The New Face of Employment Litigation: Class Actions an

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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.
• Partner Titus, Hillis, Reynolds, Dickman
  McCalmon
• Philip R. Voluck, Esq.
• Partner Kaufman, Schneider Bianco, LLP

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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
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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.

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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.

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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.

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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.

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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.

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Employment Litigation Statistics

• Today 1/5 of the employment practice matters
  brought to trial result in a plaintiffs 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.

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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 by Plaintiffs.
• 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)

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JURY AWARDS
2005 PLUS International Conference
THE NEW FACE OF EMPLOYMENT LITIGATION CLASS
ACTIONS AND BEYOND

• National Compensatory Jury Award Median for
  Discrimination Cases (1997-2003)

Age 255,143 Disability 210,000 Sex
151,625 Race 150,000
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CLASS ACTIONS
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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

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Complaints by Type - 2004
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Bases of Complaints - 2004(100 4,323)
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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!

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What the Future Holds

• Chief Justice Roberts
• Justice ___________?
• Partnering of Govt. Agencies
• More Claims
• More Defense Costs
• More Settlements

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Emerging Issues

• The smoke bomb
• Weyco Inc. terminated four employees because they
  smokedon 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
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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.

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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
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Questions Answers
Jack McCalmon, Esq. Titus, Hillis, Reynolds,
Dickman McCalmon
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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