Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

A new Fifth Circuit case reveals the consequence that can occur when an employer and its managers fail to take harassment complaints seriously; fail to promptly and thoroughly investigate the complaints; and reach conclusions following the investigation that just plain wrong.   In Cherry v. Shaw Coastal Inc., a male employee (Cherry) complained that his immediate male supervisor was making making inappropriate comments of a sexual nature and causing unwanted physical contact. Because I don't want this blog to show up in Google's search results for unsavory topics, I'll let you read the opinion itself the graphic details of the egregious, same-sex sexual harassment that was experienced by Cherry.  Needless to say, it included unwelcome comments of a sexual nature and unwanted touching that the jury concluded amounted to sexual harassment by the male co-worker.

The conduct of was so severe that one of Cherry's co-workers initially complained about what he witnessed.  Cherry also made repeated complaints to the managers in his supervisory chain.  The supervisors receiving the complaints failed forward them to human resources as required by company policy and instead questioned whether the conduct complained of was merely horsing around.  Cherry ultimately went directly to human resources and made a complaint.  Despite the fact that Cherry made an estimated ten complaints, had an eyewitness to the harassment, and text messages demonstrating the unwelcome sexual comments, the company's human resources staff concluded there was "insufficient evidence" to corroborate the complaint.  Cherry and the alleged harasser were placed on different work crews, but Cherry complained that he continued to get "dirty looks" from the alleged harasser.  Finally, six months after the first complaints of harassment occurred, Cherry resigned his employment specifically pointing the on-going harassment and retaliation to which he claimed he he was subjected.

A jury found in favor of the Cherry on the sexual harassment claim but the trial court entered judgment in favor of the company.  On appeal, the court of appeals reversed the trial court.  The Court found that the Company had done enough to avoid a punitive damages finding (i.e., that the company did not act with malice or reckless disregard) because it had a policy against sexual harassment with a complaint procedure and, while not acting promptly, ultimately transferred the harasser to a different crew.

As to liability for the sexual harassment, the Court found that there was sufficient evidence to support the jury's verdict and that the company did not act promptly.  The Court concluded that the human resources department's decision not to act because of "insufficient evidence" could be reasonably interpreted as a failure to take prompt remedial action.  Consequently, the appeals court reversed the judgment in favor of the employer and directed the trial court to enter judgment in favor of the plaintiff-employee on the sexual harassment claim.

You can take a few things away from the Cherry opinion:

• Ensure supervisors are trained on their responsibilities under the company's sexual harassment policy and make sure they forward complaints they receive to human resources for investigation;
• Don't conclude there is insufficient evidence of company violations where the complaining employee has eyewitness corroboration and text messages to support his claim;
• Investigate all complaints of alleged harassment promptly.

A full copy of the Court's opinion is available here.

Follow me on Twitter @RussellCawyer.

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I have already written about the Herman Cain story and won't opine further on it here except to say, I have no idea who is telling the truth in the he-said-she-said (and she-said; and she said) story.  The headlines do remind me about what little rights the accused harasser has when, as Herman Cain claims, a false complaint of harassment has been made.   And before you start sending me the hate mail over this HSO, read the remainder of this post.

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Prompt and thorough investigations of complaints of harassment and discrimination can provide solid legal defenses to employee lawsuits.  Even where there may not be a technical, legal defense (e.g., supervisory harassment resulting in an adverse employment action), investigating employee complaints of inappropriate behavior can paint the employer in a favorable light and is just a good business practice for employers concerned about providing a professional workplace. 

One of the first choices an employer receiving an employee complaint of discrimination, harassment or even misconduct, has to make is who will investigate the complaint on behalf of the company.  Complaints do not necessarily have to be investigated by lawyers or even those external to the company.  However, there are certain qualities an employer should consider in selecting the investigator (not all qualities are necessarily required for a prompt and thorough investigation).

