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Labor and Employment Insights
Summer/Fall 2001
Articles:
Cyber-Slander and E-Libel: Protecting Your Company From Internet Defamation
Matthew Effland, Tampa Office
Disgruntled employees have, unfortunately, always been with us. In the old days, defamation law gave employers some protection against at least the worst types of griping. Often, the mere possibility of a libel or slander suit caused squeaky wheels to regulate themselves, or at least put some strong reins on the media through which they expressed themselves.
The Internet has changed this picture dramatically.
Pre-Internet, disgruntled employees had few means of expressing themselves. They could gossip at the water cooler or in the canteen, but that had limited effectiveness. They could picket in front of the employer’s place of business, but without support of other employees, they usually just looked like crackpots. If they had a union, they could try to get union backing, but the union would serve as a filtering agent and would presumably make an issue of only the strongest complaints. And a weak or corrupt union might not even do that. Finally, the employee could try to get the local mainstream media involved. But the chances that local media would see an individual employee gripe as a news "event" were slim to none.
Nowadays, of course, everything is different. The Internet makes it a cinch for an unhappy employee to gripe without (1) being viewed as an office gossip, as the "water cooler complainer" might have been; (2) looking like a loony, as does the lone picketer; or (3) having to persuade a union or media outlet that his case is of interest or significance beyond himself.
Moreover, the Internet guarantees the office complainer (1) a wide audience and (2) the possibility of anonymity. Why, an unhappy employee can even set up her own website dedicated to busting on her employer! It’s a whiner’s dream.
So, how do you, the employer, defend yourself against this? There are at least three possible approaches, each suited to a different level of Internet complaint.
The laissez-faire approach. Assume that every company has some bad apples or even some good apples who just need to vent. Let ‘em gripe, and let ‘em get it out of their system. Don’t even get into a debate about it. This is probably the recommended approach for the vast majority of cases. However, it may be inadequate in the event that your company has a serious employee relations issue, or in the event that your Internet complainers are slandering your company’s products, the ethics of your managers, or accusing your company of engaging in criminal behavior.
The Nat Hentoff approach. Named for the writer and First Amendment advocate, who believes that the best way to combat inappropriate speech is not by repression but by more free speech. Under this approach, you refrain from threatening legal action and (at least in theory) applaud your employees’ spunk and free, unfettered spirit. Then you "fight fire with fire" by making sure that the company’s side of the story also appears in the chats and e-mails. This is an effective approach for cases that are a little more serious than typical "water cooler griping" but not quite so serious as to warrant a defamation lawsuit. It’s particularly well-suited to situations in which your company is accused of serious but not criminal alleged employee-relations misbehavior, such as unfair labor practices, discrimination, or harassment.
The Heavy Hand. Sometimes you have no choice but to file, or at least threaten to file, a defamation lawsuit. This approach should be reserved only for the most serious cases of on-line griping: the aforementioned accusations of criminal conduct, serious disparagement of your company’s products (not just that they are "bad," "shoddy," or "inferior" —in which case the Hentoff approach would be preferable—but that your airline’s planes crash because you don’t observe basic safety rules or that your food product contains botulism), or accusations of unethical conduct. If you use this approach for the more innocuous types of griping, you will be accused of using a nuclear weapon to kill a gnat, which will only result in more Internet griping about your company. (It could also result in your threatening letter being posted on the Internet, which you probably don’t want except in the most serious cases.)
Assuming you have to use The Heavy Hand, what is the law right now on Internet defamation? Most of the cases deal with the right of a third party to subpoena from an internet service provider ("ISP") the identities of individual users.
The problem of anonymity. An appellate court in Florida has recently allowed a plaintiff-CEO to subpoena Yahoo! and America Online for the identities of chatroom members who allegedly slandered him and caused him to be forced out of his company. The American Civil Liberties Union had intervened, on First Amendment grounds, on behalf of the defendants and the two internet service provider giants.
Pre-suit notice. Defamation law normally requires that, before filing suit, the plaintiff serve notice on the defendants that suit will be filed and demanding a retraction of the allegedly defamatory statement. Another appellate court in Florida has recently held that this is not required in Internet defamation cases.
Internet privacy. Not all of the significant cyber-law has come from Florida. A number of courts have balanced the rights of individuals and companies to protect themselves from defamation against the rights of privacy of the individual complainers.
