Court Denies Motion to Dismiss Gender Stereotyping Case

On Friday, the U.S. Third Circuit Court of Appeals ruled that a gay man claiming that he was harassed at work based on sexual stereotyping may have a jury decide whether the harassment was because of his gender.

Federal law protects workers from discrimination on the basis of gender stereotypes, but it does not currently provide express protection based on sexual orientation.

This case is important because it recognizes that gay workers can be protected by federal law too, in that harassment of gay and straight workers is prohibited if the harassment is based on stereotypes of how they should act or look based on their gender.

"There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not," wrote 3rd Circuit Judge Thomas M. Hardiman.

Paula Reed Ward wrote an excellent article about this case, and you can read more here in the Pittsburgh-Post Gazette.

Severance Agreements: To sign or not?

Many employers offer departing employees money or benefits in exchange for a release or “waiver,” of liability for all claims connected with the employment relationship, including discrimination claims under the civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC).

Employers want to keep from getting sued be departing employees, so these waivers can be very important to them, even if they make it sound like these are "just a few minor papers you need to sign" to close out your job and get a check.

While it is common for senior-level executives to negotiate severance provisions when initially hired, other employees typically are offered severance agreements and asked to sign a waiver at the time of termination.

When presented with a severance agreement, many employees wonder: Is this legal? Should I sign it?

The EEOC has posted some guidance on this issue to help workers recognize some of their rights and potential pitfalls that can arise from signing severance agreements without enough information.

This guidance is only general information, and if your company offers you a severance agreement, you would be well advised to seek legal counsel for your particular situation.

More information about severance agreements is also available on a previous Hot Button post, Severance Agreements: What Workers Should Know.

Source: See the EEOC's Guidance on Understanding Waivers of Discrimination in Employee Severance Agreements.

EEO-1 Reports Due in September

The Employer Information Report EEO-1, otherwise known as the EEO-1 Report, is required to be filed with the U.S. Equal Employment Opportunity Commission's EEO-1 Joint Reporting Committee.

The EEO-1 Report – formally known as the "Employer Information Report" – is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 report is submitted to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).

The filing deadline for the 2009 EEO-1 Survey is September 30, 2009. Notification letters were mailed to employers beginning in July 2009.

According to the US EEOC, the preferred method for completing the 2009 EEO-1 reports is the web-based filing system. Online filing requires you to log into your company's database with a Login ID and Password. All companies should receive 2009 EEO-1 filing materials by mail no later than mid August 2009.

For more information, see the EEOC's EEO-1 FAQ's.

Housekeepers Harassed, EEOC Sues

All workers have the right to work in an environment free of discrimination and daily harassment

said EEOC Regional Attorney Anna Park in connection with the EEOC's lawsuit against Simon Property Group, filed last week.

The EEOC alleges that Simon Property Group subjected a class of Hispanic employees to a hostile work environment while they performed custodial and janitorial duties at the Forum Shops at Caesar Palace in Las Vegas.

The harass­ment began in 2005, when the housekeeping shift lead was hired, and ended when he was terminated for reasons related to the harassment, according to the EEOC.

The housekeeping shift lead referred to housekeepers and other Latino employees as “wetbacks,” “tacos,” and “burritos” and repeatedly told them to “go back to Mexico” – among other things charges the suit.

The EEOC says he also told the Latinos that Mexicans have “inferior intelligence and capability in comparison to whites, and that is why whites are in power."

This alleged conduct violates federal anti-discrimination law, Title VII of the Civil Rights Act of 1964.

Simon Property Group owns and/or manages various shopping malls throughout the country, including the Forum Shops at Caesars Palace in Las Vegas.

The EEOC seeks lost wages, compensatory and punitive damages, and injunctive relief to prevent and correct any future workplace discrimination.

Source: EEOC

Federal Court Picks Announced

Washington, D.C. – Today, U.S. Senators Mark Udall and Michael Bennet announced they have forwarded the names of six Coloradans to President Obama to fill two federal District Court vacancies created by Judge Lewis Babcock’s decision to assume Senior Judge status, and the more recent resignation of Judge Edward Nottingham. The Senators’ letter to President Obama and the list of candidates is below.

The Senators made their decision jointly, and after three days of interviews with prospective nominees. They relied heavily on the advice of a diverse, bipartisan advisory panel made up primarily of lawyers with federal court experience and co-chaired by former Colorado Supreme Court Justice Rebecca Kourlis, and Hal Haddon, a prominent Colorado lawyer.

