DAVID S. SHERWYN School of Hotel Administration 146 Ellis Hollow Creek. Cornell University, Ithaca, NY 14853 Ithaca, NY 14850 (607) 255-1711 (607) 277-8373 e-mail [email protected]


Cornell Law School, J.D. 1989 Cornell University, New York State School of Industrial and Labor Relations, B.S. 1986


Assistant Professor of Law School of Hotel Administration, Cornell University, 1997-present Courses Taught: Business and Hospitality Law, Employment Discrimination for Managers, and Union / Management Relations Research Fellow Center for Labor and Employment Law, New York University School of Law 2001-present Visiting Lecturer School of Hotel Administration, Cornell University, 1996-1997 Adjunct Professor of Law Cornell Law School, 1995-1997 Courses Taught: Employment Law and Legal Writing Visiting Lecturer New York State School of Industrial and Labor Relations, Cornell University, 1994-1997 Courses Taught: Employment Law, Employment Discrimination Law, and Sports Arbitration


Sherwyn, D., Heise, M., Eigen, Z., (2001)Don’t Train Your Employees and Cancel Your 1-800 Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment. LXIX Fordham Law Review, Number 4 pgs. 1265-1304 Sherwyn, D., Kaufman, Z., Klausner, A., (2000) Same Sex Sexual Harassment and the Equal Opportunity Sexual Harasser Defense: What is it, and how is it important to you? Cornell Hotel and Restaurant Administration Quarterly 41, # 6 Sherwyn, D., Eigen, Z. & Klausner A. (2000) The ADA and punitive damages: Five Supreme Court rulings. Cornell Hotel and Restaurant Administration Quarterly 41. Sherwyn, D., Lankau, M. & Eigen, Z. (1999) The good the bad & the ugly: The peculiar discrimination case of Joe’s Stone Crabs. Cornell Hotel and Restaurant Administration Quarterly 40 (5), pages 10-17. Sherwyn, D. Tracey, J.B. & Eigen, Z. (1999) In defense of mandatory arbitration of employment disputes: Saving the baby, tossing out the bath water, and constructing a new sink in the process. University of Pennsylvania Journal of Labor and Employment Law. Volume 2, Number 1, pages 73-150. Sherwyn, D. & Tracey, J.B. (1998) Sexual harassment liability in 1998: Good news or bad news for employers and employees. Cornell Hotel and Restaurant Administration Quarterly, 39 (5), pages 14-21. Lynn, M., Le, Joseph-Mykal, & Sherwyn, D. (1998) Reach out and touch someone – your customer. Cornell Hotel and Restaurant Administration Quarterly, 39 (3), pp. 60-65. Sherwyn, D. & Tracey, J.B. (1997) Mandatory arbitration of employment disputes: Implications for policy and practice. Cornell Hotel and Restaurant Administration Quarterly, 38 (5), pages 58-66.


Sherwyn, D., Tracey, J.B., & Heise, M. (2000) Vicarious liability in sexual harassment cases: An analysis of the first 53 motions for summary judgment based on the new affirmative defense. Proceedings of the Annual Meeting of the Academy of Management, Toronto, ON, CANADA. Sherwyn, D. & Tracey, J.B. (1999) Changes in sexual harassment law: A strategic opportunity for defining the next step in the journey. Proceedings of the Annual Meeting of the Academy of Management, Chicago, IL. Sherwyn, D. & Tracey, J.B. (1998) The strategic implications of sexual and gender-based discrimination: The case of consensual affairs gone sour. Proceedings of the Annual Meeting of the Eastern Academy of Management, Springfield, MA.

Hospitality Law Comments:

Feb. 2000 — Comment on Schurr v. Resorts International (3rd Cir.), “Innkeepers must carefully consider reasons for affirmative action”, March 2000 — Comment on Hancock v. Cracker Barrel Old Country Store (S.D. Ala.), “Law protects ‘equal opportunity’ harassers”, June 2000 — Comment on Sinkler v. Midwest Property Management (7th Cir.), What is a disability and when is an employee unlawfully regarded as having a disability? Sept. 2000 — Comment on Hostetler v. Quality Dining (7th Cir.), Can an employer prevail in a case where an employee has alleged sexual harassment by a coworker? Yes, if the conduct was not severe or pervasive. Oct. 2000 — Comment on EEOC v. Joe’s Stone Crab (11th Cir.), ” Congratulations, we’re sorry: No justice for Joe’s in lengthy case”,. Nov. 2000 — Comment on Munoz v. Oceanside Resorts (11th Cir.), “Employers must be prepared to defend all terminations, even when there is no evidence of discrimination.” Dec. 2000 — Comment on Ryan’s Family Steakhouse v. Brooks-Shades (Ala.), “Good record keeping is key to mandatory arbitration policy.”

Professional Association Participation:

Co-Host and Moderator: Cornell University and Bickel & Brewer Fourth Annual Hospitality Industry Legal Strategy Conference. October 4-6, 2000 Speaker: 53rd Meeting of the NYU Annual Conference on Labor. Topic: Empirical Studies of Arbitration Systems for Employment Disputes: What Do We Know? May 18-19, 2000 Moderator: Cornell University Conference on Hospitality Industry Strategy. Topic: A Proactive Approach to Managing Employee Retention and Morale: Mandatory Arbitration Strategies, March 19-21, 2000. Editor: LRP Hospitality Law, Contributes to the monthly publication by commenting on recent cases involving the hospitality industry Speaker: University of Houston, Conrad N. Hilton College’s Symposium on Legal Issues in the Hospitality Industry at the University of Houston. Topic: Sexual Harassment After Ellerth & Faragher: The First Fifty Summary Judgment Motions October 28-29, 1999. Speaker: Academy of Hospitality Industry Attorneys, 1999 Conference; Denver, Colorado. Topic: Arbitration of Discrimination Claims. Date: May 28, 1999. Speaker: University of Houston, Conrad N. Hilton College’s Symposium on Legal Issues in the Hospitality & Gaming Industries at the University of Houston. Topics: (1) Labor and Employment Relations in 1998; and (2) Premises Liability for Hotel Owners Dates: October 28-30, 1998. Speaker: University of Houston, Conrad N. Hilton College’s Symposium on Legal Issues in the Hospitality & Gaming Industries at the University of Houston. Topics: (1) Creating an In-house Dispute Resolution Program for Employees. (2) Collective Bargaining & Issues of Unionization. Dates: October 22-24, 1997. Speaker: International Association of Hospitality Accountants: 44th Annual Convention, Calgary, Alberta, Canada. Topic: Workplace Torts and Courtroom Alternatives. Date: September 26, 1997. Speaker: International Association of Hospitality Accountants: Hospitality Industry Technology Exposition and Conference, Baltimore, Maryland. Topic: Guest Stay Information: Is It Confidential? Date: June 25, 1997.

Awards: 2000-2001 Cornell University School of Hotel Administration Teacher of the Year (selected by the students of the Hotel School) 1999-2000 Cornell University School of Hotel Administration Teacher of the Year (selected by the students of the Hotel School) 1998-1999 Cornell University School of Hotel Administration Teacher of the Year (selected by the students of the Hotel School) 1997-1998 Cornell University School of Hotel Administration Teacher of the Year (selected by the students of the Hotel School)

1998 Cornell University School of Hotel Administration Professor of the Year (selected by Cornell’s fraternities and sororities)


Brown, Pinnisi & Michaels, P.C., Ithaca, New York, 1997 – present. (formerly Pinnisi, Wagner, Sherwyn & Geldenhuys, P.C., 1994 — 1996) Laner, Muchin, et al., LTD., Chicago, IL, 1992-1994. Rudnick & Wolfe, Chicago, IL, 1990-1991. Verrill & Dana, Portland, ME, 1989-1990. Proskauer, Rose, Goetz & Mendelsohn, New York, NY, Summer 1988.

ADMITTED: Illinois

New York

Mr. Lippman and Mr. Michelson are partners in the law firm of Lippman, Michelson & Associates, specializing in ADA, EEOC and OSHA ergonomic compliance law. Their offices are located in Texas, California, and Tennessee.

  • Alternatives To Layoffs May Reduce The Risk Of Claims
  • When Layoffs Are Unavoidable, Proper Planning May Reduce Risk Of Employment Disputes
  • Planning the RIF.
  • Making key policy decisions – how to select among employees.
  • Strive for an objective comparison of employees where job qualifications and skills are considered in making reductions.
  • Prior to implementing a RIF, factors militating against the selection of certain employees should be considered.
  • Employers can attempt to limit their potential liability by obtaining general releases from employees affected by a RIF, in return for enhanced severance benefits or other valuable consideration.
  • Wherever possible, outplacement services should be offered to assist displaced individuals in obtaining subsequent employment.
  • Employees affected by a staff reduction should be advised of the RIF in as professional and supportive a manner as possible.
  • After the implementation of a RIF, remaining employees must be enlisted as partners committed to future growth.
  • Workforce reductions provide unique opportunities for reorganizing and streamlining operations.
  • Notice Requirements Under The Worker Adjustment And Retraining Notification Act
    • WARN applies to employers that have, nationwide:
      • 100 or more employees (excluding part-timers); or
      • 100 or more employees (including part-timers) whose total weekly work hours (excluding overtime) are at least 4,000 hours per week.
    • WARN requires an employer to give 60 days written notice, as described by the Act and Department of Labor regulations, of a “plant closing” or “mass layoff” to:
      • All affected employees (including supervisors), OR if the employees are represented by a labor organization, the international body of the union; AND
      • The State dislocated workers unit and the chief elected official of the local governmental unit where the affected facility is located.
    • A “plant closing” is defined as:
      • A permanent or temporary shutdown of a single site of employment, or of one or more facilities or operating units within a single site of employment.
      • The shutdown results in an employment loss at the single site of employment during any 30-day period (this period is extended by WARN and the Department of Labor Regulations to 90
    • A “mass layoff” is defined as a reduction in workforce which is not the result of a plant closing; AND
      • Which results in an employment loss at a single site of employment during any 30-day period (this period is extended by WARN and the Department of Labor Regulations to 90 days), for at least 50 employees (excluding part-timers and employees who have not suffered an employment loss), if they comprise at least one-third of the workforce at the single site of employment; OR
      • Which results in an employment loss at a single site of employment during any 30-day period (this period is extended by WARN and the Department of Labor Regulations to 90 days), for at least 500 employees (excluding part-timers and employees who have not suffered an employment loss).
    • Limited exceptions to the 60 day notice requirement.
    • State and local notice requirements

The events of September 11, 2001 have affected the Company in a number of ways. That morning, one of your senior executives was at a business meeting at the World Trade Center. He is still missing. He had an employment contract pursuant to which, among other things, he (i) earned a base salary of $200,000, (ii) received quarterly bonuses averaging $25,000 based on performance (the fiscal year is a normal calendar year), (iii) received 100,000 stock options, 50,000 of which have vested but have not been exercised, another 25,000 of which would have vested on October 1, 2001, and the last of which would have vested on July 1, 2002. His life insurance policy is for $200,000 – his annual compensation. The benefits department wants to know what to tell his spouse about the Company’s position as to what is payable and when.

RECENT NEWS Failure to Complain About Sexual Harassment Second Time Results in Dismissal

Hispanic Painters Discriminatorily Harassed

Affair Ends, Evaluation Plummets No Case

Lateral Transfer Not Retaliatory

Complaint To Manager Involved With Harassment Prevents Summary Judgement

Equal Pay Act Requires Only One Employee Of The Opposite Sex To Be Paid Less

Plaintiff Barred From Filing Title VII Action After Receiving Right-To-Sue Letter

Employer May Change Its Mind About FMLA Approval

Stare At Your Own Risk

But I Did a Good Job

ADA Claim Lost Due to Subsequent Employment

A Stressful Environment Does Not Amount to Constructive Discharge

Alleged Harasser Sues

Punitive Damages Available For Retaliatory FLSA Firing

Employment Discrimination Class Actions Alive and Well

Sixth Circuit Uses Mother Goose to Sum Up Trial Court’s Decision-Then Reverses

No Free Pass to Harass

Deplorable Harassment Excused

Employer Liable For Manager Ignorance

Lateral Transfer Not Retaliatory

Forced Blood Test Doesn’t Violate ADA

Attorneys’ Fee Award Dwarfs Damage Award

Muslim Driver Not Entitled to Longer Lunch

Lifting Restriction Not ADA Disability

Gay Man’s Title VII Claim Rejected

31 Reasons For Firing Bars ADEA Claim

12 Month FMLA Period

Employees Prior Work as a Prostitute Inadmissible in Sexual Harassment Case

Repetitive Stress Disorder Not a Protected Disability Under ADA

Disability Plans May Provide Limited Benefits for Mental Disabilities

Lifitng Restriction Not ADA Disability

Sexually Suggestive Pictures

FMLA Permits Suits Against Individual Supervisors

ADA Claim Depends on Wording of Complaint

Fraudulent Disability Claim

Successor Employer Liable Under Title VII

Silent Suffering is not Tangible Employment Action

ADA Requires Employer Probing About Accomodtations

What is a Settlement?

