In an employment case, like many cases, a witness’ credibility is important to winning a case. Your supervisor, or a co-employee, makes an obnoxious sexual comment to you or makes some statement indicating hostility toward you based on your medical condition, your race or your national origin.

If you are forced to litigate an employment discrimination claim against your employer, how likely do you think it is that anyone other than you is going to remember the comment 1-2 years after it was made, when witnesses in your cases (including the speaker of the discriminatory comment) are being interviewed (or deposed) in preparation for trial?

The answer is: unlikely. Memories fade. Moreover, speakers of discriminatory comments have no incentive to remember saying them. Witnesses who continue to draw their paychecks from the employer who discriminated against you likewise often do not wish to be perceived as “testifying against” their employer. It is much easier for such witnesses to say, “I don’t recall.”

For these reasons, employment discrimination cases frequently turn into credibility contests. Does the jury believe you, or does it believe the employer’s witnesses?

Your credibility will be enhanced if you just do a couple of things when you are being subjected to the discriminatory acts or comments.

1. Tell your friends and family. If you can produce witnesses who will testify that you reported the discriminatory acts or comments to them at the time you were being subjected to them, such testimony makes you more credible.

2. Keep contemporaneous notes describing the acts or comments. If you can produce a note that you made at the time of the act or comment describing what was said or done and by whom, such documents will make you more believable to a jury than a witness who simply denies that the act or comment ever occurred or states that he or she “doesn’t recall.”

If you believe you are the subject of employment discrimination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.

Two recent New Hampshire courts reaffirm the right to bring a a constructive discharge claim under New Hampshire law.

In Jeffery v. City of Nashua, the New Hampshire Supreme Court held that to establish a constructive discharge, a plaintiff “must show that her employer rendered her working conditions so difficult and intolerable that a reasonable person would feel forced to resign.”

The next case was Gavin v. Liberty Mutual, decided by the United States District Court for the District of New Hampshire. The Court explained that a constructive discharge is an element of a wrongful termination claim.

In New Hampshire, to prevail on a claim for wrongful termination, or wrongful discharge, as the cause of action is also known, a plaintiff must establish that: (1) the termination was motivated by bad faith, retaliation or malice; and (2) that the employee was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. So, the first prong focuses on the nature of the employer’s actions, while the public policy prong pertains to the employee’s acts.

If you believe you are the subject of wrongful termination or wrongful discharge, you should consult an experienced New Hampshire employment attorney at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online Contact Form.

By Charles G. Douglas – New Hampshire Employment Law Attorney

With the changing demographic nature of our nation’s population, it was inevitable that at some point a white employee would be able to claim harassment because of her race. In a case earlier in September this year the United States Equal Employment Opportunity Commission announced a settlement by a former assistant prosecuting attorney in Hawaii who claimed she was discriminated against because she was white.

The prosecutor, Ms. Weigel, had worked on the island of Kauai in an office where her supervisor continually made disparaging comments that Weigel needed to “assimilate into the local culture.” She was told to dump her white boyfriend in favor of a local man.

The supervisor would talk about how staff who were white had to stop acting the “haole” way and act more like the local Hawaiians. The workplace harassment rose to such a level that the tension between Ms. Weigel and her boyfriend caused them to break up and she ended up moving back to the mainland.

The County agreed to compensate her $120,000 and to establish policies and training to make sure that whites would not be subjected to harassment.

The discrimination laws cut in both directions and it is obvious that as workforce populations change, racial discrimination victims may change with it. We represent employees of all types who are discriminated against in the workplace. If you feel you have been discriminated against, please contact one of our employment attorneys at 1-800-240-1988 or complete our online contact form.

Employment discrimination complaints against private sector employers reached an all-time high in the most recent fiscal year, federal regulators said this week.

