Seventh Circuit Revives Discrimination Lawsuit Against Law Firm

Two weeks ago, the Seventh Circuit Court of Appeals revived a discrimination lawsuit against the law firm of SmithAmundsen, which was dismissed by a federal district court judge.  Laura Makowski was the former Marketing Director of the law firm.  According to her lawsuit, Makowski claimed that while she was on maternity leave in 2008, she was told by the managing partner that her job was being eliminated during a restructuring.  The Human Resources Director allegedly later told her that the law firm fired her because she took maternity leave.  The district court held that the Human Rescources Director's alleged statement was inadmissible hearsay and excluded it when ruling on the employer's motion for summary judgment.  He then dismissed the case.  The appeals court held that the lower court erred in finding that the statement was hearsay, since it was made by an agent of the employer.  Makowski filed suit under the Pregnancy Discrimination Act and The Family and Medical Leave Act.

Federal Appeals Court Rules That Lawyer Can Sue for Discrimination

The Seventh Circuit Court of Appeals ruled that an associate attorney formerly employed by Johnson & Bell may pursue his employment discrimination case while the appeal of the dismissal of his defamation case from state court is pending.  Meanith Huon brought a defamation case against her former employer alleging that the law firm defamed her in performance evaluations.  In the discrimination case, Huon contends that he received unfavorable treatment due to his race and national origin.  A lower federal court originally would not let both cases proceed simultaneously.  Huon may have avoided this problem entirely had he brought all claims in one suit.  He likely believed that his defamation claim would be more valuable if it proceeded in the Circuit Court of Cook County.

Tyson Foods Agrees to Pay $2.25 Million in Discrimination Case

Tyson Foods has agreed to settle a class action lawsuit in a failure to hire gender discrimination lawsuit by paying $2.25 million in back wages, interest and other benefits to 1,650 female job applicants involving three comany facilities in Illinois, Nebraska, and Iowa.  The comany also agreed to offer employment to 220 of the female job applicants.  Tyson denied that it discriminated against the women.  Approximately 25% of the women who originally did not get jobs received employment offers from the company before the Department of Labor initiated action.

3M Agrees to Settle Age Discrimination Case for $3 Million

3M Company agreed to settle an age discrimination case filed by the U.S. Equal Opportunity Commission.  The EEOC alleged that the company unlawfully laid off hundreds of workers over the age of 45 from July 1, 2003 through December 31, 2006.  Federal law prohibits discrimination against workers over the age of 40.  The federal agency said that the company laid off workers to save money.  Assuming that the federal court approves the settlement, money will be disbursed to about 290 former employees, and 3M will agree to post openings for positions it had not previously made available for older employees.  The company also agreed to establish a process to review termination decisions and to conduct training on how to prevent age bias.  Earlier this year, the company settled another age discrimination case filed in Minnesota for $12 million.  The EEOC's investigation found an e-mail from the company's CEO stating that "we should be developing 30-year-olds with general manager potential."

EEOC Files 15 New Discrimination Lawsuits

In the last 10 days of August, the Equal Employment Opportunity Commission filed 15 discrimination lawsuits targeting major companies including Ford Motor Co., Kohl's Department Stores, air transporter SITA Information Networking Computing USA, Inc., as well as the government of American Samoa, largely addressing disability discrimination. The agency recently finished regulations enforcing 2008 amendments to the Americans With Disabilities Act (ADA) that broadened the definition of who is considered disabled. The amendments overturned several Supreme Court decisions that Congress believed interpreted the definition of 'disability' too narrowly, denying protection for people with impairments like cancer, diabetes or epilepsy. The Ford suit alleges the company refused work accommodations for an employee with irritable bowel syndrome and Kohl's allegedly denied a regular work schedule request from a diabetic employee.

