Labor & Employment Insights
Summer 2008

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No Bullies!

By Megan Walawender

The term “bully” is often associated with schoolyards. But what happens when these kids grow up? Enter Denny Crane of Boston Legal or Phil Lumbergh in Office Space.

Although these Hollywood examples may be exaggerated, there is reason for employers to be concerned about bullying in the workplace. Bullying results in decreased production, increased turnover, absenteeism, low employee morale, and poor company image. In a 2007 study published in BusinessWeek, employers reported losing an estimated $74 billion annually due to employee absenteeism. Of course, most of that absenteeism probably had nothing to do with bullying, but an estimated 54 million employees, or 37% of the American workforce, say they have been bullied in the workplace, according to a survey conducted by Zogby International.

Additionally, victims of workplace bullies are starting to sue. There are two areas in which employers may face liability for workplace bullying.

The first is bullying or harassment that is unlawful under federal and state anti-discrimination and harassment laws. Most employers are well aware of their legal obligation to prohibit and promptly address harassment based on a legally protected status, such as race, color, religion, sex, national origin, age, or disability. Employers can prevent this type of bullying by implementing and distributing anti-harassment policies; providing training to employees, supervisors and managers regarding the policies; and investigating and properly addressing any complaints regarding harassment.

But what about the “equal opportunity offender”? What if your employees complain that their supervisor speaks to them like he’s Bobby Knight, and he responds, “That’s just the way I treat everybody”? These may be the more difficult bullying situations.

The Zogby survey estimated that “legal” workplace bullying such as this is four times as frequent as “discriminatory” workplace bullying. The bullying conduct may include yelling, cursing, insults, threats, spreading rumors, and exclusion. Anti-workplace bullying legislation has also been introduced in thirteen states, according to the Workplace Bullying Institute (yes, there really is such a thing), but has not actually been enacted anywhere. New Jersey’s proposed legislation capped damages at $25,000, but several versions introduced in other states did not contain damage caps. For example, the bill introduced in New York would allow employees to get reinstatement, an order removing the bully from work, back pay, front pay, medical costs, emotional distress, punitive damages, and attorneys’ fees.

More successful than “workplace bullying legislation” are lawsuits brought as old-fashioned claims like intentional infliction of emotional distress, tortious interference with a business relationship, defamation, and assault. Bullying claims may also take the form of claims for harassment and discrimination. In April 2008, the Indiana Supreme Court upheld a jury’s award of $325,000 to a hospital employee who claimed that he was bullied by a surgeon.The employee alleged that the surgeon assailed him “with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” The case is significant because the court upheld the trial court’s decision to allow expert testimony regarding workplace bullying and recognize workplace bullying in the context of legal actions available to employees.

So, what should employers do?

Adopt a code of conduct. Adopt a general code of conduct that establishes the employer’s commitment to a civil and courteous work environment. Train managers and employees on civil behavior. Many people curse and carry on without necessarily meaning anything by it, and they are often surprised at the reactions they cause in others. Some managers may need to be sent to “charm school,” where they can get more intensive training on appropriate and constructive behavior. Once you feel that everyone has had fair warning, encourage employees to report violations of the code, and train managers and supervisors to identify and correct workplace bullying. Include a section on the general code of conduct in conjunction with your periodic harassment training. A workplace marked by civil behavior is usually also going to be free of discriminatory harassment.

Take “bullying” complaints seriously. Handle “bullying” complaints the same way you would treat a discriminatory harassment complaint. Confirm that the actions complained of were not related in any way to the legally protected status of the employee. Most of the lawsuits and EEOC complaints in which workplace bullying is alleged also contain claims of harassment based on a protected status, for which an employer may be liable. Investigators should avoid labeling the behavior as “harassment” or “bullying” or using any other term that could be used against the employer in a future legal action.

If the investigation reveals that an employee violated the code of conduct, be prepared to take appropriate action depending on the severity of the behavior. This may include counseling, discipline, or even termination.

Be proactive. Look for signs of bullying in employment statistics. Examine employment data for high rates of turnover, grievances or absenteeism in a particular group or department. Gather feedback from present employees, and review feedback from exit interviews.

Also, be especially vigilant if you are in an industry prone to bullying. Certain professions or job duties may be vulnerable. For example, a recent national survey by the Joint Commission on Accreditation of Healthcare Organizations found that more than 50% of nurses have been the target of abuse at work and that more than 90% have witnessed abusive behavior directed at other employees. If possible, modify certain work processes which pit employees against each other and instead focus on getting employees to work together to reach a common goal.

Check your EPLI coverage. Although coverage for bullying claims may exist under some employment practices liability insurance policies, employers should know whether they are covered for bullying incidents that are not discriminatory in the traditional sense.

Just as an employer requires its employees to treat its external clients with respect, an employer must also require its employees to treat its “internal clients” with respect. Your business reputation will be enhanced as a result, and your employees will be a lot happier.

Megan Walawender (Kansas City, MO) practices in the areas of employment litigation prevention and defense, and labor relations.

From the Editor’s Desk:

Captain Obvious Says: Beware Retaliation!

By Robin E. Shea

It is a cliché in our world that employers have to be careful to avoid retaliation claims and that an employee with a meritless “EEO” complaint can still getcha if you take unjustified adverse action because of the complaint.

Retaliation has been high on the EEOC’s list for years. These claims are given top priority by the agency and are among those that are less likely to result in requests to mediate and more likely to result in lawsuits initiated by the EEOC.

The EEOC’s charge-filing statistics for fiscal year 2007 make it clear that charging parties have gotten the message. In FY 1997, retaliation charges made up 22.6 percent of all charges filed. Although the total number of charges filed in the ensuing ten years has remained relatively constant, the percentage of retaliation charges in FY 2007 had increased to 32.3 percent. A similar increase appears when one looks only at Title VII retaliation charges.

And it’s not just the EEOC. Virtually all employment laws—the Occupational Safety and Health Act, the various “whistleblower” acts, the Fair Labor Standards Act, and most state statutes—have non-retaliation provisions. (The National Labor Relations Act calls it “protected concerted activity.”) Moreover, most states’ common law public-policy wrongful discharge causes of action apply to various types of retaliatory discharge.

Generally, a retaliation claim requires the following: (1) protected activity (either participation in a proceeding or opposition to an allegedly unlawful practice); (2) adverse employment action; and (3) a “causal nexus,” or connection, between the protected activity and adverse action.

The U.S. Supreme Court seems to be receptive to retaliation claims. About two years ago, the Court broadly defined “adverse employment action” to include any action that would make a reasonable person in the employee’s position less likely to engage in protected activity. In Burlington Northern RR v. White, the plaintiff had complained of sexual harassment and shortly afterward was suspended without pay and moved to a less desirable position. The Court rejected the employer’s argument that this was not “adverse employment action” because the plaintiff was ultimately reinstated after the suspension with full back pay and because the pay for the less desirable position was exactly the same as the pay for her former position.

This summer, in CBOCS West, Inc. v. Humphries, the Court held that retaliation claims could be brought under 42 U.S.C. §1981. Section 1981 applies to race and national origin discrimination, but it has a number of advantages over Title VII for plaintiffs who assert retaliation based on complaints or activity related to race or national origin discrimination or harassment: (1) it is not necessary to go through the EEOC charge-filing process to assert a §1981 claim; (2) §1981 applies to all private employers, regardless of size; (3) §1981 has a four-year statute of limitations; and (4) §1981 has no damages cap.

(In related news, the Supreme Court held in Gomez-Perez v. Potter that the portion of the Age Discrimination in Employment Act that applies to federal employees protects them against retaliation for engaging in protected activity under the ADEA.)

So, yes – it’s an obvious point – but beware of retaliation. If you have to take “adverse action” against an employee who has engaged in some type of protected activity, be very careful.

Robin Shea, Editor 

Just What Is “Bullying” Anyway?

When does insensitivity, abruptness, use of an expletive, or a bit of gossip turn into official workplace bullying? Here is one definition, courtesy of the Workplace Bullying Institute:

Workplace Bullying:

is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:

  • verbal abuse
  • offensive conduct/behaviors (including nonverbal) which are threatening, humiliating or intimidating
  • work interference—sabotage—which prevents work from getting done.

Workplace Bullying:

    (a) is driven by perpetrators' need to control the targeted individual(s),

    (b) is initiated by bullies who choose targets, timing, place and methods,

    (c) escalates to involve others who side with the bully, either voluntarily or through coercion, and

    (d) undermines legitimate business interests when bullies' personal agendas take precedence over work itself..

Avoid the “Summertime Blues” at Your Company Functions

Now that it’s summer, many employers are in the thick of their picnics, golf tournaments, softball games and other group-building activities. These employer-sponsored events are usually good for employee recruitment, retention and morale. However, if not handled properly, they can result in liability.

Generally, an employer may face liability for employee negligence and misconduct whenever the employee is acting “within the course and scope of employment.” Company-sponsored recreation is generally “within the course and scope of employment” if either (1) the employer directly or impliedly endorses the event and might “conceivably” benefit from it; or (2) the employer requires or “expects” employees to attend.

When would an employer “conceivably” benefit from an event? The answer will depend on the facts of each situation and the specific laws of your state. For example, courts have found that employers do not benefit from social events whose sole purpose is to increase morale and for which attendance is not mandatory. On the other hand, courts have found that employers benefit from events where employees receive service awards, the employer promotes sales and retention programs, and customers and vendors attend.

Once a company-sponsored event is found to be “within the course and scope of employment,” the employer may face liability in as the areas of equal employment opportunity, workers’ compensation, and liability to outside parties.

Equal Employment Opportunity

Sexual harassment is probably the greatest EEO risk at company-sponsored recreational events. Some good preventive steps are to control the flow of alcohol and avoid games or activities that involve touching or would encourage inappropriate behavior. Single-sex activities can also create a perception that advancement opportunities are available to only one sex.

From a racial, national origin, or religion standpoint, employers should beware of holding functions at private clubs with restricted membership. And, of course, the facility should be accessible to individuals with disabilities.

Workers’ Compensation

Several states have statutes that specifically address employee injuries from recreational or social activities. Some states limit the employee’s recovery to those activities for which the employee is paid to participate. Other states allow employees to recover compensation if the employee’s participation was specifically directed by the employer. Much of the analysis turns on the laws of the applicable jurisdiction and cannot be addressed without specific knowledge of the facts involved.

But workers’ compensation laws often contain exceptions. For example, if the employee was ordered to participate or was paid wages or expenses while participating, then the employee may recover. Additionally, employees may recover if the injury occurred on the employer’s premises, the premises contained a known unsafe condition, the employer knew employees were participating in the activity, and the employer failed to stop the activity or cure the unsafe condition.

Personal Injury

Depending on the particular circumstances and state law, employers may face liability for negligent acts of employees at social events. For example, at a professional sporting event with clients, the employee drinks too much and causes an accident. Employers may also be liable for employees’ conduct at ‘optional’ events sponsored by third parties, such as golf tournaments, because the employer stands to benefit from the goodwill generated by the employees’ attendance.

Employers should continue to host recreational activities, but only after taking the appropriate steps to minimize liability.

Michelle Daum Haskins practices primarily in the area of workers’ compensation defense. Megan Walawender practices in the areas of employment litigation prevention and defense, and labor relations. Both are in Constangy’s Kansas City, MO, Office.

Don’t Get Burned: Use S.P.F. 15 This Summer

The following 15 “Steps For Protection” will keep you from getting burned by company-sponsored events this summer:

  • Beware of alcohol. When it comes to company-sponsored recreation, alcohol is the root of most evil.
  • If attendance at a company-sponsored event is not required, clearly state that in all e-mails or notices announcing the event or activity. Tell employees that time spent at the event will be unpaid and not considered as “hours worked.”
  • Don’t “encourage” attendance, either by implying that attendance will help the employee advance in the organization or by implying that failure to attend will indicate that the employee is not a “team player.”
  • Do not conduct any work-related activities, such as training or award presentations. Be cautious about inviting vendors, clients, or others with whom you have a business relationship.
  • Beware of alcohol.
  • Plan the activity or event at an off-site location and during the weekends when possible. Doing so may support an argument that the events were strictly social and not work-related. Plus, haven’t you spent enough time at the office, anyway?
  • Invite family members. This supports an argument that the event is not business-related. Also, spouses and significant others are a natural deterrent against sexual harassment, if you catch our drift.
  • Beware of alcohol. Hold social events at locations that do not serve alcohol. If you must have alcohol, avoid open bars. Arrange for a limit by hiring an outside company to serve the drinks. Ensure that the bartender has been trained to avoid serving too much, youngsters, or those who’ve had enough already. You can also try tricks such as limiting the booze to beer and wine; giving each attendee a limited number of “drink tickets”; offering lots of punch, water and soda pop; and avoiding spicy and salty snacks. “Last call” should be held at least two hours before the end of the event, to help prevent DWI’s. If none of these steps are possible, then at least rent some hotel rooms so that employees will not have to drive home under the influence. If you can’t or don’t want to spend that kind of money, then appoint several people to act as designated drivers.
  • Provide activities and entertainment that appeal to a broad range of employees to avoid making anyone feel left out. Avoid physical activities that could injure the participants, especially if you’re serving alcohol. Have we mentioned that you should beware of alcohol?
  • Don’t create an atmosphere conducive to sexual harassment by providing risqué or potentially offensive forms of entertainment. Comedy clubs are fun, but not the most appropriate environment for a work-related function. Avoid event locations that are naturally provocative, such as casinos, bars, strip clubs (yes, we hear that some employers are still doing this—stop it now!), sex-themed restaurants, and pools or beaches.
  • Beware of alcohol.
  • Be direct in telling employees, before the event, of your expectation that employees will treat each other with respect during the event and that company policies, including the code of conduct, the policy against harassment and the discipline policy, apply to these activities.
  • Immediately investigate any claim of inappropriate conduct that arises related to the event. Take prompt corrective action as necessary.
  • Beware of alcohol.
  • Beware of alcohol.

Michelle Daum Haskins (Kansas City, MO) & Megan Walawender (Kansas City, MO)

No Fraternization Policy: 1, Love: 0

By Lori Mans

Workplace romances can lead to claims of sexual harassment, favoritism, breaches of ethics, and generally poor employee morale. As a result, many employers implement no-fraternization policies. The United States Court of Appeals for the Seventh Circuit (Illinois, Indiana, Wisconsin) recently upheld a no-fraternization policy that was more strict than the norm.

In Ellis v. United Parcel Service, Inc., the company’s no-fraternization policy prohibited managers from engaging in romantic relationships with any hourly employees, even those employees outside of the managers’ supervisory authority. Ellis, an African-American, was a long-term employee who eventually worked his way up to a managerial position. As a manager, Ellis met and began dating an hourly employee, Glenda Greathouse, who is white. Ellis did not supervise Greathouse, and the two worked in separate buildings.

When the company learned that Ellis and Greathouse were dating in violation of the no-fraternization policy, Ellis was instructed to either end the relationship or decide which one of them was to resign. The company assumed that Ellis had ended the relationship, but the two apparently had other plans. Ellis and Greathouse became engaged and later married. After learning of the marriage, the company asked Ellis to resign. When he refused, he was fired for violating the company’s no-fraternization policy and for dishonesty. Ellis sued for race discrimination, contending that UPS had terminated him because he was involved in an interracial relationship. The court affirmed summary judgment for UPS because there was no evidence that the company had applied the policy differently to Ellis than it had to other employees. (Although, showing its romantic side, the court noted that it was not unusual for “love to bloom” in the workplace and that “something just doesn’t seem quite right about” the fact that “love and marriage are the losers.”)

The Ellis decision raises issues that all employers should consider:

No-fraternization policies are legal. If an employer has concerns about workplace relationships and their implications, it should not be afraid to establish a no-fraternization policy.

But how far do you want to go? The more difficult issue is deciding how strict you want to be. Most companies prohibit romantic or familial relationships between people who report to each other. The UPS policy was considerably more strict than that. Consider whether restrictions will apply only to employees with direct reporting relationships or whether they will extend to all employees in a specific department, location, or even company-wide. If you've never had a no-fraternization policy before, you'll have to decide how to handle pre-existing relationships: do you want to make the restrictions effective immediately, “grandfather” pre-existing relationships, or phase in the restrictions?

How will you handle violations? Although it is permissible to take disciplinary action, including termination, against employees who violate the policy, employers may also want to consider giving employees the opportunity to comply with the policy by either ending the relationship, or having one of the employees resign. Employers should consider what action they will take if the employees do not end the relationship and neither resigns. If only terminating one of the offending employees, it is critical to consider what factors to use in deciding which employee will be terminated (for example, seniority, rank, performance, needs of the company). Finally, place a time limit on the employees’ compliance with the policy and follow up with employees to ensure that they are in compliance.

Enforce the policy consistently. As with any employment policy, it is crucial that no-fraternization policies be enforced consistently. If an employer becomes aware of a violation, it should take action consistent with its policy and past practice. If exceptions are made, they should be well-justified and supported by documentation.

Consider “love contracts.” Increasingly, employers are instituting “consensual relationship agreements”—also known as “love contracts” —as alternatives to or in conjunction with no- fraternization policies. Such “contracts” generally require the dating employees to sign an agreement confirming that their relationship is consensual, requiring employees to notify the company if the relationship ceases to be consensual, and reminding employees of the company’s harassment and ethics policies.

Lori Mans (Jacksonville, FL) practices in the areas of employment litigation prevention and defense, and labor relations.

Need Diversity Training En Espanol? Call Us!

By Lori Mans

Constangy offers diversity training in English and Spanish at reasonable rates. Louise Davies, a paralegal and affirmative action specialist in the Winston-Salem, NC, office, is fluent in both languages. She also has a Diversity Train the Trainer certification from the Society for Human Resources Management, a bachelor's in business administration from Wesleyan College in Macon, Georgia, and is working on her master's in Human Resources Management from Briar Cliff University in Sioux City, Iowa. Before coming to Constangy in 2001, Louise had extensive human resources management experience.

Louise can provide introductory diversity training, as well as advanced training that is tailored to your workplace. You can contact her directly at ldavies@constangy.com, or through your Constangy attorney.

Quarterly Pulse

Getting to Know Us

CARRIE CHERVENY (Jacksonville, FL, employment litigation prevention and defense) received both her bachelor’s and master’s degrees in speech and debate from the University of South Florida and her law degree from the Stetson College of Law. While at Stetson, Carrie was a winner in the ABA Regional Mediation Team Competition; a recipient of the William F. Blews Pro Bono Service Award; and the Executive Vice Justice of Phi Alpha Delta. Before attending law school, Carrie was in human resources. Carrie is an avid Gator football fan. She also enjoys working out and road-biking in her spare time.

MICHELLE DAUM HASKINS (Kansas City, MO, workers’ compensation) received her bachelor’s degree cum laude in political science from Arizona State University and her law degree from the University of Missouri-Kansas City School of Law. Before law school, Michelle handled import and export of grain commodities with Mexico. Her practice includes all aspects of workers’ compensation defense. Michelle grew up on a large ranch in Montana. She learned to ride a horse before she could walk, and participated in the rodeo for several years. She goes back to Montana to visit her family as often as possible. In addition to traveling, Michelle enjoys reading, and playing golf with her husband, Ray.  

BILL McMAHON (Winston-Salem, NC, wage and hour, employment litigation prevention and defense, ERISA) received his bachelor’s degree summa cum laude in accounting from the State University of New York at Geneseo and his law degree cum laude from Wake Forest University, where he was a member of the Order of the Coif. In 2008, Business North Carolina selected Bill as one of the “Legal Elite” in the category of “Young Guns” (best attorneys under age 40). When Bill is not practicing law, he enjoys spending time with his wife, Amy, and their two-year-old daughter, as well as running and baseball. Bill recently ran his first marathon in Lake Placid, New York.

JOE MURRAY (Atlanta, GA, employment litigation prevention and defense, OSHA, and labor relations) received his bachelor’s degree in chemistry from Georgia Southern University and his law degree, cum laude, from Georgia State University. Before law school, Joe was a high school science teacher, and then spent eight years in manufacturing, as a first-line supervisor, safety director and safety engineer. Joe and his wife, Lynn, have two young sons. In his spare time, Joe serves on the governing board of an area charter elementary school, water-skis, camps, and plays the guitar. He also loves to travel, and if given the chance would happily re-visit Italy, for the food, and Montana, for another chance to herd cattle and brand calves.

MEGAN WALAWENDER (Kansas City, MO, labor relations, wage and hour, and employment litigation prevention and defense) received her bachelor’s degree with honors in psychology and women’s studies from Truman State University. Megan then went to Washburn University School of Law to earn her law degree cum laude, where she was the Executive Editor of the Washburn Law Journal and a recipient of the President's Recruitment Scholarship. Before attending law school, Megan worked in the insurance industry as a catastrophic loss adjuster and claims supervisor. When she is not practicing law, Megan enjoys trying new recipes and entertaining, as well as walking and biking, and watching college football and professional baseball. Megan and her husband, Brian, who is a technique development meteorologist with the National Weather Service, have one son.

Quarterly Quiz

Newbee Corporation is involved in an employment lawsuit and has received a request for production of documents from the other side. Because many of the documents are stored electronically, Newbee retains an e-discovery consultant to formulate some “key words” and conduct searches of the electronic data. Relying on an automatic key word search to screen out any documents that are attorney-client privileged, Newbee accidentally hands over to its adversary 150 pages of documents that should have been attorney-client privileged. Newbee files a motion to have the documents treated as privileged. The adversary opposes the motion. Does Newbee win?

