Both houses of Congress have voted over the past month or two to block the EEOC lawsuit now underway against a Massachusetts unit of the religious group over its policy requiring workers to speak English on the job. But the House leadership has nonetheless promised bilingualism advocates that the proposal will be kept out of a final bill. (John Fund, “Mi Casa, Sue Casa”, OpinionJournal.com, Nov. 19). For more details about the Framingham, Mass., controversy, see PoL, May 3; earlier coverage of the controversy on Overlawyered is here and here. More: Bader, Morrissey, ScrappleFace; & welcome Michelle Malkin readers.
Posts Tagged ‘workplace’
Employment Non-Discrimination Act
The proposed law imposing liability on private employers who discriminate on the basis of employees’ sexual orientation has cleared the House for the first time. My own views haven’t changed since I wrote on the proposal in Reason a decade ago in the course of a review of Andrew Sullivan (who has switched sides since then and now favors the bill). Both sides of the debate get fully aired in the comments to this Dale Carpenter post and by various contributors to the Independent Gay Forum.
More: Possibly related, the case of Aaron Charney versus Sullivan & Cromwell has settled: David Lat, “A Big Pay Day for Big Law Gay?”, New York Observer, Nov. 6.
Abusive cop’s stress at being fired results in disability
Milwaukee cop Robert Henry was fired after being caught on tape in 2002 roughing up an arrested suspect. A federal judge has now ruled against Henry’s lawsuit over his firing. However, that doesn’t mean taxpayers are off the hook for the wayward officer’s continued support: “Henry was not criminally charged, and he later successfully filed for lifelong disability payments after he said he suffered stress for being fired. He remains on disability leave from MPD.” (John Diedrich, “Proof & Hearsay” (Journal-Sentinel blog), Nov. 1).
Damned if you do, damned if you don’t: “Fetal Injury at Work”
In UAW v. Johnson Controls, 499 U.S. 187 (1991), the Supreme Court held that sex discrimination laws prohibited employers from making decisions about fetal safety that took the choice to work in dangerous conditions away from pregnant women. Still, even though the Supreme Court held that “Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents,” and the Supreme Court rejected the idea that civil liability could be an issue for such employers, state courts are still holding employers liable when women claim their unborn children suffered injury while they were working. Michael Starr and Christine Wilson look at the issue in the October 29 National Law Journal.
U.K.: Union defends eBay-addicted town workers
A Labour-run municipal authority in Wales has sacked nine workers after discovering that they were spending up to two hours of their workday on eBay, but “union officials said that the employer had ‘put temptation in their way’ by allowing computer access to external internet sites. They called on all large employers to install a firewall program to prevent staff from being distracted by sites such as eBay, BBC Online and those that provide gambling.” (Simon de Bruxelles, “Office staff lose their jobs after bosses catch them trading on eBay”, Times Online, Sept. 21)(via ABA Journal).
$6.1 million verdict in McDonald’s strip-search case
I’m going to have much much more to say about this case, but for now, let us simply note that a jury found for the plaintiff in a lawsuit against McDonald’s over her victimization by a perverted prank phone call, and awarded $6.1 million; we mentioned the incident in the comments to this lengthy September 2006 discussion of a similar lawsuit that was thrown out of court, and first noted the potential for litigation in April 2004, days before the actual incident took place in this suit.
What the press coverage to date has not mentioned is that the person who almost certainly perpetrated the incident was acquitted after the Kentucky case fell apart because the criminal defense attorney was able to impeach the witnesses by noting their financial stakes in the civil litigation decided today. Thus, thanks to our civil litigation system’s quest for the deep pocket, the guilty party went free and a tertiary innocent victim got hit with damages. Which is precisely why it’s a misnomer when trial lawyers rename themselves associations for “justice.”
Dan Rather sues CBS and Viacom
He says they scapegoated him over the discredited show on the National Guard service of President-to-be George W. Bush. He wants $70 million. (TMZ.com, Sept. 19). More: WSJ law blog has a copy of the complaint (PDF). And: Michelle Malkin, Kevin Drum, Beldar (“‘garbage’ is about the nicest term that can be applied to this pleading”), Althouse.
