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Women Who Edit Magazines Make $15,000 Less Than Men

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The latest numbers from Folio about who makes what in the world of magazine editing reaffirm what we already know: women make less money than men in comparable positions. Male editors-in-chief or editorial directors of magazines make $100,800 to women’s $85,100. For executive editors, men pull down $84,200 to women’s $65,700. And for senior editors, men make $63,600 to the $58,200 women take home in salary. What those numbers don’t tell us is how to start rectifying those pay gaps, which, as Folio editor Bill Mickey told The Atlantic Wire, start to seem inevitable: “We don’t have any further insight into that number, except that the gap has historically been about the same and I believe aligns with national trends across other industries.” We’ve collected data on gender and pay and gender and bylines for a long time. But if we want things to change, we need to start cross-referencing these numbers to see who’s doing worse, who’s doing better, and why.

Folio’s numbers, for example, break out pay not just by gender, but by whether the editors at business-to-business publications, consumer magazines, and trade publications, where they are geographically, by size of publication, and by years in the business. Looking at the numbers by gender alone are discouraging—they make it look like everyone is doing badly. But if we started cross-referencing those numbers, we might be able to see if some kinds of publications do better than others. Are women able to get a leg up in business-to-business magazines? Are the numbers skewed by bigger-than-normal pay gaps in New York, the center of the magazine industry? Are the numbers closer to parity in entry-level positions, indicating that time is doing the work to change a culture of pay inequality that magazines previously haven’t done?

These are the same kinds of questions that it would be useful to apply in film and television as well, where there is much less comprehensive salary data in any case. Knowing if women do better in dramas or comedies, in shows or films produced by different studios or airing on different networks or distributed by different companies would help us figure out who’s doing exceptionally poorly, and who’s made strides.

Until we figure out who’s doing better and who’s doing worse, we won’t be able to start asking questions about the specific cultures and practices that produce pay gaps and those that are proving successful at closing them. There are challenges, to that, of course, most significant that these surveys survive on some kind of anonymity. The organizations and individuals who are doing poorly would never want to be exposed as being so. And even organizations that do better may be hesitant to step forward to talk about their practices, for risk of exposing themselves to scrutiny for the work that still remains, and to questions from their own employees about whatever gaps persist. The fact that we lack information about salaries is intentional, and always to the benefit of companies that pay those salaries. Without accurate, cross-referenced data, it’s difficult for individuals to know if they’re being paid fairly and to negotiate if they’re not. And without those numbers, it’s impossible for us to identify industry-wide best practices, either. Numbers like these are an opening step in a road towards actual, useful transparency, rather than the end of it.

This blog originally appeared in Think Progress on September 27, 2012. Reprinted with permission.

About the Author: Alyssa Rosenberg is a culture reporter for ThinkProgress.org. She is a correspondent for TheAtlantic.com and The Loop 21. Alyssa grew up in Massachusetts and holds a B.A. in humanities from Yale University. Before joining ThinkProgress, she was editor of Washingtonian.com and a staff correspondent at Government Executive. Her work has appeared in Esquire.com, The Daily, The American Prospect, The New Republic, National Journal, and The Daily Beast.


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Fair Pay Act Would Bring Equal Pay for Equal Work

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Image: Mike HallYesterday, equal rights advocates marked Equal Pay Day to remind the nation that women are paid  just 80 cents for every dollar men earn, Sen. Tom Harkin (D-Iowa) introduced the Fair Pay Act of 2011 that would ensure that employers provide equal pay for jobs that are equivalent in skill, effort, responsibility and working conditions.

Harkin says that discrimination accounts for much of the pay gap and there are too many loopholes and barriers to effective enforcement of existing laws. “We need to strengthen penalties and give women the tools they need to confront discrimination.”

At the same time, we must recognize that the problem of unequal pay goes beyond insidious discrimination. As a nation, we unjustly devalue jobs traditionally performed by women, even when they require comparable skills to jobs traditionally performed by men.

Millions of jobs dominated by women such as social workers, teachers, child care workers and nurses are equivalent in skills, effort, responsibility and working conditions to similar jobs dominated by men says Harkin:

But the female-dominated jobs pay significantly less. This is inexplicable. Why is a housekeeper worth less than a janitor? Why is a parking meter reader worth less than an electrical meter reader? Why is a social worker worth less than a probation officer?

