2005 plus international conference the new face of employment litigation: class actions and beyond

2005 PLUS International Conference2005 PLUS International Conference The New Face of Employment The New Face of Employment Litigation: Class Actions and Litigation: Class Actions and

BeyondBeyond

2005 PLUS International Conference2005 PLUS International Conference The New Face of Employment The New Face of Employment Litigation: Class Actions and Litigation: Class Actions and

BeyondBeyond

Lucy Ann GaliotoLucy Ann GaliotoVP - National Union/AIGVP - National Union/AIG

David KeenanDavid KeenanVP – EPL Claim Manager, ChubbVP – EPL Claim Manager, Chubb

John LozadaJohn LozadaChief of Enforcement, Mass. Comm. Against Discrim.Chief of Enforcement, Mass. Comm. Against Discrim.

Jack McCalmon, Esq.Jack McCalmon, Esq.Partner: Titus, Hillis, Reynolds, Dickman & McCalmonPartner: Titus, Hillis, Reynolds, Dickman & McCalmon

Philip R. Voluck, Esq.Philip R. Voluck, Esq.Partner: Kaufman, Schneider & Bianco, LLPPartner: Kaufman, Schneider & Bianco, LLP

Lucy Ann GaliotoLucy Ann GaliotoVP - National Union/AIGVP - National Union/AIG

David KeenanDavid KeenanVP – EPL Claim Manager, ChubbVP – EPL Claim Manager, Chubb

John LozadaJohn LozadaChief of Enforcement, Mass. Comm. Against Discrim.Chief of Enforcement, Mass. Comm. Against Discrim.

Jack McCalmon, Esq.Jack McCalmon, Esq.Partner: Titus, Hillis, Reynolds, Dickman & McCalmonPartner: Titus, Hillis, Reynolds, Dickman & McCalmon

Philip R. Voluck, Esq.Philip R. Voluck, Esq.Partner: Kaufman, Schneider & Bianco, LLPPartner: Kaufman, Schneider & Bianco, LLP

2005 PLUS International Conference2005 PLUS International ConferenceTHE NEW FACE OF EMPLOYMENT LITIGATION: CLASS ACTIONS AND BEYONDTHE NEW FACE OF EMPLOYMENT LITIGATION: CLASS ACTIONS AND BEYOND

AGENDAAGENDAAGENDAAGENDA

Explore Current Trends In Explore Current Trends In Employment Litigation (Lucy)Employment Litigation (Lucy)

Impact of Class Actions (Dave)Impact of Class Actions (Dave)State and Federal Protections in State and Federal Protections in

the Workplace (John)the Workplace (John)Loss Prevention Strategies (Philip)Loss Prevention Strategies (Philip)

Explore Current Trends In Explore Current Trends In Employment Litigation (Lucy)Employment Litigation (Lucy)

Impact of Class Actions (Dave)Impact of Class Actions (Dave)State and Federal Protections in State and Federal Protections in

the Workplace (John)the Workplace (John)Loss Prevention Strategies (Philip)Loss Prevention Strategies (Philip)

Jack McCalmon, Esq. – Titus, Hillis, Reynolds, Dickman & McCalmonJack McCalmon, Esq. – Titus, Hillis, Reynolds, Dickman & McCalmon


Overview of 2004 EEOC EPLI StatisticsOverview of 2004 EEOC EPLI StatisticsOverview of 2004 EEOC EPLI StatisticsOverview of 2004 EEOC EPLI Statistics Employees filed 79,432 charges in FY 2004.Employees filed 79,432 charges in FY 2004. This presents a This presents a decreasedecrease in the number of charges in the number of charges

filed when compared to those filed in FY 2002: 84,442 filed when compared to those filed in FY 2002: 84,442 and 2003: 81,293. and 2003: 81,293.

This decrease is the result of This decrease is the result of more plaintiffs filing more plaintiffs filing state chargesstate charges where there are where there are no caps on punitive no caps on punitive damagesdamages..

During 2004 the EEOC recovered a record During 2004 the EEOC recovered a record $419 M$419 M in in compensatory damages for employees. compensatory damages for employees.