Male Stereotypes

Faulty Business Judgement

ADEA Retaliation Suit Requires Plaintiff to be Qualified

FMLA Requires Written Notice to Employee

Lower Benefits to Older Workers is not ADEA Violation

Disparate Impact Claims Under the ADEA

Costiler Older Worker Lawfully Fired

Liar Gets Case Thrown Out

ADA Claim Depands on Wording of Complaint


No Tangible Employment Action Found

Policy and Training Provides Punitive Damages Protection

Gay Partners, But Not Unmarried Heterosexual Couples, Get Benefits

Union Ordeded To Keep Paying

Punitive Damages and Municipalities

Sovereign Immunity Works For States In FMLA Cases, but Not In Title VII Cases

Employee With Carpal Tunnel Syndrome Not Protected by ADA

Mandatory Arbitration Policy Ruled Unenforceable Due to Fee Splitting

Racial Slurs Based on Wrong Race

No Beard Policy Violates Title VII

Employee Who Refuses to Comply with Affirmative Action Plan Protected by Title VII

Driving to Work is Not Major Life Activity

$6.24 Million Age Discrimination Verdict Overturned

Union Liability Under Title VII Based on Number of Members

Federal Court Finds Discrimination Becasue Plan Provides For No Contraceptive Coverage

Request fot Unlimited Sick Days Held Not to be Reasonable

Maine Requires Health Insurance Coverage for Domestic Partners

Sexual Harassment Must be in Employee’s Orbit

FMLA’S Intermittent Leave Provision Is Not For Rehabilitation

The ADA Does Not Require Preferential Treatment

ADA Requires Employees to Answer Reasonable Requests About Medical Conditions

Male Employee Was Not Constructively Discharged

Who is the Harasser?

The Civil Rights Tax Relief Act of 2001 Introduced in Congress

Employee’s Resignation Prevents Failure to Accommodate Claim

No Cap On Front Pay

The ADEA and Foreign Nationals

Demands For Sex and Racial Slurs

ADA Requires Individualized Assessment

Affirmative Defense Rejected

Who is the Employer ?

Chronic Depression Not a Disability


Picking Comparators

Excessive Force Against African American

100% Healed

Individual Assessments

Medical Exams

Individual Liability Under §1983

Police Officer’s Pin

Disability Harassment Violates ADA

Gay Relationships v. Religious Beliefs

Flight Attendant Misses Flight

A Noose Is Not Enough

Negative Evaluations Not Adverse Employment Action

Essential Job Duties Not Linked to Time

Union Stewards Are Union Employees Arbitration Agreement Unenforceable

Discrimination Based on Effeminacy Is Title VII Violation

US Supreme Court Allows Enforcement of Arbitration Provision

Release Signed by HR Director Doesn’t Release Claim For Indemnification

Church of Christ Members Only

Vulgar Fun

US Supreme Court Allows Enforcement of Arbitration Provision

Female Wrestler Survives Summary Judgment

Manager Lands in Jail For One Year

Settling Age Discrimination Cases

Arbitrating Sexual Harassment Claims

Health Plans and Prescription Contraceptives

Reasonable Response To Harassment Claims

Too Scared To Complain

FAILURE TO COMPLAIN ABOUT SEXUAL HARASSMENT SECOND TIME RESULTS IN DISMISSALA sales clerk complained about sexual harassment. The employer took corrective action and instructed her to report any renewed harassment. Her failure to report renewed harassment resulted in the dismissal of her claim. (Woods v. Delta Beverage Group, Inc. 5th Cir.)

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HISPANIC PAINTERS DISCRIMINATORILY HARASSEDThree Hispanic painters worked 3 weeks, and while in the office for 15 minutes a day, they were subjected to racial slurs. The District Court dismissed the case, holding that there was not enough time for the harassment to be pervasive. The 10th Circuit reversed, holding that based on a totality of the circumstance analysis, a jury could find the harassment pervasive. (McCowan v. All Star Maint. Inc.)

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AFFAIR ENDS, EVALUATION PLUMMETS NO CASE A consensual sexual relationship ends and the female employee receives her first negative evaluation. She then complained to Human Resources. Her sexual harassment case fails because she was harassed due to a failed relationship, not her gender. The retaliation claim fails because the negative evaluation came before the complaint to Human Resources. (Pipkins v. Temple Terrace, Fla 11th Cir.)

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LATERAL TRANSFER NOT RETALIATORY A lateral transfer without a loss in benefits or responsibilities is not an adverse employment action. The court observed that “not everything that makes an employee unhappy is an actionable adverse action.” (Stutler v. Illinois Dept. of Corrections (7th Cir.)

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COMPLAINT TO MANAGER INVOLVED WITH HARASSMENT PREVENTS SUMMARY JUDGMENT A former salesperson sued a car dealership for sexual harassment. The court denied summary judgment. First, the dealership gave one of the employee’s leads to another employee. Since a jury could find this to be a tangible employment action, a trial is needed. Secondly, the employer’s discriminatory harassment policy permitted complaints to any supervisor, which included a manager who had harassed the employee. The employer therefore could not establish that the employee unreasonably failed to complain pursuant to its policy. (Morton v. Steven Ford Mercury of Augusta, Inc. D. Kan)

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EQUAL PAY ACT REQUIRES ONLY ONE EMPLOYEE OF THE OPPOSITE SEX TO BE PAID LESS A woman claiming lower pay than a male comparator does not automatically lose her case because another male is paid an equivalent wage. (Hennick v. Schwans Sales Enters, N.D. Iowa)

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PLAINTIFF BARRED FROM FILING TITLE VII ACTION AFTER RECEIVING RIGHT-TO-SUE LETTER An employee’s claim of race discrimination was dual filed with the EEOC and a city agency. The city agency closed the case after six years. A right-to-sue letter was issued by the EEOC. The Eighth Circuit barred the subsequent federal suit because of laches, finding that plaintiff’s delay in filing was unreasonable and inexcusable and that defendant was prejudiced by the delay. (Brown-Mitchell v. Kansas City Power & Light Co.)

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EMPLOYER MAY CHANGE ITS MIND ABOUT FMLA APPROVAL The DOL regulations say that once an employer grants FMLA leave, then the employee gets FMLA leave. The Second Circuit now joins the Seventh and Eleventh Circuits holding that an employer may change its mind if it discovers that the employee did not work 1,250 hours during the previous 12 months. (Woodford Community Action of Greene County, Inc.)

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STARE AT YOUR OWN RISK A co-worker’s repeated stares may be enough to constitute a sexually hostile working environment according to an appellate court in California (Birschtein v. New United Motor Manufacturing Inc.) Despite the employer’s order to stay away from Birschtein, the co-worker continued to sit at a distance and stare at her for as long as five to ten minutes at a time. The court ruled that the employer’s failure to stop the staring may be seen as a failure to prevent discriminatory harassment.

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BUT I DID A GOOD JOB An employee’s perception of his own performance doesn’t prove pretext. In order to challenge a discharge for poor performance, the employee must show that there is no basis for the employer’s stated reason for the discharge. (Olsen v. Marshall & Ilsley Corp. 7th Cir.)

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ADA CLAIM LOST DUE TO SUBSEQUENT EMPLOYMENT A depressed employee did not have a protected disability since he obtained subsequent employment. His continued employment evidenced that the disability was short-lived and did not prevent him from working. (Swanson v. University of Cincinnati 6th Cir.)

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A STRESSFUL ENVIRONMENT DOES NOT AMOUNT TO CONSTRUCTIVE DISCHARGE The Third Circuit found that a stressful environment would not compel a reasonable person to resign. (Duffy v. Paper Magic Group, Inc.)

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ALLEGED HARASSER SUES A Black employee accused of sexual harassment alleged race discrimination because the employer fired him without investigating the sexual harassment claim. (Taylor v. Cramer D. Kan)

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PUNITIVE DAMAGES AVAILABLE FOR RETALIATORY FLSA FIRINGAn employee who was fired in retaliation for reporting wage and benefit improprieties is entitled to recover punitive damages under the FLSA. A federal court in Pennsylvania interpreted the phrase “legal or equitable relief” under the anti-retaliatory provision of the FLSA to include punitive damages. Marrow v. Allstate Security & Investigative Services Inc. The court reasoned that deterring employers from punishing workers who exercise FLSA rights by allowing punitive damages helps effectuate the purposes of the law.

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EMPLOYMENT DISCRIMINATION CLASS ACTIONS ALIVE AND WELLClass certification in employment discrimination cases is still possible even if money damages are sought in addition to injunctive or declaratory relief, according to the Second Circuit Court of Appeals in Robinson v. Metro-North Commuter Railroad Co. By rejecting a “bright line rule” barring class certification in cases where money damages are sought, the Second Circuit bucked the trend set by other circuits. Instead, the court set up a balancing test whereby class certification could be granted if the “positive weight of value” to the plaintiffs of the monetary relief is predominate. This case by case approach will likely make the granting of class status in employment discrimination cases easier.

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SIXTH CIRCUIT USES MOTHER GOOSE TO SUM UP TRIAL COURT’S DECISION-THEN REVERSES “Georgie Porgie pudding and pie Goosed the men and made them cry Upon the women he laid no hand So it cost his employer 300 grand.”The Sixth Circuit reversed, in part, because “upon the women he laid no hand.” A sexually hostile workplace without any gender discrimination is not actionable. (EEOC v. Harbert-Yeargin, Inc.)

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NO FREE PASS TO HARASS Ex-lovers whose fighting spills over to the workplace are not typically covered by Title VII, which does not prohibit harassment based on personal animosity. However, the Eleventh Circuit found that “a prior intimate relationship does not give . . . a free pass to harass.” A jury verdict in favor of a female restaurant worker may therefore not be overturned by the district court. (Lipphardt v. Durango.)

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DEPLORABLE HARASSMENT EXCUSED The Seventh Circuit found that disgusting comments of a sexual nature are excused. They were made because the harasser hated the woman’s husband, not due to her gender. (Rizzo v. Sheahan)

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EMPLOYER LIABLE FOR MANAGER IGNORANCE A manager did not know that age discrimination was unlawful. Because the employer did not train the manager, the Seventh Circuit found reckless indifference. (Mathis v. Phillips Chevrolet, Inc.)

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LATERAL TRANSFER NOT RETALIATORY A lateral transfer without a loss in benefits or responsibilities is not an adverse employment action. The court observed that “not everything that makes an employee unhappy is an actionable adverse action.” (Stutler v. Illinois Dept. of Corrections (7th Cir.)

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FORCED BLOOD TEST DOESN’T VIOLATE ADA A cut finger caused co-workers to come into contact with a janitor’s blood. The employer may require a blood test for hepatitis and HIV which was found in this case to be “job-related and consistent with business necessity.” (Boyer v. KRS Computer and Business School D. Minn.)
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ATTORNEYS’ FEE AWARD DWARFS DAMAGE AWARDA successful plaintiff was awarded $60,000. The employer also had to pay $350,000 for plaintiff’s attorney. (Schott v. Rush – Presbyterian N.D. Ill.)

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MUSLIM DRIVER NOT ENTITLED TO LONGER LUNCH A Muslim driver requested a longer lunch break on Fridays in order to attend prayer services. His employer permitted him to bid for another schedule; two were available which would enable him to attend services. The court found that the issue is not which accommodation is better; the question is whether the employer’s accommodation is reasonable. In this case the offered accommodation was reasonable because the employer did not want to violate the collective bargaining agreement. (Elmenayer v. ABF Freight Systems E.D.N.Y.)

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LIFTING RESTRICTION NOT ADA DISABILITY A nurse was restricted from lifting over 40 pounds after a diskectomy. The Eight Circuit holds that the general lifting restriction without more is insufficient to constitute a disability protected by the ADA. (Brunko v. Mercy Hosp.)

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GAY MAN’S TITLE VII CLAIM REJECTED A male employee assaulted by co-workers and subjected to anti-gay comments did not have a Title VII claim because (1) the harassers were not motivated by sexual desire; (2) the harassers were not generally hostile toward one sex; and (3) the harassers were not punishing the plaintiff because of noncompliance with gender stereotypes. (Bibby v. Philadelphia Coca Cola Bottling Co., Third Circuit).

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31 REASONS FOR FIRING BARS ADEA CLAIM An elementary school teacher was fired for 31 reasons grounded in unprofessional and insubordinate behavior. Because there was no concrete evidence that younger workers were treated more favorable and because the teacher could not prove that any of the 31 reasons were pretext for age discrimination, the age claim was dismissed on summary judgment. (Horwite v. Board of Educ., Avoca Sch., Dist. Seventh Circuit).

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12 MONTH FMLA PERIOD America West Airlines told employees in a handbook that they could take 12 weeks within any 12 month period. The Airline argued it was a rolling 12 month period. An employee needed a 12 month calendar period. The Ninth Circuit ruled that the handbook was not clear, so whatever method of calculating the 12 month period that helps the employee will be used. (Bachelder v. America West Airlines).

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EMPLOYEES PRIOR WORK AS A PROSTITUTE INADMISSIBLE IN SEXUAL HARASSMENT CASE A plaintiff’s history as a call girl and other evidence of sexual history is not permitted at trial. (Chamblee v. Harris & Harris, Inc. S.D.N.Y).

