Gary, Senior Counsel and Co-Chair of Orrick's EEO & OFCCP Compliance Group, is a “zealous and well-connected advocate in the employment law arena” as described in Chambers by clients and peers. He has extensive experience in counseling and litigation defense for clients on equal opportunity, affirmative action (OFCCP) compliance, wrongful discharge, and in working with companies on cross-border employment issues.
Gary has handled numerous class actions, pattern and practice cases and government audits, in court and before the EEOC and Department of Labor. Most recently, Gary served as senior counsel on the Orrick team that obtained a complete dismissal for Oracle in OFCCP v. Oracle, a high-stakes systemic compensation discrimination case that garnered national media attention. Gary and the Orrick team was named "Litigator of the Week" by American Lawyer for their role in the successful defense of Oracle in litigation against the OFCCP. He brings a particularly unique perspective to clients on matters involving the EEOC, having served as regional counsel and senior trial attorney for the U.S. Equal Employment Opportunity Commission in San Francisco prior to joining Orrick.
Gary also has an extensive class actions practice, focusing on litigation, consent decree strategies and preventive advice. He has been designated as an expert or retained as special counsel in several federal court class actions throughout the United States.
Gary’s counseling practice extends beyond the United States and includes assisting U.S. multinational companies in dealing with complex employee issues in foreign jurisdictions
Gary is widely recognized as one the top management employment lawyers in the United States by every major ranking organization, including Chambers USA, the National Law Journal, Best of the Best USA (Euromoney), and Who’s Who Legal. Among management employment lawyers in the United States and Europe, Gary is ranked in the top 10 of Who’s Who international management labor and employment lawyers and is described as “absolutely superb.”
Gary also serves regularly on the NYU faculty for training federal judges on employment law, the OFCCP Institute, PLI International Employment Law and ABA Labor and Employment Law Section programs.
Welcome to the second 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.
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
Last month the Seventh Circuit Court of Appeals reinstated a $3.5 million punitive damages award against an employer for failure to “stiffen its efforts” to respond to an employee’s harassment complaints. See May v. Chrysler Group, LLC, Nos. 11-2012 and 11-3109, U.S. App. LEXIS 17820, at *30 (7th Cir. Aug. 23, 2012). May, who is Cuban Jewish, worked as a pipefitter at a Chrysler assembly plant and was subjected to racist, xenophobic, homophobic, and anti-Semitic graffiti over the course of a three-year period. The harassment involved over 70 incidents of hateful graffiti, death-threat notes left in May’s toolbox, and threatening phone calls. The harassers vandalized May’s car, struck him in the back with a flying object, punctured his bike and car tires several times, poured sugar in his car tank twice, and left at his work station a dead bird wrapped in toilet paper to look like a Ku Klux Klansman. At Chrysler’s request, May identified 19 employees he had reason to suspect, including two employees who had a history of making racist comments, as well as the husband of the human resources supervisor assigned to May’s case. Chrysler did not interview any of the suspects. The only issue at trial and on appeal was whether Chrysler was liable for the hostile work environment to which May had been subjected—that is, whether Chrysler failed to respond “promptly and adequately” in a manner likely to end the harassment.
