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You're Invited to Write for “Taking Back Labor Day”

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This September Workplace Fairness and the Today’s Workplace Blog will be hosting our second annual “Taking Back Labor Day” blog carnival.  Since last Labor Day our blog has been relaunched and improved and our website continues to grow.  This year we were nominated for a Webby Award for Best Law Site and have increased our number of website visitors annually to over 400,000.  Today’s Workplace is a source for commentary and discussion on the most important issues in labor and employment facing workers today.

Labor Day should be a time to remind people of why the labor movement is still important and to discuss and take inventory of critical issues affecting workers.  We are inviting you to write an original blog for Labor Day.  A few broad topics we’d like to touch on are as follows:

* Why is the labor movement still important?
* How can it be further revitalized?
* How can unions and employment lawyers work together more closely to advance the rights of workers?
* What things should the Obama administration be focusing on with regard to the labor movement?
* In 5, 10, 15 years, what will be the most important workplace issue to consider on Labor Day?
* Given the state of our economy and all that has happened since late 2008, what part should the labor movement play and how will it change?

Last year we ended up with 35 guest bloggers for “Taking Back Labor Day” and this year we hope to make it even bigger.  If you do not have time to write an original piece we would also be happy to crosspost from your ‘home’ blogs if you would like to send something.  Also we encourage all our contributors and readers to make comments and really turn the blogs into a conversation. Perhaps through this effort more people will remember that Labor Day is not just a good day to go shopping, but a day, as Peter McGuire put it circa 1882, to honor those “who from rude nature have delved and carved all the grandeur we behold.”

If you have any questions please feel free to contact Paula Brantner at blog@todaysworkplace.org. Articles can be sent as word documents to the aforementioned email address or if you are familiar with blog publishing we can set up a user account for you.  If you would like to post a blog that is pertinent to our audience but not specific to Labor Day you are welcome to send it and we will post it later in the month. 

Thank you for your time and consideration,

Shannon Lichtenberg & Paula Brantner
Workplace Fairness

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How Small Business Could be Reshaped After Today’s Election

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Disclaimer: This post is not meant to be an endorsement of any party or candidate but, rather, an exploration of issues affecting small business as shaped by what will *most likely* happen at the polls today.

Today’s election will be historic, no matter the outcome.  If you’re anything near the political junkie that I am, you’ve been watching for the last few days the result projections of some of the major pundits from the basic and cable news networks, as well as from some of the bookies.

If there is a commonality here, it is that Barack Obama looks poised to win fairly big or really big; and that the Democrats will make gains in both the House and Senate – although the Senate “magic 60” number is still a far cry as of this writing.

Yet, if we assume the above, as David Gergen has noted on CNN, even without the Dems getting a filibuster-proof majority in the Senate, they would still have a greatly enhanced ability to push through legislation that supports their agenda, with a president ready (on most issues) to sign it into law.

How would this scenario affect small businesses?  A look at four issues that are central to their survival and success – two of which have been covered at length by candidates of the two major parties and the media, and two of which have been largely ignored – offer a clue.


  • Obama’s plan, as detailed on his website, stresses cuts in capital gains taxes and additional tax cuts for corporations that create jobs in the U.S.
  • The Democratic Party website also talks about efforts of the majority Democratic Congress (elected in 2006) to “slash regulations on small companies.”
  • Point of contention: The now-familiar “Joe the Plumber” caveat: Entrepreneurs who start businesses that generate more than $250,000 in annual revenues would see their taxes go up – albeit to 1990s levels.


  • Obama: Establishment of a new Small Business Health Tax Credit to help small firms provide affordable health insurance to their employees.  He has also talked about creating an insurance pool that individuals and small firms can pay into and receive the same benefits that members of Congress receive.
  • Democratic Party: Emphasis on cutting bureaucratic waste – chiefly by standardizing electronic medical records – that would, along with incentives to increase competition among health plans, reduce company-paid premiums over time.
  • Point of contention: Nationalizing healthcare, which would mandate the coverage of children, would keep costs high.

Changes in Labor Laws – Specifically Enactment of the Employee Free Choice Act (EFCA)

  • Obama: A Proponent of the EFCA; wants to make it easier for employees to form unions.
  • Democratic Party: Behind the EFCA. They also list a goal of raising the minimum wage.
  • Point of contention: The EFCA and federal increase in the minimum wage are both hotly contested issues, with adoption of both falling pretty squarely in the “workers, yay; business leaders, nay” columns.  Since the federal minimum wage was just raised in July, the EFCA bill, if it were highly modified, might stand a better chance of gaining the support of small business leaders in the shorter term.

Immigration Reform

  • Obama: Reduce the bureaucracy that slows the process for illegal immigrants to earn legal status, which he argues will “meet the demand for jobs that employers cannot fill.”  Crack down on employers that hire undocumented immigrants.
  • Democratic Party: Supports “economic development in migrant-sending nations, to reduce incentives to come to the United States illegally.” Long-term, this would ensure that tax dollars from businesses as well as individuals aren’t stretched as thin.  The party also echoes Obama’s above concerns.
  • Point of contention: This is a sticking point for leaders of some smaller firms that are actively hiring undocumented workers.  Most other business leaders seem concerned that their taxes are not raised for inadequate or unnecessary measures to secure our borders.

So, would a fly on the wall of a small organization in February 2009 see a noticably different landscape than in the same firm today?  Probably not.  Still, it doesn’t hurt to project how the probable shift in the balance of power in Washington after today will play out for these enterprises.  Who knows, it may even shape smaller-scale efforts – the things we love to talk about and help our clients refine – like employee engagement best practices and workplace team building.

What say you?

(Cross-posted from Winning Workplaces Blog)

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Defense Attorneys Make Excuses, But the Outcome is the Same

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When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

  • When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
  • There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
  • Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

  • explain why plaintiffs fare so much worse in front of federal district court judges than juries;
  • explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”

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Not a Hobby

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They’re not like taking up skydiving.

I was subscribing to a business magazine for women in 2001. I remember the year because I got laid off and had to cancel all my subscriptions, though the magazine’s name is lost in the mists. Anyway, that was the verdict of an article they published on combining children and work, that having children isn’t a hobby like skydiving.

The author wrote about endless frustration with having employers act as though children are an inconvenient hobby to indulge, and a really far out hobby at that, instead of the only way you insure the existence of a future workforce.

