September 18, 2012

 

Hello,

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

 

Sterling and Sterling to Pay $120,000 to Settle Retaliation Suit

Sterling and Sterling, Inc., an insurance company on Long Island, New York, will pay $120,000 to settle a lawsuit for retaliation filed by the EEOC. In its lawsuit, the EEOC charged that Sterling fired Rochelle Legette from her position as a sales telemarketer after she filled out an EEOC questionnaire stemming from her complaints of race and sex harassment. Legette, who had been hired in March 2007, filled out the questionnaire in September 2009. Legette was on maternity leave at that time and returned to work on Feb. 1, 2010. Sterling, citing her EEOC filing, suspended her two weeks later, and fired her on March 1, 2010.

 

Retaliation against an employee for taking action against perceived discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The consent decree settling the suit, in addition to the monetary relief, includes provisions for equal employment opportunity training, reporting, and posting of anti-discrimination notices.

 

Former Employees are Protected from Adverse Employment Actions

Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer to discriminate against “any individual" on the basis of membership in a protected class. A recent Circuit Court of Appeals ruling has reinforced that Title VII explicitly allows former employees, as well as current ones, to bring an action under that statute.

 

Karla Gerner was employed by Chesterfield County, Virginia, for over 25 years, with twelve of those years as the County’s Human Resources Director. In 2009, Gerner was informed that her job was being eliminated due to a reorganization of the department, and was told that she was entitled to three months of pay and benefits as a severance, if she would resign and sign a waiver of legal claims against the County. Gerner ultimately declined that offer and was fired, effective December 15, 2009.

 

Gerner filed a lawsuit, alleging that certain male counterparts – also former directors of County departments – had received “sweetheart” deals of up to six months of pay and benefits, or were placed into positions with less responsibility while continuing their prior pay, in order to allow them to “enhance their retirement benefits.”

 

In its ruling, the Fourth Circuit cited the U.S. Supreme Court’s holding in Hishon v. King & Spalding, which precludes the argument that an employment benefit must be a contractual right in order for its denial to provide the basis for a Title VII claim. In Hishon, the Supreme Court held that any "benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all." The Hishon ruling clearly stated that benefits that an employer is under no obligation to furnish by any express or implied contract may qualify as a “privilege” of employment under Title VII, and may provide the basis for a Title VII claim, as long as the benefit is "part and parcel of the employment relationship." In Gerner’s situation, in which she did not voluntarily ask for removal from her position, but was offered the severance in return for resignation and a release of claims, the severance was deemed to be the required “part and parcel” of the relationship.

 

The Fourth Circuit also dismissed the rationale that Gerner did not suffer an adverse action because she was terminated before being denied the severance. The Court pointed to the language of Title VII, protecting “any individual,” and again cited Hishon (“A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship") to support the fact that an employment benefit can constitute an adverse action, even if it related to a former employee. According to the fourth Circuit, to limit actionable adverse employment actions to those taken while an individual is currently employed would be inconsistent with Title VII’s “principal goal” of "eliminating discrimination in employment."

 

Olam Settles Pregnancy Discrimination Suit for $140,000

Olam Americas, Inc., along with its two subsidiaries, has settled a lawsuit filed by the EEOC for $140,000 and other relief. The EEOC had charged that a job applicant was denied an executive assistant position at Olam’s Fresno, Calif., facility due to her pregnancy. Olam Americas, Inc. is a leading supplier and processor of agricultural products and food ingredients.

 

According to the federal agency, a female applicant was initially offered the executive assistant position at Olam in December 2010. However, within a very short period of time after disclosing that she was pregnant, Olam rescinded its offer of employment to her and promptly selected an alternate, non-pregnant candidate.

 

Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). The EEOC filed suit against Olam after first attempting to reach a pre-litigation settlement through its conciliation process.

 

Olam and the EEOC ultimately entered into a three-year consent decree, effectively settling the lawsuit. Aside from the monetary relief for the rejected applicant, Olam agreed to designate an equal employment opportunity (EEO) official to develop procedures for handling sex discrimination complaints; ensure adequate handling of discrimination complaints; hold management and human resources staff accountable for failure to comply with such policies; and provide annual EEO training to all employees at six manufacturing plants in central and northern California, along with more specialized training for managers and human resources staff. The EEOC will monitor compliance with the decree.