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Employment Practices Risk Management AssociationMission Statement | President's Message | Contact Us | Privacy Statement | Home Page |
Martin Lapointe, esq., has made a lifetime work of understanding the intricacies of the law, and for the last 18 years much of that ardour has turned toward employment law. Formerly a law clerk for the Honorable Charles R. Norgle, Sr. of the U.S. District Court of the Northern District of Illinois, Mr. LaPointe has spoken and written on a wide range of employment issues. He now brings his depth of experience to EPRMA members through the EPRMA Helpline.
We recently caught up with Mr. LaPointe to gain from his insights on the latest trends and critical issues for employment law. As always, Mr. LaPointe has his finger on the pulse of what matters in the field of employment law.
Q. What are the major trends you're seeing in the area of employment law?
A. Right now, we're seeing an across-the-board increase in the number of employment claims. Studies have shown an inverse correlation between the economy and the number of employment claims, meaning, as the economy declines, the number of employment claims rise. I think we are beginning to see that today as the negative forces of our economy take hold.
Q. What are the most prevalent types of cases you're seeing?
A. Retaliation cases are clearly on the rise. The number of retaliation charges filed with the EEOC has increased since the Supreme Court eased the standard for Title VII retaliation claims in 2006 in its decision of Burlington Northern Santa Fe Railroad v. White. Just recently, on May 27, 2008, the Supreme Court expanded the scope of the Civil Rights Act of 1866 (Section 1981) to include retaliation claims. In this recent ruling, CBOCS v. Humphries, the Supreme Court ruled that retaliation claims are included in Section 1981 (which prohibits race discrimination), even though the statute does not specifically provide for retaliation claims. With this newest Supreme Court ruling, I would expect retaliation claims to continue to rise.
Q. What are the most common mistakes you see employers make that lead to claims or litigation?
A. The most common mistakes employers make occur when they terminate employees. Many times, employers do not have sufficient documentation to support their termination decision. If an employee is terminated for performance reasons, it's critically important for an employer to be able to show that the employer previously communicated with that employee about these performance deficiencies and allowed the employee the opportunity to correct the deficiencies along the way. These prior disciplinary communications, as well as the termination, should be documented.
In addition, employers often do not communicate honestly and openly with employees about the reasons for their termination. Many employers feel uncomfortable telling employees the truth about their performance (i.e. that their performance is deficient). This is a mistake. When an employer does not honestly communicate to the employee the reasons for the employee's termination, either by saying nothing or providing a reason which is not the true reason, the employee may think that the employer terminated his or her employment because of a protected category (i.e. race, gender, age, etc.) This can certainly lead to the employee questioning the reasons for his/her termination by filing an EEOC charge or lawsuit.
Q. Do any recent rulings from the Supreme Court in its latest session stand out as potentially significant for employment law?
A. Again, the May 27, 2008 Supreme Court decision in CBOCS v. Humphries is perhaps the most significant ruling for private employers. This latest retaliation pronouncement by the Supreme Court will only add to the number of retaliation claims, which were already on the rise after the Supreme Court’s 2006 decision in Burlington Northern Santa Fe Railroad v. White.
In addition, on June 19, 2008, the Supreme Court handed down another very important decision in Meacham v. Knolls Atomic Power Laboratory. In Meacham, the Court ruled that when an older employee claims that a company’s decisions, as part of a reduction-in-force, had a disparate impact on older workers under the Age Discrimination in Employment Act, the employer bears the burden of proving that its decision was based on reasonable factors other than age. This ruling will undoubtedly lead to an increase in these types of challenges, particularly with all the layoffs that are occurring right now.
Q. Do you feel that recent court rulings in employment law have been generally favorable to employers or employees?
A. No doubt, the Supreme Court’s recent rulings generally favor employees. But even with these rulings, employment cases are winnable for employers. From my experience, the courts determine employment cases fairly based on the facts of each case. With sound factual and legal defenses, and good legal counsel, employers are still able to win many of these cases outright or resolve them for small amounts. Over the past 13 years, the Supreme Court has repeatedly told employers that they must take preventative measures to root out discrimination and harassment in the workplace. That’s why it is so important now for employers to have sound employment policies and procedures in place, and to train their managers on EEO compliance issues.
Q. How may employers guard against retaliation claims?
A. In the 2006 decision in Burlington Northern Santa Fe Railroad v. White, the Supreme Court ruled that any act by an employer, that would likely dissuade a reasonable worker from making or supporting a claim of discrimination, could be construed as retaliatory and in violation of Title VII. The alleged retaliatory act may occur at work or away from work.
If an employee lodges an internal or external (e.g. EEOC charge) claim of discrimination, it is important for an employer to: