Articles

LEGAL TRENDS, April 1997  

Welcome to our inaugural issue of Legal Trends!

This is our first issue of Legal Trends. We hope that you will find the following articles informative and enlightening. Legal Trends will periodically update you on the latest developments in the law, nationally and locally, with a focus on labor and employment, personal injury, computers and technology, and a variety of other topics, including consumer issues.

Discrimination in the Workplace

Securities firms under fire

Marybeth Cremin was a very successful broker in the Northbrook, Illinois office of Merrill Lynch Pierce Fenner & Smith. After the birth of her fourth child, Cremin was inexplicably terminated from her job, after negotiating a reduction in her hours to part time status. Cremin claimed that compared to her male co-workers she was being paid less, not given the same opportunities for advancement, and was excluded from many social activities which the men participated in.

Cremin, however, was unable to directly bring a lawsuit against her employer in federal court for sex discrimination. The reason was simple: Cremin had signed a U-4 statement, a document required by the Securities and Exchange for all brokers to execute. The U-4 statement compels an employee in the securities industry to resolve their claim through binding mandatory arbitration, as opposed to litigating their claims in federal court.

Cremin and others like her were dissatisfied with the arbitration system. For years, the arbitration panels have been primarily staffed with older, male arbitrators.

The U-4 statement, however, provides that a group of plaintiffs may proceed in federal court if they can get their case certified as a class action. Three months ago, Cremin and seven other female Merrill Lynch brokers did exactly that - they filed a lawsuit seeking class certification, alleging that the securities broker engaged in a pattern of discriminatory conduct in the hiring, promotion and treatment of women.

This case, and two others filed against large brokerage houses, will be closely watched by the industry. A successful assault by the aggrieved women would undoubtedly have huge financial and public relations consequences for these old line firms.

Battling in the aisles - women employees fight grocery chains

Earlier this year, Publix Super Market, the nation's ninth largest grocer, and Florida's biggest private employer, agreed to settle a class action lawsuit, originally brought by eight women in 1995. The women claimed that they were repeatedly passed over for raises and denied management positions. While the grocer did not admit any liability, it did agree to settle for $81.5 million, which will cover 150,000 current and former women employees.

Locally, Dominick's Finer Foods is gearing up for a class action discrimination trial originally brought by eight women. The class covers 15,000 current and former Dominick's women employees since September 23, 1993. Similar to the claims in the Publix case, U.S. District Court Judge Elaine E. Bucklo recently ordered that Dominick's proceed to trial on these allegations.

According to the suit when it was originally filed, Dominick's had 85 stores in the area, and 98 percent of store managers, 94 percent of comanagers and 96 percent of co-managers were men.

Should the plaintiffs prevail, their damages would likely include the difference in their pay had they been promoted. In the event that Dominick's actions are found to be willful, they could be subject to punitive damages, with a $300,000.00 cap per class member. This could put Dominick's potential liability in excess of $4.5 billion. Undoubtedly, this will be a closely watched case in the months to follow.

Supreme Court Expands Employer Liability

In an action brought against a Chicago employer, the United States Supreme Court ruled earlier this year that companies with 15 employees on their payrolls at any given time are subject to discrimination suits brought under the Civil Rights Act of 1964. While the law was clear that only those employers who had 15 or more employees working during the previous 20 calendar weeks were subject to liability, what was unclear was the manner in which the number of employees was calculated.

In a ruling likely to affect thousands of businesses nationwide, the Court held that the total number of employees that are on the payroll, regardless of their full time or part time status, may be counted. This decision will most likely have significant impact on claims brought under the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Family Medical Leave Act.

Personal Injury Law

Liability waivers take a hit

Your spouse just donned his $2,000.00 of brand new diving gear and can't wait to swim with the sharks and eels. In his rush to jump in the ocean, he hastily agrees to sign a liability waiver releasing the divemaster and operators of the dive shop from any liability. In jumping off the boat, the divemaster neglected to tell your spouse of a submerged coral head. Unbeknownst to him, the diver jumps in the ocean blue, knocks his head on the submerged coral and dies. Can the wife successfully sue? The answer now is, maybe.

While the owners of many businesses offering recreational activities such as diving, horseback riding, and even your local volleyball league have long enjoyed protection from such waivers, a recent decision by the Wisconsin Supreme Court has cast the validity of many of these waivers in doubt.

In the Wisconsin case, Wisconsin's high court reversed two lower court decisions which prevented a father from suing the Hidden Valley Ski Area for the wrongful death of his daughter on a ski trip. Eleven year old Tara Yauger's father had signed the annual application which contained a one sentence paragraph agreeing to hold the operator harmless for any injury incurred on the premises. Tara died when she collided with a concrete base of a ski lift tower after a downhill run.

While the ski operator claimed that the Yauger family had waived their right to sue, the Wisconsin Supreme Court disagreed. Recognizing that a party could contractually waive a right to sue, the court held that the agreement must "clearly, unambiguously, and unmistakably express this intention." The court found that the Hidden Valley waiver failed to have the participant release Hidden Valley from its own negligence and never defined what the "inherent risks" of skiing were.

While the Yauger case is not binding on Illinois or any other state, the ruling is significant as the courts come to grapple with this troublesome issue. Whether courts will allow other waivers to stand will likely depend on the content of the waiver's language, how prominently it is displayed, and the education and experience of the party signing the document.

Computers and Technology

Free speech on the Internet at issue

In a case which pitted the ACLU and the American Library Association on one side, and Justice Department on the other, the United States Supreme Court recently heard oral arguments as to whether the 1996 Communications Decency Act was constitutional.

Last year, a federal appellate court held that the portions of the law that criminalized the display and communication of "patently offensive" and "indecent" material to minors was unconstitutional. At stake is whether a user's free speech rights will be overrun in an effort to protect children. Justice Department lawyer Seth Waxman advised the Court that the Internet currently has 8,000 sites offering sexually explicit material. A decision on this very important case is expected before the Court adjourns at the end of June.

Topical consumer issues

Consumers suffer a setback

In a setback for consumers, the Illinois Supreme Court reversed a lower court ruling requiring insurance companies to give actual notice to consumers before they cancel an insured's policy for nonpayment of premium. Under the law as it now stands, an insurance company may cancel your policy, even if you never received a premium or cancellation notice, as long as the cancellation notice was sent ten days prior to cancellation.

The Law Offices of Eugene K. Hollander
LEGAL TRENDS, April, May, 1997

About the author:

Eugene Hollander is a trial attorney with over ten years experience. Mr. Hollander has tried numerous cases in the state and federal courts, and currently heads his own law office in Chicago. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in the prosecution and defense of employment discrimination claims, personal injury and medical malpractice suits, and also engages in various types of commercial litigation. For more information, contact us directly at:

The Law Offices of Eugene K. Hollander
33 N. Dearborn, Suite 2300
Chicago, IL 60602
(312)-425-9100
E-mail: EHollander@ekhlaw.com

Copyright © 2003 The Law Offices of Eugene K. Hollander. This publication may be considered advertising material under the Illinois Code of Professional Responsibility and is not intended to create any attorney-client relationship. The reader should not rely upon any statement or opinion as legal advice, but rather, should consider it as generally informative.