According to reports, a former employee has filed a $100 million class action lawsuit against the Japanese electronics company, Toshiba, accusing the multinational of discriminating against women when it comes to pay and promotions. A former Human Resources Manager has filed suit in the Southern District of New York, alleging that Toshiba routinely paid women less in salaries and bonus than their male colleagues. The lawsuit also claims that less than 3.5% of all Toshiba managers worldwide are women, and that this is the result of sex-based discrimination.

The damages sought by the class are certainly eye catching, and seem to reflect a growing trend in high-profile employment class actions suits. Last year, drug company Novartis agreed to pay more than $175 million to settle complaints brought by 5000-plus present and former female employees. Later this year, the Supreme Court is expected to announce its decision in a discrimination case involving more than 1.5 million current and former Wal-Mart employees. If the employees prevail, it could result in damages of more than $1 billion against Wal-Mart, the largest private employer in the world.

Discrimination can happen in many different ways. If you believe you have been the victim of discrimination seek advice from an experienced employment attorney as soon as possible.

Posted by Diane V. Smith at 08:00 AM | Permalink | Comments (0) | TrackBacks (0)

A recent Supreme Court case involving retaliation in the workplace. The United States Supreme Court recently clarified the reach of Title VII for claims of retaliation, in Thompson v. North American Stainless (NAS). Mr. Thompson and his fiance, Mirian Regalado, both worked for NAS. Mr. Thompson claimed that he was fired by NAS after his fiance filed an filed an EEOC complaint against it. The trial court and the appeals court ruled against Mr. Thompson, because he wasn't the person who actually filed the complaint and so did not fall within the anti-retaliation provision of Title VII.

The Supreme Court reversed, holding that if the facts alleged by Mr. Thompson were true, then his firing would constitute unlawful retaliation because a reasonable worker, like his fiance, would be discouraged from complaining about discrimination she knew her loved one would bear the brunt of the employer's retaliation.

Diane V. Smith represents employers and employees in cases involving claims of wrongful discharge, wrongful termination and infringement on civil rights. Law Week Colorado named Diane as Barristers' Best Employment Lawyer in 2010.

Posted by Diane V. Smith at 10:34 AM | Permalink | Comments (0) | TrackBacks (0)

More than forty firefighters have joined in a class action lawsuit against the Washington D.C. Fire Department to assert claims of race-based hostile working conditions and institutional racism. In the lawsuit, the Plaintiffs allege that the Fire Department routinely overlooked black firefighters for promotion, while others experienced disproportionate disciplinary action, compared to white colleagues. The complaint describes more than 30 specific examples of alleged discriminatory practices. According to media reports, as many as 1,000 current and former firefighters may join the class.

Posted by Diane V. Smith at 10:14 AM | Permalink | Comments (0) | TrackBacks (0)

What is the cost of discrimination in the work place? Initially, there's the "morale cost." If employees, especially good employees, see unfair favoritism or negative treatment, that employee's willingness to be all-in is going to deteriorate. Most employees will see when their peers are upset or aggravated by such treatment and more often than not, employees will stick together against "The Employer." Now all of the work force is less interested in doing job. "Why bother, dedication and effort don't count!" When employees no longer have a stake in their work, the level of service begins to slip. In this day and age, when customers have so many options, bad service is a death knell for an ongoing relationship. Fewer goods and services sold, less profit on the bottom line. If one of those unhappy employees complains, the employer must dedicate scarce resources (and attorney fees) to responding. Again, less profit on the bottom line.

That seems like it should be so easy to understand. Apparently, it isn't.

This week, the EEOC announced new lawsuits against employers as diverse as hair cutters, grocery stores, dental offices, and other manufacturers. The claims included discrimination and retaliation. The EEOC also announced settlements in many pending cases. The economic cost of the various suits and settlements? In the millions.

"If you are an employer, ask yourself this," says Diane Smith of Burg Simpson. "If the bottom line is profits, aren't your interests best served by a work force that is treated fairly and in an even handed manner?" So pay attention and take care of your bad employees - whether at the entry level or the management level. Failure to do so will get you sued.