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REPETITIVE STRESS DISORDER NOT A PROTECTED DISABILITY UNDER ADA A newspaper reporter who could not type or write for extended periods because of a repetitive stress disorder did not have a protected disability because she was not limited in a major life activity. The Court found the major life activity of performing manual tasks included a broad range of activities that she could perform such as shopping, driving, and dressing. (Thornton v. McClatchy, Ninth Circuit)

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DISABILITY PLANS MAY PROVIDE LIMITED BENEFITS FOR MENTAL DISABILITIES A District Court ruled that a disability benefit plan may discriminate against mental disabilities with respect to benefits. The Third, Fourth, Sixth, Ninth, Tenth and D.C. Circuits have agreed. Only one District Court in New Hampshire disagrees. (El-Hajj v. Fortis Benefits D.ME.)

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LIFTING RESTRICTION NOT ADA DISABILITY A nurse was restricted from lifting over 40 pounds after a diskectomy. The Eight Circuit holds that the general lifting restriction without more is insufficient to constitute a disability protected by the ADA. (Brunko v. Mercy Hosp.)

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SEXUALLY SUGGESTIVE PICTURESAn employee was livid after a picture of a woman with exposed breasts who bore a striking resemblance was circulated at work. The employer identified nine responsible employees and required them to take sexual harassment prevention training. Disciplinary measures were also taken. An apology by the three main culprits was also forthcoming. Because the employer’s actions were swift and ended the harassment, the employer could not be held liable. (Rheineck v. Hutchinson Technology Inc. Eight Circut).

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FMLA PERMITS SUITS AGAINST INDIVIDUAL SUPERVISORS – EVEN IN THE PUBLIC SECTOR. Courts are split over whether the FMLA permits suits against supervisors in the public sector. A District Court found that a postal worker with a knee problem could sue the Postmaster General and his supervisor individually. (Carter v. USPS W.D.Ky.)

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ADA CLAIM DEPENDS ON WORDING OF COMPLAINT If a doctor suffering from depression and panic disorder had alleged that his employer regarded him as limited in the major life activity of working, he would have lost since he was not unable to work in a “broad class” of jobs. However, by alleging that he was regarded as having a limitation in his ability to cognitively think, his claim survived. (Mattice v. Memorial Hosp. of South Bend Inc. 7th Cir.)

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FRAUDULENT DISABILITY CLAIM When asked to work Saturdays, an employee who had worked 45 years for the NY Post went on disability after complaining of chest pains. After learning more about the Post’s disability plan, he sought clearance to return to work and reversed his decision to resign. The employee was thereafter fired. An employer’s good faith belief that the employee attempted to commit fraud in his disability application resulted in dismissal of his case. (Roge v. NYP Holdings Inc. 2nd Cir.)

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After suffering a $170,000 judgement for sexual harassment, a company sold all its assets. The buyer which was on notice about the judgment continued the operation. The buyer was liable as a successor employer for the judgement. (EEOC v. SWP Inc. N.D. Ind.)
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SILENT SUFFERING IS NOT TANGIBLE EMPLOYMENT ACTION A raise and promotion because a woman “silently suffered” sexual advances is not a tangible employment action. The employer’s swift corrective action after the woman complained resulted in the dismissal of her case. Her claim that she delayed complaining because she had to collect evidence and determine whether the harasser was simply “interested” or a “predator” did not excuse the delay of her complaint. (Matvia v. Bald Head Island Management Inc. 4th Cir.)

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An employee’s panic attacks from climbing resulted in a doctor’s note requesting an accommodation. An employee may not simply dismiss an accommodation as inconvenient. The employer should have looked into viable alternatives. (Skerski v. Time Warner Cable Co. 3rd Cir.)
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WHAT IS A SETTLEMENT? After a settlement conference, the employer thought a settlement was reached. The employee subsequently decided to continue her case. Because material terms, such as the status of a workers’ compensation claim and scope of a non disparagement clause, were not agreed upon, the “settlement” could not be enforced. (Higbee v. sentry Insurance Co. 7th Cir.)

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A male employee was harassed because he was perceived as effeminate. The Ninth Circuit found that since the employee was harassed for not fitting his co-workers’ view of a male stereotype, his Title VII claim survived. (Nicholas v. Azteca Restaurant Enterprises Inc.)
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FAULTY BUSINESS JUDGEMENT A Vice President could not prove age or disability discrimination by showing that a job evaluation was bogus. A court will not second guess a good faith evaluation, even if unwarranted. (Sprenger v. Federal Home Loan Bank of Des Moines 8th Cir.)

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An employee suffering from pancreatitis told his insurance company that he could not return to work. The Fifth Circuit holds that when an employee can’t work, he can’t claim retaliation under the ADEA. (Holtzclaw v. DSC Communications Corp.)
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A nurse informed her employer that a doctor had put her on leave for about a month. The employer was aware of the employee’s symptoms, which included vomiting and chest pains. The employee was fired after failing to provide a doctor’s note within 15 days. The employer violated the FMLA by not providing written notice about the FMLA. (Wilson Lemington Home for the Aged W.D. PA.)
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LOWER BENEFITS TO OLDER WORKERS IS NOT ADEA VIOLATION A voluntary early retirement plan provided a health care stipend which was reduced by $2,000 to 65 year olds who were eligible for Medicare. The employer was able to have the case dismissed because different treatment is permitted in voluntary early retirement plans. (Gutchen v. Board of Governors of University of RI D.R.I.)

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Disparate impact occurs when a policy impacts a protected group more harshly. The Eleventh Circuit siding with the First, Third, Sixth, Seventh and Tenth Circuit do not permit ADEA disparate impact claims. The Second, Eighth and Ninth Circuit disagree. (Adams v. Florida Power Corp.) Back to top
Plaintiff’s self-serving, conclusory affidavit doesn’t make an ADEA case. Dismissing a 60 year-old employee because, based on seniority and benefit level, he costs more to employ does not violate the ADEA. (Elliot v. British Tourist Authority S.D.N.Y.) Back to top
An alleged sex discrimination victim lied about a previous employment related lawsuit and prior therapy. The Eight Circuit affirmed that dismissing the case was an appropriate punishment.(Martin v. Daimler Chrysler Corp.)Back to top
If a doctor suffering from depression and panic disorder had alleged that his employer regarded him as limited in the major life activity of working, he would have lost since he was not unable to work in a “broad class” of jobs. However, by alleging that he was regarded as having a limitation in his ability to cognitively think, his claim survived. (Mattice v. Memorial Hosp. of South Bend Inc. 7th Cir.)Back to top
The President demanded to have dinner and drinks with the VP of Legal Affairs – without her husband and kids. The VP rebuffed and had her cell phone and car taken away, was assigned boring work and was not interviewed for the General Counsel position. The Seventh Circuit found the incidents to be isolated and minor. There was no employer liability because there was no adverse tangible employment action. (Murray v. Chicago Transit Auth.)Back to top
POLICY AND TRAINING PROVIDES PUNITIVE DAMAGES PROTECTION A male employee was sexually propositioned and harassed by his gay manager. The employee was subsequently fired. The Seventh Circuit found that since the employer had promulgated a discriminatory harassment policy and provided discriminatory harassment prevention training, there is nothing else the employer could have done since it had no knowledge of the conduct. The employer could therefore not be liable for punitive damages. (Cooke v. Stefani Management Services Inc.)

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GAY PARTNERS, BUT NOT UNMARRIED HETEROSEXUAL COUPLES, GET BENEFITS The Chicago Board of Education extended spousal health benefits to gay, but not heterosexual, unmarried couples. The Seventh Circuit did not find a violation since gay couples cannot marry. (Irizarry v. Chicago Board of Ed.)
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UNION ORDERED TO KEEP PAYING After being held liable for discrimination against non-whites, a union was ordered to pay $2.6 million and $900,000 a year until further notice following back pay hearings. The Second Circuit found that district courts have broad discretion to fashion a remedy. (EEOC v. Local 638, Local 28 Sheet Metal Workers Int’l Ass’n)

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PUNITIVE DAMAGES AND MUNICIPALITIES A Federal Court overturns a $1 million punitive damages award under the New York City Code. NYC had not waived its sovereign immunity from punitive damages. Punitive damages are not available against municipalities unless there is legislative intent to permit such damages. (Katt v. New York City, S.D.N.Y.)

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SOVEREIGN IMMUNITY WORKS FOR STATES IN FMLA CASES, BUT NOT IN TITLE VII CASES On the same day, the Eighth Circuit held that Congress clearly intended States to be covered by Title VII and the Eleventh Circuit found that sovereign immunity protects States from FMLA claims. Both Courts looked to legislative intent to determine if sovereign immunity applied. (Okruhlik v. University Of Ark., 8th Circuit and Lizzi v. Alexander, 4th Cir.)

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EMPLOYEE WITH CARPAL TUNNEL SYNDROME NOT PROTECTED BY ADA An airline gate attendant with carpal tunnel syndrome had numerous physical restrictions with respect to lifting, pushing, pulling and standing. The employee was placed on restricted duty for one year. She was then placed on unpaid medical leave, and sued. The First Circuit found that since the employee had no protected disability, she was not entitled to an accommodation under the ADA. The employee’s condition, taking into account her skills and abilities, did not substantially limit her in the major life activity of working. (Gelabert-Ladenheim v. American Airlines Inc.)

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MANDATORY ARBITRATION POLICY RULED UNENFORCEABLE DUE TO FEE SPLITTING Win or lose, employees are required to split the cost of arbitration under an arbitration agreement. The Eleventh Circuit found the agreement unenforceable because it violates Title VII’s fee shifting when plaintiff prevails. (Perez v. Globe Airport Security Servs. Inc.)

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RACIAL SLURS BASED ON WRONG RACE A prison employee of Filipino and Native American descent was subjected to anti-white slurs by an African-American employee. The employer argued that since discriminatory comments were not directed to Filipinos or Native Americans, the claim must fail. The Court disagreed, finding that the comments were directed at the employee. Further, the Court found that since employees in a prison need to trust their co-workers, the racial slurs interfered with the employee’s work. (Bell v. Maryland D.Md)

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NO BEARD POLICY VIOLATES TITLE VII The EEOC sued Federal Express alleging that a no beard policy discriminated against employees with a sincerely held religious conviction that prevents shaving. The matter was settled in a consent decree which requires exceptions to the policy for religious reasons and training. (EEOC v. Federal Express Corp.)

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EMPLOYEE WHO REFUSES TO COMPLY WITH AFFIRMATIVE ACTION PLAN PROTECTED BY TITLE VII An employee who in good faith refuses to comply with an affirmative action plan may not be retaliated against according to the Fourth Circuit. (Dea v. Washington Suburban Sanitary Commission)

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DRIVING TO WORK IS NOT MAJOR LIFE ACTIVITY An employee could not drive until seizure-free for six months. The employee requested working at home two days and a flexible schedule to accommodate her transportation needs. The Eleventh Circuit rules that an employee’s inability to drive is not a substantial limitation of a major life activity for purposes of the ADA. (Chenoweth v. Hillsborough Cty)

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$6.24 MILLION AGE DISCRIMINATION VERDICT OVERTURNED The First Circuit found that an employer fired two employees in “an insensitive overreaction to a series of minor transgressions.” However, the entire age discrimination claim was that plaintiffs were over 40, fired and replaced with younger employees, who were also over 40. Finding no discriminatory intent, even though the jury was justified in disbelieving defendant’s stated reasons for firing plaintiffs, the First Circuit was compelled to overturn the large jury verdict. (Baralt v. Nationwide Mutual Ins. Co.)

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UNION LIABILITY UNDER TITLE VII BASED ON NUMBER OF MEMBERS A union member sued a Steelworkers’ Local and his employer for a racially hostile work environment. The Local argued that it only had four employees, and therefore was not liable for compensatory damages. The Eighth Circuit found that the Local, which had over 1,500 members, should be treated like employers with 1,500 employees. (Dowd v. United Steelworkers of America, Local No. 286)

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FEDERAL COURT FINDS DISCRIMINATION BECAUSE PLAN PROVIDES FOR NO CONTRACEPTIVE COVERAGE Health plans may not discriminate on the basis of sex. The District Court decided that “the law is no longer blind to the fact that only women can get pregnant, bear children or use prescription contraception. (Erickson v. Bartell Drug Co. W.D. Wash.)

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REQUEST FOR UNLIMITED SICK DAYS HELD NOT TO BE REASONABLE An employee with AIDS-related medical problems requested unlimited sick days as an accommodation under the ADA. After being subjected to progressive discipline for attendance problems, he filed a charge with the EEOC. The EEOC brought an action against his employer under the ADA. The Seventh Circuit ruled 7-4 that the employee’s regular attendance was an essential job function and the request was unreasonable. (EEOC v. Yellow Freight System)

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MAINE REQUIRES HEALTH INSURANCE COVERAGE FOR DOMESTIC PARTNERS In January 2002, health insurers in Maine will be required to treat domestic partners as spouses when extending health insurance coverage.

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SEXUAL HARASSMENT MUST BE IN EMPLOYEE’S ORBIT A jury found that a Deputy Superintendent for the New York City subway suffered sexual harassment upon hearing that two female cleaners were being harassed, including unwelcome touching and propositions. After the women complained, the Deputy Superintendent experienced a major depressive disorder when her attempt to help the women failed. The Second Circuit reversed the jury verdict finding that the alleged harassment was out of plaintiff’s sight and “regular orbit;” there was no evidence that her working environment was hostile or that the harassment of others adversely affected the terms and conditions of her own employment. Leibovitz v. New York City Transit Auth.