Parenting is normal, but the business world still treats it like a disorder.

I didn’t have any children when I read that article, and don’t yet, but the author’s metaphor has always struck me as a desperate plea for mercy for working parents. I was in my mid-20s, single, working 60-80 hours a week and spending most of my weekends catching up on sleep. It was hard enough taking care of myself, why wouldn’t an employer get that having other people to take care of wasn’t just some whimsical pastime?

Then I started to notice that the receptionist at work got talked about as being unreliable because she had occasional childcare emergencies that she had to take off for. I wasn’t thought of in the same way when I took a half day for personal reasons and shifted my hours around to make up for it.

In our office hierarchy, I was a trusted, salaried professional. She was treated like an answering machine. Machines only get attention when they break.

It’s hard for everyone.

I thought about that article sometimes after I got laid off a couple months later. It made me more grateful that even when times were tough, it was just me that had got stuck in a difficult situation.

While I didn’t have kids, I had been one. My sibling and I weren’t a hobby to my parents. They’d worried and sacrificed for us, we were their world.

It’s been harder as women integrated into the workforce to assure that parents could still be there for their children. The idealized, standard model of an employee is still tilted towards a single person or a married male partnered with a full-time parent and homemaker.

The first generation of women who came to the workforce as parents had to do two jobs, as many, many people before me have pointed out. Not only was childcare still seen as women’s natural job, but because of ingrained wage discrimination, it hurt families more in the pocketbook for men to cut back on their work obligations to handle childcare.

You’ve probably heard all the reasons why this was bad for women, and it was, and they realized it quite quickly. Too bad it took such a long time for men to realize that the situation was bad for them as well and always had been.

Attitude adjustments happen.

The necessary flipside of expanding women’s roles in family and the society is expanding men’s roles. Yes, there are women who’d rather work more when the children are young, like Republican vice presidential nominee, Gov. Sarah Palin. There are also men who’d rather spend more time with their families when the children are young, like Democratic vice presidential nominee, Sen. Joe Biden.

Even as late as 2006, a state like California, which has a fairly progressive family leave policy saw relatively few men take advantage of it. The financial responsibilities men continue to be saddled with by cookie cutter gender expectations and wage inequality still leave many men feeling torn between paying the bills and staying away from their partners and new infants during an important and emotionally intense time.

You know how the saying goes. Who wishes on their deathbed that they’d spent more time at the office?

Fortunately for them, and their families, nearly 70 percent of men would consider staying home to be a caregiver if money wasn’t an issue. Those numbers reflect a society where women’s advances give men a greater range of acceptable options, but even though the numbers have increased, only around 330,000 men in the U.S. are stay-at-home dads.

That’s not even one percent of adult American men. I count it as yet another market failure, for there to be such a significant gap between what today’s families want and what they feel they’re able to handle.

And we aren’t talking about wanting extravagant perks out of life, this isn’t a call for free skydiving lessons for everyone. We’re talking about the ability of parents, both birth and adoptive parents, to provide healthy, secure relationships with their children and keep the basic necessities covered at the same time.

This is something fundamental to being human and you don’t need to have kids to appreciate it.

Where are our leaders?

The United States continues to be the only Western nation without paid family leave, with 163 other nations offering paid maternal leave and 45 providing paid leave for fathers.

Current law only forbids employers from treating women worse than men, who are themselves severely penalized if they want to give their families more of their time. Current business culture often looks at leave suspiciously, as a threat, a frivolity and an opportunity for employee cheating.

Both government and business are behind the times. More than that, they’re adding to the strain on families in a hard economy. And if I’ve said it once, I’ll say it a hundred times, you can’t have a healthy economy when your workforce is stretched to the breaking point.

This is a nation that needs, almost all of us, to spend more time with our families.

Meanwhile, our institutions include a business community that prioritizes executive bonuses and congressional pay raises over boosting living wages for typical families. Working and middle class families get squeezed for both money and time, and their basic quality of life suffers.

Even before the current financial crisis, only a third of Americans believed that the future would be better for their children than it was for them. Something has to give. People need some assurance that their children’s lives can be better than their own again, and a good start would be making it easier for families to meet both their caregiving and financial responsibilities. A good start would be paid leave and gracious accomodation for one of the most important family decisions many of us will ever make.

America’s families are the real fundamentals of our economy. Our leaders need to act like it.

About the Author: Natasha Chart has been blogging about the environment, social justice and various other political topics since 2002. She currently writes at MyDD.com and works as an online marketing consultant in Philadelphia.

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Starbucks Brews Challenge for Labor

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Whassup with Starbucks and labor? My research for Wrestling With Starbucks: Conscience, Capital, Cappuccino plunged me below the foam and the fury to discover a company rife with contradictions, and nowhere more clearly than in its dealings with workers.

In contrast to Wal-Mart, Starbucks is considered a leader in socially responsible business practices. It was an early adopter of health care for domestic partners, pioneered benefits for part-timers, has a vividly multiracial workforce (including top officials), emphasizes training, and often promotes from within, although the opportunities are diminishing along with the company’s stock price. In other words, when it comes to how it treats its workers, Starbucks is far better than the miserable norm.

What Wal-Mart and Starbucks share, though is a baseline hourly wage that generally hovers between seven and ten dollars. They also share an antipathy to unions. “We’re not anti-union, we’re pro-partner,” is the official Starbucks mantra; but while there is some validity to the latter assertion, the first part stretches credibility. Over the years, Starbucks has vigorously fought union organizing drives, sometimes to the point of illegality. As Starbucks CEO Howard Schultz wrote in his book, Pour Your Heart Into It (Hyperion, 1997), he wanted Starbucks workers “to believe in their hearts that management trusted them and treated them with respect. I was convinced that under my leadership, employees would come to realize that I would listen to their concerns. If they had faith in me and my motives, they wouldn’t need a union.”

Indeed, it often seems that today’s unions are ill suited to meet the needs of younger workers or the challenges of organizing in the global economy. But as Andy Stern, president of the Service Employees International Union rightly observes, “You look at a guy like Howard Schultz and you say, ‘Okay, you’re a really good employer, but you’re a corporation.’ When does somebody come into Starbucks and say, ‘these 50,000 dollars for manager salaries are too high; and these health care costs are really getting out of control….’ What is it that institutionalizes the good practices so it’s not noblesse oblige?”

