Articles

LEGAL TRENDS, April 2001

Legal Trends Highlights Recent Cases In Employment Law

In this issue of Legal Trends, we analyze several recent cases in the world of employment law, including one tried by Eugene K. Hollander and Mary M. Madden. This issue also discusses the latest trends in the field of product liability law.

Employment Law

Hollander Law Offices Obtains Record Jury Verdict.

Shirley Swiech began her career at Gottlieb Memorial Hospital in 1974. Initially employed as a clerk, Swiech was later promoted to the position of payroll supervisor in 1989. In 1990, then 45 years old, Swiech began reporting to a new hire and supervisor, Ellen Chin, then age 26.

Swiech claimed that after Chin was hired, she was subjected to a series of adverse employment actions. When Swiech thought it appropriate to write-up a subordinate for a job infraction, Chin said that if "you write her up, I will write you up." When Swiech later complained to Human Resources that her authority was undermined, Chin reprimanded her for going above her head.

Swiech also claimed that Chin routinely excluded her from social functions in the payroll department, and instead, only socialized with the younger employees in the group. Swiech sought psychiatric help in 1993, due to increased symptoms of stress, and was diagnosed as having recurrent major depression. She continued to receive treatment during her employment.

Later, in the beginning of 1995, though Swiech held the payroll supervisor position for over five years, Chin demoted her to the clerk position. Chin also had Swiech's salary frozen. According to Swiech, her new supervisor repeatedly urged her to retire.

In 1994, and just prior to her demotion, Swiech began experiencing problems of severe fatigue. Swiech had been previously diagnosed as suffering from lupus. Swiech approached Chin and asked for an accommodation in her work hours - that she be allowed to take rest breaks and skip lunch so that she could leave early. According to Swiech, Chin responded by saying, "Yeah, right." Swiech was forced to rest in the bathroom and in her car.

Though Swiech had received exemplary reviews for the first 20 years of her employment, she was not reviewed in 1995 or 1996, in violation of the hospital's handbook. The other five employees in the department,however, were reviewed and given raises.

In a tense meeting which occurred on October 2, 1996, Chin charged Swiech with subpar performance for the prior two years. When Swiech requested documentation proving that she did not perform, Gottlieb could produce none. Chin also accused Swiech of having illegally made changes to her retirement plan, though Swiech already received clearance from Human Resources and her own personal CPA to make the changes. Swiech then requested to have a legal representative present, and the Vice-President of Human Resources, Brett Wakefield, denied her request.

Visibly upset, Swiech left Gottlieb, proceeded to the emergency room for treatment, and never returned to work.

Swiech filed suit in federal court in Chicago, claiming that she had been discriminated against on the basis of age and disability. Swiech claimed that the hospital maintained a hostile work environment, failed to reasonably accommodate her because of her disabilities, and constructively discharged her. On February 26, 2001, the jury found in her favor on all of her disability claims, and awarded her $875,000 in compensatory damages, and $575,000 in punitive damages. According to the Cook County Jury Verdict Reporter, the award was the largest compensatory damage verdict ever in Chicago for an ADA case.

Supreme Court Holds That Employers Can Enforce Arbitration Agreements.

In a landmark case, the United States Supreme Court has held that employers may enforce arbitration agreements which are made part of employment contracts. In the case of Circuit City Stores, Inc. v. Adams, employee Adams was hired as a sales counselor in Circuit City's Santa Rosa, California store. Prior to becoming hired, Adams completed an employment application in which Adams agreed to exclusively arbitrate all employment claims against the retailer.

Two years later, Adams filed suit against Circuit City, asserting a variety of state law claims against it. Circuit City then filed suit in federal court, seeking to enjoin the action on the basis of the arbitration agreement. The district court issued the injunction, and an appeal followed. The Ninth Circuit Court of Appeals reversed, and the nation's high court agreed to review the case.

Noting that all other federal appellate courts which have addressed the issue sided with Circuit City, the Supreme Court held that the Federal Arbitration Act only excluded claims involving transportation workers from arbitration, and no others. While attorneys general from 22 states submitted friend of the court briefs arguing that such a clause should not be enforceable, the high court reasoned that such provisions should be enforced due to the benefits of arbitration.

The impact of this decision could be extremely significant. If employers routinely incorporate arbitration clauses in employment contracts, the amount of employment litigation in the courts may drop dramatically.

In a companion case to be decided by the Supreme Court this fall, the high court will determine if the EEOC, suing on a discharged employee's behalf, may recover damages and "other appropriate relief." The employee was employed as a grill operator, and suffered from a seizure disorder. His employer told him not to return to work, and fired him a few weeks later.

The employee filed a charge of discrimination with the EEOC, and the federal agency later filed a lawsuit on his behalf in federal court, alleging that the employer violated the Americans With Disabilities Act. A decision will most likely be handed down by spring, 2002.

Product Liability Law

Jury Verdicts Soar In Product Liability Cases.

In a recent study released by LRP Publications, the publisher found that the median jury verdict for a product liability claim has tripled since 1993 - from $500,300, to $1.8 million in 1999. The study included 2,751 product liability verdicts. Much of the rise in the awards has taken place over the last three years.

While the awards may have substantially increased, the number of product liability cases filed, at least in the federal courts, has dropped sharply. In 1997, 32,856 product liability claims were filed in federal court; in 2000, however, only 14,428 such cases were filed.

Many experts attribute the drop to plaintiffs' lawyers selectively picking and choosing their cases. Since preparing product liability cases often relies upon expert witness testimony, many attorneys must spend $100,000 or upward to present the case to the jury. As a matter of economics, these attorneys will only agree to handle cases with egregious injuries.

Under some circumstances, juries are awarding more money than what the party's attorneys request. In 1997, four year old Malik Singletary reached inside a washing machine manufactured by Pellerin Motor. Though the lid was open, the machine kept spinning, severing the boy's arm. Though his doctors were able to surgically reattach the arm, it functioned poorly. At trial, the family sought $1 million in damages. In 1999, however, the jury returned a verdict for $5 million, surprising even the family's attorney.

The Law Offices of Eugene K. Hollander
LEGAL TRENDS, April, 2001

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.