Discrimination Due To Breastfeeding: Jury Verdict Upheld in Favor of Police Officer

Affirming that breastfeeding is a medical condition related to pregnancy and that the police department’s conduct violated the Pregnancy Discrimination Act (PDA), a federal appeals court in Atlanta has upheld the jury’s verdict for a former Tuscaloosa, Alabama police officer. Hicks v. City of Tuscaloosa, Alabama, No. 16-13003 (11th Cir. Sept. 7, 2017).  Stephanie Hicks was awarded $374,000 in damages against the police department for pregnancy discrimination due to breastfeeding.

Trouble started for Hicks immediately after she returned from maternity leave. She was provided with only one option as a place to pump at work: an unsanitary and public locker room. She also felt she was constantly under scrutiny regarding her whereabouts during her pumping breaks. Even as she headed down to the locker room to pump, she would hear taunting, such as “wrap those boobs up” on her police radio.

Making matters worse, the police department began writing her up for what she believed were minor issues. Hicks was demoted to a patrol officer a week after her return from leave. This meant she would receive a pay decrease, be assigned to night and weekend shifts, and no longer have a vehicle. As a patrol officer, she also would have to wear a snug-fitting bullet proof vest on duty. Her obstetrician provided her with a doctor’s note explaining that the tight vest would reduce her milk supply and place her at risk for infections. In response, the police department told her she had no choice but to wear the vest or risk serious bodily injury. This was the last straw and she resigned.

Breastfeeding advocates and supporters attended the trial to support Hicks as a nursing mother. The jury also supported Hicks and found sufficient evidence of discrimination. The Eleventh Circuit affirmed. It also said that Congress intended the PDA to include physiological conditions post-pregnancy and that the PDA would be rendered a nullity if women were protected during a pregnancy, but could be readily terminated for breastfeeding.

The Affordable Care Act requires employers to provide nursing mothers with reasonable break times for expressing breast milk and with a private place to pump, other than a restroom. As a direct result of the verdict, Tuscaloosa’s police department and City Hall now have private rooms for nursing mothers; all employers should do the same. Employers are obligated to engage in the interactive process with breastfeeding employees who provide medical documentation to support the need for an accommodation. Finally, employers must have a zero-tolerance policy for harassment or retaliation of nursing employees.

The Significance of Expert Testimony

Expert testimony can play a significant role in shaping the outcome of cases that go to trial. For example, in a case lacking witnesses or evidence that could directly support or undercut the plaintiff’s accusations of severe sexual misconduct, what stood out most was the expert testimony.

On August 8, 2017, a two-week jury trial ended with a New Jersey mayor being cleared of any wrongdoing under the New Jersey Law Against Discrimination (LAD), while his accuser, who remains employed by the township he leads, must pay damages for defamation. Tamara Smith v. Township of Irvington and Anthony Vauss, in the Superior Court of New Jersey, Essex County.

According to her initial complaint, the plaintiff was hired by the Township in 2004, and, in mid-2005, became a Public Works Inspector with the Township’s Department of Public Works. Leading up to the Township’s mayoral election in May 2014, the plaintiff allegedly reported to the eventual winner of that election, Anthony Vauss.

As Smith alleged in the complaint, her work environment became “toxic” in August 2013, when Vauss allegedly propositioned her for a discrete sexual relationship (Smith and Vauss both had spouses who also worked for the Township). In return, Vauss allegedly promised that, as Mayor, he would get Smith promoted and would otherwise attend to the financial needs of Smith and her husband. When Smith rebuffed his advances, Vauss allegedly raped her.

Smith sued Vauss as well as the Township under LAD. LAD prohibits employers from discriminating against employees on the basis of sex, including by condoning sexual harassment. Moreover, alleged victims of prohibited discrimination can sue not just their employers, but also individual supervisors who are accused of aiding and abetting the alleged discrimination.

Faced with the prospect of going to trial with just Vauss’ word against Smith’s, Vauss’ legal team ultimately won the battle by using expert witnesses. First, a psychological evaluation revealed that Smith was battling depression and experiencing delusions. Second, a linguistics expert, by studying Smith’s speech patterns, was able to connect her to an anonymous letter received by the local newspaper attacking Vauss for completely unrelated, allegedly false reasons.

In cases with few witnesses to the alleged wrongdoing, defense teams can benefit from considering the value of expert witnesses to establish a critical element in their defense. This case demonstrates how that tactic was employed successfully to undermine the motives of the plaintiff.


