• In unpublished opinion, California appeals court upholds dismissal of Unruh Act challenge to baseball Angels’ Mothers Day tote giveaway [Lex Icon, earlier]. More: CalBizLit.
• Securities class-action firm Bernstein, Liebhard & Lifshitz perhaps a less credible tribune of fiscal rectitude now that name partner Mel Lifshitz has copped felony plea to lying on federal taxes [NY Post, NYLJ, WSJ law blog] And what’s this about Lifshitz funding one of his firm’s clients? [The Street] P.S. He’s now departed the Bernstein firm, but maybe there’s an opening for him as chairman of House Ways and Means.
• Per one lawyer, “would be a stretch” for website operator to be held liable for teen’s overdose suicide with webcam running [AP]
• Carter Wood finishes up weeklong series of posts looking back on the great 1998 tobacco settlement [ShopFloor links to PoL]
• Eric Holder not a reassuring Attorney General choice for gun rights [Kopel @ Volokh]
• Law bloggers on Twitter: Anne Reed explains what the fuss is about [Deliberations; related, Michelle Golden]
• Compulsory chapel? UC Irvine Prof. Alexander McPherson, who quit supervising students rather than submit to state-mandated sexual harassment training, explains his stand [L.A. Times] Lefty blogs once again empty a bucket over his head [Feministe, Lemieux]
• Presumably unrelated: “Law Grad Accused of Faking E-Mail to Implicate Prof in Harassment” [ABA Journal, Florida Coastal]

• Time for another aspirin: Harvard Law’s Charles Ogletree, key backer of lawsuits for slave reparations, mentioned as possible Attorney General [CBS News, BostonChannel WCVB, Newsweek; earlier speculation about post as civil rights chief]
• Calif. law requires supervisors to attend sexual harassment prevention training, a/k/a sensitivity training, but UC Irvine biologist Alexander McPherson says he’ll face suspension rather than submit [AP/FoxNews.com, On the Record (UCI), Morrissey, Inside Higher Ed, OC Register; ScienceBlogs' Thus Spake Zuska flays him]
• Fan “not entitled to a permanent injunction requiring American Idol singer Clay Aiken to endorse her unauthorized biography” [Feral Child]
• Local authority in U.K. orders employees not to use Latin phrases such as bona fide, e.g., ad lib, et cetera, i.e., inter alia, per se, quid pro quo, vice versa “and even via” [via -- uh-oh -- Zincavage and Feral Child]
• Participants in 10th annual Boulder, Colo. Naked Pumpkin Run may have to register as sex offenders [Daily Camera, Obscure Store]
• Joins drunk in car as his passenger, then after crash collects $5 million from restaurant where he drank [AP/WBZ Boston, 99 Restaurant chain]
• Election may be over, but candidates’ defamation lawsuits against each other over linger on [Above the Law, NLJ]
• School nutrition regs endanger bake sales, but they’ll let you have “Healthy Hallowe’en Vegetable Platter” instead [NY Times]

We didn’t make this up. Really, we didn’t. Well-known Loyola lawprof Laurie Levenson is listed among those involved. (via Above the Law).

More: AmLaw Litigation Daily suggests some spinoffs, including “Pat: For Women in Sexual Harassment Litigation.”

Hallowe’en party advice from employment lawyers. (Tresa Baldas, National Law Journal, Oct. 31).

Earlier this year Ted wrote an item titled “Implausible defense department” about American Apparel founder Dov Charney’s efforts to explain away jaw-droppingly colorful facts in the latest of the multiple sexual harassment complaints he has faced. The sequel is worthy of what has gone before: it appears that Charney faked an agreement to send the case to arbitration to conceal a deal in which he agreed to settle the claim for $1.3 million. The deal later fell apart and the case is headed back for (presumably genuine) litigation. (On Point News, Workplace Prof Blog).

P.S. Overlawyered guestblogger Victoria Pynchon, of the IP ADR Blog, has now posted a more extensive and detailed report on the case, & see Nov. 16 update with company’s side of the story.

University of Iowa professor Arthur H. Miller (who is not the NYU Law professor Arthur Miller) allegedly traded grades and offered to trade grades for second-base action with female students, appropriately resulting in criminal charges and being placed on leave by the university.  Paul Caron points us to this Chronicle of Higher Education blog post that says Iowa has ordered all of its professors to undergo sensitivity training to avoid sexual harassment.  Because obviously a professor who would demand students let him fondle their breasts for a grade would never have engaged in such a behavior if only he had an additional hour of sensitivity training.

