The Dreadful World of Sexual Torts

Posted on October 25, 2013 08:50 by Mark A. Fahleson

Whether as defense counsel or as a board member of a nonprofit, at some point many of us have dealt with allegations of sexual misconduct. These situations are often sordid, complex and emotionally difficult.  No matter your area of expertise, it’s prudent to have an understanding of the issues surrounding claims of assault, molestation and unwelcome sexual conduct, especially how to prevent such claims and respond when they arise.  

On November 13-15, DRI will be hosting its Sexual Torts seminar in San Diego.  The program is top-notch, featuring nationally-known attorney Mark Geragos and Penn State victims’ advocate Dora McQuaid.  This seminar is designed to educate defense counsel, insurance professionals, in-house litigation specialists and others involved in the evaluation and defense of sexual torts actions.  

Please plan on attending. For more information, click here

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As was reported yesterday the plaintiffs in the 2011 landmark class action case Dukes v. Wal-Mart haven't given up and are now attempting to pursue regional class cases in federal courts in California, Tennessee, Texas, Florida and Wisconsin.  In an attempt to overcome the issues raised by the U.S. Supreme Court, counsel for the Wal-Mart plaintiffs contend the narrower, regional classes pass muster because they are geographically focused and allegedly identify specific store, district and regional practices that led to the alleged discriminatory practices.  Counsel for Wal-Mart contends the plaintiffs' class certification motion merely "recycles" arguments previously rejected by the high court, noting the remaining differences between the individual plaintiffs in each of the proposed classes.

Do these new regional classes meet the standards announced in Dukes v. Wal-Mart?  How have the plaintiffs overcome the conflicts present in the initial classe, such as including female managers and their female subordinates in the same class?


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Too Hot for the Job?

Posted on January 4, 2013 03:44 by Mark A. Fahleson

Last week, the Iowa Supreme Court answered the following question:

"Can a male employer terminate a female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and employee?

According to the opinion, the plaintiff was employed as a dental assistant in the defendant's dental practice.  The employer dentist complained to the dental assistant that her clothing was too tight and distracting, yet acknowledged discussing plaintiff's sex life with her on occasions.   In late 2009 the employer dentist took his children to Colorado skiing while his wife, who was also an employee of the dental practice, remained home.  After the dentists wife discovered that her husband had been texting the dental assistant while on vacation, she confronted her husband and as a couple then met with the senior pastor at their church.  Collectively, they decided that it was necessary for the dental assistant's employment to be terminated because their relationship had become a detriment to all involved.  The dental assistant subsequently brought suit, not alleging sexual harassment, but that she was terminated because of her gender and would not have been fired had she was male.

On appeal, the Iowa Supreme Court, citing federal court precedent, affirmed summary judgment in favor of the employer dentist.  

Is it relevant that the employer dentist only employed female dental assistants?

If the dentist would have been liable if he had sexual harassed her, can he avoid liability for firing her out of feat that he was going to harass her?

Is the plaintiff's physical appearance relevant, i.e., what if she wasn't objectively attractive, does that give rise to a genuine issue of material fact regarding the employer dentist's motivation for firing the dental assistant? Read more about the case here

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Categories: Law Suit | State Supreme Court

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On June 20, the U.S. Supreme Court issued its much-anticipated Wal-Mart Stores, Inc. v. Dukes decision in which the Court held that the nationwide class certification approved by the lower courts was not consistent with Federal Rule of Civil Procedure 23(a) governing class actions. The class of plaintiffs consisted of some 1.5 million women who worked at Wal-Mart throughout the U.S. and allegedly suffered discriminatory pay and promotion practices at any point during or after December 1998.  Writing for the Court, Justice Antonin Scalia concluded that the millions of plaintiffs and their claims did not have enough in common: “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavored.”

As was reported this week, plaintiffs’ counsel have now move the fight to the states, amending their original complaint filed in federal district in California to limit the class to female Wal-Mart employees in California and filing a new action on behalf of Texas Sam’s Club and Wal-Mart female employees.  It is anticipated that these represent the first of many additional class-action lawsuits to be filed against Wal-Mart on the state or regional level.

At first blush, these state and regional actions appear to suffer from some of the same defects as the action rejected by the U.S. Supreme Court.  Among other things, it remains undisputed that Wal-Mart store supervisors retained discretion over promotion and pay policies, making challenges on anything above the store-level problematic.  In addition, the proposed classes appear to include female associates as well as the female supervisors who may have supervised them and made the very promotion and pay decisions they deem objectionable. 

What’s the likely outcome of the state/regional Wal-Mart class actions?  If you were representing Wal-Mart, what would you argue?  What are the chances one of these “Daughter of Dukes” cases ends up back before the nation’s high court?

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As was recently reported, tomorrow a federal district court in California will consider whether the Wal-Mart v. Dukes class action lawsuit recently reversed and remanded by the U.S. Supreme Court may proceed in the form of multiple class action lawsuits involving narrower classes.

On June 20, 2011, the Supreme Court issued its opinion in Wal-Mart v. Dukes. That decision, among other things, held that the proposed nationwide class of some 1.5 million female employees was not consistent with Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, the Court concluded that Rule 23(a)(2) requires a party seeking class certification to prove that the class has common questions of law or fact, i.e., the claims must depend upon a common contention of such a nature that it is capable of classwide resolution. On remand, an open question remains whether the commonality requirement can be met if the gargantuan class action is broken down into hundreds if not thousands of smaller class actions.

Where do trial courts go after Wal-Mart v. Dukes? What do the "new and improved" classes look like if they are to pass the standard announced by the Supreme Court? As a matter of policy, what is the right outcome for our system of justice?

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Just this morning, the United States Supreme Court released its long-awaited opinion in Wal-Mart v. Dukes.  The Court unanimously reversed the Ninth Circuit, holding that the class certification was not consistent with the Federal Rule of Civil Procedure 23(a) governing class actions.  The class of plaintiffs consisted of women who worked at Wal-Mart and allegedly suffered discriminatory pay and promotion practices at any point since December 1998, including those not hired until years after the suit was filed in 2001.

Writing for the Court, Justice Antonin Scalia concluded that the millions of plaintiffs and their claims did not have enough in common: “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavored.” 

Justices Ginsburg, Breyer, Sotomayor and Kagan concurred in part and dissented in part, agreeing that the class should not have been certified under 23(b)(2), but that a class of this type may be certifiable under Rule 23(b(3) if the plaintiffs show that common class questions “predominate” over issues affecting individuals and that a class action is “superior” to other modes of adjudication.

While this decision is clearly a big victory for the nation’s largest private employer and the business community at large, does the Dukes decision signal that the class action pendulum has swung back toward a rational, reasonable use of Rule 23 actions?  What does Dukes mean for DRI members and our clients?



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Too Hot for Teacher?

Posted on May 11, 2011 03:27 by Mark A. Fahleson

In a case that might make David Lee Roth proud, Courthouse News is reporting that a North Carolina summer school director has sued her former employer and an entity named NASCAR Media Group after she was terminated for allowing an explicit video to be shot in the school locker room.  

According to the allegations, the plaintiff was employed by Providence Day School in Charlotte for 37 years when she was approached by a representative of NASCAR Media Group asking for permission to shoot a supposedly innocuous video in the school locker room.  The Plaintiff claims that she personally investigated NASCAR Media Group on the Internet and was shown what she was led to believe to be the complete script, which did not contain "any adult content or explicit material.”  However, the actual video that was shot featured hip-hop artist Bettie Grind and contained adult and explicit material that was not in the script presented to the plaintiff.  The plaintiff was fired shortly after the video was posted on YouTube®.

The plaintiff’s stated theories of recovery are negligent representation and unfair and deceptive trade practices. 

Are the teacher’s claims against her former employer meritorious?  How about those against NASCAR Media Group?


