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2005 PLUS International Conference The New Face of Employment Litigation: Class Actions and Beyond

2005 PLUS International Conference The New Face of Employment Litigation: Class Actions and Beyond. Lucy Ann Galioto VP - National Union/AIG David Keenan VP – EPL Claim Manager, Chubb John Lozada Chief of Enforcement, Mass. Comm. Against Discrim. Jack McCalmon, Esq.

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2005 PLUS International Conference The New Face of Employment Litigation: Class Actions and Beyond

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  1. 2005 PLUS International ConferenceThe New Face of Employment Litigation: Class Actions and Beyond Lucy Ann Galioto VP - National Union/AIG David Keenan VP – EPL Claim Manager, Chubb John Lozada Chief of Enforcement, Mass. Comm. Against Discrim. Jack McCalmon, Esq. Partner: Titus, Hillis, Reynolds, Dickman & McCalmon Philip R. Voluck, Esq. Partner: Kaufman, Schneider & Bianco, LLP

  2. AGENDA • Explore Current Trends In Employment Litigation (Lucy) • Impact of Class Actions (Dave) • State and Federal Protections in the Workplace (John) • Loss Prevention Strategies (Philip) Jack McCalmon, Esq. – Titus, Hillis, Reynolds, Dickman & McCalmon

  3. Overview of 2004 EEOC EPLI Statistics • Employees filed 79,432 charges in FY 2004. • This presents a decrease in the number of charges filed when compared to those filed in FY 2002: 84,442 and 2003: 81,293. • This decrease is the result of more plaintiffs filing state charges where there are no caps on punitive damages. • During 2004 the EEOC recovered a record $419 M in compensatory damages for employees. • $251 M was recovered through pre-litigation resolutions and $168 M was recovered through lawsuits filed in federal district court.

  4. EEOC EPLI Statistics • RACE DISCRIMINATION: Employees filed 27,696 charges; EEOC recovered $61 M for these complainants. • SEX DISCRIMINATION: Employees filed 24,000 charges; EEOC recovered $100 M for these complainants. • AGE DISCRIMINATION: Employees filed 17,837 charges; EEOC recovered $69 M for these complainants. • DISABILITY DISCRIMINATION: Employees filed 15,000 charges; EEOC recovered $47 M for these complainants.

  5. EEOC EPLI Statistics • SEXUAL HARASSMENT: Employees filed 13,000 charges; EEOC recovered $37 M for these complainants. 15% of the sexual harassment charges were filed by males. • NATIONAL ORIGIN: Employees filed 8,000 charges; EEOC recovered $22 M for these complainants. • RELIGION: Employees filed 2,500 charges; EEOC recovered $6 M for these complainants. • PREGNANCY DISCRIMINATION: Employees filed 4,500 charges; EEOC recovered $11 M for these complainants.

  6. EEOC Litigation Against Small and Mid-Size Employers • Since 2002 the EEOC has aggressively pursued small and mid- sized companies who have allegedly engaged in discriminatory practices. • Many of these settlements have been in excess of $1 M.

  7. Examples of EEOC Litigation Against Small and Mid-Size Employers • Apollo Colors: Apollo Colors, a Chicago paint manufacturer with 200 employees, settled a racial harassment action brought by the EEOC on behalf of African American employees of Apollo Colors for $1.8 M. • NY Lutheran Medical Center at Brooklyn: Hospital settled a sexual harassment suit brought by the EEOC on behalf of female employees for $5 M. • Long Prairie Packing: A Minneapolis packing company with 235 workers settled a male-on-male sexual harassment matter brought by the EEOC on behalf of male employees for $1.9 M.

  8. Employment Litigation Statistics • Today 1/5 of the employment practice matters brought to trial result in a plaintiff’s award of$1 M or more. • More than 1 in 5 Americans have experienced employment discrimination according to a FindLaw Survey released July 2004. • The 2004 Jackson Lewis Workplace Survey revealed that respondent employers experience an increase in gender discrimination and sexual harassment complaints filed against them: • In 2004 58% of respondents defended gender discrimination complaints compared to 48% in 2003. • In 2004 63% of respondents defended sexual harassment matters compared to 57% in 2003.

  9. Employment Litigation Statistics (cont.) • According to USA Today, an estimated 550 employment lawsuits are filed in the United States every day. • 57%of the Retaliation claims brought in Federal Court are won byPlaintiffs. • The National Compensatory Jury Award Median for Employment Practices Liability in 2003 was$250 K. That same award in 2001 was$168 K. (Jury Verdict Research 2004)

  10. 2005 PLUS International Conference THE NEW FACE OF EMPLOYMENT LITIGATION: CLASS ACTIONS AND BEYOND JURY AWARDS Age $255,143 Disability $210,000 Sex $151,625 Race $150,000 National Compensatory Jury Award Median for Discrimination Cases (1997-2003):

  11. CLASS ACTIONS

  12. Mass. General Law 151B: Employment Engaging in harassment and other employment actions based on these factors is unlawful: • Age • Color/Genetics • National origin or ancestry • Disability • Religion • Retaliation • Criminal records (applications only) • Race • Sexual Orientation • Active Military Status • Sex/Gender

  13. Complaints by Type - 2004 Public Accommodation 5% Other 1% Housing 9% Employment 85%

  14. Bases of Complaints - 2004(100% = 4,323) Sexual Orientation 2% Sex 24% Children 1% Creed 2% Age 11% Disability 20% Race/Color 22% Family 1% National Origin 8% Other 8% Public Assistance 1%

  15. Loss Control • Employee Handbooks • Training • Arbitration Agreements • Audit Pay Classifications and Payroll Products and Policies • Recruit and Maintain a Diverse Workforce • Hold Managers Accountable • CONSULT EMPLOYMENT COUNSEL BEFORE THE DECISION!

  16. What the Future Holds • Chief Justice Roberts • Justice ___________? • Partnering of Govt. Agencies • More Claims • More Defense Costs • More Settlements

  17. Emerging Issues The smoke bomb: • Weyco Inc. terminated four employees because they smoked…on their own time. • 21 states do not protect the rights of smokers, including Michigan. • Estimated $157 billion spent annually on medical expenses related to smoking and lost productivity. • Michigan courts do not view nicotine addiction as a disability. Jack McCalmon, Esq. – Titus, Hillis, Reynolds, Dickman & McCalmon

  18. Emerging Issues The obesity bomb: • New Stanford study shows that obese employees earn $3.41 less than non-obese counterparts. • One possible reason: Employers believe obese workers cost more than non-obese in health care costs. • 90% of American men and 70% of American women become overweight at some point in their life. • 31% of U.S. adults are obese. • Obesity is claimed to increase health care spending by 10x. • Costs $1244 more per year to treat an obese person. • Obesity tied to a 64% increase in diabetes. • Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), eating is declared a major life activity.

  19. Emerging Issues The chicken bomb: • When the Asian bird flu crosses over, how will employers react to employees afflicted? Jack McCalmon, Esq. – Titus, Hillis, Reynolds, Dickman & McCalmon

  20. Questions & Answers Jack McCalmon, Esq. – Titus, Hillis, Reynolds, Dickman & McCalmon

  21. Thank You! • Lucy Ann Galioto • Vice President, National Union/AIG • David Keenan • VP – EPL Claim Manager, Chubb • John Lozada • Chief of Enforcement, Mass. Comm. Against Discrim. • Jack McCalmon, Esq. • Partner: Titus, Hillis, Reynolds, Dickman & McCalmon • Philip R. Voluck, Esq. • Partner: Kaufman, Schneider & Bianco, LLP

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