What complicates the problem is that workplace democracy—one of the most important values that unions add—is not a money-making proposition. Yet, alongside blunting economic disparity, it is perhaps the foremost reason for unions to exist. For authentic worker issues to be incorporated into the debates over the global economy, not to mention the outcome, workers must have a collective presence of their own, one that transcends the individual workplace and has the potential to encompass the global marketplace. No matter how benevolent Starbucks might be, it’s not going to explicitly argue on behalf of worker concerns. Some of what’s good for General Motors or Starbucks might also benefit employees. But some of what makes life sustainable for workers, be it living wages, or health and safety regulations, can easily be sacrificed to corporate bottom lines unless there is a countervailing demand.

Already, with the plummeting economy, efforts to make Starbucks leaner and meaner are affecting the workforce, as “partners” are feeling more like disposable workers. When I first started my research, an astonishing number of employees gave the company kudos despite its flaws. Today, not so much. Recently, I took copies of my Starbucks book to some of the baristas and store managers I had interviewed. “I don’t know,” one of them told me. “When I started six years ago, this was the best job of its kind. Now it’s all about the money. It’s like nobody cares about us any more.”

That’s a real problem for Starbucks, and for all of us. As long as we mandate the sustainability of capital and leave worker rights to paternalism, our conscience will be at risk.

About the Author: Kim Fellner is the author of Wrestling With Starbucks: Conscience, Capital, Cappuccino (Rutgers University Press, July). She works in the labor movement.

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No Supreme Court Bail-Out for AT&T!

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As federal authorities scramble to rescue the nation’s financial institutions from the consequences of their reckless greed, AT&T seeks a bail-out of its own. In AT&T v. Hulteen, the telecommunications giant asks the United States Supreme Court to rescue it from the consequences of its reckless choice of pregnancy discrimination over basic fairness.

AT&T hopes to piggyback on the Court’s notorious Ledbetter v. Goodyear decision to avoid paying retirees who took pregnancy leave in the 1960’s and 70’s the same pensions as retirees who took disability leave for other reasons.

By now, most everyone in America knows the story of Lilly Ledbetter. In a 5-4 decision the Supreme Court refused to apply the “paycheck” rule previously articulated in Bazemore v. Friday (Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, even if rooted in a practice that pre-dated Title VII.) Instead, it held that because Lilly Ledbetter didn’t challenge the initial decision to pay her less than male supervisors, she is forever barred from challenging ongoing salary discrimination.

Lilly Ledbetter, meet Noreen Hulteen.

Before 1978, it was standard practice in the telecommunications industry to treat pregnant employees differently from employees who were temporarily disabled for other reasons. Company policy forced pregnant women to take “personal” leave while they were still able to work. It did not permit them to accrue “service credit” while on leave, and upon return, credited them with only 30 days of “service” regardless of the actual duration of the leave. Upon return to work, new mothers had their “date of hire” moved forward – as if they had joined the company later than their actual first day of employment. Noreen Hulteen lost 210 days of service credit under this systemic practice.

By contrast, employees temporarily disabled by conditions other than pregnancy continued to accrue service credit while on leave, and retained full seniority when they returned to work. AT&T tracked and perpetuated this disparate treatment by a device known as the adjusted NCS [“net credited service”] date.

In 1978, Congress passed the Pregnancy Discrimination Act (PDA) reaffirming that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

After the PDA went into effect, the company changed its leave policies, treating future pregnancies just like other temporary disabilities. It did not, however, restore the forfeited service credit to women who had been discriminated against in the past. Nor did it discontinue reliance on their discriminatory NCS dates as the basis for distributing benefits such as job bidding, shift preference, layoffs, eligibility for early retirement, and pension levels.

On June 1, 1994, Hulteen retired. She had been continuously employed since January 1, 1964, but AT&T calculated her pension using the “adjusted” NCS date of August 3, 1965. Hulteen filed a timely EEOC charge challenging the pension benefit calculation. The EEOC found reasonable cause to believe that AT&T had engaged in class-wide discrimination.

No one, not even AT&T, can deny that the use of discriminatory NCS dates to reduce the pension benefits of women who were prevented from accruing service credit during their pregnancies is unfair, but is it illegal? Well, it’s not as if AT&T had no clue. Title VII’s prohibition against sex discrimination was enacted in 1964. The EEOC issued guidelines mandating equal treatment of pregnancy “in written and unwritten employment practices involving … the accrual of seniority” in 1972. These were cited with approval by the United States Supreme Court in Nashville Gas Co. v. Satty, striking down a discriminatory leave policy that denied accumulated seniority to employees returning from pregnancy leave. And in 1991, the Ninth Circuit, in Pallas v. Pacific Bell explicitly held that using adjusted NCS dates to calculate retirement eligibility violates Title VII.

Given this history, AT&T’s continued use of tainted NCS dates seems as reckless as the behavior of the players in the mortgage crisis. The twin reeds upon which it attempts to justify its behavior are (1) Treating pregnancy differently than other temporary disabilities was legal before 1979, so it’s still legal to use Hulteen’s adjusted NCS dates to pay her a lesser pension than retirees with the same length of service; (2) Even if it wasn’t legal to use the NCS after 1979, Noreen Hulteen waited too long to complain.

AT&T is counting on the Supreme Court to “do another Ledbetter.” But I am not so sure.

Perhaps chastened by the Congressional and editorial outrage that greeted Ledbetter, the Court will recognize that immunizing systemic violators undermines enforcement of Title VII, reaffirm the principle set forth in Bazemore v. Friday and hold that employers who perpetuate previously accepted discrimination may be held to account for their intransigence.

Or not. AT&T could be in line for a “bail-out,” leaving its retiring mothers to foot the bill.

Come next Labor Day, we’ll know the answer. By all accounts, it’s going to be an interesting year.

About the Author: Charlotte Fishman is a San Francisco employment discrimination attorney, and Executive Director of Pick Up the Pace. She is currently drafting an amicus brief in support of the respondent in AT&T v. Hulteen.

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Return of the Public

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For the past 20-30 years, at least since Ronald Reagan and Margaret Thatcher, the US and other advanced countries have sought to solve economic problems by removing impediments to firms and individuals acting in markets. Collective solutions and collective organizations such as labor unions have been viewed as part of the problem in society rather than as part of the solution. Mrs. Thatcher famously said, “there is no such thing as society.” Globalization has proceeded in much the same manner, with the notion that the correct path has been to deregulate, privatize, and trust that markets will work close to perfect.

This view is no longer sustainable. Markets do many things right, but they also screw up royally. This is most striking today in financial markets with the subprime mortgage crisis. If you are religious, pray for Ben Bernanke and the Federal Reserve who are desperately trying to keep financial markets from making an utter mess of the real economy, as they did in the Great Depression. The issue in finance is no longer deregulation, but getting enough regulations to maintain a stable financial system and making sure when we fix the mess that unregulated markets got us into, we neither reward the “villains,” nor put future market participants into such binds that they cannot do what we as a society want them to do: direct investments to socially useful activities rather than to create Ponzi schemes to enrich themselves.

Financial screw-ups aside, the greatest problems currently facing the world are not problems that competitive markets can solve. There is no way profit-seeking firms will come together collectively to solve global warming and climate change, nor to make sure that the huge demands for natural resources from economic growth now in China and India as well as in the US and other advanced countries do not produce disaster for some countries or persons. Profit-seeking firms have no incentive to deal with the danger of some global pandemic, of protecting us from horrific terrorist biological and nuclear attack. They will not invest in the long-term basic research that might give us alternatives to non-renewable resources or the knowledge to deal with global health problems. The problems of the 21st century are public problems that require an active government and active private non-governmental groups working to resolve.

The only way I can see the US overcoming these problems is for us to move beyond the market triumphalism that followed the collapse of communism toward more cooperative public solutions. Social democrats, progressives, unionists, and yes, conservatives and business groups who want to solve social problems have a great opportunity now to press for a new agenda–for the return of public solutions for public problems. For unions and many on the left, this means moving out of the defensive shell of fending off the attacks of market purists to fighting for expanded collective action to deal with the great problems of our time. For 30 years or more, the world stage tilted in favor of individualistic market solutions. Now the problems demand a tilt the other way. To overcome the great public problems before us, we need more solidarity and cooperative activity, not less. We need to support our public sector workers, not to excoriate government. As Katrina showed, we need effective government, not demoralized, eviscerated government.

Fukuyama saw the end of history just as Mrs. Thatcher saw the end of society. They are wrong. The return of the public means the return to public service. Titans of Wall Street, ideologues of the Washington consensus, wheelers and dealers, your time is past. We have great problems to solve as a nation and as a world. Let’s get to work solving them.

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Workplace Fairness: Hot or Not?

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It is the oldest adage in advertising: sex sells. But when does selling products with sex go too far?

In late August, LUSH Cosmetics led a protest against environmentally damaging product packaging by encouraging shoppers to go “naked” by purchasing products free of packaging. While this is a cute concept for a company whose products traditionally lack the common saran wrap sequence seen with other bath and beauty wares – the company also asked their employees to get naked to promote the cause.

While LUSH makes a compelling case against excess packaging – it contributes to two percent of overall greenhouse gases, plastic uses eight percent of the world’s oil resources, the U.S. consumes 79.6 million tons of packaging each year (over half of which still ends up in landfills) – the company crossed the line when it asked workers to educate others by eliminating their clothing.

The campaign may have made headlines, but did it really advance LUSH’s bottom line?

Another example of a company who got a little overzealous with image based marketing is Abercrombie & Fitch, who decided to promote employees based on their looks.

This story describes how a college student was pulled from a sales position of a Dallas Abercrombie & Fitch store, shoved to the backroom to fold clothes because she received a zero ranking on the district manager’s monthly audit report, which included the question, “Do all female models currently working have beautiful faces?”

According to the story, there were two choices – a ZERO or a FIVE (with the higher number signifying an approval rating for the “models,” which is an Abercrombie & Fitch term for sales representatives). Who knew that one had to participate in a “hot or not” contest just to earn a paycheck? Apparently, it’s part of the Abercrombie & Fitch business plan.

Whether it is discriminating against “ugly” people or selling soap without your skivvies – employers should understand all of the above could violate Equal Employment Opportunity laws.

While I do subscribe to the idea that sex can sell – there is no room within marketing tactics to allow employers to discriminate based on looks.

As someone who grew up with a father who was physically disabled, I learned at a young age that your image can mean a lot. My parents never allowed me to be so naive to think that I wasn’t going to be judged me based on how I looked – they had experience with many first hand misjudgments based on physical appearance. And as a result of being judged by their appearance, my father, in particular, always suggested that I look my best, stay healthy and dress appropriately for every occasion. I always keep his experience in mind when I hear people say that it doesn’t matter what you look like – often, it does. But, when employers make superficial requirements in order to earn paycheck, they walk the fine line between judgmental and breaking the law.

Thus, while it is one thing to understand how to market a product for profit – overselling the “sex” factor can lead to a formalized discrimination claim and probably won’t advance a bottom line or brand loyalty in the long run.

About the Author: Jen Nedeau is the Women’s Rights blogger for Change.org, a new blogger network of progressive causes that will be launching in mid-September 2008. Jen grew up in San Francisco, but left the West Coast to attend The George Washington University, where she obtained a B.A. in Journalism. She once pursued a career in political journalism where she wrote for the Washingtonpost.com and Stateline.org, but now works in marketing. She is a member of Women in Politics and Technology and Women Who Tech, in addition to being on the DC Advisory Board for the New Leaders Council. She currently resides in Washington, DC.

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Barriers to Justice: Examining Equal Pay for Equal Work (Part I)

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SEPTEMBER 23, 2008

[View Hearing Webcast]

Chairman Leahy, members of the Committee, thank you for inviting me to speak at today’s hearing. It is an honor to appear before you today, especially along with a genuine American heroine, Lilly Ledbetter.

My name is Cyrus Mehri. I am a partner at Mehri & Skalet. I have served as co-lead counsel in some of the largest and most sweeping race and gender employment discrimination cases in U.S. history: Roberts v. Texaco Inc. (S.D.N.Y 1997); Ingram v. The Coca-Cola Company (N.D. Ga. 2001); Robinson v. Ford Motor Company (S.D. Ohio 2005); Augst-Johnson v. Morgan Stanley (D.D.C. 2007); and Amochaev v. Smith Barney (N.D. Cal. 2008).