• Experienced --someone with prior human resources experience and that has conduct prior investigations of discrimination, harassment, retaliation or workplace misconduct;
• Unbiased and objective --someone that is neither accused of misconduct or who reports to or is the direct organizational chain of the the person being complained about;
• Articulate --an individual who is well-spoken and makes both good verbal and physical appearance.  This will be the company's spokesperson at any trial where the company has to describe and defend its investigation and any remedial measures taken as a result of the investigation;
• Knowledgeable --person should be knowledgeable of the subject matters being investigated as well as the company policies that apply to the investigation and the misconduct alleged;
• Approachable --someone that the complaining party, witnesses and the person being complained about will open up  to.  For example, in the investigation of a sensitive sexual harassment investigation, it may be (but is not required to be) that a person who is the same gender as the person making the complaint may be the proper choice.
• Available --the individuals selected needs to have the time devoted the conduct and conclude the investigation promptly.

As prompt and thorough investigation can be an effective defense to a discrimination, harassment or retaliation lawsuits.  The best defense starts with selecting the right quarterback to run the investigation.

Follow me on Twitter @RussellCawyer.

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This week the Fifth Circuit held that a cause of action exists for hostile work environment under the ADEA –the first such express holding in the Circuit.  In Dediol v. Best Chevrolet, the plaintiff filed a hostile work environment and constructive discharge claim against the employer.

During the brief two months of employment, Dediol claimed that his direct supervisor repeated referred to him by profane, derogatory names invoking his age; made offensive remarks about his religious beliefs; threatened him both economically with the loss of his job and with physical threats of violence and intimidation. When Dediol’s requested transfer to another department was denied by his supervisor, he told the company’s management that he could no longer take the abuse and ceased reporting for work. The employer terminated his employment for job abandonment. He filed a charge of discrimination; received a right to sue letter and file a hostile work environment suit based on age, religion, harassment and constructive discharge.

In the first holding of its kind in the Fifth Circuit, the panel held that a plaintiff’s hostile work environment claim based on age discrimination under the ADEA could be advanced in court. In setting out the parameters for such claim, the Court borrowed liberally from Title VII hostile work environment jurisprudence.   The court held that the plaintiff must show that 1) he is over age 40; 2) the employee was subject to harassment, either through works or actions, based on age; 3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and 4) there is some basis for liability on the part of the employer. In determining whether the harassment is intimidating, hostile or offensive, the conduct must be both objectively and subjectively offensive.

Having concluded that an ADEA hostile work environment based on age exists in this Circuit, the Court examined the record and concluded that genuine factual disputes existed as to each of Dediol’s causes of action. The court reversed the trial court and sent the case back for further consideration –including, potentially, a full trial on the merits.

You can download the complete opinion here.

Follow me on Twitter @RussellCawyer.

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In Texas, employees and employers are entitled to a telephone hearing before a hearing officer if either party disagrees with an initial determination issued by the Commission in unemployment benefit and Texas Pay Day Act claims.  There are some occasions, however, where an employer may consider foregoing these telephone conferences --even if it means losing the unemployment benefit claim.

Telephone hearings before hearing officers are conducted under oath and are recorded.  This constitute sworn testimony that will be binding on the parties in subequent proceedings.  Some attorneys representing employees use these telephone hearings to conduct discovery on potential discrimination, retaliation, harassment or wage and hour claims they may be thinking about filing.  If you appear for an administrative telephonic appeals hearing without your labor and employment counsel and the employee on the other side has a lawyer; think long and hard about whether you want to participate further in the proceeding without advice of counsel.  You might win the battle (i.e., the telephone hearing) but lose the war by having the testimony offered at the hearing used against the employer in a more significant lawsuit with more exposure.  Sometimes it may be better to just hang up and not oppose the unemployment benefit claim.

Follow me on Twitter @RussellCawyer.

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Employment Practices Liability Insurance, or EPLI, is business insurance an employer can purchase that will provide protection from losses caused by certain employment disputes with current or former employees. EPLI is in addition to commercial general liability or umbrella policies that normally contain exclusions for most employment claims.

EPLI normally covers the employer, its employees and executives for losses (including defense costs) attributed to claims for discrimination, harassment and retaliation; wrongful discharge; defamation (i.e., libel and slander); invasion of privacy and false imprisonment.  It normally does not include coverage for wage and hour claims (FLSA); claims for breach of contact or claims by independent contractors; claims arising under WARN, NLRA, OSHA, ERISA, COBRA and some ADA claims. It will also not include coverage for attorney’s fees associated with claims brought by the employer against the former employee such as counter claims (e.g., breach of contract, theft of trade secrets). Depending on the state where the claim is made, punitive damages may also be excluded or uninsurable.

