It is always nice to get away for some rest and relaxation. After six days in South Florida, I came back to the office and found, among other items, a number of recent settlements and verdicts involving employers around the country. Although these current cases were not located in Birmingham, or even in Alabama, they are indicative of the high-end exposure large employers face, with smaller employers subject to just as risky verdicts and settlements.
In Colorado, Patterson-UTI Drilling Co. agreed to a “no-fault” consent decree, ending a nine year case brought by the EEOC alleging “a nationwide pattern of discrimination and harassment based on race and national origin” according to the Denver Post. Hispanic workers were allegedly subjected to verbal harassment, being called “wetback, taco or beaner”. The slurs allegedly escalated to physical harassment, including co-workers throwing cleaning fluid on one of the named charging parties while he was in a bathroom. Another instance involved a co-worker allegedly pulling a gun at a drilling site, threatening a Hispanic worker. Under the consent decree, approved by Federal District Court Judge Wiley Y. Daniel, Patterson-UTI will pay $12.3 million to a class action fund that is expected to have as many as 1,000 workers making claims, with another $2.2 million being paid to other claimants. The terms of the settlement also require Patterson-UTI to provide “anti-discrimination training, random interviews with minority employees to ensure there is no discrimination and a process to investigate complaints”, as well as Patterson-UTI agreeing to increase the recruitment of qualified minority candidates. The CEO of Patterson-UTI’s parent company issued a statement saying that “We take this matter very seriously and are pleased to have reached a resolution…We are committed to providing a safe, welcoming and respectful work environment.”
Meanwhile, in Pittsburgh, Pennsylvania, Sandra Robertson was a shipping supervisor for six years at Hunter Panels’ Smithfield plant. According to the Pittsburgh Post-Gazette, she alleged that “she endured harassment, venom and gender-based discrimination from her male colleagues as a shipping supervisor…all the while making less than the man who was her predecessor despite her years of experience in the Air Force as a supply specialist.” The alleged discrimination included calling her “Big Girl” in light of her being 6’ tall, a male co-worker making obscene gestures when he heard her voice on the company radio, and a third ignoring her complaints, saying she was “losing her mind” or “throwing fits.” A federal jury agreed with her allegations, finding that she was discriminated against, subjected to a hostile work environment and fired in retaliation, awarding her more than $13 million in damages and pay. $12.5 million was for punitive damages. Interestingly, several jurors were quoted in the article, including the jury forewoman, a senior director at a marketing agency, who stated: “We thought, ‘What are the chances this was happening in other facilities?…This as an opportunity to set the tone.’” Another juror, a 51-year-old male, said that the “fundamental question of gender discrimination was a relatively simple one for the jury”, and the difficult question was how much to award Ms. Robertson. The jurors heard evidence that the corporation had $2.9 billion in revenue in 2013 with net earnings of $235 million. “There were many on the jury that wanted to tag them for 10 percent of their net income, or $25 million.” Another juror stated that the jury wanted to send the company a “stern, unmistakable message.” These insights from the jurors show how people can react when jurors believe that an employer does not provide a safe, non-discriminatory workplace for employees. Although this jury verdict is likely to be appealed, or settled for a lesser amount, it is an example of how bad facts make for large verdicts.
Practice pointer. Although both these cases are extreme examples of bad conduct and bad results, I read about similar cases on a regular basis. What should an employer do? Train employees as to the anti-harassment and anti-retaliation policies put in place by the employer. Train supervisors as to what is legal and what is illegal. When a complaint is made, conduct a prompt, thorough and complete investigation. At the conclusion of the investigation, take the appropriate disciplinary action, up to and including termination of those acting in violation of the law and the employers’ policies and procedures. Train some more. Any EEOC charge and/or lawsuit is costly to employers: legal fees, lost time from work investigating and defending the claims, reduced morale, adverse publicity, settlements/judgments, and the potential of paying the plaintiff’s attorneys fees and costs in incurred in bringing the action.