Sexual Harassment Case Costs Iowa Taxpayers $2.2 Million

A former staffer for the Iowa Senate Republican Caucus in Iowa has been awarded $2.2 million in damages for retaliation that will be paid from Iowa’s already-floundering general fund.  Kirsten Anderson was terminated from her position as communications director for the caucus in 2012. She alleged the termination was in retaliation for her complaints about sexual harassment and a hostile work environment and the jury took her side.

Anderson described working for the caucus as a “boy’s club” where sexual jokes, as well as jokes about race, ethnicity, and religion, were constant and supervisors openly shared sexual comments about potential new hires. She also described state senators who would stop by the office and remark on other employees. Further, Anderson described a senior analyst who would show pornographic photographs to women in the office and occasionally summon the staff to look at women walking by outside his window. When the senior analyst began going through a divorce, according the Anderson, the already-hostile environment worsened, with regular usage of derogatory terms and angry or threatening comments.

Anderson’s coworkers testified to the accuracy of the allegations, with one coworker describing returning from lunch to a pornographic screensaver having been installed into her computer. Multiple coworkers admitted they did not complain or attempt to take action for fear of retaliation. One supervisor admitted he did not speak up because he claimed to have seen others retaliated against for doing so. Witnesses also described the senior analyst returning to the office and screaming at the staffers after Anderson complained about the office environment.

The lawsuit, which was decided in July 2017, was originally filed in October 2014, and Iowa State Republicans have since released a statement stating they have been addressing the issue. However, Anderson has recently filed a motion in court seeking an independent investigation into the Iowa Senate Republican Caucus, which could reveal further discriminatory issues within the caucus.

The concern, especially in cases where the environment comes to be described as a “locker room” or “boy’s club,” is that employees who feel threatened or offended by this kind of conduct may fear they will lose their jobs if they speak up. When that fear spreads to supervisory employees, systemic discrimination or harassment can go unnoticed until litigation.

Cases like these demonstrate the importance of a strong, well-communicated anti-harassment policy that is uniformly enforced throughout the company. Additionally, proper supervisor training and communication can go a long way in helping to alleviate these issues.

Jury Awards $4.5 Million to Hospital Employee for Discrimination and Retaliation

A plaintiff has been awarded $4.45 million for an age discrimination, disability discrimination, and retaliation action he filed under state law in a court in Iowa against his former employer. Gregory Hawkins v. Grinnell Regional Medical Center, et al., No. 08791 LALA002281. The award included $220,009 in back pay, $2 million in emotional distress damages, and $2.28 million for future emotional distress damages.

This case illustrates the importance of properly accommodating disabled employees and clearly documenting performance issues. Disability issues can present significant challenges when performance is an issue. Reasonable accommodation may include allowing an employee to take leave for treatment and recovery, as long as such leave is not an undue burden on the employer. Employers should appropriately document performance issues through written discipline and accurate performance reviews, so ongoing performance issues do not seem to appear suddenly just before an employee is fired.

According to the evidence, the plaintiff, Gregory Hawkins, was a long-term employee of Grinnell Medical Center who was promoted to the position of lab director in 1985. Hawkins received favorable performance reviews and pay raises during his employment. In late-2013, Hawkins was diagnosed with breast cancer and took a leave of absence to obtain treatment. He returned to the lab director position in March 2014 on a part-time basis.

In June 2014, hospital administrators asked Hawkins to retire, claiming the Hospital needed a full-time lab director. Hawkins asked to keep working, telling the administrators in an email that his job was “keeping his mind off” his cancer diagnosis. His oncologist expected him to make a full recovery by the end of 2014, and Hawkins said he wished to begin working full-time again at that time. The Hospital suspended Hawkins until he was able to return full-time to the position in October 2014. Hawkins worked as the lab director until June 2015, when he was terminated.

Although the Hospital claimed Hawkins was terminated because he failed to adequately manage the lab and lab employees, Hawkins alleged that he was fired because of his age (63 at the time of the verdict), disability, and protected activity. The jury sided with the plaintiff, finding that the Hospital had violated Iowa state laws prohibiting age discrimination, disability discrimination, and retaliation. The size of the compensatory damages award – $4.28 million for past and future emotional distress damages – clearly showed the jury believed the plaintiff had been profoundly affected by the Hospital’s treatment of him following a cancer diagnosis.


