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Winter 2007
REASON PREVAILS…
“I’d like to join a club
and beat you over the head with it.” Before
1947 and Jackie Robinson, Major League Baseball was segregated,
forcing talented African-American athletes to play in the Negro
League. The Negro League died out in the early 1960s and lacked
the funds to pay health or pension benefits to its former members.
To remedy indisputable past discrimination against black ballplayers,
MLB created a special plan to provide insurance benefits to
Negro Leaguers who played before 1948 and who played at least
four years in the Negro League or MLB. So, guess what? A white
ballplayer brought a class action on behalf of other “nonblack” baseball
players, alleging that the plan was discriminatory. The class,
99 percent white, consisted of ballplayers who would have qualified
for the benefits but for the fact that they had never played
in the Negro League. (They hadn’t played with the MLB
long enough to qualify for “regular” MLB benefits.)
The U.S. Court of Appeals for the Ninth Circuit (Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington,
Guam, and Northern Mariana Islands) agreed that the lower court
had properly sent the plaintiffs to the showers.
News flash! Viewing kiddie porn on
internet at work has consequences! An employer
terminated its operations manager for downloading pornographic
images of children. Thankfully, the manager did not have the
nerve to sue the employer for any type of wrongful discharge.
However, he was criminally prosecuted, and the Ninth Circuit
held that the images he had downloaded and images on his hard
drive were admissible in his criminal trial. Because the employer
had a policy and practice of monitoring employees’ internet
activity, the court found that the manager had no reasonable
expectation of privacy.
Gone With the Wind. An
Arkansas tree-planting company was sued for wage and hour violations.
The company overwrote electronic documents and sent employees to
Guatemala so that they could not participate in the lawsuit. Most “creative” of
all, they shipped paper records to a Mississippi beach house at
the height of hurricane season. A district court judge in Louisiana
sanctioned the company for the discovery violations and left open
the possibility that more sanctions could be forthcoming.
But, boy, does she ever look nice
driving up to her new low-level job in that pink Caddy! The
U.S. Court of Appeals for the Eleventh Circuit (Georgia, Florida,
Alabama) has upheld dismissal of a race discrimination suit
filed by an African-American female postmaster who was demoted
for selling Mary Kay cosmetics on the job. The court found
that a white male co-worker who distributed Avon products on
the job was not similarly situated because he didn’t
sell, and he wasn’t a supervisor. The former postmaster,
by contrast, sold to subordinates and post office customers.
Alas, no constitutional right to
be a slob. (*sob*) After a state park in Kentucky
required its employees to tuck in their shirts, three seasonal
employees refused. When they were fired, they sued and claimed
that the terminations violated their First Amendment, equal
protection, and due process rights under the U.S. Constitution.
Uhhhh, no, said the Sixth Circuit (Kentucky, Michigan,
Ohio, and Tennessee), affirming the dismissal by a lower court.
AND REASON FLAILS…
Show me the money! A
federal judge in the District of Columbia has found that the
U.S. Treasury has violated the federal Rehabilitation Act because
the dollar bill – yes, that dollar bill – cannot
be discerned by the blind or visually impaired. The suit was
filed by the American Council of the Blind. Another advocacy
group, the National Federation of the Blind, has sharply criticized
the lawsuit and the decision. The President of the NFB said, “An
employer who believes that every piece of printed material in
the workplace must be specially designed so that the blind can
read it will have a strong incentive not to hire a blind person.” He
added, “Essentially, the United States Treasury has been
ordered by the courts to come up with a solution for a nonexistent
problem.”
Winter/Spring
2006
REASON PREVAILS…
We’ll never look at a Subway® meatball sandwich the same way again.
The Iowa Court of Appeals dismissed a sexual harassment lawsuit brought by a “sandwich
artist” at a Subway shop. The plaintiff, an older female, alleged that
her teenage co-workers made obscene shapes out of doughnut holes and the ground
beef used for meatball sandwiches. We don’t condone the whippersnappers’ creative
use of food products, mind you, but the court found that their activity was not
unwelcome to the plaintiff and that she had resigned because she was denied a
promotion, not because of the alleged harassment.
Can’t stop talking without use of articles. Please help. The Sixth Circuit
Court of Appeals (Kentucky, Michigan, Ohio, and Tennessee) affirmed dismissal
of privacy and due process claims by a police officer after the police department
released portions of his personnel file to the public. The controversy began
after the officer was caught on tape shooting and killing a family’s dog.
Now, here’s what happened: Family stops for gas. Dad accidentally leaves
wallet on top of car. Car drives away, with money flying around. Officers stop
car for suspected armed robbery. Officers order family out of car, handcuffing
family while they kneel on ground. Friendly family dog jumps out of car and runs
toward officers, wagging friendly little tail. Plaintiff shoots dog with shotgun
from one foot away. Dog dies instantly. Incident is on tape. Media uproar ensues.
Court finds that police department is immune from suit because officer himself
had already released much of “private” information in personnel file.
“Do you have any idea what kind of a headache that Stairmaster can give
ya?” The First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island,
and Puerto Rico) affirmed summary judgment for an employer who terminated an
employee while he was on FMLA leave for migraine headaches. The employee had
applied for short-term disability benefits, claiming that he could not perform
any activities while suffering from a migraine. A private investigator caught
him driving, shopping, and going to the gym on days that he was allegedly home
with a migraine.
REASON FLAILS…
Never mind. The EEOC and the National Education Association have announced
a joint initiative to raise teens’ awareness about workplace discrimination
issues. Somehow, it doesn’t seem that “awareness about discrimination” is
our nation’s most burning educational need. Those sorry kids would be much
better off worrying less about their legal rights and more about acquiring a
work ethic. I hear that Subway hires teens – uh – oh. We-ellllll,
maybe the EEOC-NEA thing isn’t such a bad idea, after all.
“Uncool” is synonym for “older,” judge finds. A federal
judge in Michigan has ruled that a 46-year-old radio producer was discriminated
against because of his age when he was not hired for a “drive-time” show.
The interviewer, who selected a 24-year-old, said that the plaintiff was unfamiliar
with pop culture and that there were concerns about his ability to relate to
a younger audience.
So, now, lying about sexual harassment is “protected activity”?
Oy, vey! The Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska,
the Dakotas) has held that a governmental agency unlawfully retaliated
against an employee by terminating him for having falsely accused two co-workers
of sexual harassment.
Fall
2005
REASON PREVAILS…
“We hold this truth to be self-evident:
Uh, NO,” sayeth Thomas Jefferson. The Sixth Circuit (Kentucky,
Michigan, Ohio, Tennessee) upheld the termination of a court
clerk in Tennessee who was having a “relationship” with
the estranged husband of one of her co-workers. (There was apparently
a question as to whether the relationship was adulterous.) The
clerk had argued that her right to intimate association under
the First Amendment had been violated.
Wonder what she’s like when not trying to make a good first impression.
The Third Circuit (Delaware, New Jersey, Pennsylvania) upheld the termination
of an African-American customer service employee who – in a training session
that took place after only ten days on the job – got into a cussing match
with another new hire, who was white. The white adversary resigned before the
company’s investigation was concluded, but the plaintiff stayed on and
was ultimately fired for using profanity and engaging in disruptive behavior.
The plaintiff claimed she was a victim of race discrimination because the employee
who had quit before she could be fired . . . wasn’t fired.
Don’t even get me started on that arbitrator . . . A Springfield, Illinois,
police officer was discharged because he had severely beaten his wife, threatened
a neighbor, challenged an old man to a fight during a basketball game, obstructed
an investigation, and had an “egregious disciplinary record” with
31 prior incidents, including a prior termination for throwing a rock at a car
while on duty. (An arbitrator ordered him back to work after that one.) He sued,
claiming to be a victim of reverse discrimination. The court granted summary
judgment to the town, and the Seventh Circuit (Illinois, Indiana and Wisconsin)
affirmed.
Better late than never. A federal judge in Philadelphia held that the EEOC had
the right to issue a regulation stating that an employer could reduce or end
benefits when the retiree becomes eligible for Medicare or similar government
benefits. The AARP had challenged the regulation, and the same judge had previously
held that the EEOC regulation was invalid. On reconsideration, the judge did,
however, leave in place an injunction prohibiting the EEOC from publishing the
regulation until the Third Circuit rules in the AARP’s appeal.
REASON FLAILS…
Note to self: Develop new reality-TV show
about class action lawsuit filed by reality-TV story editors
. . . A wage-and-hour class action filed by reality-TV “writers” [sic]
claims that the producers and TV networks overworked, underpaid,
and underfed the plaintiffs, who view raw video footage and edit
it into a storyline. The mastermind of the lawsuit was the Writers
Guild of America, West, which is trying to organize reality-TV “writers.” Citing
the example of one assistant story editor who worked 84 hours
in one week for a flat rate of $800, the Guild noted that the
pay averaged $7.41 per hour with no overtime. Seems like this
lawsuit would make for a great new reality-TV show: The Class
Action? The Real People’s Court? As the Real World Turns?
You’ve Been Served? The Shysters? (Attention, networks:
Please send royalty payment for concept to Constangy, Brooks & Smith,
LLC.)
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Summer
2005
REASON PREVAILS…
It is in your nature to be fired, ya big busybody. A federal
court in New York upheld the termination of an employee of a
brokerage firm who was terminated
for accessing her co-workers’ confidential information without a valid
reason. “It is in my nature to be curious,” said the plaintiff. She
claimed that she was terminated because of her race and age.
It’s not fair, I tell ya! You don’t fire your young thieves!
A federal court in Kansas dismissed the age discrimination claim of a mechanic
who was
fired at age 51 for stealing from his employer.
No First Amendment right for cops to sport Aryan Nation tattoos. Five police
officers in the City of Hartford had spider web tattoos on their arms. The police
department learned that the spider webs were symbols of the Aryan Nation, and
asked the officers to cover their tattoos while on duty. The federal court in
Connecticut found that the police department had not violated the officers’ due
process rights. Even if the officers had not realized that the tattoos were racist,
the court said, the city had a rational basis for believing that the tattoos,
if displayed, would inflame racial tension.