Posted by Diane V. Smith at 04:09 PM | Permalink | Comments (0) | TrackBacks (0)

Hadley Jons, a 20 year old from Michigan, was removed from a jury when she declared the defendant guilty on Facebook, while the case was still going. She posted on Facebook that it was "gonna be fun to tell the defendant they're GUILTY." Now, the judge in the case has ordered her to pay a $250 fine and write an essay about the constitutional right to a fair trial.

Unfortunately, this is not the first time this has happened. It was recently reported in another case that a juror couldn't decide whether to find the defendant guilty or not guilty, so that juror created a poll on Facebook, inviting people to vote on the defendant's fate.

"The use of social media, like Facebook or Twitter, is changing the lives of almost everyone, whether they know it or not" says Diane Smith of Burg Simpson. "Jurors are routinely told not to discuss a trial outside of the jury room. For some reason, people don't understand that Facebook can be as much a public discussion as a conversation over coffee."

If you have a legal issue concerning Facebook or any other form of social media, Burg Simpson may be able to help. Call 1.888.895.2080 for a free consultation.

Posted by Diane V. Smith at 12:13 PM | Permalink | Comments (0) | TrackBacks (0)

For the last decade or so, plaintiffs in Title VII cases have claimed that "sexual favoritism" constitutes discrimination. Sexual favoritism occurs when an employee engages in consensual sexual conduct with a supervisor and, after that, the supervisor makes employment decisions that benefit the employee, based on this conduct. For the most part, courts have held that sexual favoritism isn't illegal. However, the claims are still being made and indications are that some courts may be persuaded to adopt this view. According to Diane Smith of Burg Simpson, "as with all forms of employment law, things change over time. With the current state of unemployment, any conduct that causes an employer to benefit one group of employees over another is going to give rise to discrimination claims under federal or state laws."

If you believe you have been the victim of discrimination, please call Burg Simpson on toll free 1.888.895.2080 for a free consultation.

Posted by Diane V. Smith at 09:46 AM | Permalink | Comments (0) | TrackBacks (0)

According to the United States Equal Employment Opportunity Commission (EEOC), the number of claims filed for sexual harassment are down. The latest figures show the total number of sexual harassment charge receipts logged by the EEOC fell from 13,867 in 2008 to 12,696 for the year ending 2009. However, don't let the numbers mislead you into thinking that sexual harassment is no longer an issue. Unfortunately, it is still alive and abusive in the work place. Diane Smith of Burg Simpson observed, "now instead of reports of a touch on the shoulder or out of line comments, we get reports of outrageous, even illegal assaultive behavior." As she explained, "if you wouldn't want your wife, daughter, sister, or mother subjected to that kind of behavior, why would you tolerate it for anyone else?" It is also important to note that sexual harassment can occur in a variety of circumstances and that men as well as women can be victims. Current statistics show that the number of sexual harassment claims reported to the EEOC by males actually increased during 2009 to 16 percent.

If you believe you have been the victim of sex discrimination, contact Burg Simpson toll free 1.888.895.2080 for a free consultation

Posted by Diane V. Smith at 12:52 PM | Permalink | Comments (0) | TrackBacks (0)

Employment based claims are constantly evolving, depending on both state and federal law, as this interesting case from Michigan illustrates.

A Michigan state court judge has decided that two waitresses can sue Hooters for weight discrimination under Michigan law, which allows for such claims. Cassandra Smith and Leanne Convery claim that they were terminated because the Company decided they were too heavy to be Hooter's Girls. Hooters claims that weight is a legitimate consideration, because waitresses are also entertainers. However, this argument did not persuade a judge, who decided that both women are entitled to have their claims heard in court. The lesson from this case? Make sure your attorney knows and understands the laws. If you believe you have experienced a violation of employment or labor law, call a Burg Simpson employment attorney on 1.888.895.2080 for a free consultation.

