Okay, this article has nothing to do with Dr. Laura Schlessinger and her “rant” in which she used the N-word repeatedly on her radio program when responding to an African-American caller. But the ensuing controversy (see articles for and against Dr. Laura), and her decision to end her long-running radio program, highlight the extraordinary significance of the N-word term in American society.
The West Virginia Supreme Court recently dealt with the N-word in a case that highlights the great risks for employers when that word enters the workplace.
In PAR Electrical Contractors, Inc. v. Bevelle , — W. Va. –, — S.E.2d –, 2010 WL 2244096 (June 3, 2010) (per curiam), the West Virginia Supreme Court dealt with a claim of a racially based hostile work environment under the West Virginia Human Rights Act, and concluded that the West Virginia Human Rights Commission was justified in finding for the employee. The decision was unanimous. Click here for the WV Human Rights Commission’s decision which was affirmed by the WV Supreme Court.
A Single Day, With the N-Word Again and Again
PAR Electrical was building “giant towers” for a high voltage electrical transmission line. Richard Wayne Bevelle was hired by PAR Electrical on March 22, 2005, and, after working as a “groundman” assembling the tower bases, was assigned to load helicopters with parts to construct the towers (this helicopter job was described as a “gravy job” by the Human Rights Commission). Mr. Bevelle is African-American.
Continue reading The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!
I will be speaking (and presenting on article) on recent developments in retaliation under federal and West Virginia employment law on either October 29 or 30, 2010 at the annual conference of the West Virginia Employment Lawyers Association. The conference will be at Oglebay Resort and Conference Center in Wheeling, West Virginia. The final schedule is not out yet, so I don’t know whether my speech with be on October 29 or 30.
Retaliation law in recent years has been one of those developing areas, and much more often than not the movement in the case law has been in the direction of expanding protections for employees against retaliation. The US Supreme Court especially has focused on retaliation law, and has “plugged gaps” in the law for federal employees to include protection for retaliation claims, has lowered the threshold for what is actionable retaliation, and has broadened the definition of “opposition” which entitles employees to protection.
One of the dangers for employers from retaliation claims is that, after an employee complains about alleged discrimination, the employer may be guilty of retaliation even if a jury decides there was no discrimination to support the employee’s original complaint. An employee may succeed in a retaliation claim as long as his complaint was made in good faith, even if the employee was wrong about the complaint of discrimination.
In the prior 2 years at the annual conference for WVELA, I spoke and wrote articles on awards of attorneys’ fees under employment discrimination laws, and on age discrimination.
On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.
Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.
Here is a quick run-down of what was awarded in the case:
- Back pay: $142,659 awarded by jury.
- Pre-judgment interest: $11,791.84 from date of termination through trial.
- Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
- Emotional distress: $0.
- Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
- Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
- Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
- Litigation expenses: $20,324.16 awarded by judge.
- Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.
The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.
Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.
Continue reading Jackson County jury awards $2.1 million in age case