$251 M$251 M was recovered through was recovered through pre-litigationpre-litigation resolutions and resolutions and $168 M$168 M was recovered through was recovered through lawsuitslawsuits filed in federal district court. filed in federal district court.

Employees filed 79,432 charges in FY 2004.Employees filed 79,432 charges in FY 2004. This presents a This presents a decreasedecrease in the number of charges in the number of charges

filed when compared to those filed in FY 2002: 84,442 filed when compared to those filed in FY 2002: 84,442 and 2003: 81,293. and 2003: 81,293.

This decrease is the result of This decrease is the result of more plaintiffs filing more plaintiffs filing state chargesstate charges where there are where there are no caps on punitive no caps on punitive damagesdamages..

During 2004 the EEOC recovered a record During 2004 the EEOC recovered a record $419 M$419 M in in compensatory damages for employees. compensatory damages for employees.

$251 M$251 M was recovered through was recovered through pre-litigationpre-litigation resolutions and resolutions and $168 M$168 M was recovered through was recovered through lawsuitslawsuits filed in federal district court. filed in federal district court.


EEOC EPLI StatisticsEEOC EPLI StatisticsEEOC EPLI StatisticsEEOC EPLI Statistics

RACE DISCRIMINATION:RACE DISCRIMINATION: Employees filed 27,696 Employees filed 27,696

charges; EEOC recovered charges; EEOC recovered $61 M$61 M for these for these

complainants. complainants.

SEX DISCRIMINATION:SEX DISCRIMINATION: Employees filed 24,000 charges; Employees filed 24,000 charges;

EEOC recovered EEOC recovered $100 M$100 M for these complainants. for these complainants.

AGE DISCRIMINATION:AGE DISCRIMINATION: Employees filed 17,837 charges; Employees filed 17,837 charges;


DISABILITY DISCRIMINATION:DISABILITY DISCRIMINATION: Employees filed 15,000 Employees filed 15,000

charges; EEOC recovered charges; EEOC recovered $47 M$47 M for these complainants. for these complainants.

RACE DISCRIMINATION:RACE DISCRIMINATION: Employees filed 27,696 Employees filed 27,696

charges; EEOC recovered charges; EEOC recovered $61 M$61 M for these for these

complainants. complainants.

SEX DISCRIMINATION:SEX DISCRIMINATION: Employees filed 24,000 charges; Employees filed 24,000 charges;


AGE DISCRIMINATION:AGE DISCRIMINATION: Employees filed 17,837 charges; Employees filed 17,837 charges;


DISABILITY DISCRIMINATION:DISABILITY DISCRIMINATION: Employees filed 15,000 Employees filed 15,000



EEOC EPLI StatisticsEEOC EPLI StatisticsEEOC EPLI StatisticsEEOC EPLI Statistics

SEXUAL HARASSMENT:SEXUAL HARASSMENT: Employees filed 13,000 Employees filed 13,000


15% of the sexual harassment charges were filed by 15% of the sexual harassment charges were filed by

males.males.

NATIONAL ORIGIN:NATIONAL ORIGIN: Employees filed 8,000 charges; Employees filed 8,000 charges;


RELIGION:RELIGION: Employees filed 2,500 charges; EEOC Employees filed 2,500 charges; EEOC

recovered recovered $6 M$6 M for these complainants. for these complainants.

PREGNANCY DISCRIMINATION:PREGNANCY DISCRIMINATION: Employees filed 4,500 Employees filed 4,500


SEXUAL HARASSMENT:SEXUAL HARASSMENT: Employees filed 13,000 Employees filed 13,000


15% of the sexual harassment charges were filed by 15% of the sexual harassment charges were filed by

males.males.

NATIONAL ORIGIN:NATIONAL ORIGIN: Employees filed 8,000 charges; Employees filed 8,000 charges;


RELIGION:RELIGION: Employees filed 2,500 charges; EEOC Employees filed 2,500 charges; EEOC

recovered recovered $6 M$6 M for these complainants. for these complainants.

