Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act

Insur­ance com­pa­nies have been urg­ing the West Vir­ginia Leg­is­la­ture to pass leg­is­la­tion to over­turn the West Vir­ginia Supreme Court’s deci­sion in Michael v. Appalachi­an Heat­ing, LLC, 701 S.E.2d 116 (June 11, 2010). In Michael, the West Vir­ginia Supreme Court held that the West Vir­ginia Human Rights Act pro­hib­it­ed dis­crim­i­na­tion by an insur­ance com­pa­ny in set­tling claims cov­ered by an insur­ance pol­i­cy.

The Michael Deci­sion

Gen­er­al­ly, the Human Rights Act pro­hibits dis­crim­i­na­tion (1) in the work­place, (2) in places of pub­lic accom­mo­da­tion (like hotels, shop­ping cen­ters), and (3) in con­nec­tion with trans­ac­tions involv­ing hous­ing and real estate (like rent­ing apart­ments and buy­ing hous­es).

But at issue in Michael was sec­tion 5–11-9(7) of the Human Rights Act, which was not lim­it­ed to those three cat­e­gories of activ­i­ty. Here is the rel­e­vant lan­guage in sec­tion 5–11-9(7)(A);

It shall be an unlaw­ful dis­crim­i­na­to­ry prac­tice [based on race, reli­gion, col­or, nation­al ori­gin, ances­try, sex, age, and dis­abil­i­ty] …

(7) For any per­son, employ­er, employ­ment agency, labor orga­ni­za­tion, own­er, real estate bro­ker, real estate sales­man or finan­cial insti­tu­tion to:

(A) Engage in [1] any form of threats or reprisal, or to [2] engage in, or hire, or con­spire with oth­ers to com­mit acts or activ­i­ties of any nature, the pur­pose of which is to harass, degrade, embar­rass or cause phys­i­cal harm or eco­nom­ic loss or [3] to aid, abet, incite, com­pel or coerce any per­son to engage in any of the unlaw­ful dis­crim­i­na­to­ry prac­tices defined in this sec­tion .…

In sub­part (7)(A) above I have brack­et­ed the three spe­cif­ic caus­es of action (legal the­o­ries) which the Supreme Court said are dis­cernible in sub­part (7)(A). I have also bold­ed the sec­ond cause of action, which was the key cause of action at issue in the Michael case.

Con­tin­ue read­ing Leg­isla­tive Update: Insur­ance indus­try seeks amend­ment to West Vir­ginia Human Rights Act

Cleveland jury awards $900,000 against hospital in age discrimination case

Ellen Simon, an attor­ney in Cleve­land who authors the excel­lent blog, Ellen Simon’s Employ­ee Rights Post, recent­ly tried an age dis­crim­i­na­tion claim for plain­tiff Glo­ria Parks (a phle­botomist) against Cleveland’s Uni­ver­si­ty Hos­pi­tals Case Med­ical Cen­ter.

Ms. Parks had worked for the hos­pi­tal for 30 years when she was fired over a med­ical mis­take involv­ing her­self and anoth­er much younger employ­ee. The hos­pi­tal fired Ms. Parks, but not the much younger employ­ee.

The jury returned a ver­dict in favor of the plain­tiff (Ms. Parks) for $450,000 for her eco­nom­ic loss and $450,000 for “oth­er com­pen­sato­ry dam­ages”, accord­ing to Ms. Simon’s blog arti­cle. Based on the lim­it­ed infor­ma­tion I have so far, it looks like the “oth­er com­pen­sato­ry dam­ages” was an award for emo­tion­al dis­tress, The jury did not award puni­tive dam­ages.

So the ver­dict totals $900,000, and Ms. Simon will file a request for attor­neys’ fees’ fees and expens­es. While it is not clear from the arti­cle so far, I sus­pect the case was assert­ed for age dis­crim­i­na­tion under Ohio’s Fair Employ­ment Prac­tices Act (and not the fed­er­al ADEA).

Con­tin­ue read­ing Cleve­land jury awards $900,000 against hos­pi­tal in age dis­crim­i­na­tion case

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

Retal­i­a­tion law is one of the most devel­op­ing (and dan­ger­ous) areas of employ­ment law. I recent­ly spoke at the West Vir­ginia Employ­ment Lawyers Association’s annu­al con­fer­ence on retal­i­a­tion law, and I want­ed to go back and dis­cuss an impor­tant Fourth Cir­cuit deci­sion on the Fam­i­ly and Med­ical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dot­son v. Pfiz­er: Adop­tion and the FMLA

The deci­sion is Dot­son v. Pfiz­er Inc., 558 F.3d 284 (2009), and involved alle­ga­tions of retal­i­a­tion stem­ming from leave tak­en for an inter­na­tion­al adop­tion from Rus­sia.

