Edward Jones Discriminated Against Female Employee

December 14, 2016

Yet another BrokeAndBroker.com Blog installment about the need for more quality control at FINRA when it comes to its Arbitration Decisions. In today's rant by our publisher Bill Singer, Esq., we are confronted with claims of civil rights violations by a former Edward Jones & Co. employee. She seems to have won her case . . . sort of. Exactly what constituted the alleged discrimination isn't clearly explained in the arbitrators' award. Then there's that whole issue about whether "disparate treatment" is the best way to describe sexual discrimination.

Case In Point

In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in March 2015, and as amended thereafter, former Edward Jones & Co. employee Claimant
asserted in connection with the circumstances of her employment termination the violation of the:
  • Elliot-Larsen Civil Rights Act ("ELCRA"),
  • Persons with Disabilities Civil Rights Act ("PWDCRA")
  • Americans with Disabilities Act ("ADA"), and
  • Family Medical Leave Act ("FMLA").

At the hearing, Claimant requested the expungement of her Central Registration Depository records ("CRD"), which Respondent did not contest. Subsequently, in her Arbitration Hearing Brief, Claimant Foote requested $3,326,383.00 in compensatory damages; $300,000 in punitive damages; attorneys' fees, and costs. In the Matter of the FINRA Arbitration Between Stacy L. Foote, Claimant, vs. Edward Jones & Co., L.P., Respondent (FINRA Arbitration 15-00682, December 7, 2016).

SIDE BAR: Consider the following characterizations of the Acts cited by Claimant:

The preamble to the Michigan ELCRA states that it is:

AN ACT to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight, familial status, or marital status; to preserve the confidentiality of records regarding arrest, detention, or other disposition in which a conviction does not result; to prescribe the powers and duties of the civil rights commission and the department of civil rights; to provide remedies and penalties; to provide for fees; and to repeal certain acts and parts of acts.

preamble to the Michigan PWDCRA states that it is:

AN ACT to define the civil rights of persons with disabilities; to prohibit discriminatory practices, policies, and customs in the exercise of those rights; to prescribe penalties and to provide remedies; and to provide for the promulgation of rules

According to the United States Department of Justice / Civil Rights Division's ADA.gov website:

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin - and Section 504 of the Rehabilitation Act of 1973 -- the ADA is an "equal opportunity" law for people with disabilities.

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

According to the
United States Department of Labor/ Wage and Hour Division's website:

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
    • Twelve workweeks of leave in a 12-month period for:
      • the birth of a child and to care for the newborn child within one year of birth;
      • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
      • to care for the employee's spouse, child, or parent who has a serious health condition;
      • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
      • any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on "covered active duty;" or
    • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave).

Respondent Edward Jones generally denied the allegations and asserted various affirmative defenses.


The FINRA Arbitration Panel found in favor of Claimant Foote on her claim of ELCRA gender discrimination and, accordingly, found Respondent Edward Jones liable to and ordered it to pay to Claimant Foote $200,000, said amount includes attorneys' fees and compensatory, wage-loss, and emotional-distress damages. Further Respondent was ordered to reimburse Claimant $200 in non-refundable filing fees. The Panel pointedly denied Claimant's ADA and PWDCRA claims.


As to the issue of unopposed request for expungement, the Panel recommended the expungement of the Form U5 "Termination Explanation" and offered the following, in pertinent part:

[T]he Termination Explanation shall be deleted and replaced with the following language: "Inappropriate conduct, not securities or client related. Claimant received disparate treatment in her discipline resulting in her discharge." The Reason for Termination shall remain the same.

Bill Singer's Comment

According to online FINRA BrokerCheck records as of December 14, 2016, Claimant Foote was first registered in January 2009 with Ameriprise Financial Services, Inc. and was registered with FINRA member firm Edward Jones from November 2009 to August 2013.

Missing Damages Calculation

Claimant Foote sued for some $3.6 million in damages but was awarded only $200,000. I take no exception to the amount of awarded damages. I take exception to the lack of explanation as to how the Panel calculated the awarded damages.

Missing PWDCRA Finding

Claimant Foote alleged violations of two State of Michigan Acts: ELCRA and PWDCRA and two federal Acts: ADA and FMLA. The Panel rendered an award of damages for the ELCRA cause of action and specifically denied the ADA and FMLA claims. Ummm . . . what happened to the PWDCRA claim? Why did the Panel find liability for one of the state civil rights acts but denied liability for both of the federal acts?

Missing Explanations

We are never informed as to the nature of the alleged statutory violations, and, admittedly, there may well be compelling reasons to preserve some confidentiality as to the specifics out of consideration for Claimant Foote. That being said, how about that being said in the Decision by way of explanation for the omission? A delicate balancing act is often appropriate when weighing allegations of discrimination against disclosing facts of those allegations, which may prove embarrassing to the victim. Similarly, I appreciate that if an individual has been defamed that it may not be appropriate to re-state that defamation in the Decision. Notwithstanding those reservations, a FINRA Arbitration Decision should at least inform us that the arbitrators have taken such concerns into consideration and have made a conscious decision not to disclose same.


Finally, I'm not exactly sure as to how we are to respond to this proposed Form U5 revision:

Inappropriate conduct, not securities or client related. Claimant received disparate treatment in her discipline resulting in her discharge.

A logical and reasonable inference to be drawn from the above is that the arbitrators believed that Claimant Foote had somehow precipitated her firing by having engaged in "inapproprate conduct." Notably, that conduct was deemed to not have involved securities or a client. Unfortunately, since the Decision never states what constituted said inappropriate conduct, our imaginations are unleashed and that's not a particularly positive result for Foote or for other similarly situated industry employees. Again, there may be legitimate reasons to not disclose the particulars; however, that is all the more reason for any Decision to at least address the elephant in the room and acknowledge that such a concern came into play.  

Finally, I take issue with the Decision's characterization that Respondent Edward Jones' violation of Claimant Foote's civil rights was "disparate treatment," which strikes me as a grossly inappropriate euphemism.  Additionally, the Panel's proposed revised language muddies the waters by conflating whatever "discipline" was unfairly meted out to Foote with the ultimate penalty of her "discharge." Frankly, I'm not quite sure whether the arbitrators found that Edward Jones had discriminated against Foote only during its internal discipline of her; or, if the arbitrators found that Edward Jones had discriminated against Foote only when the firm discharged her.