Elimination of “Motown Monday” is not race discrimination. And complaining
about it is not “protected activity,” either, said an eminently sensible
federal court in Pennsylvania. By the way, did we mention that the plaintiff
in this case was white?
Violent union member actually loses job! This column, alas, frequently
features labor arbitrators who return violent employees to work. Well,
here is some good
news — a court in Rhode Island had the guts to overturn an arbitrator’s
decision reinstating an employee who had disappeared from his job for several
months and, while away, made several threats against his employer and his boss — a
Catholic priest. The judge said, “This court refuses to endorse [the] arbitrator’s ‘ostrich’ mentality
towards dangerous and abusive workplace behavior whereby serious threats of violence
or intimidation are minimized or ignored rather than dealt with decisively before
a tragedy occurs.” If you’ll pardon the pun, AMEN, Judge Porcaccini!
Nice bank. A bank teller was fired, allegedly for lending $10 of her own
money to a homeless man while she was off duty. A federal court in New
York, probably
correctly, found that the evidence of an alleged policy violation was sparse,
and the employee claimed that she was really fired because she was an ordained
minister and pastor. The court allowed the employee’s religious discrimination
claim to go forward, while dismissing a number of her other claims.
Nice boss. A court in Montana correctly held that it was quid pro quo sexual
harassment in violation of the state Human Rights Act for a motel manager to
tell a 16-year-old girl applying for a maid position that prostitution would
be one of her—ahem—“deliverables.” (In fairness to this
manager who deserves none, it should be noted that the girl was not blameless—she
apparently cooperated until her mom found out and called the police.)
REASON FLAILS…
Grrrrrr . . . A federal court in Virginia, applying California law, held
that a complaint about the death of a lion in the circus could form the
basis of a
wrongful discharge/public policy claim. The public policy arose from California’s
laws against animal cruelty and the federal Animal Welfare Act.
“ Winning” is not a legitimate job expectation for a coach, court
finds. A hockey coach with a five-year contract providing for termination only
for “cause” was held to be entitled to keep his job despite an 18-35
win-loss record, and a “gate” decline to about 1,000 fans per game;
followed by a 1-6 win-loss record the next season. To be enforceable, the majority
said, the contract would have to require a specific win-loss expectation.
More from the totally messed-up “religious discrimination” front.
A federal jury in Texas awarded $35,000 to an employee of a public school system
who was denied a promotion to assistant principal because her two kids go to
private religious school. No disrespect to private religious schools, but doesn’t
it seem that the public school system ought to be able to expect its administrators
to send their kids to public schools?
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Winter
2005
REASON
PREVAILS… AND REASON FLAILS…
“It’s all about me.” A federal court in New York threw out
a pregnancy discrimination lawsuit filed by a woman who was terminated in a reduction
in force after she took approximately a year and four months off for her new
baby. The court found that it was reasonable for the employer to keep her male
replacement, who had established customer relationships and was closing deals
in her absence. Moreover, seven other employees – four of whom were male – were
laid off at the same time as the plaintiff, and her replacement was laid off
shortly afterward, and eventually the entire department was sold to another company.
C’est si bon. (It’s so good.) The U.S. Court of Appeals for the Eighth
Circuit (Arkansas, Iowa, Minnesota, Missouri, and the Dakotas) held that the
Arkansas State Police department was not necessarily liable for sexual harassment
based on a single incident when it acted promptly and effectively to end the
harassment. The plaintiff alleged that her supervisor hit on her and made crude
remarks on one night at work. She reported the incidents, and the Police immediately
separated the plaintiff and her supervisor, and ultimately terminated the supervisor.
The plaintiff contended that the Police should not be able to use the Ellerth/Faragher
defense because she did not “unreasonably fail to avail herself of the
employer’s preventive measures.” The Eighth Circuit said that this
would be an “anomalous” result and found that this was not a requirement
in a single-incident situation.
Firing employee for beating up boss is legal, court finds. The
U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi,
Texas) affirmed summary
judgment for an employer that fired the plaintiff after he got into a fistfight
with his supervisor. Earlier on the same day, the plaintiff had been in a fight
with a co-worker. The plaintiff, who – not surprisingly – was representing
himself, claimed to have been a victim of race discrimination.
Firing employee for calling boss a “redneck son of a b–tch” is
legal, court finds. The U.S. Court of Appeals for the Fourth Circuit (the Carolinas,
the Virginias, and Maryland) refused to enforce an NLRB decision that had held
that the cussing employee was unlawfully terminated for engaging in "protected
concerted activity." (What a shame that the case had to get that far before
justice was done.)
FLAILS…
Maybe this guy hadn’t called the boss a “redneck son of a b–tch.” A
federal court in New York held that a labor arbitrator was justified in ordering
reinstatement of an employee who was terminated for “repeatedly expressing
a desire to harm certain managerial and supervisory employees.” The court
said that “the employer’s reluctance to permit him [the grievant]
to return to work is understandable” but that the arbitrator’s decision
did not violate public policy.