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FMLA’S INTERMITTENT LEAVE PROVISION IS NOT FOR REHABILITATION A business manager for a college suffered a head injury. Following the accident, she was limited to routine tasks and could not perform the essential functions of her job. She requested to work on a reduced schedule, gradually working up to full time. The Eighth Circuit found that the college had no obligation under the FMLA “to be directly involved in an employee’s rehabilitation…while the employee is at his or her job, the employee must be able to perform the essential functions of the job.” Hatchett v. Philander Smith College

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THE ADA DOES NOT REQUIRE PREFERENTIAL TREATMENT A door-to-door salesperson suffered injuries which prevented walking and stair climbing, which was required for the job. She requested training so she could be promoted to a non-walking management position. The Seventh Circuit found that the employer did not have to offer such training, which was not offered to other employees. The Court found that such special training would be a burden not required by the ADA. Williams v. United Ins. Co. of Am.

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ADA REQUIRES EMPLOYEES TO ANSWER REASONABLE REQUESTS ABOUT MEDICAL CONDITIONS An employee who repeatedly failed to respond to reasonable requests for information about his doctor’s directive that he not be exposed to dust, chemicals or other irritants could not proceed with his ADA claim says the Fourth Circuit. (Haulbrook v. Michelin North America Inc.)

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MALE EMPLOYEE WAS NOT CONSTRUCTIVELY DISCHARGED A male operations manager complained about sexist remarks and implied requests for sex from his female boss after he quit. The Seventh Circuit found that a reasonable person would not have been compelled to quit and that the boss’ statements were not sufficiently severe or pervasive to state a claim. The Court found no “objectively intolerable working environment” and that the comments were not “substantially distressing.” (Wolf v. Northwest Indiana Symphony Society)

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WHO IS THE HARASSER? A woman complained that her boss sexually harassed her. The male boss said she was a poor performer who had sexually propositioned him. During an investigation, the boss failed to produce proper documentation of performance problems. He was subsequently fired and claimed sex and age discrimination. The Court dismissed the complaint finding that the boss failed to take disciplinary action against the woman or otherwise make a sexual harassment complaint pursuant to the Company’s policy. The Court found that the investigation was comprehensive and not a pretext for sex or age discrimination. (Needham v. BI Inc. N.D.Ill)

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THE CIVIL RIGHTS TAX RELIEF ACT OF 2001 INTRODUCED IN CONGRESS If passed, this law would make settlements and judgments of discrimination cases non-taxable. (S.917 and H.840)

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EMPLOYEE’S RESIGNATION PREVENTS FAILURE TO ACCOMMODATE CLAIM A deaf employee quit because she believed her employer was playing a “cat and mouse” game when trying to get an interpreter. The Court found that the employer was not “required to move with maximum speed” and that the resignation ended the interactive process required for reasonably accommodating her disability. (Rennie v. United Parcel Service D. Mass)

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NO CAP ON FRONT PAY The United States Supreme Court unanimously determined on June 4, 2001 that statutory caps on damages do not apply to front pay. Pollard v. E.I. du Pont de Nemours & Co.

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THE ADEA AND FOREIGN NATIONALS Foreign nationals applying abroad for US jobs are not protected by the Age Discrimination in Employment Act says the Fourth Circuit. (Reyes-Gaona v. North Carolina Growers Assoc.)

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DEMANDS FOR SEX AND RACIAL SLURS An elderly patient declared incompetent by a state court subjected a nurse to racial slurs and demands for sex. When the nurse complained, the employer asked her to consider the source and not take it personally. The Fifth Circuit found that the conduct was not so severe or pervasive as to interfere with the nurse’s work. Cain v. Blackwell.

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ADA REQUIRES INDIVIDUALIZED ASSESSMENT The United States Supreme Court determined that the ADA requires that a disabled golfer who suffers from a degenerative circulatory disorder may use a golf cart. The court found that the “refusal to conduct an individualized inquiry in deciding whether to accommodate this golfer’s disability ran counter to the clear language and purpose of the ADA.” PGA Tour, Inc. v. Martin

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AFFIRMATIVE DEFENSE REJECTED An employer fails to establish an affirmative defense to a sexually hostile work environment claim where it can not prove that it maintained or disseminated a sexual harassment policy. (Frederick v Sprint/United Management 11th Circuit.) .

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WHO IS THE EMPLOYER ? The Seventh Circuit used an economic realities/degree of control test to find that a company could be deemed a joint employer under Title VII and the ADEA. The fact that a company provided health insurance and authorized pay raises, in light of a lost personnel file and notwithstanding the fact that another entity issued paychecks and a w-2, entitled plaintiff to a jury trial on the issue of who is the employer, Heinemeier v. Chemetco, Inc.

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CHRONIC DEPRESSION NOT A DISABILITY The Eighth Circuit holds that since chronic depression did not substantially limit social interaction or working, it was not a protected disability under the ADA. It didn’t matter that plaintiff was limited in comparison to others. She had managed for 30 years to deal with her illness and was not substantially limited in major life activities. The court also found that an inability to perform one job is not enough to evidence a limitation of a major life activity – working; a plaintiff must show an impairment which causes a significant reduction in meaningful employment opportunities. Cooper v. Olin Corp.

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Back to top CBA BARS TITLE VII LAWSUIT A collective bargaining agreement that clearly provides for Title VII claims to be arbitrated precludes a private suit. Even if the alleged Title VII victim has no right to grieve or arbitrate, and the union fails to pursue the matter, the union employee is not entitled to her day in court. (Safrit v. Cone Mills Corp, 4th Circuit.)

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PICKING COMPARATORS A prison guard alleged discrimination after being fired for having sex with an inmate. He could not claim disparate treatment with respect to only one female guard not fired after kissing an inmate, when two other female guards lost their jobs over their inmate relationships. When using comparators, the 10th Circuit frowns on choosing some while ignoring others. English v. Colorado Department of Corrections.

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EXCESSIVE FORCE AGAINST AFRICAN AMERICAN A white deputy sheriff alleged that he was fired because of his race. The Sheriff said he was fired for using excessive force when arresting an African American. The deputy sheriff claimed to be the victim of race-related politics. A jury found unlawful discrimination. The Fifth Circuit reversed finding that there was no evidence that the deputy sheriff’s race – as opposed to the alleged criminal’s race – was a motivating factor. McKenzie v. Lee.

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100% HEALED Employers that will not reinstate workers unless they are 100% healed do not necessarily violate the ADA. There still must be a finding that the employee was “disabled” or “regarded as disabled” as defined by the ADA, says the Sixth Circuit. Henderson v. Ardco Inc.

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INDIVIDUAL ASSESSMENTS The EEOC sued Northwest Airlines for disability discrimination because of an alleged policy that excludes employees who are insulin-dependent or on anti-seizure medications from certain positions without individual assessments to assess essential duties, direct threats or possible accommodations.

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MEDICAL EXAMS An employer’s request for an appropriately-tailored medical exam evidences that an employer had doubts about an employee’s ability to perform a particular job. Such doubts do not support a perceived disability claim says the Third Circuit. Tice v. Centre Area Transportation Authority

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INDIVIDUAL LIABILITY UNDER §1983 Public officials can be personally liable for intentional sexual harassment. The Eighth Circuit finds that a supervisor’s reporting to a subordinate’s hotel room in boxer shorts, requests for sexual favors and unwelcome touching justifies a $70,000 verdict against the supervisor. Moring v. Arkansas Dep’t of Correction

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POLICE OFFICER’S PIN A police officer claimed that a no pin policy violated Title VII and his First Amendment Right to wear a cross on his uniform. The Fifth Circuit disagreed and said the police department could ban pins. Daniels v. City of Arlington

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DISABILITY HARASSMENT VIOLATES ADA The Fifth Circuit is the first circuit to hold that harassment based on a disability is an ADA violation. Flowers v. Southern Reg’l Physician Servs., Inc.

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GAY RELATIONSHIPS v. RELIGIOUS BELIEFS An employee assistance counselor, whose religion frowns upon gay relationships sues employer for failure to accommodate religious beliefs because it would not excuse her from counseling about gay relationships. The employer decided that the accommodation was not reasonable because it would create an uneven workload. The jury awarded over $2 million. The Fifth Circuit reversed finding the accommodation would cause an undue hardship. Bruff v. North Miss. Health Services

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FLIGHT ATTENDANT MISSES FLIGHT United Airlines fired a flight attendant because he “deviated without authority” from his flight schedule. The employee claimed race and age discrimination. The District Court found that the employee did not even have enough evidence to warrant a trial. The Seventh Circuit found that a triable issue existed and reversed the District Court decision because of United’s shifting explanation for the firing and confusion over the meaning of “deviated without authority.” Gordon v. United Airlines

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A NOOSE IS NOT ENOUGH Displaying a noose and racist comments did not create a racially hostile work environment because they were isolated, sporadic and did not alter employment conditions; the incidents were not severe or pervasive enough to establish a discriminatory hostile work environment. McCoy v. City of New York

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NEGATIVE EVALUATIONS NOT ADVERSE EMPLOYMENT ACTION A black police officer claimed discrimination after receiving two negative “counseling memos.” One memo was removed and the other memo would not impact the employees’ overall employment rating or pay increase. The Court wrote that the “loss of prestige or self-esteem felt by an employee who received what he believes to be unwarranted job criticism or performance review will rarely-without more-establish the adverse action necessary to pursue a claim under Title VII’s anti-discrimination clause.” Davis Lake Park, Fla.

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ESSENTIAL JOB DUTIES NOT LINKED TO TIME The Seventh Circuit finds that a pharmacy technician with limited mobility was not a “qualified individual with a disability” because he could not deliver and restock. The fact that these duties normally took less than 45 minutes a day is irrelevant. The fact that other workers could cover does not render the work non-essential. A restructuring of jobs is not required by the ADA. Basith v Cook County

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UNION STEWARDS ARE UNION EMPLOYEES A former union officer sued a UFCW Local for sexual harassment. The Union stated that it did not have the 15 jurisdictionally-required employees to be covered by Title VII, arguing that the stewards were volunteers and received income from their regular employer, not the Union. The Eighth Circuit found the stewards to be employees under Title VII because the Union controlled their termination and hiring, controlled the manner and means by which they performed their duties and because they did receive some benefits from the union. Daggitt v. United Food and Commercial Workers’ Int’l Union Local 304A

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ARBITRATION AGREEMENT UNENFORCEABLE A Federal Court found that power imbalances, potential bias and complexity in an arbitration agreement made the agreement unconscionable. Geiger v. Ryan’s Family Steak Houses

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DISCRIMINATION BASED ON EFFEMINACY IS TITLE VII VIOLATIONDistrict Court finds that offensive locker room banter about plaintiff’s effeminate appearance states valid Title VII claim. Jones v Pacific Rail Services

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On March 21st, the US Supreme Court reversed the Ninth Circuit and found that the Federal Arbitration Act does not exclude employees, except for transportation workers. Circuit City Stores v. Adams
Back to top RELEASE SIGNED BY HR DIRECTOR DOESN’T RELEASE CLAIM FOR INDEMNIFICATION An HR Director was sued individually for sexual harassment. Her employment terminated and a release was signed. Her employer then settled the sexual harassment suit, which was filed against the employer and the HR Director. An Appeals Court in Tennessee found that the release did not extinguish the HR Director’s claim for indemnification to recover her attorneys’ fees since the sexual harassment suit was settled after the release was signed. The Court found that the release did not extinguish future claims, and the claim for indemnification did not arise until the case was settled. Sherman v American Water Heater Co.

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CHURCH OF CHRIST MEMBERS ONLY A jury awarded $170,000 to a nursing administrator who was barred from applying to a position at a nursing home because she was not a member of the Church of Christ. The Sixth Circuit reversed finding that the employee did not meet State certification requirements for the position. She lacked management experience required by the State. Roh v Lakeshore Estates Inc.

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A jury awarded a female attorney $80,000 for a sexually hostile work environment at a law firm. The District Court judge quashed the award, finding that sexual banter was in a humorous vein and that the associate remained friends with the accused male associates. The Court held that sexual talk and vulgar terms was not hostile or abusive to a severe or extreme degree. Fitzgerald v Ford Marrin Esposito Witmeyer & Glesser
Back to top US SUPREME COURT ALLOWS ENFORCEMENT OF ARBITRATION PROVISION On March 21st, the US Supreme Court reversed the Ninth Circuit and found that the Federal Arbitration Act does not exclude employees, except for transportation workers. Circuit City Stores v. Adams

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Allegations of men barging into the women’s locker room, simulated sex acts with a microphone and breast groping gives plaintiff the right to a jury trial on her sexually hostile environment claim. However, rebuffed requests for sexual favors did not state a quid pro quo claim when plaintiff’s response to the requests was not used as the basis for a decision affecting terms or conditions of employment. Bass v World Wrestling Federation Entertainment Inc.
Back to top MANAGER LANDS IN JAIL FOR ONE YEAR The Catering Director of Le Bar Bat in New York City has been convicted of obstruction of justice and sentenced to one year in prison. When the EEOC investigated a sexual harassment complaint, the Catering Director targeted the Complainants with fliers accusing them of prostitution, child molestation and drug dealing. He then asked his co-workers to tell EEOC investigators that he had nothing to do with the fliers. U.S. v. Patrick Kelly, New York Law Journal, February 8, 2001, page 39, Col. 2.

