Imagine having an employee who, every so often, jumps on top of his desk and
simulates lewd acts toward the only female employee in the room.
And another who talks about sexual acts to that employee, after making jokes about her age and intelligence.
One woman – a wife and mother of three – dealt with this alleged harassment until she felt she had no option but to quit – and sue her employer.
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In this case, the Pennsylvania Supreme Court is still trying to answer whether sexual harassment so severe that it forces an employee to resign should be treated the same as if that employee were fired based on sexual discrimination. Under Title VII of the Federal Laws, it is illegal to fire someone based on gender.
This example was one of the cases discussed by a panel of area attorneys at the Employment Discrimination Update 2004 of the Rhode Island Bar Association’s annual meeting, held at the Rhode Island Convention Center on June 11.
Richard M. Peirce of Roberts, Carroll, Feldstein & Peirce moderated, and attorneys Michael Yelnosky, Rosemary Healey, and Jay Goodman, professor of political science at Wheaton College, presented and discussed current cases.
Discrimination law includes federal and state statutes and municipal ordinances. The federal laws include Title VII of the Civil Rights Act of 1964, the 1991 Civil Rights Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and other orders.
Even with the laws to protect employee rights, most employee-driven discrimination lawsuits are difficult to prove, said Yelnosky, professor of law and associate dean at Roger Williams Law School.
“The days of having the smoking gun evidence are over. More cases are based on inferential evidence,” he said. “Depending on who you ask, that could be because employers are more sophisticated when it comes to their business practices, or, if they behave in a sinister manner, they know not to document the information.”
Employees who sue their employers for discrimination do worse than defendants when they appeal their case, studies show. The differential between plaintiff and defendant success rates is greater in employment discrimination cases than any other category of civil cases, the study, Double Standard on Appeal: An Empirical Analysis of Employment Discrimination Cases in the U.S. Courts of Appeals found.
When an employer wins at trial and the case is reviewed on appeal, just 5.8 percent of those judgments are reversed, but when an employment discrimination plaintiff wins at trial and the case is reviewed on appeal, 43.61 percent of those judgments are reversed, the study found.
In Rhode Island, there haven’t been discrimination decisions this past year, said panelist Healey, legal counsel to the Warwick School Department.
Healey presented the room of Rhode Island attorneys with a case heard by the Rhode Island District Court in early 2003, in which an employee sued her employer for discrimination practices. She said she was passed up for promotions, which were given to “less-qualified” male employees, but the court ruled she did not prove her qualifications were superior to the employees who received promotions.
“It’s an uphill battle for an employee trying to prove they are more qualified than another employee, because the employee has to prove their qualifications with test results – and hardly anyone takes a test to be promoted,” Healey said.
More recently, the U.S. Supreme Court had to decide this year whether age discrimination works both ways.
General Dynamics Land Systems was sued by an employee because it attempted to save money by offering collective bargaining agreements, but only offering employees over 50 years old the health benefits.
The court’s decision favored the employer, saying reverse age discrimination is not grounds for action.
The panel also presented cases involving disability discrimination, Tennessee v. Lane, and an employee who was fired for drug addiction, and was denied the job after he was rehabilitated, Raytheon v. Hernandez. People who have been rehabilitated from drug and alcohol addiction are considered disabled under the law.
