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.

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?

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