I have spearheaded a pro bono effort that has fundamentally changed the hiring practices of the National Football League for coaches as well as front office and scouting personnel. In addition, in 2004, my firm along with the National Council of Women’s Organizations launched the Women on Wall Street Project that focuses on gender inequities in the financial services industry.

Blessed with courageous and steadfast clients, I am most proud of the groundbreaking programmatic relief in our settlements. Senior management at companies such as Ford and Morgan Stanley, CEOs such as Neville Isdell of Coca Cola, and NFL owners such as Dan Rooney, have all praised the way we have sincerely and effectively brought about change at their organizations.

I am asked today to provide a practitioner’s perspective on employment discrimination claims in our federal courts, including pay discrimination claims. Let me say at the outset, that as a practitioner, I find Lilly Ledbetter’s story to be a compelling example of what is wrong with the system. In her case, the federal courts reached a decision that is entirely out of touch with the American workplace – requiring that she file an EEOC charge based on what she did not know, nor could have reasonably known, at that time regarding pay inequity. Her hard-fought trial victory vanished, and the factual findings of the jurors who heard her evidence firsthand counted for nothing.

Unfortunately, Ms. Ledbetter’s experience in the federal courts is far from isolated. It typifies the uphill battle that American workers face. A new study from Cornell University Law School confirms that thousands of American workers encounter a double standard in the U.S. Appellate Courts. The Cornell data shows that Ms. Ledbetter’s story is just the tip of the iceberg of a far larger systemic problem. After sharing key points from the Cornell study, I will provide real life examples of other “Lilly Ledbetters” who have had their civil rights remedies taken away by out-of-touch federal appellate courts. It is clear to me that to restore a level playing field, this Committee should infuse the federal bench with a dose of reality and appoint federal judges from diverse backgrounds, including those who have substantial experience representing average American workers.

The seminal new study is “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” by Dean Stewart J. Schwab and Kevin M. Clermont, both professors at Cornell Law School. 3 Harv. L. & Pol’y Rev. (forthcoming 2009). Cornell Law School is at the epicenter of scholarship on empirical legal studies and is the home of the peer-reviewed Journal of Empirical Legal Studies. Earlier this month, Cornell Law hosted the Conference on Empirical and Legal Studies, with 350 legal scholars and 120 new papers.

Dean Schwab and Professor Clermont both have sterling credentials. Dean Schwab served as a judicial law clerk for Justice Sandra Day O’Connor and is a law and economics scholar. In addition to teaching and serving as dean, he is a reporter for the Restatement on Employment Law. Professor Clermont is one of the nation’s leading scholars on civil procedure. Their article is to be published in the Harvard Law & Policy Review this winter. A pre-print was released by the American Constitution Society last week as part of a panel discussion moderated by former Sixth Circuit Judge Nathaniel R. Jones. During the panel discussion, Judge Jones declared that the study is a “profoundly important and significant work” that raises issues about the federal courts that “cry out for scrutiny and close examination.” (See the panel slideshow; listen to the panel discussion; questions from the audience. Windows Media Player required)

It is important to note that I am a Cornell Law School alumnus, serve on the law school’s advisory counsel, and have followed the law school’s empirical legal scholarship for several years, particularly as it relates to employment discrimination cases. I was interviewed for the Clermont/Schwab study (see footnote 47) to provide a practitioner’s insight.


Dean Schwab and Professor Clermont used data maintained by the Administrative Office of the United States Courts and assembled by the Federal Judicial Center, to analyze district court and appellate court data for cases identified by civil cover sheet category 442 “Civil Rights: Jobs”. Two-thirds of these cases are Title VII cases. The remainder are other cases involving discrimination in the workplace. They examined the most up-to-date and complete data available, covering the period from 1979 through 2007.

They made three key findings:

1. Double Standard on Appeal

Dean Schwab and Professor Clermont found that when employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. In striking contrast, when employees win at trial, they are reversed 41.10% of the time. Dean Schwab and Professor Clermont summarized:

In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.

They found this anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses:

The vulnerability on appeal of jobs plaintiffs’ relatively few trial victories is more startling in light of the nature of these cases and the applicable standard of review. The bulk of employment discrimination cases turn on intent, and not on disparate impact. The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of the witness at play. When the plaintiff has convinced the factfinder of the defendants’ wrongful intent, that finding should be largely immune from appellate reversal, just as defendant’s trial victories are. Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.

They concluded that:

the anti-plaintiff effect on appeal raises the specter that appellate courts have a double standard for employment discrimination cases, harshly scrutinizing employees’ victories below while gazing benignly at employers’ victories.

The 8.72% reversal rate for employers compared to the 41.10% reversal rate for employees is shocking. From my perspective, a two to one disparity would be troubling, but could have possible explanatory variables such as the resource advantage that typically favors employers. However, an appeal reversal disparity that is five to one is indefensible. It creates a crisis of confidence in the federal courts. Further, it has debilitating consequences for civil rights litigants. This leads to the second important finding.

2. Precipitous Drop in Employment Cases Since 1998

Dean Schwab and Professor Clermont found an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007. Cases are down dramatically, and the data indicate the decline in private enforcement is more pronounced in recent years. Specifically, in absolute terms, the number of such cases fell from 23,721 in 1999 to 18,859 in 2005. They declined even more sharply in the last two years of the data to 15,007 in 2007. Some might say discrimination has gone down; however, statistics from the Equal Employment Opportunity Commission (EEOC) show that EEOC charges have remained steady if not increased from 1997 (80,680 charges) to 2007 (82,792 charges). Thus far in 2008, the EEOC has experienced a 15% rise in charges compared with last year. The rise in EEOC charges suggests that discrimination in the workplace has not decreased. In short, employment discrimination persists, but federal court cases enforcing anti-discrimination laws are down dramatically.

The five to one appeal reversal disparity could have a chilling effect on private Title VII enforcement of Title VII. Dean Schwab and Professor Clermont state:

Discouragement could explain the recent downturn in the number of cases…there could be a growing awareness, especially with the prolonged lack of success on appeal, that employment discrimination plaintiffs have too tough a row to hoe.” It appears that the U.S. Courts of Appeals have become increasingly hostile to workers, and workers are increasingly unable to find counsel ready to take these contingency cases. Wrongdoers in effect go scot-free, while workers expecting a level playing field face heart-breaking defeats.