Court Reduces Jury Award of $6.45 Million to $100,000.

On May 16, 2017, we reported that a jury in Davis v. Packer Engineering, Inc., No. 1:11-cv-07923, awarded plaintiffs Danya Davis and Bernessa Wilson each $3 million in punitive damages and $150,000 and $300,000, respectively, in compensatory damages.  In that case, the plaintiffs had alleged, among other things, that their employers subjected them to a hostile work environment and retaliated against them for complaining about such environment by terminating their employment.  At that time, we noted that the jury award far exceeded the statutory caps imposed by Title VII.

On August 2, 2017, U.S. District Judge Andrea Wood slashed the $6.45 million award to $100,000, with Davis and Wilson each receiving $50,000.  Judge Wood explained that, pursuant to Title VII’s statutory cap, a plaintiff cannot recover more than $50,000 where the employer has more than “14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year.”  Packer’s payroll records show its workforce fell within that range in the relevant years.



Evidence of Immigration Status Blocked by Courts

Could barring evidence in court of undocumented workers’ immigration status actually prevent employers from hiring illegal immigrants? It could, according to one Illinois district court judge.

U.S. Magistrate Judge Sheila Finnegan has barred evidence regarding a plaintiff’s immigration status in a case involving a claim for unpaid wages under the Fair Labor Standards Act, ruling that the evidence was “not relevant to a claim for unpaid wages under the FLSA.” Kim v. Hakuya Sushi Inc. et al., No. 1:15-cv-03747 (N.D. Ill. July 5, 2017). Her opinion mirrored the language of other cases finding that “immigration status has generally been protected from discovery” in FLSA claims. See, e.g., Rosas v. Alice’s Tea Cup, LLC, 127 F. Supp. 3d 4, 9 (S.D.N.Y. July 6, 2015). According to Judge Finnegan, denying illegal workers the protections of the FLSA would “create an incentive for employers to hire illegal workers so they could pay them less than minimum wage, in contravention of laws designed to reduce illegal immigration.”

This trend of barring evidence of an individual’s immigration status extends beyond the context of the FLSA. For example, the Fifth Circuit Court of Appeals upheld a lower court decision that evidence of a plaintiff’s immigration status should be barred in the context of a Title VII claim. Cazorla v. Koch Foods of Miss., L.L.C., 838 F.3d 540, 556 (5th Cir. Sept. 27, 2016) (confirming E.E.O.C. v. Rest. Co., 448 F. Supp. 2d 1085, 1087 (D. Minn. 2006)). Similarly, courts have held that plaintiffs in employment discrimination suits are not compelled to disclose the accuracy of their Social Security numbers because, “‘even though such immigration status might be relevant [to credibility], it is a potential weapon for harassing and intimidating individuals and because there [are] other tools for impeachment that would not implicate the plaintiffs’ immigration status.’” Jimenez v. Brooks, 2016 Conn. Super. LEXIS 581, *18 (Conn. Super. Ct. Mar. 15, 2016) (quoting E.E.O.C. v. First Wireless Group, Inc., 2007 U.S. Dist. LEXIS 11893 (E.D.N.Y. Feb. 20, 2007)).

The Supreme Court of Washington has gone one step further. It has publicly endorsed a proposed new rule that would exclude evidence of a party’s immigration status from all civil and criminal cases (with a few exceptions). The Court said the new rule “would promote equitable access to justice by removing the potential for racial and ethnic stereotyping that inevitably results from the unnecessary injection of immigration status evidence into the fact-finding process.” New Rule of Evidence 413 — Immigration Status, 2017 Wash. LEXIS 631, *7 (Wash. June 1, 2017).

Whether barring evidence of immigration status from FLSA claims, Title VII claims, or civil litigation altogether, there is an undeniable trend towards protecting immigrants in our justice system.


Workplace Bullying Costs State $3 Million


A California state jury has handed down a $3 million award to a Caltrans (California Department of Transportation) employee in a case alleging harassment by supervisors.  John Barrie, a staff services analyst at Caltrans, alleged his supervisors harassed him by intentionally triggering his allergies through exposure to chemicals such as perfumes and cleaning solutions.

