Applicants Sue PricewaterhouseCoopers LLP for Alleged Age Bias

Applicants of a proposed class of 40 and over job seekers rejected by PricewaterhouseCoopers LLP allege age discrimination on the part of the accounting giant, specifically citing the company’s employment practices. The applicants say that the hiring (in addition to other employment practices) inadvertently favor younger potential employees while discouraging older applicants.

Recently a federal judge in California ruled that the company would need to defend against the claims; in opposition to the previous conclusion reached in October 2016 by the U.S. Court of Appeals for the Eleventh Circuit. The federal judge’s conclusion embraces the view of the Equal Employment Opportunity Commission. The case could lead to a possible showdown between federal courts regarding who can bring this type of discrimination claims under the Age Discrimination in Employment Act. Although the U.S. Supreme Court has been asked to look at the Eleventh Circuit’s ruling so they may address the issue before it comes to that.

If the justices decide to review this particular case, they would necessarily need to consider the question of how much deference lower courts owe to the EEOC’s views on this particular issue.

PricewaterhouseCoopers LLP’s Reaction to the Ruling:

PwC’s argument that the job applicants didn’t have the right to sue for disparate-impact bias because they were not actually hired failed according to the U.S. District Court for the Northern District of California’s decision February 17th. The theory behind disparate-impact claims allege unintended biased effects resulting from policies or practices that may not be explicitly discriminatory. The allegation PwC is facing cites the company’s tool that purposefully recruits college students as limiting potential for hiring to recent college graduates and applicants with impending college graduations.

In October, a similar claim was brought before the Eleventh Circuit regarding the R.J. Reynolds Tobacco Co. Allegations in this case included that the company used guidelines to review resumes submitted for open positions that targeted job applicants that were only 2-3 years out from college graduation. In the R.J. Reynolds Tobacco Co. case, the court held that only the workers already hired could bring disparate-impact claims and that potential employees still in the hiring process or being considered for a position may sue only for intentional age discrimination.

In response to the situation, PricewaterhouseCoopers LLP stated that they respect all anti-discrimination laws, but do not agree with the interpretation of the court regarding the situation. The company spokesperson, advised that the firm believes that the provision of the ADEA does not apply to applicants for open positions.

Lead class counsel Outten & Golden LLP had a different take on the same issue. They found the Court’s decision to follow decades of Supreme Court precedent pleasing in its confirmation that job applicants can challenge age discrimination through the conventional disparate impact theory. They noted that Congress carefully ensured that all individuals could depend on coverage, not just employees. They also pointed out that it has been pointed out by the Supreme Court numerous times that the ADEA should be read similar to other civil rights statues (like the Fair Housing Act or Title VII) in order to include the types of claims being questioned.

U.S. District Judge Jon S. Tigar’s rejection of PwC’s attempted reliance on the Eleventh Circuit’s decision in the Villarreal v. R.J. Reynolds Tobacco Co., was based on a different interpretation of the ADEA in comparison to the majority. Tigar points to the phrase “any individual” used in the law providing a claim for disparate-impact bias and indicates that it does not use the narrower term “employee” even though the narrower term, “employee,” is used in other sections.

Because of the specific word use, Tigar concluded that it can be assumed that Congress’ variation in the terms used was deliberate and indicated that they intended to include all individuals rather than limiting the protections offered to employees. Tigar’s reading is supported by Supreme Court cases that signal disparate-impact claims may be brought by 40+ applicants for jobs.

While the plain language of the law in this case may continue to see varying interpretations, Tigar argued that the law should be viewed as providing protections for 40+ applicants alleging discrimination in employment and hiring policies like PwC’s college student recruitment tool. When a statute’s meaning is not clear the court should grant deference to the stance of the federal agency that is actually tasked with enforcing the law. In the case in question, the agency tasked with enforcement is the EEOC, which has interpreted the ADEA in the past as permitting disparate impact claims by applicants. PwC did not provide a substantial or compelling argument for not adhering to long-established views of the EEOC. Additionally, the law’s legislative history also supports rejection of the position the company is taking that the law only provides protection for employees. The Court added that Congress intended for the ADEA to overcome barriers to employment for older workers, not just age discrimination that may be faced once they’re hired.

If you have questions regarding age discrimination in the workplace or in the hiring process, please get in touch with the experienced northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Are Hugs a Hostile Act in the Workplace?

Are hugs a hostile act? What about in the work environment? In a recent decision by the U.S. 9th Circuit Court of Appeals a sexual harassment lawsuit against Yolo County Sheriff Edward G. Prieto was revived. According to the lawsuit, Prieto allegedly hugged a female correctional officer more than 100 times over the course of 12 years.

In defense of the “hugging,” Prieto argued that he also hugged male employees in the workplace. His lawyers further argued that if he hugged the women in the workplace more, it was simply due to general differences in the way that men and women interact on a routine basis with members of the same and opposite sex. Yet according to the 9th Circuit, hugging can create an abusive work environment if the action is unwelcome and pervasive.

Plaintiff in the case, Victoria Zetwick, was a correctional officer. She also alleges in the suit that Prieto once kissed her when congratulating her on her wedding to another deputy. She claims she saw him hug dozens of other female employees throughout her 12 years on the job, but only give male employees handshakes. During the case, Yolo County defense did get Zetwick to admit that she had been known to hug male co-workers on occasion. The Yolo defense team also pointed out a statement in which Zetwick described Prieto’s hugs as “brief.” There were no sexual comments or other touching.

In 2014, a federal district judge dismissed Zetwick’s lawsuit, but in appeal the court found she had offered up enough evidence to possibly persuade a juror of reasonable mind that she had experienced sexual harassment in the workplace due to Prieto’s tendency to hug female workers in the department. They indicated that it would seem that Zetwick had offered evidence that there were both qualitative and quantitative differences in the conduct of Prieto toward the two genders. In the suit, Zetwick stated that the behavior made it difficult for her to concentrate, left her stressed and anxious and eventually made her resort to sleeping medication.

If you need information about hostile workplace environments or hostile actions in the workplace, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

ESPN Faces Wrongful Termination Suit: Tennis Announcer Fired for Racist Venus Williams Comment

One of ESPN’s tennis commentators was fired last month after accusations of “racist language” when describing Venus William’s playing style during the Australian Open. Doug Adler, former ESPN tennis commentator, filed a wrongful termination lawsuit against ESPN feeling that he had been treated both badly and unfairly.

The controversial comment made by former ESPN tennis commentator, Doug Adler, occurred on January 18th during Venus Williams’s 6-3, 6-2 victory over Stefanie Voegele. Many reported hearing Adler say, “You see Venus move in and put the gorilla effect on, charging.” Twitter exploded with negative responses and appalled reactions. Some called for the immediate termination of the 58-year old former tennis pro, who had been working as a tennis commentator for ESPN since 2008. The next day, Adler apologized, but made sure to clarify that his words were misinterpreted and that he had actually said, “guerilla effect,” in reference to a style of play that was made famous in the 1990s.

Adler’s lawsuit was filed in the Los Angeles Superior Court, where he reiterated that he said “guerilla” and noted that ESPN was simply bowing to pressure from social media users when they fired him from his job because social media users believed and actively promoted that he had used the word “gorilla” to describe Venus Williams.

Adler sees the lawsuit as one of the few options he has to fight for his reputation amidst the escalating misinterpretations of his comment. In response to the firing from his position at ESPN, Adler has had other employers in the industry “shun” him resulting in major financial and emotional harm. He is seeking an undisclosed amount in compensation and damages.

Adler was unaware of the controversy caused by the comment until 24 hours later. At that time, ESPN replayed the tape for him and his broadcast partner, asking them if they noticed anything unusual. According to Adler, they didn’t. He states that he was then informed that it had gone viral and why. He was advised that the Twitter community was branding him as a racist. At that point, ESPN instructed Adler to issue an on air apology for the remark, which they wrote for him. Adler issued the apology, did not call any more matches that day and was fired the next.  