American workers such as Lilly Ledbetter, having faced an unlevel playing field in the workplace, find an equally unlevel playing field in the courts. No wonder the number of discrimination cases filed in the federal courts is down by an astonishing 37%. The U.S. Courts of Appeals with the most dramatic drops in employment discrimination cases are:

  • 11th Circuit: (FL, GA, AL)
  • 5th Circuit: (LA, MS, TX)
  • 4th Circuit: (MD, VA, NC, SC, WV)
  • 8th Circuit (MO, MN, IA, AR, ND, SD, NE)
  • 6th Circuit: (MI, OH, TN, KY)

3. Troubling Patterns in the Trial Court

Dean Schwab and Professor Clermont’s study also finds that employment discrimination plaintiffs fare significantly worse in judge, or bench, trials than other plaintiffs. The district court judicial disparity is particularly evident when outcomes in judge trials are compared with jury trials. Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53%, a striking disparity.

The three key findings of Dean Schwab and Professor Clermont suggest that American workers are denied a level playing field in the federal courts. Let me next provide a window into the plight of American workers confronting discrimination in the workplace.

[Read Part II]

About the Author: Cyrus Mehri is a founding partner of the law firm Mehri & Skalet, PLLC. Mr. Mehri served as Class Counsel in the two largest race discrimination class actions in history: Roberts v. Texaco Inc. which settled in 1997 for $176 million and Ingram v. The Coca-Cola Company, which settled in 2001 for $192.5 million.  Both settlements include historic programmatic relief, featuring independent Task Forces with sweeping powers to reform key human resources practices such as pay, promotions and evaluations. Trial Lawyers for Public Justice named Mr. Mehri a finalist for “Trial Lawyer of the Year” in 1997 and 2001 for his work on the Texaco and Coca-Cola matters respectively.

In 2002 Mr. Mehri and Johnnie L. Cochran, Jr. released the report, Black Coaches in the National Football League: Superior Performance, Inferior Opportunities.  The report became the catalyst for the NFL’s creation of a Workplace Diversity Committee and the adoption of a comprehensive diversity program.  The NFL now has a record number of African American head coaches. Mr. Mehri graduated from Cornell Law School in 1988, and clerked for the Honorable John T. Nixon, U.S. District Judge for the Middle District of Tennessee. Mr. Mehri is a frequent guest on radio and TV and is guest columnist for Diversity, Inc.

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Barriers to Justice: Examining Equal Pay for Equal Work (Part II)

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SEPTEMBER 23, 2008

[View Hearing Webcast] [Read Part I]


During the last 15 years, I have interviewed hundreds of employees in dozens of companies. Invariably, they contact counsel as a last resort after exhausting all internal channels within a company. One of my clients, Bari-Ellen Roberts, described this in her book, Roberts v. Texaco. Ms. Roberts tried to work with her company to develop “best practices” regarding diversity and discrimination and turned to me only when the head of human resources shut down any constructive discourse. Ms. Roberts’ experience is consistent with my own observations. The vast majority of employees remain extraordinarily loyal to their companies despite significant discrimination in the workplace. Many victims of discrimination do not want to believe they are discriminated against and only reach this sad conclusion reluctantly.

Once employees decide to take action, they typically begin a long hard journey. At the outset, most Title VII plaintiffs have a hard time finding counsel. Civil rights counsel generally take cases on a contingency fee basis since individuals are rarely able to pay costs or fees. Because of the risk involved, counsel carefully vet their cases and tend to take only the strongest of cases. The pre-filing vetting process screens out non-meritorious cases. In short, the private bar serves as the first gatekeeper.

Next, the employee generally starts the pretrial discovery process against a large and often aggressive corporate law firm. The employee turns over documents and is deposed. It becomes an all-consuming process. Often, reliving the discriminatory experience in litigation can be just as painful as the difficult experience in the workplace. Motion practice follows and the District Courts serve as a fierce gatekeeper, tossing out a large segment of cases during pre-trial motions. At trial, employers win about 62.37% of jury trials and 80.38% of bench trials. Most victims of discrimination have the unhappy experience of losing their case prior to or during trial.

Those employees who are victorious at trial have genuine cases that are not frivolous. They have overcome long and extraordinarily difficult odds with able counsel. They have faced a determined and well-financed defendant, followed by intense scrutiny by a district court. After all this, these “victorious” employees face the U.S. Courts of Appeals that reverse their victories an incredible 41.10% of the time. These extreme odds make employers more brazen in the workplace and in the courtroom. Civil rights attorneys are forced to counsel their clients about these sobering realities and the small probability of success for even the most meritorious claims.

If U.S. corporations had 41.10% of their trial victories reversed by the appellate courts there would be a stampede of lobbyists from the Chamber of Commerce crying foul. By contrast, American workers do not ask for much. They merely want each case to be heard by judges who approach all cases with an open-mind, devoid of politics or ideology. They just want a fair shake, not a double standard from our federal courts.

In preparation for this hearing, I asked Terisa Chaw, Executive Director of the National Employment Lawyers Association (NELA), to canvass NELA members for real life examples of appellate reversals of employee trial victories. There was an outpouring of calls and e-mails describing how individuals with powerful evidence of discrimination had their trial victories reversed by the U.S. Courts of Appeals. Many talented attorneys even expressed concerns about whether they could continue their civil rights practices. An email from one attorney, Nancy Richards-Stower, exemplifies the distress echoed by many civil rights practitioners:

I hope the article explains that all that stands between total collapse of federal enforcement and its continuation is the plaintiffs’ bar. I can’t afford to go through federal summary judgment procedures, let alone trial and appeal. When I was young I used to go to federal court for civil rights justice. Now I can’t. Federal courts are hostile towards employee rights.

Let me now turn to three case studies from NELA members illustrating the double standard on appeal shown in the Clermont/Schwab data:

Case Study No. 1: Ledbetter v. Goodyear Tire & Rubber Co.

Many of you have heard about the Supreme Court’s Ledbetter decision, and Ms. Ledbetter who is testifying with me today will surely tell her compelling story. But the Ledbetter decision by the U.S. Court of Appeals for Eleventh Circuit is equally deserving of attention.

For nearly 20 years, Lilly Ledbetter worked at the Goodyear Tire plant in Gadsden, Alabama. She was hired in 1979 as a supervisor. She was one of very few women supervisors. Early on, she endured sexual harassment at the plant, and her boss told her he did not think women should be working there.