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The EEOC has issued final rules that relate to releases and the ADEA. Releases that require employees to return money before filing an age discrimination claim no longer bar an ADEA claim if the money is not “tendered back.” Seewww.eeoc.gov.
Back to top ARBITRATING SEXUAL HARASSMENT CLAIMS Even if an arbitrator misapplies the law, courts are very reluctant to overturn arbitrators’ awards. An arbitrator in Pennsylvania thought that a pervasive hostile work environment required daily offensive behavior. The fact that a woman was asked for a one night stand, subjected to multiple vulgar and sexually suggestive comments about her body, asked about sexual relations with her fiancé and grabbed by her supervisor who then peered down her blouse did not create a pervasive sexually hostile work environment in the mind of the arbitrator. Because there was no manifest disregard for the law, a federal district court judge would not overrule the arbitrator. See Smith v. PSI Services Two.

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The EEOC has ruled that where a health plan covers vasectomies and tubal ligations, the plan must cover prescription contraceptives or run afoul of the Pregnancy Discrimination Act and Title VII. See www.eeoc.gov.
Back to top REASONABLE RESPONSE TO HARASSMENT CLAIMS The 10th Circuit found that jokes and nooses at work could be found to be race harassment. However, Delta Airlines could not be held liable because it immediately investigated and took corrective action. Since the harassment was not occurring “at the behest of Delta” and because Delta acted reasonably, Delta was not held liable. Hollins v Delta Airlines
Back to top TOO SCARED TO COMPLAIN The Second Circuit has found that being “too scared to complain” does not excuse an employee’s failure to complain under an anti-harassment policy. Since the court found that the plaintiff acted unreasonably and that no tangible employment action was taken, the hostile environment claim was dismissed. Leopold v Baccarat Inc.
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A trucking company will not use drivers taking prescriptions that could impair their ability to drive. The Second Circuit found no violation because the employer did not view the workers taking such medications as disabled.


The Supreme Court held that where the commission of supervisor harassment does not culminate in a “tangible employment action” (as in both Faragher and Ellerth), the employer may raise as an affirmative defense to liability or damages that it (a) “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998).

     What is an employer’s reasonable care to prevent and correct any sexually harassing behavior?

Whether the employer exercised reasonable care to prevent any sexually harassing conduct will be determined based on what actions the employer took prior to receiving a sexual harassment complaint to prevent such behavior in its workplace. Since Faragher and Ellerth, courts generally have found that employers exercised reasonable care to prevent harassment where they are able to show that they adopted and distributed a policy that clearly communicates that harassment is not tolerated, and that they have a complaint or grievance procedure in place. Proof that its employees received the policy is also effective in establishing the first prong of the affirmative defense.
Whether the employer exercised reasonable care to correct promptly any sexually harassing conduct will be determined based on what actions the employer took after receiving a sexual harassment complaint to remedy such behavior.

     The employers in the following cases successfully established that they exercised reasonable care to prevent and correct promptly the alleged harassment:

In Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382 (S.D.N.Y. Mar. 24, 2000), aff’d, ___ F.3d ___, No. 00 Civ. 7641, 2001 WL 99831 (S.D.N.Y. Jan. 19, 2001), the employer met the first element of its affirmative defense, and the court granted summary judgment, because it was undisputed that the employer had a grievance procedure set forth in its employee handbook, along with the employer’s policy of prohibiting sexual harassment. The record also established that the employer responded promptly to plaintiff’s complaint of harassment. After plaintiff complained about the alleged harasser, the alleged harasser was told that plaintiff was uncomfortable with his behavior. Thereafter, plaintiff concedes that she experienced no further incidents of harassment. Thus, the employer acted reasonably to prevent and correct harassment in the workplace.
In Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), the court affirmed summary judgment for the employer because it had an effective sexual harassment policy which called for employees notifying designated managers of any alleged incidents of harassment. Plaintiff failed to notify any of these managers, and instead, notified a co-worker of the alleged harassment. Further, she asked that a non-managerial employee confront the harasser. This was arranged by the employer. Thereafter, the plaintiff never again complained to management about the continuing harassment. The court noted that while delegating the tasks of confronting the harasser to a non-supervising employee is not appropriate, it was in line with the plaintiff’s wishes. Further, since she failed to bring the continuing harassment to management’s attention, it was reasonable for the employer to conclude that no further action was necessary.
In Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000), a hostile work environment case, the court granted summary judgment for the employer holding that plaintiff’s failure to notify designated managerial employees of her claimed sexual harassment failed to put the employer on notice. The plaintiff told midlevel managers who were not designated to receive complaints of the alleged harassment. But see, Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000) (reversing district court’s grant of summary judgment for the employer, and finding that where the employer’s policy provided that store managers were to refer complaints to the district manager and plaintiff reported harassment to a store manager, who failed to refer the complaint, the employer had actual notice of the harassment)
In Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548 (11th Cir. 1997), the plaintiff alleged that she had been subjected to five (5) years of unwelcome sexual advances and remarks. During the period, the employer had an effective anti-sexual harassment policy which it communicated to employees. The plaintiff received training on the policy three years after the alleged harassment began and more than two years before she used the procedures to inform management. The employer raised the Faragher affirmative defense. The court affirmed summary judgment for the employer, holding that “once an [employer] has developed and promulgated an effective and comprehensive anti-sexual harassment policy, aggressively and thoroughly disseminated the information and procedures contained in the policy to its staff, and demonstrated a commitment to adhering to this policy, it has fulfilled its obligation to make reasonably diligent efforts to ‘know what is going on’ . . . beyond this point, it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances.” Id. at 1554. See also Guerra v. Editorial Televisa-USA, Inc., No. 97 Civ. 3670, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999) (noting that while the fact that a plaintiff did not receive a copy of the employer’s policy or handbook might be fatal to an employer’s motion for summary judgment, where the plaintiff testified that she knew to whom she should complain, the fact that did she not receive the policy was immaterial).
In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000), the court found that the defendant exercised reasonable care to prevent and correct sexually harassing conduct because it had an anti-harassment policy with complaint procedures in place, and there was undisputed evidence that it endeavored to investigate and remedy problems reported by its employees.
In Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999), the court found that the employer established the first prong of the affirmative defense where it posted an anti-harassment policy with instructions for reporting harassing behavior, and the employer had promptly investigated and acted reasonably to remedy the harassment which plaintiff reported. Successful prevention of subsequent harassment was not required to establish the first prong of the defense.
In Brown v. Perry, 184 F.3d 388 (4th Cir. 1999), the employer satisfied the first element of the affirmative defense by having an anti-harassment policy in place, including a complaint procedure, to deter sexual harassment. Where, like here, there was no evidence that the employer adopted or administered the policy in bad faith or that the policy itself was defective, the existence of such a policy “militates strongly in favor of a conclusion that the employer ‘exercised reasonable care to prevent’ and promptly correct sexual harassment.” Id. at 396 (citation omitted). The employer satisfied the corrective prong of the affirmative defense by offering immediate, unconditional support to the victim and suggesting that the she pursue her EEO remedies. The court held that these actions constituted reasonable efforts to prevent further incidents of harassment, regardless of whether the effort was ultimately unsuccessful. The employer also took reasonable corrective action by issuing a restraining order against the accused harasser from having contact with employees in plaintiff’s department.
The court in Meadows v. County of Tulare, 191 F.3d 460 (9th Cir. 1999), found the employer met the first prong of the affirmative defense by having a policy prohibiting harassment and an established complaint procedure in place, and acting promptly to correct reported harassing behavior. The court implied that the employer’s response may vary depending on specific circumstances, like whether the plaintiff/employee complained specifically about the harassing behavior and whether the plaintiff/employee refused to assist the investigator in the investigation.
In Barua v. Credit Lyonnais-U.S. Branches, No. 97 Civ. 7991 (JSR), 1998 WL 915892 (S.D.N.Y. Dec. 30, 1998), the court concluded that the employer exercised reasonable care to prevent harassment because its employee handbook included a policy prohibiting discrimination and retaliation, and had a complaint procedure with several avenues for grievances. Moreover, the court found that the employer exercised reasonable care to correct harassment because shortly after the plaintiff first complained to the Human Resource Department, the employer met with the harasser and reprimanded him. Shortly thereafter, the harasser was removed as manager of the plaintiff’s department and transferred to a non-supervisory position in a different department. Furthermore, no further harassment occurred after plaintiff complained.

     In some cases, courts have refused to find that an employer exercised reasonable care to prevent or correct promptly alleged harassment where:

  • The employer had prior knowledge of the harasser’s history of inappropriate behavior, but took no action to prevent its reoccurrence.
  • The employer had no policy against harassment in place.
  • The employer had no complaint procedure in place.
  • The employer’s complaint procedure was ineffective because, for example, employees were directed to complain only to one person such as their supervisor, or it contained strict time limits within which a complaint had to be filed.
  • An investigation was not commenced until some time after the employee complained.
  • The employer’s decision to designate a particular person to receive complaints was questionable in light of the complaint-receiver’s inappropriate response to complaints.
  • The employer failed to take any (or effective) action to discipline a harasser after an investigation revealed that an employee’s complaint had merit.

     Cases holding employer failed to exercise reasonable care to prevent or correct promptly alleged harassment:

  • In Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414 (S.D.N.Y. 1998), the court found that a factual dispute existed as to whether the employer prevented and promptly corrected harassment because although there was an anti-harassment policy and an avenue for complaint, the plaintiff’s allegations of inappropriate behavior by Vice President of Human Resources, the manager designated by the employer to hear such complaints, called into question whether the employer exercised reasonable care in its designation. The plaintiff alleged that the Vice President made inappropriate comments when she complained (e.g., commented that she was very attractive and suggested that she should enjoy herself a little). The court also found that there was a factual dispute as to whether plaintiff’s complaints of harassment were adequately investigated and promptly corrected. Id. at 431.
  • In Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392 (S.D.N.Y. 1999), the court denied summary judgment where there was a question of fact as to the timing and circumstances under which the plaintiff/employee received the Employee Handbook that contained the employer’s sexual harassment prevention policy. The employer alleged that the Handbook was distributed to all new employees, and that employees including plaintiff attended a seminar on sexual harassment. However, the plaintiff testified that she did not receive a copy of the Handbook until late in her employment, that she never read applicable parts until after her termination, and that the seminar she attended included a discussion of sexual harassment, but there was no distribution of the sexual harassment policy or instructions for reporting incidents of harassment. Thus, whether the employer’s actions were reasonable is a factual question for the jury.
  • In Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999), cert. denied, 528 U.S. 1074 (2000), the court noted that “Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy.” Id. at 118. Rather, the employer must enforce its sexual harassment policy in order to prevent and correct sexual harassment. Finding that employer’s policies were ineffective and unimplemented, the court held that the defendant could not have satisfied the first prong of the defense.
  • In Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000), the court noted that a defective or dysfunctional policy does not necessarily negate an employer’s affirmative defense. However, where the plaintiff’s supervisor and the supervisor’s boss both may have told plaintiff not to complain, there was a genuine issue about the policy’s effectiveness, such that the employer could not establish the first prong of the defense for purposes of summary judgment.

     What is reasonable plaintiff’s conduct?

Generally, a timely complaint of actionable harassment by an employee will defeat the affirmative defense.

