Play Fair, or Else
Wondering whether you really need to turn over all of the documents requested during litigation? Short answer: you do. An Idaho employer just learned the hard way that discovery violations can be costly.
In Carbajal v. Hayes Management Services, et al., Carbajal claimed she was subject to alleged sexual harassment and retaliation by the owner of the tax preparation business she worked for in violation of Title VII of the Civil Rights Act and Idaho’s Human Rights Act. One of the main defenses of the company was that it did not have enough employees (15 or more) at the relevant time to be subject to Title VII of the Civil Rights Act. Throughout the case, the parties focused on how many employees were at the company at various times – and training class attendance sheets became a crucial piece of evidence for counting the number of employees.
After first claiming it did not have the attendance records, the company produced one of the attendance sheets at issue late in the case and the district court hit the company with sanctions for the late production. Specifically, as punishment for not producing the attendance sheet sooner, the trial court ruled before the trial even began that Carbajal had proven the company had the right number of employees under Title VII. Thus, the company could not rely on its primary defense. Yikes! The case ultimately went to trial and the jury returned a verdict in favor of the plaintiff. The final judgment awarded the plaintiff compensatory and punitive damages, attorney’s fees and costs.
The company appealed and argued it should have been allowed to dispute the numerosity requirement at trial. The Ninth Circuit rejected the appeal, finding the district court did not abuse its discretion in ruling the issue proven for trial. In part, the Ninth Circuit focused on the fact that the company made “no effort to explain why the attendance sheet – which [it] knew was a key piece of evidence that Carbajal was relying on to prove Title VII’s numerosity requirement – was not discovered sooner.”
It may seem obvious, but it bears repeating: Discovery requests during litigation are serious, important and should be complied with in good faith. In this instance, a particularly important piece of the story was not produced by the defendants until late in the case, and the Court rightly sanctioned them for that conduct. Did the sanction affect the result? It’s impossible to say for sure, but the company’s failure to comply with its discovery obligations certainly did not help its defense of the case.
Can Black High Heels Be a Required Uniform Component?
Uniform requirements are commonplace for many employers. And in some instances, complying with a certain uniform may be an essential function of the job. For example, a heavy equipment operator may be required – as an essential function of the position – to wear steel-toed boots for safety. But what about wearing high heels as an essential function of a female cocktail server position? One employer is about to find out.
A plaintiff who was fired for not wearing high heels while at work has sued her past employer for discrimination under the Americans with Disabilities Act (ADA). The employee claimed her Achilles tendonitis and another foot condition were aggravated by wearing the “black high heels” her employer required her to wear. The case now moves forward to trial, and it will be for a jury to decide whether the plaintiff should have been able to wear tennis shoes instead of high heels in her fast-paced position due to her medical issues.
Like all ADA issues, requests from an employee to accommodate a change to a company’s uniform requirements should be addressed through the normal interactive process. Outright refusal to consider an employee’s request for an accommodation, or failure to work toward a reasonable accommodation, can lead to liability for the employer that could have easily been avoided.
What Will Happen to the Mansfield Rule?
Many large law firms (and legal departments in house at companies) across the U.S, Canada and the U.K. utilize the Mansfield Rule as a system for sourcing job candidates with diverse backgrounds. Recently, the Department of Justice (DOJ) placed adherence to that rule in the spotlight by arguing that the Mansfield Rule causes law firms to illegally favor applicants from underrepresented groups. The DOJ argued that the Mansfield Rule requires those certified employers to take “race, sex, and other protected characteristics into account when making hiring and promotion decisions.” The DOJ’s arguments explicitly place the Mansfield Rule under scrutiny and create uncertainty regarding adherence to the rules’ principles. The viability of the Mansfield Rule is a hot issue that many will be tracking as it develops.