Throughout her employment, she received fewer and lower raises than male supervisors. Unfortunately for Ms. Ledbetter, these smaller increases had a cumulative effect: “At the end of 1997, she was still earning $ 3727 per month, less than all fifteen of the other [male] Area Managers in Tire Assembly. The lowest paid male Area Manager was making $ 4286, roughly 15% more than Ledbetter; the highest paid was making $ 5236, roughly 40% more than Ledbetter.” Goodyear had a merit compensation plan where employees’ salaries were reviewed annually by a supervisor who recommended salary increases. Though the record is clear that Ms. Ledbetter’s supervisor reviewed her salary annually from at least 1992 through 1998, no one took steps to bring her salary in line with the men’s.

After she filed a complaint with the EEOC in 1998, Ms. Ledbetter filed a lawsuit in federal court to recover the wages she was unfairly denied throughout her employment. The jury found that she had been given an unequal salary because of her gender and awarded her $223,776 in backpay, plus compensatory and punitive damages.

Goodyear asked the district court to set aside the jury verdict based on a statute of limitations argument. Generally, employees are required to file EEOC charges with the Agency within 180-days of the discrimination. Goodyear argued that it made no discriminatory pay decisions within 180 days of Ms. Ledbetter’s 1998 EEOC charge. The district court disagreed and found that there was sufficient evidence of pay discrimination within the 180-day period because a male supervisor who was paid the same salary as Ms. Ledbetter in 1979 was paid over $12,000 more a year than her in 1998.

The U.S. Court of Appeals for the Eleventh Circuit reversed the jury verdict, holding that Ms. Ledbetter could not recover for pay discrimination throughout her employment because Goodyear’s initial decision to pay her less was not made within 180 days of her EEOC complaint in 1998. This decision effectively barred Ms. Ledbetter from any recovery for any of the years of undetected discrimination in her rate of pay.

Moreover, the Eleventh Circuit’s decision was contrary to the well-established paycheck accrual rule applied by the EEOC and virtually all other U.S. Courts of Appeals. The paycheck accrual rule states that each paycheck founded in discrimination, including past discrimination, triggers a new 180-day period for filing a charge with the EEOC. The paycheck accrual rule enabled employees, who are understandably almost always unaware of salary disparities, to recover for pay discrimination even if the initial discriminatory decision occurred before the 180-day period. Ignoring the concealed nature of pay discrimination, the Eleventh Circuit rejected the paycheck accrual rule, preferring that extreme limits be placed on workers’ ability to recover hard-earned wages. When the Supreme Court affirmed the decision in 2007, it became one of the most controversial in recent Supreme Court history.

The National Women’s Law Center can provide more information on the impact of the Ledbetter Supreme Court decision.

Case Study No. 2: Ash v. Tyson Foods, Inc.

Anthony Ash and John Hithon, both African-Americans, worked as superintendents in the chicken processing plant run by Tyson Foods in Gadsden, Alabama. In their efforts to be promoted to the position of shift supervisor, both were rebuffed in favor of white employees. At trial, a jury heard evidence regarding the racial attitudes of the man who turned them down for promotion, as well as evidence of the relative qualifications of the whites he preferred. The jury concluded that Tyson was guilty of racial discrimination against both Messrs. Ash and Hithon and awarded each of them $250,000 in compensatory damages plus punitive damages.

There was testimony at trial that Thomas Hatley, the plant manager who made the promotion decisions, repeatedly addressed Messrs. Ash and Hithon as “boy.” Plaintiffs testified that they experienced these remarks as demeaning and hostile. Mr. Ash’s wife, present on one occasion, testified that Mr. Hatley laughed off her protest that her husband was a man, not a “boy.” In its closing argument to the jury, Tyson’s attorney conceded that Mr. Hatley’s use of the word “boy” could have racial connotations, but protested that the word was not delivered with that level of venom and hostility” claimed by the plaintiffs and their witnesses. The jury obviously disagreed.

In addition to the evidence of racist attitudes on the part of the decision-maker, plaintiffs offered substantial evidence that tended to show that under Tyson’s own written standards, Messrs. Ash and Hithon were more qualified than the promoted whites. Company policy preferred three to five years of experience, experience on-site at that plant, and longevity with the company. Messrs. Ash and Hithon, who had loyally worked for the company for 13 and 15 years respectively, met these standards, but the promoted whites did not. Moreover, one supervisor only went through the motions – interviewing Mr. Hithon after he had offered the job to a white applicant who had accepted the position.

The district court judge set aside the verdict, finding that there was no credible evidence that the Plaintiffs had superior qualifications and that the use of the word “boy” did not have racial connotations. The Court of Appeals for the Eleventh Circuit affirmed in an unpublished per curiam decision. Ignoring the jury’s contrary conclusion based on trial testimony and the demeanor of witnesses, as well as the concession of Tyson’s counsel, the Court of Appeals found that the decision-maker’s use of the word “boy” could never be evidence of discriminatory intent.

Acknowledging that Plaintiffs had adduced some evidence that their qualifications were superior to those of the successful white candidates, the Court of Appeals concluded that such evidence did not support a jury’s finding of discrimination unless the disparities in qualifications were so great that they “virtually jump off the page and slap you in the face.” The Court of Appeals concluded that the plaintiffs had not met this standard. The Court of Appeals cavalierly decided that the offensive use of the word “boy” could never be evidence of discrimination as a matter of law. The novel “jump off the page” standard the court articulated is patently absurd given that most discrimination is proven through circumstantial evidence.

In a per curiam decision the Supreme Court reversed, concluding that the “slap in the face” standard was “unhelpful” and that the term “boy” could be evidence of discrimination. On remand, however, the Eleventh Circuit has thus far stuck to its guns, purportedly following the Supreme Court’s guidance, but upholding its earlier conclusion that the Plaintiffs had not adduced sufficient proof of superior qualifications, and that the decision-maker’s use of the term “boy” was not evidence of racism.

The experience of Messrs. Ash and Hithon represents a classic example of the all-too-familiar pattern of judicial nullification of the right to a jury trial in discrimination cases. A properly instructed jury concluded that the man who rejected the Plaintiffs’ applications for promotion, in referring to the Plaintiffs as “boys,” exhibited racist tendencies, and that the promotions were awarded to lesser qualified whites. In holding that “boy” could never be construed as a racist remark, and that the jury incorrectly concluded that the promoted whites had fewer qualifications than those of the Plaintiffs, the Court of Appeals second-guessed the better informed factfinder.

