Category Archives: Litigation Issues

SSI Disability and the ADA, Quirky Question # 97

Quirky Question # 97:

One of our employees became disabled.  He successfully applied for Social Security benefits on the ground that he was permanently disabled from working.  The EEOC now has filed an action against our company, contending that we discriminated against our former employee on the basis of his disability.  If our employee is “permanently disabled from working,” how can EEOC sue our company for a violation of the Americans With Disabilities Act?  If our ex-employee cannot work due to his disability, how can the EEOC argue that he could continue to work for us with a reasonable accommodation?  This makes no sense. Answer→

Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims



Barbara Long, M.D., Ph.D., A.B.P.N.

Employment law Title VII claims often include allegations of significant emotional distress allegedly caused by reportedly inappropriate remarks, touches, and other behaviors in the workplace.  When a supervisor, as opposed to a coworker, has been the alleged instigator of the reportedly offensive behavior, emotional distress claims are frequently enhanced because of the “power differential” between the supervisor and supervisee.  Evaluating the validity of such emotional distress claims can be challenging.  This paper will describe how expert psychiatric forensic consultation can assist in determining which claims may have merit and which may be false, the ultimate determination to be made by the trier-of-fact. Answer→

Guest Article & Analysis

It Ain’t Over Til It’s Over, or How to Convert a Successful Mediation to a Done Deal

By:  Joan S. Morrow, Attorney and Mediator

You and your client settle a case at mediation.  Great!  But, alas, the end of the mediation marks the beginning of weeks or sometimes even months of protracted negotiations over the language of the settlement agreement or, worse yet, over issues that were never discussed or were inadequately clarified at the mediation.  Generally, these negotiations will be with the other side; worse is when the negotiations are between you and your client.  As the days and weeks pass without a final settlement document, your client is increasingly unhappy with you.  This unhappiness sometimes stems from the fact your “meter” is still running; at the very least, it’s a consequence of the fact that the client has not attained the closure and finality that they thought they’d achieved at mediation. Answer→

California Oddities, Quirky Question # 75

Quirky Question # 75:

We are a California employer and were just hit with a lawsuit by a former employee for acts that supposedly took place almost three years ago.  Our former employee alleges that in January 2006, his supervisor asked him to fire three Asian-Americans who work in an otherwise all Caucasian department.  The former employee alleges that he refused to follow his supervisor’s directive and did not fire anyone.  (Incidentally, this was the same supervisor who hired the employee who now is suing us.)

Our former employee also contends that from January 2006 through January 2008, he received very poor performance evaluations from his supervisor, which he attributes to his unwillingness to fire the three Asian-American employees.  Despite his “belief” about the supposed link between his performance reviews and his refusal to fire anyone, he never complained to our Human Resources Department or anyone on our management team.  He claims he had conversations about his supervisor’s behavior with one of his subordinates, an Assistant Manager who reported to him.

In February 2008, he quit without notice.  He immediately filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), alleging race and age discrimination.  The DFEH conducted an investigation which ended in December 2008, and issued a right to sue letter soon thereafter.  We just were served with the Complaint, some three years after the primary incident on which his lawsuit is based.

First, can he file a race discrimination claim even though he is not Asian?  Second isn’t his lawsuit time-barred?  (I thought these types of lawsuits were limited to a one year statute of limitations.)  Finally, given that the employee did not take advantage of our very extensive internal complaint procedures (designed to address precisely these kinds of issues), doesn’t his failure to utilize this internal complaint process bar his claims? Answer→

“Me Too” Evidence, Quirky Question # 63

Quirky Question # 63:

We are defending against a claim of age discrimination.  The plaintiff has lined up a number of current and former employees, each of whom apparently intend to testify that during their employment, they also were (or are) victims of age discrimination.  Is this legit?  These other individuals never filed claims of age discrimination against us. Answer→

Punitive Damages for Sexual Harassment, Quirky Question # 56

Quirky Question # 56:

Our company is committed to eliminating sexual harassment.  We have a well-defined sexual harassment policy that is included in our employee handbook.  We also have conducted training sessions on a bi-annual basis to ensure our employees understand our company’s position on sexual harassment.

Some time ago, one of our employees complained of sexual harassment.  For various reasons (including the timing of her complaint, our company’s hectic schedule at the time, and her lack of persistence), her complaint fell through the cracks.  She now has sued our company and included a claim for punitive damages.  Given our commitment to eliminating sexual harassment (as reflected by our well-established policy), we do not have any risk of a punitive damages award, do we? Answer→

Bogus Lawsuits, Quirky Question # 34

Quirky Question # 34:

We continue to confront periodically lawsuits from former employees that are utterly frivolous.  Some of the claims make you shake your head in disbelief.  We’d like to file malicious prosecution lawsuits against the individuals who file these bogus claims. Are there any downsides to this approach?  Could someone argue that the lawsuits we are contemplating are “retaliatory?” Answer→

Superficial Responses to Charges of Discrimination, Quirky Question # 24

Quirky Question # 24:

We run a large food service company, with more than 100,000 employees.  Notwithstanding our best efforts to train our store managers regarding federal and state employment laws, we invariably have problems that result in claims of discrimination being filed with the EEOC or parallel state agencies.  In our experience, these federal and state agencies do not seem to be very even-handed.  No matter how compelling the reasons for our actions, we find these agencies unsympathetic to the evidence we advance in explanation for our decisions.  Given this experience, we have been trying to reduce our costs by minimizing the time we expend responding to the Charges of Discrimination.  We quickly gather relevant information and submit a superficial response.  The agencies are likely to support the employee anyway so our feeling is that this approach won’t make a difference in the agency determination.  We will, however, save money.  Do you have any concerns with this approach? Answer→

Age Discrimination and the OWBPA, Quirky Question # 22

Quirky Question # 22:

Our company decided to close one of its two manufacturing facilities in Minnesota.  In deciding which facility to close, we considered factors such as the relative productivity of the facilities and the age and condition of the buildings and equipment.

The employees of our closed facility will receive separation benefits in exchange for signing a release of claims.  We are aware that to obtain a valid release under the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit Protection Act (OWBPA) requires us to provide disclosures to the terminated employees.  We understand that our disclosures must describe (among other things) the affected decisional unit – that is, the “group or class” of employees from which the termination decisions were made.

Since we terminated everyone at the closed facility, in our disclosures we defined the “decisional unit” as the manufacturing facility that we closed.  We provided the terminated employees the job titles and ages of everyone who worked at that facility.   I keep hearing about problems with ADEA releases.  Given the facts described above, do we have anything to worry about or have we complied with OWBPA? Answer→