The Senators’ selection system followed a model endorsed by the American Bar Association and embraced increasingly by Senators from other states around the country. As requested by President Obama, they submitted three names for each vacancy.

“I am proud to forward the names of these six extremely well-qualified Coloradans to serve on the U.S. District Court. Each of these individuals would serve with honor on the bench,” Senator Udall said.

“Federal judges are appointed for life. For that reason, this was an extremely rigorous selection process. And I want to thank our bipartisan advisory panel for their hard work and assistance.”

“I want to thank Senator Udall for his leadership in this judicial selection process and the judicial advisory panel for their expert work and advice,” Senator Bennet said.

“The panel conducted a thorough evaluation of these outstanding candidates. Each of these individuals is well-qualified and would serve with distinction on the District Court.”

The Senators’ letter to President Obama follows:

The Honorable Barack Obama President The White House 1600 Pennsylvania Avenue, N.W. Washington. D.C. 20500

Dear Mr. President:

We appreciate this opportunity to send you the names of six distinguished Coloradans for your favorable consideration to fill two Article III judicial vacancies in the U.S. District Court for Colorado.

Over the last few months, we have listened to, and met with, a number of very qualified and experienced Coloradans in an effort to send you a group of exceptional people who are not only well-qualified to serve as federal trial court judges, but who also have the qualities of intellectual depth, judicial temperament and life experience to make significant contributions to the administration of justice in our federal court. In making the following recommendations, we have not only relied on our own impressions of the applicants, we also relied upon the considered advice and judgment of a diverse, bipartisan advisory panel we convened for this purpose in April.

We also met jointly with the individuals we have recommended and are confident that each of them is superbly qualified to serve with honor and distinction on the federal bench.

For the vacancies created by Judge Lewis Babcock’s decision to assume Senior Judge status and Judge Edward Nottingham’s resignation, we recommend:

Christina Habas – Judge, 2nd Judicial District, State of Colorado; former partner, Bruno, Bruno & Colin, P.C., Denver; former partner and associate, Watson, Nathan & Bremer, P.C., Denver.

Morris Ben Hoffman – Judge, 2nd Judicial District, State of Colorado; former partner, Mosley, Wells, Johnson & Ruttum, P.C., Denver.

Richard Brooke Jackson – Chief Judge, 1st Judicial District, State of Colorado; former partner, Holland & Hart LLC, Denver.

William Martinez – Partner at McNamara, Roseman, Martinez & Kazmierski, LLP, Denver; former Regional Attorney, U.S. Equal Employment Opportunity Commission, Denver District Office.

Lael Montgomery – Judge, 20th Judicial District, State of Colorado; former County Judge, Boulder County, Colorado; former Deputy District Attorney, 20th Judicial District.

John F. Walsh – Partner at Hill & Robbins, P.C. in Denver; former partner in the Denver office of Holland & Hart, LLP; former Assistant United States Attorney, Central District of California, Los Angeles.

We had the opportunity to meet a number of remarkable and dedicated individuals during the review process for these two vacancies. While there were many talented people to recommend, we believe these names will give you a professionally diverse and well-qualified set of potential nominees to choose from.

With warm regards and respectfully submitted,

Mark E. Udall

Michael Bennet

cc: Senator Patrick Leahy, Chairman, U.S. Senate Judiciary Committee Senator Orin Hatch, Ranking Member, U.S. Senate Judiciary Committee White House Counsel Greg Craig

Source: Sen. Udall

Country club sued harassed workers

A country club charged with severe sexual harassment and racial discrimination responded by wrongfully suing the harassed workers!

“This serious and ongoing harassment of women was unconscionable enough. Then these defendants made a bad situation worse by punishing the victims for engaging in protected activity,” said EEOC Acting Chairman Stuart J. Ishimaru.

“This kind of retaliation is plainly illegal, even if it is cleverly disguised as a supposedly legitimate lawsuit.” he added.

The country club will pay up to $690,000 to settle two lawsuits, charging sex and race discrimination and retaliation, brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced last week.

Federal District Judge Rebecca Pallmeyer has entered a consent decree resolving the two lawsuits against Chateau Del Mar, Inc. and Hickory Properties, Inc., known as Hickory Hills Country Club. Under the decree, the defendants are required pay $590,000, including attorneys’ fees, to a class of women who endured a sexually hostile work environment and retaliation, and, in addition, up to another $100,000 to African American applicants who were denied hire because of their race.

In the government’s first suit, filed on March 25, 2008 under Title VII of the Civil Rights Act of 1964, the EEOC alleged that the principal and manager of the facility sexually harassed a class of women employees over a period of years and refused to hire African American applicants.

