Effective July 1, 2011, all cases before the Connecticut Commission on Human Rights and Opportunities Office of Public Hearing were suspended, see pdf, as the Governor failed to appoint new referees for the term beginning July 1, 2011. To date, new referees have yet to be appointed. This all comes as a result of Connecticut’s current budget crisis. At this time it remains to be seen if, and when, new referees will be appointed and public hearing proceedings will be recommenced. Stay tuned for updates.
On Monday, the United States Supreme Court issued its much anticipated decision in Wal-Mart v. Dukes. As expected, the decision was a victory for the retail giant. The Court denied the plaintiffs the right to proceed as a class on the grounds that the class failed to meet the commonality requirement, since the action was based on literally thousands of individual employment decisions made over a number of years at various locations throughout the country, rather than upon a single, unifying policy. As such, the decision is likely to have somewhat of a chilling effect on class action discrimination litigation—no doubt a victory for employers.
I had the fortunate opportunity to speak on Wednesday with Mike Devlin to a group of in-house counsel at the Connecticut Law Tribune’s Annual In-House Counsel CLE Lecture. The topic of discussion was recent employment law developments. Topics included the Supreme Court’s decision in Wal-Mart v. Dukes, NLRB trends under the Obama administration, the new paid sick leave law, the Genetic Information Nondiscrimination Act and the new gender identity and expression legislation. The lecture was well attended and we had the opportunity to engage in a very interesting dialogue.
In addition to the paid sick leave law which we’ve been closing following as its made its way through the General Assembly, a new law affecting employers which will make “gender identity or expression” a new protected category passed the General Assembly this weekend and is heading to the Governor’s desk. Few employers will be exempt from the coverage of the bill, as it applies to all employers with three or more employees, with the exception of certain religious entities. The Act defines gender identity and expression as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.” While the verbiage is both wordy and somewhat confusing, the bill is intended to protect those who identify as transgender.
The law on this subject has been somewhat unclear for several years. While the Connecticut Fair Employment Practices Act and Title VII have prohibited discrimination in the terms and conditions of employment based on one’s gender or sex, whether or not those provisions afforded protection to transgender individuals has been hotly contested and debated. The new law, if signed, will no doubt put the debate to rest. Moreover, the bill itself was hotly contested and debated, as evidenced by the 20-16 vote in the Senate.
Assuming Governor Malloy signs, as expected, the bill will become law on October 1, 2011, giving employers just a few short months to update their policies, procedures and postings.
All eyes are on the United States Supreme Court in a case that involves millions of female employees facing off against the nation’s largest retailer. The United States Supreme Court heard arguments in March on the most closely watched case before it this year, and the largest employment class action in history, Wal-Mart Stores, Inc. v. Dukes. Betty Dukes, along with several other current and former employees of the superstore, filed an action in the District Court for the Northern District of California in 2001 alleging that the chain engaged in discriminatory pay and promotion practices adversely affecting women. They sought money damages, as well as an injunction ordering Wal-Mart to cease and desist such practices. A class was certified including between 500,000 and 1.5 million current and former employees, making it one of the largest class actions in United States history. The class includes all women who have worked for the retail giant since 1998. It was certified by the District Court and upheld by the en banc Ninth Circuit.
Specifically, the plaintiffs allege that women employed in Wal-Mart stores are paid less than their male counterparts holding comparable positions, and despite having higher performance ratings and greater seniority. Additionally, they claim that women receive fewer, and wait longer for, promotions to management-level positions. In seeking class certification, the plaintiffs claimed that the retailer’s internal structure promotes discrimination and stereotyping on the basis of sex, that such practices are consistent throughout Wal-Mart’s national sphere and that this discrimination affects all women who have ever been employed by the retail giant. The effect, they claim, is that company-wide men are paid on average five to fifteen percent more than women, or an average of approximately five-thousand dollars more per year.