Commentator Debbie Hines writes on OpEdNews.com today:

Women’s salaries are outpaced by men almost everywhere from the highest paying occupation to the lowest paying occupations. Everywhere from doctors and lawyers to cashiers and lesser positions, women earn less than their male counterparts.

The Fair Pay Act would also require employers to publicly disclose their job categories and their pay scales, without requiring specific information on individual workers. Under current law women who believe they are the victim of pay discrimination must file a lawsuit and endure a drawn-out legal discovery process to find out whether they make less than the man working beside them.

It took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job and was able to file suit. After the U.S. Supreme Court ruled against her in 2007, Congress passed the Lilly Ledbetter Fair Pay Act that helps level the playing field for victims of wage discrimination that President Obama signed in 2009. Says Harkin:

On this Equal Pay Day, let us make sure that what happened to Lilly never happens again by recommitting to eliminate discrimination in the workplace and make equal pay for equal work a reality

Click here for more information on the Fair Pay Act.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When his collar was still blue, he carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. He has also worked as roadie for a small-time country-rock band, sold his blood plasma and played an occasional game of poker to help pay the rent.

This blog originally appeared in AFL-CIO on April 12, 2011. Reprinted with Permission.


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Attacking Wisconsin’s Middle Class

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Image: Linda MericMedia coverage of Madison’s thousands of demonstrators has focused on Governor Scott Walker’s attempt to strip public employees of collective bargaining rights.  Members of 9to5, Association of Working Women have stood with those calling for fairness for working families.  But it’s clear that governor and conservative state legislators’ agenda is bigger than just union busting.  To benefit their corporate masters, they are determined to deny the American Dream to the vast majority of Wisconsinites.

Public workers don’t make big bucks but they are the backbone of the middle class.  They are teachers who tutor struggling students so they’re prepared for college, vocational school or a trade.  They are police and firefighters who protect us when the unthinkable happens.  They are nurses who vaccinate children so we no longer have polio and diphtheria epidemics.  They are $9.00/hour home health care workers helping individuals live in their homes with dignity.  They keep the economy humming by paying their mortgages, buying groceries and purchasing clothes items that keep our Main Street small businesses afloat.

Throughout the years, public employees and their unions have accepted lower paychecks to defer money to their pensions and health care.  Despite this, they’ve agreed to wage and benefit concessions to help do their share in balancing the state budget.

In sharp contrast to their “jobs, jobs, jobs” campaign promises, Wisconsin Republicans are pushing tax breaks to corporations and the rich that will decimate the state’s budget revenue.  To pay for their millionaire friends’ favors, they propose to cut already stretched-thin funding for education, police, firefighters and human services, all provided by public employees.

In a now-public recorded call to Gov. Walker in which a journalist pretended to be anti-union billionaire David Koch, the men discuss plans to threaten public workers with layoffs, attempts to divide public and private sector unions, and their hope that their anti-union efforts could spread nationwide.

Let’s be clear: This showdown is NOT about balancing the state budget.  It’s about union busting, pure and simple.  The upshot of these efforts is to take away power and family-supporting jobs from working families.

Meanwhile, Gov. Walker and allied legislators have launched other attacks on all working families in both the public and private sectors.  Their budget gives themselves the power to slash health care – a key middle class support – for the 1.1 million Wisconsinites relying on Medicaid.

They’ve proposed rolling back Wisconsin’s Family and Medical Leave Act.  Employees working less than 25 hours per week would no longer be eligible for family leave, and employers could deny the use of accrued sick time to cover lost pay.  Many would be forced to take unpaid leave for emergencies, putting their homes, families and even their jobs at risk.

In an end run around Milwaukee’s paid sick days policy, passed by 70% of that city’s voters in 2008, these legislators have introduced a bill to prevent municipalities from enacting paid sick days laws.

Proponents of these measures suggest they’re needed to boost industry and jobs but Wisconsin’s biggest companies are thriving, even through the recession.  Mercury Marine reported profits of $1.1 billion between 2000-2007 while paying nothing in state corporate income taxes.  Harley-Davidson’s profits have increased – profits The New York Times documented as “…mostly going to shareholders instead of the broader economy.”  Nevertheless, hearing the mantra of “you’re lucky to have jobs,” Harley workers were forced to take pay cuts.

The Governor and allied legislators are pulling the rug out from under middle class families because they want to bust unions and strip hard-won protections like health care, family leave and paid sick days from workers to enrich their corporate campaign contributors.

