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Employment Law Alert: Two Interesting Cases - One Involving Anti-Mormon Comments Made During A Union Recognition Election & The Other Involving A Huge Verdict In Favor Of A Plaintiff Claiming Sex Discrimination Resulting From The So-Called “Glass Cei

Yesterday, the U.S. Supreme Court declined review of an NLRA case in which a divided Tenth Circuit held that references to the Mormon faith of the owners of a grain company during a union organizing campaign did not taint the representation election. The employer in that case sought the adoption of a per se rule that the use of potentially inflammatory religious or racial comments during a union organizing drive taints the election. The Tenth Circuit majority, in rejecting this request, held that “[w]hile we in no way condone the inappropriate, unwarranted, and unjustified religious references, substantial evidence from the record considered as a whole supports the [National Labor Relation Board’s] conclusion that the comments were not inflammatory or central to the Union’s campaign.” One dissenting judge, noting the small number of eligible voters and allegedly tainted votes (nine), said that the majority, “taking comfort in the apparent absence of overt abuse, vulgarity, or profanity in the union organizers’ diatribe, simply misses the forest for the trees.” By refusing to hear the case, however, the Supreme Court apparently agreed with the majority that a per se rule was unwarranted. Rather, cases involving such allegedly discriminatory comments should continue to be decided on a fact-specific, case-by-case basis.

On February 13, a New Jersey state court jury awarded a former human resources professional at Curtiss-Wright Corp. a whopping $9.1 million in a case in which she alleged that she was denied a promotion based on her sex and then fired in retaliation for complaining about the alleged discrimination. Half of the total was an award of punitive damages. The plaintiff claimed that, after being hired by the company in 1980, she rose through the ranks over two decades, eventually being promoted to the company’s top HR position in April of 1999, reporting directed to the company’s CFO. However, she claimed that, after being promoted, she was ignored by the company’s newly named CEO, who, in June of 2003, created a new HR position reporting directly to him, that he then filled with a male from outside of the company, whom the plaintiff alleged had little HR experience. The plaintiff argued at trial that the creation of this new position by the CEO amounted to “an elaborate three-year contrivance to conceal discrimination.” She also argued that her eventual termination for “theft of company property” -- which was based on her having copied certain documents in connection with her lawsuit -- was contrived and pretextual, since she had copied over a thousand documents without objection, only to be fired for that same conduct as her lawsuit progressed. During the trial, the plaintiff also presented evidence suggesting the existence of a decades-old policy of having only males in top management positions, even though women held approximately 19% of the middle management positions. This evidence, argued the plaintiff, was indicative of the existence of a “glass ceiling” at Curtiss-Wright.

Bottom Line

These two cases are certainly interesting food for thought.



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