Defense costs, including attorney’s fees, are often the largest expense an employer faces in defending an employment claim brought by a former employee. Even a frivolous claim or a claim the employer eventually wins is expensive to defend. These fees and costs are usually covered by EPLI but have the effect of decreasing the amount of coverage available to pay a judgment or settlement. Another potential limitation of EPLI coverage is that the insurance company normally gets to select the defense counsel that will defend the employer for covered claims. If selection of or use of particular lawyer is important (i.e., your normal labor and employment counsel), the employer should have included in its policy a provision that gives it the right to select defense counsel. 

EPLI policies are normally claims made policies. A "claims made" policy means that it will only protect against losses that occurred during the policy period and that are reported within a short period following the end of the policy period. Because an employer may learn of a potential claim until months after the employee leaves employment (and potentially after the expiration of the policy period), the employer may want to consider purchasing additional coverage that will extend the protection the employer has for up to a year after the end of the policy period (aka tail coverage).  Failure to timely make a claim and put the insurance carrier on notice of the potential claim can be grounds for the carrier to deny the claim.

EPLI can also be expensive. Rates depend on a variety of factors including the location(s) where the employer has employees; the number of employees; the employer turnover rate; and prior history of employment litigation among others. However, EPLI can be an important part of many business' overall risk avoidance or minimization strategy. If you have questions about whether EPLI is right for your business, contact your insurance broker or your labor and employment attorney.  

Follow me on Twitter @RussellCawyer

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In an issue of first impression in the Fifth Circuit, the U.S. Court of Appeals holds that Title VII's damages cap apply on a "per party" basis rather than on "per claim."  In Black v. Pan American, the Plaintiff, Carleen Black, prevailed on her Title VII and TCHRA claims of sex discrimination and retaliation.  The jury awarded Black $3.45M in back pay and compensatory damages.  Prior to entry of judgment, the trial court reduced the jury's award to $500,000 representing $300,000 in back pay and $200,000 in compensatory and punitive damages.

On appeal, plaintiff argued that the Title VII damage caps ($200,000 in this case based on the size of the employer) should be applied on a "per claim" rather than on a "per party" basis.  If the Plaintiff's argument was accepted, her judgment would include $600,000 for capped compensatory and punitive damages rather than $200,000 because she prevailed on three capped claims.  In holding that Title VII's damage caps apply "per party" rather than "per claim," the Court first noted that the Sixth, Seventh, Tenth and D.C. Courts of Appeals had held that caps apply per party.  The Court then examined the statute and concluded that "the plain language of Section 1981a(b)'s cap applies to each party in an action." Consequently, the Court affirmed the trial court's judgment that capped Black's compensatory and punitive damages at $200,000.

You can download a complete copy of the Court's opinion in Black v. Pan American Laboratories, LLC here.

Follow me on Twitter @RussellCawyer.

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The Fifth Circuit held today that a spouse of a successful Title VII plaintiff cannot maintain a legal claim for loss of consortium (i.e., loss of spousal services) under state and federal law.  In Barker, Tracey Barker was a civilian worker employed by Halliburton (aka KBR).  She claimed she was subjected to sexual harassment, retaliation and various other torts while working for Halliburton in Iraq.  She and her husband filed suit in federal district court but the wife's claims were compelled to arbitration and the husband's claims were abated pending the arbitration. 

Ms. Barker won $1.23 million from the arbitrator (reduced from $2.93M) on the Title VII claims but the tort claims for assault, battery, intentional infliction of emotional distress and false imprisonment were dismissed.  (Note:  Who says arbitrators don't render large awards in employment cases?).  Mr. Barker's claims were dismissed by the federal district court because it held he could not maintain a claim that was solely derivative of his wife's tort claims where those tort claims had been dismissed by the arbitrator and the only successful claim was under Title VII.