What this is really about is lawsuit prevention.  Just as a doctor fearful of being sued will order an inefficient, wasteful, and possibly counterproductive medical test, an employer fearful of being sued will insist upon inefficient, wasteful, and possibly counterproductive sensitivity training.

The other nanny suing Hollywood figures Rob and Sheryl Lowe “was going to settle with the Lowes but then she too wound up being represented by [attorney Gloria] Allred”. So Laura Boyce now finds herself at the center of big legal and publicity hoopla:

Boyce’s claims don’t target Rob Lowe at all but focus on Sheryl Lowe for such off-putting behavior as walking around naked — in her own home — and making “numerous sexually crude, lascivious and racially derogatory comments,” which led Boyce to quit her job. Sheryl Lowe has denied the allegations.

“The home is a workplace for the people who are working in it — the nannies, the chefs, the drivers,” says Allred. “Celebrity employers do not have special rights. They are not insulated from liability because they are in their home. Celebrities are not above the law. They don’t have license to commit sexual harassment because it’s in their home.”

Lowe has pre-emptively sued Boyce and the other Allred-represented nanny, Jessica Gibson. (Rachel Abramowitz, “Rob Lowe’s privacy, nanny woes”, Los Angeles Times, Jun. 4).

• Monday’s polar bear panel at AEI is a panel about the law of polar bears and the effect of the FWS decision to list them as threatened, rather than a panel featuring polar bears. So no fish will be served. Volokh’s Jonathan Adler will be there, though. [Volokh; AEI]
• Limiting lawsuit abuses lowers costs from litigation, creates jobs in long run. [Engler & McQuillan @ Detroit News]
• HBO to small businesses: prepositions are okay, but conjunctions will lead to injunctions. [Baltimore Sun]
• A one-sided love letter to Cozen O’Connor in the Philadelphia Inquirer over its September 11 litigation is a bit too revealing about its deep-pocket searches: “Cozen lawyers also had to be sure that such a defendant made financial sense, for the firm and its clients.” Culpability, of course, isn’t in the equation; and the newspaper story fails to account for the public-policy implications of having trial lawyers stepping on foreign policy. [Philadelphia Inquirer]
• Life imitates “The Office”: law firm offers “love contracts” for dating workers. [ABA Journal]
• More evidence of FDA overwarning, even when the science and law does not justify it. [Kyle Sampson @ Product Liability Law 360]
• Business tries to bully small website with litigation; small website successfully fights back. [CL&P Blog]
• “[Ron] Paul accomplished the one thing he’s always been good at: using political appeals to get people to send money. I don’t feel freer.” [Henley via Kirkendall]
• “It’s infuriating how all three presidential candidates prattle on about the need to fight global warming while also complaining about the high price of gasoline.” [Postrel]
• Story on Vioxx settlement and Merck winning reversals heavily quotes me. [Product Liability Law 360 ($)]

Lisa Brockington hired employment-discrimination firm Tuckner, Sipser, Weinstock & Sipser to represent her in a discrimination lawsuit, and was impressed with her resulting settlement enough that she joined the firm as an office manager. But now Brockington is suing Tuckner, Sipser, Weinstock & Sipser on sexual harassment grounds, making a number of lurid accusations about the firm and about Jack Tuckner’s sexual practices (which the New York Post and Above the Law are kind enough to highlight for one’s titillation). Either the allegations are true, in which case the firm suffers from severe hypocrisy problems in addition to its legal troubles, or the allegations are false, in which case the firm wins settlements for plaintiffs who make false claims. Tuckner’s attorney, David Berlin, does indeed say the claims are false. More precisely, he says “[T]hese irrational and untrue charges are a reflection of the person bringing the charges.”  Brockington’s attorney is Louis Pechman. Tuckner regularly appears on television as a talking head on harassment law.

Continue Reading »

Further discussion of how lying about your past to avoid alienating a romantic partner could become a felony in Massachusetts if a state lawmaker has his way (Volokh, May 5; see Mar. 12). More: Greenfield (feminist law professors’ proposals).

