"SEXUAL HARASSMENT IS ALIVE AND WELL AFTER JONES V. CLINTON"
“YES, VIRGINIA, SOMETIMES THE GOVERNMENT GETS AWAY WITH DISCRIMINATION”
"SEXUAL HARASSMENT IS ALIVE AND WELL AFTER JONES V. CLINTON"
INTRODUCTION
This article will provide an overview of the current state of the law of sexual harassment and then discuss some of the practical concerns in the litigation of sexual harassment cases. It is imperative that the lawyer undertaking representation of a plaintiff in a sexual harassment case stay abreast of evolving legal standards (e.g., employer liability for supervisor or coworker harassment, the "reasonable victim" standard of analyzing harassment claims, and the like). The lawyer must also maintain a realistic view of the time and cost factors in bringing a case to resolution.
SEXUAL HARASSMENT
It is unlawful for an employer to discriminate against an individual because of the person's sex. (42 U.S.C. Section 2000e-2(a)(1) ["Title VII"]; California Fair Employment and Housing Act ("FEHA", Government Code Sections 12940 et seq.) Article 1, Section 8 of the California Constitution also prohibits discrimination in employment based on "sex, race, creed, color, or national or ethnic origin."
Sexual harassment is a form of sex discrimination. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67; Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal.App.3d 590. The California Department of Fair Employment and Housing defines sexual harassment to include: unwanted sexual advances or propositions, offering employment benefits in exchange for sexual favors, making or threatening reprisals after a negative response to sexual advances, visual conduct (leering, making sexual gestures, displaying sexually suggestive objects, picture, cartoons or posters), verbal conduct (making or using derogatory comments, epithets, slurs, or jokes), verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes, or invitations, physical conduct (touching, assault, impeding or blocking movement).
Sexual harassment, however, does not necessarily involve strictly sexual conduct. It does not always consist of lewd acts or sexual advances. Sexual harassment may involve conduct, obvious or subtle, that discriminates against a person because of that person's sex. Oncale v. Sundowner Offshore Services, Inc. 118 S.Ct. 998 (1998)
In Accardi v. Superior Court (1993) 17 Cal.App.4th 341, such conduct included: spreading untrue rumors about the employee's abilities, singling her out for unfavorable work assignments and shifts, making groundless complaints about her performance, spreading rumors that she had slept with supervisors in order to receive favorable assignments, overburdening her with impossible work assignments, denying assistance when she requested it, excluding her from group activities, telling her she had to live with "double standards" for male and female police officers, allowing condescending remarks to be made about women in general, in addition to making sexual advances to her. The Accardi court concluded that the arguably nonsexual conduct occurred during the final stages of a continuing course of sexual discrimination in a police department which did not want women in "a man's job". (Accardi v. Superior Court (1993) 17 Cal.App.4th at 349)
"Hostile" Work Environment
There are two actionable types of sexual harassment:
1. Quid pro quo harassment. This form of harassment occurs when a term of employment is conditioned upon unwelcome sexual advances. (Highlander v. K.F.C. Nat. Management Co. (6th Cir. 1986) 805 F.2d 644.)
2. The creation of a hostile work environment for the employee because of that employee's sex. (Chamberlin v. 101 Realty, Inc. (1st Cir. 1990) 915 F.2d 777, 782, quoting 29 C.F.R. SS 1604.11(a)) Hostile environment and quid pro quo harassment claims are not always separate and distinct. (Fisher v. San Pedro Peninsula Hospital, supra, at 607) The term "sexual harassment" leads some people to think of the first type of sexual harassment; i.e., unwelcome sexual advances. In Henson v. City of Dundee (11th Cir. 1982) 682 F.2d 897, for example, a female police dispatcher stated a claim for sexual harassment where she alleged she had been denied promotion because she had rejected her supervisor's request for sexual favors. (See also Sampayo-Garraton v. Rave, Inc. (1989) 726 F.Supp. 18.)