The Fifth Circuit Court of Appeals affirmed reasoning that:

Under Texas law, a loss of consortium claim is derivative of the tortfeasor's liability to the physically injured spouse.  Thus, when a husband asserts a loss of consortium claim, he must establish that the tortfeasor was liable for the tort claim of his physically injured wife.  Galen Barker's argument fails for two reasons.  First, Galen Barker's claim must derive from a successful tort claim.  Therefore, in Texas, a loss of consortium claim may not derive from a spouse's federal civil rights claim.  The second reason Galen Barker's argument fails is because the arbitrator dismissed Tracey Barker's tort claims.  Galen Barker's loss of consortium claim must derive from his wife's successful tort claim for her physical injuries.  That is not possible here because the arbitrator dismissed Tracey Barker's tort claims with prejudice.

Consequently, if a Texas employer is faced with an employee-spouse's loss of consortium claim that derive solely from violations of civil rights laws, the employer should consider asking the court to dismiss the spouse's claims. You can download the complete opinion of Barker v. Halliburton here.

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In an issue of first impression, the U.S. Court of Appeals for the Fifth Circuit (the federal appellate court hearing cases from Texas), held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides no cause of action for a hostile work environment that is created because of a service member's military service. 

The Plaintiffs, in Carder v. Continental Airlines, Inc.,  alleged that Continental created a hostile work environment through "harassing, discriminatory, and degrading comments and conduct relating to and arising out of" their military service through a continuous pattern of harassment.  They further alleged that "Continental has . . .  chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations."  Examples cited in the suit included: 

• placing onerous restrictions on taking military leave and arbitrarily attempting to cancel military leave;
• making derisive and derogatory comments to pilots about their military service such as "If you guys take more than three or four days a month in military leave, you're just taking advantage of the system.";  "I used to a guard guy, so I know the scams you guys are running."; "Your commander can wait.  You work full time for me.  Part-time for him.  I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines."; Continental is your big boss, the Guard is your little boss."; "It's getting really difficult to hire you military guys because you're taking so much military leave."; "You need to choose between CAL and the Navy."

The Court affirmed the trial court's dismissal of the hostile work environment claim concluding that Congress never intended to create such a claim. The Court's rationale was premised on two important points.  First, unlike Title VII, which prohibits discrimination in the "terms, conditions or privileges of employment", USERRA merely covers "benefits of employment".  The Court reasoned that the use of different phrases expressed Congressional intent to cover a narrower set of circumstances that would give rise to a claim than Title VII afforded.  Second, the Court observed  that the Department of Labor had promulgated regulations interpreting USERRA and included no reference to harassment or hostile work environment thereby providing further support that it should not be interpreted as providing such a cause of action.

For these reasons, the Court held that USERRA affords no cause of action for discrimination or harassment based on a hostile work environment theory. You can access the full opinion in Carder v. Continental Airlines, Inc. here.

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The El Paso Court of Appeals held this week that a Texas employer can use mandamus petition to challenge a trial court's jurisdiction where the plaintiff-employee failed to file his charge of discrimination timely.  A link to the opinion is here. 

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The Supreme Court of Texas served up a significant victory for Waffle House in a case holding that a plaintiff alleging both a statutory sexual harassment claim and a negligent supervision and retention claim based on the same conduct is limited to recovering solely on the statutory remedy.  

Here are the facts as reported by the Court.  Cathie Williams worked as a Waffle House waitress for approximately eight months beginning in 2001.  During her employment she was subjected to offensive sexual comments from a  male co-worker cook.  These remarks were sometimes accompanied by physical gestures or attempts at unwelcome flirting.  Additionally, the harasser occasionally pushed Williams into the counters and grill; rubbed his arm against her breast; and on one occasion came up behind her, held her arms and pressed his body against hers.

Williams complained to the restaurant manager, but the conduct did not stop.  Williams then complained to the district manager.  According to Williams, little effort was made to investigate or remedy the offensive conduct.  Williams ultimately resignedly complaining that she was constructively discharged.

Williams filed her lawsuit against Waffle House alleging a statutory sexual harassment claim under the Texas Commission on Human Rights Act (TCHRA) and a common law negligent supervision and retention claim for retaining the harasser after Williams' complaints.  The jury returned a total verdict on both claims of approximately $3.89 million.  Williams elected her remedies under the common law negligence claim which provided her a greater recovery than the statutory claim (and its caps) allowed.  The trial court ultimately entered judgment in Williams' favor for $900,000.