PREGNANCY DISCRIMINATION:PREGNANCY DISCRIMINATION: Employees filed 4,500 Employees filed 4,500



EEOC Litigation Against Small EEOC Litigation Against Small and Mid-Size Employersand Mid-Size Employers

EEOC Litigation Against Small EEOC Litigation Against Small and Mid-Size Employersand Mid-Size Employers

Since 2002 the EEOC has aggressively Since 2002 the EEOC has aggressively pursued small and mid- sized companies pursued small and mid- sized companies who have allegedly engaged in who have allegedly engaged in discriminatory practices. discriminatory practices.

Many of these settlements have been in Many of these settlements have been in excess of $1 M.excess of $1 M.

Since 2002 the EEOC has aggressively Since 2002 the EEOC has aggressively pursued small and mid- sized companies pursued small and mid- sized companies who have allegedly engaged in who have allegedly engaged in discriminatory practices. discriminatory practices.

Many of these settlements have been in Many of these settlements have been in excess of $1 M.excess of $1 M.


Examples of EEOC Litigation Against Examples of EEOC Litigation Against Small and Mid-Size EmployersSmall and Mid-Size Employers

Examples of EEOC Litigation Against Examples of EEOC Litigation Against Small and Mid-Size EmployersSmall and Mid-Size Employers

Apollo Colors:Apollo Colors: Apollo Colors, a Chicago paint Apollo Colors, a Chicago paint

manufacturer with 200 employees, settled a manufacturer with 200 employees, settled a racial racial

harassmentharassment action brought by the EEOC on behalf of action brought by the EEOC on behalf of

African American employees of Apollo Colors for African American employees of Apollo Colors for $1.8 $1.8

M.M.

NY Lutheran Medical Center at Brooklyn:NY Lutheran Medical Center at Brooklyn: Hospital Hospital

settled a settled a sexual harassmentsexual harassment suit brought by the EEOC suit brought by the EEOC

on behalf of female employees for on behalf of female employees for $5 M.$5 M.

Long Prairie Packing:Long Prairie Packing: A Minneapolis packing company A Minneapolis packing company

with 235 workers settled a male-on-with 235 workers settled a male-on-male sexual male sexual

harassmentharassment matter brought by the EEOC on behalf of matter brought by the EEOC on behalf of

male employees for male employees for $1.9 M.$1.9 M.

Apollo Colors:Apollo Colors: Apollo Colors, a Chicago paint Apollo Colors, a Chicago paint

manufacturer with 200 employees, settled a manufacturer with 200 employees, settled a racial racial

harassmentharassment action brought by the EEOC on behalf of action brought by the EEOC on behalf of

African American employees of Apollo Colors for African American employees of Apollo Colors for $1.8 $1.8

M.M.

NY Lutheran Medical Center at Brooklyn:NY Lutheran Medical Center at Brooklyn: Hospital Hospital

settled a settled a sexual harassmentsexual harassment suit brought by the EEOC suit brought by the EEOC

on behalf of female employees for on behalf of female employees for $5 M.$5 M.

Long Prairie Packing:Long Prairie Packing: A Minneapolis packing company A Minneapolis packing company

with 235 workers settled a male-on-with 235 workers settled a male-on-male sexual male sexual

harassmentharassment matter brought by the EEOC on behalf of matter brought by the EEOC on behalf of

male employees for male employees for $1.9 M.$1.9 M.


Employment Litigation StatisticsEmployment Litigation StatisticsEmployment Litigation StatisticsEmployment Litigation Statistics Today Today 1/51/5 of the employment practice matters brought to of the employment practice matters brought to

trial result in a trial result in a plaintiff’s award ofplaintiff’s award of $1 M or more.$1 M or more. More than More than 1 in 51 in 5 Americans have experienced employment Americans have experienced employment

discrimination according to a FindLaw Survey released July discrimination according to a FindLaw Survey released July 2004.2004.

The 2004 Jackson Lewis Workplace Survey revealed that The 2004 Jackson Lewis Workplace Survey revealed that respondent employers experience an increase in gender respondent employers experience an increase in gender discrimination and sexual harassment complaints filed discrimination and sexual harassment complaints filed against them: against them:

In 2004 In 2004 58%58% of respondents defended gender of respondents defended gender discrimination complaintsdiscrimination complaints compared to 48% in 2003. compared to 48% in 2003.

