Pregnancy Discrimination Claims Grow

Maria Walsh, Esq.

Maria Walsh, Esq.

With expanded participation of women in the workforce, there is a need to adapt the workplace to pregnant and breast-feeding workers. Enacted in 1978, the Pregnancy Discrimination Act banned employment discrimination on the basis of pregnancy, childbirth or related medical conditions. Most employers are aware that the Equal Employment Opportunity Commission (EEOC) defines “pregnancy discrimination” as “treating a woman unfavorably because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.”  Employers can’t discriminate on the basis of pregnancy by refusing to hire, train, promote or provide equal pay, insurance or other benefits because of an employee’s pregnancy.  Nor can an employer discriminate against a pregnant worker or applicant because of customer, co-worker or client prejudice. Continue reading

Selecting a Neutral at Case Inception

Louis Marlin, JAMS mediator and arbitrator

Louis Marlin, JAMS mediator and arbitrator

Every attorney who works as a litigator knows that litigation is a stressful and often frustrating exercise. Experienced litigators strive to provide the best representation for their clients while attempting to find ways to work cooperatively and cordially with opposing counsel. However, despite the efforts of well-meaning attorneys, it is the rare case where time-consuming disagreements do not interfere with the process.

Simply stated, I suggest that the parties select a professional “neutral” at the case inception to be available to resolve issues that present roadblocks to the cooperative and efficient progression of litigation. This approach addresses what I would call low-grade to moderate litigation-related disagreements, which I believe would save time and money—and lower litigation stress—for attorneys and their clients.

An early-selected neutral, with the agreement of both sides, could easily resolve issues such as (1) the order of taking depositions, (2) disputes over deposition locations, and (3) minor to moderate discovery disputes without the necessity of bringing motions and briefing issues that are easily handled in a telephonic conference, etc. By selecting a neutral at the commencement of the litigation, the neutral will become familiar with the basic legal issues and facts, thus enabling him or her to provide swift, efficient and cost-effective assistance to the attorneys.

Using this method, the parties can either agree that the neutral will only act as a “facilitator,” who attempts to get the parties to resolve their dispute by suggesting solutions to both sides. Or, if they wish, the parties can designate the neutral as the “decision-maker” for issues that they mutually agree should be presented to their neutral. The underlying concept is to create a method by which the parties can swiftly and cooperatively resolve the issues that normally arise in litigation.

By agreeing to this method, neither side makes any concessions. The selection of a neutral for this process does not represent a commitment to attempt to resolve the case at a later date. It simply represents an acknowledgement that both sides share equally in benefiting from finding the smoothest path to moving the case forward – whether to trial or settlement.

Make the Most of Your Mediation: The Neighbor Dispute

By Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

Disputes between neighbors are among the most blistering battles in the courthouse. As one advocate observed during a break in Day 3 of Hatfield v. McCoy, “At least in a divorce, one of the parties moves out of the house.” Like a divorce, neighbor disputes are expensive, emotional, and greatly in need of skillful resolution. Here are five tools lawyers and neutrals can use to settle these quarrelsome cases.

1. Engage experts to generate practical solutions. Regardless of whether the problem involves parking, property line encroachments, view obstructions, falling leaves or barking dogs, the right expert can help the parties focus on a fix rather than a fight. A design professional might come up with 50 solutions for a problem when a litigant sees only one. Even better, if the lawyers can manage to retain a joint expert, they can save their clients’ money – in shared expert costs – as well as grief. A respected joint expert can help the parties work together on finding a solution everyone can live with, and if the parties cannot agree on one, perhaps they trust the expert enough to ask for their recommendation.

2. Conduct a site inspection. Before the mediation, the participants should meet on site so that each neighbor can show the Neutral what the problem is and how they believe it can be solved. A site visit can help the Neutral understand what is most important to each party: Is it privacy, beauty, autonomy, peace? Is it parking, lighting, safety? The participants will be in a better position to negotiate solutions if everyone has a clear picture of the problems, site and potential solutions.

3. Help the parties trust the process. Commonly, warring neighbors enter mediation with a belief that the problem is 100% the fault of the neighbor, that the other guy is acting in bad faith, and that unless the neighbor is willing to move, resolution is impossible. This outlook makes it hard for each side to hear a different point of view. Lawyers can help their clients by modeling respect during the mediation. When an offer is presented from the adversary, listen to it carefully instead of dismissing it reflexively. When the Neutral describes the risks of going forward, support the Neutral’s concerns rather than taking issue with them. When the Neutral is comparing the last, best and final offer before going forward to trial, give the client a realistic assessment of the costs and risks of trial so that the client can choose wisely.