The Eleventh Circuit on Monday “held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim — which is to say, that if the jury agrees with her on the facts, it’s entitled to award potentially hundreds of thousands of dollars in damages — even though the case didn’t involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally. Rather, her complaints, as described by the Eleventh Circuit were chiefly related to “sexually crude language that offended her.” Among the sources of that offense, per the court opinion, was “a radio program that was played every morning on the stereo in the office”, per Eugene Volokh “a morning program on Birmingham’s 107.7 FM during 2002-03, according to one brief”. (May 2; title post borrowed from Bader). More: Fulton County Daily Report, Evil HR Lady (”And you wonder sometime why we HR types put a damper on the fun.”).

Do as we say, not as we do?

Ohio Attorney General Marc Dann is leading a group of 18 state Attorneys General seeking a ruling in the U.S. Supreme Court that employees can not be retaliated against by their bosses for filing a sexual harassment complaint.

The case comes at an ironic moment for Dann, as his office is investigating claims by two 26-year-old women who work at the Attorney General’s office that they were sexually harassed on and off the job by their boss, Anthony Gutierrez, a close friend of Dann’s who shared a Columbus condominium with him.

(”Dann Defends Woman Amid Own Office’s Sexual Harassment Flap”, Fox8 Cleveland, Apr. 16; Mark Rollenhagen and Reginald Fields, “Employee in Ohio attorney general’s office files police report”, Cleveland Plain Dealer, Apr. 19). Amid talk of a cover-up, Dann has also denied a request from the Columbus Dispatch under the state’s public records law “to review three months’ worth of e-mail messages between him and his then-scheduler, Jessica Utovich,” both of whose names turn up as possible witnesses in colorful text messages offered as evidence in the claims. “Dann in the past has said e-mails are public records and also has sought troves of messages from public offices when he was a state senator and the Democratic candidate for Ohio’s top legal office.” (James Nash, “Dann won’t release e-mails”, DispatchPolitics (Columbus Dispatch), Apr. 13; Julie Carr Smyth, “Sexual complaint probe at top cop’s office intensifies”, AP/Akron Beacon Journal, Apr. 18; Mark Naymik, “Dann has habit of hiring his friends; some have proved to be embarrassments”, Openers (Cleveland Plain Dealer blog), Apr. 12; Reginald Fields, “Dann employee files complaint with police”, Openers, Apr. 18).

After initial resistance, Dann did release some information that raised reportorial eyebrows:

In a surprising reversal, Attorney General Marc Dann’s office released 12 pages of notes that detail allegations of repeated sexual harassment and possibly an attempt to destroy text messages that may document the incidents. …

Dann’s Equal Employment Opportunity officer, Angela Smedlund, interviewed Cindy Stankoski and Vanessa Stout on March 31 about problems they had had with their boss, Anthony Gutierrez, who is Dann’s friend and former roommate.

Smedlund’s notes reveal the following:

Stankoski agreed to go out for drinks with Gutierrez last Sept. 10, but said she soon “felt tipsy and trapped.” She agreed to go to an apartment Gutierrez shared with Dann and Communications Director Leo Jennings III. She called and text-messaged friends that night.

In the margin, Smedlund wrote: “Leo & Tony destroyed texts Tony admitted to Charlie.” The notes do not identify Charlie’s last name.

Jennings and Gutierrez are now both on paid administrative leave.

(Laura A. Bischoff, “Dann’s office unveils documents detailing harassment report”, Lebanon, Oh. Western-Star, Apr. 16; Rollenhagen/Fields, “Reports show Dann was aware of Gutierrez’s history of troubles”, Cleveland Plain Dealer/Youngstown Vindicator, Apr. 18; Bertram de Souza, “Will Dann survive the crisis?”, StirFry (Youngstown Vindicator), Apr. 17). Perhaps unfortunately in retrospect, the noisily anti-business Dann had been lionized in the New York Times after his election as a possible “next Eliot Spitzer“.

More: Above the Law, John Phillips (”Other key words are pajamas, condo, inappropriate text messages, Hawaiian pizza, booze, passing out in a bedroom, unbuttoned pants upon waking up, and nothing on but his underwear.”), Law and More. Update: Dann’s emails with scheduler released (Dispatch via Genova)

Mark Steyn on the youngster charged with sexual harassment in suburban Washington, D.C.:

Randy Castro is in the first grade. But, at the ripe old age of 6, he’s been declared a sex offender by Potomac View Elementary School. He’s guilty of sexual harassment, and the incident report will remain on his record for the rest of his school days - and maybe beyond.