The jury award­ed $1,876 in dam­ages on the FMLA inter­fer­ence claim and $331,429.25 on FMLA retal­i­a­tion claim. The judge then award­ed $333,305.25 in statu­to­ry liq­ui­dat­ed dam­ages, $375,000 in attor­neys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Cir­cuit reject­ed all aspects of the employer’s appeal, but found the tri­al court made a mis­take in refus­ing to award the plain­tiff pre-judg­ment inter­est. Con­tin­ue read­ing Back from the USSR: FMLA Retal­i­a­tion, 4th Cir­cuit Deci­sion in Dot­son v Pfiz­er

Special Election for Senator Byrd’s Seat, and “Democracy in America” From Northern Exposure TV Series

Today is the Spe­cial Unit­ed States Sen­ate Pri­ma­ry Elec­tion for Sen­a­tor Byrd’s seat in West Vir­ginia.

With Democ­ra­cy on my mind: Below is a video seg­ment of the “Democ­ra­cy in Amer­i­ca” episode of North­ern Expo­sure. When you click the play but­ton below, you might get a copy­right mes­sage so that you have to get redi­rect­ed to the actu­al YouTube site (on which this seg­ment is avail­able).

This episode of North­ern Expo­sure was a won­der­ful (and mov­ing) glimpse of democ­ra­cy in small town Amer­i­cana, cen­ter­ing around the may­oral elec­tion for the fic­tion­al Cice­ly, Alas­ka. There are a num­ber of oth­er seg­ments from that episode on YouTube. If you have some free time, get on YouTube and type “North­ern Expo­sure democ­ra­cy in Amer­i­ca” to see some of the oth­er clips. Or buy the DVD of sea­son three of North­ern Expo­sure, which con­tains the Democ­ra­cy in Amer­i­ca episode. While you’re at it, for anoth­er won­der­ful glimpse of small town Amer­i­cana, watch the always fan­tas­tic Robert Pre­ston in The Music Man.

Update (2015): It looks like the video linked above has been blocked on copy­right grounds, so here is the Ama­zon link to buy sea­son three of North­ern Expo­sure, which includ­ed the “Democ­ra­cy in Amer­i­ca” episode.

Please help me!! I’m Tweeting, and I can’t stop!!!!!

Okay, I got­ta admit that I’ve been skep­ti­cal about the val­ue of Twit­ter. Lawyers tend to delude them­selves into believ­ing that they think impor­tant and deep thoughts. For exam­ple: “I just read an inter­est­ing arti­cle on res ipsa loquitur and its rela­tion­ship to the Philip­pines pro­bate code. Would you please pass the Chardon­nay and the shrimp tem­pu­ra?” And let’s face it, how good are lawyers at being brief? Lawyers are almost con­gen­i­tal­ly inca­pable of express­ing them­selves in 140 char­ac­ters or less.

But my army of mar­ket­ing con­sul­tants (er, all the mar­ket­ing dudes writ­ing on the Inter­net) says Twit­ter and Face­book have real busi­ness val­ue for lawyers (every­one assumes lawyers are too anti-social to actu­al­ly use those sites for their orig­i­nal­ly intend­ed social pur­pos­es). So I’ve done some mod­er­ate­ly care­ful look­ing at Twit­ter and have decid­ed to jump on the band­wag­on. Of course, now that I am on that band­wag­on, I think Twit­ter is the great­est thing since sliced bread. Here it is, my but­ton so you can fol­low me on Twit­ter:

Follow DrewCapuder on Twitter

What am I Tweet­ing about (like most peo­ple above 23, I ini­tial­ly asso­ci­at­ed the word “Tweet­ing” with some­thing that was drip­ping down my leg)? I have only been Tweet­ing a few weeks, so I am still get­ting my sea legs. But here is a list of things I have been and expect to be Tweet­ing about:

  • Employ­ment-relat­ed legal issues. This is the main area of my prac­tice, and most of my Tweets will be on this top­ic.
  • Legal issues relat­ing to the med­ical indus­try (much of my employ­ment lit­i­ga­tion is in the med­ical indus­try).
  • Oth­er legal issues which I think may be of inter­est to my “fol­low­ers” (I feel the pow­er cours­ing through my veins).
  • Time man­age­ment and orga­ni­za­tion­al skills. Like most lawyers and busi­ness peo­ple, I am always look­ing for ways to become more effi­cient, so I can spend more time con­cen­trat­ing on deep thoughts.
  • Com­put­er and soft­ware prod­ucts & issues that might be of inter­est to lawyers and busi­ness peo­ple.
  • Media issues. I teach a class at Fair­mont State Uni­ver­si­ty on legal and eth­i­cal issues in media, and I am espe­cial­ly inter­est­ed in media bias in gen­er­al and specif­i­cal­ly relat­ing to polit­i­cal cov­er­age.

Con­tin­ue read­ing Please help me!! I’m Tweet­ing, and I can’t stop!!!!!