Posted by Diane V. Smith at 12:24 PM | Permalink | Comments (0) | TrackBacks (0)

A former employee from Michigan is suing Wal-Mart after he was fired for testing positive for medical marijuana. Mr. Casias is seeking compensation for his dismal after he failed a drug test following an accident at work. Wal-Mart took action against Mr. Casias despite his doctor legally prescribing the marijuana as part of his treatment. In a statement, a Wal-Mart spokesperson sympathized with Mr. Casias but defended the company’s actions. Courts across the country are struggling with questions concerning the right of an employer to control the workplace and an employee's right to the medical use of marijuana. Colorado's medical marijuana law specifically states that, “nothing in the medical marijuana law requires any employer to accommodate the medical use of marijuana in any work place.”

Posted by Diane V. Smith at 11:52 AM | Permalink | Comments (0) | TrackBacks (0)

A federal jury in New York has found the U.S. Division of Novartis AG, guilty of discrimination against female employees on the grounds of pregnancy, promotion and pay. Novartis has been ordered to pay $250 million in punitive damages to a class of more than five and a half thousand women. The ruling comes just days after the same jury had awarded more than $3.3 million to a group of 12 former Novartis employees, who originally filed suit in 2004. Judge Colleen McMahon will calculate the exact amount of back pay, lost benefits and adjusted wages. Novartis intends to appeal.

Posted by Diane V. Smith at 11:18 AM | Permalink | Comments (0) | TrackBacks (0)

Walmart is facing the largest class action lawsuit in U.S. history, after the Ninth Circuit Court of Appeals in San Francisco ruled 6-5 in favor of allowing a sex-discrimination lawsuit to proceed as a class-action case. One million women, previously employed by Walmart since June 2001, may now be able to join a class action seeking damages for unfair treatment. Walmart is accused of paying female employees less than their male colleagues and giving them fewer promotions. Commentators believe that the court’s decision could be a major blow to Walmart and expose the retailer to billions of dollars of damages. Walmart has said it would appeal the ruling to the U.S. Supreme Court.

Posted by Diane V. Smith at 06:56 AM | Permalink | Comments (0) | TrackBacks (0)

According to the U.S. Department of Labor, 14 workers are killed everyday in the United States as a result of occupational accidents. A further 4.6 million are seriously injured each year. While some reports point to a decline in work-related injuries, it would appear that many employers simply are not doing enough to protect their employees. The proposed Protecting America’s Workers Act or “PAWA,” looks to strengthen the powers of the Occupational Heath and Safety Administration by providing additional rights to accident victims and their families, as well as increasing the range of penalties (financial and otherwise) on negligent employers and those who violate the law. The Bill also proposes extending coverage to all public sector employees.

Posted by Diane V. Smith at 05:06 PM | Permalink | Comments (0) | TrackBacks (0)

Clearly the Denver judges couldn’t take the fighting between the attorneys anymore. After months of discovery warfare, the judge issued an order that the bad actors (the Defendants) would be held liable for the wage claims, leaving only the amount of the damages award to be determined. Pinkstaff v. Black & Decker (U.S.) Inc, (No. 09SA19, June 29, 2009). The Supreme Court reversed, holding that the trial court had adopted the harshest sentence first, rather than trying less drastic sanctions for the behavior. As the Supreme Court explained, courts are - first and foremost - a place to try claims on the merits, not to punish bad actors by way of defaults. The matter now goes back to the trial court for further proceedings. I wonder what the trial judge will try next.

Posted by Diane V. Smith at 05:22 PM | Permalink | Comments (0) | TrackBacks (0)

Today, the United States Supreme Court held that the City of New Haven, Connecticut violated Title VII, when it refused to certify the results of its promotional exams, which advanced almost only white firefighters for promotion. Ricci v. DeStefano (No. 07-1428, June 29, 2009). New Haven is made up of almost 60% minorities, but only a very small percentage of the promotion list included minority candidates. The city was understandably concerned about being sued for disparate impact discrimination. The Supreme Court rejected the City’s concern and actions, holding that the City could not demonstrate that it would have been sued if it hadn’t thrown out the test.