Maybe it’ll be one of those things that just keeps turning up on background checks forever and ever: Perhaps 34-year-old Randy Castro will apply for a job, and at his prospective employer’s computer up will pop his sexual-harasser status yet again. Or maybe he’ll be able to keep it hushed up until he’s 57 and runs for governor of Virginia, and suddenly his political career self-detonates when the sordid details of his Spitzeresque sexual pathologies are revealed.

(”Attack of the preschool perverts”, syndicated/Orange County Register, Apr. 12; Brigid Schulte, “For Little Children, Grown-Up Labels As Sexual Harassers”, Washington Post, Apr. 3). A contrary view (letter to the editor from Cynthia Terrell of Takoma Park, Md., WaPo, Apr. 5): “The Post showed appalling insensitivity to the inappropriate nature of Randy Castro’s act. …our culture remains largely indifferent to privacy and harassment issues involving gender.”

Proposed legislation establishing such an offense is arguably broad enough to cover such come-on lines as, “Single? Of course I am.” (Marc Randazza, Mar. 10, via Lat).

Advice to ponder (Mar. 6):

George Harrison once sang: “You serve me and I’ll serve you/Swing your partners, all get screwed/Bring your lawyer and I’ll bring mine/Get together, and we could have a bad time.”

If you sue me, I’m going to do my best to figure out how I can sue you. You want to think about that dynamic before you sue somebody. …

The decision to file a lawsuit is a momentous one. Think hard and think many steps ahead before you bring the courts into your life. Don’t sue angry.

More on the new suit filed by Anthony Ciolli, who had been named as a defendant in the earlier suit: Above the Law. Earlier on AutoAdmit/Xoxohth: Jun. 15 and Oct. 29, 2007.

…for reading a book? And an anti-racist book at that? That’s what FIRE (Foundation for Individual Rights in Education) says happened to Keith Sampson, a student with a sideline job on the IUPUI (Indiana University - Purdue University Indianapolis) janitorial staff who ignored co-workers’ objections to a book he brought in to read on his break time about the struggle against the Ku Klux Klan. (Azhar Majeed, “Read a Book, Harass a Co-Worker at IUPUI”, Mar. 5; follow-up, Mar. 6 with links to coverage by Paul Secunda and David Bernstein). Note, in the Secunda comments, that the school appears to have later rescinded the discipline and assured Sampson that he is free to read the book — which the IUPUI library itself stocks — on break if he likes. And: Eugene Volokh, Howard Wasserman.

LA Times:

In a deposition, [Dov Charney, founder and chief executive of casual fashion giant American Apparel] said that during the time of Nelson’s employment he “frequently had been in my underpants . . . because I was designing an underwear line.”

“I’m very proud of the underwear,” he added.

In an interview, he also defended appearing in front of Nelson with just his genitals covered. “The demonstration of the” garment, Charney said, “was a product we were considering — and I was in fit condition for it.” He ultimately decided against putting it in the American Apparel line. “It wasn’t classy,” he said.

(A local designer “burst into laughter” when hearing Charney’s explanation from a reporter; per the New York Post, the garment that the LA Times is too prim to mention is a “sock on his privates”; per Dateline NBC, it appears to have a rhyming name.) Mary Nelson’s suit against Charney is docketed in Los Angeles Superior Court; he denies creating a hostile work environment or propositioning Nelson and claims Nelson was fired for poor performance (which Nelson, in turn, denies). This is the fourth sexual harassment suit against Charney, who won one and settled two. (Carla Hall, “Lawsuit has fashion mogul in spotlight”, Los Angeles Times, Jan. 17; Dateline NBC (via ABA Journal)).

On Point News reports that Janet Orlando’s $1.7 million victory (May 2006) has been tossed by an appellate court that noted that it wasn’t sex discrimination when the employer was spanking everyone (along with other questionable motivational techniques as diaper-wearing and pies in the face) and the jury instructions failed to make clear that conduct not aimed on grounds of sex was not sexually discriminatory. The opinion is “unpublished” so it will not be precedential.