Although not arising from cyber-slander lawsuits, some courts have recently made rulings on the scope of a court’s power to subpoena the identities of anonymous Internet complainers. A federal court in Washington state refused to allow a company in a shareholder derivative action to subpoena from an internet service provider the identities of individuals who had posted negative comments about the company on the Internet. The company contended that the negative comments, rather than mismanagement, had caused the company’s stock prices to decline. The court found that identifying the individuals was not so critical to the company’s defense that it outweighed the individuals’ First Amendment rights.
In an interesting twist, the Supreme Court of Virginia refused to allow a company - who itself tried to remain anonymous - from subpoenaing from America Online the identities of individual chatroom members who had allegedly disparaged the company. The Virginia Court decision appeared to be based on a "what’s good for the goose is good for the gander" theory: in short, the plaintiff-company’s position was fatally damaged by its own attempt to remain anonymous.
Finally, while its implications for companies that are defamed on the Internet may not currently be very clear, it is worth noting that a Kansas court has upheld a subpoena to an internet service provider to reveal the identity of an individual accused of dealing in child pornography. In such a situation, the court held, the individual’s right of privacy was outweighed by the gravity of the alleged crime.
These cases aside, it appears that, as time goes by, the fundamental things will continue to apply: to wit, traditional defamation law. As a general matter, an internet communication, just like any other type of communication, will be considered defamatory if it is (1) communicated to third parties; (2) tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him; (3) is made with knowledge that it is false, or with reckless disregard as its truth; and (4) thereby causes damage to the plaintiff. And, truth is an absolute defense to a defamation claim.
Matt Effland practices in the areas of employment litigation prevention and defense, the Family and Medical Leave Act, and wage and hour law.
SAD BUT TRUE: Supreme Court Decision On "Front Pay" Was Probably (ugh) Correct
Cara Y. Crotty, Columbia Office
The recent decision of the U.S. Supreme Court that front pay can’t be "capped" is, unfortunately, based on a sound interpretation of the Civil Rights Act of 1991 and Title VII.
When Title VII (the federal law that prohibits discrimination based on race, sex, national origin, color, and religion) was originally enacted in 1964, its remedies were modest. Successful plaintiffs were entitled to injunctions (simply put, a court order that the employer stop the discrimination), reinstatement, back pay, lost benefits, and attorneys’ fees. In that simpler time, there was no such thing as damages for emotional distress resulting from the discrimination or punitive damages.
In defining "back pay," the courts drew on similar language in, and corresponding decisions under, the National Labor Relations Act, finding that "back pay" under Title VII consisted of monetary compensation that would make the plaintiff "whole." In other words, the courts awarded compensation to put the plaintiff back in the position that he or she would have been in had the discrimination not occurred.
Contrary to the implications of the name "back pay," these back pay awards were not always based on pay lost in the past. Successful plaintiffs were entitled to "back pay" up to the date of reinstatement or even later, if it took longer for the plaintiff to be returned to the position he or she would have been in had the discrimination not occurred. This "future" component of "back pay" is called front pay. Front pay is that portion of the "backpay" award that occurs after judgment is entered, or, as the Supreme Court put it, "money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement." Pollard v. E.I. Du Pont de Nemours & Co., 2001 LEXIS 4123 at 6 (June 4, 2001). Both back pay and front pay were routinely awarded under Title VII before 1991.
In 1991, Title VII entered the modern era of extortionate litigation. Congress enacted the Civil Rights Act of 1991, which amended Title VII to provide for recovery of compensatory and punitive damages "...in addition to any relief authorized by...the Civil Rights Act of 1964 [the original Title VII]." 42 U.S.C. § 1981a. However, the compensatory and punitive damages recoverable were capped at a maximum of $300,000. Since compensatory damages included "future pecuniary losses," defendants had an argument that front pay was subject to the cap.
Thanks to Congress’ typically inartful drafting, the impact of the Civil Rights Act of 1991 on front pay was unclear. The employers argued that front pay was an award of compensatory damages for "future pecuniary loss" and thus that the statutory caps applied. The plaintiffs’ bar (and, it must be noted, most federal courts) contended that "compensatory damages" included only those damages that were not previously available under the old Title VII. Since front pay was recoverable under the old Title VII, they argued, front pay was not subject to the caps.
Any time Justice Clarence Thomas sides with the plaintiffs’ bar, it’s a bad sign. Writing for a unanimous Court, Justice Thomas acknowledged that front pay could be considered an award for "future pecuniary losses." However, he said, Congress clearly intended for the 1991 Act to provide additional remedies for discrimination "without giving any indication that it wished to curtail previously available remedies." He also noted that the 1991 Act specifically states that "compensatory damages...shall not include backpay, interest on backpay, or any other type of relief authorized under...the Civil Rights Act of 1964." 42 U.S.C. § 1981a. Front pay was authorized under the old Title VII; therefore, front pay was not "compensatory damages" and not subject to the caps.