Courts have found that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise where:

  • The plaintiff failed to complain to his or her employer, despite there being no evidence of threatened retaliation.
  • The plaintiff failed to follow the procedures provided for in the employer’s established harassment policy.
  • The plaintiff refused to cooperate with the employer’s investigation of the plaintiff’s harassment complaint.
  • The plaintiff failed to notify the employer of the harassment in a timely fashion.
Cases holding plaintiff was unreasonable in failing to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise:

  • In Patterson v. CBS, Inc., No. 94 Civ. 2562 (KTD), 2000 WL 666337 (S.D.N.Y. May 22, 2000), the employer met the second prong of the affirmative defense because the plaintiff did not report acts of alleged work place harassment. Although plaintiff cited “conclusory assertions of generalized fear of repercussions,” as the reason for not complaining, the court held that such general fear of retaliation, not based in any statement or representation made by the employer, is not a reasonable ground for failing to complain. Id.
  • A significant delay in complaining about alleged harassment may be considered “unreasonable” as a matter of law. In Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382 (S.D.N.Y. Mar. 24, 2000), aff’d, ___ F.3d ___, No. 00 Civ. 7641, 2001 WL 99831 (S.D.N.Y. Jan. 19, 2001), the employee alleged that she was initially harassed in February 1995, but she did not complain to Human Resources until one year later, after the harasser “touch[ed]” her back. Id. at *6. The court held that plaintiff’s one-year delay establishes that she unreasonably delayed in availing herself of the employer’s available corrective procedures, and thus, the employer established the second element of the defense.
  • In Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481 (S.D.N.Y. 1998), the court held as a matter of law that generalized fears of retaliation or futility can never constitute reasonable grounds for an employee’s failure to complain to his or her employer. According to the court, “employees must be required to accept responsibility for alerting their employers to the possibility of harassment.” Id. at 492. Plaintiff failed to (i) specify the repercussions he feared other than his general statement that it would lead to unpleasantness if he complained; (ii) cite to other employees who were subjected to retaliation because they availed themselves of the complaint procedures; (iii) mention the alleged harassment to his wife; or (iv) make any mention of it when informed that he was about to be terminated, “any perceived harassment during [the plaintiff]’s employment was so only by reason of its potential utility for this litigation.” Id. at 492-93. See also Madray v. Publix Super Mkts., 30 F. Supp. 2d 1371, 1375 (S.D. Fla. 1998), aff’d, 208 F.3d 1290 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000) (finding that “[a]n employee’s generalized fear of repercussions cannot form the basis for an employee’s failure to complain to his or her employer”).
  • In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000), the plaintiff unreasonably hesitated in coming forth with her allegations. The court ruled that for an employee’s reasonable apprehension in coming forth with allegations of harassment “must be based on an apprehension of what the employer might do, not merely on concern about the reaction of co-workers.” Id. at 295.
  • In Brown v. Perry, 184 F.3d 388, 397 (4th Cir. 1999), the employer proved the second element of the affirmative defense by demonstrating that the plaintiff “‘unreasonably failed . . . to avoid harm otherwise.'” (Citation omitted) In this case, the plaintiff was allegedly sexually harassed twice by the same person in similar situations. The first occasion was at a conference, where the plaintiff voluntary stayed in her supervisor’s hotel room late at night. Less than six months later, the plaintiff unnecessarily put herself in the same situation that lent itself to the same kind of advances, as the plaintiff voluntarily remained alone with her supervisor in his hotel room at night, accepted his invitation to visit a pub and a bar, and then went back again to his hotel room at midnight. The court held that “[i]n light of her previous history with [this supervisor], no reasonable factfinder could reach any conclusion other than that [the plaintiff] ‘unreasonably failed . . . to avoid harm.'” Id.
  • In Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999), cert. denied, 528 U.S. 1076 (2000), the court held that “subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment.” In so holding, the court rejected plaintiff’s argument that she acted reasonably, even if she was legitimately uncomfortable discussing the offensive sexual conduct to which she was subjected.
  • In Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999), the court found that the plaintiff unreasonably failed to take advantage of the preventive and corrective measures provided by the employer where she waited nearly two years to report the alleged conduct (despite the fact that she did eventually complain). Plaintiff knew about knew about the employer’s policy prohibiting sexual harassment, had received several copies of it, and knew whom to contact if she was being subjected to sexual harassment, and when plaintiff reported the conduct, the employer’s reaction was “swift and certain.” Id. at 863. See also Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000).
Cases holding that the plaintiff was not unreasonable in failing to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise:

  • In Seepersad v. D.A.O.R. Sec., Inc., No. 97 Civ. 2086, 1998 WL 474205 (S.D.N.Y. Aug. 12, 1998), the court found that plaintiff’s “near-daily” complaints of harassment for almost a week constituted reasonable behavior under the circumstances.
  • In Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999), the court explained that to prove the affirmative defense, the employer had to show not merely that the plaintiff inexcusably delayed reporting the alleged rape, but that a reasonable person in the plaintiff’s place would have come forward early enough to prevent the harassment from becoming severe or pervasive, reasoning: the “‘failure to avail’ standard is not intended to punish the plaintiff merely for being dilatory. Rather, it ‘reflects an . . . obvious policy imported from the general theory of damages,’ namely, that the victim has a duty to mitigate her damages. ‘If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and . . . no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.'” Id. at 674 (quoting Faragher v. Boca Raton, 524 U.S. 775, 807 (1998)).
  • In Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999), the court rejected the defendant’s argument that the plaintiff acted unreasonably because she waited to complain, stating that although the harassment intensified in the spring of 1994, a jury could find that waiting until July of that same year before complaining was not unreasonable. The court also rejected the defendant’s contention that because she filed a union grievance, rather than going through the company’s sexual harassment policies, the plaintiff acted unreasonably, explaining “[Plaintiff]’s filing of a union grievance comports with the Burlington/Faragher rubric. The affirmative defense allows the Plaintiff employee to take corrective opportunities provided by the employer ‘or to avoid harm otherwise.’ Taking advantage of the union grievance procedure falls within this language because both the employer and union procedures are corrective mechanisms designed to avoid harm.” Id. at 511 (citation omitted).

     What Happens When Employee and Employer Act Reasonably?

There is an open issue, highlighted by Justice Thomas’ dissent in both Faragher and Ellerth, regarding the application of the affirmative defense when an employer satisfies the first prong by acting reasonably, but the plaintiff also acts reasonably by making a timely complaint. The Faragher and Ellerth affirmative defense would seem to require an employer to prove both that it acted reasonably, and that the plaintiff did not, but arguably does not address the situation where a complaint is made and proper remedial action was taken. Several courts have refused to impose liability on an employer that was able to show that it exercised reasonable care to prevent and correct promptly the alleged harassment, despite its inability to satisfy the second prong of the test because the plaintiff did in fact complain. See Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999). Nonetheless, other courts have found the employer liable in circumstances where the plaintiff complained and the employer responded reasonably. See DeWitt v. Lieberman, 48 F. Supp. 2d 280 (S.D.N.Y. 1999) (finding genuine issue as to the applicability of the affirmative defense where the first prong was undisputed).

     Who is An Immediate Supervisor?

  • In enunciating the new standard of employer liability, the Faragher and Ellerth Courts did not distinguish between a high level supervisor and a low level supervisor, nor did it address when a harasser will be considered a “supervisor with immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 777; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). Post-Faragher courts have addressed whether the harasser at issue should be viewed as an “immediate supervisor” such that the employer should be subjected to vicarious liability, and, in the absence of a tangible employment action, permitted to use the affirmative defense. Specifically, courts have found that harassers were immediate supervisors where they had the power to make or influence employment decisions, and, particularly, the terms and conditions of the plaintiff’s employment, took actions that could only be taken by those in supervisory roles, or had special authority enhancing their ability to harass.
  • Cases finding that plaintiff was harassed by an “immediate supervisor”:
    1. In Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 430-31 (S.D.N.Y. 1998), the court applied the Faragher/Ellerth analysis to alleged harassment by the Vice President of Human Resources who was “neither [plaintiff’s] co-worker nor her ‘immediate’ supervisor” because of “his station,” to the underwriter who supervised the plaintiff’s work for him and thus, arguably was her “supervisor,” and to her immediate supervisor.
    2. In Durham Life Ins. Co. v. Evans, 166 F.3d 139, 154 (3d Cir. 1999), the court found that the harasser should be considered plaintiff’s immediate supervisor because he was part of a three-person team that convinced the plaintiff’s direct supervisor to strip the plaintiff of her office and to instigate the employer’s lawsuit against her — despite the fact that the harasser did not have complete authority to act on the employer’s behalf without the agreement of others. The court declined to decide what it termed an “interesting claim” by the employer — that the affirmative defense should apply because the plaintiff had some “non-tangible notice of discrimination” before the adverse action was taken against her. Id. In other words, the employer argued, the first time someone made a discriminatory remark to her, if plaintiff had reported it, the employer would have investigated and stopped the problem before the tangible action occurred, and, thus, the employer should be permitted to assert the affirmative defense.
  • Cases finding that the harasser was not the plaintiff’s “immediate supervisor”:
    1. In Summerville v. Ross/Abbott Lab., No. 98 Civ. 3517, 1999 WL 623786 (6th Cir. Aug. 10, 1999), the court held that the alleged harasser was not a supervisory employee because he did not exercise significant control over the plaintiff’s hiring, firing or conditions of employment. In applying this standard, the court was not persuaded by plaintiff’s conclusory assertions that the alleged harasser was her supervisor. In fact, the record indicated that, at her deposition, when asked if the alleged harasser was an “hourly co-worker” that worked with her, she responded “[y]es,” and indicated a different person to be her “direct supervisor.” Id at *3. Moreover, while the alleged harasser had the title of “[c]rew [l]eader,” the record reflected that the title pertained to a position of leadership in an employee “peer group,” not a position with power to affect the terms and conditions of the plaintiff/employee’s employment. Id. Thus, the court found no evidence in the record that the alleged harasser had any supervisory power over the plaintiff/employee.
    2. In Mikels v. City of Durham, 183 F.3d 323, 334 (4th Cir. 1999), the court held that an alleged harasser who was a “superior” in rank but actually had no power to take tangible employment actions against the plaintiff/employee was not a supervisor for the purposes of discovering an aided-by-agency relationship. While the alleged harasser could direct the plaintiff’s operational conduct while on duty, the plaintiff was not isolated from the continuing protective power of higher management. Additionally, the plaintiff thought that a different person was her direct supervisor, and she had immediate access to him without going through the harassing employee. Further, the court noted that the plaintiff did not indicate any sense of “special vulnerability or defenselessness deriving from whatever authority [the harassing employee’s] rank conferred,” as she rebuffed him sharply after his unwelcome conduct. Id. The plaintiff’s profanity-laced and obscene reaction to the harassment was natural for one who regards her harasser as a co-employee, not a supervisor.
  • What does and does not constitute tangible employment action?
    1. According to Faragher and Ellerth, when “tangible employment action” is taken by a harassing supervisor with immediate authority over the plaintiff, the defending employer is strictly liable for the supervisor’s actions. In such cases, the employer is precluded from raising the affirmative defense to liability. Consequently, whether the commission of supervisor harassment culminates in a “tangible employment action” has been a key issue addressed by many of the post-Faragher/Ellerth courts.
    2. Case finding that a “tangible employment action” was taken where plaintiff were subjected to discharge, demotion, or undesirable reassignment (e.g., with significantly different job responsibilities):
      1. In Hasbrouck v. BankAmerica Hous. Servs., Inc., 105 F. Supp. 2d 31, 35 (N.D.N.Y. 2000), the court held that the supervisor’s actions in removing two of sales employee’s major accounts was a “tangible employment action” for purposes of employee’s Title VII harassment action. Loss of the accounts could have a very significant effect on the employee’s earnings through the bonus or commission structure of the employer.
      2. In Poole v. Country Club, 129 F.3d 551, 553 (11th Cir. 1997), the court held that a plaintiff “[s]tripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers” had a legitimate claim that she was constructively discharged.
  • However, courts seem unwilling to expand the concept of “tangible employment action” broader than the concept of discharge (constructive or actual), demotion, or undesirable reassignment. Cases finding “no tangible employment action” was taken:
    1. In Rainey v. Miami-Dade County., No. 99 Civ. 1815, 2000 U.S. Dist. LEXIS 2508 (S.D. Fla. Jan. 13), the court rejected plaintiff’s claim that she suffered a tangible employment action where she claimed that she was given extra work, and was moved from her office for a short period of time while her sexual harassment claims were being investigated, aff’d, 237 F.3d 636 (11th Cir. 2000). See also Guerra v. Editorial Televisa-USA, Inc., No. 97 Civ. 3670, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999). In Guerra, the court allowed the employer’s assertion of the Faragher affirmative defense, finding no tangible employment action where plaintiff’s claim was that her job duties increased after her harasser was fired, and not as a direct result of the harassment.
    2. In Pritchard v. Earthgrains Baking Co., No. 7:98 Civ 0536, 1999 WL 397910 (W.D. Va. Mar. 5, 1999), the court found no tangible employment action where plaintiff was terminated for a legitimate, non-discriminatory reason. Further, plaintiff’s pre-termination job reassignment from “bun seeder” to “depanner” did not involve a significant change in responsibilities or benefits, and therefore was not serious enough to qualify as a tangible employment action. Id. at *8. Likewise, plaintiff’s reduction of hours, which resulted in a wage decrease, was not a tangible employment action because there was evidence that other employees’ hours were also cut. Thus, the court held that there was no tangible employment action that would bar a Faragher/Ellerth defense.
    3. The court found no tangible employment action in Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999), stating, “[s]imply changing one’s work schedule is not a change in [plaintiff’s] employment status. Neither is expanding the duties of one’s job as a member of the produce department to include mopping the floor, cleaning the chrome in the produce department, and requiring her to check with her supervisor before taking breaks.”
    4. In Meadows v. County of Tulare, 191 F.3d 460 (9th Cir. 1999), the court held that the plaintiff’s transfer from one position to another, where plaintiff continued to receive the same pay and benefits, did not constitute a tangible employment action. The court noted that plaintiff did not argue that she experienced economic harm, or that her reassignment is undesirable or that her responsibilities changed significantly, facts which may bear on whether a transfer is a tangible employment action.

Raymond Salomone P.O. Box 230132 New York, NY 10023 (917) 885-5399 [email protected]

Relevant Experience:

1998-2001 Vice President of Operations, Colton Consulting NYC

Reported Directly to Managing Partners of $8MM Technology Recruiting Firm. Thoroughly versed in candidate sourcing, qualifying and interviewing. I quickly develop positive rapports with clients and candidates. Managed staff of 11, including Junior Recruiters, Salespersons, Telemarketers and College Interns. Directly responsible for generating over $1MM in revenue per year. Worked closely with many Fortune 500 and Wall Street Investment clients. Developed strategic alliances with software and hardware vendors. Also responsible for managing budgets relating to advertising, training and procurement.