Three Months Employment Not Sufficient Consideration for Post-Employment Restrictive Covenant

Employees are often faced with a dilemna on the job - they work for a new employer and then are thrust with a demand that they sign a non-compete agreement or other restrictive covenant, agreeing either not to solicit employees or clients when they separate their employment.  The question becomes, what is the length of employment after an employee signs such a restrictive covenant that will bind an employee? According to an appellate court decision delivered on June 7, 2011, three months is not enough but two years will suffice.  Earlier this summer, the court decided the case of Diederich Insurance Agency, LLC Smith v. Smith.  In that case, Smith started working as an insurance agent for Diederich in October, 2007.  At that time, he signed a non-compete agreement, agreeing that from the time of his separation of employment, he would not engage in the prohibited activity for a period of two years.  Three months before Smith quit, he signed a confidentiality agreement that reduced the period of non-competition to one year.  Diederich sued Smith claiming that Smith breached the revised agreement.  Smith moved for dismissal of the complaint and the trial court dismissed the claim.  On appeal, the appellate court held that for the revised employment agreement to be valid and enforceable, there needed to be consideration.  The court found that continued substantial employment could be sufficient consideration for the employment agreement, but that three months is not enough. The court also stated, that a minimum, at least two years is required.  Readers should be aware that this ruling was from only one district of Illinois' appellate court, and is not binding on other district, including Chicago.

Jury Acquits Defendant of Eavesdropping

A Cook County jury acquitted a woman of illegally eavesdropping on two police officers on Wednesday, August 24, 2011.  The woman was charged with recording the officers with her Blackberry when she believed that the officers were trying to talk her out of pursuing a sexual harassment claim against a patrol officer.  Illinois law provides that is unlawful to record a conversation unless all parties to the conversation agree.  The penalty for recording a police officer is much more severe than recording a private citizen.  In federal employment discrimination cases, our office occasionally comes across the situation where the employee records his supervisor making discriminatory statements.  While the employee may be committing a crime under state law, generally, the tape is admissible in a federal employment discrimination case as federal law does not require both parties to consent to a taped conversation.  Thus, while the employee may be prosecuted under state law, he may be able to prevail in his employment case with the use of the evidence.

Seventh Circuit Holds That Actionable Racial Discrimination Exists Even If All Not Targeted

On August 8, 2011, a unanimous panel of the Seventh Circuit Court of Appeals held that discrimination against some Hispanic employees violates fedreal anti-discrimination laws even if the company does not discriminate against others in the protected class.  The appeals court reversed a summary judgment ruling by the district court in favor of the employer.  Two plaintiffs were long time employees of Kraft Foods who lost their jobs in November, 2008, following an outsourcing.  The employer pointed to evidence demonstrating that another Hispanic employee did not lose his job.  In the opinion, Judge Diane Wood stated that "Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law."  Our office routinely handles race discrimination claims and cases involving a hostile work environment.

NYU Settles Race Discrimination Lawsuit for $210,000

New York University agreed to settle a race discrimination lawsuit for $210,000.  The lawsuit was brought by an employee of the university who claimed that he was subjected to racial insults such as "monkey," "gorilla" and "do you want a banana?"  The U.S. Equal Employment Opportunity Commission, or EEOC, brought suit on behalf of the individual.  Our office routinely handles discrimination claims involving race, gender, disability and age.

Appellate Court Clarifies Employment Tort of Retaliatory Discharge

On July 21, 2011, the Illinois Appellate Court issued an opinion in the case of Michael v. Precision Alliance Group, which clarifies the tort of retaliatory discharge.  Under common law, the State of Illinois prohibits an employer for retaliating against an employee and terminating their employment if they engage in protected activity.  Generally, the courts have given a narrow view to the claim.  The classic case involves an employee who gets injured on the job and files a claim against his employer for worker's compensation.  If the employer terminates the employee for that reason, it is an illegal motive, and the employee has a civil action against the employer.  In the Michael case, three employees were employed by Precision's plant in downstate Nashville.  The company is in the agricultural supply business.  It packages soybean seeds in 50 pound and 2,000 pound bags for commercial sale.  The employees observed that the company was shipping underweight bags.  The three plaintiffs recorded information about the underweight bags and forwarded the information to another individual, Dudley, who formerly worked for the company.  Dudley, in turn, passed the information to the state.  In February, 2003, the Department of Agriculture began investigating the company.  The agency issued a stop-sale order against the company on February 20, 2003.  The trial court threw the case out, reasoning that the plaintiffs did not report the activity to the state.  The appellate court reversed, reasoning that the plaintiffs intended that the information be conveyed to the state.  The court also held that mislabeling weight under state law violated public policy, and thus, the plaintiffs' retaliatory discharge claim was actionable.

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