Female employees were called derogatory names and belittled as well as enduring sexual advances and, in some instances, physical assaults, the EEOC said.

Shortly after three of the women filed their own private federal lawsuit for sex discrimination on October 24, 2007 (captioned Curry, Knable, & Raddatz v. Chateau Del Mar, Inc., Steven Gianakas, and Hickory Properties, Inc., No. 07 C 6021), Chateau Del Mar and Steven Gianakas sued them in Illinois state court.

The country club's seven-count complaint against the women alleged a wide variety of claimed wrongs, including, but not limited to, physical and mental injuries, “tripping and pushing Gianakas,” breach of fiduciary duty, and destroying property. (Chateau Del Mar and Steven P. Gianakas v. Knable, et al, Circuit Court of Cook County No. 2007L012463.)

The circuit court of Cook County dismissed the lawsuit Chateau Del Mar and Gianakas had filed against the women.

Then the EEOC filed a second lawsuit on against Chateau Del Mar for retaliation, and three individual private plaintiffs joined EEOC’s retaliation case.

The judge signed a consent decree to resolve both the discrimination and retaliation cases on June 16.

In addition to providing for monetary relief to victims, the decree will prohibit Chateau Del Mar and Hickory Hills from engaging in sex or race discrimination or retaliation, and require that they hire an independent monitor to accept and investigate charges of discrimination and train all of their employees on federal anti-discrimination laws.

Further, Chateau Del Mar and Hickory Hills will be required to place an advertisement in the Southtown Star newspaper seeking job applicants who were rejected based on their race from March 6, 2005 to the present. EEOC will determine who is eligible for relief.

“These defendants have marketed themselves as a venue for family celebrations such as weddings and receptions and have enjoyed considerable patronage from the African American community,” said John Hendrickson, regional attorney of the EEOC’s Chicago District Office.

“So the instances of discrimination in this case were particularly troubling. But we are cautiously optimistic that the consent decree spells the beginning of the end of on-the-job sex and race discrimination at Chateau Del Mar and Hickory Hills.”

EEOC Supervisory Trial Attorney Diane Smason, who with Trial Attorney June Calhoun litigated the case, said,

“The decree itself provides for monetary relief for victims of sex discrimination, and we now look forward to delivering appropriate compensation to individuals who come forward and identify themselves as victims of race discrimination.”

The cases were filed in the U.S. District Court for the Northern District of Illinois and are captioned EEOC v. Chateau Del Mar, Inc. and Hickory Properties, Inc., No. 08 C 1720, and EEOC, Curry, Knable & Raddatz v. Chateau Del Mar, Inc., No. 08 C 5388.

The individual plaintiffs were represented by Timothy Nolan of the Nolan Law Office.

Chateau Del Mar and Hickory Hills Country Club are part of the Hickory Hills Resort, which also includes Condessa Del Mar, another banquet facility in Alsip, Ill., and PGN Fun, a miniature golf course and arcade, also in Hickory Hills.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

Source: The U.S. Equal Employment Opportunity Commission

Judge Sotomayor Nominated for US Supreme Court

Here's an e-mail I received from President Obama today (I know lots of people got it, but it's still fun to say) . . .

introducing Judge Sonia Sotomayor, his nominee for the United States Supreme Court:

"Kim --I am proud to announce my nominee for the next Justice of the United States Supreme Court: Judge Sonia Sotomayor.This decision affects us all -- and so it must involve us all. I've recorded a special message to personally introduce Judge Sotomayor and explain why I'm so confident she will make an excellent Justice.

Please watch the video, and then pass this note on to friends and family to include them in this historic moment.

Judge Sotomayor has lived the America Dream. Born and raised in a South Bronx housing project, she distinguished herself in academia and then as a hard-charging New York District Attorney. Judge Sotomayor has gone on to earn bipartisan acclaim as one of America's finest legal minds.

As a Supreme Court Justice, she would bring more federal judicial experience to the Supreme Court than any Justice in 100 years. Judge Sotomayor would show fidelity to our Constitution and draw on a common-sense understanding of how the law affects our day-to-day lives.

A nomination for a lifetime appointment to the highest court in the land is one of the most important decisions a President can make. And the discussions that follow will be among the most important we have as a nation.

You can begin the conversation today by watching this special message and then passing it on:http://my.barackobama.com/SupremeCourt

Thank you,

President Barack Obama."

A more detailed bio from the White House is available here:

I can't wait to learn more about Judge Sotomayor. Watch for future blog posts!