1993-1998 Technical Recruiter, Velocity Staffing NYC

Began as a cold caller. Prospected potential clients and technical job seekers. Developed and fine-tuned business skills with respect to: introductions, sales pitches, negotiations and closings. Developed skills at analyzing and drafting RFP’s (Request for Proposals) which lead to several long term staffing contracts. Bid on and was awarded several large software and telecommunications projects for Fortune 500 firms. I was also instrumental in the successful opening of a second office in Miami Beach, Florida. Learned to quickly develop marketing abilities to suit a variety of corporate and personal cultures.

1993 Rental Agent, Elias-Bernstein Realty NYC

Without any formal training, began interacting with clients and working through the entire rental process. Qualified clients. Evaluated client requirements/requests. Conducted apartment showings and organized open houses. Presented potential renters to landlords. Assisted in the preparation and execution of leases. Developed positive working relationships with landlords, superintendents and doormen. Used my superior knowledge of Manhattan to increase productivity.

1990-1993 Rental Manager, Ruffino Realty Oneonta, NY

During college I was responsible for all the rental activities of a 12 unit, 4 story building. Duties included qualifying potential renters, contacting and researching guarantors and securing leases. Direct liaison between tenants and landlord. Education:

1993 State University of NY at Oneonta Major: Speech Minor: Marketing

1995-1999 New York University Graduate level courses in Marketing, Communications and eCommerce.


1982-1989 United States Army, Military Policeman


Linda R. Singer ADR Associates, L.L.C. Washington, D.C.

In my practice I have seen a dramatic change in the way many labor and employment lawyers approach representing their clients in mediation. What are the differences between those advocates who go through the motions of mediation as if it were merely a judicial settlement conference or a negotiation between attorneys on the courthouse steps and those who make sophisticated use of the mediator and the occasion to persuade the other party – and often their own clients – to enter an advantageous settlement? The differences lie in preparation, presentation, focus and strategy.

