Tuesday, February 21, 2012

Wisconsin bill limits recovery for victims of discrimination

The Wisconsin legislature has passed a bill that will eliminate the right of victims of discrimination to receive punitive damages or damages for emotional distress. Once the bill is passed into law, a discrimination claim will only allow the recovery of lost wages and attorneys' fees.

This bill will have a devastating effect on the right of workers to be free from discrimination. If an employee can only recover lost wages, then an employee who is discriminated at work – for instance, through sexual harassment or pervasive racial animosity – but has not been fired has no recourse in the law. Such an employee has not lost any wages. I suppose the theory of constructive discharge is still available, but that would force the employee to leave his or her job and hope that the court finds that a constructive discharge occurred.

Saturday, February 18, 2012

Is discrimination based on an unconscious bias illegal? New lawsuit says yes.

In a case pending in Iowa state court, over 6,000 black state residents allege that they were denied employment opportunities by the state government due to an implicit bias in favor of white residents. The case is highly unusual because it does not claim any direct discrimination, indirect discrimination, or that a facially-neutral employment practice has resulted in a discriminatory impact on minorities.  The case, rather, theorizes that the state government can be liable for discrimination based on unconscious bias alone, because such a bias disadvantaged blacks in their opportunities for jobs, promotions, and general advancement. A decision on the state's motion to dismiss is expected in a matter of weeks.

This writer finds this unconscious bias theory both compelling and problematic. It is absolutely true that unconscious prejudices play a role in personnel decisions. Everyone, no matter how "enlightened" or progressive, has biases toward some people or group, both positive and negative. In a state that is 91% white such as Iowa, it is entirely plausible, if not expected, that unconscious bias would adversely effect black residents seeking employment with the government.

But does that mean the group of people against whom such a bias exists should have a cause of action? There are certainly many unconscious biases that infect employment decisions. Creating liability here could compel employers to consciously think about race in order to make sure that they are not unconsciously thinking about race.

Better than penalizing the entire state government for unconscious bias, the law should allow affirmative action programs to rectify such a bias. Unfortunately, the Supreme Court has taken that option away.

Sunday, February 12, 2012

Is terminating an employee who asks to pump breast milk at work gender discrimination? Federal court says no.

A federal judge in Texas has ruled that a company did not discriminate against a new mother who claims she was fired after asking to pump breast milk at work. In the decision issued February 9, 2012, the judge reasoned that “firing someone because of lactation or breast-pumping is not sex discrimination.” This question has never been addressed by an appeals court, according to the Washington Post.

This writer wonders how the prohibition against gender discrimination does not cover an activity as intrinsically - indeed, biologically - female as breast-feeding. I suspect that if men were the ones who breast-fed newborns, employers would keep a ready supply of breast pumps like they do staplers. 

Wednesday, February 8, 2012

Federal appeals court: mixed motive analysis still OK in state age discrimination cases

The First Circuit Court of Appeals found recently that plaintiffs alleging age discrimination under state law do not need to satisfy the more onerous burden of proof established by the Supreme Court for federal age discrimination cases. In Diaz v. Jiten Hotel Management, the Court of Appeals affirmed a jury verdict in favor of a hotel worker on her state law age discrimination claim for which the district court had allowed a "mixed-motive" jury instruction. Proving discrimination based on a "mixed-motive" analysis requires showing that an unlawful consideration – here, age – was a motivating factor in the adverse employment decision. If the plaintiff establishes this, then the defendant must prove that it would have reached the same decision absent the unlawful consideration. The Supreme Court in Gross v. FBL Fin. Services has ruled that a mixed-motive analysis is not permitted under the federal Age Discrimination in Employment Act, meaning that a plaintiff under the federal statute must prove that age was the "but for" cause of the employment action. Under Chapter 151B, the state anti-discrimination statute that covers age discrimination, a mixed-motive analysis is still permitted.