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that handles these claims before they go to Court, said it received a record 99,947 charges of employment discrimination and obtained $455.6 million in relief through its administrative program and litigation in fiscal year 2011. The commission said it resolved more charges than it took in with 112,499 resolutions (7,500 more resolutions than FY 2010—an increase of 7 percent)—leaving 78,136 pending charges, a 10 percent decrease in its inventory, the first year the agency has seen a reduction since 2002. A similar increase in these types of claims has also been seen by the New Hampshire Commission for Human Rights, the New Hampshire Agency that handles most discrimination claims in New Hampshire before they go to Court, although actual numbers are not yet available.

The EEOC records show that:

- In both the private and federal sectors, 5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

- The EEOC obtained a record $455.6 million in relief for private sector, state, and local employees and applicants, a more than $51 million increase from the past fiscal year and continuing the upward trend of the past three fiscal years.

- The mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5 percent more than in FY 2010 (9,362), and benefits — $170,053,021– $28 million more than FY 2010.

- The EEOC filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding year. Twenty-three of the lawsuits filed involved systemic allegations involving large numbers of people and an additional 67 had multiple victims (less than 20).

The total number of charges received was up slightly from last fiscal year’s record total. Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, closely followed by charges involving claims of race discrimination at 35,395 charges or 35.4 percent. While the numbers of charges with race and sex discrimination allegations declined from the previous year, charges with the two other most frequently-cited allegations increased:

- Disability discrimination–25,742

- Age discrimination—23,465

The agency’s enforcement of Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.

If you think you have been discriminated against, please call our office at 1-800-240-1988 or fill out on online Contact Form.

President Obama recently announced that the United States would pull its troops out of Iraq by the end of the year. This announcement likely means that many soldiers will be returning to civilian status and seeking jobs–in many cases the jobs they held before they were deployed.

Returning soldiers and their employers need to be aware that returning soldiers hold special rights to reinstatement under a Federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under USERRA, the employer of a returning soldier must reemploy the soldier if the soldier meets certain conditions. First, the soldier must have provided the employer advance notice of his service. Second, the soldier’s absence from employment must not have exceeded five (5) years. Third, the soldier must report the intent to obtain reemployment within 90 days of the completion of the soldier’s period of service.

Employers that violate USERRA face steep penalties. The employer must pay all lost wages the returning soldier incurs as a result of the employer’s breach of its duty to reemploy the soldier, plus an additional amount equivalent to the soldier’s monetary losses as “liquidated damages” for a willful violation of the law or a reckless disregard of it. The employer must also pay the soldier’s reasonable attorney’s fees.

If you have returned from service and have been denied reemployment by your employer at the time of your deployment, you should contact an experienced employment discrimination attorney such as the attorneys at Douglas, Leonard & Garvey, P.C. to make sure your rights are protected. Call our office at 1-800-240-1988 or complete our online contact form.

You know you are about to be fired for doing the right thing, or because you complained about sexual harassment.  You have emails or memos from your boss or co-workers which you know will prove the truth of your allegations.  Can you take them with you if you are fired or when you quit after the retaliation becomes too much for you to endure?

The answer, of course, is that it depends.  The wisdom of taking materials you obtained or where given access to through your employment, so that they might be used in a lawsuit, varies with the circumstances.  If your employer has a policy prohibiting taking work-related materials home with you, or using them for any non-work-related purpose, then sending e-mails home or taking documents with you on the way out may have a negative impact on your case.

When there is a policy against personal use or removal of work-related material, and your employer discovers in the course of your lawsuit that you removed work-related materials from your employer’s premises, it is sometimes possible for the employer to effectively “re-fire” you even after you have left their employment, for violating a company policy.  In those cases where this rule (which is termed the “after-acquired evidence rule”) is applicable, your former employer may be able to use it against you to substantially limit your ability to recover certain damages, particularly lost wages and benefits.

Therefore, if you know your employment situation is looking bleak due to sexual harassment, illegal discrimination, or retaliation for your doing the right thing, you should contact a trustworthy employment lawyer with real trial experience.  One of the things you should discuss, if possible, before you resign or before your employer has a chance to terminate you, is whether to make copies of e-mails and other documents that might help your case.