Win some, lose some. Although we hate to admit it, the Supreme Court’s decision is well-reasoned and no doubt correctly interprets the statutory language and Congressional intent. But what are the practical implications of this decision for today’s employers? If a plaintiff isn’t reinstated, does that mean we have to pay him or her forever?
Thankfully, (probably) not. But uncapped front pay, even though most courts have been awarding it for years, adds yet another element of subjectivity to our court system. Front pay normally runs from the time of judgment until the time that the plaintiff could be expected to get comparable employment...whenever that might be. Some courts, including the Courts of Appeals for the Sixth (Michigan, Ohio, Tennessee, Kentucky) and Seventh (Wisconsin, Illinois, Indiana) circuits, have vacated long-term front-pay awards on the grounds that they were too speculative. A federal judge in Florida has sensibly opined that front pay is only a "short-term alternative."
On the other hand, there is no guarantee that your judge will be so sensible. Since front-pay is by definition speculative, there is a good chance that you will be at the mercy of your judge’s biases. Presumably, a conservative judge will expect a plaintiff to pound the pavement and find alternate employment right away. A more liberal judge may not. In cases where reinstatement is not an option due to the antagonism between the parties–and, let’s face it, by the time most cases get very far into litigation that level of antagonism nearly always exists–employers will be looking at theoretically unlimited front pay obligations.
Cara Crotty practices in the areas of employment litigation prevention and defense, and OFCCP.
"Front Pay" Hall of Shame
Judges, not juries, normally determine whether a plaintiff is entitled to front pay and, if so, how much he or she should get. In determining the amount, courts will consider lost wages as well as pensions, anticipated bonuses, and profit sharing. In determining the length of time for which the plaintiff may receive front pay, the courts consider the plaintiff’s skills and age, the job market, how long the plaintiff expected to continue working for the employer, the nature of the position the plaintiff held, and the length of time in which one could expect the plaintiff to find comparable employment elsewhere. Expert testimony is often proffered to prove what the plaintiff would have received in future earnings.
That said, front pay determinations are highly speculative. A look at some front pay awards made by real courts makes reinstatement look better all the time:
Buckley v. Reynolds Metals Co., 690 F. Supp. 211 (S.D.N.Y. 1988): Nine years of front pay awarded to 56-year-old plaintiff who claimed he planned on working with employer until retirement.
Young v. Lukens Steel Co., Case No. 92-6490 (E.D. Pa. 1994): Fifty-five-year-old plaintiff in age discrimination case awarded $283,682 in front pay. Plaintiff claimed he intended to stay with employer until retirement at age 70.
Coffin v. United States Postmaster General, Civil Action No. 96-374-P-C (D. Me. 1998): Estate of plaintiff, who allegedly committed suicide because of sex discrimination, awarded $879,000 in front pay.
— Cara Yates Crotty
From The Editor’s Desk: IN DEFENSE OF WHITE MALES
I predict that a new growth market in employment litigation will be reverse discrimination suits. Why? Because so many well-meaning employers, in trying to correct for years of discrimination against women and minorities, seem to be overcorrecting. Consider the following items that have been in the news over the past few months:
The Wall Street Journal reports that a recruiting firm is considering charging, and apparently its client companies are considering paying, premiums for female and minority referrals.
Two white males at a major U.S. automaker have recently sued their employer for reverse discrimination, pointing to company policies that reward managers for promoting women and minorities.
An employee who was fired after objecting to his employer’s affirmative action policy on reverse discrimination grounds is allowed to go to a jury on his retaliation claim.
Yikes! What’s going on? It appears that the unlucky companies, in their attempts to compensate for historical discrimination against women and minorities, may have allowed the pendulum to swing too far. You can’t blame them, and our litigious society and affirmative action laws seem to mandate that companies today be highly sensitive to discrimination against women and minorities, at the expense of qualified white men.
No matter how laudable the intention, though, it’s worth remembering that the anti-discrimination laws prohibit any discrimination on the basis of race or sex. That means discrimination against whites and men as well as against minorities and women.
Companies who place a high premium on diversity should occasionally take a "reverse-discrimination pulse"—making sure they haven’t tried so hard to create opportunities for minorities and women that they are slighting qualified white males. Constangy attorneys are available to assist in making sure your diversity initiatives don’t cross the line into illegal reverse discrimination.