In Title VII actions the distinction between quid pro quo and hostile environment was considerably blurred by the Supreme Court last year in two cases, Faragher v. City of Boca Raton 118 S.Ct 2275 (1998) and Burlington Industries, Inc. v. Ellerth 118 S.Ct. 2257 (1998) Essentially, quid pro quo liability, at least in the federal courts, will be limited to job threats that are actually carried out.
Note that the creation of a hostile work environment, may have nothing to do with sexual advances. It appears in the form of intimidation and hostility for the purpose of interfering with an individual's work performance. (Chamberlin v. 101 Realty, Inc., 915 F.2d at 782 (1983)) To state a cause of action for this type of sexual harassment, it is "only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff `had been a man she would not have been treated in the same manner.'" (Tomkins v. Public Serv. Elec. & Gas Co. (3d Cir. 1977) 568 F.2d 1044, 1047, fn. 4.)
This type of harassment can occur in a variety of ways. (Andrews v. City of Philadelphia (3d Cir. 1990) 895 F.2d 1469, 1485 [". . . the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment."]; Hall v .Gus Const. Co., Inc. (8th Cir. 1988) 842 F.2d 1010 [incidents of cruel practical jokes, although not conduct of a sexual nature, may be properly considered to constitute sexual harassment]; Broderick v. Ruder (D.D.C. 1988) 685 F.Supp. 1269 [supervisor obtains sexual favors from subordinates other than complainant.)
As the Fisher court noted, "'[s]exual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, 'or otherwise interferes with and undermines her personal sense of well- being.' [Citation.]" (Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d at 608)
In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), the Ninth Circuit held that harassment must be analyzed from the victim's perspective, not from the perspective of "a reasonable person." In Ellison actions of the plaintiff's co-workers were deemed capable of establishing a hostile work environment when such actions, as viewed by the "reasonable victim", could be considered sufficiently pervasive and severe. (See also Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995) The California Department of Fair Employment and Housing focused on the victim's perspective in DFEH v. Sigma Circuits, Inc. (Calf. FEHC, 88-14 July 28, 1988) in stating that "the legal standard is whether the victim is intimidated or offended, not whether somebody else would have been."
Employer Liability
Under both the FEHA and Title VII, an employer may be held liable for harassment of an employee by co-workers only if the employer knew of the conduct and failed to take immediate action to remedy the situation, or if the employer should have known of the conduct because of its severity and pervasiveness.
Under Title VII, the Supreme Court, Faragher, supra, at 2292-93 and Ellerth, supra, at 2270, held that an employer is strictly liable for sexual harassment by a supervisor if the plaintiff suffers a tangible employment action (e.g. discharge, demotion, lack of promotion). If the plaintiff did not suffer a tangible employment action -- i.e., if the harassment was limited to conduct creating a hostile environment -- the employer remains strictly liable unless it can prove an affirmative defense. That defense contains the following elements: (1) the employer exercised reasonable care to prevent and/or promptly correct sexually harassment, and (2) the employee unreasonably failed to take advantage of preventive or corrective remedies provided by the employer.
Under the FEHA, employers may be held strictly liable for harassment by supervisors, managers or agents of the employer, whether or not the employer had knowledge or took remedial steps upon discovery. (Fisher v. San Pedro Peninsula Hospital, supra, at 608, n.6) In Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, however, the court that a supervisor who invited a female employee to his parents' home outside of her work shift, and then raped her, was not acting as the agent of the employer at the time of the incident. The court issued a writ of mandate ordering the trial court to grant summary judgment to the employer on the sexual harassment cause of action, finding insufficient employment nexus to hold the employer liable.
(See Intlekofer v. Turnage (9th Cir. 1992) 973 F.2d 773, for a discussion of the adequacy of an employer's remedial measures on discovery of actual harassment.)
The issue of whether, in a FEHA sexual harassment case, nonsupervisory employees or supervisory employees who did not participate in the harassment may be held personally liable is pending before the Supreme Court in Carrisales v. Department of Corrections (1998) 64 Cal.App.4th 1492, 98 Daily Journal DAR 8826.