Adler’s attorney insists that the entire situation is ironic as Adler called everything professionally and correctly, while ESPN failed to do so. They recklessly made the wrong call and stuck to it. It is being labeled political correctness gone overboard as well as cowardly. Most of all, the actions of ESPN may have ruined a man’s career. When originally commenting upon Adler’s termination, ESPN stated that he should have been more careful in his word selection.

If you aren’t sure what constitutes wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Wrongful Termination Lawsuit Filed After Cal Women’s Water Polo Coach Fired

Richard Corso, former Cal women’s water polo coach, filed a California wrongful termination lawsuit against Athletic Director Mike Williams, Senior Associate Athletic Director Jenny Simon-O’Neill and Associate Athletic Director of Compliance Jay Larson. Corso seeks $1.38 million in lost wages.

In the suit, Corso alleges gender and age discrimination in the wrongful termination suit. Corso also alleges that in 2015, Simon-O’Neill, a senior woman administrator, said that the administrators were looking for the team to be led by a young woman. According to the suit, before the meeting the former Cal athletic director, Sandy Barbour, said she wanted to see women coaching women.  After the suit was filed, Cal Athletics denied the allegations, calling them false and/or fictitious.

Two months after 62-year old Corso resigned, the Bears hired 39-year old Coralie Simmons. Prior to being hired at Cal, Simmons led Sonoma State. Cal Athletics claims that their search included both male and female candidates. Simmons is currently the only female head water polo coach in the Mountain Pacific Sports Federation.

The wrongful termination lawsuit lists the UC Board of Regents and UC Berkeley as defendants and describes an internal inquiry into the training practices used by the water polo team in accordance with NCAA bylaws. According to the lawsuit, Larson told Corso in March 2015 of over-training violation suspicions. Two months later, O’Neill received an allegation regarding the potential over-training violations that led to an internal inquiry. Further in the lawsuit, it is alleged that the internal inquiry/investigation quickly turned into a crusade against Corso even though the eventual conclusion was that the allegations were “meaningless.”

Cal Athletics suggests differently, stating that the allegations were, in fact, indicative of very serious violations and that the NCAA Enforcement staff initially considered the case as a Level II violation prior to determining that it should be handled as a Level III. They further described the investigation as being “self-reported” to the NCAA and that at its conclusion; it resulted in a reduction of 48 hours of practice time.

Corso alleges that he exhibited exceptional performance, but was mistreated in spite of his record. He cites his 227-98 record as well as the team’s improved graduation rate. Corso took over the Bears in 2005. At that time, the team was described as “lacking” both in academic and athletic standards. The peak of Corso’s Cal career was in 2011 when the Bears advanced to the final game of the NCAA Championships where they lost to UCLA. The Bears are currently 9-1 in their current season, led by new head coach Simmons.

If you have questions regarding what constitutes wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Catholic Teacher Files Wrongful Termination Suit: Fired After Sharing Gay Marriage on Social Media

Kenneth Bencomo, a former Catholic high school teacher, claims he was fired from his job after his legal marriage to his same-sex partner. Bencomo states in the lawsuit that until he was fired, he was unaware of the church’s stance on homosexuals and gay marriage. Bencomo, now 49 years old, was raised Catholic and graduated from an all-male Catholic high school in La Verne.

Bencomo and his same-sex partner, Christopher Persky, met in April 2003. The two were among a large group of same-sex couples that married when the U.S. Supreme Court ruled in June 2013 that gay weddings could resume in California for the first time since 2008. Bencomo was fired from St. Lucy’s Priory High School in Glendora, California in July 2013. The firing occurred less than two weeks after Bencomo publicly shared news of his nuptials through social media.

Bencomo filed suit against St. Lucy’s in March 2014 citing wrongful termination claims in violation of public policy as well as violations of state Labor Code and breach of employment contract. The attorneys representing the school filed a motion for dismissal on the grounds that the school was founded by a Catholic-affiliated organization and therefore has immunity from the claims included in Bencomo’s suit. Bencomo’s attorney argues that the school’s argument for dismissal is a misguide application of the ministerial exception.

