Gordillo & Gordillo, LLC.

"Americans clearly believe in equal opportunity even as they reject programs that mandate equal outcomes."  So writes pollster Frank Luntz in his book, Words That Work: It's Not What You Say, It's What People Hear. The observation is a remarkably valuable insight for anyone preparing an employment discrimination lawsuit trial.

Whether representing the employee or the employer, the challenge that Luntz's insight presents during an employment discrimination trial is to remain focused on the right side of the Luntz equation.  Employment discrimination disputes almost always concern both halves of the opportunity-outcome equation.  An employee denied an equal employment opportunity will persuade a jury to the employee's point of view.  An employee seeking compensation because the employee did not get an equal employment result will likely fail to persuade a jury.

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The False Claims Act that prohibits false claims made for government money has been expanded.  Civil claims brought to enforce the law are known as qui tam actions.  On May 20, 2009, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009 ("FERA").  Two of the changes to the law are likely to have great impact on future whistleblower claims.

The two key changes to qui tam law are that:

• A whistleblower no longer has to prove an intent to obtain payment using a false claim; and
• A whistlblower can now recover for claims made indirectly to the government.

The Act addresses more than qui tam actions.  As the White House described the law last week:

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How to approach mediation was the subject of an interesting blog entry by Michael Maslanka, the managing partner of the labor & employment law firm, Harrison & Ford in Dallas.  I don't agree with everything he writes, but his thoughts are a helpful contribution to lawyers and clients trying to resolve disputes.  Many of his thoughts hit the bulls eye, and all of his thoughts ought to be considered when preparing for mediation. 

Maslanka, an employer side lawyer, calls mediation "such a frustrating experience for employers often untethered from reality."  Mediation should never be frustrating.  Sadly, however, mediation often frustrates more than it accelerates resolution.  But the frustration with mediation that Maslanka cites is not limited to employers.  It is shared just as much by employees. 

An implicit point made by Maslanka is that preparation improves mediation.  Preparing for mediation is perhaps one of the least understood parts of an employment lawyer's practice.  No two mediations are the same, and their fluid nature makes formula preparation difficult to identify for lawyers.  Nevertheless, Maslanka offers five worthy points.  They also prompt me to expand them and offer my own points of clarification and sometimes, disagreement.

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Lawsuits over a job loss or a pay loss are never pleasant.  That does not mean the civil lawsuit has to be uncivil.  But the responsibility for keeping the animosity that exists between the lawsuit embroiled employee and employer out of the lawsuit belongs to their lawyers.  Without such responsible lawyers, fighting the dispute can be as costly as resolving it.

I was compelled to publish this thought by an article I read today about a discovery fight in a New Jersey case about lost overtime pay.  The employer's attorney was questioning one of the employee-plaintiffs at deposition.  The questions were about the employee's immigration status.  The employee's immigration status obviously had nothing to do with the dispute about whether overtime pay was owed.  So the lawyer for the employee sought a protective order from the judge to stop the questioning.  The judge denied the request.  The employee's lawyer appealed, and the appellate court said the trial judge should have stopped the questioning.

When interviewed about the decision, the employer's attorney gave this reason why the appellate decision was wrong and why he should have been allowed to ask his questions about the employee's immigration status: "he doesn't care about whether the plaintiffs are in the country legally or not. What does matter, he says, is whether they lied during their depositions. If it can be shown that they did, the jury should be allowed to hear that because it impacts on their credibility when it comes to their allegations that they were not paid the prevailing wage or worked overtime."

So t

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Professor Marcia McCormick at the Workplace Prof Blog wrote an interesting analysis of the United States Supreme Court's Hulteen pregnancy discrimination decision that I wrote about in a post yesterday.  Her comments cause me to respond below.

Prof. M:

Your analysis is thought provoking, but I think mistaken to the extent you believe the Hulteen Court "implicitly concludes that Congress did not define sex discrimination in the PDA, but simply added an additional classification." If the majority intended such an implication, then most certainly the Court would have addressed not only General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) but also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 (1983).

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The Pregnancy Discrimination Act amendment to Title VII has again been interpreted by the United States Supreme Court. Yesterday, the Court announced AT&T v. Hulteen. The Court ruled that decisions made by an employer that were adverse to pregnant employees and based on pregnancy are not unlawful if made before the Pregnancy Discrimination Act became law.

The Pregnancy Discrimination Act was passed in 1978. It became effective in 1979. Congress passed the Pregnancy Discrimination Act to overrule a prior Supreme Court decision, General Electric v. Gilbert, 429 U.S. 125 (1976), which had held that disability plans could exclude pregnancy-related disabilities without violating the law against sex discrimination.

Before 1979, AT&T had a pension plan that effectively penalized employees for pregnancy caused absences. The plan did not give pregnant employees as such service credit as other employees who were absent due to non-pregnancy related conditions. Under Gilbert, the AT&T penalty against pregnancy leave was not a prohibited form of discrimination. But when Congress changed the law, AT&T changed the pension plan to conform to the new law in 1979.

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