Umm...if a restroom assignment can’t be based on this, then ...umm...what
can it be based on? A federal court in Arizona held that it was sex discrimination
for a community college to refuse to allow a still-biological-male professor
who was going through the sex-change process to use the women’s restroom.
The school was willing to allow the professor to use the women’s restroom
once the sex-change surgery was complete, and female students had complained
about having to share their restroom with a biological male. Said the judge: “The
presence or absence of anatomy typically associated with a particular sex cannot
itself form the basis of a legitimate employment decision . . ..” Conditioning
employment rights on having the “stereotypically expected genitalia” is
unlawful, absent a “reasonably necessary” business purpose.
“Involuntary drooling”? “Restaurant employment”? Why,
they go togther like a horse and carriage! A federal judge in Minnesota refused
to dismiss a lawsuit brought under the Americans with Disabilities Act against
the Fuddruckers restaurant chain by an employee with a disorder that resulted
in involuntary drooling. The judge contended that the restaurant could have reasonably
accommodated her by letting her bus tables or wash dishes.
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Fall
2004
REASON
PREVAILS… AND
REASON FLAILS…
A Federal District Court in Connecticut refused to enjoin the
Connecticut Department of Corrections from disciplining law
enforcement officers for their involvement
in a motorcycle gang that is reputed to be a major drug trafficker and whose
members engage in violence, associate with white supremacists, and sell stolen
motorcycle parts.A former golf pro sued for marital status discrimination when
he was fired after having an affair and bringing his girlfriend to country
club events. We reported in a prior edition of L&EI that
the trial court granted summary judgment to the country club.
Now, the Michigan Court of Appeals has
reversed, ruling that if the employee was fired because of his pending divorce
rather than his adulterous affair, he would have a claim for marital status
discrimination.
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Winter 2004
REASON
PREVAILS…
Speaking of racketeering . . . this ain’t it. The U.S. Court of Appeals
for the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada,
Oregon, Washington, Guam, and Northern Mariana Islands) affirmed summary judgment
in a RICO case brought by employees who claimed that their employer misrepresented
the law regarding overtime pay and used the U.S. Mail to do it (by mailing paychecks
and W-2 forms). “We decline to expand RICO’s reach to transform the
federal courts into a general venue for ordinary state wage disputes.”
“
Man-boy love” held not legally protected activity. The
U.S. Court of Appeals for the Second Circuit (Connecticut,
New York, and Vermont) affirmed summary judgment to the New
York City School Board in a case brought by an ex-high school
teacher, now thankfully unemployed. The teacher, an admitted
pedophile, alleged that the First Amendment protected his activities
related to the North American Man/Boy Love Association (“NAMBLA”).
No NAMBLA, and no neo-Nazis, neither. A federal district court
in New Jersey found that a convenience store did not violate
the First Amendment by terminating
a store manager for violating the company’s core values. The manager, as
a sideline, ran a website that sold “neo-Nazi skinhead music,” swastika
flags, and the like.
“If I were younger, I bet you’d let me work for no pay.” A
federal court in the Northern District of Illinois dismissed an age discrimination
lawsuit filed by a junior college administrator who was terminated. The evidence
showed that the college had lost funding for her position.
“Warm fuzzies” held not same-sex harassment. Annoying, cloying behavior
does not equal harassing behavior, said the U.S. Court of Appeals for the Fifth
Circuit (Louisiana, Mississippi, Texas), affirming summary judgment for the defendant
employer. The relatively cold-and-prickly plaintiff, a loan assistant, alleged
that her warm-fuzzy supervisor was “overly effusive” and greeted
her employees with hugs and kisses, and told them “I love you,” or “You’re
the greatest.”
AND REASON FLAILS…
Good management? Fuhgeddaboudit! Fox News reports that some
executives are holding up fictional mob boss Tony Soprano as
a role model for their subordinates to
emulate. Soprano is admired for his “direct” approach, “plain” language
(is that the kind of language that is?), and use of the “sit-down” to
resolve disputes. One can only hope that “murder,” “theft,” and “beating
up one’s girlfriends” are still frowned upon.
Bribe doesn’t pay. The employer-defendants in a class action for unpaid
overtime paid a $10,000 bonus to each employee who opted out of the class, threw
them a party, and treated them to a steak dinner after the case settled. This
resulted in a second class action alleging that the defendants discriminated
and retaliated against the employees who had joined in the class in the first
lawsuit. The court denied the defendants’ motion to dismiss the second
class action.
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Winter/Spring 2003
REASON PREVAILS...
Plaintiffs from Mars...and Venus. A court in New York threw out a
lawsuit in which the plaintiff claimed that he was discriminated
against, in part, because he was Jewish. The allegedly anti-Semitic
employer was Hebrew Union College-Jewish Institute of Religion.
Duh. The Fifth Circuit (Mississippi, Louisiana, Texas) held that
evidence of sexual advances to members of one's own gender is credible
proof of homosexuality.
The ADA's good name is restored! The First Circuit (Maine, Massachusetts,
New Hampshire, Rhode Island and Puerto Rico) affirmed dismissal of
a lawsuit filed by an alcoholic who was terminated while he was in
jail for drunk driving.
They hate me 'cuz...'cuz I'm a guy! Yeh, that's the ticket! The Seventh
Circuit (Illinois, Indiana, Wisconsin) affirmed judgment against
a teacher whose contract was terminated. The teacher claimed he was
terminated because he had filed a reverse-sex discrimination charge
against the school system, but the evidence showed that he was chronically
tardy, failed to attend faculty meetings, failed to produce lesson
plans, and had disciplinary and academic problems.
Illegal wiretapping!! The man on the flying trapeze!! Adultery!!
Bearded ladies!! The D.C. Circuit overturned a verdict for an employee
of the company that owns the Barnum & Bailey/Ringling Brothers
Circus. The employee alleged that her boss-with whom she was having
an affair-had illegally wiretapped her home and work phones. The
verdict was overturned on the disappointingly mundane ground that
her lawsuit had not been filed within the two-year statute of limitations.
Bad poets society, Part I: He can rhyme, but he ain't got no rhythm.
Pennsylvania Supreme Court justices publicly object to the dubiously
poetic opinions of their colleague, Justice J. Michael Eakin. Here's
a sample: "Given his accomplishment and given her youth/Was
it unjustifiable for her to think he told the truth?" (This
guy is awesome!)
Love of tofu is not a religion. The California Court of Appeals held
that veganism is not a "religious creed" within the meaning
of the California Fair Employment and Housing Act. The plaintiff
was denied a job with a pharmaceutical company after he refused to
be inoculated with a vaccine grown in chicken embryos.
AND REASON FLAILS...
Bad poets society, Part II: Gangsta arbitrayta upheld. A court in
Illinois upheld the reinstatement of an amateur rapper who left obscene,
anti-woman, and violent rap lyrics at work where his co-workers found
them-even though the would-be P. Diddy had already been warned three
times and even though the lyrics clearly violated the company's policies
against harassment.
Employer must pay "retention bonus" to employee who stays
home. An employer offered a retention bonus to employees who stayed
with the company while a takeover was in process. One employee "stayed" but
was out on FMLA leave for 12 weeks during the relevant period. The
court, also in Illinois, found that the employer violated the FMLA
by reducing her retention bonus for the time that she wasn't at work.
Summer 2003
REASON PREVAILS…
If we’re so great, why do we keep getting these cases?
A study recently released by the American Bar Association shows
that employers win approximately 94.5 percent of lawsuits filed
under Title I (the employment provisions) of the Americans with
Disabilities Act.
“You can’t fire me! I was over 40 when my division lost that $200
million!” The usually-liberal Ninth Circuit (Alaska, Arizona, California,
Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and Northern Mariana
Islands) affirms dismissal of an age discrimination suit brought by a former
vice president whose division had lost more than $200 million in the approximately
five years before he was terminated.
Well, at least we understand why she brought this ridiculous
claim. A federal
judge in Pennsylvania has held that “blonde discrimination” is not
prohibited by Title VII.
Guy with no religion has no religious discrimination claim. The
Seventh Circuit (Illinois, Indiana, Wisconsin) affirms dismissal
of a religious discrimination
case, where the plaintiff refused to identify his religion and didn’t even
claim to be an atheist.
Vito Corleone held not necessarily representative of Italian-American, Catholic
older men. The Third Circuit (Delaware, New Jersey, Pennsylvania) affirms dismissal
of a discrimination case, where the evidence showed that the plaintiff referred
to his gun and the Mafia in a threatening manner, and played the theme from The
Godfather, during a work-related meeting. The plaintiff had claimed he was discriminated
against because of his age, his Italian national origin, and his Catholic religion.
“@#$%!!$#% paper, or @#$%@#$% plastic?”: Part Deux. A couple of years
ago we reported on a grocery store employee who was terminated because his Tourette’s
Syndrome caused him to have offensive outbursts in front of customers. In what
appears to be a mini-trend, a federal court in Georgia was recently faced with
the same issue, and like the first court, held that the employee was not protected
by the Americans with Disabilities Act.
REASON FLAILS…
Cussing, ¡no! Forgery, ¡sí! Although involuntary, disability-related
cursing at supermarket customers has been held inappropriate and warranting discharge
(see above), forgery by able-bodied supermarket employees is apparently fine
and dandy. A federal judge in Rhode Island recently enforced an arbitrator’s
order reinstating a supermarket employee who forged store customers’ names
on public assistance checks.
Flash! Federal judge in Louisiana abolishes statute of limitations!
A female firefighter who claimed discriminatory failure to hire
may introduce evidence
of a consent decree that was 20 years old. (In the court’s defense, it
did find that the fire department had made recent, material misrepresentations
regarding its compliance with the decree.)
The $64,000 answer. A federal court in Minnesota assessed a $64,000
penalty against
an employer for providing a benefits “answer book” to opposing counsel
instead of the actual plan document.
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Fall 2002
REASON PREVAILS…
Young government proofreader may have to work for a living, after
all. The D.C. Circuit dramatically reduced an award of $840,000
in front
pay to a proofreader who had won a sexual harassment suit against the
Government Printing Office. Awarding the 34-year-old employee 26 years
of front pay, until her retirement age, was "unduly speculative," the
court wisely said. Even a sincere intention to stay on a job until
retirement should not entitle one to front pay "for the remainder
of her work life."
"
Don Juan" not a protected status? The Michigan Supreme Court has
held that termination for adultery is not "marital status discrimination" within
the meaning of the state’s civil rights law. The plaintiff, a
golf pro at a country club, cheated on his wife with a married woman.
He was terminated after he left his wife to move in with his paramour
and escorted the latter to club events, causing disapproving talk among
the members of the club.
EEOC does good. The EEOC’s Cleveland, Ohio, office has found
cause to believe that the National Education Association is failing
to reasonably accommodate members’ religious beliefs. The teachers’ union
requires annual written filings from members who object to paying dues
on religious grounds. A teacher who wanted his dues donated to charity
filed the charge against the NEA, saying that the union forced him
to wait too long for an accommodation and that the paperwork requirement
was too burdensome.
And then some. (Wow. Two "Prevails" for the EEOC? Amazing!)
The EEOC also announced that it is formulating a rule that will allow
employers to reduce retiree medical benefits, without running afoul
of the Age Discrimination in Employment Act, once the retiree becomes
eligible for Medicare or state retiree health benefits.
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REASON FLAILS…
Fitness chain lets itself go. Jazzercise has decided to abandon its
requirement that fitness instructors have a "fit appearance" after
being charged with weight discrimination by a 240-pound prospective
aerobics instructor who was denied a job in San Francisco. (In her
defense, she was 5’8".) The resolution of the charge was
announced at International No-Diet Day.
"
You’ve been a bad employer! Now I’ll have to punish you!" A
California jury affirmed a sexual harassment verdict for a former employee
of an adult store who alleged that his boss required him to "sample
the merchandise" as part of his job duties, which included a variety
of S&M toys. The boss also allegedly whipped him with a riding
crop when he made mistakes on the cash register.
Ungrateful kids. A group of 40- to 49-year-olds sued their employer
for age discrimination because the over-50’s got a better retirement
benefit. Sadly, a panel of the U.S. Court of Appeals for the Sixth
Circuit (Kentucky, Michigan, Ohio, Tennessee) agreed with them. Hats
off to dissenter Judge Glen Williams of Virginia (sitting by designation),
who pointed out what should have been obvious to all: "[T]he older
a person is, the greater his or her needs become."
Stress’d practices. The following nameless employers have been
slammed by the courts for allegedly engaging in some conduct that gives
companies a really bad name: . . . an employer in Colorado, for going
uninvited to an employee’s home five days after he’d suffered
a heart attack, barging into his bedroom while he was partially undressed
and in bed, and firing him . . . an employer in Delaware, for terminating
a manager and offering him a severance agreement with all the proper
age discrimination waiver language, but allegedly telling him "off
the record" that he had to sign by the end of the next business
day or lose his whopping $2,000 in severance pay . . . .
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Spring/Summer 2002
REASON PREVAILS…
Life is beautiful. Thus far, the U.S. Supreme Court has been eminently
reasonable in most of the decisions it’s issued in employment
cases. For example, employers who provide more than 12 weeks of leave
do not automatically owe their employees another 12 weeks just because
they forgot to do the FMLA paperwork, employees must be really disabled
to be protected by the ADA, employers don’t have to pay back
pay to illegal alien employees. . . .
What a difference a year makes. A federal court in New York threw out
an age discrimination lawsuit by a 71-year-old executive who was fired.
His age when he was hired by the same group of people? 70.
You snooze, you lose. A federal court in Kansas held that an employer
did not owe overtime pay for time that an employee spent sleeping (albeit
on premises).
How come we can’t grasp this concept? Not an employment case,
but we’ve just gotta mention it: In Great Britain, 36 plaintiffs
sued McDonald’s over hot coffee, just like in the infamous American
lawsuit. But, unlike our American plaintiff who got a huge verdict
(later reduced through a settlement), the court in Britain threw out
the lawsuits, sensibly ruling that one should expect one’s coffee
to be hot.
"
NOW can we fire him? Please?" In a "Flails" column a
few issues ago, we had an item about an arbitrator ordering an employer
to reinstate a man who was terminated after he allegedly killed another
father at their sons’ hockey practice. The arbitrator "reasoned" that
the alleged killing was not work-related and thus not a legitimate
ground for discharge. A jury recently found "devoted dad" Thomas
Junta guilty of involuntary manslaughter, and he was sentenced to six
to 10 years, which raises the question —will the arbitrator let
his employer fire him for attendance now that he’s in the pen?
REASON FLAILS…
Maybe the Abbott & Costello version would be a reasonable
accommodation. A federal judge in Maryland refused to dismiss an ADA
lawsuit in which
the plaintiff, an actress, alleged that she suffered from post-traumatic
stress disorder and depression that were aggravated by, among other
things, people who raised their voices. She sued under the ADA after
being fired by a theater company that was performing Dr. Jekyll and
Mr. Hyde.
"
But if I hadn’t been fired, I’d have worked there forever...if
I hadn’t died." A federal court in Michigan affirmed a front
pay award in an age discrimination case filed by the widow of an employee
who committed suicide before the suit was even filed.
