” Topics to be addressed will include:

• “the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards”;
• “the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA)”;
• perspectives from participants in recent ADEA cases; and
• technical assistance from the EEOC on employee rights when offered a severance package in exchange for a waiver of claims.

Additional information about the hearing will be made available by the EEOC here.

Here’s the key language:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

What Does This Mean for Employers?

Plaintiffs used to be able to state a claim if age was a factor in a decision. Now, they must prove it was the factor.

If you’re a legal junkie and want to read the court’s full decision, click here.

The lawsuits were filed in 2000 and include cases pending in California state court against media giants ABC, CBS, NBC, Fox, Disney, Columbia, Warner Brothers and talent agencies ICM, Creative Artists, William Morris and others.  The writers allege that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failure to hire them.

In addition to the payment, ICM agreed to implement a variety of institutional changes, including working with an independent task force to scrutinize its policies and procedures and participating in a program that will seek to promote the top 25% of older writers based on script evaluations conducted by a panel of experts.

The plaintiffs’ law firm says it is in “serious settlement negotiations” with the remaining defendants.

The Lessons

As discussed previously here on the Blawg, age discrimination cases are #1 in terms of verdict size.  Those numbers will undoubtedly continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy.  The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees.  Those cases usually don’t work out too well for employers.  Click here for a real-life example.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact.  Older employees can be a valuable resource and often have tremendous skills and experience.  Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.

The jury awarded Ronald Luri $3.5 million in lost wages and a whopping $43.1 million in punitive damages.  Luri worked for waste collection company Republic Services.

According to published reports, jurors were “dismayed” by Republic’s alleged “evidence-tampering.”  The jurors said they felt the key piece of evidence was a memo written by Luri’s boss.  According to a computer expert retained by Luri’s lawyer, the boss post-dated the memo and added two paragraphs critical of Luri’s performance a full two weeks after Luri filed his lawsuit.  Jurors also reportedly were troubled by Republic’s alleged efforts to prevent Luri from finding work in the Cleveland area after it fired him.

Republic vigorously disputes the allegations and said it plans to appeal.

The Lessons

As we’ve pointed out repeatedly here on the Blawg, litigation can be a very expensive proposition.  Click here for our litigation tips, including early case evaluation and settlement procedures. 

Judges and juries can smell when an employer may not have been acting fairly.  If there is any evidence that you treated an employee unfairly and/or unlawfully, you need to strongly consider whether going to court is the best option.  Also, avoid any temptation to post-date documents or change evidence after the fact to make a case look more favorable.  Judges and juries hate that.

Click here for more on this case.  Special thanks to the Ohio Employment Law Blog.

In MetLife v. Glenn, the Supremes ruled that the administrator of an ERISA plan has a conflict of interest if it performs the dual role of evaluating claims and paying them.  What does this mean for employers?  If your administrator performs both roles, there is now a much greater risk of having benefit determinations overturned.

In Meacham v. Knolls Atomic Power Laboratory, the Court ruled that it is the employer’s burden in an ADEA disparate impact suit to prove that the employment decision was made on “reasonable factors other than age” (RFOA).  Previously, it was unclear whether the employer or employee bore the RFOA burden of proof.  The Court also rejected a “business necessity” defense under the ADEA.  What does this mean for employers?  Employers now have a potentially greater uphill battle in disproving disparate impact age discrimination claims.

In Kentucky Retirement Systems v. EEOC, the Court ruled that a benefit plan’s use of age as a factor in distributing retirement benefits to disabled employees does not constitute a prima facie case of age discrimination.  What does this mean for employers?  Even with this ruling, employers should refrain from applying age as a factor arbitrarily or discriminatorily in pension decisions.

In Chamber of Commerce v. Brown, the Court ruled that federal labor law prohibits states from regulating an employer’s right to speak out about union organizing by its employees.  What does this mean for employers?  If you’re in a state (like California) that has such a law, it is now subject to challenge on federal preemption grounds.

Stay tuned for more.

(Source:  scotusblog.com)

Last year, the EEOC issued a rule creating an “exemption” to the Age Discrimination in Employment Act that allowed employers to “coordinate” retiree health benefits by reducing or eliminating plan coverage for employees who are eligible for Medicare or a state-sponsored benefit program.

AARP filed a lawsuit challenging the rule.  It lost at the lower court level and then appealed to the Supreme Court.

In a case of strange bedfellows, employer and union advocates banded together to back the EEOC’s rule and attack AARP’s suit.  Their reasoning?  The rule encourages employers to maintain health coverage for retirees rather than dropping it altogether.

The Supreme Court apparently agreed, issuing a one-sentence decision declining AARP’s appeal without comment.

“This is good news because it clears up the lingering doubts about the law,” said Rae Vann, General Counsel for the Equal Employment Advisory Council.  ”From a practical point of view, it is also good for retiree health benefits.  It means more employers will continue to provide these benefits.”

According to Bill Raabe, Director of Collective Bargaining for the National Education Association, ”The practical effect of any law that requires employers to provide identical benefits for pre- and post-Medicare-eligible retirees would be the erosion of post-retirement healthcare benefits for all.”

AARP said it was “deeply disappointed” by the ruling and that it “clears the way for employers to discriminate by reducing or terminating benefits for older retirees simply because they’ve turned 65 years old.”