Exhaustion of Administrative Remedies
A sexual harassment case may be brought under California Constitution Article 1, Section 8, without pursuing administrative remedies. To obtain the benefits of suing under FEHA or Title VII, however, the plaintiff must first file a charge of discrimination with the California Department of Fair Employment and Housing ("DFEH") or the United States Equal Employment Opportunity Commission ("EEOC") and obtain a "right-to-sue" letter. The agencies have concurrent jurisdiction to accept discrimination charges under both the federal and state statutes.
Statute of Limitations
Under FEHA, the administrative complaint must be filed the Department of Fair Employment and Housing within one year of the date upon which the alleged act of discrimination occurred. (Government Code Section 12960 et seq) Under Title VII, however, the administrative complaint must be filed within 300 days.
There is an equitable exception to the one-year period known as the "continuing violation" doctrine. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341; Waltman v. International Paper Co. (5th Cir. 1989) 875 F.2d 468, 474-475.) Under this doctrine, a complaint arising under FEHA is timely if any of the discriminatory practices continue into the limitations period. (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1053) A "systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period." (Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271,1290-1291)
The circumstances in a given case may be so pervasive and severe as to establish the existence of a long-standing hostile work environment (Meritor Savings Bank v. Vinson, supra, 477 U.S. at p. 67; see also Jordan v. Wilson (M.D.Ala. 1986) 649 F.Supp. 1038, 1058 ["discriminating against women because they are women was and remains the 'standard operating procedure' within the City of Montgomery Police Department"].)
The trier of fact must determine sex discrimination in light of "`the record as a whole'" and "`the totality of circumstances ....'" (Meritor Savings Bank v. Vinson, supra 477 U.S. at p. 69; Snell v. Suffolk County (2d Cir. 1986) 782 F.2d 1094, 1103.) A longitudinal view of the events, from their beginning, makes it possible for a trier of fact to see the interrelationship and significance of the events. The existence of gaps between incidents of sexual harassment does not preclude a finding of continuing violation. (Waltman v. International Paper Co., supra, 875 F.2d at pp. 475-476.)
No Preemption by Workers Compensation Act
A claim for damages under the FEHA is not preempted by the Workers' Compensation Act. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341; Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 90) Discrimination in employment is not a "normal incident of employment". (Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794.)
LITIGATION REALITIES
Sexual harassment cases are costly, time-consuming, heavily litigated cases. You will spend considerable time in law and discovery. Plaintiff's depositions will seemingly go on forever. You cannot afford to make an unrealistic appraisal of the chances of success.
Are the incidents described by the client severe? Were they pervasive? Does the client's account of the harassment make you angry? If you are not seriously offended by what you hear, don't expect a jury to be.
Did the client take any steps to resolve the harassment internally? Did the employer have a published policy against sexual harassment and a credible, non-threatening internal process for dealing with complaints. Did your client use the process?
Working with your client is sometimes difficult in an emotionally charged employment case. The psychological consequences to someone wrongfully fired or to the victim of sexual misconduct, for example, can be severe. You must maintain your client's trust and, often, be a source of strength.
Credibility of the plaintiff is vital to a sex harassment case. In one-on-one harassment cases, it may boil down to your client's word over that of the harasser. You must ensure that your client tells the truth.
Pleading
Be careful how you plead damages. Pleading loss of reputation or loss of consortium may open up areas of inquiry in discovery or at trial which are otherwise objectionable.
Depositions
Depositions of the plaintiff will be an ordeal. These depositions routinely last three to six days. Although styles may vary, most defense attorneys attempt to intimidate the plaintiff. She will be questioned in microscopic detail about the sexual misconduct.
The defense will attack your client's credibility and character. The plaintiff must be well prepared to withstand defense attempts to probe into the most intimate parts of her life. In this regard, see California Evidence Code Sections 783 and 1102 which govern the scope and the methods of defense inquiry into the plaintiff's sexual history.
CONCLUSION
Tort-reformers continue to complain that sexual harassment litigation is making it too costly to do profitable business. Like other areas of tort law, this area is under attack. However, with a carefully analyzed and well prepared case, juries will do the right thing.