Chrysler’s response to the harassment included a meeting with the head of HR reminding employees at the plant about Chrysler’s harassment policy, implementation of a protocol for handling incidents of harassment against May, an investigation of who was at the plant at the time of the incidents, and retaining a forensic document examiner. The jury found that Chrysler “did not take steps reasonably intended to stop the harassment” and awarded compensatory damages against Chrysler in the amount of $709,000, as well as punitive damages in the amount of $3.5 million. On a post-trial motion for judgment as a matter of law, the District Court agreed that there was sufficient evidentiary basis for the jury to find the employer liable, particularly in light of the “long period of time” during which May endured the harassment, the fact that Chrysler’s response did not adapt or escalate as the harassment continued, Chrysler’s reliance on the same reactionary response despite its obvious ineffectiveness as a deterrent, and Chrysler’s failure to investigate every incident of harassment. May v. Chrysler Group LLC, No. 02 C 50440, 2011 U.S. Dist. LEXIS 73378, at *11-15 (N.D. Ill. July 7, 2011). The district court nonetheless remitted the compensatory damages award from $709,000 to $300,000 on the ground that there was no rational connection between the award and the evidence since the plaintiff had not presented any evidence of actual damages, such as medical bills, and emotional distress alone did not justify such a high award. Furthermore, the district court vacated the punitive damages award, finding that while Chrysler’s response was potentially “imperfect and somewhat lacking,” it did not reach the level of “callousness and intentional disregard of plaintiff’s right” to support a punitive damages award. READ MORE
Consistent with the mandate under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Treasury Department issued a proposed rule that would require contractors doing business with the agency to confirm their commitment to equal opportunity in employment and contracting. The rule would amend the Department of the Treasury Acquisition Regulation to require any entity entering a contract with the agency to insert a statement in each contract that it has made affirmative efforts to include women and minorities in its workforce. If the contractor in turn enters into a subcontractor arrangement to carry out the government contract, the contractor must include the same provision in any such subcontract that has a monetary value of more than $150,000.
In addition to the specific contractual provisions, the proposed rule would provide the Treasury Department with an opportunity to request information from the contractor to demonstrate that the contractor has made a “good faith effort” to satisfy its commitment to diversity. The proposed regulation explains that the documentation that may be requested to demonstrate this “good faith effort” can include: (1) an EEO-1 report of the contractor’s employees, detailing the number of employees and the number of minority and women employees; (2) a list of subcontract awards under the contract at issue, including the dollar amount of such subcontract award, the date of the award, and the subcontractor’s race, ethnicity and gender; (3) EEO-1 data for subcontractors performing work under the contract; and (4) the contractor’s plan to ensure that minorities and women “have appropriate opportunities to enter and advance within its workforce, including outreach efforts.” Failing to comply with these obligations can result in loss of the contract. READ MORE
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
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.
Last week, Senate Democrats found themselves seven votes short in their most recent effort to pass the Paycheck Fairness Act (“PFA”)—an effort which began in 2005, when Hillary Clinton first introduced the bill. But the Democrats’ continuing effort to paint the issue of equal pay as one of employer bias likely is not over. READ MORE
In Schechner v. KPIX-TV, No. 11–15294, 2012 WL 1922088 (9th Cir. May 29, 2012), the Ninth Circuit Court of Appeals held that a plaintiff may establish a prima facie case of disparate treatment age discrimination using statistical evidence, even where that evidence does not account for a defendant’s legitimate non-discriminatory reasons for the adverse employment action. However, the court found the plaintiffs’ statistical evidence insufficient to demonstrate that the defendant’s proffered reasons for the adverse employment action were pretextual. READ MORE
Following a growing trend among states, Ohio recently introduced legislation to bar employers from requiring current or prospective employees to provide access to their private social media accounts, such as Facebook and Twitter. Although to date Maryland is the only state with a law on the books prohibiting employers from requiring or requesting access to a current or prospective employee’s private social media accounts (Maryland’s law does not go into effect until October 1, 2012), approximately a dozen other states are considering similar legislation, including California, Delaware, Illinois and New York. Click here for a list of the state bills. READ MORE
On Wednesday, April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of criminal conviction and arrest records in employment decisions. The EEOC has had a long-standing policy that, unless job-related and justified by business necessity, a policy or practice of denying employment because an applicant has a criminal record violates Title VII. The new enforcement guidance, however, emphasizes EEOC’s presumption that consideration of a criminal history is unlawful, and undoubtedly illustrates the increased scrutiny under which EEOC will review criminal background check policies. Click here to view the new guidance on the EEOC’s website. READ MORE