ANSWER

Maybe not. In this era of electronic discovery, there are “risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review.” Although a keyword search can be a helpful initial screen, there is no substitute for some level of “human review.” Key words should be selected by persons knowledgeable about the case, not by the e-discovery consultant (although the consultant can certainly help), and documents identified in the search should be subjected to quality-assurance testing. “Even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive.” At the very least, the attorneys for Newbee should have manually reviewed samples of documents obtained through the keyword search to ensure that the keyword search was doing its job.

One more tip – if voluminous e-discovery must be turned over to the other side before an attorney has a chance to review the documents, the attorney should get a “clawback agreement” in which the other side agrees not to use against the party any documents that are later determined to be privileged. (If this option makes you nervous, it should— the best course is to review before producing.)

Reason Prevails...

“LOOK AT ME! (Stop treating me like a sex object) LOOK AT ME!” A federal court in Oklahoma upheld the termination of a Wal-Mart delicatessen worker who had complained about sexual harassment but who herself was the likely source of a rumor that the alleged harasser had sought her for a “threesome.” Although the store reprimanded both the alleged harasser and the woman, only the woman was terminated because she already had several prior write-ups about other issues. The court held that the final write-up was for gossip, not for having complained about the alleged harassment, and thus was lawful. According to the alleged harasser, who denied having done anything inappropriate, the woman became angry with him after he married someone else.

If that’s not a legitimate, non-discriminatory reason for discharge, what is? The U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, Texas) affirmed summary judgment in a sex discrimination lawsuit brought by a pathologist. As evidence of discrimination, the doctor had alleged that her supervisor said she had a reputation as a “streetwalker” and had financed her education in that manner. The court found for the employer, though, which claimed to have terminated her for numerous misdiagnoses. In one case, she changed a diagnosis of breast cancer from “negative” to “positive” but did not tell the patient’s physician. In another case, she misdiagnosed rectal cancer and did not inform the treating physician of her error until after the healthy patient’s rectum had been surgically removed.

And Reason Flails...

Unlike rain on your wedding day, this is ironic. New York attorney Jack Tuckner, whose law firm says it is “dedicated to the empowerment of women in the workplace” and whose web domain name is “womensrightsny.com,” was recently sued for sexual harassment by a former client whom he later hired to work in his office. The suit alleges that Mr. Tuckner “demeaned all of the women who worked for him,” treated women in a “condescending and patronizing manner,” called the plaintiff “Aryan babe” and told her that all women have fantasies about being raped, was into “spanking,” and watched pornography on his computer. The plaintiff and several other female employees ultimately resigned, citing an “intolerable environment.” Mr. Tuckner contends that many of the allegations are outright false and that others were based on consensual behavior. Meanwhile, the non-profit Center for the Advancement of Women, headed by feminist Faye Wattleton, is the respondent in an EEOC charge alleging pregnancy discrimination. The charging party had had a miscarriage and contends that she was fired after she told Ms. Wattleton that she was going to try to become pregnant again through in-vitro fertilization. Ms. Wattleton’s attorney has called the claim “utterly frivolous.”

Riiiiiiiiiiiiiight. The American Law Institute, which consists of judges, lawyers, and law professors, publishes well-respected and widely used “Restatements,” which summarize various areas of the law. The ALI was working on its first-ever restatement of employment law, but the project was sent back to the drawing board after certain legal scholars objected to the inclusion of the employment-at-will rule. Uhhh, yeah. One law professor said that the draft was “really a play by the management bar to stop the progressive growth of employment law.” Other opponents said that they feared the draft would “stultify legal experimentation and growth.” More “legal experimentation”— just what we need. Yup. Mm-hm. Sure do need more of that, yessirree.

What’s a poor Hokie to do? The Virginia Court of Appeals ordered Virginia Tech to reinstate its business manager after terminating him for sexual harassment. The manager was putting together a girlie calendar to raise money for a non-profit youth boxing club. You know the kind: not indecent, but “hot-pants-and-bathing-suits” provocative. The manager’s co-worker brought to him a young student/employee who he thought might be interested in posing. They had a brief discussion, and the manager talked to her about posing for the calendar. Feeling “objectified,” she reported the manager, and he was terminated for violating the school no-harassment policy. He sued, and the court held that he was entitled to reinstatement because his conduct was not sexual in nature. Good for him, but how in the world is an employer supposed to know what to do in a situation like this?

This is a publication of Constangy, Brooks & Smith, LLC. The information contained in this newsletter is not intended to be, nor does it constitute, legal advice. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. Certification as a Labor and Employment Specialist is not currently available in Tennessee.

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