Robin E. Shea, Editor, Winston-Salem Office
BEYOND COMPLIANCE: Excellence In OSHA Recordkeeping
—William K. Principe, Atlanta Office
OSHA recordkeeping has been the cause of much frustration for the people who have to maintain their companies’ OSHA 200 Logs. They’ve had to grapple not only with OSHA’s Blue Book but also with more than 400 Interpretive Letters explaining the Blue Book. They deal with the stress of knowing that recordkeeping violations are consistently among the top five most-frequently-cited standards. And, while the citations are often characterized as Other Than Serious with minor penalties, the violations are sometimes cited as Willful violations with penalties in the hundreds of thousands of dollars, with national press releases designed to let everyone know what a bad employer the company is.
Some employers choose to ignore recordkeeping and hope for the best. Others see OSHA recordkeeping as a chore and try to do as little as they can legally get away with. But smart employers recognize that OSHA recordkeeping is more than just another burdensome legal requirement - it’s certainly that, but it’s also an excellent management tool that can help you better monitor safety conditions in your workplace and address them proactively. What are the practices that make an employer’s OSHA recordkeeping go beyond mere compliance to downright excellence? The following are my picks.
Standard of Excellence No. 1: Keeping your eye on the big picture, not losing the forest for the trees, and similar cliches. This is by far the most important trait that sets the "excellent" company apart from the merely "compliant" company. Let your OSHA recordkeeping obligations work for you. Proper recordkeeping will provide you with an accurate picture of the injuries and illnesses in your workplace. This allows you to conduct a trend analysis of where the cases are occurring, why, and to whom. It also helps you identify members of management who may not be enforcing safety rules.
These positives, of course, are not the entire picture. Recordkeeping also has a negative function, providing OSHA with a blueprint for the on-site inspection. The excellent company never forgets this, either.
Standard of Excellence No. 2: Making sure you’re getting all the data. The excellent company knows that its recordkeeper cannot record and evaluate what he or she does not know about. Although the complexity of recordkeeping systems will vary from one company to another, there are several common considerations: Does your system track all treatments provided to an employee for work-related incidents or exposures? Does it ensure that the recordkeeper is aware of all visits, whether at the company’s own clinic or at an outside health care provider? Does it retain an accurate count of the days of restricted work activity and/or days away from work? Does it have a "tickler" system that forces the recordkeeper to update the count of days?
Finally, your system should be able to capture not only an accurate description of how an injury or illness occurred but also a complete history of the employee’s injuries, illnesses, and treatments so that you can determine whether the present case is new, an aggravation of an earlier case, or continuing symptoms of an ongoing case.
Standard of Excellence No. 3: Being alert to potential conflicts of interest. Incomplete records are not terribly helpful. The excellent company realizes that it is much more likely to get good, complete, helpful records from a recordkeeper who does not get a "safety bonus" when the facility goes without a lost-time accident. Generally, for this reason, Medical Department employees are more appropriate recordkeepers than Safety Department employees. (Also, because of the Americans with Disabilities Act, medical personnel normally have legal access to all pertinent medical information, and safety personnel normally do not.) In the same vein, take care in ensuring that any safety incentive programs do not discourage employees from reporting work-related injuries or illnesses. You can be sure that OSHA will closely scrutinize any program that appears to discourage accurate reporting.
Standard of Excellence No. 4: Understanding the value of training. If you don’t maintain OSHA records, you probably think it’s a piece of cake. If you’re a recordkeeper, you know better. The excellent company recognizes that OSHA recordkeeping can be a difficult, counter-intuitive, and sometimes illogical process, and therefore is willing to invest in training. Why? Because it never forgets No. 1 ("Keeping your eye on the big picture").
Standard of Excellence No. 5: "Taking your own pulse" through audits. As noted earlier, recordkeeping violations remain among the top five most frequently cited standards, and Willful violations can result in six-figure penalties. On violations can result in six-figure penalties. On January 19 of this year, the same day that OSHA announced its new recordkeeping regulations, it cited a Texas employer for 67 willful recordkeeping violations totaling $536,000 in proposed penalties.
With this kind of potential liability, the excellent company regularly audits its safety records to make sure that (1) the records are being maintained; and (2) the records are accurate and complete. You know that OSHA will ask to see your log, so why not make sure it’s in good shape before OSHA comes?
