Working Mothers: Rejoice

The First Circuit emphatically supported working mothers today in Chadwick v. Wellpoint, Inc., No. 08-1685. The plaintiff was passed over for promotion and she sued her employer. The trial court dismissed her suit even though she alleged that when her boss explained why she hadn't gotten the promotion, she said "It's nothing you did or didn't do. It was just that you're going to school, you have the kids* and you just have a lot on your plate right now."

The First Circuit reversed, and Judge Stahl was quite clear as to why the Court ruled as it did. And he found the point important enough that he repeated it over and over:

• On pp. 9-10: "[T]he assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and that adverse job actions on that basis constitute sex discrimination."
• On p. 11: "[U]nlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities."
• On p. 11: "[A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities."

It's honestly a little bit surprising that the defendants moved for summary judgment on this record. Though I suppose they can take some cosmic solace in the fact that there was at least one judge out there who thought they should win without a trial.

*The plaintiff has four of them, including triplets. After learning about the triplets, one of her superiors e-mailed her and said "Bless you." Here's what the First Circuit made of that (footnote 10): "The district court erred by concluding that the 'Bless you' comment was was conclusively a 'friendly exclamation.' This is a factual conclusion that a judge at summary judgment is not free to make."

Decisionism Sees Moxie And Confusion Everywhere

There is an absolute privilege protecting statements made in connection with pending good faith litigation. This applies to statements made before the plaintiff even files her lawsuit. It applies to slander claims, yes, but also other claims (like tortious interference) that are based on the supposedly slanderous statements.

This is the basis for the Appeals Court's decision today in Visnick v. Caulfield, No. 07-P-1648.

The defendant claimed that the plaintiff sexually harassed her during a job interview at the Cambridge Center Marriott. She sent Marriott a letter and then filed a discrimination charge with the EEOC in May 2005. The defendant (who was confusingly the claimant in the EEOC proceeding) settled with Marriott at some point thereafter, probably based at least in part on the fact that Marriott had terminated the plaintiff (who doesn't seem to have been a party to the EEOC charge) a couple of months earlier.

The plaintiff responded by filing a lawsuit against the defendant (the woman who complained that he had sexually harassed her; is this too confusing?). Which is how the whole absolute privilege issue enters the mix and how the plaintiff loses this case.

One slightly frustrating aspect of this opinion is that it doesn't explain its conclusion that the defendant was clearly acting in good faith when she filed her EEOC charge. That's a tough issue to decide on summary judgment, and the Appeals Court gives us no sense of how it arrived at its conclusion. If a reasonable juror could have concluded that she wasn't acting in good faith, that ought to change things. So: NEI.*

FINALLY: None of this is to say that it isn't objectively, er, problematic to file a slander lawsuit against someone who accuses you of sexual harassment and gets you fired. Because it is.

*Not Enough Information. Sort of the opposite of TMI.

Elections Do Matter

A couple of years ago, the Supreme Court held that the 180-day limitations period for pay discrimination claims ran from the date that the employee receives her paycheck. This was true whether or not the employee knew that she was being paid less than her male counterparts. The case was Ledbetter v. Goodyear Tire & Rubber Co. Orin Kerr thinks it was a close call.

Justice Ginsburg dissented at the time and didn't think it was such a close call. Toward the end of her dissent, she wrote: "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad purpose. Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII."

That is exactly what happened today. Congress didn't just reverse the holding of the Ledbetter case, it kicked the case where it hurts. The law applies to all cases filed since the day before the Court decided Ledbetter. And in one of the whereas clauses, Congress states that the decision "ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended."

Does Johnny Damon Wish He Worked At Jiffy Lube?

Back when George Steinbrenner was Yankee overlord, he had this facial hair/hair length rule. No beards. No long hair. Whether the rule survives Steinbrenner's recently confirmed departure from the scene remains an open question.

What we learn from Brown v. F.L. Roberts & Co., Inc., No. SJC-10155, however, is that if Steinbrenner ran a Jiffy Lube in Hadley, his long/facial hair rule might cause him some legal problems with Rastafarians.

But then if Steinbrenner was Jiffy Lube overlord, a lot of us (as opposed to just Rastafarians) would think that Jiffy Lube was evil. Which would be bad for business.

Decisionism Eats Some Crow

If you had predicted that this Supreme Court, this nine, would adopt an expansive view of permissible employment discrimination claims, Decisionism would have mocked you to no end. And yet that's exactly what happened today in two cases, Gomez-Perez v. Potter, No. 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.