During Bencomo’s deposition, he was asked about his knowledge of the Catholic Church’s view of gays and gay marriage. Bencomo stated that at the time he took the job at St. Lucy’s, he had no idea what the Catholic Church’s stance was regarding being gay. He further stated that he learned about the church’s position on the matter when he was terminated. He said that he doesn’t remember who it was that told him that it was okay to be gay, but that you couldn’t act on it. Bencomo stated that he didn’t believe that the information he was provided was an actual representation of the Catholic Church’s official viewpoint on gays.

If you feel that you may have been wrongfully terminated from your job, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

US Airways Requests Rejection of Overtime Claims

Legal representation for US Airways in the California class action overtime lawsuit filed in 2012 requested that the federal judge hearing the case on January 13th, 2017 reject overtime claims brought by the certified class of US Airways fleet service agents. The company claims that the unionized workers’ collective bargaining agreement (CBA) as well as the Railroad Labor Act (RLA) makes the workers involved in the suit exempt from some state labor laws.

The attorney argued that it is not uncommon for state legislatures to remove RLA collective bargaining agreements because of interstate commerce concerns and that these concerns are often applicable to flight crews. In a January 26th motion, it was requested that the court consider legislative history materials in regards to Assembly Bill 60 concerning overtime exemptions. It was argued that the legislative history does not support the plaintiffs’ arguments that the collective bargaining exemption in the California Labor Code is in conflict with the RLA exemption. Legal Representation pointed out the plain language of the two statutes failing to indicate a conflict.

The judge will need to rule on an October 2016 motion filed by US Airways legal counsel to decertify “grace period” fleet workers that were previously certified in 2014. These workers claimed they should have received payment for work during “downtime” required between clocking in and clocking out. The company stated that workers were free to do as they wished during the unpaid time and that in some cases they had enough time to fulfill preparatory duties on the clock. The judge found that discovery suggested that requests for compensation in regards to putting on gear (“donning and doffing”) were handled differently depending on the airport. The judge also questioned the difference between the estimated time for “donning and doffing” as offered by the opposing attorneys. Plaintiffs indicate five minutes is necessary, but the judge questioned the accuracy of the estimate. US Airways attorneys suggest the task can be completed in less than a minute.

If you have questions or concerns regarding off the clock work or unpaid overtime, please get in touch with an experienced southern California employment law attorney at Blumenthal, Nordrehaug & Bhowmik.

Minimum Wage Lawsuit Vs. California Club Filed by Exotic Dancers

Two former exotic dancers out of San Francisco recently joined the growing ranks of dancers who are pursuing litigation against California clubs allegedly in violation of labor law. Elena Pera and Sarah Murphy filed their California minimum wage lawsuit on January 11, 2017 listing S.A.W. Entertainment LTD as the defendant in the case. In this case, the company, doing business as Condor Gentleman’s Club, allegedly filed to provide legal minimum wage to exotic dancers as a result of misclassification as independent contractors rather than employees.

Pera and Murphy seek damages and restitution on behalf of themselves and other exotic dancers in similar positions. The plaintiffs filed the minimum wage lawsuit in the U.S. District Court for the Northern District of California. Legal counsel involved in the case stated that dozens of cases have been handled with similar claims and circumstances in the last four years, that there is currently a nationwide push for this type of case, and that virtually ever court that has decided similar cases held that the exotic dancers were employees – not independent contractors.

2011: Courts handed down a decision favoring a group of exotic dancers out of Georgia claiming they should be classified as employees and not independent contractors (Clincy v. Galardi South Enterprises operating as Club Onyx). This ruling was designated as a “road map” for cases involving dancers and clubs. It included a number of definitions of factors determining if a worker is, in fact, an employee in accordance with the Fair Labor Standards Act (FLSA).

Legal trends indicate that the law will support the argument that the girls are employees rather than independent contactors. Categorization as employees would entitle them to minimum wage, overtime payment, and liquidated damages due to the misclassification.

Due to the legal trend, more dancers are coming forward with lawsuits against their clubs and dancing establishments across the country mainly citing misclassification as well as other general labor-law violations.

If you have questions regarding misclassification or unpaid overtime, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.