4. Allow sufficient time to mediate. When I teach mediation, I give students a hypo involving neighbors fighting over views and trees. In the hypo, the uphill neighbor hates the downhill neighbor’s trees because they block his view. The downhill neighbor loves the trees because they protect her from the uphill neighbor’s lights and noise. Students solve the problem in 5 minutes by agreeing to trim trees, move lights, and reduce noise. They are incredulous to learn that in real life, such a problem would likely take a day to settle. Why? Isn’t the solution obvious? Maybe. But people don’t like living their lives to suit their neighbors. They resent having to change something on their land to suit someone else. They are sometimes embarrassed to be involved in litigation over a problem they feel that they should have been able to settle without legal action. They feel like they are right and shouldn’t have to compromise. Perhaps they have spent a small fortune in fees and feel that they should be getting more for their money. These issues take time and sensitivity to sort through. Fortunately, once these issues are identified and discussed, parties can then find solutions almost as easily as my mediation students.

5. Be part of the solution. The lawyers most likely to achieve settlement in these emotional cases have gone out of their way to cultivate a professional relationship with opposing party. They have been able to exchange and appreciate the strengths and weaknesses of their own case as well as their opponent’s. They have counseled their clients on how stressful and expensive a trial will be and how unsatisfying its outcome is likely to seem. They have told their clients that what seems so important to them may not strike a judge or jury the same way. They approach mediation with a mind open to entertaining creative solutions. They keep discussions moving when discouragement creeps in. These are the lawyers whose clients are most likely to sign settlements and releases at the end of the day.

There are notorious neighbor cases that end in gunfire. There are sad ones that end with both parties selling their homes and moving elsewhere. Some go to trial and end up with a decision that seems to change nothing. And then there are those few that end with an agreement to trim the trees, try a little harder and maybe look the other way when the car is parked illegally.

They say that good fences make good neighbors. So too can good lawyers and mediations.

Employees and Employers

Following are two interesting and recent federal court rulings related to arbitration.

Future Disputes are beyond Arbitral Authority
Minnesota Nurses Association v. North Memorial Health Care

After completing 30 years of service, Nurse Lynette Drake asked to be relieved of the obligation to work weekends. When her supervisor required her to report under a “needed-nurses” exception, Drake filed a grievance.

The arbitrator concluded that the exception was properly invoked. However, in order to ensure that Drake not be treated unfairly in the future, the arbitral award required that “from the date of this award, if the Employer invokes the “exception” proviso to compel qualifying nurses to work on weekends, the number of required weekends shall be equally shared (divided) among those qualifying nurses.”

The district court vacated the portion of the arbitrator’s award requiring that weekend shifts filled by qualifying nurses be divided equally among them. North Memorial appealed.

The United States Court of Appeals for the Eighth Circuit affirmed. Finding that the arbitrator exceeded his authority, the Court wrote, “The CBA has not delegated the arbitrator authority to resolve disputes not presented to him by the parties, and the extent of the dispute the parties have referred to arbitration is determined by the submission, not the CBA.” As the parties only submitted a single dispute about a past act, the arbitrator had no authority to fashion a remedy for hypothetical future disputes.

Employer Waived Right to Arbitrate
Messina v. North Central Distributing

Richard Messina sued North Central Distributing for terminating his employment contract after six months. Messina argued that the contract was for two years.

NCD removed the case to federal court. After several months, the parties filed a report with the court that mentioned negotiation and mediation, but not arbitration. Several months later, NCD moved to transfer venue. The lawyers for the parties were in frequent contact and arbitration was never mentioned.

Eight months after the filing of the case, NCD moved to compel arbitration pursuant to a clause in Messina’s employment contract. The district court denied the motion and NCD appealed.

The United States Court of Appeals for the Eighth Circuit affirmed. It found that NCD knew of its right to arbitrate, had acted inconsistently with that right (“substantially invoking the litigation machinery by…removing the case to federal court, filing an answer, participating in a pretrial hearing, filing a scheduling report which recommended a trial date and discovery deadlines, and filing a motion to transfer venue.”), and that these actions had caused prejudice to Messina who “spent considerable time and money obtaining new counsel, partaking in pretrial hearings, and responding to the transfer motion.”