New York City has amended its Administrative Code to create a new protected class of workers. Beginning in June 2013, the New York City Administrative Code will prohibit discrimination based on an individual’s unemployment status. Read More
Tag Archives: Discrimination
Second Circuit Holds No Substantive Right To Bring A Pattern-Or-Practice Title VII Claim
Reversing a denial of a motion to compel arbitration in Parisi et al. v. Goldman, Sachs & Co. et al., the Second Circuit held that a plaintiff does not have a substantive right to bring a pattern and practice claim under Title VII. The plaintiff at issue in Parisi alleged gender discrimination under Title VII, seeking to bring her claims on behalf of herself and a putative class of female Goldman Sachs employees. During her employment, the plaintiff signed a broad arbitration agreement, which covered her discrimination claims and did not contain a provision providing for class-wide arbitration. Read More
California Supreme Court Eliminates Damages in FEHA Discrimination Cases Where Employer Proves Mixed Motive Defense
Earlier this month, the California Supreme Court issued a ruling clarifying details of the “mixed-motive” defense applicable to discrimination claims under the California Fair Employment and Housing Act (“FEHA”). Harris v. City of Santa Monica, Case No. S181004 (Cal. Feb. 7, 2013). The Harris opinion is undoubtedly positive news for employers and provides much-needed guidance to trial courts in California handling mixed-motive cases (i.e., cases where legitimate and illegitimate factors motivated the decision). Read More
California Supreme Court to Clarify Standard of Proof in FEHA Discrimination Cases
Last month, the California Supreme Court heard oral arguments in a case that will clarify the standard of proof required for “mixed-motive” discrimination claims under the California Fair Housing and Employment Act (“FEHA”). Harris v. City of Santa Monica, No. S181004 (Cal. Dec. 4, 2012). In mixed-motive cases, both legitimate and illegitimate factors may have contributed to the employment action. Read More
EEOC Releases Its Strategic Enforcement Plan
On December 17, 2012, the EEOC released its Strategic Enforcement Plan. As previously reported, the EEOC released the draft SEP for public comment on September 4, 2012, with a plan to vote on and implement it by October 1. The more than two month delay suggests that the Commission reviewed the more than 100 comments to the draft and may have also been internally conflicted over portions of the draft (the Commission’s final vote was 3-1). Read More
Discoverability of Social Networking
Two recent employment discrimination cases, though differing in their outcomes, make it clear to litigants that information posted on social networking sites (“SNS”) is fair game.
The court in EEOC v. Original Honeybaked Ham Company equated social networking sites to file folders entitled “Everything About Me.” 2012 WL 5430974, *1 (D. Colo. Nov. 7, 2012) After citing some exemplar entries from a class member’s Facebook account, the court reasoned that “[i]f all of this information was contained on pages filed in the ‘Everything About Me’ folder, it would need to be produced.” Id. at *2. The court’s analysis also included reference to the significant amount in controversy, and the high likelihood that the sites will contain relevant information (a determination made in part based on a review of pages “already obtained [from] one affected former employee[].”). Id. In an attempt to ensure that only relevant, non-privileged material is disclosed, the court established a two-step review process involving the in camera inspection by a special discovery master and subsequent review by plaintiffs’ counsel before production to the defendant. Id. at *3.
The Central District of California, in Mailhoit v. Home Depot U.S.A., Inc., 2012 WL 3939063, *2 (C.D. Cal. Sept. 7, 2012), also determined that “[g]enerally, SNS content is neither privileged nor protected by any right of privacy.” Id. However, while the Mailhoit court expressed its willingness to consider the grant of access to relevant content on plaintiffs’ SNS pages, the court found fault with all but one of defendant’s requests; (the requests were “not reasonably particular; “impermissibly overbroad;” “fail[] for vagueness”). Id. at *3-5.
Sixth Circuit Reverses Cintas Pattern-or-Practice Case
Last week, the Sixth Circuit Court of Appeals reversed summary judgment orders in a Title VII sex discrimination case against Cintas Corporation, holding that the EEOC (the intervening plaintiff) should have been allowed to pursue a pattern-or-practice claim under §706 of Title VII using the analytical framework set forth in Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The decision rejects the notion that the Teamsters framework can only be used in cases brought under § 707 of Title VII, paving the way for the EEOC to pursue pattern-and-practice claims under § 706, which allows for the recovery of punitive and compensatory damages.
In Serrano et al. v. Cintas Corp., the EEOC challenged hiring practices used for women who applied to work as truck-driving sales representatives in Michigan. The district court dismissed the EEOC’s pattern-or-practice claim on the grounds that the agency pled the claim under § 706 rather than § 707, which provides specific authorization for such claims. The district court also granted summary judgment for Cintas on thirteen individual claims that the EEOC had pursued, analyzing them under the McDonnell-Douglas framework. Read More
EEOC Delays Release of Strategic Enforcement Plan, Suggesting Revisions to Draft Plan Likely
On September 4, 2012, the EEOC released for comment its draft Strategic Enforcement Plan (SEP). The EEOC invited the public to comment on the SEP by September 18, 2012, with a plan to vote on the draft at the end of September 2012 and to have the SEP become effective October 1. But that time has now passed with no word from the Commission. This suggests that the Commission is closely evaluating the comments submitted and considering which, if any, to incorporate into the final plan. There may also be disagreement within the Commission over portions of the draft plan. As a result, we do not expect the EEOC to issue the final SEP until mid-October at the earliest. Read More
Collection of Pay Data by Gender, Race and National Origin
On August 15, 2012, a panel commissioned by the Committee on National Statistics (CNSTAT) issued a report concluding that the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor (DOL) should not collect earnings data by gender, race and national origin from private employers until the agencies develop a clearly articulated plan regarding how the data will be used to further their enforcement responsibilities. The panel also made several recommendations to assist the agencies in preparing to collect such data. Read More
Orrick’s Employment Law and Litigation Global Newsletter – Summer 2012
Welcome to the first edition of Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals. We have designed this newsletter to provide our multinational clients with quarterly updates on important employment law issues across the globe.