Chemerinsky legally entitled to job?
The UC Irvine-Erwin Chemerinsky debacle has been covered extensively in the blogosphere — Walter has a roundup of links over at Point of Law. One thing is for certain, though: regardless of the wisdom of UC Irvine’s actions, it clearly has the right to choose its dean based on any (non-discriminatory) criteria it wants. If the university isn’t happy with Chemerinsky’s ideological viewpoint, it obviously has the right to choose someone more compatible, right?
Well, maybe not, as Eugene Volokh explains. Under the wonders of California employment law, the mere fact that someone has abhorrent views doesn’t give you the right to fire him, and it doesn’t give you the right to decide not to hire him:
In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer’s customers, donors, employees, or others.
[…]
So it seems that an employer’s policy (written or not) that it won’t hire or won’t retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.
Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer’s customers would be deeply alienated by the person’s statements (past or future).
That one may well fall under a “damned if you do, damned if you don’t” situation; hiring an outspoken Klansmen will expose employers to potential liability for creating a racially hostile work environment.
And as a special employment-law related bonus: the AP explains that companies that might want to try to save money on health insurance by financially incentivizing employees to stay healthy have to worry about HIPAA (if they provide too much in the way of incentives), and the Americans with Disabilities Act (if employees can convince a court that their obesity is a disability).
Lawsuit: Knowledge of English, thinking not required for police
Quick multiple choice question: you call the police to report an emergency. Several officers respond. Who do you want supervising these officers?
- Smart police officers
- Police officers who speak English
- Police officers who can choose the right strategy from multiple possibilities
- All of the above
Tricked you! The question can’t be answered, because police supervisors shouldn’t have to answer multiple choice questions at all:
Five police officers from Lawrence and Methuen filed a federal civil rights lawsuit yesterday against the two cities and the state, contending that the state promotional exam discriminates against members of minority groups and has prevented their advancement within the ranks.
[…]
They say the multiple-choice format of the test, not the content of the questions, has blocked the rise of minorities, many of whom grew up speaking a different language. They want the state to devise a promotion system that would better reflect the skills used by a police supervisor, instead of how well they answer multiple-choice questions.
Welcome to the world of “disparate impact” litigation, where you don’t have to demonstrate any racism to charge racial discrimination. All you have to do is claim that some groups get promoted less frequently than others, and point out that the employer can’t really prove that his standards are necessary for the job. You know, like speaking English…
“I think this exam is really outdated,” said Cano, who scored a 78 in 2006. “For me, a person whose native language is Spanish, it’s a challenge. The questions are extremely complicated.”
…or dealing with “complicated” situations. The complaints don’t even have to make sense:
Kevin Sledge, 45, a patrolman in Lawrence for 14 years, said the test favors those who have more practice taking written exams. He took the exam last year for the first time, scoring a 76, but was passed over for others who scored higher.
“Some people are more practical and verbal, and those are important skills to be a police supervisor,” he said.
Whereas multiple choice questions don’t test either practical or verbal skills? Well, I guess if you see an emergency, you can just call a lawyer instead. (H/T John Rosenberg)
(Past Overlawyered fun with civil service exams: Mar. 2005, Apr. 2006, Jan 2007, Aug. 1, others.)
City council spat: meter passes $700,000
Suburban Seattle: “A lawsuit accusing four current and former Shoreline City Council members of holding illegal secret meetings two years ago to oust the city manager and decide on his replacement could mean a few hundred dollars in fines for the politicians if they lose.” The legal fees, however, have already mounted to the $700,000 mark with no end in sight, as the parties prepare for a trial. Plaintiffs say the matter could have been settled early with an apology and a small fine; defendants say principle is at stake and that the suit is a way for their disgruntled opponents to cause trouble. (Jim Brunner, “Potential legal tab in Shoreline council lawsuit ‘ridiculous'”, Seattle Times, Sept. 13). And more: case settles for $159,000 (“Shoreline to pay $159,000 to settle open meeting lawsuit”, Sept. 14).