In 2004 In 2004 63%63% of respondents defended sexual harassment of respondents defended sexual harassment matters matters compared to 57% in 2003compared to 57% in 2003. .

Today Today 1/51/5 of the employment practice matters brought to of the employment practice matters brought to trial result in a trial result in a plaintiff’s award ofplaintiff’s award of $1 M or more.$1 M or more.

More than More than 1 in 51 in 5 Americans have experienced employment Americans have experienced employment discrimination according to a FindLaw Survey released July discrimination according to a FindLaw Survey released July 2004.2004.

The 2004 Jackson Lewis Workplace Survey revealed that The 2004 Jackson Lewis Workplace Survey revealed that respondent employers experience an increase in gender respondent employers experience an increase in gender discrimination and sexual harassment complaints filed discrimination and sexual harassment complaints filed against them: against them:

In 2004 In 2004 58%58% of respondents defended gender of respondents defended gender discrimination complaintsdiscrimination complaints compared to 48% in 2003. compared to 48% in 2003.

In 2004 In 2004 63%63% of respondents defended sexual harassment of respondents defended sexual harassment matters matters compared to 57% in 2003compared to 57% in 2003. .


Employment Litigation Statistics Employment Litigation Statistics (cont.)(cont.)

Employment Litigation Statistics Employment Litigation Statistics (cont.)(cont.)

According to According to USA TodayUSA Today, an estimated , an estimated 550 550

employment lawsuits are filed in the United employment lawsuits are filed in the United

States States every dayevery day. .

57%57% of the Retaliation claimsof the Retaliation claims brought in Federal brought in Federal

Court are Court are won bywon by Plaintiffs.Plaintiffs.

The National Compensatory Jury Award Median The National Compensatory Jury Award Median

for Employment Practices Liability in for Employment Practices Liability in 2003 was2003 was

$250 K$250 K. That same award in . That same award in 2001 was2001 was $168 K$168 K. .

(Jury Verdict Research 2004)(Jury Verdict Research 2004)

According to According to USA TodayUSA Today, an estimated , an estimated 550 550

employment lawsuits are filed in the United employment lawsuits are filed in the United

States States every dayevery day. .

57%57% of the Retaliation claimsof the Retaliation claims brought in Federal brought in Federal

Court are Court are won bywon by Plaintiffs.Plaintiffs.

The National Compensatory Jury Award Median The National Compensatory Jury Award Median

for Employment Practices Liability in for Employment Practices Liability in 2003 was2003 was

$250 K$250 K. That same award in . That same award in 2001 was2001 was $168 K$168 K. .

(Jury Verdict Research 2004)(Jury Verdict Research 2004)

JURY AWARDSJURY AWARDSJURY AWARDSJURY AWARDS

National Compensatory Jury Award Median National Compensatory Jury Award Median for Discrimination Cases (1997-2003)for Discrimination Cases (1997-2003)::

National Compensatory Jury Award Median National Compensatory Jury Award Median for Discrimination Cases (1997-2003)for Discrimination Cases (1997-2003)::


Age Age $255,143$255,143Disability Disability $210,000$210,000Sex Sex $151,625$151,625RaceRace $150,000$150,000


CLASS ACTIONSCLASS ACTIONSCLASS ACTIONSCLASS ACTIONS


Mass. General Law 151B: Mass. General Law 151B: EmploymentEmployment

Mass. General Law 151B: Mass. General Law 151B: EmploymentEmployment

Engaging in harassment and other employment actions Engaging in harassment and other employment actions based on these factors is unlawful:based on these factors is unlawful:

AgeAge Color/GeneticsColor/Genetics National origin or ancestryNational origin or ancestry DisabilityDisability ReligionReligion RetaliationRetaliation Criminal records (applications only)Criminal records (applications only) RaceRace Sexual OrientationSexual Orientation Active Military StatusActive Military Status Sex/GenderSex/Gender

Engaging in harassment and other employment actions Engaging in harassment and other employment actions based on these factors is unlawful:based on these factors is unlawful:

AgeAge Color/GeneticsColor/Genetics National origin or ancestryNational origin or ancestry DisabilityDisability ReligionReligion RetaliationRetaliation Criminal records (applications only)Criminal records (applications only) RaceRace Sexual OrientationSexual Orientation Active Military StatusActive Military Status Sex/GenderSex/Gender


Complaints by Type - 2004Complaints by Type - 2004Complaints by Type - 2004Complaints by Type - 2004

Employment 85%

Housing9%

PublicAccommodation

5%Other

1%


Sex 24%

Race/Color 22%

Sexual Orientation

2%

Age 11%Children 1%

Creed 2%

Disability20%

Family 1%Other

8%

National Origin 8%

Public Assistance1%

Bases of Complaints - 2004Bases of Complaints - 2004(100% = 4,323)(100% = 4,323)

Bases of Complaints - 2004Bases of Complaints - 2004(100% = 4,323)(100% = 4,323)


Loss ControlLoss ControlLoss ControlLoss ControlEmployee HandbooksEmployee HandbooksTrainingTrainingArbitration AgreementsArbitration AgreementsAudit Pay Classifications and Audit Pay Classifications and

Payroll Products and PoliciesPayroll Products and PoliciesRecruit and Maintain a Diverse Recruit and Maintain a Diverse

WorkforceWorkforceHold Managers AccountableHold Managers AccountableCONSULT EMPLOYMENT COUNSEL CONSULT EMPLOYMENT COUNSEL

BEFORE THE DECISION!BEFORE THE DECISION!

Employee HandbooksEmployee HandbooksTrainingTrainingArbitration AgreementsArbitration AgreementsAudit Pay Classifications and Audit Pay Classifications and

Payroll Products and PoliciesPayroll Products and PoliciesRecruit and Maintain a Diverse Recruit and Maintain a Diverse

WorkforceWorkforceHold Managers AccountableHold Managers AccountableCONSULT EMPLOYMENT COUNSEL CONSULT EMPLOYMENT COUNSEL

BEFORE THE DECISION!BEFORE THE DECISION!

Rachel Vanarsdall

take out periodsdon't capitalize "and"


What the Future HoldsWhat the Future HoldsWhat the Future HoldsWhat the Future HoldsChief Justice RobertsChief Justice Roberts Justice ___________?Justice ___________?

Partnering of Govt. AgenciesPartnering of Govt. Agencies

More ClaimsMore Claims

More Defense CostsMore Defense Costs More SettlementsMore Settlements

Chief Justice RobertsChief Justice Roberts Justice ___________?Justice ___________?

Partnering of Govt. AgenciesPartnering of Govt. Agencies

More ClaimsMore Claims

More Defense CostsMore Defense Costs More SettlementsMore Settlements


Emerging IssuesEmerging IssuesEmerging IssuesEmerging Issues

The smoke bomb:The smoke bomb:

Weyco Inc. terminated four employees Weyco Inc. terminated four employees because they smoked…on their own because they smoked…on their own time.time.

21 states do not protect the rights of 21 states do not protect the rights of smokers, including Michigan.smokers, including Michigan.

Estimated $157 billion spent annually Estimated $157 billion spent annually on medical expenses related to on medical expenses related to smoking and lost productivity.smoking and lost productivity.

Michigan courts do not view nicotine Michigan courts do not view nicotine addiction as a disability.addiction as a disability.

The smoke bomb:The smoke bomb:

Weyco Inc. terminated four employees Weyco Inc. terminated four employees because they smoked…on their own because they smoked…on their own time.time.

21 states do not protect the rights of 21 states do not protect the rights of smokers, including Michigan.smokers, including Michigan.

Estimated $157 billion spent annually Estimated $157 billion spent annually on medical expenses related to on medical expenses related to smoking and lost productivity.smoking and lost productivity.

Michigan courts do not view nicotine Michigan courts do not view nicotine addiction as a disability.addiction as a disability.