Standard of Excellence No. 6: Following up, or else! Even if you claim attorney-client privilege for your audit, and especially if you do not, you must follow up on and correct any deficiencies your audit reveals. The truly excellent OSHA recordkeeper knows that no audit at all is better than an audit without follow-up.
Standard of Excellence No. 7: First-class documentation. (Big surprise, right?) Your recordkeeper could win the lottery and quit OSHA recordkeeping. Your recordkeeper could decide that sailing around the world is a lot more fun than maintaining OSHA records. Your recordkeeper could get a job with a company that pays its OSHA recordkeepers a lot more than you do. The excellent company knows this and makes sure there is documentation in place to explain any recordkeeping decisions that are not obvious.
Bill Principe practices in the areas of workplace safety and OSHA compliance.
OSHA ALERT: New Recordkeeping Regulations a "go." Readers may recall that the Clinton Administration enacted new record-keeping regulations that were placed on "hold" after George W. Bush took office. On June 29, the Bush Administration announced that it would allow the recordkeeping regulations to go into effect in January 2002, with some modifications. Constangy’s OSHA team will be conducting seminars on the new recordkeeping regulations this fall in Georgia, Tennessee, Florida, and Alabama. For dates and details, e-mail Y.
You read it here first—now read it again
The Summer 2000 edition of Labor & Employment Insights featured an article by Kim Seten of the Kansas City Office regarding charge nurses’ status as "supervisors" for purposes of the National Labor Relations Act.
The U.S. Supreme Court has recently– and wisely–rejected the NLRB’s overly narrow definition of "supervisor," consistent with Kim’s insight.
ALSO, the Supreme Court has agreed to review a decision of the Eighth Circuit on employer requirements to provide FMLA notification. The Fall 2000 edition featured a discussion of this issue by Angelique Lyons of the Tampa Office.
FINALLY, Best Buy recently paid a $5.4 million settlement for unpaid overtime claims on behalf of employees at 400 stores nationwide. The Spring/Summer 2001 edition featured an article by Jim Coleman of the Arlington Office on wage-hour class actions.
If you would like a free reprint of Kim’s, Angelique’s, or Jim’s article (you can even have one of each!), please fax Robin Shea, Editor, at 336-748-9112 or e-mail her at rshea@constangy.com.
Please specify whether you prefer "paper" or electronic format. Also, please contact Kim, Angelique or Jim, or the Constangy attorney of your choice if you need advice in any of these areas.
GETTING TO KNOW US
JILL COX (Winston-Salem Office, employment litigation prevention and defense) received her bachelor’s degree in English from Saint Andrews Presbyterian College and her law degree from Wake Forest University School of Law. Jill’s claim to fame is that she once spent four months in a medieval castle in the Italian Alps where she worked in the vineyards and studied literature and agroarcheology with Ezra Pound’s daughter. When Jill is not practicing law she enjoys riding her motorcycle, hiking, reading, and playing golf. Jill’s husband, Dalton, is a video editor.
HERMAN "AL" ALLISON (Atlanta Office, traditional labor, Family and Medical Leave Act) received both his bachelor’s degree in history and his law degree from the University of North Carolina at Chapel Hill. When asked whether he had any interesting facts to relate about himself, Al tongue-in-cheek answered, "N/A." Since he’s too modest to say so, we’ll tell you that he is one of the firm’s preeminent experts on the FMLA. Al plays golf for fun, and he has one daughter and one grandson, who also live in Georgia.
KAZ KIKKAWA (Nashville Office, employment litigation prevention and defense) has a unique background, with a joint degree in Economics and Asian Studies/Japanese from Colgate University. His law degree is from Case Western Reserve University School of Law. Kaz was recently accepted into the Harry Phillips American Inn of Court, and his articles have appeared in a number of publications. Kaz enjoys traveling and playing ice hockey.
JIM COLEMAN (Arlington Office, wage & hour, employment litigation prevention and defense, and public accommodation discrimination) is head of Constangy’s Arlington office and co-chair of Constangy’s wage-hour practice group. Jim graduated magna cum laude from Florida State University and received his law degree from Georgetown University. Jim serves as General Counsel to the National Council of Chain Restaurants. After graduating from law school, Jim stayed in shape by playing rugby and received his team’s Most Valuable Player award in 1984. When he is not practicing law, Jim spends his time with his wife, Kathy, and their three children. He also volunteers his time as a baseball, basketball, and soccer coach as well as an Assistant Scoutmaster.