Martin Luther King; His entire “I Have a Dream” speech

Today is the 47th Anniver­sary of Dr. Mar­tin Luther King’s “I Have a Dream Speech” giv­en on the steps of the Lin­coln Memo­r­i­al. We are now two gen­er­a­tions removed from that speech. Worse, we live in the age of MTV, Twit­ter, and 30-sec­ond sound­bites on the evening news. So all too often, we see only bite-sized snip­pets from Dr. King’s speech, so I want­ed to post the entire speech on this video from YouTube:

Click here for a site that has the tran­script, audio, and video of the speech.

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

A few days ago, I post­ed my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N-word could cre­ate a racial­ly hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chica­go Tran­sit Author­i­ty, – F.3d –, – WL — (7th Cir. August 23, 2010), which rais­es the sim­i­lar issue: Can a sin­gle instance of sex­u­al harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the cir­cum­stances.

Ms. Berry is Sex­u­al­ly Harassed in a Sin­gle Inci­dent

Cyn­thia Berry was an employ­ee at the Chica­go Tran­sit Author­i­ty. She was on her break and sat at a pic­nic style table with three male co-work­ers. A fourth male co-work­er, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offend­ed by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seat­ed. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-work­ers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The oth­er three male co-work­ers got up from where they were seat­ed at the pic­nic table and moved to the oth­er end of the table. Then:

Berry says Carmichael remained where he was seat­ed and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the oth­er end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­i­ng Mar­shall to think he could order her around, she remained seat­ed, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry land­ed off-bal­ance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­i­ng to avoid any men, she lay down in a bus for the rest of her shift.

 

Con­tin­ue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chica­go Tran­sit Author­i­ty

The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!

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!

Charleston, WV Jury Awards $1.7m in Age Discrimination Case, 10–1-09

On Octo­ber 1, 2009, a jury in Charleston, Kanawha Coun­ty, West Vir­ginia returned a ver­dict in an age dis­crim­i­na­tion case, award­ing James Nagy a total of $1,750,450.

The Law­suit

James Nagy filed suit in Charleston in March 2008 against West Vir­ginia Amer­i­can Water Com­pa­ny, alleg­ing that he was fired in March 2007 because of his age at 53, after 23 years of employ­ment.

James Nagy was rep­re­sent­ed by Maria W. Hugh­es and Stephen Weber at Kay Cas­to & Chaney PLLC. West Vir­ginia Amer­i­can Water Com­pa­ny was rep­re­sent­ed by Mychal Schulz at Dins­more & Shohl LLC.

The case is pend­ing in Cir­cuit Court in Kanawha Coun­ty, West Vir­ginia, before Judge Jen­nifer Bai­ley-Walk­er.

The Ver­dict

That $1,750,450 ver­dict con­sist­ed of:

  • $150,000 for humil­i­a­tion,

Award of Attorney’s Fees and Expens­es

Under the West Vir­ginia Human Rights Act (which pro­hibits age and oth­er forms of dis­crim­i­na­tion in the work­place), Nagy’s coun­sel filed a motion addi­tion­al­ly request­ing attor­neys’ fees and expens­es.

Judge Bai­ley-Walk­er award­ed the plain­tiff total attorney’s fees of $177,772.50, and $8,855.33 in expens­es.

Appeal

The Defen­dant is in the process of appeal­ing.  The issue of attor­neys’ fees was resolved by Judge Bai­ley-Walk­er on June 8, 2010, so the appeal process is in its ear­ly stages as of the date of this arti­cle being updat­ed (July 31, 2010). As things devel­op in the appeal, I will update this arti­cle.

July 31, 2010

FMLA now applies to leave for care of children by same-sex couples

The Unit­ed States Depart­ment of Labor recent­ly issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­i­ly and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In oth­er words, employ­ees in same-sex rela­tion­ships who qual­i­fy for leave under the FMLA will be enti­tled to pro­tect­ed leave for the qual­i­fy­ing care of their chil­dren.

As the DOL’s press release suc­cinct­ly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month peri­od to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daugh­ter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employ­ee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employ­ee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­to­ry lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Inter­pre­ta­tion:

The FMLA enti­tles an eli­gi­ble employ­ee to take up to 12 work­weeks of job-pro­tect­ed leave, in rel­e­vant part, “[b]ecause of the birth of a son or daugh­ter of the employ­ee and in order to care for such son or daugh­ter,” “[b]ecause of the place­ment of a son or daugh­ter with the employ­ee for adop­tion or fos­ter care,” and to care for a son or daugh­ter with a seri­ous health con­di­tion. See 29 U.S.C. § 2612(a)(1)(A) — ©; 29 C.F.R. § 825.200. The FMLA defines a “son or daugh­ter” as a “bio­log­i­cal, adopt­ed, or fos­ter child, a stepchild, a legal ward, or a child of a per­son stand­ing in loco par­en­tis, who is— (A) under 18 years of age; or (B) 18 years of age or old­er and inca­pable of self-care because of a men­tal or phys­i­cal dis­abil­i­ty.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122©, 825.800.

(empha­sis added).

Con­tin­ue read­ing FMLA now applies to leave for care of chil­dren by same-sex cou­ples