It’s time for people across Wisconsin and the nation to stand up for working families against policies that would degrade their pay and security.

About the Author: Linda Meric is the Executive Director of 9to5, National Association of Working Women, a national membership-based organization of low-income women working to improve policies on issues that directly affect them.


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Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

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ellen simonHere are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses  talked about the  “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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Truck Driver Wins Gender Discrimination Case In Fourth Circuit

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Court Elaborates On Types Of  Evidence For Proof Of  Discrimination

The recent case of Merritt v. Old Dominion Freight is hands down one of the best decisions I have come across in a long time.

It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.

What Happened In The Case

Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend  nights and weekends at home.

To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.

When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.

The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.

When Merritt asked why she was not hired, Howard told her that :

  • it was decided and they could not let a woman have that position.
  • the company did not really have women drivers in the city (as pick up and deliver drivers)

On another occasion he told her:

  • the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt
  • the VP didn’t think a girl should have that position

Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.

For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.

When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.

Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.

After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.

The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.

The 4th Circuit Court of Appeals Reverses

Title VII makes it unlawful to discriminate against an individual on the basis of sex. The most prevalent  method of establishing discrimination is under the burden-shifting framework set forth in the Supreme Court case of McDonnell Douglas Corp v. Green which goes like this:

  • The plaintiff makes out a prima facie case of discrimination
  • The burden shifts to the employer to articulate a legitimate, non-discriminatory justification for its allegedly discriminatory action
  • If the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reason offered by the employer was not a true reason but a pretext for discrimination.

Ultimately, the plaintiff has the burden of proving that he or she was a victim of intentional discrimination.

In this case, Old Dominion put forth its legitimate non discriminatory justification for discharging Merritt – her failure to pass the PAT.  That proved, according to Old Dominion, that Merritt did not have the “requisite physical strength to safely perform the job duties.” Merritt insisted that this rationale was a pretext for discrimination.

The Court of Appeals agreed with Merritt and found that the “record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot.”

According to the Court, Merritt produced plenty of  evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from performing her job duties as a Pickup and Delivery driver. As the Court pointed out:

Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.

In addition, the Court found that Merritt produced evidence of discriminatory intent. For one:

  • Injured male employees did not have to take the PAT test
  • Merritt produced evidence that the policy requiring all injured employees to take the PAT test did not exist

As the Court stated:

While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.

In addition, the district court ignored evidence of the corporate culture of discrimination produced by Merritt. The Court stated:

It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position. …..

While the views of others are no proof of the views of Stoddard, at some point the corporate environment in which he worked places Stoddard’s own selective use of the PAT in Merritt’s case in a less neutral context.

In Lattieri v. Equant, ….[w]e deemed the plaintiff’s ‘powerful evidence showing a discriminatory attitude at her company of employment toward female managers’ sufficient to ‘allow a trier of fact to conclude that these discriminatory attitudes led to plaintiff’s ultimate termination.’ Likewise here.

The sum, the Court said:

Old Dominion fired an employee who was, according to the district court, able to do her job without assistance and in a satisfactory manner’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotype work environment.

In this case, it not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial….

Based on all of the foregoing reasons, we reverse the district court’s grant of summary judgment to Old Dominion and remand for trial on Merritt’s Title VII claim.

Take Away

This case helps women in circumstances similar to Merritt’s – firefighters, police officers, constructions workers, etc. — those in male dominated physical professions who still face widespread discrimination because they are simply not wanted.

Just this past fall, I counseled a female firefighter who was repeatedly seeking a promotion, and forced to take numerous tests that were not required of her male counterparts. It’s not an unusual scenario though this type of discrimination is precisely what Title VII is aimed to prevent. The Merritt case, no doubt, should help women fight for equality in the workplace.

In a broad sense, this case hits so many of the issues that come up in discrimination cases all of the time – “stray remarks,” “post- hoc justifications,” “shifting explanations,” the parsing of evidence by district court judges — to name a few, and frames them in a way that will be extremely helpful to employees and their lawyers in discrimination litigation in the future.

images: rlv.zcache.com

This post originally appeared in Employee Rights Post on April 28, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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Court Upholds $1.9 Million Dollar Verdict In Gender Discrimination Case Against Wal-Mart

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Female Pharmacist Wins Appeal Including Punitive Damages and Huge Front Pay Award

It’s one thing to prove discrimination. It’s an altogether different thing to prove damages which occurred as a result of it.