Barrie began working at Caltrans in 2005. He informed his supervisor at the time that he had a disability that caused him to have severe reactions to certain chemicals (such as perfumes and cleaning supplies). Barrie’s supervisor provided him with an “unofficial” accommodation, which worked well for the next five years. Barrie’s supervisor asked his coworkers not to wear perfume, and the cleaning crew was instructed not to use certain supplies such as Windex.

In 2010, a new supervisor took over Barrie’s department. The supervisor rescinded Barrie’s “unofficial” accommodation. Barrie then requested a formal accommodation, but the “unofficial” accommodation was not reinstated. Perfume and cleaning chemicals were used in his workspace. Barrie’s complaint alleged that after he filed an internal, complaint his supervisors retaliated against him. For instance, he was transferred to another office without explanation. Barrie was placed in the lobby and asked to perform reception duties, which he viewed as a demotion. Barrie also alleged he was forced to miss out on opportunities to earn overtime.

In 2012, a Caltrans Human Resources representative did a surprise inspection in which they found perfumes and cleaning chemicals had been sprayed in Barrie’s office. Instead of vindicating him, this led to further retaliation. According to notes from the investigation, Barrie’s supervisors wanted to punish him for going “outside of the chain of command.”  Another time, Barrie alleged that he came to work to find his lumbar pillow soaked in perfume. Barrie alleged that his supervisor called him “idiot” and “jerk,” and that other coworkers accused him of “causing problems.”

Barrie filed his lawsuit in February 2013. In May 2017, the jury delivered a $3-million-dollar verdict for Barrie. Barrie continues to work for Caltrans, although he now works remotely.  Caltrans is considering an appeal. This case is a reminder to employers that employee requests for accommodation must be taken seriously.

The attorneys at Jackson Lewis routinely work with employers on setting reasonable accommodations. If you have any questions regarding these issues, do not hesitate to contact Jackson Lewis.


Former Big League Pitcher Awarded More than $1.5 Million for Wrongful Termination

A New Jersey jury in the Superior Court of New Jersey for Camden County has awarded former Major League Baseball pitcher Mitchell Williams $1,565,333 in a wrongful termination action he filed against MLB Network, Inc. Mitchell Williams v. The MLB Network, Inc., et al., No. L-3675-14.

Williams, nicknamed “Wild Thing,” played professional baseball from 1986 until 1997, and was an All-Star in 1989. Over the course of his career, Williams played for the Philadelphia Phillies, the Texas Rangers, the Chicago Cubs, the Houston Astros, the Kansas City Royals, and the California Angels. In 2009, Williams became a major league baseball studio analyst for MLB Network. In 2011, Williams signed a new five-year contract (with an option for a sixth year) with MLB Network, but his employment was terminated in 2014.

In September 2014, Williams sued MLB Network and Gawker Media Group Inc., alleging that Gawker erroneously reported that, during a May 2014 Little League baseball tournament, Williams cursed out a child while coaching his 10-year-old son’s Little League team, ordered one of his son’s teammates to hit the opposing pitcher with a beanball, and was ejected from the game for arguing and cursing. Williams further alleged that, following the erroneous Gawker reports, MLB Network: (1) issued public statements that suggested Williams had admitted to the reported misconduct at the Little League tournament; (2) forced Williams to take a 30-day leave of absence from MLB Network; (3) threatened to terminate Williams’ employment unless he signed an amendment to his contract agreeing not to coach or attend any of his children’s Little League baseball games, go to therapy, and get approval before posting any pictures on Facebook; and (4) terminated Williams employment when refused to sign the amendment. Williams claimed that, as a result of MLB Network’s and Gawker’s conduct, he also lost jobs with MLB.com, Sports Network, and Fox Sports.

The case went to trial in June 2017. After an 11-day trial, the jury rejected MLB Network’s claim that Williams had violated a “morals clause” in his contract. The jury found that MLB Network wrongfully terminated Williams and breached his contract when it fired him based on the Gawker stories. The jury then awarded Williams $1,565,333 in damages. Gawker Media Group Inc. filed for bankruptcy and was dismissed from the case, in 2016.

This case serves as a reminder that employers should act cautiously before taking any adverse employment action against an employee based on negative reports from third-parties. When possible, employers should conduct their own investigations and assure themselves of the accuracy of any negative reports before relying on them.  As Williams v. The MLB Network makes clear, if the third-party’s report is inaccurate, the employer may end up paying the price.

The attorneys at Jackson Lewis routinely work with employers conducting internal investigations and reviews. If you have any questions regarding these issues, do not hesitate to contact Jackson Lewis.