Ach du lieber! If you think it’s hard to terminate employees
in the U.S., just be glad you don’t live in Germany, where they
actually try to force you to hire people you don’t need. The
Westphalia region (where the good ham comes from) has issued a regulation
stating hog farmers must give each of their charges 20 minutes of personal
attention each day. The hog farmers claim that the mandatory pig-caressing
will pretty much fill their entire work day... unless they hire more
employees to perform this useless activity.
Jury also believes word "gullible" is not in dictionary.
A plaintiff in a sexual harassment case won $215,000 even though she
reportedly admitted that she had consented to the relationship. The
California jury bought her claim that she "couldn’t resist" the
advances of the "harasser" because she was a victim of childhood
sexual abuse. And, as the cherry on top of the sundae of injustice,
the employer of both individuals is the one who has to pay.
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Winter/Spring 2002
REASON PREVAILS… AND REASON FLAILS...
Plaintiffs from Mars . . . and Venus. Among the frivolous plaintiffs
who’ve been busted since our last edition are these: Child
care worker with I.Q. of 64 who allegedly failed to watch the children,
used her cell phone during class, called the kids names and refused
them drinks (she’d sued for learning disability discrimination).
. . Forklift driver with 12 accidents in three years, fired for unsafe
behavior (he’d sued for disability discrimination – post-traumatic
stress disorder). . . .
Big, hairy, deep-voiced person with XY chromosome doesn’t have
right to use women’s restroom, notwithstanding cute dress.
The Minnesota Supreme Court says it is OK for employers to restrict
ladies’ room use to "biological females," reversing
a lower court’s ruling in favor of a transgendered individual.
Lying, agile faker has no ADA case. Our friends in the Seventh Circuit
(Illinois, Indiana, Wisconsin) affirmed dismissal of an ADA lawsuit
brought by a guy who was allowed to work part-time for full-time
pay after he injured his back. He lost his sweet deal after the employer
caught him on videotape twisting, bending, and climbing.
"
No more Napster or porn? What do you expect us to do? Administer
justice, or something?" To its credit and over strenuous objections
by some members of the bench, the Judicial Conference of the United
States has banned the workplace viewing or transmission by federal
court employees of sexually explicit material, or materials related
to illegal gambling, illegal weapons, terrorist activity, or other
illegal activity.
Squeaky wheel gets the gate. The Eighth Circuit (Arkansas, Iowa,
Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) held
it was not an unfair labor practice for a hospital to terminate a
pro-union nurse who said on TV that her employer was "jeopardizing
the health of mothers and babies."
Shrewishness found not a gender-based characteristic. In other obstetric/employment
law news, the First Circuit (Maine, Massachusetts, New Hampshire,
Rhode Island, Puerto Rico) affirmed dismissal of a sex discrimination
lawsuit brought by a doctor who was fired for being so adamant about
maternity-care issues that she alienated the nurses and nursing management
with whom she worked.
Flash! Expecting your employees to behave is legal, court finds!!!
The D.C. Circuit slammed the National Labor Relations Board for taking
the position that a ban on abusive or threatening language was an
unfair labor practice. The Board had actually said that union representatives "must" often
use sexual, racial and other derogatory epithets in doing their work.
The court panel unanimously called the Board’s position "preposterous," "a
stunning misreading of applicable precedent," and "absurd."
"
Mom, he’s looking at me! Make him pay me $30MM, plus attorneys’ fees!" The
California Court of Appeal held that staring can form the basis for
a viable sexual harassment claim.
"
Age discrimination? Who, ME?" A federal court in Tennessee refused
to throw out an age discrimination case, where the plaintiff’s
evidence showed that his boss said the plaintiff was too old to learn
computers, too old to be a team player, needed a hearing aid (because
he was so old), and needed to go to bed early (because he was so
old). Then the boss allegedly fired the plaintiff and told employees
and customers that he had fired the plaintiff because he was too
old.
Wacky wolverines. The Michigan Court of Appeals has held that workers’ compensation
is available to a parole officer who claimed depression as a result
of his employer’s failure to "support" him after
four public defenders complained that he had sexually harassed them.
Among other things, he had allegedly asked one, "Do you want
to f***?" and told her (completely unsolicited) that she would
have to be discreet and would have to lose 10 pounds if they had
an affair.
Attorney #3 is very, very nervous. After getting less than he thought
he ought in a race discrimination case, a plaintiff sued his original
attorney for malpractice. The plaintiff’s second attorney settled
the malpractice case for $765,000. Then the plaintiff sued the second
attorney for malpractice, apparently believing that the hefty settlement
was inadequate. The Seventh Circuit has now agreed that the suit
against Attorney #2 should be dismissed.
Stress’d Practices. Guess the ending: Company’s harassment
policy requires employees to report alleged harassment to their direct
supervisors. Then supervisor allegedly harasses direct report. Then
employee sues, and employer seeks to have suit dismissed on ground
that employee did not report alleged harassment.
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Spring/Summer 2001
REASON PREVAILS… AND REASON FLAILS...