In the recently published gender discrimination case of Haddad v Wal-Mart Stores Inc,*, the Supreme Court Judicial Court (“SJC”) of Massachusetts affirmed a jury verdict which included $733,000 for 19 years of front pay (future economic loss) and $1 million dollars in punitive damages – and that’s big news.

What Happened In The Case

Cynthia Haddad worked as a pharmacist at Wal-Mart for ten years (seven of those in the Pittsfield, Massachusetts store) mostly as a staff pharmacist. Throughout her time at Wal-Mart, she received excellent evaluations.  

Towards the end of her employment, Haddad accepted the position of pharmacy manager.

During that time, she received less pay than any male pharmacy manager which she consistently complained about.

On April 14th, 2004, Haddad was questioned by three Wal-Mart managers about abut two fraudulent prescriptions.

One of the prescriptions was written in 2002 while Haddad was on duty, and another was written in 2004 while a male pharmacist was on duty.

Haddad told the managers that she did not know anything about the fraudulent prescriptions.

She did admit that the 2002 fraudulent prescription could have been written when she briefly left the pharmacy area to buy a soda at a nearby counter, or when she was in the restroom, eating lunch, or talking to customers.

Haddad’s employment was terminated that same day.

She was told that the reason for her termination was based on her statement during the interview that she failed to secure the pharmacy and left Baran (the technician) unattended in the pharmacy area. Baran, who admitted that she falsified the prescription,was also terminated.

The other pharmacist involved — Richard Blackbird — was on duty the day the fraudulent 2004 prescription was written. That prescription contained his initials.

In a clear case of unequal treatment, neither Blackbird, nor any other pharmacist was questioned about or disciplined for the 2004 fraudulent prescription.

In stark contract to the treatment Haddad received,  Blackbird was appointed to be pharmacy manager at the time of Haddad’s departure.

In addition, Blackbird testified that he commonly left the pharmacy area unsecured to talk to a customer, go the restroom, or get a snack – and that he was unaware of any policy prohibiting this practice.

Haddad filed a lawsuit alleging unequal compensation and termination of employment in violation of Massachusetts laws against discrimination. (M.G.L. c. 151B, s.4) The complaint also stated a claim for defamation.

The jury found in Haddad’s favor and awarded $922,774 in compensatory damages which included:

  • $17,700 in special damages
  • $125,000 for emotional distress
  • $95,000 in back pay
  • $733,000 in front pay

The jury also awarded $1 million dollars in punitive damages.

The Appeal

Wal-Mart appealed claiming a number of errors.

Sufficiency of the Evidence

Wal-Mart claimed that Haddad did not introduce enough evidence to prove discrimination. The Supreme Judicial Court of Massachusetts disagreed. It held that there was sufficient proof to support the verdict including evidence that:

  • Wal-Mart’s proffered reasons for terminating Haddad were false
  • Similarly situated male employees were treated differently than Haddad for similar infractions of the same policy
  • Other incidents occurred  in which male pharmacists were not disciplined for far more serious infractions, ie. one pharmacist was caught writing prescriptions and taking drugs for himself and was not fired
  • Wal-Mart failed to follow its progressive discipline policy

Front Pay

The jury awarded the plaintiff nineteen years of future economic loss which consisted of the difference in pay and benefits that Haddad would have earned at Wal-Mart compared to the pay and benefits she earned at the job she held at the time of trial.

Nineteen years of compensation represented Haddad’s loss of earning through age 65.

Wal-Mart contended that the front pay award was excessive and speculative. The Court disagreed:

While the award of $733,307 represents a significant dollar figure for front pay, the evidence supported such an award ….

The plaintiff testified to her difficulty in obtaining a new job. There was evidence that Wal-Mart’s allegations concerning her alleged responsibility for drug losses became generally known….

[T]he award of lost income of nineteen years is consistent with the plaintiff’s anticipated retirement age of sixty-five.

Based on the plaintiff’s ten-year tenure at Wal-Mart, her testimony that she had planned to continue working at Wal-Mart for the remainder of her career, and the limited number of pharmacies in the area around Pittsfield, the jury permissibly could have concluded that an award of nineteen years was appropriate.

The Court discussed other cases (both state and federal) in which employees were awarded economic loss for long periods of time into the future – particularly where the circumstances indicated that plaintiffs would have difficulty obtaining comparable employment.”

It’s a very helpful opinion for plaintiffs and their lawyers on the issue of damages for future economic loss in wrongful discharge cases

Punitive Damages

It’s not often that we see cases in which an award of punitive damages is affirmed on appeal.