Emerging IssuesEmerging IssuesEmerging IssuesEmerging IssuesThe obesity bomb:The obesity bomb:

New Stanford study shows that obese employees New Stanford study shows that obese employees earn $3.41 less than non-obese counterparts.earn $3.41 less than non-obese counterparts.One possible reason: Employers believe obese One possible reason: Employers believe obese

workers cost more than non-obese in health care workers cost more than non-obese in health care costs.costs.

90% of American men and 70% of American women 90% of American men and 70% of American women become overweight at some point in their life.become overweight at some point in their life.31% of U.S. adults are obese. 31% of U.S. adults are obese.

Obesity is claimed to increase health care Obesity is claimed to increase health care spending by 10x. spending by 10x. Costs $1244 more per year to treat an obese person.Costs $1244 more per year to treat an obese person.Obesity tied to a 64% increase in diabetes. Obesity tied to a 64% increase in diabetes.

Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), eating Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), eating is declared a major life activity.is declared a major life activity.

The obesity bomb:The obesity bomb: New Stanford study shows that obese employees New Stanford study shows that obese employees

earn $3.41 less than non-obese counterparts.earn $3.41 less than non-obese counterparts.One possible reason: Employers believe obese One possible reason: Employers believe obese

workers cost more than non-obese in health care workers cost more than non-obese in health care costs.costs.

90% of American men and 70% of American women 90% of American men and 70% of American women become overweight at some point in their life.become overweight at some point in their life.31% of U.S. adults are obese. 31% of U.S. adults are obese.

Obesity is claimed to increase health care Obesity is claimed to increase health care spending by 10x. spending by 10x. Costs $1244 more per year to treat an obese person.Costs $1244 more per year to treat an obese person.Obesity tied to a 64% increase in diabetes. Obesity tied to a 64% increase in diabetes.

Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), eating Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), eating is declared a major life activity.is declared a major life activity.


Emerging IssuesEmerging IssuesEmerging IssuesEmerging Issues

The chicken bombThe chicken bomb::

When the Asian bird flu crosses When the Asian bird flu crosses over, how will employers react to over, how will employers react to employees afflicted?employees afflicted?

The chicken bombThe chicken bomb::

When the Asian bird flu crosses When the Asian bird flu crosses over, how will employers react to over, how will employers react to employees afflicted?employees afflicted?



Questions & AnswersQuestions & AnswersQuestions & AnswersQuestions & Answers



Thank You!Thank You!Thank You!Thank You!

Lucy Ann GaliotoLucy Ann Galioto Vice President, National Union/AIGVice President, National Union/AIG

David KeenanDavid Keenan VP – EPL Claim Manager, ChubbVP – EPL Claim Manager, Chubb

John LozadaJohn Lozada Chief of Enforcement, Mass. Comm. Against Discrim.Chief of Enforcement, Mass. Comm. Against Discrim.

Jack McCalmon, Esq.Jack McCalmon, Esq. Partner: Titus, Hillis, Reynolds, Dickman & McCalmonPartner: Titus, Hillis, Reynolds, Dickman & McCalmon

Philip R. Voluck, Esq.Philip R. Voluck, Esq. Partner: Kaufman, Schneider & Bianco, LLPPartner: Kaufman, Schneider & Bianco, LLP

Lucy Ann GaliotoLucy Ann Galioto Vice President, National Union/AIGVice President, National Union/AIG

David KeenanDavid Keenan VP – EPL Claim Manager, ChubbVP – EPL Claim Manager, Chubb

John LozadaJohn Lozada Chief of Enforcement, Mass. Comm. Against Discrim.Chief of Enforcement, Mass. Comm. Against Discrim.

Jack McCalmon, Esq.Jack McCalmon, Esq. Partner: Titus, Hillis, Reynolds, Dickman & McCalmonPartner: Titus, Hillis, Reynolds, Dickman & McCalmon

Philip R. Voluck, Esq.Philip R. Voluck, Esq. Partner: Kaufman, Schneider & Bianco, LLPPartner: Kaufman, Schneider & Bianco, LLP

2005 plus international conference the new face of employment litigation: class actions and beyond

Documents

charges eeoc

beyondeeoc litigation

state charges

number of charges

litigation resolutions

eeoc epli statisticsemployees

sexual harassment charges

pregnancy discrimination