ROSEMARY LUMPKINS (Atlanta Office, employment litigation prevention and defense, OFCCP, and client training) is co-chair of Constangy’s OFCCP practice group. She received her bachelor’s degree from Columbus State University and her law degree from University of Alabama. After graduating from law school, Rosemary taught English and legal writing at the University of Alabama and was a staff attorney and law clerk at the Supreme Court of Alabama, and a law clerk in the federal court for the Northern District of Alabama. Rosemary enjoys travel, golf, gardening, reading, and spending time with her husband, David, and their two children.
Legal News @ the Speed of Thought
In the near future, Constangy will be making its Client Bulletins (immediate
updates on significant legal developments) available electronically. If you would like to receive Client Bulletins via e-mail, please notify Marsha Teel of Constangy’s Atlanta office at mteel@constangy.com. Please provide your name, title, company name, and
email address.
KUDOS
Hank Knight (Columbia) has been appointed to a second term with the South Carolina Employment & Labor Law Specialty Certification Board. Hank has also been elected Corresponding Secretary to the Midland Mediation Network . . .
damon kitchen and john dickinson (Jacksonville) are among the first lawyers in their state to receive Board Certification inLabor & Employment Law through the Florida State Bar.
Congratulations, Hank, Damon and John!
And, congratulations to Jeff Thompson (Macon office), who has become Constangy’s newest managing member!
CHECK US OUT
Articles by the following Constangy attorneys have recently appeared in "out-of-house" publications:
Cara Crotty (Columbia) "Applying the Supreme Court’s Affirmative Defense to Supervisor Harassment," The Labor Lawyer, Winter/Spring 2001...
Robin Shea (Winston-Salem) "Another Look at the So-Called Pay Gap," Carolina Business News, January 2001... and "Does Your Harassment Policy Cut the Mustard?" Carolina Business News, March 2001...
QUARTERLY QUIZ
TRUE OR FALSE:
Harassment of a homosexual because of his or her sexual orientation violates the federal anti-discrimination laws and is considered a form of sexual harassment.
QUARTERLY QUIZ ANSWER
FALSE. Surprisingly, the federal anti-discrimination laws do NOT prohibit harassment based on sexual orientation. On the other hand, they do prohibit harassment based on sex, which can include "borderline" issues such as harassment of an "effeminate" man or a "masculine" woman. Although federal law does not prohibit it, a number of state laws prohibit sexual orientation discrimination and harass-ment. And of course, prohibiting such discrimi-nation or harassment in your own workplace, whether or not you have to, is highly recommended as a good HR practice.
REASON PREVAILS…
Smart employees, foolish choices. The Second Circuit (New York, Connecticut, Vermont) held that New York’s state law that bans discrimination based on legal recreational activities outside of work hours does not apply to office romance.
You think we’re making these cases up, don’t you? In another painfully obvious decision from our old friends in the Seventh Circuit (Illinois, Indiana, Wisconsin), it was held that an employer had no duty to reasonably accommodate a psychotic employee by addressing workplace conditions that appeared to be imaginary.
Otherwise, he was a good guy. One more from the Seventh Circuit: the court upheld a decision dismissing a suit brought by a man who was fired after he broke into the home of the boyfriend of his co-worker ex, made 30 harassing phone calls to the new guy, and contacted his ex twice after being specifically instructed by the HR director to stay away. He had also been criminally charged with residential burglary (he was later acquitted) and criminal trespass, and his ex-girlfriend had obtained a restraining order against him. So, what did the jilted lover sue his employer for? Reverse sex discrimination, natch.
AND REASON FLAILS…
First Amendment, Schmirst Amendment. For years, some insightful attorneys (including Constangy’s own Ed Katze) have argued that harassment laws infringe upon First Amendment rights of free speech. Thus far, courts have skirted this issue or have given it only a lukewarm reception. However, the EEOC may soon force a choice. The American Library Association has long fought, on First Amendment grounds, to provide unfiltered Internet access to users of public libraries. Now, twelve librarians in Minnesota have filed harassment charges against their library-employer, claiming that library patrons often leave sexually inappropriate material on the library computer screens, which forces the librarians to have to look at the screens while surfing to more wholesome sites. The EEOC, never one to care much about the First Amendment, has found in favor of the charging parties and is reportedly urging the library to settle the harassment cases for $75,000 apiece.
Everybody’s special. Ford Motor Company, responding to pressure from employees with low "grades," announces that it will no longer use a curve to evaluate employees. At last count, 57 employees had joined two lawsuits, there were a number of individual lawsuits, and the American Association of Retired Persons was threatening to get involved. The plaintiffs alleged that the grading system was used to eliminate older white males.
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