To sustain the award of punitive damages in this case, Haddad had to prove that the defendant’s act “was outrageous, egregious, evil in motive, or undertaken with reckless indifference to the rights of others.”

Some of the evidence which the SJC of Massachusetts relied upon to support the award included proof that:

  • Wal-Mart was aware that gender discrimination was not illegal
  • Wal-Mart refused to pay Haddad the hourly rate it paid male pharmacy managers
  • Wal-Mart fired a ten-year employee for a single infraction after a sham investigation
  • Male pharmacists were not disciplined for similar or far more serious infractions

It wrote:

The jury was warranted in concluding that Wal-Mart’s pattern of unequal treatment of male and female pharmacists was outrageous and reprehensible.

Lessons To Be Learned

There is no doubt that in today’s economic climate the chances of finding comparable employment after a discharge are slim. What this means is that when employees unlawfully lose their jobs, and prove it, it’s likely that we will see larger and larger verdicts just like this one. It’s an important case both for its content and as a harbinger of what’s to come.

* Reprinted from Westlaw with permission of Thomson Reuters

** This post originally appeared in Employee Rights Post on December 1, 2009. Reprinted with permission from the author.

Images:

63.135.122.65/bergdahlphoto/Wal-Mart

www.a-fib.com/images

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome


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Important Decision From Sixth Circuit in Discriminatory Failure to Promote Case

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Female Officer Wins Big In Fight For Discriminatory Denial Of Promotion

It’s not uncommon for women to be passed over for promotions they deserve – but proving gender discrimination has been difficult.

The good news is that the recent decision from the Sixth Circuit Court of Appeals in Risch v. Royal Oak Police Department will make it easier to succeed in these cases in the future. 

What Happened In The Case

Karen Risch was a patrol officer for the Royal Oak Police Department for seventeen years.

In 2005 Risch was passed over for a promotion to the position of detective. Two male applicants, who had lower scores than Risch under the promotion system used by the Department, were awarded the positions instead of her.

Risch claimed that the Department failed to promote her to a command position six times between 2002 and 2005.

Risch filed a gender discrimination claim under Title VII of the Civil Rights Act of 1964. The federal district court (Eastern District of Michigan) granted judgment in favor of the Royal Oak Police Department and threw out Risch’s case.

On September 23, 2009, the Sixth Circuit Court of Appeals reversed and this is why.

Evidence of Pretext

Discrimination cases are hard to prove but here’s how it’s done in a nutshell.

The plaintiff can prove her lawsuit by establishing what is called a prima facie case which can establish an inference of discrimination. If she does that, the defendant must come forward with admissible evidence of a legitimate, nondiscriminatory reason for its action.

Once the Defendant establishes a legitimate nondiscriminatory reason for its conduct,  the plaintiff must identify evidence from which a reasonable jury could conclude that the employer’s proffered reason is a pretext for unlawful discrimination.

A plaintiff can prove pretext by showing that the employer’s stated reason for the adverse employment action either:

  1. has no basis in fact or
  2. was not the actual reason or
  3. is insufficient to explain the employer’s action

In this case, the trial court granted judgment against Risch because it concluded that Risch failed to present sufficient evidence that the Department’s proffered explanation for not promoting her was pretextual.

The Sixth Circuit Court of Appeals disagreed and reversed, holding that Risch did present ample proof of discrimination to to go before a jury.

Here’s the evidence the Court determined to be  evidence of pretext and gender discrimination.

Superior Qualifications

As the Court pointed out, Risch had superior qualifications for the position of detective than two of the male candidates (Moore and Spencer) promoted to the position in 2005. Her scores were better and she had greater experience in the department.

As the Court stated:

Taking the facts in the light most favorable to Risch … it is clear that Risch was as qualified as or better qualified than either Moore or Spencer.

Discriminatory Remarks

The Court noted that male officers frequently made degrading comments regarding the female officers. Some of those remarks included the following:

  • “The chief will never have a female officer on the command staff”
  • “None of you {female officers} will ever go anywhere …”
  • A majority of male officers told Risch that women do not belong in the police force

As the Court stated:

We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext ….

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. …

We do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another as well as any other pretextual evidence supporting an inference of discriminatory animus.

Other Evidence Proving Discrimination

The Court also made note of other evidence it considered to prove a “general atmosphere of discrimination” including discrimination against women in duties, shift assignments, and work distribution.