“YES, VIRGINIA, SOMETIMES THE GOVERNMENT GETS AWAY WITH DISCRIMINATION”
INTRODUCTION
If you ever wondered what life was like under the Articles of Confederation, before the U.S. Constitution was ratified, you may get to find out as the U.S. Supreme Court continues to shape its `New Federalism’ philosophy at the expense of much of the nation’s workforce. In recent cases, the Court has virtually eliminated the ability of state government employees to hold their employer liable for violations of the Age Discrimination in Employment Act, the Americans with Disabilities Act (ADA), and the Fair Labor Standards Act violations.
FAIR LABOR STANDARDS ACT
Alden and other state probation officers brought an action in U.S. District Court against the State of Maine for the state’s violation of overtime provisions of the federal Fair Labor Standards Act (“FLSA”). The district court dismissed the case after the Supreme Court decided, in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252, that Congress lacks power under Article I of the Constitution to abrogate the States' sovereign immunity in federal courts. The state employees then filed the same action in Maine state court.
Last year, in Alden et al. v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636, the Supreme Court held that the Alden plaintiffs were also barred from prosecuting an FLSA action in state court because of sovereign immunity. Justice Kennedy, for the 5-member majority, held as follows:
“We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA. On these premises we affirm the judgment sustaining dismissal of the suit.”
Justice Kennedy attempted to explain how the Eleventh Amendment, which makes explicit reference to the States' immunity from suits "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State", was not the exclusive source of state sovereign immunity.
“We have, as a result, sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity." The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today.” (119 S.Ct. @ 2246, Emphasis added)
Justice Souter’s acerbic dissent was joined by Justices Stevens, Ginsburg, and Breyer. It is “must” reading for constitutional scholars and for anyone who has concerns about future presidential appointments to the Supreme Court.
AGE DISCRIMINATION
On January 10, 2000, the Supreme Court continued its “scorched earth” approach to federalism and held that state government employees may no longer sue their state government employer under the federal Age Discrimination in Employment Act (“ADEA”). Kimel et al. v. Florida Board of Regents et al., 120 S.Ct. 631, 81 Fair Employment Practices Cases (BNA) 970. Justice O’Connor, writing for the same 5-member majority, made the majority’s attitude regarding age discrimination in the public sector rather clear:
“Our examination of the ADEA's legislative record confirms that Congress' 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. The evidence compiled by petitioners to demonstrate such attention by Congress to age discrimination by the States falls well short of the mark. That evidence consists almost entirely of isolated sentences clipped from floor debates and legislative reports.”
“A review of the ADEA's legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the § 5 inquiry, id., at ----, 119 S.Ct., at 2209-2210; City of Boerne, 521 U.S., at 531-532, 117 S.Ct. 2157, Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. In light of the indiscriminate scope of the Act's substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States, we hold that the ADEA is not a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. The ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid.” (120 S.Ct. @ 648-650)
Justice Stevens’ dissent, illuminates the majority’s misguided view of states’ immunity:
“Congress' power to regulate the American economy includes the power to regulate both the public and the private sectors of the labor market. Federal rules outlawing discrimination in the workplace, like the regulation of wages and hours or health and safety standards, may be enforced against public as well as private employers. In my opinion, Congress' power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 165-168, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (SOUTER, J., dissenting); EEOC v. Wyoming, 460 U.S. 226, 247-248, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (STEVENS, J., concurring).” (120 S.Ct. @ 650-651)
“The Eleventh Amendment simply does not support the Court's view. As has been stated before, the Amendment only places a textual limitation on the diversity jurisdiction of the federal courts. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 286-289, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting). Because the Amendment is a part of the Constitution, I have never understood how its limitation on the diversity jurisdiction of federal courts defined in Article III could be "abrogated" by an Act of Congress. Seminole Tribe, 517 U.S., at 93, 116 S.Ct. 1114 (STEVENS, J., dissenting). Here, however, private petitioners did not invoke the federal courts' diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, today's decision (relying as it does on Seminole Tribe ) rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity, which the Court treats as though it were a constitutional precept. It is nevertheless clear to me that if Congress has the power to create the federal rights that these petitioners are asserting, it must also have the power to give the federal courts jurisdiction to remedy violations of those rights, even if it is necessary to "abrogate" the Court's "Eleventh Amendment" version of the common-law defense of sovereign immunity to do so. That is the essence of the Court's holding in Pennsylvania v. Union Gas Co., 491 U.S. 1, 13-23, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989).