Sweeney says it’s bad; ergo, it’s good. In a huge victory
for truth, justice, and the American way, Congress and Dubya undo the
vile OSHA ergonomics rule promulgated in Clinton’s eleventh hour.
Among other things, the rule would have required companies to redesign
workplaces and give employees 90 days’ paid leave (notwithstanding
the FMLA and workers’ compensation laws) whenever an injury was
deemed to be caused by the workplace. The AFL-CIO’s John Sweeney
said that "‘dishonest’ and ‘disgraceful’" weren’t
strong enough words to describe the congressional action.
You’d be crabby, too, if you were him. The Seventh Circuit held
that decreased sexual performance secondary to a bad back is not a "substantial
limitation of a major life activity" within the meaning of the
ADA. The plaintiff was terminated after he allegedly called his supervisor
a "motherf---er" in Spanish.
Ninth Circuit gets one right. (The decision to insert the word "finally" is
completely up to you, Dear Reader.) The Ninth Circuit (California,
Nevada, Idaho, Montana, Arizona, Alaska, Hawaii, Oregon, Washington,
Guam) is not normally one of our favorites because of its employer-unfriendly
stances. However, a panel of the court recently held that an employer
acted appropriately by counseling an employee about alleged sexual
harassment, instructing him to stay away from the alleged victim, and
transferring him to another shift, even though no formal discipline
was administered.
Give her some exposure to the court system, and she’ll think
a one-hour delay sounds pretty darned quick. A federal district court
found that a clothing store did not violate the ADA or California law
by taking one hour to consider the accommodation request of a blind
woman who wanted her husband to assist her in the women’s dressing
room. (The woman was granted the requested accommodation after the
understandably confused store employees consulted with their Human
Resources representative.)
Plaintiffs from Mars . . . and Venus. Ford Motor Company instituted
a program of grading employees "on a curve" as part of their
performance evaluations. Nine employees have sued, contending that
the evaluation system discriminates on the basis of age. "This
is a whole new system," the plaintiffs’ lawyer sputtered.
The nerve!
Love the cheesesteak and mummers, but, oh, those Keystone Kourts! The
federal court for the the Eastern District of Pennsylvania refused
to dismiss an ADA suit on summary judgment, even though there was evidence
showing that the plaintiff was belligerent, unprofessional, and sensitive
to criticism. In fact, the court cited the plaintiff’s bad personality
in finding that she may have been "substantially limited in the
major life activity of interacting with others." The same district
also refused to throw out a retaliatory discharge lawsuit filed by
a plaintiff who had allegedly threatened to shoot a co-worker and her
plant manager.
California opens floodgates . . . even more. California amends its
Fair Employment and Housing Act to make up for the Supreme Court’s
having put some limits on who is entitled to ADA protection. Under
the new law, employers will have to accommodate employees who do not
have "substantial limitations" and without regard to mitigating
measures. Employment attorneys predict that employers will lose 80
to 90 percent of their disability discrimination cases because of the
change in the law.
Stress’t practices. Guess the ending to this story: An employer
in New Jersey allegedly bet an obese employee $250 a pound if he could
lose 100 pounds in 14 months, and then the employee failed to lose
the weight. Then the employer needed to fire the obese employee...
(See answer below.)
ANSWER: Court finds that obese employee’s discrimination suit
can go to trial, citing bet as evidence of anti-fat animus.
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Winter/Spring 2001
REASON PREVAILS…
Plaintiffs from Mars . . . and Venus. In separate decisions, courts
dismissed the following claims under the Americans with Disabilities
Act: (a) a heavy-machine operator with sleep apnea who was fired
for sleeping on the job; (b) a psychiatrist in a state mental hospital
who couldn't work with sick or violent patients; and (c) a switchboard
operator whose "disability" was fear of snakes. Sad that
we have to take such pleasure in these obvious decisions, but see
Arbitrator Chandler's decision, right, for a good reason why we must.
Age act ceases to apply after other foot enters grave. A federal
court in Michigan dismissed the ADEA claims of the widow of an employee
who
was terminated and then committed suicide.
"
If men could get pregnant . . ." this probably would have been
the law a long time ago. (Just kidding, guys–really.) The EEOC
has decided that it is a violation of the Pregnancy Discrimination
Act for employers to offer health insurance for some prescription
medications, including Viagra, but not for prescription contraceptives.
AND REASON FLAILS...
Glen, Glenda breathe sighs of relief. The City of Portland, Oregon,
has added "gender identity" to the list of characteristics
protected by its anti-discrimination ordinance.
Bad month for aliens. The AFL-CIO and its allies raised enough of
a stink about conservative Linda Chavez's illegal alien houseguest
to
cause Chavez to withdraw from consideration for Secretary of Labor.
In the same month, actor Ray Walston, star of the 1960's sitcom "My
Favorite Martian," died.
Work-related killing, no! Non-work-related killing, si! An arbitrator
in Massachusetts ordered a company to reinstate with back pay an
employee who was suspended after he allegedly killed another parent
at his 10-year-old
son's hockey game. The incident, "though it led to a most serious
result was not company related," said never-to-be-accepted-by-management-again
Arbitrator Joseph Chandler.
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