Part of the evidence was that Lieutenant Foster, who held a senior position in the command staff, gave the men:

  • any kind of detail they wanted
  • all of the plum assignments

The assignments and the work the men didn’t want went to the women.

This evidence, according to the Court, supported Risch’s claim that she was discriminated against regarding her promotion.

As the Court stated (citing its decision in Ercegovich v. Goodyear Tire &Rubber Co. interestingly written by the same judge as this case):

We have explained that management’s consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context.

In light of the above evidence … we conclude that Risch has produced sufficient evidence to establish a genuine issue of material fact concerning whether the Department’s proffered legitimate, nondiscriminatory reason was pretextual.

What’s Important About The Case

What’s important about the case is that the Court broadly looked at a combination of evidence about Risch’s experiences at work (as well as that of other women) and used it to hold that Risch could challenge the department’s failure to promote her. That evidence included:

  • a record of comparative qualifications
  • discriminatory statements by decisionmakers and others in the department
  • an atmosphere of discrimination experienced by Risch and co-workers
  • the lack of women in command positions
  • proof that Risch was arguably better qualified than male candidates

The federal district court disregarded much of the evidence presented by Risch and that, according to the Sixth Circuit Court of Appeals, constituted reversible error.

The simple fact that the Court of Appeals considered all of the evidence of gender discrimination — instead of narrowly limiting the inquiry to the reasons given by the employer for the denial of the 2005 promotion — is what’s really important about this case.

It’s been historically quite difficult for women to prove that they they were denied promotions which went to less qualified male counterparts.

The Sixth Circuit’s opinion in this case —  and its broad interpretation of what kinds of evidence can support these claims —  should go a long way in helping women, as well as other victims of discrimination, get their cases in front of juries where they properly belong.

image:img.alibaba.com

This post originally appeared in Employee Rights Post on October 8, 2009. Re-printed with permission by the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome


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Trumped-Up Reasons For Termination Can Prove Retaliatory Discharge

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When employees are fired for misconduct, employers often think that they have an airtight defense to any charges of wrongful discharge. But that’s often not so.

The case of Upshaw v. Ford Motor Company, decided last week by the Sixth Circuit Court of Appeals, brought this point home.

What Happened In The Case

Here’s a brief synopsis of what happened in the case.

Carolyn Upshaw worked for Ford Motor Company in Michigan as a production supervisor for several years. In spite of the fact that she received excellent reviews, she was repeatedly denied a promotion.

In 2003, she filed a charge of race and gender discrimination with the Equal Employment Opportunity Commission. Upshaw alleged that Ford had “improperly promoted similarly-situated while male production supervisors to Salary Grade 7 while continually denying her the same promotion.”

She later filed two more EEOC charges alleging various retaliatory acts by Ford. In 2004, she filed a lawsuit. In 2005, Upshaw was fired.

In response, Upshaw filed an additional EEOC charge claiming that she was terminated in retaliation for filing her prior EEOC charges and filing a lawsuit.

Upshaw also amended her complaint to contain a claim for retaliatory discharge. All of her claims were filed pursuant to Title VII of the Civil Rights Act of 1964.

The district court judge threw out Upshaw’s case against Ford. Upshaw appealed, and the Court of Appeals found in her favor on her claim for retaliatory discharge.

Why The Lower Court Was Reversed

Ford claimed that it fired Upshaw for cause. These were the reasons the company gave to support the discharge:

  1. Falsification of company records by under-reporting scrap
  2. Harassment of and retaliation against one the employees she supervised
  3. Violation of company safety policies on multiple occasions by driving an  uninspected personnel scooter and continually failing to wear a required safety vest, and
  4. Insubordination

Upshaw submitted proof that none of these reasons would warrant the termination of a supervisor on its own or together.

Upshaw presented evidence to prove that business reasons for the discharge were not true or not believable (what’s called evidence of “pretext”) Therefore, she contended, she should have been allowed to present her case to a jury. The Court agreed.

Evidence of Pretext
The Court had several problems with Ford’s justification for Upshaw’s termination, not the least of which was that other employees who engaged in the same misconduct were not terminated.  As the Court put it:

As a threshold matter, Upshaw has established that two of Ford’s four proffered reasons for terminating Upshaw – safety violations and her failure to timely resolve union health and safety complaints – do not typically warrant any formal discipline at Ford’s Sharonville plant, let alone termination.