Justice Thomas dissented in both cases -- not a big shock -- but his dissent in the Humphries case does provide us with one of the most curiously reasoned passages by any justice in recent memory:

Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather it is the result of his conduct.

The italics, well, those are all Justice Thomas. Screwing around with this passage is unnecessary. It barks for itself.

Not Hiding/Hiding The Ball

The First Circuit occasionally tips its hand and lets you know what it's going to do in the very first sentence of an opinion. Such is the case in Ramos-Santiago v. UPS, First Cir. No. 07-1024. The Court begins today's decision by noting the the plaintiff in this employment case "was a driver with the United Parcel Service when he failed to deliver thirty-seven packages over the span of two business days in 2003."

Weird unexplained twist: all 37 packages were addressed to a single recipient. The plaintiff apparently delivered all of his other packages without a problem on the dates in question.

SJC: You Can't Win If You Don't Play (Thank Goodness . . .)

The Widget:

Court: SJC
Judge: Greany
Subject: Employment discrimination
Tone: Unremarkable
Importance: 4.2

Does an employer discriminate against someone it doesn't hire who missed an application deadline and, in fact, didn’t even apply for a job? In Nguyen v. William Joiner Ctr. for the Study of War and Social Consequences, SJC No. 09848, the SJC says no.

That a case like this one can make its way all the way to any high court in the Union (let alone get filed in the first place) buttresses the argument of those who say there are too many lawyers and too many lawsuits.

UPDATE: Spelling of the Joiner Center is corrected above. William Joiner is apparently not related to Wally Joyner, which is too bad for both of them. But this raises another question: what does a "Center for the Study of War and Social Consequences" study? War's social consequences? Or war, in general, and social consequences, in general? Consequences of what? The Center's website doesn't provide much assistance: "It provides educational and other services to veterans, conducts research and makes policy recommendations on issues relating to veterans, and encourages teaching and scholarship on the Vietnam War and social consequences."

Christmas May Have Come Early For Employment Lawyers

Did the First Circuit just dramatically change the landscape of employment law? It may not have been trying to do so. But it says in footnote seven of Skirchak et al. v. Dynamics Research Corp., 1st Cir. No. 06-2136, that “Massachusetts law imposes a covenant of good faith and fair dealing in employment contracts.” And that sentence qualifies the previous one in which the First Circuit intimates that an employer may not “impose any term of employment in any manner it chooses.”

The status of the covenant of good faith and fair dealing in the at-will employment context is a bit more unsettled than all that. Some would argue that it doesn’t apply unless the employer has cheated the employee out of an already-earned bonus or commission. In the at-will context, with important exceptions for rights protected by statute, an employer most assuredly can impose any term of employment in any manner that it chooses. Because if the employee doesn’t like it, she has an easy way of elucidating her displeasure. She can quit and find another job.*

Now, though, the First Circuit seems to be saying that she also might be able to sue for breach of the covenant of good faith and fair dealing.

*As stated in an earlier post, the wisdom of this depends on where you sit.

There But For The Grace Of God . . .

The next time you make a mistake, and there will be a next time, take some solace in the fact that you didn’t blow the appeal deadline on a $2.5 million judgment against one of your clients. Relying upon a tortured theory involving a motion for reconsideration, and quite possibly a judicious sense of charity, the Appeals Court was gracious enough to knock $250,000.00 off of the judgment in this case.

Now, the case did involve what appears to be a clear violation of the maternity leave statute by the defendant employer, so the blown deadline may have been the work of karmic forces that we must respect but will never understand.

The Mass Pike Might Want To Revisit Its Budget Numbers

Most adults have jobs, and this is a good thing. Most employers, on other hand, think they can fire their non-union, non-contract employees at any time for any nondiscriminatory reason, freely alter plans for bonus compensation and sick leave, and the like. And they’re usually right about this.*

Today, however, the Appeals Court in LeMaitre v. Massachusetts Tpk. Auth, Mass. App. Ct. No. 06-P-0455, held that a personnel manual can give an employee a contractual right to get paid for sick leave. And this isn’t the first such case – legal authority on this question goes back quite a ways. You’d think employers in Massachusetts would have quit issuing personnel manuals a while ago, right? Not the Mass Pike.

Think about the number of Pike employees who will take advantage of this decision for their own benefit. This case might be a bigger deal that one engineer's sick pay.

* Whether you think this is a good thing depends on where you sit.