For its part, Wal-Mart contends that the case has grave procedural flaws. It asserts that the named plaintiffs have little in common with one another, let alone the remaining million plus women who make up the class. It further contends that there is no statistical difference in pay between men and women at ninety percent of its stores, where the plaintiffs claim the relevant employment related decisions are actually made.
Despite the extensive media hype the case has received, the Court will not decide whether Wal-Mart is guilty of discrimination. Rather, the Court must decide whether the small group of plaintiffs has satisfied federal class-action rules. To be certified, a class must meet various requirements. Namely, it must show that joinder of all class members would be impracticable, that class members share common questions of law or fact, that claims or defenses of the representative parties are typical of the claims and defenses of the class, and that the representative parties will fairly and adequately protect the interests of the class.
In addition to meeting these requirements, the class may be certified only if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief…is appropriate respecting the class as a whole.” Class certification under this provision does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages. That raises considerable problems for this class because, in addition to seeking injunctive and declaratory relief, the class also sought potentially billions of dollars in back pay. The Ninth Circuit, however, affirmed the class based upon its application of a new multi-factor predominance test which considers several factors to determine whether monetary damages “predominate” over the injunctive relief.
Corporate America and its counsel will, no doubt, be on the edge of their seats until the Court reaches a decision, which is expected by the end of June.
On October 1, 2010, a new Connecticut law went into effect which provides additional employment protections to victims of family violence and an allowance of leave time for employees dealing with issues relating to family violence. Before October 1, 2010, Connecticut law prohibited employers from terminating, penalizing, threatening, or otherwise coercing employees with respect to their employment because they had a restraining or protective order issued on their behalf, were subpoenaed in a criminal proceeding, or were a crime victim attending a court proceeding or participating in a criminal investigation.
The new law extends this prohibition to include employees who are victims of family violence and employees who attend or participate in civil proceedings related to cases in which they are victims of family violence. Under the new law, Connecticut employers will be required to provide time off to family violence victims that reasonably need to: (1) seek medical care or counseling for physical or psychological injuries or disabilities; (2) obtain services from a victim services organization; (3) relocate because of family violence; or (4) participate in any civil or criminal proceeding related to or resulting from family violence. The new leave requirement applies only to employers that have a minimum of three employees and is capped at twelve days of unpaid leave per calendar year. Employers are permitted to provide this benefit in the form of paid leave, but the law does not require them to do so. Employees are required to provide seven days’ notice for foreseeable absences and sign a written statement certifying that the leave is being taken for a purpose authorized under the statute. Employers may request a police or court record or a signed written statement from a licensed professional or victim services organization certifying that the employee is a victim of family violence.
In the wake of this new legislation, it is imperative that Connecticut employers begin reviewing their leave policies to ensure that they comply with the new law. This may require revising employee handbooks and manuals, as well as promulgating new policies that explain the circumstances under which an employee will be granted time off to handle issues stemming from family violence.
In 2010, retaliation surpassed race for the first time ever as the most frequently filed charge with the United States Equal Employment Opportunity Commission (EEOC). This is of great concern, given that retaliation is often far easier to prove than discrimination, and given that there has been a national trend of high damage awards issued by juries in retaliation cases. Of even greater concern is a decision issued by the United States Supreme Court on January 24, 2011. In Thompson v. North American Stainless, Thompson alleged that he was terminated in retaliation for his fiancée’s EEOC charge, while the employer contended that performance-based reasons supported his termination. The Court held that Title VII’s anti-retaliation provision provides a cause of action to any individual with an interest “arguably sought to be protected” by Title VII of the Civil Rights Act of 1964. The Court’s decision opens the door to third-party Title VII retaliation claims by a wide, but undefined, range of employees who have never engaged in protected activity. The Court held that Title VII’s anti-retaliation provision is broader in coverage than Title VII’s provision regarding discrimination and adopted a “zone of interests” standard for determining who is “aggrieved” under the statute. The Thompson ruling will likely facilitate the filing of a new genus of retaliation claims. Employers are advised to review the language in their non-retaliation policies to make certain it can be construed broadly enough to prevent retaliation against third-parties.