Continue reading "Court Rejects City’s Efforts to Avoid Discrimination Claims" »

Posted by Diane V. Smith at 05:14 PM | Permalink | Comments (0) | TrackBacks (0)

Covenants not to compete can severely limit a person’s ability to pursue their chosen career path, if they can’t use their knowledge, skill and experience when that person leaves one employer to go to work for another. Depending on the circumstances, a person can be precluded from competing for a period generally ranging from 6 months to three years. That’s why the Colorado statute presumes that such covenants are void, unless the employer proves it to be valid under one of the four exceptions, as well as reasonable as to time and geographic coverage. Today, the Court of Appeals appeared to take a step toward loosening the statutory standard for determining whether a covenant is valid under the “executive and management personnel” exception.

Continue reading "Middle Managers' Right to Compete Limited" »

Posted by Diane V. Smith at 09:03 AM | Permalink | Comments (0) | TrackBacks (0)

http://www.burgsimpson.com/age.htmlToday, the United States Supreme Court created a new rule of law, making it more difficult for employees to make a claim for age discrimination in employment. In Gross v. FBL Financial Services, Inc., the Supreme Court held that in order to have a viable claim, the employee must show that age is the motivating factor for the adverse employment decision. In other words, "but for" the employee's age, the employer would not have taken the action it did. This is a significant change in the law. Under prior cases, the employee only needed to show that age was one factor contributing to the adverse employment action. The decision was a close one, with 4 of the 9 Justices dissenting.

Continue reading "Age and Adverse Employment Decisions" »

Posted by Diane V. Smith at 03:08 PM | Permalink | Comments (0) | TrackBacks (0)

Jamaica Hospital Medical Center in Queens, New York is accusing Oxford Health Plans of engaging in age discrimination for people in need of acute rehabilitation and traumatic brain injuries against patients enrolled in Medicare Advantage. Oxford Health Plans shows the pattern of discriminations according to data released. “Our data clearly shows a pattern of age discrimination by Oxford that can be characterized as elder abuse,” David P. Rosen, chief executive of the hospital and its parent company, MediSys Health Network. In a statement he quoted that from Jan. 1 2006 to August 2, 2007, of 58 Oxford-insured patients referred by doctors for acute rehabilitation or traumatic brain injury rehabilitation, 46 were denied coverage. That is an 80 percent denial rate. The hospital has yet to file a lawsuit or complaint with regulators and Oxford’s parent company UnitedHealth has not commented on the findings. Under Medicare Advantage, the government pays insurance companies for taking on the risk of covering elderly patients' health needs. This is just another example of the types of hurdles traumatic brain injured patients face daily in the healthcare system.

Posted by Diane V. Smith at 12:30 PM | Permalink | Comments (0) | TrackBacks (0)

On August 3, 2007, Colorado Governor Bill Ritter signed into law legislation to prohibit discrimination based on sexual orientation and gender identity. The Colorado Anti-Discrimination Act (CADA) which previously prohibited employers from discriminating against employees based on disability, race, creed, color, sex, age, national origin or ancestry now also prohibits discrimination against employees based on their sexual orientation which includes gender identity.

Continue reading "Colorado Anti-Discrimination Act (CADA) " »

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HB 1247 which recently became law applies to all legal actions to recover wages or compensation commenced on or after the date the bill was signed under the Wage Act statute. It makes a number of important changes to the wage claim statute including eliminating the provision for a mandatory award of fees to a defendant in any case in which the plaintiff fails to recover more than the amount the defendant had tendered. This eliminates some of the risk and allows for more cases to be filed under this statute.

It also increases the penalties to an employee who prevails under the Wage Act to 125% for the first $7,500 in unpaid wages or compensation, and 50% of unpaid wages or compensation above that amount.

Posted by at 10:33 PM | Permalink | Comments (0) | TrackBacks (0)

Workers had better complain quickly if they want to seek relief under federal discrimination laws. This was the impact of the U.S. Supreme Court's decision last week in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074). Ms. Ledbetter, a former supervisor at Goodyear Tire & Rubber Co. claimed she had been paid thousand of dollars less than male co-supervisors. She reported the discrimination just before retiring after twenty years with the Company. The United States Supreme Court found that Ms. Ledbetter had no valid discrimination claim because the discriminatory pay decisions she had suffered earlier in her tenure with Goodyear happened outside of the statutory 180-day time period for filing discriminatory charge.