In addition, the charges which were raised because Upshaw allegedly was insubordinate when she failed to timely resolve union safety complaints in a timely fashion were neither valid nor true. 

According to the Court’s opinion:

Ford employees testified that no supervisor could be expected to resolve nineteen health and safety complaints by a union representative within a twenty-four hour period, and that they did not know of anybody who has ever been disciplined or fired for failure to complete health and safety forms within 24 hours.

What’s more, the supervisor involved with the so-called insubordination testified that “she could never recall asking Upshaw to do something that she did not do.”

Finally, as to  the incorrect scrap reports,  the evidence showed that Ford had never previously treated misreporting scrap as a serious offense that would result in discipline or termination of a supervisor.

In sum, what you have in the case is evidence that employees who engaged in the same conduct as Upshaw were not disciplined or terminated.  The other reasons given by Ford for the discharge were simply not credible or plainly false.

The Court’s Conclusions

Viewing the evidence presented by Uphsaw (in a light most favorable to her at the summary judgment stage as the rules require) the Court concluded that her case should not have been thrown out and Upshaw should be entitled to take her retaliation case to a jury.

This is some of what the Court had to say when it reversed the lower court:

Although Ford is entitled to terminate an employee for an actual violation of its internal policies, Upshaw has introduced evidence suggesting that these actual violations were nothing more than trumped -up charges.

The Court also said:

When an employer waits for a legal, legitimate reason to fortuitously materialize and then uses it to cover up his true longstanding motivations for firing the employee, the employer’s actions constitute the very definition of pretext

In addition, the Court also relied on its previous decision in Hamiliton v. General Electric, ((discussed in Employee Rights Post)) — a case in which the employee filed a charge of discrimination and  was then fired for misconduct :

Plaintiff alleged that after he had filed an age-discrimination claim against GE with the EEOC, his supervisors intensified their scrutiny of his work and harassed him more that they ever had before.

GE terminated plaintiff when he allegedly engaged in “unacceptable conduct;” the parties disputed the details of the incident.

The district court granted summary judgment for GE but we reversed explaining that “a reasonable fact-finder could determine that GE waited for, and ultimately contrived a reason to terminate Hamilton to cloak its true, retaliatory motive for firing him.

Therefore since the jury could find that Ford’s reasons for the discharge were “contrived” following the filing of her EEOC charges and the filing of the lawsuit, Upshaw should  — according to the Court — have a right to prove her case to a jury.

Lessons From The Case

This case is a huge help for employees who face charges of misconduct to mask a discriminatory or retaliatory motive for discharge under any civil rights statute.

When employees are not comparably disciplined for the same misconduct, or the reasons given for the discharge just don’t hold up to scrutiny, employers can find themselves in big trouble as far as liability for civil rights violations is concerned.

Employers need to watch out for trumped up charges that don’t hold up to scrutiny.

This article originally appeared in Employee Rights Post on August 16, 2009. Reprinted with permission by the author.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

 

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Third Circuit Sends Wake Up Call to Employers About Discriminatory Hiring Practices

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In the spirit of National Equal Pay Day on Tuesday, I wanted to share the important gender discrimination case of Donlin v. Phillips Lighting North America Corp. decided by the Third Circuit last week.

Here’s what happened in the case.

Colleen Donlin was hired by Phillips as a temporary warehouse employee at its Mountaintop, Pennsylvania distributions center. Her job was to help prepare orders for shipment.

Like other temporary workers, Donlin applied for a permanent position. She was not hired and her eight month temporary assignment ended.

Donlin got two other jobs after she left Philips. At the first job, Donlin earned  $14.70 an hour, but it was a 32-mile commute.

She left that job and found a job closer to home at which she made $13.00 an an hour. Had she been hired by Philips, she would have earned $14.67 an hour as a base salary

Donlin learned that Phillips hired several men for the position she had applied for after it refused to hire her.  She filed a Title VII lawsuit for gender discrimination,  won the trial and was awarded damages.

In discrimination cases, the compensation which can be awarded by a judge or jury is designed to make victims whole and put them in the position they would have been in had they not been discriminated against.

A winning employee can recover “back pay” and “front pay.”

  • Back pay represents losses from the the time of the discrimination up to the time of trial.
  • Front pay represents the losses that the victim will experience in the future if he or she does not find a comparable position.