I remain convinced that Union Gas was correctly decided and that the decision of five Justices in Seminole Tribe to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so fundamentally inconsistent with the Framers' conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law. See, e.g., Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-410, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). And in this instance, it is but a hollow pretense for any State to seek refuge in stare decisis ' protection of reliance interests. It cannot be credibly maintained that a State's ordering of its affairs with respect to potential liability under federal law requires adherence to Seminole Tribe, as that decision leaves open a State's liability upon enforcement of federal law by federal agencies. Nor can a State find solace in the stare decisis interest of promoting "the evenhanded ... and consistent development of legal principles." Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). That principle is perverted when invoked to rely on sovereign immunity as a defense to deliberate violations of settled federal law. Further, Seminole Tribe is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Court's decision today and in the equally misguided opinion of Alden v. Maine, 527 U.S. ----, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Further still, the Seminole Tribe decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress' § 5 authority. Finally, by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law. [FN7 omitted] The kind of judicial activism manifested in cases like Seminole Tribe, Alden v. Maine, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. ----, 119 S.Ct. 2191, 144 L.Ed.2d 575 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. ----, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.” (120 S.Ct. at 652-654)
One of the anomalies of the Kimel case is that it does not affect the power of the U.S. Equal Employment Opportunity Commission to prosecute age discrimination actions under the ADEA against states. California Credit Union League v. City of Anaheim, 190 F.3d 997 (9th Cir. 1999); see Alden v. Maine, supra, 119 s.Ct. at 2269.
The Kimel majority tried to soften its blow to older government employees by stating that they still had the protections of state age discrimination statutes in almost every state. Although California now has one of the better of such statutes, its reach appears to be narrower than the ADEA’s, particularly with respect to employee benefit issues. The statute, Government Code § 12941, purports to deal with hiring, firing demoting, or suspending employees over the age of 40. For “terms and conditions” issues, see Title 2 of the California Code of Regulations.
DISABILITY DISCRIMINATION
Although disabled employees, and would-be employees, hardly need more bad news from the Supreme Court after the “Sutton” trilogy, the Court has granted certiorari in Florida Department of Corrections v. Dickson, No. 98-N829, to decide the sovereign immunity issue with respect to the Americans with Disabilities Act. Most practitioners believe that the Court will rule that sovereign immunity will bar state employees from suing under this Act.
The judicial assault on the ADA is less a problem for California government employees than the attack on the ADEA. Aside from the immunity problem with ADA, FEHA is more broadly written, providing, e.g., that a plaintiff need only establish that a mental disability “affects” one or more major life activities, in contrast to the ADA’s “substantially limits” standard. (Government Code § 12940) (But see Swenson v. County of Los Angeles (1999) 75 Cal.App.4th 889 (hrg. granted, 1/13/00)
CONCLUSION
What the near future holds concerning 11th Amendment immunity depends, to a significant degree, on who fills vacancies on the Supreme Court in the next several years. As Justice Stevens said, speaking for the four member minority in Kimel and Seminole Tribe, these cases should be excepted from the constraints of stare decisis and states rely on them at their peril.
Because California state employees have a reasonably effective remedy to combat disability and age discrimination in FEHA, Alden, Kimel and, looking ahead, Florida Department of Corrections v. Dickson, may not have much practical effect in most cases. To the extent, however, that an age discrimination case challenges an employment benefit or other terms and conditions of employment the practitioner must take care to plead the case within the language of Government Code § 12941 and the regulations interpreting that section, Title 2, California Administrative Code §7295 et seq.
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4 Sutton v. United Airlines, 119 S.Ct 2139, ;Murphy v. United Parcel Service, Inc., 119 S.Ct 2133, ; Albertson’s, Inc. v. Kirkingburg, 119 S.Ct 2162.