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Categories: Employment/Labor Law

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Today the U.S. Supreme Court will hear argument in Wal-Mart Stores, Inc. v. Dukes, the largest employment class action in American history.  The Court’s decision will address the standards for certifying a nationwide class action and when a class action for monetary relief can be certified as a mandatory, non opt-out class.

The debate has already begun on the arguments to be made today and what the likely outcomes will be.  DRI has joined the debate, and will provide post-oral argument reaction and commentary in an April 5, 2011, web cast entitled "Reaction to Oral Argument in Wal-Mart v. Dukes.”  The two presenters are dynamite:  Carter G. Phillips, Managing Partner of the Washington D.C. office of Sidley Austin LLP and a frequent Supreme Court advocate, wrote the DRI amicus brief in the Dukes case; and Professor Martin H. Redish, an esteemed law professor at Northwestern University School of Law, has written extensively on class actions.
For DRI members like us, it’s only $150 - and that is per site, not per person. For complete details, you can download the brochure.  Also, to make it easy, if you want to register, click here

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Categories: Discrimination | Supreme Court | WebCast

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In a much-anticipated opinion released today, a unanimous U.S. Supreme Court held that Title VII’s retaliation provisions protect third parties from retaliation in addition to complainants.

In Thompson v. North American Stainless LP, (Case No. 009-291), Eric Thompson and his fiancée Miriam Regalado were employees of North American Stainless (NAS).  Regalado filed a charge of discrimination against NAS alleging sex discrimination; 3 weeks later Thompson was fired.  Thompson then filed a charge alleging he was terminated in retaliation for his fiancée’s filing of her charge of discrimination.  The district court granted NAS summary judgment on the ground that third-party retaliation claims were not permitted by Title VII, and this was affirmed by the 6th Circuit.

Writing for the Court, Justice Antonin Scalia recited the retaliation standard previously enunciated by the Court in White, i.e., Title VII”s anti-retaliation provisions prohibit any employer action that “well might have ‘dissuaded a reasonable worker from making or supporting a [discrimination] charge.’”  Applying this standard to the facts in Thompson led the Court to conclude that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.”

Given the Court’s prior decisions giving a broad construction to retaliation protections, is anyone surprised by this decision?  How does it affect how we, as practitioners, advise our employer and EPLI insurer clients?

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Categories: Discrimination | Supreme Court

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Can You Be Fired for Being a "Tomboy"?

Posted on November 17, 2010 02:33 by Mark A. Fahleson

A federal jury in Des Moines, Iowa this week rendered a verdict in favor of a female employee who claimed she was unlawfully fired because she was too "tomboyish". 

According to court records, Heartland Inns of America hired the plaintiff as a night auditor in July 2005.  The plaintiff was successful in that position and in December 2006 the plaintiff's on-site manager promoted her to a day shift front desk position.  Heartland's (off-site) director of operations approved the promotion "sight unseen", but later directed that the plaintiff be returned to her previous position.  After an internal dispute arose regarding in which position to place the plaintiff, the plaintiff was allowed to re-interview for the day shift front desk position.  The plaintiff was subsequently terminated for allegedly thwarting the company's hiring procedures and for her hostility.  A factual dispute existed whether the decision to terminate the plaintiff was motivated by her appearance, which was described as "slightly more masculine", "tomboyish" and an "Ellen DeGeneres kind of look".
This case had already been up before the U.S. Court of Appeals for the Eighth Circuit.  On January 21, 2010, the Eighth Circuit held that employment decisions based on sexual stereotypes violate Title VII and remanded the case to the district court for the trial that just concluded.  Lewis v. Heartland Inns of America, L.L.C., 591 F.3d 1033 (8th Cir. 2010).

The line between sexual discrimination based on orientation, which is not yet prohibited by federal law, and discrimination "because of sex" can be difficult to draw.  What impact does this decision have on employers desiring to require specific appearance standards?  Can an employer legally decide it doesn’t want to employ "tomboys"?

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Categories: Court of Appeals | Discrimination

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