Based on the premise that Donlin would have worked for another 25 years, an advisory jury awarded Donlin:

  • $63,050 in back pay
  • 395,795 in front pay
  • for a total of $458,845

The award was based on the difference in pay and benefits between the $13.00 hour job she was holding at the time of trial and the $14.67 hour job she would have had at Phillips had she not been discriminated against when Phillips refused to hire her.

The judge modified the front-pay award by reducing it to account for 10 years of damages instead of 25, finding that a 25 year period was too speculative — so the total award was $164,850.

Phillips appealed and the decision came out last week. The issues decided are very important for both victims of discrimination and their lawyers.

Here are the highlights:

1. Front Pay:

Donlin was in her 30’s at the time of her employment with Phillips and 40 at the time of trial. The question presented was: was how far into the future can a younger employee like Donlin claim economic loss?

For those of us who represent individuals in employment cases, the issue has always been a hard one to deal with when it comes to a younger worker.  The reason is because past damages can be calculated with certainty, but future losses can not:

  • Is the person going to get another job?
  • If so when and for how much?
  • How do we know what someone will be doing 20 or 30 years from now?

When we represent someone in an age discrimination case, and the terminated employee is 55 for example,  it’s easy for us to project damages until age 65 or 70  (whatever the age is that the person was likely to retire).

It’s not speculative to assume that the person would have worked for another 10 or 15 years, and it’s not hard to calculate what he or she would have earned and what the total losses are.

It’s much more complicated when we represent a younger person.  Since the law does not allow “speculative” damages, it’s simply very difficult to predict how far into the future the court will allow us to project.

In this case, the  district court judge ruled that Donlin was entitled to receive damages for economic loss for 10 years into the future. The Court of Appeals affirmed the ruling :

We note that there will often be uncertainty concerning how long the front-pay period should be, and the evidence adduced at trial will rarely point to a singe, certain number of weeks, months , or years.  More likely, the evidence will support a range of reasonable front-pay periods.  Within this range, the district court should decide which award is most appropriate to make the claimant whole …

We find that the District Court did not abuse it’s discretion when it awarded Donlin front- pay for 10 years.

This means that we now we have a decision with a sound analysis for front -pay involving a relatively young employee from a high level court.  It’s a decision that other victims and their lawyers can rely on and it’s a decision that carries considerable weight. It’s very good news.

2. Mitigation

In an employment case, the employee  who has lost a job has a duty to mitigate — which means that she  (or he) must make reasonable efforts to minimize her loss of income. The precise language of the statute says

Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

In other words:

  • a person who is claiming damages in an employment case has a duty to look for work
  • damages into the future end if an employee gets an equivalent job or better job

In this case, Donlin first got a job in which she earned $14.70 and hour.  The problem was that it was a 32 -mile commute. She worked at the job for two years, and then found a job closer to home at which she made $13.00 an an hour.

She would have received $14.67 an hour as a base salary had she been hired at Philips.

Phillips argued:

  • Donlin’s “voluntary transfer” to a lower-paying job was inconsistent with her “duty to mitigate”
  • Phillips should not have to make up the difference.

Donlin argued:

  • once you factor the cost of the commute
  • the the two jobs were substantially the same.

The Court of Appeals agreed with Donlin:

An employee need not seek employment which involves conditions that are substantially more onerous than [her] previous position…

It is well settled that a claimant has not failed to make a reasonable effort to mitigate damages when she refuses to accept employment that is an unreasonable distance from her residence.

[T]he job at Mission constituted a substantially equivalent opportunity as that available at Romark.  Donlin should not be penalized for accepting that opportunity.

Accordingly, the District Court’s finding that Donlin sufficiently mitigated her damages was not clearly erroneous …

Certainly our clients still have a duty  to mitigate and make a “reasonable effort” to find comparable work if they intend to claim damages in a lawsuit.  This decision does not change that fact.

But this decision certainly delivers great news since it clearly states that a person is not required take a job which places an onerous burden on him (or her)  in order the meet that obligation.

On many fronts,  this is a hugely helpful case on questions of damages in employment cases. While we deal with these problems every day, it’s certainly not every day that we get federal circuit court case law on these particular issues.

It’s also a wake up  to employers to be careful about their hiring practices.

The bottom line is that Donlin worked as a temp at a company for eight months. Because she was discriminated against when the company hired a man instead of her into a permanent position, she is now entitled to all of her past losses plus 10 years of damages into the future. That’s a big win.

Images: images.businessweek.com

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.


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