For more information about Messrs. Ash and Hithon’s experiences of discrimination in the workplace and in the courts, contact Alicia Haynes of Haynes & Haynes, PC in Birmingham, Alabama who handled this case.

Case Study No. 3 : Septimus v. University of Houston

Susan Septimus worked for the University of Houston as an Assistant General Counsel handling business and transactional matters. In 1998, the University announced an opening for Associate General Counsel. Ms. Septimus informed her supervisor, General Counsel Dennis Duffy, that she was interested in the promotion. Mr. Duffy responded by criticizing her performance and comparing her to a needy former girlfriend. He flatly refused to consider her for the position and shortly thereafter hired an outside male candidate even before the deadline for accepting applications.

Following her denial of promotion, Mr. Duffy regularly verbally insulted Ms. Septimus, intimidated her in front of colleagues and generally created a hostile work environment. Ms. Septimus decided enough was enough and filed a grievance with the University. Six days later, Mr. Duffy retaliated by giving Ms. Septimus a negative performance review. Unbeknownst to Ms. Septimus, Mr. Duffy also brazenly wrote a memo that reflected his plans to retaliate against her for filing the grievance.

The University’s Chancellor hired an outside investigator – a well-known defense attorney – to examine Ms. Septimus’ complaints, as well as complaints of gender discrimination by two other women in the Office of General Counsel. The investigator issued a lengthy report finding that Mr. Duffy had discriminated against Ms. Septimus when he refused to consider her for the promotion, and that he had created a hostile work environment for women in general. Despite the extensive written report, a committee of University administrators concluded that the investigator’s findings of discrimination were unfounded.

Subsequently, Mr. Duffy followed through with his plans to retaliate against Ms. Septimus for filing a grievance. High-level administrators made it difficult for her to succeed in her job. The Chancellor informed Ms. Septimus that she could either stay in the Office of General Counsel and be supervised by her alleged harasser, Mr. Duffy, or transfer to a contract administrator position in a different department that also reported to Mr. Duffy at times.

Caught between a rock and hard place, Ms. Septimus took the contract administrator position. Her new supervisor criticized her work unfairly and forced her to get approval from the Office of General Counsel headed by Mr. Duffy on all legal work. Ultimately, Ms. Septimus could not endure this demeaning treatment and was forced to resign.

Ms. Septimus then exercised her civil rights and took her case to federal court. Though the district court judge summarily dismissed her gender discrimination claims before trial, the jury found in Ms. Septimus’ favor on retaliation and constructive discharge and awarded her $396,000. The Houston newspaper reported that jurors had “harsh words” for the University. One juror was dissatisfied by the employer’s inaction: “‘The University of Houston could have stepped in a lot sooner.’” Another juror was “troubled” that the University attempted to force Ms. Septimus to give up her legal rights before she could transfer to a new position.

The University asked the district court to set aside the jury’s verdict and order a new trial. When the district court did not, the University appealed to the U.S. Court of Appeals for the Fifth Circuit. On appeal, the University argued that the trial judge had used an erroneous jury instruction for the retaliation claim. Even though the University had arguably waived the objection by not raising it at trial, the Fifth Circuit boldly reversed the jury’s decision, holding that the trial court should have instructed the jury to use a “but for” causation standard, instead of the well-established “motivating factor” standard. Under the motivating factor standard, a plaintiff may prove retaliation by showing that retaliation was a “motivating factor” for the employer’s adverse employment decision. The Fifth Circuit decided that victims of retaliation who do not have direct evidence of retaliation must prove that “but for” retaliation they would not have endured an adverse employment action.

This case is an example of an appellate court reaching to overturn a jury’s decision in favor of an employee by shifting the legal standard. Even though the University failed to object to the jury instructions at trial, the Fifth Circuit, nevertheless, found that the use of the phrase “motivating factor,” instead of the nearly impossible “but for” causation standard, in the jury instructions was sufficient to set aside the jury verdict.

The double standard in appellate reversals that Dean Schwab and Professor Clermont uncovered and these examples of the impact of that double standard on real Americans raise significant questions about the federal judicial nomination process.


However discouraging the current state of affairs may seem, there is a clear path to a federal judiciary that would offer a level playing field for American workers. Namely, we need a fundamental shift that dramatically expands the pool of judicial nominees. The next President should seek, and this Committee should insist on, judicial nominees from widely diverse backgrounds. That means not just diversity in terms of race, gender and other personal traits. It means diversity in terms of legal expertise and life experiences.

In order to improve the public’s confidence that workers have a fair chance in court, we need more nominees confirmed to the federal bench who have experience representing ordinary Americans. We should value nominees who have devoted their careers to fighting poverty, expanding rights for children, enforcing civil rights, representing qui tam whistleblowers, helping break down barriers to equal opportunity or fighting for consumers. We should find potential nominees who have devoted their careers to representing ordinary Americans, small businesses and the underdogs of society. Until this major shift occurs, the double standard documented by Dean Schwab and Professor Clermont will persist and imperil civil justice in America.

Thank you.

[Read Part I]

About the Author: Cyrus Mehri is a founding partner of the law firm Mehri & Skalet, PLLC. Mr. Mehri served as Class Counsel in the two largest race discrimination class actions in history: Roberts v. Texaco Inc. which settled in 1997 for $176 million and Ingram v. The Coca-Cola Company, which settled in 2001 for $192.5 million. Both settlements include historic programmatic relief, featuring independent Task Forces with sweeping powers to reform key human resources practices such as pay, promotions and evaluations. Trial Lawyers for Public Justice named Mr. Mehri a finalist for “Trial Lawyer of the Year” in 1997 and 2001 for his work on the Texaco and Coca-Cola matters respectively.

In 2002 Mr. Mehri and Johnnie L. Cochran, Jr. released the report, Black Coaches in the National Football League: Superior Performance, Inferior Opportunities. The report became the catalyst for the NFL’s creation of a Workplace Diversity Committee and the adoption of a comprehensive diversity program. The NFL now has a record number of African American head coaches. Mr. Mehri graduated from Cornell Law School in 1988, and clerked for the Honorable John T. Nixon, U.S. District Judge for the Middle District of Tennessee. Mr. Mehri is a frequent guest on radio and TV and is guest columnist for Diversity, Inc.

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