Company Defeats $6 Million Whistleblower Claim at Trial

A California jury in Superior Court of the State of California, County of Los Angeles, has ruled against an avionics technician, who filed a $6 million whistleblower claim against SpaceX – Elon Musk’s rocket startup company. Blasdell v. Space Exploration Technologies Corp., et al., No. BC615112.

Plaintiff Jason Blasdell alleged that his employment with SpaceX was terminated after he informed company officials, including Elon Musk, that SpaceX technicians were instructed to cut corners, and sign off on improper testing, in order to produce rocket ships more quickly and cheaply. According to Blasdell, these alleged corner-cutting and improper testing constituted fraud against consumers of aircraft and space craft parts, a violation of 18 U.S.C. § 38.

The court permitted the case to go to trial, but refused to let Blasdell testify regarding some of his allegations because Blasdell did not have substantial knowledge (or other basis to testify) of the actions and testing of other technicians. Although Blasdell told the jury he was a dedicated employee who received strong performance reviews, and was terminated only after whistleblowing on fraudulent practices, other witnesses testified Blasdell was a paranoid, disruptive, and unproductive employee who did not engage in any alleged whistleblowing until after he was fired. Significantly, Blasdell’s own expert testified that Blasdell suffered from paranoia. Further, SpaceX produced significant evidence demonstrating that Blasdell was terminated for performance reasons. The 12-person jury deliberated for a few hours before returning a 9-3 verdict in favor of SpaceX.

Whistleblower and retaliation claims present unique challenges to employers. Some steps employers can take to limit such claims include:

  1. Implementing clear policies prohibiting unlawful retaliation.
  2. Providing training that helps supervisors understand what sort of conduct constitutes retaliation.
  3. Encourage supervisors to engage with subordinates who raise complaints to work with those subordinates to determine whether there is merit/substance to the complaint, and to follow up with those subordinates to ensure that there have been no further incidents.
  4. When appropriate, restructuring the work environment so a subordinate is no longer reporting to a supervisor he or she complained about, as this may reduce the odds of supervisor retaliation against that subordinate.
  5. Carefully reviewing subsequent employment actions to ensure all decisions regarding a complaining subordinate are well-documented, well-supported, and appear to be reasonable and consistent with the employer’s policies and practices.

Jury Awards $6.45 Million To Two Plaintiffs for Hostile Work Environment Claims

A jury in the Northern District of Illinois has awarded two plaintiffs $6.45 million in damages, $6 million of which was allocated to punitive damages, clearly signaling that, regardless of statutory caps, juries do not look favorably upon employers who ignore employee complaints of sexual harassment.

In Davis v. Packer Engineering, Inc., No. 1:11-cv-07923, Danya Davis, Bernessa Wilson, and Shannon Webb alleged, among other things, that their employers subjected them to a hostile work environment and retaliated against them for complaining about such environment by terminating their employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. The plaintiffs complained that despite their repeated complaints, the defendants ignored them. The jury awarded Davis and Wilson each $3 million in punitive damages and $150,000 and $300,000, respectively, in compensatory damages. Of course, these numbers far exceed the statutory caps imposed by Title VII.

An award in which there is such a great disparity between the amounts allocated to punitive and compensatory damages clearly signals that the jury intended to punish the employer for disregarding its employees’ complaints. Moreover, while Title VII imposes statutory caps, other federal and state laws do not, and verdicts of this size could be upheld and enforced under similar laws.

Nearly 20 years ago, the U.S. Supreme Court held that an employer is vicariously liable under Title VII when a supervisor creates a sexually hostile work environment that results in a tangible job action, unless the employer can show that (1) it exercised reasonable care to prevent and promptly correct the harassing behavior, and (2) the employee failed to act reasonably under the employer’s non-harassment policy “or to avoid harm otherwise” (the “Ellerth/Faragher defense”). Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).

Employers must make sure their employees are well-trained and understand how to handle employee harassment complaints. Employers should keep these tips in mind:

  • Train employees on the company’s EEO and non-harassment policies;
  • Consistently enforce the policies;
  • Take every complaint seriously, no matter how trivial it may appear;
  • Keep the investigation confidential and involve only those individuals who “need to know”;
  • Be objective and stick to the facts; and
  • Lead by example.


Jackson Lewis attorneys are available to answer inquiries regarding this case and assist employers in the risk of litigation.