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.