Before the Mediation Getting the Other Party to the Table Some attorneys, although interested in an early settlement, hesitate to suggest mediation to the other party for fear of appearing weak. The easiest way around this problem is to adopt a policy of offering to mediate in every case. For a corporate client or other organization this is an obvious course; for others, including the individual employee, the attorney’s firm can have a pro-mediation policy. Once there is a policy, no matter how flexible or informal, offering mediation in a particular situation says nothing about your opinion of the merits. Where there is no policy more creative methods may be needed. Perhaps the other party has such a policy. Most Fortune 1000 corporations have signed the ADR pledge promulgated by the CPR Institute for Dispute Resolution, for example; a list is available from CPR. Having checked you may call opposing counsel and suggest that you would rather mediate sooner than later. The same strategy may be useful where there is a court-based ADR program. You may call opposing counsel (or an unrepresented party) and suggest that, since it is inevitable that a mandatory court program or a judge who is known to favor mediation will land you in mediation at some point, you would prefer to do so early, particularly if you thereby would retain the ability to choose your own mediator. With the EEOC now offering mediation by internal staff or generally inexperienced (because underpaid) mediators, the same approach may apply there as well. Finding Out How the Mediator Works All mediators are not alike. Some of us do most of our work in separate caucuses; others try to keep the parties in the same room for as long as feasible. Some of us focus first on non-monetary interests, such as continued employment, business relationships or reputation; others move quickly to valuing a claim and offering opinions concerning the likely court outcome if the case does not settle. Some move back and forth among approaches depending on the situation. How can you know which type of mediator you have selected (or had assigned to you), in order to prepare yourself and the client to get the most out of the opportunity mediation offers? First, do not hesitate to question the mediator, whether in a joint conference call with opposing counsel or in a separate pre-mediation call to the mediator to inquire about the process. Most mediators are open to such contacts, believing as I do that there is no such thing as a forbidden ex parte communication in mediation. My only concern about such a contact would be the appearance it might present to the other side if its counsel is a neophyte about mediation. Alternatively, do not hesitate to ask the mediator for the names of lawyers for parties in similar situations who have used the mediator. Not only should you be able to call such people for references; you can ask them about the mediator’s general approach and any tips they may have about working with us. For example, is this a mediator that treats clients with respect or attempts to browbeat them into accepting a settlement? Can this mediator deal with a lurid story of sexual harassment by empathizing with the apparent victim while maintaining a balanced view of the possibility of miscommunication or exaggeration? Will your client like and trust this mediator? Will the decisionmaker on the other side? If not, how can you use the occasion to attempt settlement without relying heaving on the mediator to get you there? Writing the Story It is almost always helpful to give the mediator a brief synopsis of your client’s story in writing before the day of the mediation. (Those of us who mediate most days particularly appreciate receiving the statements a week to ten days in advance.) I use the word “story” advisedly to mean a narrative version of the events that precipitated the dispute, rather than a series of legal claims or defenses. The exceptions may be class actions, where there are many stories, if those stories have been detailed fully in a complaint or answer. In general, complaints and answers make dull reading and often lose what I consider as the three most important threads of a pre-mediation statement: 1. What happened to precipitate the dispute? 1. What are your client’s goals looking forward? 1. What should the mediator be thinking about in the way of potentially creative approaches to resolution? My usual preference is to keep the pre-mediation statements in confidence, in the hope that advocates will share with me any sensitive information about the parties or precipitating events, as well as genuine interests and possibilities. I do not expect to be given “bottom lines” and would not take very seriously any statement that purported to draw a line in the sand concerning any issue before a face-to-face meeting. In order to be able to assure the parties of confidentiality for any documents provided before the mediation session begins, it is my practice to ask the attorneys to fax me a signed copy of my standard Agreement to Mediate before sending me their statements; I then get original signatures on the agreement from everyone who attends the mediation. The law regarding confidentiality in mediation is in flux. Be sure you may want to assure yourself that the mediator’s proposed agreement affords sufficient confidentiality under whatever law applies. If not, now is the time to propose any needed revision. The exception to my usual preference for confidential statements is in situations where there has been little or no prior exchange of information between counsel, whether in the form of informal conversations, negotiation, or discovery, and each party’s version of their history may come as news to the other side. In that event I may suggest that most of the statement be exchanged but that a confidential addendum might suggest to me any sensitive information I should have at the outset or potentially productive avenues that might be pursued at the mediation. If the mediator’s agreement form contains a waiver of liability for any negligence on the mediator’s part, you should consider carefully whether you are prepared to sign it (or, in fact, whether you wish to use that mediator). Mediators’ immunity (unlike arbitrators’) has developed in the context of court-connected programs that rely on volunteer mediators. Many mediators see no justification for requiring such immunity for professional mediators who charge fees at professional rates. Malpractice insurance is readily available to us. Developing the Guest List Even before drafting the mediation statement advocates should be focusing on the appropriate cast of characters to attend the mediation. If this is an individual case, my operating assumption is that we should attempt to settle it in one day. It may be a long day, but I attempt to keep up the momentum and focus the parties on their responsibility to make decisions at the table that are in their own or their companies’ best interests. That means that the people at the table must be able to make decisions. On the employee’s side I often suggest that if a spouse or other person with a close relationship to the employee will influence the client’s final decision about whether to settle, that person should be at the mediation. No one wants to deal with second-guessing at the end of a long, hard day. The additional person may help to remind the employee of the value of settling and moving on. Spouses frequently do so, as did an employee’s mother, who attended a recent mediation and expressed her strongly-held belief that it was time for her daughter, who had been terminated, to stop obsessing about past wrongs and get on with her life. Even if a relative argues against settlement, the more obstreperous the voice, the more important it is to have it in the room where the mediator can confront it directly. On the employer’s side the decision may be more complicated. Unless the dispute involves a likely continuing relationship with the manager or supervisor whose alleged behavior prompted the dispute in the first place, it is almost always more productive to leave that person at home. He or she is not required as a witness; a mediation is not a fact-finding expedition. If the case settles, generally it will do so despite the parties’ continued disagreement about what happened in the past. The presence of the alleged discriminator or harasser in all likelihood will serve as a lightening rod to the employee. More importantly, it can present a constraint on the employer’s ability to settle the case. For example, a manager who terminated an employee may view a significant monetary settlement as a failure to vindicate the manager’s handling of the situation and hence a vote of no confidence. What I have found works best on the employer’s side is a fairly small team that will not overwhelm the employee, especially if the employee is bringing a single lawyer. The team should be headed by a company representative who is far enough up the corporate ladder to demonstrate to the employee that the company is giving serious, high level attention to the matter. Ideally, the official will have the interpersonal communicative skills to present the employer’s perspective to the employee and the mediator in a credible, humanizing way. If at all possible, the employer’s management representative should be able to make the final decision on whether to settle on the spot or to reach someone promptly by telephone who can do so. In situations where such instant authority is impossible to obtain, as where a government employer cannot legally or practically delegate the authority to settle or a settlement must be approved by a board of directors, the preferable solution is to get the needed authority immediately by telephone wherever possible; the fallback is to explain to the employee’s counsel before the mediation whatever approval process must be followed and give as much assurance as you can about the seriousness with which recommendations from the team at the table will be treated. In addition to the corporate decisionmaker it is often helpful for the employer to bring someone who is knowledgeable or creative about putting settlement packages together. In a dispute with a current employee that might be someone who is aware of placement or promotional possibilities; with a former employee it could be an expert on augmenting benefits, such as enhancing pensions or insurance coverage. Often these resource people can be consulted by telephone during the day; be sure you know where to find them after hours, particularly if they are in a different time zone. If the dispute involves proposed policy changes or comprehensive injunctive relief – often ingredients of settling class actions – different people with different areas of expertise may be required at different mediation sessions, which probably will stretch over an extended period of time. Ensuring some continuity in such situations becomes critical if all possible. At least one corporate representative should be a constant at each session, and all agreements reached should be documented contemporaneously and shared with the broad range of managerial officials whose cooperation will be needed to implement any changes in policy. I have mediated a class action where a company’s entire legal team, both inside and outside, changed during the course of the mediation before the parties had reached written agreements in principle. Consequently, members of top management later questioned whether they had assented to the changes and, even if so, whether it was feasible to implement them. Preparing the Client Both the employee and the corporate representative should be prepared to speak during the initial joint mediation session. In the case of a professional manager and/or a repeat player at mediation, it should be sufficient to go over the substance of the presentation with the manager in advance. If the employer regrets what has happened, an apology, stated sincerely and without prompting, can be enormously effective. (Obviously, the apology need not accept legal responsibility for whatever happened as long as it expresses empathy and concern for the employee’s welfare.) In the case of the employee, who very well may be very emotionally involved in the dispute as well as new to mediation, it is important to be crystal clear about what your client will say to the other side. This is the opportunity to make a sympathetic case; saying too little may be as detrimental as saying too much. The employer and its lawyer will be assessing your client’s credibility. And the client will have the opportunity– critical to some — to describe the dispute and its effect to the employer and to a neutral. Such an opportunity, and the emotional catharsis it can present, may be critical to settlement. One way to avoid surprises is to ask the client to write a narrative about what has happened and what the effect has been on the employee and the employee’s family. You then can edit it, attempting to remove personal attacks, which can be counter-productive, and making it as sympathetic as possible. Suggest that the client memorize it or, if necessary, read it at the mediation. Even with a relatively sophisticated employee, extemporizing generally should not be encouraged; there is too much at stake. Whoever the client, if mediation is a new experience, it is useful to explain the basics in advance, emphasizing that sensitive information may be shared with the mediator at the appropriate time and that there will be ample time when the mediator is meeting with the other party to consult with counsel and reassess strategy in light of new information. Stress the importance of keeping an open mind and responding flexibly as a team to opportunities for creative solutions that may present themselves during the mediation. If nothing else, the day of the first mediation session is an event. View it as such and encourage your client to do so as well. If you and the client use the opportunity to reflect on the matter at hand, analyze the client’s interests and priorities, learn more about the other party(ies) and develop creative possibilities, it will be a day well spent. At a minimum you should learn more about your own and the other side’s interests and arguments; at best, you will resolve the dispute. What I Want to Hear at the Mediation: Your Focus Different strategies make sense for the initial presentation, which, as mentioned above, should be prepared carefully in advance. The most important thing to remember about the opening presentation is that it presents an opportunity- perhaps the only opportunity in the life of the dispute – in the words of mediator Michael Lewis, “to make a pitch to the principals on the other side.” [fn: “Advocacy in Mediation: One Mediator’s View,” ABA Section on Dispute Resolution, Dispute Resolution Magazine, Fall 1995, p. 7] Generally the lawyer begins with a summary of events to date, a brief discussion of the legal situation and an expression of a willingness to listen and a desire to settle if possible. Alternatively, the client begins with a narrative (the employee) or an expression of regret that events have brought us here and a hope that the situation can be resolved to the satisfaction of all concerned (the employer). Although both lawyer and principal should speak, consider whether it makes sense to have the client begin. Displaying such openness and self-confidence may prompt the other party to respond in kind. Make the presentation as economical and as compelling as possible. Outline your legal theories very briefly; this is not the time for detailed analysis. If there is a timeline, an organizational chart or a map that can depict graphically your view of past events, by all means use it. One of the more effective presentations I have seen involved a presentation by counsel for a former employee charging sexual harassment of a ten-minute series of excerpts of videotaped depositions of the employers’ managers attempting to explain what had happened, replete with contradictions and weak excuses. Clearly the presentation caused the employer’s representative to view the case in a new way. The most important thing to remember during the opening statement is who the primary audience should be. You will have ample opportunity to talk to the mediator in caucus. For now focus on -and look at – the decisionmaker on the other side. Attempt to walk the fine line between confidence in your legal position if the dispute should fail to settle and the hope that, if everyone has an open mind and sufficient creativity and flexibility, the matter can be resolved today. If litigation-related or other events make it an especially propitious time to discuss settlement (if, for example, expensive, time-consuming or potentially embarrassing discovery is scheduled for the near future, the court is expected to rule on a motion for summary judgment or an administrative agency is about to begin an investigation), you might emphasize the fact that there is a narrow window of opportunity, after which resolution will become more difficult. The Lawyer’s Role During the Mediation: Your Strategy In addition to preparing the client and focusing on the other side during the opening statements, there are a number of strategic decision for counsel during the course of the mediation. Once the parties have made their opening statements, questions to clarify any ambiguity may be in order. Save probing or hostile questions for another time. (You may wish to discuss them with the mediator.) Some mediators will attempt to summarize what they have heard and ask for correction if necessary. Be alert to any reframing of positions by the mediator; it may contain implicit suggestions about how the mediator intends to structure the ensuing discussion. Correct any misstatement; this may be the last chance you will have to speak directly to the other side. Some mediators will wait for the private sessions to summarize and clarify the issues, not wanting to emphasize areas of disagreement this early in the process. In the initial private meetings with each party I look for three things: 1. Interests: What are the most important considerations for each of the principals? Can the interests be prioritized at this point? 2. Constraints: What do I need to know about limitations on your ability to settle based on time, resources, need for ratification or linkage to other negotiations? 3. Options: What has occurred to you so far about settlement possibilities, and what information do you need me to obtain from the other side that will help you to craft possible resolutions? In all of these areas, be careful to flag for the mediator any statements that should not be transmitted to the other side. At the end of each private session, go over any items to be sure that the mediator has understood. Avoid any ambiguity on this subject. Most mediators would greatly prefer to have you err on the side of openness with us and then discuss what it makes sense to share with the other party and how and when we should communicate any offers. The more trust you develop in our judgment, the greater latitude you may be prepared to give us in deciding when to reveal information to the other side. Whatever the particular approach, one thing stands out as the critical ingredient in the initial private sessions: this is the client’s chance to say to the mediator whatever it is that she did not say to the other party. It may be repetitive, it may not put the case or the client in the best light. Sort it out later. Obviously, it is the advocate’s chance as well. Yet the most frequent mistake that I have seen in the early stages of a mediator’s private caucuses is a lawyer who attempts to interject herself between the mediator and a principal (generally an individual), preventing the client from speaking. There can be two consequences – neither of them good. The first is that the client becomes frustrated with the lawyer’s controlling behavior. In one such instance a plaintiff pulled me aside to ask me privately, after her lawyer had interrupted her for what must have been the tenth time, whether I thought she should fire him on the spot. In such a case, when you need the client to listen to your advice (generally later in the session), which may be difficult for the client to hear in any event if the advocate’s analysis is less rosy than the client’s, the client turns you off. The second possible consequence of attempting to block communication between your client and the mediator is that it is likely to turn the mediator off. Instead of viewing you as an ally in attempting to achieve a beneficial settlement, the mediator starts to treat you as a hindrance. Although I try to work just as hard to achieve settlements for lawyers when I think that they are themselves becoming barriers to agreement, I cannot say that I am as effective. I do my best work when we are able to function as a team, both of us trying to craft the best possible agreement. Even though your role is to protect your client’s separate interests and mine to attempt to bring about a mutually acceptable settlement, our interests usually overlap almost completely. Both of us want to create as much value as possible and both of us want to paint your client and your cause in the best possible light to the other side. Think about enlisting the mediator to help you gain information or develop ideas. How much do you know about the other party’s interests and priorities? Would it make sense to develop a non-monetary option to meet some of those interests? Is there information about how the other party is thinking that will help you to evaluate its last offer or to craft your next one? How is a particular idea likely to be received? Listen attentively when we transmit information or opinions to you; we try to choose our words carefully. Does the mediator have ideas for breaking an apparent impasse? (I reject nothing out of hand as a last-ditch approach. If there has been little or no movement, this might be the time to discuss a risk analysis or a mediator’s proposal. (“If they would, would you”?) Most of the time it is useful for the mediator to communicate ideas and offers without attributing them to the other party, thus avoiding what psychologists call “reactive devaluation:” an idea is dismissed or an offer devalued if it comes from the other side. Occasionally you may want to communicate offers yourself, however, in order to develop options collaboratively, to gauge the reactions around the table or to be sure that you are being clear about particularly complicated ideas. This your call. In an ongoing mediation, encouraging direct contact with the other side may establish a good negotiating relationship. The down side is that you lose some ability to float ideas through the mediator in order to minimize reactive devaluation. Do not hesitate to suggest one approach or the other; mediators should be flexible enough to adapt different strategies and modest enough not to think that our words are the only ones that count. (We are immodest enough, on the other hand, to think that it makes sense to seek our advice on what strategy may be the most helpful.) As the mediation progresses the caucuses are likely to become shorter and more focused. The mediator may become less tolerant of a client’s rambling or focusing on past injustices and more insistent on looking towards the future and on what is likely to work as a settlement package. As mediator Michael Lewis has written, “A good mediator will pick up signals from an advocate that he or she believes the client is not acting out of his or her own self-interest. A good mediator will not permit a party simply to assert that he or she wants this or that. The mediator will return again and again to what the client and the advocate have identified as the core interests. The mediator can then explore whether the possible settlement meets those interests and what the likely litigation outcomes might be in a manner that provides the maximum amount of freedom for the client’s decision, but assures as much as possible that whatever decision the client makes will be an informed one.” [p.8] This narrowing of focus and greater discipline is intentional. You may need the mediator to help you deliver bad news. If you believe that a mediator is being too harsh on your client, however, it is your role to step in and be protective. There may be a fine line between discipline or focus and browbeating. You are the counsel and your client will look to you for cues. If, on the other hand, you believe that it might be helpful for your client to meet alone with the mediator or with the principal on the other side, with or without the mediator, feel free to discuss the idea with the mediator. (I almost never initiate such a discussion, believing that the lawyer is in a better position than I to know whether it would be helpful.) Sometimes a meeting without counsel helps a client to get a fresh view, which may buttress what the lawyer has been saying all along. Alternatively, on occasion a meeting between the mediator and one or all counsel, without principals, may be useful. During the mediation you can expect significant periods of down time while the mediator meets with the other party. Think about using at least some of this time to enlist your client in the effort to settle, to consider new information, and to be as creative and flexible as possible. If you are representing a plaintiff, you may decide to discuss some adjustment of your fee arrangement with the client based on what happens during the mediation. You also may have to deal with someone who has lived with a sense of victimization for so long that the case has become her whole life and it is extremely difficult to let go. When negotiating over monetary amounts, whether the money is for back or front pay, damages or attorneys’ fees, advocates frequently ask how much information they should share with the mediator. The answer depends on how well you know the mediator and how much you trust her, not only to keep information confidential but also to continue to work to achieve a settlement that meets your client’s needs. If you are comfortable with the mediator, you may save time by discussing financial goals and possible settlement ranges fairly early in the process. Be sure to differentiate between your goals and the mediator’s authority to convey particular offers to the other party. In a single-plaintiff dispute the mediation may last many hours. (Class action or other settlements involving substantial injunctive relief generally require multiple sessions, many of which may be shorter.) Most mediators dislike postponing the conclusion of the mediation until another day, except as a last straw, for fear of losing momentum. You and your client will grow tired. Where a client is disabled in some way and cannot retain the capacity to negotiate through a marathon session, you should alert the mediator in advance and make different arrangements. Through a long day you may need to bolster the client’s spirits and emphasize the progress that has been made; the mediator should help you to do this. Most mediators are optimists. We have seen persistence pay off enough times to give us faith in the process even though the parties may find it difficult to detect progress. If nothing else, you should be learning much about your own case and the other party’s view of it. Very few lawyers have found such knowledge not to be worth the effort. Reaching Agreement Ideally, you will create options and narrow differences until you reach an agreement in principle. Then what? All of us have horror stories of agreements we thought we had made only to have them crater because of last minute misunderstandings or demands. In order to prevent such mishaps it is the best practice to ask the mediator to go over the terms of agreement with both parties together to be sure that everyone has agreed to the same set of terms. The only remaining question is how much must be written down and signed before you leave the mediation. The extent to which an entire agreement must be reached and signed at the mediation varies with the circumstances: the complexity of the eventual agreement, the lateness of the hour, the efficiency of counsel, and the trust level between the parties and (perhaps more importantly in this instance) between counsel. Some lawyers recommend finalizing the agreement before leaving any mediation. Mediator and advocates Jim McGuire and Diane Kenty for example, advise lawyers to “document the deal on the spot. Too often a tentative deal unravels when the parties wait until later to reduce the understanding to a writing. Misunderstandings at that point may lead to charges of bad faith and, at a minimum, cost both sides additional time and money. The mediator can help smooth over language problems and ensure that the deal as documented fairly reflects the understandings that were reached.” “Practical Tips For Lawyers/Advocates Representing Clients In Mediation,” Massachusetts Lawyers Weekly, October 17, 1994). At a minimum if you have any doubts about the reliability of the lawyer or client on the other side, get something on the record that at least outlines the terms to which you have agreed. “On the record” does not necessarily mean a formal document; in fact, I have seen employees’ counsel revolt when the attorneys for the employer download twenty-page documents from their computer and present them at the eleventh hour. In order to avoid this eventuality some plaintiffs’ lawyers start to draft brief agreements, with blanks for the final terms, early in the mediation. The shorter the draft, the less likely it is to produce a negative reaction on the other side. The idea is to get the principals to signify their agreement to the essential terms of the agreement in some way that is meaningful to them. Whether such an agreement would be enforced by a court may matter less than that the principals believe that they have reached a final agreement and thus that the inevitable afterthoughts are just that. This goal can be accomplished in a number of ways: 1. You or the mediator can write a short agreement in principle, either on a computer or by hand, pass it around for corrections and have it signed. 1. You can do the same on a flip chart. Then use a copying machine to reduce the size. 1. I have recited agreement terms into a tape recorder and asked everyone present to identify herself and signify agreement orally. I keep the tape. When you Fail to Reach Agreement at the Table A long day ends; the parties are tired and out of sorts; no one has had a creative idea for hours; impasse appears inevitable. Although it makes sense to adjourn at this point, I always encourage participants to leave the door open. I cannot tell you how many times I have gotten calls from counsel the next day (or even driving home) with further thoughts. Sometimes the mere act of leaving the mediation and contemplating the no-agreement option causes people to rethink their positions; sometimes it is new information or an idea on the part of the mediator or one of the participants that comes only after a day or two of thought. Do not be afraid to suggest new possibilities for fear of appearing too eager to settle; if appropriate, the mediator can broach them as her own. If it is not new ideas but new information that is required, think through with the mediator how it can be obtained and what will happen as a result. Do not hesitate to call the mediator after you have left the table. Although most mediators believe fervently in face-to-face contacts early in the process, I have completed many agreements through telephone conversations after a mediation session. If the parties have opposite ideas about how a preliminary court ruling will turn out, perhaps it makes sense to ask the court to rule before resuming the mediation. Occasionally, a case evaluation by an expert or even by the mediator may be useful. If all else fails, you may want to consider whether another process, such as arbitration or final-offer arbitration would meet the parties’ needs better than a public trial. If not and it is early in the litigation process, you may want to consider the possibility of returning to mediation when you are further down the litigation road.


     Allen Fagin, a partner in and currently Co-Chair of Proskauer’s Labor and Employment Law Department, represents employers in all types of employment litigation, including claims alleging age, race, sex and national origin discrimination; breach of contract; defamation; and wrongful discharge. He has litigated matters single as well as major multi-plaintiff or class action litigations in the state and federal courts of New York as well as a number of other jurisdictions, including New Jersey, Pennsylvania, Georgia, Florida, Texas, California and Maryland. In addition to traditional litigation, Allen has handled dozens of employment-related disputes on behalf of insurance and financial services industry clients before arbitration panels of the National Association of Securities Dealers.

     Allen also has an extensive client counselling practice aimed at litigation avoidance. He provides advice and guidance to clients, on an ongoing basis, on such matters as employee discharge and discipline, the development of company personnel manuals, downsizing and reductions in force, early retirement programs and severance plans, employee privacy issues, drug testing and affirmative action obligations.

     Among the clients Allen has represented are major American and foreign-based corporations in such diverse fields as telecommunications, transportation, health care, insurance, legal services, utilities, financial services, entertainment and manufacturing.

     Allen received his B.A. from Columbia College in 1971, summa cum laude. He graduated with honors from the Harvard Law School and holds a Masters Degree in Public Policy from the John F. Kennedy School of Government, Harvard University. Allen joined Proskauer in 1976, following a clerkship with Judge Robert L. Carter of the United States District Court for the Southern District of New York.