Waffle House appealed arguing that Williams' common law negligent supervision and retention claims were completely preempted because her exclusive remedy for workplace sexual harassment was the statutory claim under the Texas Commission on Human Rights Act.  Waffle House argued that, at a minimum, the damages had to be reduced to reflect the lower damages caps provided for under the TCHRA.

In its analysis, the Court was persuaded that the statutory remedies should be the exclusive remedies under these facts given the comprehensive procedural rules and remedies the Texas Legislature crafted in creating a statutory sexual harassment claim.  Although not specifically articulated, the Court also appeared to be concerned that plaintiffs subjected to workplace harassment might forego the comprehensive administrative procedures under the TCHRA to pursue potentially more lucrative negligence claims, thereby rendering the Texas Workforce Commission's Civil Rights Division less relevant.

The Court held that a sexual harassment plaintiff cannot recover under a negligence theory where the negligence is entwined with the facts of the complained-of harassment.  Stated differently, where the "negligence is rooted in facts inseparable from those underlying the alleged harassment," the plaintiff's sole remedy is a statutory harassment claim.  However, where a negligence claim arises from facts unrelated to the sexual harassment (e.g., assault-based negligence claim), the TCHRA may not necessarily provide the sole remedy. 

You can download the majority opinion and dissent here. 

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By Executive Order dated March 25, 2010, Houston Mayor Annise Parker, added sexual orientation and gender identity as protected categories under the City's anti-discrimination, harassment and retaliation policy.  The Order prohibits discrimination, harassment and retaliation based on gender identity and sexual orientation in all of the City's employment, contracting and vending activities and in the provision and accessing of all City services, facilities, programs and activities.

Specifically prohibited the policy are the following:

• Failing or refusing to hire, recruit, appoint, promote or train any individual or otherwise discipline, demote, transfer lay off, fail to recall, or terminate any individual because of such individual's sexual orientation and/or gender identity;
• Limiting, segregating or classifying employees or applicants in a way that would deprive, or tend to deprive, any individual of equal opportunity or otherwise adversely affect the status of the employee or applicant because of the individual's sexual orientation or gender identity;
• Failing or refusing to recommend any contract or purchase for award based on a contractor or vendor's sexual orientation or gender identity;
• Failing to make available to any member of the public or employee use of a city facility or receipt of city service because of their sexual orientation or gender identity;
• Impeding access by an employee or member of the public to a city restroom facility that is consistent with and appropriate to that person's expression of gender identity;
• Limit participation by any city employee or member of the public in any city-sponsored activity because of the person's sexual orientation or gender identity in which they would otherwise be permitted to participate.

 You can access a full copy of the Executive Order here.

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When investigating a charge of discrimination, the EEOC has the authority to issue administrative subpoenas requiring employers to produce relevant information.  This power, however, is rarely used because most employers voluntarily comply with the EEOC's reasonable requests for information. 

In San Antonio, a law firm respondent is testing the EEOC's powers to require information be produced via administrative subpoena.  In EEOC v. Malaise law firm, the EEOC is seeking the names and addresses of employees working for the law firm as potential witnesses.  The request was made in connection with the Commission's investigation of a claim of sexual harassment.   The firm responded that this information was not relevant, constituted a fishing expedition, and invaded the privacy rights of nonparties   The EEOC persisted in its efforts to obtain the information and ultimately issued an administrative subpoena to the firm.  The law firm filed objections to the subpoena which the EEOC overruled (Yes, the EEOC gets to make the rulings on objections made to its subpoenas).  The law firm still failed to comply with the subpoena and the EEOC filed a Petition to Enforce the subpoena in the U.S. District Court. 

The interesting part about the fact the EEOC had to go to court to get this information is that the Commission's court filing shows some insight into how it goes about investigating charges of discrimination. You can read the EEOC's Petition to Enforce here and the affidavit in support of the petition (with all of the fun-to-read exhibits containing the charge and letters between the firm and EEOC)  here.

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Today, the U.S. Supreme Court held that provisions in collective bargaining agreements that clearly and unmistakably require union members to submit statutory discrimination claims to the grievance and dispute resolution provisions of the agreement are binding and enforceable. 