According to the New York City newspaper The Village Voice, Former Citibank employee Debrahlee Lorenzana has sued the New York City bank claiming that she was fired from her position as a banker for being “too hot.”
See video here:

As Lorenzana’s lawsuit states, her bosses told her that “as a result of the shape of her figure, such clothes were purportedly ‘too distracting’ for her male colleagues and supervisors to bear.”

According to one of Lorenzana’s friends, “I’ve seen men turn into complete idiots around her. But it’s not her fault that they act this way, and it shouldn’t be her problem.” Lorenzana claims that other female employees wore more revealing clothes, but because they were not as physically attractive as she is, nobody criticized them.

Lorenzana says that the branch managers started making offhanded comments about her appearance. She was told not to wear fitted business suits. She should wear makeup because she looked sickly without it. (She had purposefully stopped wearing makeup in hopes of attracting less attention.) Once, she recalls, she came in to work without having blow-dried her hair straight—it is naturally curly—and Fisher told a female colleague to pass on a message that she shouldn’t come into work without straightening it.

Citibank does have a dress-code policy, which says clothing must not be provocative, but does not go into specifics, and managers have wide discretion. But Lorenzana points out that, unlike her, some of the tellers dressed in miniskirts and low-cut blouses.

Lorenzana claims that the managers gave her a list of clothing items she would not be allowed to wear: turtlenecks, pencil skirts, and fitted suits. And three-inch heels. “As a result of her tall stature, coupled with her curvaceous figure,” her suit says, Lorenzana was told “she should not wear classic high-heeled business shoes, as this purportedly drew attention to her body in a manner that was upsetting to her easily distracted male managers.” She says the managers told her to buy a looser-fitting wardrobe, but Lorenzana claims that she did not have enough money to replace all of her work clothes.

Lorenzana complained to Citibank’s human resources department, but she says that only made things worse. Management, she claims, retaliated against her for complaining.

Citibank says that the firing was based on poor performance, but Lorenzana claims that when the company fired her, they never mentioned her performance.

Lorenzana’s lawsuit is based on two claims: (1) that Citibank management created a sexually hostile environment by focusing on, and criticizing, her clothes; and (2) that the bank retaliated against her when she complained. Unfortunately for Lorenzana, her case will not be heard by a jury. As a condition of her employment she signed an arbitration agreement so the case will go through binding arbitration rather than a jury trial.

http://www.villagevoice.com/2010-06-01/news/is-this-woman-too-hot-to-work-in-a-bank/1

LeAnn Taylor was a receptionist at a cabinet making company who married the president of the company. When the business began performing poorly, the parent company’s CEO terminated several employees, including Ms. Taylor and her husband.

She sued for marital status discrimination, alleging that the CEO said “it would probably be awkward” for her to stay since her husband was leaving, and that her position was eliminated because she would probably have to relocate with her husband.

A Minnesota trial court said she didn’t show that her firing was directed at her marital status but the appeals court said her suit could go forward:

“Our legislature defined ‘marital status’ to expressly include the ‘identity, situation, [and] actions’ of an employee’s spouse. We are bound to apply this clear expression of legislative intent. We conclude that the district court erred in dismissing [the plaintiff]’s claim on the ground that it did not represent a direct attack on the institution of marriage. …

“By its clear terms, [the Minnesota law] prohibits an employer from discriminating against an employee based on the … situation of the employee’s spouse. The crux of [plaintiff’s] claim is that [the employer] terminated her based on the identity and situation of her spouse, a co-employee whose forced resignation was occurring at the same time. This claim falls squarely within the statutory definition of ‘marital status,’” the court held.

Similarly, under New Hampshire law, it is an unlawful discriminatory practice for an employer, because of “marital status,” to refuse to hire or employ or discharge from employment.

On January 1, 2010, the New Hampshire’s Worker Adjustment and Retraining Notification Act (NH WARN Act) took effect. New Hampshire private employers with 75 or more full-time employees now have to give a certain warning to local and state officials as well as their employees 60 days before they intend to close a facility. The new law also applies in situations in which a company plans to layoff more than one-third of the workforce. The purpose is to speed up the process of workers getting unemployment benefits and job retraining.