Continue reading "Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074)" »

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Workers had better complain quickly if they want to seek relief under federal discrimination laws. This was the impact of the U.S. Supreme Court's decision last week in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074). Ms. Ledbetter, a former supervisor at Goodyear Tire & Rubber Co. claimed she had been paid thousand of dollars less than male co-supervisors. She reported the discrimination just before retiring after twenty years with the Company. The United States Supreme Court found that Ms. Ledbetter had no valid discrimination claim because the discriminatory pay decisions she had suffered earlier in her tenure with Goodyear happened outside of the statutory 180-day time period for filing discriminatory charge.

Continue reading "Ledbetter v. Goodyear Tire & Rubber Co., Inc. (No.05-1074)" »

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The AP reports that flight attendants with Northwest will begin unannounced strikes on August 15 at 9:01 p.m. CDT if Northwest does not stop the imposition of a new contract on employees. Questions remain about the legality of such a strike.

Airline law and bankruptcy code may be challenged in court as Northwest 2005 bankruptcy allows new contracts to be established. They believe that not only do they have the right to impose the contract, but also according to the Railway Labor Act (RLA) it is illegal for employees to strike in opposition to that contract. Northwest worker's union believes that they cannot be compelled to work under a contract with which they disagree.

Continue reading "Northwest Flight Attendants Threaten Strike" »

Posted by Diane V. Smith at 09:28 PM | Permalink | Comments (0) | TrackBacks (0)

The Court first explained that in making a reverse discrimination claim, an employee must show that the employer is actually discriminating against the majority - a fairly unusual occurrence. The Court concluded that Argo could not establish reverse discrimination in this case. Instead, Blue Cross showed that it hired many men for the same position and that it had employed Argo in the position, until his performance deteriorated so badly that it had not choice but to terminate his employment.

Continue reading "Title VII Sex Discrimination Claim v. Performance" »

Posted by Diane V. Smith at 03:58 PM | Permalink | Comments (0) | TrackBacks (0)

Sometimes, it really is all about performance. Or, in the words of Judge McConnell of the Tenth Circuit, "This case presents an especially weak Title VII sex discrimination claim."

The Plaintiff, Griff G. Argo, worked as an Individual Enrollment Specialist ("IES") for the Defendant Blue Cross Blue Shield of Kansas, Inc. ("Blue Cross"). Although he was an effective worker for several years, his work performance steadily declined in 2002. Within that year, Argo failed to meet one or more performance goals for nine consecutive months as well as his annual goal. Additionally, Argo received repeated warnings about tardiness and "attitude" problems, but Argo persisted in arriving late, misusing time, and failing to perform work as directed. Blue Cross repeatedly disciplined Argo, which apparently led to the filing of an internal complaint alleging that he was being sexually harassed by his supervisor. Despite the internal complaint, Blue Cross terminated Argo's employment when he was again late for work and again failed to perform work as directed.

After termination, Argo sued, claiming that Blue Cross had engaged in reverse discrimination and retaliation for the internal filing of a sexual harassment complaint. The federal trial court dismissed the claim and the 10th Circuit affirmed.

Posted by Diane V. Smith at 03:58 PM | Permalink | Comments (0) | TrackBacks (0)

On June 22, 2006, the United States Supreme Court rendered entered a new, sweeping decision concerning retaliation claims under Title VII, which gives victims of retaliation greater protection than victims of actual discrimination. In Burlington Northern & Santa Fe Railroad v. White, an opinion authored by Justice Breyer, the Supreme Court decided for the first time that an employer may be liable for retaliation if an employee can show that the employer's actions might well have "dissuaded" a reasonable worker from making or supporting a charge of discrimination

Continue reading "Retaliation Claims Under Title VII" »

Posted by Diane V. Smith at 03:55 PM | Permalink | Comments (0) | TrackBacks (0)