Kentucky Employment Law Blog

Discrimination Based On Advocacy For or Association With Co-Worker

Discrimination against an employee based on his or her advocacy for or association with a co-worker of a different race is a violation of Title VII of the 1964 Civil Rights Act. This is because a white employee discriminated against because of his or her association with an African-American co-worker is discriminated on the basis of his or her race, because the discrimination stems from disapproval of the interracial association and therefore on the employee’s own race. The Sixth Circuit recently held in Barrett v. Whirlpool Corporation, No. 08-5307 (February 23, 2009), that the degree of association or advocacy was immaterial to the employee's claims.  

A violation could be shown if an employee shows that (1) she was discriminated against at work, (2) because she was associated with members of a protected class, regardless of the degree of association. Similarly, the degree of advocacy is irrelevant to such a claim. While the court acknowledged that “as with association, severe or pervasive discriminatory harassment [is] more likely to correlate with more vigorous advocacy, it is unnecessary as long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees."  Furthermore, the court added that in assessing the proof of whether an actionable hostile work environment existed “both types of impermissible harassment are considered in the aggregate to determine whether they were so severe or pervasive as to be actionable under the established hostile work environment standard.” However, the court cautioned that this does not include evidence of incidents of harassment directed at African-Americans but “only harassment that specifically targeted those who associated with and advocated for African-Americans would result in actionable hostile work environment claims for such individuals.”

The court ruled that a jury could find that one plaintiff, Nickens, was subjected to a severe or pervasive hostile work environment based on the following: she received a threat of physical violence for reporting racist language, she was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker, and the same relationship was allegedly used as a reason to prevent her from applying for improved job positions. Furthermore, she had reported nearly all the relevant incidents to one of two supervisors, who failed to take corrective action, while both participating in harassment of her directly. The court took care in this case to specify that a white employee discriminated against because of his or her association with an African-American is discriminated on the basis of his race, because the facts support a finding that the discrimination was based on disapproval of the interracial association and therefore on the employee’s own race.

Robert L. Abell
www.RobertAbellLaw.com

Merrill Lynch Settles Employee ERISA Suit for $75 Million

Merrill Lynch has settled a class action ERISA lawsuit brought by its employees for $75 million according to a Reuters report, "Merrill Lynch Settles Employee Lawsuit for $75 Million." The employees claimed that Merrill Lynch breached its fiduciary duty to the plan by offering its stock as an investment vehicle for the individual employee accounts in the retirement plan at a time when the company's stock was plunging due to its investments in subprime mortgages and other bad debts. Merrill Lynch's stock lost more than 80% of its value from September 30, 2006, to December 31, 2008.

Robert L. Abell
www.RobertAbellLaw.com

Whistleblower To Receive $48.7 Million In Government Contract Fraud Settlement

A whistleblower, who claimed in a suit under the False Claims Act that TRW knowingly sold defective electronic parts to the government for use in spy satellites, will receive $48.7 million as part of a settlement between the Northrup Grumman Corporation, which acquired TRW, and the government according to a report in the Los Angeles Times, "Northrup Grumman - TRW Whistleblower Case Settled." Tthe False Claims Act allows private suits by persons not affiliated with the government to sue government contractors on behalf of the government. Successful claimants may receive 15 - 25% of the total settlement or recovery.

Robert L. Abell
www.RobertAbellLaw.com

"That's the game, baby" Explains Workers' Compensation Insurance Company Expert Witness

In "A World of Hurt: Exams of Injured Workers Fuel Mutual Mistrust" the New York Times today examines the role of "independent medical examiners" hired by workers compensation insurance companies to examine and report on injured workers. One doctor, a prolific "independent medical examiner," explained the difference between his written report stating that the claimant was not injured and videotaped statements while he was actually examining the injured employee as follows: 

"If you did a truly pure report," he said later in an interview, "you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want, or you're in Florida. That's the game, baby."

Fraudulent medical opinions were a focus of a case decided by the Sixth Circuit last year, Brown v. Cassens Transport, which held that a civil RICO claim for money damages may be pursued by injured workers wrongfully denied workers compensation benefits on account of fraudulent medical opinions. Robert L. Abell published an article about the case in The Advocate, the official publication of the Kentucky Justice Association, "Injured Workers May Pursue Civil RICO Claim Based On Enterprise To Deny Them Workers' Compensation Benefits."

Robert L. Abell
www.RobertAbellLaw.com

Nurses File Class Action Suit Seeking Training Time and Missed Meal Break Time Pay

Nurses have filed a class action lawsuit against the Pittsburgh Mercy Health System claiming that they were not paid for training time and work they performed while supposedly on meal breaks the Pittsburgh Post-Gazette reports, "Nurses File Lawsuit Against Mercy Health System."  The nurses claim that they are allotted 30 minutes each shift for a meal break but either are unable to take a meal break or are compelled to work through much of it. They also claim that they were not paid for certain training time. 

The suit appears similar to one filed last November against 2 Syracuse, New York area hospitals as reported in the Kentucky Employment Law Blog, "Interrupted Lunch Breaks Cited In Wage Class Actions."

Employers are not required to pay employees for their meal breaks. Employers are required to pay employees for the time they work. If an employee works through his or her lunch break, they are supposed to be paid. Also, if an employee's lunch break is interrupted by work duties, the employee must be paid according to the U.S. Department of Labor. 

Robert L. Abell

www.RobertAbellLaw.com