In 14 Penn Plaza LLC v. Pyett ,  a dispute arose over a commercial office building's reassignment of night watchmen employees (whose duties were outsourced) to less desirable positions such as light duty cleaners and porters.  The reassigned employees, members of the Service Employee International Union, Local 32BJ, filed a grievance with the union contending that the reassignments violated, among other things, the CBA's ban on age discrimination.  When the grievances were unsuccessful, the Union requested arbitration under the dispute resolution procedures of the CBA.  The union later withdrew the grievances to the extent they complained about age discrimination prohibited by the contract but continued to press for arbitration on the remaining claims.

The disgruntled reassigned employees then filed a charge of discrimination with the EEOC over their reassignment claiming the reassignments were discriminatory.   After the EEOC issued a right to sue letter and the employees sued in federal district court, the defendant filed a motion to compel arbitration relying on the language of the grievance and dispute resolution procedures of the CBA with the union that stated:

§ 30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

The trial court and Second Circuit Court of Appeal refused to compel arbitration holding that a CBA could not waive the bargaining unit members' right to a judicial forum over statutory civil rights claims created by Congress.

The Supreme Court reversed holding that where the intent to submit statutory discrimination claims to the grievance and dispute resolution procedures of the CBA is clear and unmistakable (an issue that was not in dispute before the court --i.e., the parties agreed that the language was sufficiently explicit) nothing precluded the union's ability to waive its members right to a judicial forum to resolve those discrimination claims.  A majority of the Court rejected the employee's argument that the union was waiving important, substantive rights to be free from age discrimination. 

The Court noted that the union had not waived (nor could it) the employee's right to be free from and to challenge employment actions that were based on unlawful motivations such as age discrimination.  Rather, the Court observed, the Union had merely negotiated for and agreed that such claims would be resolved in a forum other than a judicial one --i.e., arbitration.  Consequently, the Court held that to the extent the employees were to litigate their statutory age discrimination claims they would have to do so within the confines of the grievance and dispute resolution procedures of the CBA.

As a consequence of this ruling it is unlikely that unions will agree in future negotiations that their grievance and arbitration procedures include employment discrimination and civil rights claims.  Placing the unions in the position of using limited resources to arbitrate otherwise individual claims is unlikely to be something that benefits the majority of the bargaining unit members.  This potential conflict of interest is something most unions would prefer to avoid. 

Other commentators have suggested, and I agree, that the holding of this case is likely to be limited because Congress may seek to overturn it as it did with the Court's Ledbetter decision.  See Jottings by an Employer's Lawyer and The Delaware Employment Law Blog . 

Another potential consequence is that the existence of a mandatory arbitration provision in a CBA covering employment discrimination claims may be an important factor the EEOC considers in deciding whether to litigate over a particular charge of discrimination.  Under the current law the EEOC is not be bound by the grievance and arbitration provisions in CBA's (nor individual employment contracts between employees and employers) and it could vindicate an employee's rights in a federal judicial forum notwithstanding the CBA.

Until legislation is passed to overturn 14 Penn Plaza, employers and unions with CBAs that clearly and unmistakably include employment discrimination and civil rights claims in the grievance and dispute resolution provisions will now be forced to resolve those disputes in an arbitral forum.

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The EEOC recently released the latest statistics detailing the number of charges of discrimination filed in 2008.  Last year marked the largest number of charges filed in a single year totaling 95,402 charges of discrimination.  While every category of charges increased (and the total increased 15.2 percent over 2007), charges of age discrimination and retaliation increased the most at 28.6 and 22.6 percent respectively. 

Disability discrimination claims saw the least amount of growth at 9.6 percent.  However, with the passage of the ADA Amendments Act in 2008, I expect 2009 disability discrimination claims to be up sharply during 2009.  Equal Pay Act claims were also up 16.6 percent and with the passage of the Lilly Ledbetter Fair Pay Act, claims arising under that statute will also likely increase in 2009 and beyond.  With escalating unemployment, the deepening recession, and an increase in the EEOC’s budget, I expect charge filings for 2009 will again set an all-time record for charge filings across all categories and an uptick in resulting civil rights litigation against employers.

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